Armed Attack and International Armed Conflict

Notre Dame Law Review
Volume 96 Issue 1 Article 5
11-13-2020
Irreconcilable Differences: The Thresholds for Armed Attack and

International Armed Conflict
Laurie R. Blank
Clinical Professor of Law; Director, Center for International and Comparative Law; Director, International
Humanitarian Law Clinic, Emory University School of Law
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96 Notre Dame L. Rev. 249 (2020)
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IRRECONCILABLE DIFFERENCES: THE

THRESHOLDS FOR ARMED ATTACK AND
INTERNATIONAL ARMED CONFLICT
Laurie R. Blank*
International law includes two legal regimes relating to war and the use
of force: the jus ad bellum, or the law governing the resort to force, and the
law of armed conflict (LOAC), the law governing the conduct of hostilities
and the protection of persons during armed conflict. The former prohibits
the use of force by one state against another, except by invitation, in self-
defense, or with authorization by the United Nations Security Council, in
pursuit of the UN’s central goal of “sav[ing] succeeding generations from the
scourge of war.”1 The latter seeks to minimize suffering in war by protecting
persons not participating in hostilities and by restricting the means and
methods of warfare. The separate application of these two bodies of law is
foundational, ensuring that the lawfulness or unlawfulness of any resort to
force does not affect the protections, obligations, and authorities inherent in
the law of armed conflict, and that compliance or lack thereof with LOAC
does not determine the lawfulness of the resort to force. In effect, the fact
that a state is fighting in self-defense does not give it carte blanche to disre-
gard the fundamental parameters of LOAC, whether in the targeting of per-
sons or objects or the treatment of persons detained or interned. Similarly,
the fact that a state launched an aggressive war does not result in a loss of
LOAC protections for its soldiers and civilians, nor does the fact that a state
complies with LOAC cover up for any violations of the jus ad bellum. As rein-
forced at Nuremberg and in countless courts and tribunals since then, this
separation is essential to preserve the fundamental principles and goals of
both bodies of law.2
© 2020 Laurie R. Blank. Individuals and nonprofit institutions may reproduce and
distribute copies of this Article in any format at or below cost, for educational purposes, so
long as each copy identifies the author, provides a citation to the Notre Dame Law Review,
and includes this provision in the copyright notice.
* Clinical Professor of Law; Director, Center for International and Comparative Law;
Director, International Humanitarian Law Clinic, Emory University School of Law.
1 U.N. Charter pmbl.
2 See, e.g., United States v. Altstötter, reprinted in 6 UNITED NATIONS WAR CRIMES
COMM’N, LAW REPORTS OF TRIALS OF WAR CRIMINALS 26, 52 (1948) (“If we should adopt the
view that by reason of the fact that the war was a criminal war of aggression every act which
would have been legal in a defensive war was illegal in this one, we would be forced to the
249
250 notre dame law review [vol. 96:1
Although the dangers of conflating jus ad bellum and LOAC are well
known and thoroughly examined in jurisprudence and academic literature,
the interplay between two foundational concepts in the two bodies of law
remains unexplored: the meaning of armed attack and the trigger for inter-
national armed conflict. These two definitions or concepts are the building
blocks on which much of the international law authority regarding the use of
force resides. Armed attack is the threshold for the use of force in self-
defense and therefore forms an essential component of the jus ad bellum and,
in effect, serves as a gatekeeper for the acceptable use of force. The exis-
tence of an international armed conflict triggers the application of LOAC,
with all of its attendant authorities, obligations, rights, and protections. Both
terms are central to understanding the parameters for the use of force in
various ways—and yet each has a different meaning, a different pedigree,
and potentially consequential effects on the ability of the other term to serve
its purpose. Although the broader debate regarding the simultaneous appli-
cation of jus ad bellum and LOAC and the continuing application of jus ad
bellum throughout conflict3 is outside the scope of this Article, the interplay
and different thresholds for armed attack and for international armed con-
flict raise challenging questions about the coexistence of the two bodies of
law, namely the consequences of an international armed conflict triggered by
acts or force that lie below the threshold for armed attack or other triggering
of jus ad bellum. Can force be used and how should it be judged in such
circumstances?
