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command of ‘acts or operations amounting to direct participation in hostilities’. Yet, once a civilian is recruited, trained and equipped for that purpose he qualifies as a de facto combatant ‘even before he or she first carries out a hostile act’. - The flipside of this increased risk imposed on de facto combatants is that such risk cannot be imposed upon persons who do not directly participate in hostilities."
command of ‘acts or operations amounting to direct participation in hostilities’. Yet, once a civilian is recruited, trained and equipped for that purpose he qualifies as a de facto combatant ‘even before he or she first carries out a hostile act’. - The flipside of this increased risk imposed on de facto combatants is that such risk cannot be imposed upon persons who do not directly participate in hostilities."


 
Given the far-reaching consequences associated with the loss of (civilian) immunity from military attack, the requirements to convert a group of terrorist criminals into a party to a conflict governed by IHL should be strict. Thus, the respective group’s features ought to resemble those of a state as the paradigmatic party to a conflict.
In any case, given the far-reaching consequences associated with the loss of (civilian) immunity from military attack, the requirements to convert a group of terrorist criminals into a party to a conflict governed by IHL should be strict. Thus, the respective group’s features ought to resemble those of a state as the paradigmatic party to a conflict.


The group must demonstrate a minimum degree of collectivity and central organisation, be organised in a hierarchic manner,
The group must demonstrate a minimum degree of collectivity and central organisation, be organised in a hierarchic manner,
and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained and concerted military operations’.
and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained and concerted military operations’.
 
Admittedly, one may apply with certain flexibility the classical criteria that qualifies an organised armed group in
While, admittedly, the traditional criterion of some
form of territorial control, notwithstanding its recognition in Additional Protocol II, has lost importance in light of the new ‘asymmetric’ and highly dynamic conflicts in the so-called
‘new wars’, it still serves as a useful indicator61 for the existence of an ‘organisational policy’. Be that as it may, from the above it follows that what is clearly required in terms of internal
organisation is a centralised military command and a chain of command from top to bottom. These criteria are not met by a loose and decentralised terrorist network such as Al Qaeda. Al Qaeda lacks the required hierarchic, centralised command structure; as far as is known, it is a global interconnected network of a decentralised character, operating on different continents and in different countries by way of loosely interconnected cells.
There is no headquarters and command structure.
 
 
 
