1 But see Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, Oxford, 2006.

2 See e.g. European Union, A secure Europe in a better world: European Security Strategy (hereinafter European Security Strategy), Brussels, December 2003, pp. 3ff., available at: http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf (last visited 2 July 2009).

3 See SC Res. 1851, 16 December 2008.

4 Ulrich Schneckener, Internationales Statebuilding: Dilemmata, Strategien und Anforderungen an die deutsche Politik, SWP Research Paper, German Institute for International and Security Affairs (SWP), Berlin, October 2007, p. 7; available at http://www.swp-berlin.org/de/common/get_document.php?asset_id=3993 (last visited 2 July 2007).

5 Robin Geiβ, ‘Failed States’, Die normative Erfassung gescheiterter Staaten, Duncker and Humblot, Berlin, 2005.

6 See Robert I. Rotberg, ‘Failed states, collapsed states, weak states: Causes and indicators’, in R. Rotberg (ed.), State Failure and State Weakness in a Time of Terror, Brookings Institution Press, Washington DC, 2003, pp. 1–25.

7 In order to consolidate their power in the capital, governments may opt to neglect the periphery, perhaps even to instigate erosion or conflict so as to divert tensions from the capital, and at the same time deliberately ‘outsource’ the performance of certain state functions to third parties. See A. Weber, Kriege ohne Grenzen und das ‘erfolgreiche Scheitern’ der Staaten am Horn von Afrika, SWP Research Paper, Berlin, September 2008, p. 6.

8 See U. Schneckener, ‘States at risk: Zur analyse fragiler Staatlichkeit’, in U. Schneckener (ed.), Fragile Staatlichkeit, Nomos, Baden-Baden, 2006, pp. 9–40.

9 U. Schneckener, How transnational terrorists profit from fragile states, SWP Research Paper, Berlin, 2004, pp. 5, 10; available at: http://www.swp-berlin.org/en/common/get_document.php?asset_id=2406 (last visited 9 July 2009).

10 U. Schneckener, ‘Fragile statehood, armed non-state actors and security governance’, in A. Bryden and M. Caparini (eds.), Private Actors and Security Governance, Berlin, 2006, pp. 23, 34.

11 Montevideo Convention on the Rights and Duties of States, 23 December 1933; LNTS Vol. CLXV, 25. According to Article 1 of the Montevideo Convention: ‘The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.’ But see also J. Crawford, The Creation of States in International Law, 2nd ed., Oxford University Press, Oxford, 2007.

12 SC Res. 1816, 2 June 2008; SC Res. 1838, 7 October 2008; SC Res. 1846, 2 December 2008; SC Res. 1851, 16 December 2008.

13 SC Res. 733, 23 January 1992; SC Res. 794, 3 December 1992.

14 According to Articles 3 and 4 of the UN Charter, membership in the United Nations is only open to states.

15 Matthias Herdegen, ‘Der Wegfall effektiver Staatsgewalt’, in Berichte der Deutschen Gesellschaft für Völkerrecht, Vol. 34, 1996, p. 49 (pp. 58ff.).

16 See e.g. Thürer, Daniel, ‘The failed state and international law’, International Review of the Red Cross, No. 836, 1999, pp. 731–761.Google Scholar

17 SC Res. 794, 3 December 1992.

18 It has been shown that weak and failing states, in which government supervision can be evaded, are generally – except for Afghanistan – more attractive to transnational terrorist networks that need a certain level of infrastructure than failed states and areas affected by a fully fledged armed conflict. See Schneckener, above note 4, p. 30.

19 The White House, The National Security Strategy of the USA, September 2002, p. 4, available at http://www.globalsecurity.org/military/library/policy/national/nss-020920.pdf (last visited 2 July 2009); European Union, European Security Strategy, above note 2, p. 5. See also Report on the implementation of the European Security Strategy: Providing security in a changing world, S407/08, Brussels, 11 December 2008, available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/reports/104630.pdf (last visited 2 July 2009).

20 It is primarily against this background that the high-level so-called ‘3C Conference’ – the 3Cs standing for a coherent, co-ordinated and complementary approach – was convened by the Swiss government in association with the OECD, the United Nations, the World Bank and NATO in March 2009. Document available at: http://www.3c-conference2009.ch/en/Home/Conference_Papers/media/Afghanistan%20paper%20final%20final.pdf (last visited 9 July 2009).

21 See Schneckener, above note 10, p. 24.

22 The US National Security Strategy report states: ‘America is now threatened less by conquering states than we are by failing ones’. See The National Security Strategy of the United States of America, Washington DC, September 2002. The European Union's European Security Strategy, above note 2, p. 5, emphasizes that ‘[c]ollapse of the State can be associated with obvious threats, such as organised crime or terrorism. State failure is an alarming phenomenon, that undermines global governance, and adds to regional instability’. The report of the UN Secretary General's High-Level Panel on Threats, Challenges and Change, A more secure world, initiated by UN Secretary-General Kofi Annan, emphasizes that the issue of fragile statehood is at the core of most of today's relevant security problems and identifies six ‘clusters of threat’, but without designating as a threat failing and failed states as such – see UN Secretary General's High-Level Panel on Threats, Challenges and Change, A more secure world: Our shared responsibility, United Nations, New York, 2004, pp. 23ff.

