¹ For example, Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion [1996] ICJ Rep 226, [78] (‘The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects …’).

² Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I or AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II or AP II).

³ Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute).

⁴ Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II); Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV).

⁵ Bartels, Rogier, ‘Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts’ (2009) 91 International Review of the Red Cross 35, 44–48;Google ScholarCassese, Antonio, ‘Civil War and International Law’ in Cassese, Antonio, The Human Dimension of International Law: Selected Papers (Oxford University Press 2008) 110, 113–14Google Scholar.

⁶ It is beyond the scope of this article to examine this issue in depth. For discussion see Cullen, Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law (Cambridge University Press 2010) 7–23Google Scholar.

⁷ Lassa Francis Lawrence Oppenheim, International Law: A Treatise, Vol II: War and Neutrality (1906) 67; see also Bugnion, François, ‘Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts’ (2003) 6 Yearbook of International Humanitarian Law 167, 176CrossRefGoogle Scholar. See also discussion with regard to different domestic regulation of hostilities via instructions and agreements in internal armed conflicts in the nineteenth and early twentieth centuries in Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (Oxford University Press 2012) 20–29.Google Scholar

⁸ ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, Appeals Chamber, 2 October 1995, [96].

⁹ n 2.

¹⁰ See also the widely cited definition of NIAC in Tadić (n 8) [70] (defining NIAC as ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’).

¹¹ See also Akande, Dapo, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in Wilmshurst, Elizabeth (ed), International Law and the Classification of Conflicts (Oxford University Press 2012) 32, 37Google Scholar (maintaining that ‘[t]he main reason for the persistence of the distinction is the view by states, or some of them, that equating non-international and international armed conflicts would undermine state sovereignty and, in particular, national unity and security’); Whippman, David, ‘Redefining Combatants: Comment on Richard Arneson's Just Warfare Theory and Noncombatant Immunity’ (2006) 39 Cornell International Law Journal 699, 701Google Scholar (‘States have insisted that non-state actors fighting against a state be treated as either rebels or criminals, and that is why we have different rules for internal armed conflicts and international armed conflicts. Only soldiers fighting for the state in an international armed conflict are deemed to have the combatant's privilege, which is essentially a way of saying that it is not illegal for them to participate in hostilities. They have a right to use force – to use violence against enemy soldiers and enemy forces’).

¹² n 2.

¹³ n 3. Presumably it was conceived that states would rely on their domestic laws in order to regulate various aspects, which are not explicitly regulated in common art 3 and AP II, regarding conduct of hostilities and treatment of captured members of the armed non-state groups.

¹⁴ For example, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (entered into force 26 March 1975) 1015 UNTS 163 (BWC), art 1; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (entered into force 29 April 1997) 1974 UNTS 317 (CWC), art 1; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) (as amended on 3 May 1996) 1125 UNTS 609, art 1.2; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (entered into force 1 March 1999) 2056 UNTS 211, art 1; Protocol on Explosive Remnants of War (entered into force 12 November 2006) UN Doc CCW/MSP/2003/2 (2003), art 1(3); Convention on Cluster Munitions (entered into force 1 August 2010) UNTS No 47713, art 1.

¹⁵ Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005Google Scholar, revised 2009) (ICRC Study) (finding that most of the rules applicable in IAC are also applicable in NIAC under customary law).

¹⁶ See International Committee of the Red Cross, ‘Strengthening Legal Protection for Victims of Armed Conflicts’, October 2011, 31IC/11/5.1.1, 7–8.

¹⁷ GC III (n 4) art 4; AP I (n 2) art 44 (regarding POW status); SCSL, Prosecutor v Sesay, Kallon and Gbao, Judgment, SCSL-04-15-T, Trial Chamber, 2 March 2009, [982]; Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009) 33–34Google Scholar (regarding the applicability of the law of occupation solely to IAC).

