Editor’s Note: This is the first post in a miniseries about the International Committee of the Red Cross’s newly released Report on International Humanitarian Law and the Challenges of Contemporary Conflicts. Other pieces in the series can be found here, here, and here.

Every four years since 2003, the International Committee of the Red Cross (ICRC) has published its Report on International Humanitarian Law and the Challenges of Contemporary Conflicts. This year’s report, just released, is a powerful tour de horizon of the most difficult questions arising in the field of international law formally labeled International Humanitarian Law (IHL), or the Law of Armed Conflict (LOAC), in the age of international terrorism. While the ICRC could have gone further in its analysis and recommendations in several respects, especially in connection with legal frameworks applicable to terrorism and counterterrorism, the US would do well to absorb the perspectives that the organization put forth in the report into its policies and practices.

Some of the most immediate questions that struck me as under-examined in the report deal with how much violence it takes to bring IHL into force, when IHL stops being in force, and how far IHL reaches geographically once it has been triggered by armed conflict.

Since IHL applies only in and to armed conflict, the first task is to determine when armed conflict begins and ends. The go-to source is the Yugoslavia Tribunal’s Tadic decision, which contains two elements. The first is relatively clear: There have to be at least two opposing parties. While there is some wiggle room on what constitutes a “party to armed conflict,” the second element may be more difficult to discern: The frequency and/or severity of hostilities must be at a certain threshold to qualify as an armed conflict. For wars between States (known as international armed conflict, or IAC) virtually any use of force by one against another will suffice to trigger application of IHL. But where non-State armed groups are fighting (a situation known as non-international armed conflict, or NIAC) there’s little guidance on how much killing is enough before the leap is made from police powers under International Human Rights Law — where killing is permitted only when necessary to save lives — to IHL, under which it’s permitted to kill opposing members of armed forces and civilians directly participating in hostilities, even if they pose no immediate threat to life.

The question of when an armed conflict can be declared over is also unsettled, largely thanks to confusion as to whether the same standards should be used to mark both the start and finish of hostilities. One view is that once armed conflict is established, IHL should be allowed to linger below the threshold of evidence required to trigger IHL’s application. The Tadic case, for example, says that NIAC ends not when the conditions for it starting are no longer extant, but rather, when a “peaceful settlement” is reached. But this is rather impractical when dealing with non-State armed groups, since neither they, nor the States against which they fight, tend to negotiate such agreements. For ease of application, it makes more sense for the bookends to be identical. Also, the sooner IHL is displaced by a return to domestic law tempered by human rights obligations, the greater the protection afforded by law against extrajudicial killing and arbitrary detention — two important purposes of both IHL and International Human Rights Law.

On the other hand, it has been argued that where State A is engaged in conflict within the territory of State B, prematurely booting IHL doesn’t automatically trigger the added value of International Human Rights Law. Rather, for States that deny the overseas application of International Human Rights Law, it triggers what all rights-respecting lawyers should abhor: a legal vacuum in which neither IHL nor International Human Rights Law applies and atrocities could be committed with impunity. That argument would be stronger if there was general agreement that States’ human rights law obligations don’t travel with them abroad. But the US is one of the few outliers who still maintain the woefully out-of-date position of “no extraterritoriality.” While the ICRC, recognized as the guardian of IHL, may seek broader application of its ward, a truly humanitarian perspective would recoil at letting the outlier position of the US hold human rights law hostage.

The ICRC’s report also addresses the question of the geographic scope of armed conflict and posits that there isn’t, and never has been, a “global war on terrorism.” This is not only because an “ism” can’t be a party to an armed conflict, but also because the extraordinary killing rules of IHL should not be exercisable by a US soldier dining in Paris, against an al-Qaeda fighter eating at the next table, or vice versa. The logic is attractive, but not unassailable. One can conclude that there is no global war against terrorism, or for that matter, against al-Qaeda, but still concede that hostilities between States and a non-State armed group could “carry” IHL to wherever the players go. The argument that in Paris, law enforcement officers can handle counterterrorism duties may be attractive to the US soldier, but not so much to the al-Qaeda fighter, since French law will certainly favor the US soldier. This is no criticism of France. Domestic law can — and should — discriminate between members of a State’s armed forces who possess a “privilege of belligerency” or “combat immunity” under IHL, and members of a terrorist organization who possess no such privilege and who are, per se, criminals. But IHL logically requires equal treatment under its law for parties to an armed conflict. Thus, the replacement of IHL with domestic law (as distinct from the co-application of IHL and domestic law) would upend the IHL concept of equality of the parties to armed conflict. Even if no legal framework is perfect, it makes sense that the farther you get from a recognizable battlefield, the less you should be able to assert the laws of war. But what if instead of dining in Paris, the US soldier and al-Qaeda fighter bump into each other on a stroll through the Sahara? Questions of Algeria’s sovereign sensibilities aside, it’s not clear what they should or shouldn’t be able to do to each other in the absence of the machinery of domestic law enforcement. In short, questions about the geographic scope of application of IHL may well be tied to the standard questions of parties and frequency/severity of hostilities, but things may not be quite as clear beyond “the traditional battlefield” as the ICRC may be suggesting.

Instead of tying the application of IHL to an unspecified distance between players and a “traditional battlefield,” an admittedly radical, but logical, solution would be to construe IHL to require capture, rather than killing, where feasible, regardless of geography. In other words, impose a duty that IHL does not presently impose, limiting application of the concept of “military necessity,” so as to require a party to seek surrender where it can be accomplished without added risk, rather than to permit extrajudicial killing that is now the hallmark of IHL. At least one academic well known to Just Security readers thinks there already is such a requirement (see Ryan Goodman’s The Power to Kill or Capture Enemy Combatants) but his is a minority view. Admittedly, it would be a long hard climb to get States to agree, but that does not add logical weight to the claim that for IHL purposes, Paris is so different from Kabul.