23 SC Res. 1851, 16 December 2008.

24 Geiβ, above note 5, pp. 129–150.

25 Report of the Secretary General on the Situation in Somalia, S/1999/882, 16 August 1999, para 63.

26 Ibid., para 72.

27 This was a reaction to the fact that notably Somalia had not been able to sign the Lomé IV Convention, a requirement for entitlement to benefit from the 7th and 8th European Development Funds. According to Article 93(4) of the Cotonou Agreement, which replaced the Lomé Convention in 2000, the Council of Ministers may decide to accord special support to members of the African, Caribbean and Pacific group of states which, in the absence of normally established government institutions, have not been able to sign or ratify this Agreement.

28 See Organisation for Economic Co-operation and Development (OECD), Whole of government approaches to fragile States, Paris, 2006, available at: http://www.oecd.org/dataoecd/15/24/37826256.pdf (last visited 8 July 2005).

29 Protocol II Additional to the Geneva Conventions of 1949 and Relating to Non-International Armed Conflicts. In reality, of course, various armed groups maintain relations with and may receive support of some sort from states, and raging chaos may well be the result of calculated government policy. However, indirect support can take various forms, and in most instances states will be keen to keep such support secret and to avoid attribution which could possibly have an impact on the qualification of the armed conflict, even though it would still have to be qualified as a non-international armed conflict if states are only involved on one side of it.

30 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (hereinafter Appeal on Jurisdiction), 2 October 1995, paras 67, 70.

31 See also Geiβ, above note 5, pp. 225–244.

32 ICTY, Prosecutor v. Tadic, Appeal on Jurisdiction, above note 30, para 70. See also Boelaert-Suominen, Sonia, ‘The Yugoslav Tribunal and the common core of humanitarian law applicable to all armed conflicts’, Leiden Journal of International Law, Vol. 13, 2000, p. 619, at pp. 632ff.CrossRefGoogle Scholar; Ch. Greenwood, ‘The development of international law by the International Criminal Tribunal for the former Yugoslavia’, Max Planck Yearbook of United Nations Law, Vol 2, 1998, p. 97, at p. 114.

33 For an in-depth analysis of this jurisprudence see Eve LaHaye, War Crimes in Internal Armed Conflicts, Cambridge 2008, pp. 9ff.

34 See e.g. ICTY, Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Trial Chamber), 10 December 1998, para 59; ICTY, Prosecutor v. Kunarac, Case Nos. IT-96-23-T and IT-96-23/1-T, Judgment (Trial Chamber), 22 February 2001, paras 567–69; ICTY, Prosecutor v. Mucić et al. (Čelebići Camp), Case No. IT-96-21, Judgment (Trial Chamber), 16 November 1998, paras 183–92; ICTY, Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment (Trial Chamber), 30 November 2005, paras 83–174.

35 ICTY, Prosecutor v. Limaj, above note 34, para 170. Various indicative criteria have been suggested in the literature and in international jurisprudence in order to facilitate the determination whether a given situation has met the required threshold to qualify as a non-international armed conflict: ICTY, Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgment (Trial Chamber), 3 April 2008, paras 49, 60; ICTY, Prosecutor v. Limaj, above note 34, paras 94–134; LaHaye, above note 33, pp. 5ff. With regard to the intensity of the armed violence the following factors have been taken into consideration: the recurrence and gravity of attacks, the temporal and territorial expansion of violence, the ‘collective character’ of hostilities, control over territory, the distribution and type of weapons employed, and whether the conflict received the attention of the Security Council or, going one step further, whether it was specifically addressed or even qualified as such by the Security Council; see G. Nolte, ‘The different functions of the Security Council with respect to humanitarian law’, in V. Lowe, A. Roberts et al. (eds.), The Security Council and War, Oxford University Press, Oxford, 2008, pp. 519–535. Conversely, the Limaj case has been particularly instructive in terms of the required degree of organization of an armed group.

36 Schneckener, above note 4, p. 13.

37 Schneckener, above note 10, p. 23.

38 SC Res. 775, 28 August 1992; SC Res. 767, 24 July 1992; SC Res. 897, 4 February 1994.

39 According to the report of the UN Independent Expert for Somalia of 14 January 2002: ‘… international humanitarian law relating to non-international armed conflict applies in the whole territory of Somalia, irrespective of whether a specific area is engulfed in active fighting or not’; E/CN.4/2002/119, 14 January 2002, para 31. The report further stated that: ‘This application extends to the “Puntland” regional government in the north-east, which considers itself part of Somalia, as well as to “Somaliland”, which is asserting independence, although there is no international recognition of its separate status’ (ibid.). The previous independent expert had likewise been of the opinion that ‘… all parties to the conflict [in Somalia] are bound by the laws and customs applicable in armed conflicts not of an international nature’, E/CN.4/2000/110, 26 January 2000. For similar qualifications see also e.g. E/CN.4/1999/103, 18 February 1993, para 34; E/CN.4/1997/88, 3 March 1997, para 55; E/CN.4/1998/96, 16 January 1998, para 12.