¹⁸ Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910), Martens Nouveau Recueil (ser 3) 461, art 23(g). See also art 25 (‘The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited’).

¹⁹ GC IV (n 4) art 53.

²⁰ AP I (n 2) arts 48 and 52(2).

²¹ ibid art 52(2) (‘Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’).

²² Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross and Martinus Nijhoff 1987) 634Google Scholar.

²³ AP I (n 2) art 49.

²⁴ Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2004) 84CrossRefGoogle Scholar.

²⁵ See AP I (n 2) art 52(2) (‘Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’).

²⁶ For example, Nuclear Weapons (n 1) [78]–[79]; ICRC Study (n 15) r 7. See also sources stated in n 44.

²⁷ AP II (n 2) art 14 (protection of objects indispensable to the survival of the civilian population), art 15 (protection of works and installations containing dangerous forces) and art 16 (protection of cultural objects and places of worship).

²⁸ Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77), Vol I, Pt Three, 40, draft art 24 (‘1. In order to ensure respect for the civilian population, the parties to the conflict shall confine their operations to the destruction or weakening of the military resources of the adversary and shall make a distinction between the civilian population and combatants, and between civilian objects and military objectives. 2. Constant care shall be taken, when conducting military operations, to spare the civilian population, civilians and civilian objects. This rule shall, in particular, apply to the planning, deciding or launching of an attack’).

²⁹ Nevertheless, the term ‘military objective’ was slipped into AP II in art 15. See, in general, Kalshoven, Frits, ‘Bombardment: From “Brussels 1874” to “Sarajevo 2003”’ in Doria, José, Gasser, Hans-Peter and Bassiouni, M Cherif (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff 2009)Google Scholar 103, 113.

³⁰ Official Records (n 28) Vol VII, 132, para 63. The Iraqi representative also explicitly supported the US position (ibid 133, para 69). See also the description of Waldemar A Solf, member of the US delegation to the 1974–77 Diplomatic Conference, in which he provides an imaginary dialogue which represents a composite of remarks made informally over the years of the Diplomatic Conference: Solf, Waldemar A, ‘Problems with the Application of Norms Governing Interstate Armed Conflict to Non-International Armed Conflict’ (1983) 13 Georgia Journal of International and Comparative Law 291, 292Google Scholar (‘My government knows that needlessly attacking innocent civilians tends to strengthen dissident movements and we will take strong measures against such misbehaviour by our armed forces. But to prescribe an international norm prohibiting attacks against civilians and civilian objects implicitly suggests that it is permitted to attack security personnel and objects. In our country, at least, killing a policeman is, and must remain, a serious offense’).

³¹ Official Records (n 28) Vol VII, 61, para 11 (emphasis added).

³² ibid Vol XIV, 149–50, para 41 (emphasis added).

³³ ibid 153, para 10.

³⁴ ibid 152, para 7.

³⁵ ibid Vol VII, 137 (as art 14 in the final version of AP II).

³⁶ ibid 140 (emphasis added).

³⁷ See ICC Statute (n 3) art 8(2)(b)(ii) (‘intentionally directing attacks against civilian objects, that is, objects which are not military objectives’).

³⁸ The following objects are protected against intentional attack: (i) ‘buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law’ (ibid art 8(2)(e)(ii)); (ii) ‘installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’ (ibid art 8(2)(e)(iii)); (iii) ‘buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected’ (ibid art 8(2)(e)(iv)).

³⁹ Lindsay Moir, ‘Conduct of Hostilities – War Crimes’ in Doria, Gasser and Bassiouni (n 29) 487, 508; Zimmermann, Andreas, ‘Article 8: War Crimes, Para 2(c)–(f)’ in Triffterer, Otto (ed), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Nomos 1999)Google Scholar para 306 (stating that the prohibition against directing attacks against civilian objects was not included in the part on war crimes in NIAC in the ICC Statute because it was not included in AP II and ‘accordingly the customary law nature of such a prohibition in internal armed conflict seemed to be doubtful’).

