Borderless: The applicability of Common Article 3 to Transnational Non-International Armed Conflicts

MOISÉS A. MONTIEL MOGOLLÓN¹

SUMMARY: I. Introduction. II. Concept. III. The difficulties.

IV. Conclusions.

Abstract. The common understanding surrounding Common Article 3 of the 1949 Geneva Conventions is that a non-international armed conflict can only be such if its occurrence is confined to the territorial limits of one State. This paper seeks to demonstrate that the notion of territoriality built into the legislative framework of International Humanitarian Law can be interpreted in order to include the broader category of transnational non-international armed conflicts under the aegis of Common Article 3 by examining the requirements laid out by jurisprudence and subsequent doctrinal development under the light of modern-day features of the realm of armed conflict.

Keywords: International Humanitarian Law, Non-international Armed Conflict, Territoriality, Transnational Armed Conflict, Common Article 3.

Resumen. La comprensión consensuada sobre el Artículo Común 3 de las Convenciones de Ginebra de 1949² es que un conflicto sin carácter internacional solo puede ocurrir en los confines territoriales de uno de los Estados parte. Este artículo intenta demostrar que la noción de territorialidad ínsita en el marco legislativo del derecho de los conflictos armados puede ser interpretada para admitir la categoría más amplia de conflictos transnacionales sin carácter internacional bajo la égida del artículo común 3 al examinar los requisitos expresados por la jurisprudencia, y los desarrollos doctrinales a la luz de las características modernas de los conflictos armados.

Palabras clave: Derecho Internacional Humanitario, Conflictos Sin Carácter Internacional, Territorialidad, Conflicto Armado Transnacional, Artículo Común 3.

ABBREVIATIONS

I ] Introduction

The idea of territoriality is heavily embedded in the text and spirit of the Geneva Conventions of 1949 and the Additional Protocols of 1977. A simple look to the text of the Conventions will reveal the recurrent reference to this ratione loci scope. In the case of Common Article 3 to the Geneva Conventions the phrase appears to give a special qualification as to where a conflict must happen in order to be qualified as one not of an international character.³ The exact phrasing of the article reads: in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties (…).⁴ The article stresses that in order for it to apply, the conflict must occur within the territory of one of the parties to the treaty. It could be inferred that the drafters of the Conventions had in mind situations such as internal rebellions or wars of national liberation at the time of drafting.

This idea is further supported by the heavily westphalian notion of sovereignty prevalent in the first half of the 20th century. Heller argues in this context that sovereignty is the absolutely independent quality of a political unit in front of any other⁵. This concept of sovereignty bears witness to the importance of non-interference in domestic affairs -which is one of the most important principles of modern international law⁶-, Dobos, on the same note, argues that the political control of the State is wielded by the government, and notes that this fact excludes (nominally, at least) the exercise of control by any other actor⁷. Said exercise of control is territorially constrained by nature. Thus, the territorial logic of common article 3, seems to pay tribute to the idea that whatever happens within the confines of a State is a matter of that State, and it alone.

This assumption can be corroborated by the later adoption of Additional Protocols I and II, respectively. Both of these deal with situations of internal armed conflict⁸. However, even these later conventional developments continued the underlying logic of the 1949 Conventions: in order for a conflict to be recognized as a non-international armed conflict (NIAC) it must take place within the boundaries of one State. It is against this backdrop that Solis observes, concerning common article 3, that many governments, particularly those of developing nations, view any attempted international regulation of their internal conflicts as excuses for foreign intervention and intrusions on sovereignty⁹

As Draper observes, International Humanitarian Law is usually characterized as working retrospectively¹⁰. It seeks to prevent the recurrence of tragedies already suffered and witnessed. Nevertheless, in the wake of the September 11^th of 2001 attack on the United States by the terrorist organization Al-Qaeda and the subsequent declaration of the War on Terror¹¹, scholarly commentary has turned its attention to a phenomenon unexplored as of that point in time: whether there could be a conflict not of an international armed character taking place across the whole world or at least not constrained to the territory of one State. Such was (and remains until today) the characterization presented by the United States concerning its global conflict against Al-Qaeda¹². Apart from the U.S., other countries have been skeptical in recognizing the ongoing armed struggle against the terrorist network as an armed conflict. The position of these States coincides with that of the ICRC. This is the same conclusion reached by Solis, specifically as far as Al-Qaeda or the Taliban is concerned.¹³

In a very pragmatic fashion the ICRC has Stated that:

When and where the global war on terror manifests itself in either of these forms of armed conflict, international humanitarian law applies, as do aspects of international human rights and domestic law¹⁴.