56 GC III (n 11) art 4(A)(2)(a). See also Judith Wieczorek, Unrechtmäßige Kombattanten und humanitäres
Völkerrecht (Duncker & Humblot 2005) 75ff.
57 AP II (n 12) art 1(1). See also with regard to ICC Statute (nn 37 and 54), art 7(2).
58 See n 44 and accompanying text.
59 Andreas Zimmermann, ‘Article 8’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International
Criminal Court (Beck/Hart 2008) marginal number 351; Gerhard Werle, ‘Individual Criminal Responsibility in
Article 25 ICC Statute’ (2007) 5 Journal of International Criminal Justice, marginal number 953; Bahia
Tahzib-Lie and Olivia Swaak-Goldman, ‘Determining the Threshold for the Application of International
Humanitarian Law’ in Liesbeth Lijnzaad, Johanna van Sambeck and Bahia Tahzib-Lie (eds), Making the Voice
of Humanity Heard (Martinus Nijhoff 2004) 239, 246; Kai-Michael König, Die völkerrechtliche Legitimation
der Strafgewalt internationaler Strafjustiz (Nomos 2003) 380ff; Guénaël Mettraux, International Crimes and
the Ad Hoc Tribunals (Oxford University Press 2005) 36ff; Paulus and Vashakmadze (n 55) 117–19.
60 See, for this expression, Herfried Münkler, The New Wars (Polity 2004).
61 Decision Pursuant to Article 15 (n 54) [93].
62 While this requirement is taken from ICC Statute (n 37) art 7(2)(a), it refers back to ‘organised armed groups’
within the meaning of AP II (n 12) art 1(1) for non-international armed conflicts (see Claus Kreß, ‘On the Outer
Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement. Some
Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden Journal of International Law 855, 862)
and may therefore be applied in our context.
63 Ipsen (n 45) 84ff. The ICTY requires at least ‘the ability to exercise some control over its members’: Prosecutor
v Boškoski/Tarˇculovskias (n 44) [196].
64 See Jordan J Paust, ‘Self-Defence Targetings of Non-State Actors and Permissibility of US Use of Drones in
Pakistan’ (2009–10) 19 Journal of Transnational Law & Policy 237, 260 (‘some non-state actors, such as al
Qaeda, do not meet the test for insurgent status’); Lubell (n 55) 118 (‘As for Al-Qaeda it is hard to conclude
that it currently possesses the characteristics of a party to a conflict’). Dissenting, however, see Solis, The Law
of Armed Conflict (n 7) 205, for whom Al Qaeda – without further arguments – constitutes an organised
armed group.
65 See statement of Alain Chouet, former head of the French secret service DGSE (‘But which organisation are you
talking about?’), quoted by Nadia Bletry, Marie Verdier and Olivier Tallès, ‘La mort de ben Laden ne met pas
fin au terrorisme’, La Croix, Paris, 3 May 2011, available at http://www.la-croix.com/Actualite/S-informer/
2012] HAS ‘JUSTICE BEEN DONE’? 349
in the Afghan-Pakistani border area66 does not allow for a precise determination as to who effectively
controls this area; it is highly questionable whether Al Qaeda exercises any territorial control
which comes close to the Article 1(1) of Additional Protocol II threshold. Admittedly, one
may apply with certain flexibility the classical criteria that qualifies an organised armed group in
situations of asymmetric warfare; in particular, as indicated above, the lack of a stable territorial
situations of asymmetric warfare; in particular, as indicated above, the lack of a stable territorial
control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible
control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible
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part of their military tactics. Yet, all this flexibility cannot replace the – still reasonable – criteria
part of their military tactics. Yet, all this flexibility cannot replace the – still reasonable – criteria
of a military-like internal hierarchical structure and the capacity ‘to carry out sustained and concerted
of a military-like internal hierarchical structure and the capacity ‘to carry out sustained and concerted
military operations’.67 While, with the attacks of 11 September 2001, Al Qaeda has shown
military operations’.
While, with the attacks of 11 September 2001, Al Qaeda has shown
this organisational structure and its capacity to pose a military threat, and it has therefore rightly
this organisational structure and its capacity to pose a military threat, and it has therefore rightly
been regarded as an organised armed group (like the military branches of the Hezbollah and the
been regarded as an organised armed group (like the military branches of the Hezbollah and the
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which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction
which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction
but not under his control.69 He did not, like the commander of an organisation within the
but not under his control.69 He did not, like the commander of an organisation within the
meaning of IHL, dispose of direct authority on subordinated individuals.70
meaning of IHL, dispose of direct authority on subordinated individuals.
 
While, admittedly, the traditional criterion of some
form of territorial control, notwithstanding its recognition in Additional Protocol II, has lost importance in light of the new ‘asymmetric’ and highly dynamic conflicts in the so-called
‘new wars’, it still serves as a useful indicator61 for the existence of an ‘organisational policy’. Be that as it may, from the above it follows that what is clearly required in terms of internal
organisation is a centralised military command and a chain of command from top to bottom. These criteria are not met by a loose and decentralised terrorist network such as Al Qaeda. Al Qaeda lacks the required hierarchic, centralised command structure; as far as is known, it is a global interconnected network of a decentralised character, operating on different continents and in different countries by way of loosely interconnected cells.
There is no headquarters and command structure.
 
 
 
 
70
2.3 TERRITORIAL EXTENSION OF THE CONFLICT IN AFGHANISTAN (THE ‘SPILLOVER EFFECT’)?
2.3 TERRITORIAL EXTENSION OF THE CONFLICT IN AFGHANISTAN (THE ‘SPILLOVER EFFECT’)?
While it is beyond dispute that an armed conflict between the Karzai government and the Taliban
While it is beyond dispute that an armed conflict between the Karzai government and the Taliban
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