⁴⁰ Scheffer, David J, ‘The United States and the International Criminal Court’ (1999) 93 The American Journal of International Law 12, 16CrossRefGoogle Scholar.

⁴¹ Abi-Saab, Georges, ‘The Concept of “War Crimes”’ in Tieya, Wang and Yee, Sienho (eds), International Law in the Post-Cold War World: Essays in Memory of Li Haopei (Routledge 2001)Google Scholar 99, 118 (cited with approval in Haye, Eve La, War Crimes in Internal Armed Conflicts (Cambridge University Press 2008) 144)Google Scholar.

⁴² ICC Statute (n 3) art 10; Abi-Saab, ibid.

⁴³ Sassòli, Marco, ‘The Implementation of International Humanitarian Law: Current and Inherent Challenges’ (2007) 10 Yearbook of International Humanitarian Law 45, 54–55Google Scholar; Sivakumaran (n 7) 81.

⁴⁴ For example, Tadić (n 8) [127]; ICTY, Prosecutor v Strugar, Judgment, IT-01-42-T, Trial Chamber, 31 January 2005, [223]–[226]; ICRC Study (n 15) r 7; International Institute of Humanitarian Law (IIHL), The Manual on the Law of Non-International Armed Conflict with Commentary (IIHL 2006) 18–20Google Scholar; Schmitt, Michael N, ‘Targeting Narcoinsurgents in Afghanistan: The Limits of International Humanitarian Law’ (2009) 12 Yearbook of International Humanitarian Law 301, 314CrossRefGoogle Scholar (‘There is general consensus that the practice [of attacking civilian objects] is prohibited during non-international armed conflict’); Sivakumaran (n 7) 342–47.

⁴⁵ For example, ICC, Prosecutor v Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09, Pre-Trial Chamber, 8 February 2010, [85] (‘The Majority notes that, while international humanitarian law offers protection to all civilians in both international armed conflict and armed conflict not of an international character, the same cannot be said of all civilian objects, in respect of which protection differs according to the nature of the conflict’); Françoise Hampson, ‘Study on Human Rights Protection during Situations of Armed Conflicts, Internal Disturbances and Tensions’, Council of Europe Steering Committee for Human Rights, 18 March 2001, DH-DEV(2002)1, para 54 (‘It is unclear to what extent there is something akin to the concept of a military objective in non-international conflicts’); Akande (n 11) 37 (noting that it is questionable whether the prohibition on attacking all civilian objects is part of customary law in NIAC).

⁴⁶ Tadić (n 8) [127].

⁴⁷ ibid [100].

⁴⁸ ibid [101].

⁴⁹ ibid [105] (‘the Congolese Government wishes to state that the Congolese Air Force will limit its action to military objectives’).

⁵⁰ ibid [106] (according to the Tribunal, the ‘Operational Code of Conduct’ stated that ‘the Federal troops were duty-bound to respect the rules of the Geneva Conventions and in addition were to abide by a set of rules protecting civilians and civilian objects in the theatre of military operations’).

⁵¹ See, eg, ICTY, Prosecutor v Kordić and Čerkez, Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, IT-95-14/2, Trial Chamber, 9 March 1999, [31] (‘It is indisputable that … the prohibition of indiscriminate attacks or attacks on civilian objects are generally accepted obligations … there is no possible doubt as to the customary status of these specific provisions as they reflect core principles of humanitarian law that can be considered as applying to all armed conflicts, whether intended to apply to international or non-international conflicts’).

⁵² ibid; and see ICTY cases cited at n 44.

⁵³ Sivakumaran's excellent book on the laws of NIAC is a notable exception: Sivakumaran (n 7) 342–43 (analysing state practice and declarations of non-state groups on the protection of civilian objects).

⁵⁴ ICRC Study (n 15) r 7.

