Some Reflections on the Threshold for International Armed Conflict and on the Application of the Law of Armed Conflict in Any Armed Conflict
It will be published in 2022 in the International Law Studies online journal of the Stockton Center at the US Naval War College as a contribution to an ongoing project entitled "Exploring the Twilight Zone of the Law of Armed Conflict"
Amsterdam Center for International Law No. 2021-10
23 Pages Posted: 13 Oct 2021
Date Written: October 12, 2021
In this essay I will first present some questions for discussion relating to the threshold for the existence of an armed conflict between two or more States. In particular, I will explore the main arguments for and against the “first shot” approach in relation to the existence of an international armed conflict and pose the question whether applicability of a particular provision or customary rule of international humanitarian law (a.k.a. IHL/law of armed conflict/LOAC) to a specific factual situation is or should be synonymous with the existence of an armed conflict to which the entire corpus of IHL relating to international armed conflicts becomes applicable. In that context I will discuss some of the aspects of the relationship between the law governing the use of force in international relations also referred to as the jus ad bellum and the law of armed conflict. I will present some arguments as to why I think there are persuasive reasons for distinguishing between the application of a particular rule of IHL when the situation requires it and acceptance of the
proposition that any clash between the armed forces of a State, no matter how brief or inconsequential, or the non-consensual presence of the armed forces of a State on the territory of another State, results in the existence of an armed conflict between those States triggering, in principle, the full applicability of the law of armed conflict.
Keywords: armed conflict, international law, international humanitarian law, force, non-consensual
JEL Classification: K33
Suggested Citation: Suggested Citation