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III- Where does IHL apply ? (geographical scope of applications - Coggle…
III- Where does IHL apply ? (geographical scope of applications
A- IAC
1) General rules
Applicability of IHL regime in the whole of the territory of belligerents BUT concrete applicability of IHL rules only to acts which have a nexus (a link) to the conflict
Thing that has nothing to do with the conflict are not concerned.
The laws of armed conflict are not supposed to governed everything -> there must be a connection. Acts of confrontation, detention, …
2) But controversy
Certain acts: (i) occur in the territory of belligerents and (ii) have a nexus to the conflict but could (or should) be regulated by the law enforcement regime based on human rights law
B- NIAC
1) General rules
The same general principle applies to NIACs: when a state fights an armed group, the laws of armed conflict apply throughout the territory where the conflict is taking place BUT the acts must be connected to the conflict -> if no link to the hostilities, national law applies instead
2) Controversies regarding NIACs
A more complex situation arises when conflict-related actors cross international borders. Consider a scenario where the leader of an armed group from Colombia enters Ecuador. → Does IHL apply in Ecuador?
iF
the situation in Ecuador meets the threshold of NIAC ( ie there are sufficient levels of hostilities there), then IHL could apply
However, if the leader is the only individual present, Ecuadorian authorities could arrest them under domestic law rather than IHL.
The ICRC and some states argue that this approach is too simplistic
In reality, states will often conduct military operations beyond their borders regardless of legal restrictions. Borders, in such cases, can become a legal fiction.
ICRC -> if the armed conflict continues into a neighboring state, then IHL should apply there as well
Quid if not a neighboring state (eg Belgium) ?
The further an individual moves from the conflict zone, the harder it is to justify the application of IHL to their situation.
C- In case of transnational armed conflict, applicability of IHL in the intervening state ?
Consider France conducting military operations against armed groups in Mali. Where does IHL apply? In principle, the law applies to both Mali and France -> this has significant consequences
According to the laws of war, if armed groups in Mali target the French Minister of Defense in Paris, this would not be considered unlawful under IHL, as it occurs within the territory of a party to the conflict BUT states generally reject this idea (don't want their own territories to be subject to attacks)
ICRC argues that the laws of armed conflict should apply in the home state of intervening forces
The ICRC advocates for the broader application of IHL in situations where states engage in military operations abroad. The reasoning : if states knew their actions abroad could trigger IHL obligations at home, they might reconsider their involvement in foreign conflict
BUT many states oppose this idea
In conclusion, while IHL primarily applies to areas of active hostilities, debates persist regarding its extraterritorial application, especially in cases of transnational conflicts and military interventions abroad.