⁵⁵ Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (with Protocols I, II and III) (entered into force 2 December 1983) 1342 UNTS 137.

⁵⁶ It should be noted that the ICRC Study (n 15) refers also to a limited amount of national legislation, case law and codes of conduct.

⁵⁷ See Bellinger, John B and Haynes, William J, ‘A US Government Response to the International Committee of the Red Cross Study on Customary International Humanitarian Law’ (2007) 89 International Review of the Red Cross 443, 445Google Scholar.

⁵⁸ While it is admitted that NIAC also includes transnational armed conflicts between states and non-state groups (ie armed conflicts which take place outside the territory of the fighting state) because of the identity of the parties involved (see, in general, Lubell, Noam, Extraterritorial Use of Force against Non-State Actors (Oxford University Press 2010)Google Scholar), it is important to stress that this section does not deal with the issue of destruction of civilian objects in transnational armed conflicts as it is not relevant to the territorial state's need to enforce law and order in its territory.

⁵⁹ It is necessary to say a word on the meaning of ‘belonging’ in this context. Obviously, in practice, non-state groups often do not have ownership certificates over their property. This is even more true when it comes to drug farms, which are discussed below. For the purposes of this article, the meaning of property belonging to a non-state group should be understood as property which is being utilised mainly by the members of the non-state group or is being used to support, financially or morally, any of the various activities of the group. Borderline cases, such as property which is only taxed by the non-state group or is used occasionally by the group, are not discussed in this article as they deserve a more extensive platform for discussion.

⁶⁰ See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supp No 10, UN Doc A/56/10, November 2001, art 3 (‘The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law’).

⁶¹ For example, ICTY, ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia’, 13 June 2000, para 47 (stating that ‘whether the media constitutes a legitimate target group is a debatable issue … If it is merely disseminating propaganda to generate support for the war effort, it is not a legitimate target’). See also the discussion in Sassòli, Marco and Cameron, Lindsey, ‘The Protection of Civilian Objects – Current State of the Law and Issues de lege ferenda’ in Ronzitti, Natalino and Venturini, Gabriella (eds) The Law of Air Warfare: Contemporary Issues (Eleven International 2006) 35, 53–57Google Scholar.

⁶² On these enforcement operations see, in general, Bureau for International Narcotics and Law Enforcement Affairs in US Department of State, ‘International Narcotics Control Strategy Report, Vol 1: Drug and Chemical Control’, March 2013, http://www.state.gov/documents/organization/204265.pdf.

⁶³ Akande, Dapo, ‘US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?’ [2010] Inter Alia 73, 78Google Scholar (‘In domestic law, where a seizure is made of illegal drugs, one would indeed expect law enforcement to destroy that property. The only applicable restraints would be the restraints imposed by human rights law … These human rights restraints will require that the deprivation of property not be arbitrary and that it be in the public interest’).

⁶⁴ On the part of FARC in the drug market in Colombia see, eg, United Nations Regional Information Centre, ‘The Guerrilla Groups in Colombia’, http://www.unric.org/en/colombia/27013-the-guerrilla-groups-in-colombia1%20of; Helen Murphy and Luis Jaime Acosta, ‘FARC Controls 60 Percent of Drug Trade – Colombia's Police Chief’, Global Post, 22 April 2013, http://www.globalpost.com/dispatch/news/thomson-reuters/130422/farc-controls-60-percent-drug-trade-colombias-police-chief.

⁶⁵ On the policy of the US and ISAF of targeting drug farms in Afghanistan, see Akande (n 63), Schmitt (n 44) and Linneweber, Edward C, ‘To Target, or Not to Target: Why ’Tis Nobler to Thwart the Afghan Narcotics Trade with Nonlethal Means’ (2011) 207 Military Law Review 155, 177Google Scholar.