conclusion that every soldier who marched under orders into occupied territory or who
fought in the homeland was a criminal and a murderer.”); United States v. List (The Hos-
tage Case), Case No. 7 (Feb. 19, 1948), 11 TRIALS OF WAR CRIMINALS BEFORE THE
NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10, 1230 at 1247
(1950) [hereinafter The Hostage Case] (“Whatever may be the cause of a war that has bro-
ken out, and whether or no the cause be a so-called just cause, the same rules of interna-
tional law are valid as to what must not be done, may be done, and must be done by the
belligerents themselves in making war against each other . . . .” (quoting L. OPPENHEIM, 2
INTERNATIONAL LAW: A TREATISE 174 (H. Lauterpacht ed., 6th ed. 1944))); Prosecutor v.
Kordic, Case No. IT-95-14/2-A, Judgement, ¶ 1082 (Int’l Trib. for the Prosecution of Per-
sons Responsible for Serious Violations of Int’l Humanitarian L. Dec. 17, 2004), https://
www.icty.org/x/cases/kordic_cerkez/acjug/en/cer-aj041217e.pdf (“The unfortunate leg-
acy of wars shows that until today many perpetrators believe that violations of binding
international norms can be lawfully committed, because they are fighting for a ‘just cause’.
Those people have to understand that international law is applicable to everybody, in par-
ticular during times of war.”); Prosecutor v. Fofana, Case No. SCSL-04-14-A, Judgment,
¶¶ 530–31, 534 (May 28, 2008), http://www.rscsl.org/Documents/Decisions/CDF/
Appeal/829/SCSL-04-14-A-829.pdf (noting that “[t]he basic distinction and historical sepa-
ration between jus ad bellum and jus in bello” is a “bedrock principle” of LOAC. “Allowing
mitigation for a convicted person’s political motives, even where they are considered . . .
meritorious . . . provides implicit legitimacy to conduct that unequivocally violates the
law—the precise conduct this Special Court was established to punish.”).
3 See generally, e.g., Christopher Greenwood, The Relationship Between Ius ad Bellum
and Ius in Bello, 9 REV. INT’L STUD. 221 (1983).
2020] armed attack and international armed conflict 251
This Article explores the gap between the definition of armed attack and
the threshold for international armed conflict to identify such possible conse-
quences of the different definitions for the application of either or both bod-
ies of law and to consider whether efforts to reconcile the different meanings
are feasible and, more importantly, desirable or problematic. The first Part
briefly presents the definition of armed attack and the threshold for interna-
tional armed conflict, with a focus on the purpose of the particular thresh-
olds and definitions for the two terms in order to provide a foundation for
the main comparisons and discussion in the rest of the Article. Part II exam-
ines the gap between the respective meanings of the two concepts and the
potential legal consequences. In particular, this Part analyzes two primary,
but opposing, interpretive effects of the gap between the meanings of armed
attack and international armed conflict: first, the use of force in situations
falling below the threshold of armed attack; and second, the possibility that
an international armed conflict could exist without the states engaged in
such conflict having the authority to use force against the adversary. Each of
these possibilities raises a red flag within one body of law but at the same time
hews closely to the basic concept or goals of the other, raising the question of
whether this gap matters and, if so, whether some reconciliation is appropri-
ate. The third Part addresses this final question, that of reconciliation
between the two definitions and examines what such reconciliation might
look like. More important, attempts at reconciliation could cause a severely
damaging blow to one or the other body of law, such that preserving the
gap—that is, agreeing to disagree, in effect—is the better course of action.
I. ARMED ATTACK AND INTERNATIONAL ARMED CONFLICT:

THE WHAT AND THE WHY
As in any other area of law, in both the jus ad bellum and LOAC, effective
implementation of the law rests on definitions that create the framework for
the application of the law, including rights, responsibilities, and protections.
This Part therefore presents and examines the definitions of armed conflict
and international armed conflict to set the stage for the analysis and compari-
sons to follow. Equally important, this Part explores the purpose behind
these definitions so as to provide the requisite tools for exploring whether
the gap between the definition of armed attack and the threshold trigger for
international armed conflict can or should be reconciled or whether the con-
tinued dissonance between these two foundational concepts is the better
result.
