This chapter will provide a forensic analysis of the threshold of NIAC and is divided into five sections. The first section briefly explores the distinction and relationship between the material elements of NIAC and the threshold of NIAC. In particular, it identifies the overarching theme of NIACs threshold and proposes a three-step analytical process for determining its existence in practice. The second section explores the first step in identifying the existence of a NIAC, referred to here as the qualification of armed violence, which involves identifying the material elements of NIAC within a situation of armed violence. The third section examines how armed violence is evaluated when determining the threshold of NIAC, and in particular, how the expression ‘protracted armed violence’ has been and should be interpreted. The fourth section explores the organizational requirement of NIACs threshold, including the rationale for this requirement, the degree of organization necessary to qualify as a Party to a NIAC, and what organisation looks like in practice. The fifth section provides a typology of armed group organisation, which is examined through the lens of the ability to engage in NIAC. The sixth section concludes by examining the very fulcrum of conflict identification: the question of who or what decides when a situation of armed violence amounts to a NIAC.

This Chapter seeks to address the legal and factual challenges resulting from the proliferation of battlefield actors through a framework for the  classification of battlefield actors during NIAC. This framework is predicated on the factual and legal distinction between the concept of a ‘Party’ to a NIAC, actors that ‘belong’ to a Party to a NIAC, and actors ‘supporting’ a Party to a NIAC. The Chapter is comprised of four sections. The first section introduces the rationale that underpins and informs the proposed framework, and outlines its practical application. The second section explores the concept of a Party to a NIAC, and in particular the distinction between a Party and the ‘armed forces‘ of a Party. The third section seeks to define the external parameters of a Party to a NIAC by way of the concept of ‘belonging’ under IHL. The fourth section will explore the concept of ‘supporting’ a Party to a NIAC to determine if and when the arrival of new actors on the battlefields of existing NIACs are bound by and subject to IHL, and in doing so, will interrogate the concepts of associated forces and co-belligerents, both of which are contrasted against the support-based approach advanced by the ICRC.

This chapter provides a critical analysis of the material scope of NIAC and is divided into seven sections. The first explores the material concepts of NIAC pursuant to both CA3 and APII,  and explores how the drafters understood these  concept and how it has been interpreted in practice. Second, it examines the concept of NIAC contained in Additional Protocol II of 1977, looking at how its distinct identity emerged, as well as its specific material elements. The second section explores some of the legal and operational challenges that arise from the existence of two categories of NIAC, and in particular how the activation of APII can fragment the applicable legal regime, resulting in fluctuating levels of protection during NIAC. The fourth section undertakes a comparative analysis of the material scope and associated threshold of NIAC pursuant to the Tadić definition of NIAC (CA3) and that contained in APII, in order to identify areas of convergence and divergence. The fifth section explores how developments in both customary and conventional IHL applicable during NIAC have influenced its material scope and, in particular, the level of organization armed groups require in order to qualify as a Party to a NIAC. Following from the conclusions of sections four and five, the sixth section assesses the continued relevance of the distinction between CA3 and APII NIACs in practice.

While the detainees knew nothing about developments in the United States, the Family Committee, working with the Core Team, hired US counsel and brought lawsuits challenging their detention. The US government took a hard line, denying that detainees had any rights at all in US courts and succeeded in the lower courts. The Family Committee’s petition to the Supreme Court was granted, and the Court found that detainees had a statutory right to habeas hearings in US courts. Congress promptly eliminated the statute to try to strip the courts of a basis to hear the cases. The Bush administration also tried to avoid judicial scrutiny by creating “due process lite” administrative hearings conducted by the Department of Defense that provided no lawyers, no meaningful access to evidence, and military representatives who could argue for continued detention. Ultimately, the issue of whether there was a right to a habeas hearing under the Constitution went to the Supreme Court, which finally ruled after six years that the detainees had a right to challenge their detention in US federal courts. But the Supreme Court left it to lower courts to define the process, and those courts erected further hurdles.

Chapter 1 introduces President Donald Trump’s all-out assaults on the validity of the law of war. It argues that his behavior differs from other Western leaders in that Trump has been willing to openly challenge international humanitarian law (IHL) not “in the shadows” but “in the daylight.” Section 1.1 explains why the topic matters for political scientists and legal scholars. Section 1.2 discusses the significance of Trump’s impunity agenda for policy and governance. Section 1.3 argues that, regardless of whether Trump has technically violated the law of war in the past, his brazen attacks on the need for IHL distinguish him from other Western leaders. Section 1.4 claims that the constraints in Western democracies that largely prevent democratic leaders from publicly flouting IHL may be more perceived than actual. Section 1.5 justifies the case selection of Trump, explaining how Trump was presented with the “means, motive, and opportunity” to overtly defy the law of war. Section 1.6 previews the puzzles and arguments that guide the rest of the book.