⁶⁶ For example, Schmitt (n 44) 319 (‘Even if drugs, drug-related facilities and drug transports fail to qualify as military objectives under IHL, they are not necessarily immune from attack; after all, they are used for illegal purposes. The government of Afghanistan may clearly destroy them as an element of crime fighting, and the forces of other states may assist the Afghans in performing their domestic law enforcement duties’). See also Geiß, Robin, ‘Armed Violence in Fragile States: Low-Intensity Conflicts, Spillover Conflicts, and Sporadic Law Enforcement Operations by Third Parties’ (2009) 91 International Review of the Red Cross 127, 141Google Scholar (‘… the mere existence of an already high level of violence does not automatically transform each and every law enforcement operation into an involvement in a non-international armed conflict governed by IHL. After all, even a government already undisputedly involved in a non-international armed conflict may still carry out regular law enforcement operations unrelated to the armed conflict that are subject merely to human rights law’).

⁶⁷ Droege, Cordula, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40(2) Israel Law Review 310, 350–51Google Scholar. See also discussion on this point in the context of occupation in Gross, Aeyal M, ‘Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?’ (2007) 18 European Journal of International Law 1CrossRefGoogle Scholar.

⁶⁸ Pejić, Jelena, ‘Conflict Classification and the Law Applicable to Detention and the Use of Force’ in Wilmshurst, Elizabeth (ed), International Law and the Classification of Conflicts (Oxford University Press 2012) 80, 110–15Google Scholar.

⁶⁹ Kretzmer, David, ‘Rethinking the Application of IHL in Non-International Armed Conflicts’ (2009) 42 Israel Law Review 8, 24–25Google Scholar.

⁷⁰ CWC (n 14) arts I(5) and II(9)(d). See discussion in Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2010) 82Google Scholar.

⁷¹ For example, Römer, Jan, Killing in a Gray Area between Humanitarian Law and Human Rights: How Can the National Police of Colombia Overcome the Uncertainty of Which Branch of International Law to Apply? (Springer 2010) 27Google Scholar (stating with regard to Colombia that ‘[t]he police patrol the country's airspace in armed planes and helicopters, such as Black Hawks, which are equipped with machine guns and missiles in case of counter attacks by the guerrilla movement, as well as equipment to fumigate coca and poppy plantations’); Chris Harper, ‘Marines, ANA in Marjah Shift Focus to Counternarcotics’, ISAF News, 4 July 2012, http://www.isaf.nato.int/article/news/marines-ana-in-marjah-shift-focus-to-counternarcotics.html (describing a joint counter narcotic operation of Marines, the Afghan National Army (ANA) and Afghan police forces). See also ‘ISAF Joint Command Morning Operational Update’, ISAF News, 19 June 2012, http://www.isaf.nato.int/article/isaf-releases/isaf-joint-command-morning-operational-update-5.html (‘Afghan and coalition forces conducted an operation to dismantle narcotics facilities in Northern Musa Qal'ah district, Helmand province’).

⁷² See Sections 3 and 4.

⁷³ Cock, Chris De, ‘Counter-Insurgency Operations in Afghanistan. What about the ‘Jus ad Bellum’ and the ‘Jus in Bello’: Is the Law Still Accurate?’ (2010) 13 Yearbook of International Humanitarian Law 97, 111Google Scholar (‘It suffices to state that counter narcotic operations are subject to domestic and international human rights law as a law enforcement operation’); Akande (n 63) 78 (making this argument with regard to the destruction of poppy farms in Afghanistan: ‘[T]here is another way of looking at the destruction of civilian property. This is the view that the destruction is permissible, not specifically by IHL, but is part of law enforcement in Afghanistan’).

⁷⁴ See, in general, Landel, Morgane, ‘Are Aerial Fumigations in the Context of the War in Colombia a Violation of the Rules of International Humanitarian Law’ (2010) 19 Transnational Law & Contemporary Problems 491Google Scholar. See also Römer (n 71) 120.