A. The Meaning and Purpose of Armed Attack
Armed attack is a critical threshold for the use of force in the interna-
tional system. The international legal framework governing the use of force,
set forth in the United Nations Charter, is comprehensive. In particular,
Article 2(4) of the UN Charter prohibits the “use of force against the territo-
rial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”4 International law

provides three exceptions to this prohibition against the use of force in or
against another state: the consent of the territorial state;5 UN Security Coun-
cil authorization for the use of force,6 usually through multinational opera-
tions; or individual or collective self-defense. The last exception, self-
defense, is where the meaning of armed attack is relevant—indeed essen-
tial—and the focus of the instant discussion.
The international law of self-defense provides that states may use force as
an act of individual or collective self-defense in response to an armed attack
or to forestall an imminent armed attack. Article 51 of the UN Charter
states: “Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a Mem-
ber of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security.”7 This provision thus
recognizes the preexisting right of states to use force, including in response
to another state’s request for assistance, in self-defense against an armed
attack. As a result, “armed attack” is the prerequisite—the trigger—that pro-
vides the victim state with the right to use force. Indeed, in the Nicaragua
case, the International Court of Justice “proceeded from the assumption that
the existence of an armed attack is a conditio sine qua non for the exercise of
the right to individual and collective self-defence.”8 Although the question
of who can launch an armed attack remains the subject of extensive debate,9
4 U.N. Charter art. 2, ¶ 4.

5 Although consent is commonly viewed as a customary exception, some argue that it
does not trigger the prohibition on the use of force at all, such that it is not actually an
exception. See, e.g., INT’L L. ASS’N, FINAL REPORT ON AGGRESSION AND THE USE OF FORCE 18
(2018) [hereinafter ILA 2018 REPORT]; INT’L. & OPERATIONAL L. DEP’T, LAW OF ARMED
CONFLICT DESKBOOK 31 (5th ed. 2015).
6 Article 42 of the UN Charter authorizes the Security Council to “take such action by
air, sea, or land forces as may be necessary to maintain or restore international peace and
security.” U.N. Charter art. 42.
7 U.N. Charter art. 51.
8 Georg Nolte & Albrecht Randelzhofer, Action with Respect to Threats to the Peace,
Breaches of the Peace, and Acts of Aggression, Article 51, in 2 THE CHARTER OF THE UNITED
NATIONS: A COMMENTARY 1397, 1404 (Bruno Simma et al. eds., 3rd ed. 2012) (citations
omitted).
9 The International Court of Justice has held that only states can be the source of an
armed attack or imminent armed attack triggering the right of self-defense. See, e.g.,
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment,
2005 I.C.J. 168, ¶¶ 143, 146 (Dec. 19); Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J.
161, ¶ 72 (Nov. 6); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v.
U.S.), Judgment, 1986 I.C.J. 14, ¶¶ 195, 247 (June 27); Legal Consequences of the Con-
struction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J.
136, ¶ 139 (July 9). However, state practice since 9/11 provides firm support for the exis-
tence of a right of self-defense against nonstate actors, even if their acts are not attributed
to any state. See S.C. Res. 1368, ¶ 1 (Sept. 12, 2001); Press Release, N. Atl. Treaty Org.,
Statement by the North Atlantic Council (Sept. 12, 2001), https://www.nato.int/docu/pr/
2001/p01-124e.htm#:~:text=the%20Council%20agreed%20that%20if,shall%20be%20con-
sidered%20an%20attack; YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 214 (2d
that question is outside the scope of this Article, which centers on the thresh-
old of armed attack—the amount or intensity of the acts involved, in effect.