In the interest of civilians that might be present when any such confrontations occur (regardless of the territorial jurisdiction), the preference of the ICRC and countries doubting the characterization of the conflict will be for the most favorable regime to be applied. However, the characterization of such conflicts remains dubious at best. Some authors categorize them as separate NIACs, others as Internationalized NIACs, and notably, others argue that they are not armed conflicts at all but rather a matter better left to criminal law¹⁵.

A logical compromise on this duality is the one offered by the ICJ in its Nicaragua Case Common Article 3 may thus be considered as the ‘minimum yardstick’ of rules of international humanitarian law (...) applicable to both internal and international conflict¹⁶. This same idea that common article 3 applies to all kinds of conflicts was espoused by the ICTY in the Dedalic et al case¹⁷. The conclusion follows then, that wherever there is conflict, common article 3 shall apply, such a conclusion was foreseen by the ICTY in the Tadic case when it opined that:

We have no doubt that they [violations of rules of warfare in international law] entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts. Principles and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognized as the mandatory minimum for conduct in armed conflicts of any kind.¹⁸

This paper is not, however, concerned with international terrorism and the fight against it. The policy goals pursued by American academic writers are a matter of politics and political choices. The present work posits that the text of Common Article 3 and the requirements laid out by the International Criminal Tribunal for the Former Yugoslavia in the Tadic case¹⁹ can be interpreted in order to allow for an expansive notion of non-international armed conflict that could accommodate transnational non-international armed conflicts (NIACs).

As a side note, the writing of this paper started in the fall of 2014, coincidentally, the year where the so-called ‘Islamic State of Syria, Iraq, and the Levant’ proclaimed itself a Caliphate. At that time, the notions put forward in this work had a certain air of speculation or exercises in futility, given that no conflict existed that would require a framework like the one offered here. In hindsight, the idea of Transnational NIACs would have proved itself very valuable if put forward as part of an ongoing discussion on the betterment of IHL, but, alas, it is best not to cry over spilt milk.

This personal note is relevant insofar as the conflict between several States and the so-called Caliphate incorporated elements of a clear-cut NIAC, but also manifested itself across the world, involving -for the largest part- the same warring parties, with several terrorist attacks: a shooting in the Canadian Parliament in 2014²⁰, a hostage crisis in Sidney, on December 2014²¹, the Charlie Hebdo attack on January 2015²², the Copenhagen attack of February 2015²³, the 13th of November 2015 Paris attack²⁴, and the Brussels’ airport attack in 2016²⁵; and not only in Europe, also Tunisia, Turkey, Egypt, Lebanon, the United States, and Afghanistan, among others²⁶, had their share of armed violence attributed to or claimed by the DAESH, just to name a few in a long and gruesome list.

These incidents occurred outside of the territorial spectrum of the NIAC (strictly speaking) but held a close relationship, in terms of parties, purpose, and tactics with the actual conflict occurring in the Iraq-Syria battlefield. This situation, then, begs the question: could said terrorist attacks and instances of armed violence be considered hostilities between parties in a conflict even if geographically distant? Were the shooters and bombers of the attack’s combatants? Did the ‘minimum yardstick’ benefit them too? Would their deaths count as lawful if killed in action?

The goal of this paper is to demonstrate that if a conflict meets the characteristics here proposed, International Humanitarian Law would indeed be applicable. In order to make such a claim, this piece will look at the requirements of intensity and organization, as they are currently understood. With a view to argue that provided there is matching identity or attributability to the same party of an act of armed violence, regardless of where an action is conducted, the threshold of protracted and intense armed violence can be met by adding territorially distant acts of violence. This connects, in turn, to the second requirement laid out by the Tadic appeal ruling; Of the organization and command structure of the non-State party. The contention here is that if a principal-agent relationship can be ascertained between two parts of an organization with a sufficient degree to prove control of one over the other to the extent that they can be deemed to be the same organization, the command structure requirements will be satisfied.

