CYIL vol. 11 (2020)

MILAN LIPOVSKÝ CYIL 11 (2020) of an armed conflict requires the use of force between states, not by (both) states. 42 This needs to be differentiated from a situation where B consents to the use of force within its territory (see below). This solution prefers the mixed regime. But it is not in contradiction to the complete internationalization regime either because this scenario is not in fact an internationalized armed conflict. There are two conflicts, one between A and C (a non-international one, if it fulfils its conditions) and one between A and B (IAC due to hostile use of force against B’s territory by A). It must be kept in mind however, that if it is a single attack by A against B, or when group C is not sufficiently organized or if their fight against A is not intensive enough (thus the requirements of NIAC are not fulfilled), the whole attack might actually be a single strike, not reaching the level of an armed conflict. Thus, there would only be a short-lived IAC between A and B but no NIAC between A and C and humanitarian law would not apply to the latter. This category is in fact a mix of an international armed conflict (between A and B) and a transnational one (A and C). 4.2 State A attacks the non-state group C within the territory of state B with B’s consent This case is similar to the previous example in regard to the existence of NIAC between A and C. It differs however in the matter of relations between A and B. There is in fact no IAC between the two. Though the Tadić definition only requires the use of armed force between states, it needs to be added that the use of force must be illegal/hostile. 43 This is in fact better captured by the definition of the armed conflict suggested by Yoram Dinstein as quoted above. An armed conflict is simply “a dispute lead by military force”. If there is no dispute due to the existence of consent to the use of force, there is no conflict, especially not an armed one (between the consenting states). After all, states are entitled to allow other states to use their territory. This is a typical example of a transnational armed conflict. The law of NIAC would most likely apply (again, if it has fulfilled the requirements of the level of intensity of the fight and organization of the group). 4.3 A non-state armed group A attacks armed forces of state B within B’s territory and at the same time, it attacks the armed forces of state C within its territory. The units of A in B do not cross the border of C and vice versa. This scenario needs clarification. Group A is organized enough and its fight against states B and C are intensive and long enough to fulfil the requirements of the existence of an NIAC. Without it, the situation would be clear in both states – it would not reach the minimal threshold of an armed conflict and “only” human rights law would apply.

42 HAQUE, A.A. Whose Armed Conflict? Which Law of Armed Conflict? In: Georgia Journal of International and Comparative Law , vol. 45, no. 3, 2017, pp. 484, 489. 43 HAQUE, A.A. Whose Armed Conflict? Which Law of Armed Conflict? In: Georgia Journal of International and Comparative Law , vol. 45, no. 3, 2017, p. 488.

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