The Charter of the United Nations does not define “armed attack” and
“[t]here is no explanation of the phrase ‘armed attack’ in the records of the
San Francisco Conference, perhaps because the words were regarded as suffi-
ciently clear.”10 An armed attack is generally understood to be more severe
and significant than a use of force, meaning that an act may constitute a use
of force without rising to the level of an armed attack.11 A key part of defin-
ing armed attack, as discussed in greater detail below, is therefore to distin-
guish the gravest forms of force, i.e., those that constitute an armed attack,
from the category of “measures which do not constitute an armed attack but
may nevertheless involve a use of force.”12 However, international courts
“have never provided sufficient guidance on the level or kind of violence that
satisfies that threshold[, but r]ather . . . have preserved considerable ambigu-
ity on the question of when the armed-attack threshold is met and, therefore,
whether Article 51 is triggered.”13
As a starting point, the International Court of Justice’s (ICJ’s) jurispru-
dence focuses on the “scale and effects”14 of any particular hostile action
directed at a state in order to determine whether it rises to the level of an
armed attack. Courts and scholars generally differentiate between low-level
uses of force and those that are of sufficient gravity and severity to reach the
level of an armed attack. The Nicaragua Court suggests that a “mere frontier
incident” does not rise to the level of an armed attack.15 Similarly, the Eri-
ed. 1994); Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghan-
istan, Al-Qaida, and Iraq, 4 SAN DIEGO INT’L L.J. 7, 17 (2003) (discussing the effects of
attacks made by nonstate actors); Sean D. Murphy, The International Legality of US Military
Cross-Border Operations from Afghanistan into Pakistan, 84 INT’L L. STUD. 109, 126 (2009)
(“While this area of the law remains somewhat uncertain, the dominant trend in contem-
porary interstate relations seems to favor the view that States accept or at least tolerate acts
of self-defense against a non-State actor.”); Raphaël van Steenberghe, Self-Defence in
Response to Attacks by Non-State Actors in the Light of Recent State Practice: A Step Forward?, 23
LEIDEN J. INT’L L. 183, 184 (2010) (concluding that recent state practice suggests that
attacks committed by nonstate actors alone constitute armed attacks under Article 51).
10 Ian Brownlie, The Use of Force in Self-Defence, 37 BRIT. Y.B. INT’L L. 183, 244 (1961).
11 Although the United States asserts that there is no difference between a use of force
and an armed attack and that it can respond in self-defense to any use of force by another
state, Ryan Goodman, Cyber Operations and the U.S. Definition of “Armed Attack,” JUST SEC.
(Mar. 8, 2018), https://www.justsecurity.org/53495/cyber-operations-u-s-definition-armed-
attack/, the distinction between the two concepts and the obligatory higher threshold of
armed attack as the trigger for self-defense is widely accepted. See, e.g., Iran v. U.S., 2003
I.C.J. at ¶ 51; Nicar v. U.S., 1986 I.C.J. at ¶¶ 191, 195, 210; YORAM DINSTEIN, WAR, AGGRES-
SION AND SELF-DEFENCE 193 (4th ed. 2005) (“[I]t is clear that one State may employ some
illegal force against another without unleashing a full-fledged armed attack.”).
12 Nicar v. U.S., 1986 I.C.J. at ¶ 210.
13 Monica Hakimi & Jacob Katz Cogan, The Two Codes on the Use of Force, 27 EUR. J.
INT’L L. 257, 271–72 (2016).
14 Nicar v. U.S., 1986 I.C.J. at ¶ 195.
15 Id.
trea-Ethiopia Claims Commission determined that “geographically limited

clashes . . . along a remote, unmarked, and disputed border . . . were not of a
magnitude to constitute an armed attack” and “[l]ocalized border
encounters between small infantry units, even those involving the loss of life,
do not constitute an armed attack for purposes of the [U.N.] Charter.”16 In
the same manner, by listing examples of grave uses of force falling within the
definition of aggression, a term related to but not precisely the same as
armed attack,17 UN General Assembly Resolution 3314 on the Definition of
Aggression “strongly suggests that an incursion must pass a certain threshold
of violence to constitute an armed attack.”18
In essence, the act or acts in question must reach a certain level of grav-
ity to constitute an armed attack. In the Nicaragua case, the ICJ offered some
examples to illustrate the threshold, in the absence of a concrete definition
or set of factors, explaining that deploying regular armed forces across a bor-
der, or sending irregular militias or other armed groups to accomplish the
same purpose, will generally satisfy the threshold for an armed attack.19 In
contrast, providing assistance, such as weapons or other support, to rebels or
armed groups across state borders will not reach the threshold of an armed
attack.20 The physical effects of an action or attack are often a primary con-
sideration, because an “armed attack presupposes a use of force producing
(or liable to produce) serious consequences, epitomized by territorial intru-
sions, human casualties or considerable destruction of property. When no
such results are engendered by (or reasonably expected from) a recourse to
force, Article 51 does not come into play.”21 Even bombardment or other
kinetic attacks, including invasion of territory, will only constitute an armed
attack, according to this traditional approach, if “the military actions are on a
16 Jus Ad Bellum—Ethiopia’s Claims 1–8 (Eth. v. Eri.), Partial Award, 26 R.I.A.A. 457,
465–66 (Eri.-Eth. Claims Comm’n 2005).
