CYIL vol. 11 (2020)

CYIL 11 (2020) THE CLASSIFICATION OF ARMED CONFLICTS – INTERNATIONALIZED, … Under the described scenario, there are in fact two independent armed conflicts of non- international character (and thus, the law of NIAC applies to both), one between A and B, one between A and C. It is a good example of a transnational conflict spreading across borders. However, a single terrorist operation in each of the concerned states would not create an armed conflict under the current definitions. While there are tendencies to classify the armed fight against terrorist groups by a state’s armed forces when the terrorist attack stemmed from abroad as an armed conflict, 44 in case of a single attack, none of the existing categories are fulfilled unless the terrorist organization acted under the effective control of another state or was completely dependent on it as described in the previous chapter. This would create an IAC between the supporting state and the attacked one. 4.4 Nonstate armed groups fight against each other in more than one state territory There is no state’s armed force involved in this scenario. However, the intensity of fighting and organization of the concerned groups is high enough for the requirements of an NIAC existence. The definition of an NIAC requires the fight to take place within the territory of a state but it does not prohibit it to be several States’ territories at the same time. Thus, the situation is an NIAC in all the states whose territories are concerned. 4.5 De-facto state A attacks a de-facto state B within the territory of one maternal state De facto states are not a category officially recognized in binding international law sources. It denotes entities that fulfil the constitutive elements of statehood but either completely or almost completely lack international recognition of their statehood. They may also be a result of so-called frozen conflicts. 45 This scenario also requires the entities not to exist as a result of violation of the peremptory norms of international law because statehood of such entities would then clearly be impossible. Contrarily to it, statehood of legally created de facto states may be recognized with all international law impacts, including humanitarian law-based ones. Consequently, the concerned de facto states will most likely be entities that exist because of an attempt to secede from their parent state that did not conclude by recognition. This is a category of an armed conflict not far from the previous example. From the legal perspective of parent states of the de facto states, the de facto states are viewed as insurgents fighting the government. Thus, the parent states will most likely consider this scenario as a typical NIAC. Although the de facto states control a certain part of the territory of the parent state and exercise their rights over it, thus, the additional requirement for the application of APII is present, the APII still won’t apply because the scope of its application requires the involvement of government forces. 46 44 ONDŘEJ, J., ŠTURMA, P., BÍLKOVÁ, V. JÍLEK, D. Mezinárodní humanitární právo [International Humanitarian Law] . 1st ed., Prague: C.H. Beck, 2010. ISBN: 978-80-7400-185-7, pp. 56-57. 45 For a detailed analysis see (in Czech language) LIPOVSKÝ, M. Podněstří – de facto stát? [Transnistria – a de facto state?] In: ŠTURMA, P. (ed.) Mezinárodní právo a státní území [International Law and State’s Territory] , Prague: Charles University, 2015. ISBN: 978-80-87975-42-8. 46 ICRC, Commentary to APII, Article 1, available at URL https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment. xsp?action=openDocument&documentId=15781C741BA1D4DCC12563CD00439E89, para. 4461.

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