The Notion of External NIACs: Reconsidering the Intensity Threshold in Light of Contemporary Armed Conflicts

Abstract

The growing capacity of armed groups to project their influence transnationally has fundamentally changed the nature of what we consider non-international armed conflicts (NIACs). However, in several instances, the classification of situations of violence between states and transnational armed groups does not neatly fit within the conventional framework for classifying conflicts under international humanitarian law (IHL). As a result, it has become important to reconsider how we classify armed conflicts to ensure that those affected by these situations of violence are able to avail themselves of the humanitarian protections to which they are entitled under international law. Indeed, the extent to which IHL applies to these situations of violence has emerged as one of the most highly contested issues concerning the law regulating armed conflict, in part because the unique characteristics of these situations often fail to overcome the high-threshold requirements of the Tadic test. In the wake of these situations of violence, this chapter considers the wisdom of maintaining a universal high-intensity threshold for NIACs and, while recognizing the great value of the Tadic test, proposes a slightly different test for the classification of the sort of conflicts contemplated herein. In reaching this conclusion, this chapter also considers the extraterritorial application of human rights law, the application of IHL as a matter of policy or custom, and the history and purpose of the Tadic test itself.