17 See Nicar v. U.S., 1986 I.C.J. at ¶ 195; TALLINN MANUAL 2.0 ON THE INTERNATIONAL
LAW APPLICABLE TO CYBER OPERATIONS 339 (Michael N. Schmitt & Liis Vihul eds., 2017)
[hereinafter TALLINN MANUAL 2.0].
18 Hakimi & Cogan, supra note 13, at 270; see also DINSTEIN, supra note 11, at 193
(“There is no doubt that, for an illegal use of force to acquire the dimensions of an armed
attack, a minimal threshold has to be reached.”).
19 Nicar v. U.S., 1986 I.C.J. at ¶ 195; see also DINSTEIN, supra note 11, at 189 (“When a
country sends armed formations across an international frontier, without the consent of
the local Government, it must be deemed to have triggered an armed attack.”).
20 Nicar v. U.S., 1986 I.C.J. at ¶ 195 (“But the Court does not believe that the concept
of ‘armed attack’ includes not only acts by armed bands where such acts occur on a signifi-
cant scale but also assistance to rebels in the form of the provision of weapons or logistical
or other support. Such assistance may be regarded as a threat or use of force, or amount
to intervention in the internal or external affairs of other States.”).
21 DINSTEIN, supra note 11, at 193; see also Brownlie, supra note 10, at 219 (noting that
armed attack may be defined by the destructive physical effects of an attack rather than the
nature of the attack).
certain scale and have a major effect, and are thus not to be considered mere
frontier incidents.”22
Identifying the particular threshold, however, proves challenging. The
ICJ’s jurisprudence can appear somewhat inconsistent in pinpointing the
notion of gravity, juxtaposing the “scale and effects” and gravity discussion in
the Nicaragua case with the statement in the Oil Platforms case that the min-
ing of a single military vessel could be sufficient to meet the definition of an
armed attack.23 Furthermore, states are often silent on the specific nature of
acts that constitute or could constitute an armed attack, instead commonly
“justify[ing] defensive force in response to low levels of violence without
referring to any armed-attack threshold.”24 At a minimum, although it
appears “almost impossible to fix the threshold of force employed to define
the notion of armed attack,”25 one can conclude that some level of gravity is
required to distinguish an armed attack from a use of force. Furthermore,
that gravity determination rests on the effects of the action—in terms of
deaths, injury, or destruction—rather than the nature of the act itself. Cyber
or other nonkinetic means can therefore constitute an armed attack if suffi-
ciently grave, such as one that “seriously injures or kills a number of persons
or that causes significant damage to, or destruction of, property [so as to]
satisfy the scale and effects requirement.”26
Notwithstanding any uncertainty regarding the specific threshold for the
definition of armed attack, the purpose of the armed attack threshold is
clear. Armed attack is a component of the law of self-defense that, in turn, is
a component of the broader international law framework governing and reg-
ulating the use of force. That broader framework seeks, above all, to mini-
mize the reliance on force as a tool of national power and, in the very first
words of the United Nations Charter, “to save succeeding generations from
the scourge of war . . . [and] to ensure, by the acceptance of principles and
the institution of methods, that armed force shall not be used, save in the
22 Nolte & Randelzhofer, supra note 8, at 1410 (explaining that the classification of an
action as an armed attack “would usually seem to be the case when an invasion occurs, but
‘attacks’, ‘bombardments’, and the ‘use of weapons’ do not in every case reach an intensity
that enables them to be classified as ‘armed attacks.’” (quoting Oil Platforms (Iran v. U.S.),
Judgment, 2003 I.C.J. 161, ¶ 51 (Nov. 6))).