40 Inter-American Court of Human Rights, Juan Carlos Abella v. Argentina (Tablada Case), No. 11.137, Report 55/97, para 152. The relatively high threshold identified by the ICTR in the Akayesu case, where it was held that Common Article 3 requires armed groups to be ‘organized as military in possession of a part of the national territory’ has not found widespread acceptance and is regarded as exceedingly high – see ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Chamber I), para 619.

41 ICTY, Prosecutor v. Limaj, above note 34, para 89.

42 See e.g. compilation prepared by OHCHR, Brazil, A/HRC/WG.6/1/BRA/2, 28 February 2008, available at: http://www.upr-info.org/IMG/pdf/Bra_UN_comp.pdf (last visited 9 July 2009); Human Rights Watch's submission to the Human Rights Council, 8 April 2008, available at: http://www.hrw.org/en/news/2008/04/06/universal-periodic-review-brazil (last visited 9 July 2009).

43 Recent Security Council Resolutions 1816, 1846 and 1851 – albeit with regard to the repression of piracy – not only underscored the particularity of the situation in Somalia but explicitly emphasized that those resolutions shall not be considered as establishing customary international law. SC Res. 1851, 16 December 2008, para 10: ‘Affirms that the authorization provided in this resolution apply only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under UNCLOS, with respect to any other situation, and underscores in particular that this resolution shall not be considered as establishing customary international law’.

44 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, p. 14, para 205.

45 Lindsay Moir, The Law of Internal Armed Conflict, pp. 52ff. Nevertheless, the Spanish Civil War did of course have far-reaching international implications.

46 Claus Kreß, ‘Völkerstrafrecht der dritten Generation gegen transnationale Gewalt Privater?’, in G. Hankel (ed.), Macht und Recht: Völkerrecht und Völkerstrafrecht zu Beginn des 21. Jahrhunderts, Hamburger Edition, Hamburg, 2007, p. 357; Moir, above note 45, pp. 52ff.

47 Prosecutor v. Tadic, Appeal on Jurisdiction, above note 30, para 70 (emphasis added).

48 See e.g. Hamdan v. Rumsfeld, 548 U.S. (2006), p. 67.

49 See e.g. Guilfoyle, Douglas, ‘Piracy off Somalia: UN Security Council Resolution 1816 and IMO regional counter-piracy efforts’, International and Comparative Law Quarterly, Vol. 57, 2008, p. 696.CrossRefGoogle Scholar Moreover, operative paragraph 5 of Security Council Resolution 1851 (16 December 2008) reflects this perception by encouraging states ‘to effectively investigate and prosecute piracy and armed robbery at sea offences’.

50 SC Res. 1851, 16 December 2008, preambular para 5. Similarly, preambular paragraph 7 of SC Res. 1816 (2 June 2008) took into account: ‘the crisis situation in Somalia, and the lack of capacity of the Transitional Federal Government (TFG) to interdict pirates or patrol and secure either the international sea lanes off the coast of Somalia or Somalia's territorial waters’.

51 Ibid., para 6 (emphasis added).

52 SC Res. 1846, 2 December 2008, para 10.

53 Moreover, such a distinction between counter-piracy operations at sea and on land would seem to be in line with the fact that the Security Council qualified the situation in Somalia, and not the incidents of piracy, as a threat to international peace and security. Notably, the Security Council emphasized that the incidents of piracy and armed robbery at sea in the waters off the coast of Somalia only exacerbate the crisis situation prevailing in Somalia.

54 SC Res. 1851, 16 December 2008, para 6.

55 See e.g. SC Res. 1872, 26 May 2009.

56 See United Nations Department of Public Information, Security Council authorizes States to use land-based operations in Somalia, Press Release, 16 December 2008, available at http://www.un.org/News/Press/docs/2008/sc9541.doc.htm (last visited 9 July 2009).

57 The mere use of military equipment does not change this assessment. It should be noted that where counter-operations at sea are concerned, UNCLOS explicitly mandates naval vessels to carry them out.

58 SC Res. 1851, 16 December 2008, para 4.

59 Ibid., para 5.

60 See e.g. Amnesty International, Somalia pirates hold 130 hostages after hijacking nine ships, 10 September 2008, available at http://www.amnesty.org.uk/news_details.asp?NewsID=17875 (last visited 8 July 2009).

61 SC Res. 1846, 2 December 2008, para 10.

62 SC Res. 1851, 16 December 2008, para 6.