This article critiques the articulation of the legal framework applicable to Australian Defence Force operations in Afghanistan found in the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (Brereton Report). In particular, using the Australian experience in Afghanistan as a case study, the article argues, on the basis of the rules of treaty interpretation, that where a foreign State party to Additional Protocol II (AP II) intervenes in a non-international armed conflict (NIAC) to which AP II applies, that foreign State is bound by AP II, in addition to the host State and non-State armed actors that are parties to the NIAC. The article concludes by outlining the reasons why the Brereton Report's silence in relation to AP II matters.

This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term “sustained” in the phrase “sustained and concerted military operations” intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term “sustained” in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase “sustained” military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts.

This essay examines the similarities, but even more the dissimilarities, between (nonrevisionist) just war theory and the laws of war. The similarities are obvious: both just war theory and the laws of war distinguish jus ad bellum from jus in bello, and incorporate the principles of distinction, proportionality, and necessity. The dissimilarities derive from the special character of law. Law needs binary, yes-no standards for drawing lines, for example between armed conflict and lesser forms of violence. Laws come in packages (regimes), so that changing only one law is not always practicable. And legal propositions, unlike philosophical propositions, are often detachable from their reasons and applied in unexpected and unwelcome ways. This is especially important in the stresses of battle, when rules of warfare must be usable “off the shelf” by middle- or lower-ranked personnel with no opportunity for bespoke deliberation. The essay provides contemporary illustrations of these differences.