23 Compare Nicar v. U.S., 1986 I.C.J. at ¶ 195, with Iran v. U.S., 2003 I.C.J. at ¶ 72; see
also Christine Gray, The International Court of Justice and the Use of Force, in THE DEVELOPMENT
OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT OF JUSTICE 237, 247 (Christian J.
Tams & James Sloan eds., 2013).
24 Hakimi and Cogan, supra note 13, at 271; see also Constantine Antonopoulos, Force
by Armed Groups as Armed Attack and the Broadening of Self-Defence, 55 NETH. INT’L L. REV. 159,
166 (2008); Christopher Greenwood, The International Court of Justice and the Use of Force, in
FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE: ESSAYS IN HONOUR OF SIR ROBERT
JENNINGS 373, 380–81 (Vaughan Lowe & Malgosia Fitzmaurice eds., 1996).
25 Natalino Ronzitti, The Expanding Law of Self-Defence, 11 J. CONFLICT & SEC. L. 343,
351 (2006).
26 TALLINN MANUAL 2.0, supra note 17, at 341.
common interest.”27 As a result, a higher threshold for armed attack fits

neatly within the purposes of the overall framework: the basic starting point
of a prohibition on the use of force sets the ground rules that force should be
a last resort for states rather than an ordinary tool of statecraft; limited excep-
tions to the prohibition help to reinforce that basic presumption; and a high
threshold for any use of force in self-defense limits the circumstances in
which states can lawfully resort to force as a self-help measure. For many,
therefore, the ICJ affirmed a “distinction based on gravity . . . as part of a
conscious attempt to increase the divergence between the two concepts [of
use of force and armed attack], thereby limiting the possibility for the escala-
tion in violence and an all-out war between states.”28 A requirement of grav-
ity or “scale and effects” for an armed attack thus promotes the basic goals of
the international system and serves an essential purpose: “strengthen[ing]
the stability of the international order by avoiding rapid escalation of con-
flicts into an unstoppable cycle of force and counterforce.”29
In addition, not only does the armed attack definition limit the circum-
stances for the use of force in self-defense to those in which force is the only
option for repelling the threat the state faces, but the exclusion of lower-level
or smaller-scale incidents from the definition of armed attack also serves to
protect against escalation of smaller incidents into full-scale conflagrations.
As the ICJ explained in the Nicaragua case, the drafters of the United Nations
Charter deliberately extended the self-defense paradigm to what once were
reprisals for less weighty incidents:
The logic behind [excluding low-level incidents] has been that if use of
force was made permissible not as a lone restricted measure of self-defence,
but also for other minor provocations demanding counter-measures, the day
would soon dawn when the world would have to face the major catastrophe
of a third World War – an event so dreaded in 1946 as to have justified
concrete measures being taken forthwith to eliminate such a contingency
arising in the future.30

28 CHRISTIAN HENDERSON, THE USE OF FORCE AND INTERNATIONAL LAW 217 (2018); see
also Nolte & Randelzhofer, supra note 8, at 1403 (“The prevailing view considers Art. 51 to
exclude any self-defence, other than that in response to an armed attack, referring, above
all, to the purpose of the UN Charter, ie to restrict as far as possible the use of force by
individual States.” (citations omitted)).
29 Tom Ruys, The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Mini-
mal” Uses of Force Excluded from UN Charter Article 2(4)?, 108 AM. J. INT’L L. 159, 165, 178
(2014).
30 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judg-
ment, 1986 I.C.J. 14, 151 (June 27) (separate opinion by President Singh); see also Jared
Zimmerman, Assessing How Article 51 of the United Nations Charter Prevents Conflict Escalation,
REALCLEARDEFENSE (June 4, 2018), https://www.realcleardefense.com/articles/2018/06/
04/assessing_how_article_51_of_the_united_nations_charter_prevents_conflict_escala-
tion_113507.html (“Article 51 doesn’t eliminate conflict, but prevents it from escalating or
at least escalating quickly.”).