⁷⁵ NATO Secretary-General, Press Conference at Budapest (Hungary), 10 October 2008, cited in ‘NATO Steps up Counter-Narcotics Efforts in Afghanistan’, NATO News, 10 October 2008, http://www.nato.int/docu/update/2008/10-october/e1010b.html (‘Based on the request of the Afghan government, consistent with the appropriate United Nations Security Council resolutions, under the existing operational plan, ISAF can act in concert with the Afghans against facilities and facilitators supporting the insurgency, in the context of counternarcotics, subject to authorization of respective nations’).

⁷⁶ Akande (n 63) 78 (‘NATO's website makes it clear that action by ISAF forces to destroy narcotics facilities can be undertaken only upon request of the Afghan Government. Thus, it could be argued that such destruction is simply assistance given by ISAF to the enforcement of Afghan criminal law’).

⁷⁷ See Landel (n 74).

⁷⁸ Pictet, Jean S (ed), IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary (International Committee of the Red Cross 1958) 20Google Scholar (‘There is no need for a formal declaration of war, or for recognition of the existence of a state of war, as preliminaries to the application of the Convention. The occurrence of de facto hostilities is sufficient’); Greenwood, Christopher, ‘Scope of Application of Humanitarian Law’ in Fleck, Dieter (ed), The Handbook of International Humanitarian Law (2nd edn, Oxford University Press 2008)Google Scholar, 72 (‘… armed conflict is not a technical, legal concept but a recognition of the fact of hostilities’).

⁷⁹ See ICTY, Prosecutor v Kunarac and Others, Judgment, IT-96-23, Appeals Chamber, 12 June 2002, [58] (‘What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed’); see also ibid paras [59]–[60]; ICTR, Prosecutor v Rutaganda, Judgment, ICTR-96-3, Appeals Chamber, 26 May 2003, [570].

⁸⁰ Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross 2009) 58–64Google Scholar.

⁸¹ ibid 58.

⁸² See discussion in Happold, Matthew, ‘International Humanitarian Law and Human Rights Law’ in White, Nigel D and Henderson, Christian (eds), Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello, and Jus post Bellum (Edward Elgar 2013) 444, 453–63Google Scholar.

⁸³ See, in general, Droege (n 67) 325–35. See also Sassòli, Marco and Olson, Laura M, ‘The Relationship between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 International Review of the Red Cross 599, 614Google Scholar (‘For government forces acting on their own territory, control over the place where the attack takes place is not a requirement for human rights to apply, but simply a factor causing human rights to prevail over humanitarian law. The latter was designed to regulate hostilities against forces on or beyond the front line – that is, in a place not under the control of those who attack them, whereas law enforcement concerns persons under the jurisdiction of the enforcers’).

While it is beyond the scope of this article to assess this issue in depth, it is submitted that IHRL may be applicable even in limited air strikes outside the territory of the state. Any other position would mean that a state is prohibited by IHRL from torturing an individual but could still kill the individual in a targeted killing because IHRL would be applicable only in the former scenario as a result of the control of the state over the said individual. The position of wide applicability of IHRL to extraterritorial use of force is supported by various scholars (eg Droege (n 67) 335; Kreß, Claus, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’ (2010) 245 Journal of Conflict & Security Law 245, 259, fn 49Google Scholar; Kretzmer, David, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 European Journal of International Law 171Google Scholar; Lubell (n 58) 222–27). But see Happold (n 82) 458 (‘Arguments have also been made that international human rights law applies more widely, to all extraterritorial uses of force … However, although it has some support in the jurisprudence of the International Court of Justice and the American Commission on Human Rights and in legal doctrine, the current case law of the European Court of Human Rights argues the contrary’). For discussion regarding the responsibility of a state for human rights violations committed on a part of its territory which is not under its effective control, see ECtHR, Ilaşcu and Others v Moldova and Russia, App no 48787/99, 8 July 2004, para 333.