These two precisions would then open the way for a more flexible understanding of the notion of territoriality that permeates Common Article 3 of the Conventions. In doing so, this paper will conclude that there can be such a thing as Transnational Non-International Armed Conflict. As Watkin argues: Modern conflict often does not appear to fit nicely into the strict traditional legal concepts of what constitutes international and non-international armed conflict.²⁷

II ] Concept

Authors such as Vité point out the lack of clarity in definitions surrounding transnational armed conflicts as a consequence of the different situations the doctrine uses the term for²⁸. Specifically, Vité observes that the term is applied to the situation of ‘exported’ conflicts and cross-border internal conflicts. These two situations correspond with what is also known as spillover conflict and intervention (whether consented to or not). Both of these definitions carry out the prevalent understanding that NIACs are contained within the territory of a single State and anticipate the possibility of spillover to neighboring countries. Common Article 3 would apply without a doubt in these situations. What is meant in this work by transnational NIACs is something different. It refers to the question of what happens when the battlefield is no longer constrained to the territory of a single country? or, in other words, what happens when the battlefield is borderless?

Transnational non-international armed conflicts, as posited here, are a subset of non-international armed conflicts. They belong in this category because they require, at least, two parties with at least one of them being a State and the other being a non-State armed group. The participation of a party that is not composed of the regular armed forces of a State brings the logical conclusion that this type of conflict can never be international under existing categories²⁹.

What sets them apart from other types of non-international armed conflicts is the fact that they are not territorially contained within the borders of a single State, but rather happen throughout the territory of two or more States that are not necessarily contiguous. In this context, the characteristics of transnational NIACs are: 1.- the existence of at least two parties, one of them being a State and the other being a non-State armed group³⁰; 2.- the occurrence of armed confrontation of a sufficient level to rule out mere tensions or sporadic acts of violence³¹; 3.- that the armed violence occurs between the same parties regardless of the place where it happens, and lastly 4.- that the violent clashes occur in the territory of more than one State not geographically contiguous to the one where the violence erupted.

III ] The difficulties

The first problem that the notion of Transnational NIACs entails is that of the capacity and willingness of non-State armed groups to comply with International Humanitarian Law. Sassóli comments on this point that only States can be parties to the Conventions and therefore only States can be bound by the obligations stemming from them³². On the subject of customary international law, he further notes that:

State practice and opinio juris do not apply the law of international armed conflict to conflicts between States and certain non‐State actors. In conformity with the tenets of the Westphalian system, States have always distinguished between conflicts against one another, to which the whole of IHL applied, and other armed conflicts, to which they were never prepared to apply those same rules, but only more limited humanitarian rules.³³

However, international obligations (especially customary ones) do not float in a vacuum, nor are they confined solely to the international realm, as most monist approaches to international law would seem to suggest. Rules of IHL (as a subset of international law) are implemented by way of internal legislation or other implementation mechanisms. Seeing as the Geneva Conventions enjoy universal ratification, all States are bound at the very least not to defeat the object and purpose of the treaty³⁴ if not to fully comply with it. Moreover, all individuals taking part on the side of a non-State armed group are by force nationals of at least one State and may therefore face criminal prosecution for the violation of the obligations contained within the Conventions.

Additionally, it should be observed historically, the idea of promoting international legislation to govern non-international armed conflicts has sought to persuade non-State armed groups to fall in line and comply with, at least, the basic core of IHL norms³⁵. Therefore, it would not be absurd to posit that the potential expansion of the ratio personae spectrum for application of IHL norms is without precedent in modern international law.

The other complications that will be treated at greater length in the following pages, are concerned with the notion of territoriality as a defining factor in the text of the Geneva Conventions, and the requirements of intensity and organization as understood by the Tadic ruling and the subsequent customary enunciation of these characteristics.

1. The Notion of Territoriality

The keystone of the debate surrounding transnational non-international armed conflict lies in the territorial notion that permeates the text of Common Article 3 of the Geneva Conventions. As was pointed out earlier, the language of the article seems to explicitly state that the conflict must take place in the territory of one of the High Contracting Parties. The main consequence of the notion of territoriality considered jointly with the fact of the universal ratification of the Conventions is that: Any armed conflict between governmental armed forces and armed groups or between such groups cannot but take place on the territory of one of the Parties to the Convention³⁶. While this is true, it doesn’t add much to the subject of whether a conflict can be subject to the application of IHL if it concurrently occurs outside of the territory of one State and within it (ruling out the cases of spillover conflict and internationalized conflicts).