By establishing armed attack as a subset of the use of force more broadly—

what some term a “force-gap”31—the UN Charter prioritizes peace and the
peaceful settlement of disputes over an individual state’s right to respond to
absolutely any threat or danger. The right to use force in self-defense is
therefore “limited to situations where the state is truly required to defend
itself from serious attack.”32 The tool for accomplishing this goal: a high
threshold for armed attack.
B. The Threshold for International Armed Conflict and Its Purpose

LOAC—otherwise known as the law of war or international humanita-
rian law—governs the conduct of both states and individuals during armed
conflict and seeks to minimize suffering in war by protecting persons not
participating in hostilities and by restricting the means and methods of war-
fare.33 Although historically LOAC treaty and customary law applied to situa-
tions of declared war between states,34 the drafters of the Geneva
31 See, e.g., Gary P. Corn, Cyber National Security: Navigating Gray-Zone Challenges in and
Through Cyberspace, in COMPLEX BATTLESPACES: THE LAW OF ARMED CONFLICT AND THE
DYNAMICS OF MODERN WARFARE 345, 408 n.328 (Michael N. Schmitt et al. eds., 2019) (cit-
ing TALLINN MANUAL 2.0, supra note 17, at 332–33); Benjamin Zweifach, Note, Plugging the
Gap: A Reconsideration of the U.N. Charter’s Approach to Low-Gravity Warfare, 8 INTERCULTURAL
HUM. RTS. L. REV. 379 (2012).
32 Jonathan I. Charney, The Use of Force Against Terrorism and International Law, 95 AM. J.
INT’L. L. 835, 836 (2001). In addition, the Charter manifests a preference for “community
responses (e.g., even to threats to peace) over individual ones.” Michael N. Schmitt, Com-
puter Network Attack and the Use of Force in International Law: Thoughts on a Normative Frame-
work, 37 COLUM. J. TRANSNAT’L L. 885, 929 (1999).
33 See What Is International Humanitarian Law?, INT’L COMM. OF THE RED CROSS (July 31,
2004), https://www.icrc.org/en/doc/resources/documents/legal-fact-sheet/humanita-
rian-law-factsheet.htm. The law of armed conflict is codified primarily in the four Geneva
Conventions of August 14, 1949, and their Additional Protocols. Geneva Convention for
the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GC I]; Geneva Convention for
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GC II]; Geneva
Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75
U.N.T.S. 135 [hereinafter GC III]; Geneva Convention Relative to the Protection of Civil-
ian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC
IV]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977,
1125 U.N.T.S. 3 [hereinafter AP I]; Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International Armed Con-
flicts (Protocol II), adopted June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II].
34 See, e.g., Convention with Respect to the Laws and Customs of War on Land art. 2,
July 29, 1899, 32 Stat. 1803 (stating that the annexed Regulations on the Laws and Customs
of War on Land applied “in case of war”). The classical definition of war, set forth in
Oppenheim’s treatise on international law, was “[w]ar is a contention between two or more
States through their armed forces, for the purpose of overpowering each other and impos-
ing such conditions of peace as the victor pleases.” 2 L. OPPENHEIM, INTERNATIONAL LAW: A
TREATISE 202 (H. Lauterpacht ed., 7th ed. 1952).
Conventions were concerned about opportunities for states to argue that

LOAC—and its core protective obligations—were not applicable because
there was no declared war. They therefore sought to identify more clearly
when LOAC applied to govern conduct during wartime through a framework
of law applicable based on an objective analysis of the relevant situation of
violence, not the claims or objectives of one or both parties to the conflict.
The 1949 Geneva Conventions seek to address all instances of armed
conflict and set forth two primary categories of armed conflict that trigger
the application of LOAC: international armed conflict and non-international
armed conflict. International armed conflict is conflict between or among
two or more states, and non-international armed conflict refers to conflicts
between a state and a nonstate armed group or between two or more non-
state groups. The definition of armed conflict for each type of conflict is not
the same, creating different triggers for the application of LOAC. Although
the threshold for non-international armed conflict remains the source of
extensive debate, this Article focuses on international armed conflict for pur-
poses of understanding the relationship between its threshold and the defini-
tion of armed attack.