⁸⁴ It should be stressed that there are additional rules that may affect the legality of a given attack from the perspective of IHL. For example, even a military objective could be protected if the attack would result in collateral damage which is excessive in relation to the concrete and direct military advantage anticipated (see AP I (n 2) art 51(5)(b)). However, because of the limited scope of this article, this section will not discuss these further rules. For discussion see Dinstein (n 70) 121–45.

⁸⁵ ICRC Study (n 15) 32.

⁸⁶ See discussion in Byron, Christine, ‘International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage’ (2010) 13 Yearbook of International Humanitarian Law 175, 186–88Google Scholar.

⁸⁷ New Zealand Defence Force, Directorate of Legal Services, Interim Law of Armed Conflict Manual, DM 112, November 1992, para 516(5), cited in Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol II: Practice – Part 1 (International Committee of the Red Cross and Cambridge University Press 2005)Google Scholar para 573.

⁸⁸ Bill, Brian and Marsh, Jeremy, Operational Law Handbook (International and Operational Law Department 2010) 146Google Scholar. See also Oceans Law and Policy Department, ‘Annotated Supplement to the Commander's Handbook on the Law of Naval Operations’, 1997, NWP 1-14M/MCWP S-2.1/COMDTPUB P5800.1, para 8.1.1 (reaffirmed in Department of Defense, ‘Military Commission Instruction No 2’, 30 April 2003, para 5(D), stating that objects may be targeted when they ‘effectively contribute to the opposing force's war-fighting or war-sustaining capability’).

⁸⁹ See n 64.

⁹⁰ De Cock (n 73) 111 (while rejecting this argument, De Cock stated that ‘it has been asserted that narcotic dealers and facilities can also be subject to military action since the financial profits of this trafficking supports the insurgency’).

⁹¹ Indeed, the US interpretation of military objective, which includes economic targets, has been rejected by various scholars: eg De Cock, ibid 112; Dinstein (n 70) 95–96; Akande (n 63) 77–78; Byron (n 86) 188.

⁹² Indeed, some armed groups have civil branches with social functions. See, eg, the social services provided by Hezbollah in Lebanon: Jonathan Masters and Zachary Laub, ‘Hezbollah (a.k.a. Hizbollah, Hizbu'llah)’, Council on Foreign Relations (CFR), 3 January 2014, http://www.cfr.org/lebanon/hezbollah-k-hizbollah-hizbullah/p9155 (stating that ‘Hezbollah maintains an extensive security apparatus, political organization, and social services network in Lebanon, where the group is often described as a “state within the state”’); ‘Lebanon: The Many Hands and Faces of Hezbollah’, Integrated Regional Information Networks, 29 March 2006, http://www.irinnews.org/report/26242/lebanon-the-many-hands-and-faces-of-hezbollah (‘Most experts believe that Hezbollah's social and health programmes are worth hundreds of millions of dollars annually’).

⁹³ ‘Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights’, 21 October 2005, Annex I: Territorial Scope of Application of the Covenant; Bowring, Bill, ‘Fragmentation, Lex Specialis and the Tensions in the Jurisprudence of the European Court of Human Rights’ (2009) 14 Journal of Conflict & Security Law 485Google Scholar.

⁹⁴ Nuclear Weapons (n 1) [24]–[25]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [106]; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 116, [216].

⁹⁵ For example, Droege, Cordula, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 International Review of the Red Cross 501Google Scholar, 501 (‘there is today no question that human rights law comes to complement humanitarian law in situations of armed conflict’); Basic Principles for the Protection of Civilian Populations in Armed Conflicts, UNGA Res 2675(XXV), 9 December 1970 (‘[f]undamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict’).

⁹⁶ Nuclear Weapons (n 1) [25]; Wall (n 94) [106]; Inter-American Commission on Human Rights, ‘Report on Terrorism and Human Rights’, 22 October 2002, OEA/Ser L/V/II 116, paras 57–62; Human Rights Committee, ‘General Comment No 31: The Nature of the General Legal Obligation on States Parties to the Covenant’, 26 May 2004, CCPR/C/21/Rev.1/Add.13, [11]; Dinstein (n 70) 19–26.