Vité offers a characterization of the requirement of territoriality that is perhaps ampler and more useful to the goal. The author posits that the territoriality requirement is an expression of the intent of the drafters that at least one State had jurisdiction to prosecute any potential violations of IHL or to supervise the correct application of this body of law. The argument being that:

It is nonetheless not certain whether the territorial aspect is indeed a constitutive factor of non-international armed conflict. It may actually be maintained that the reference to the territory of a High Contracting Party in common Article 3 and in Additional Protocol II was simply intended to ensure that the application of the relevant rules is linked to the jurisdiction of a State that has ratified the treaties in question³⁷.

The language of Common Article 3 does not preclude the possibility of its extraterritorial applicability. On the opposite, its limits apply at any time and in any place whatsoever with respect to [protected] persons.³⁸ Although that article comes nowhere near close to definitely answering the territoriality question, it does suggest, as Melzer observes, that the article's protections can be construed liberally³⁹. The counter argument to this is that too much liberality in interpreting the article can also be harmful. The ICRC has rejected the extraterritorial application of the law of non-international armed conflicts, also known as the cloud of IHL on the contention that:

The notion that a person 'carries' a NIAC with him to the territory of a non-belligerent State would have the effect of potentially expanding the application of rules on the conduct of hostilities to multiple States according to a person's movement around the world as long as he is directly participating in hostilities in relation to a specific NIAC⁴⁰

The mandatory retort to this contention by the ICRC, is ‘why not?’ Is it so fundamentally wrong to give to Caesar what belongs to Caesar? The Bard would question whether a rose by any other name would still smell as sweet. The contention here is that, regardless of the level of sweetness, a rose would smell like a rose anywhere in the world. A combatant carrying out activities in order to further the cause of his or her side to the prejudice of the opposite party, using armed violence, is a fighter and should be held as such no matter where said activities are carried out. Additionally, would this not benefit any potential non-combatants or other protected categories? Is not the leitmotiv of IHL to reduce unnecessary suffering whenever conflict erupts?

The necessary consequence of accepting this premise is that it would mean recognition of the concept of a global battlefield.⁴¹ However, it should be observed that if the third State in which the hostilities in question are occurring is not a party to the conflict, and then it would be impossible to assume that such a State is participating in hostilities, this would negate the possibility of triggering the application of IHL for the ‘host’ country, and thus ‘internationalize’ the conflict. Naturally, this conception raises issues of consent and participation of the government of the State where the hostilities are being carried out, as well as potential implications for territorial sovereignty. For lack of room, these qualms will not be addressed in this work.

The territoriality requirement is not only contained in Common Article 3, but also in the Tadic formula as laid out by the International Criminal Tribunal for the Former Yugoslavia, which is regarded to be the controlling enunciation of the concept of NIACs. The ICTY includes it in its definition of non-international armed conflict, which it holds to exist when it is possible to ascertain the existence of protracted armed violence between governmental authorities and organized armed groups or between such groups within a State⁴². The inclusion of the phrase ‘within a State’ would seem to reinforce the territoriality logic built within the Geneva Conventions. However, it was the same ICTY that opened the door for the possibility of extraterritorial application of IHL in considering the issue of overall control. In doing this, the Tribunal seems to signal that it is in fact possible for a conflict to take place in the territory of more than one State at a time, provided that there is clear attributability. The main contention of this paper is that, if the violence is attributable to the same parties (identity of the parties), the plurality of locations of the conflict would not impede the aggregation of incidents of armed violence in order to satisfy the intensity threshold required by the Tadic formula.

2. Intensity and Protracted Armed Violence

One of the main problems when it comes to NIACs is that the Geneva system plainly States that hostilities ought to reach a minimum threshold for the application of IHL to be feasible. The lower threshold at which violence amounts to an armed conflict (for non‐international armed conflicts) has as of yet, not been clearly defined⁴³. Nevertheless, Additional Protocol II (AP II), which is largely regarded as being an extension to Common Article 3⁴⁴ excludes situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.⁴⁵ While AP II does not enjoy universal membership as the Geneva Conventions do, the understanding of the ICRC is that by way of practice and opinio juris, customary international law has filled the normative gap and effectively integrated this concept into the rules applicable to NIACs⁴⁶. This is further confirmed by the inclusion of said bridge in the Statute of the International Criminal Court⁴⁷. These clarifications help, albeit not definitely solve, the issue of determining the minimal threshold of armed violence necessary for the consideration of a NIAC. In the best scenario, the standard coined for the detection of obscenity (which is not covered under free speech’s Roth Test) by Justice Stewart in Jacobellis v. Ohio will be the guiding principle for this assessment. In the vernacular: I know it when I see it⁴⁸.