International law arose in the mid nineteenth century when European powers determined to codify and formalize customary law, to restrain the use of violence in armed conflict, and to create certain protected categories of people. The Hague and Geneva Conventions formed the core of the emerging laws of war and international humanitarian law. While the Conventions have been breached at times, they still form one of the most widely accepted and long-standing aspects of international law. International humanitarian law and laws of war clarify and formalize the differentiation between civilians and combatants, regular and irregular forces, lawful and unlawful combatants. While international laws attempt to make the demarcation of these boundaries as precise as possible, the realities of war always undermine and undo such delineation efforts. Recently, there have been increasing efforts to regulate these gray areas and create international laws and agencies to regulate groups that elude classification.

We almost cannot think today about mass atrocities without Holocaust references. Holocaust analogies frame and enflame our ethical debates. Holocaust words dominate our humanitarian lexicon. Yet the deep linkage between the Holocaust and global justice is accompanied by a marked crisis of confidence in international law. Many question whether global legal institutions can ever prevent and properly punish atrocity crimes. The more we invoke the Holocaust, it seems, the less certain we become about the legal world built in its name. This chapter traces this development, from the first discussions of what would come to be called “genocide” in the 1930s, through private litigation geared toward restorative justice. Each legal mode of dealing with the Holocaust has served as a model for how to approach other atrocities, and each has been unavoidably politicized, despite law’s promise to depoliticize the response to political crimes.

This chapter explores the interaction between international human rights law (IHRL) and international humanitarian law (IHL), as well as international criminal law. It examines how IHRL influences the application and development of IHL and how human rights principles are integrated into international criminal procedures and substantive law. The chapter discusses the mutual reinforcement and potential conflicts between these branches of international law, highlighting the need for a coherent and integrated approach. It also explores the role of international courts and tribunals in applying and interpreting IHRL, IHL, and international criminal law, and the challenges in ensuring compliance and accountability.

The major European adversaries who fought World War I began by following offensive plans designed to win victory quickly, but all these failed. The war became one of grinding attrition, and by 1918, the European adversaries were exhausted. That year, the desperate Germans launched one last offensive to win the war on the Western Front, but it stalled. After the Allies drove the Germans back, fighting ended with the Armistice of November 11. This armistice was a German surrender in all but name. It disarmed German forces, demanded immediate withdrawal from all conquered territory, and imposed an Allied occupation of Germany west of the Rhine. The Treaty of Versailles elaborated the details, imposing staggering war reparations and German acceptance of guilt for the war itself. Much of the German population believed that German forces had not been defeated in battle, instead blaming German liberal politicians and Jews for undermining the war effort. This misconception contributed to the onset of World War II. World War I was the first war in which belligerents adhered to the Hague Conventions concerning the treatment of prisoners of war. There were abuses, but nothing like those that occurred in World War II.

Chapter 1 looks at the historical development of IHL, from its origins in Europe in the 1850s, and the historical events that have shaped the law through the last century and a half. It describes the effect of the Battle of Solferino in 1861 on Henri Dunant, leading to the founding of the International Committee of the Red Cross in Geneva, as well as the parallel development of the Lieber Code arising out of the American Civil War. The core treaties and other instruments forming the basis of modern IHL are outlined, from the 1864 Geneva Convention to the more recent development of international criminal law and its contribution to the law of armed conflict

The Conclusions reflect on the law outlined in Chapters 1−10. They recall that IHL is essentially an attempt to balance two fundamentally contradictory drivers – the need to wage war effectively, and the need to protect people and property from the excessive effects of warfare. It concludes that IHL largely succeeds in this endeavour, and that without IHL life for those caught up in armed conflict would be immeasurably worse. It notes, however, that while the fundamental principles of IHL are enduring, States can and should do more to develop new or more comprehensive laws where there is a need, such as the under-developed law of non-international armed conflict and the lack of regulation of certain weapons.

This chapter provides a brief overview of China’s engagement with international humanitarian law (IHL) since the late nineteenth century. It first looks back to the late Qing dynasty and follows it through to the early decades of the People’s Republic of China. It then examines China’s contemporary IHL practices, including China’s participation in IHL treaties, its domestic legislations, its approach to IHL training and education, as well as its participation in international rule-making processes. The chapter then focusses on developments of new technologies that have called into question the applicability, relevance and sufficiency of IHL. As IHL is in the process of being adapted, (re)interpreted and expanded, China is seeking to play a more active role in these processes. The chapter concludes with a reflection on China’s changing role and perspectives of its future engagements with IHL.

This chapter demonstrates that drone programs – the combination of legal narratives, shifts in military strategy, and technological change – bring about an anywhere war. Combat drones have been deployed against non-state actors extraterritorially, including on the territory of non-belligerent states, because of the presence on those territories of members of terrorist groups. To allow this, drone programs have involved the creation of concepts such as “outside areas of active hostilities” or “outside hot conflict zones.” These non-legal concepts posit that jus in bello applies wherever the belligerent is, including on the territory of a state where the hostilities are not taking place. This practice, accompanied with supportive legal and political rationales, has sparked a heated debate among scholars on the geographical scope of armed conflicts under the jus in bello. Departing from the normative discussion for or against a geographical limitation of conflicts, the chapter shows that there is no such a thing as a legal geographical limitation of conflicts in the law and that its absence is exploited by drone programs, whose technological features eventually create the prospect of an anywhere war taking place wherever the enemy is.