⁹⁷ For example, Human Rights First, ‘Fixing Bagram: Strengthening Detention Reforms to Align with US Strategic Priorities’, November 2009, 4, http://www.humanrightsfirst.org/wp-content/uploads/pdf/Fixing-Bagram-110409.pdf (‘Detention is an essential element of armed conflict, but the grounds and procedures for detention must be consistent with international humanitarian law and the applicable standards of international human rights law. Common Article 3 and Additional Protocol II (AP II) do not provide procedural guidelines to govern reviews of detention in non-international armed conflicts. Thus it is necessary to refer to human rights law for guidance’).

⁹⁸ Doswald-Beck, Louise, ‘The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?’ (2006) 88 International Review of the Red Cross 881, 903–04Google Scholar (‘Specific, clear and well-established rules of IHL can be considered to be lex specialis. However, where there is any kind of doubt, or where the rules are too general to provide all the answers, then human rights law will fill the gap, provided that this law is not incompatible with the overall fundamental aim and purpose of IHL. It is submitted that the human rights law relating to the right to life is suitable to supplement and interpret IHL rules relating to the use of force for non-international conflicts and occupation, as well as the law relating to civilians taking a “direct part in hostilities”’).

⁹⁹ This argument, that the doctrinal solution to the need to destroy drug farms lies in the connection between IHL and IHRL, is implicitly referred to by Akande in his article on the destruction of drug farms in Afghanistan: see Akande (n 63) 78–79 (‘Given that international (human rights) law would permit destruction by a government of civilian property in peacetime for the purpose of law enforcement, it would be surprising to have a blanket prohibition in time of internal armed conflict. This gives reason to be cautious about accepting that there is blanket prohibition of targeting civilian property in the customary IHL applicable to non-international armed conflicts. Of course this raises questions about the relationship between IHL and human rights law. However, it would be odd for a government to find itself more restrained by international law in time of internal armed conflict than it would be absent such an armed conflict’).

¹⁰⁰ See discussion between nn 81–83.

¹⁰¹ For example, International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 4(1) (‘In time of public emergency … States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law’) and art 5(2) (‘There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent’).

¹⁰² For example, since there is no POW status in NIAC (see n 19), unlike members of non-state groups, the members of the armed forces of the state are not exposed to the risk of being prosecuted for participating in hostilities.

¹⁰³ It is beyond the scope of this article to discuss the concept of lex specialis in depth. It is sufficient to state that the application of IHRL as lex specialis in a specific case does not deny the general applicability of IHL. As lex generalis, IHL remains in the background and must be taken into account in interpreting the lex specialis. For further discussion regarding this model of lex specialis, see Sassòli and Olson (n 83) 603–05. See further discussion on the relationship between lex specialis and lex generalis in the context of IHL in Krieger, Heike, ‘A Conflict of Norms: The Relationship between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’ (2006) 11 Journal of Conflict & Security Law 265, 268–76Google Scholar.

¹⁰⁴ Nevertheless, it is admitted that NIAC also include transnational armed conflicts (see n 58).

¹⁰⁵ Crawford, Emily, ‘Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts’ (2007) 20 Leiden Journal of International Law 441Google Scholar; Yves Sandoz, ‘Foreword’ in ICRC Study (n 15) xxii (‘For the average person this [distinction] is completely absurd. Indeed, how can one claim the right to employ against one's own population means of warfare which one has prohibited for use against an invader?’).

¹⁰⁶ The civilian population and individual civilians are already protected in NIAC under both treaty law (AP II (n 2) art 13) and customary law (ICRC Study (n 15) r 1).

¹⁰⁷ For example, Dinstein (n 70) 4–8.