It can be gathered from the rulings of the ICTY and the ICTR in myriads of cases that the determination is truly case-specific. It becomes even more relevant when the nature of modern conflicts is honestly assessed in the context of transnational NIACs. In this regard, Martin Van Creveld pointed out that the trend in modern conflicts was one of low intensity⁴⁹ as opposed to all-out war. In doing this, he challenged the Clausewitzian notion that wars were fought by States, away from the civilian population and for rational ends⁵⁰. If modern conflicts are truly, as pointed out by Van Creveld, characterized for having low intensity in the territory of one State, how can a transnational NIAC (where acts of violence happen in separate countries, without sufficient repetition in the same country to reach the qualification of ‘protracted’ or ‘intense’) be considered an armed conflict at all?

The truth is that if a strictly territorial notion of the applicability of the Geneva Conventions were utilized, it would be impossible to allow for the existence of transnational NIACs. Because, even if these are the same two parties to the conflict, the territorially distant instances of violence cannot be aggregated in order to satisfy the threshold of intensity deemed necessary for the application of IHL. However, legal purism is a bad advisor when the goal is to protect civilian lives in times of armed conflict. The nature of conflict and war does not remain static over time. As all human creations, conflict mutates and evolves to meet the needs and ends of its warriors. In this context, Lind, Nightengale et al offer a very honest reality check on the status of the evolution of modern warfare by explaining that:

In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between civilian and military may disappear. Actions will occur concurrently throughout all participants depth⁵¹

When referring to fourth generation warfare, the authors note that this is the current state-of-the-art type of conflict. It is noteworthy that they include dispersion, in a territorial sense, as one of the keys defining characteristics of modern conflicts. More to the point, the suggestion that there will be no definable battlefields further contributes to the notion that conflicts are now fought globally. If conflicts are fought globally and the parties are the same throughout all of ‘battlefield Earth’. Is it, then, unreasonable to make the case for the aggregation of acts of violence as long as they are attributable to the same parties in the context of the same conflict? The answer offered here is that it is the opposite of unreasonable. If laws are permitted to be silent when weapons clash, as Cicero opined, then IHL has failed its mission.

Common Article 3 explicitly States that in order for a conflict to be considered a NIAC it must take place in the territory of one State party. This reasoning begs the question: if the same two parties happen to be fighting the same conflict over different countries, will there be as many NIACs as countries the hostilities occur in? Or even worse, would none of the ‘separate’ conflicts amount to a NIAC because none of them meet the intensity requirement spelled out by jurisprudence and customary international law? This logic seems at best counterintuitive to the mission and purpose of International Humanitarian Law. That is, to minimize the suffering of civilians during armed conflict and to provide for minimum restraint among combatants. Additionally, the benefit of allowing for the application of IHL in transnational NIACs is that if non-State armed groups choose to disregard the prohibition laid out in the Geneva Conventions and the customary developments, they can be held accountable and tried for war crimes either by the courts of the State party, the International Criminal Court or any other State in exercise of universal jurisdiction, should a grave breach of the Conventions occur.

3. Command Structure and identity

The central tenet of the proposition for the existence of transnational armed conflict rests in the notion of organization and command structure as outlined by IHL. In order to demonstrate that it is in fact the same parties fighting all across the globe the hostilities and violence occurring must be imputable or attributable to those same parties. In the case of a State, it is fairly uncontroversial to make such a determination. Regular armed forces of States use uniforms and are (in most cases) easily distinguishable from combatants who do not belong to such organizations. It is on the part of non-State armed groups where difficulties arise.

These groups can vary greatly in structure and form, and even have no apparent chain of command. As Lind et al suggest, modern conflicts have the tendency to display decreasing dependence on centralized logistics⁵². It should be noted, nevertheless, that the existing system provides some inditia for the identification of what to look for in order to assess the level of organization and command structure of a non-State armed group. The III Geneva Convention, in article 4 (2) offers the following criteria in order to identify which combatants or fighters not affiliated with regular national armed forces can be afforded the status of prisoner of war. The article reads:

II. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

a.- that of being commanded by a person responsible for his subordinates;

b.- that of having a fixed distinctive sign recognizable at a distance;

c.- that of carrying arms openly;

d.- that of conducting their operations in accordance with the laws and customs of war.⁵³

The caveat should be made that these characteristics are solely for determining which fighters are entitled to the status of POW and should only be held as black-letter law in the case of International Armed Conflicts. Also, an armed conflict can still occur if the non-State armed group fighters are not entitled to such a privilege.

However, this does not subtract from the utility of these indicia to assess the level of organization in a non-State armed group, and their potential to shed light and provide clarity in terms of identifying command and structures within non-State armed groups. Especially where the command of one or more persons is discernible over the group and the fighters carry out the orders given by those in command. The premise assumed here would be something along the lines of the famous Duck test unintentionally coined by the poet James Whitcomb Riley. In paraphrasing the artist: if it looks like an armed organization, behaves like an armed organization and battles like an armed organization, then it is not unreasonable to affirm that it probably is an armed organization. Note, however, that there is no one-size-fits-all solution to the problem of organization. As with the requirement of intensity, what the interpreter or adjudicator should look for is for the existence of a minimal degree of organization that makes it safe to assume a chain of command in order to establish the possibility to attribute orders to hierarchical superiors. It should be highlighted that the ICTY has a very functional approach to this issue and is comfortable with the notion that the sufficiency of organization in any particular case is fact-specific^54.

The real thing to look for, as far as this work is concerned, is that the members of a non-State armed group (regardless of the actual place where hostilities may take place) actually belong to the same organization by affiliation and action, recognized by both the principal and the agent.

It would not suffice for them to claim to be affiliated with it, as happens often with terrorist networks. It should be self-evident or, at least a demonstrable proposition, that the fighters are part of a broader movement; in this case with transnational reach and that they conduct their activities in furtherance of the conflict, and that they fight on behalf of the organization and under its command. In this context, Schmitt has argued that:

The activities of organized armed groups may only be combined to satisfy the intensity criterion when the groups concerned can reasonably be characterized as a single coherent organization operating collaboratively⁵⁵.

As was noted above, the fact that it can be reasonably proved that these fighters carry out their hostile activities as part of a singular and coherent organization would allow for aggregation of separate acts of violence. It would be after all the same State and the same non-State armed group fighting on different locations. The reader will note that this consequence is based on logic rather than on normative preferences or assumed prescriptions of what the law ought to be. It is merely an attempted answer to the changing face of modern conflict, which simultaneously serves the purpose of keeping IHL relevant without betraying the intent of States, the ultimate legislators of international law.

IV ] Conclusions

If International Humanitarian Law’s purpose is truly to protect civilians in times of armed conflict and to minimize the unnecessary sufferings of those afflicted by armed violence, then it cannot close its eyes when conflict is in sight. While the qualms associated with an excessive use of the characterization of armed conflict to any situation are very real and material, this should not prejudice the progressive nature of IHL. In fact, IHL is one of the fields of international law that can be characterized as more progressive, even if it is still backwards looking (as all law is).

By ignoring the possible existence of transnational NIACs or negating their legal consideration altogether, IHL would be forfeiting its mission. The principle of humanity as enshrined in the whole of the Geneva Conventions must orient the interpretation of IHL in order to keep it useful and relevant. It is this same principle of humanity and the very purpose of this field of law that calls for a reconsideration of the constraints that the territoriality notion carries along in the realm of NIACs.

By stressing the requirement of organization/command structure and attributability to the same parties of the hostilities occurring in different territories, aggregation of incidents of armed violence comes as a natural consequence. This adding up of territorially seemingly-disconnected episodes of violence allows for the satisfaction of the minimal threshold requirement in a manner that allows for the application of IHL and specifically Common Article 3. It goes without saying that in this case, more is more. Especially when what is meant by more is ampler safeguards for protected categories and more room for efficiency in combating Hydra-like enemies like transnational terrorism or belligerent transnational criminal networks.

Another debate is whether it is best to apply IHL or International Human Rights Law in a mixed or blurred armed conflict/law-enforcement paradigm. The central argument in that discussion is ostensibly one of efficiency versus rights. Further investigations could look into that debate in order to assess not only if it is legally feasible but also whether it is desirable as a matter of prospective outcomes. However, an educated guess that takes stock of the complementary nature of Human Rights when IHL application is feasible, would diminish said debate to one situated in the gray, rather than in a false binary.

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