Common Article 2 to the four Geneva Conventions provides that “the
present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Con-
tracting Parties, even if the state of war is not recognized by one of them.”35
Although it does not specifically define the term “armed conflict,” Common
Article 2 is understood to apply to any situation in which the armed forces of
two states engage with each other—an international armed conflict.
An international armed conflict is therefore any conflict between two
states involving their armed forces, no matter how minor or short lived, even
if one or both states deny the existence of the conflict. As the Commentary
to the Geneva Conventions explains, “[a]ny difference arising between two
States and leading to the intervention of members of the armed forces is an
armed conflict within the meaning of Article 2.”36 The threshold for a situa-
tion between two states to constitute an international armed conflict is delib-
erately low—even a seemingly minor confrontation with little or no overt
violence can meet the threshold for international armed conflict. The Com-
mentary elaborates as follows:
It makes no difference how long the conflict lasts, how much slaughter takes
place, or how numerous are the participating forces; it suffices for the armed
forces of one Power to have captured adversaries falling within the scope of
Article 4 [of the Third Geneva Convention]. Even if there has been no
fighting, the fact that persons covered by the Convention are detained is
35 GC I, supra note 33, at art. 2; GC II, supra note 33, at art. 2; GC III, supra note 33, at
art. 2; GC IV, supra note 33, at art. 2.
36 INT’L COMM. OF THE RED CROSS, COMMENTARY ON THE GENEVA CONVENTION (III)
RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 23 (Jean S. Pictet ed., 1960) (footnote
omitted) [hereinafter GC III COMMENTARY].
sufficient for its application. The number of persons captured in such cir-
cumstances is, of course, immaterial.37
Thus, for example, the Iranian detention of fifteen British sailors in the Per-
sian Gulf in March 200738 triggered the law of international armed conflict
and the Third Geneva Convention governed the treatment of the detained
sailors. The fact that neither the United Kingdom nor Iran recognized a
state of war or the existence of an armed conflict had no bearing on the
application of LOAC.39 Similarly, when Syrian forces shot down and cap-
tured U.S. Navy Lieutenant Bobby Goodman in 1983 when he was flying a
bombing mission in support of U.S. peacekeeping forces in Lebanon, Syria
treated him as a prisoner of war, as the United States demanded.40 The
engagement between Syria and the United States was extraordinarily brief,
but nonetheless qualified as an international armed conflict so as to trigger
the application of LOAC.
More recently, Russia’s 2014 incursion into Crimea highlighted the low
threshold for international armed conflict and, more importantly, the rea-
sons for this low threshold. On February 27–28, 2014, armed men in
unmarked uniforms—understood to be and later identified as Russian
troops—seized Crimea’s parliament building and two airports in the process
of securing control over Crimea over the next few days and weeks. During
that time, beyond a few isolated incidents, Russian and Ukrainian military
37 Id.
38 See Sarah Lyall, Iran Detains British Sailors in Waters off Iraq, N.Y. TIMES (Mar. 23,
2007), https://www.nytimes.com/2007/03/23/world/middleeast/23cnd-basra.html.
39 See Paul Berman, When Does Violence Cross the Armed Conflict Treshold: Current Dilem-
mas, COLLEGIUM, Autumn 2013, at 33, 39 (“If a member of one armed force falls into the
power of the other—sick, shipwrecked or taken prisoner—then IHL applies even without a
shot being fired. In 2007 when British sailors were detained by Iran and paraded on televi-
sion, the UK invoked the protection of Article 13 of the third Geneva Convention.”); see
also GC III COMMENTARY, supra note 36, at 23 (“Even in that event it would not appear that
they could, by tacit agreement, prevent the Conventions from applying.”); COMMENTARY OF
2016, CONVENTION (I) FOR THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND
SICK IN THE ARMED FORCES IN THE FIELD, INT’L COMM. OF THE RED CROSS para. 213 (2016)
[hereinafter 2016 COMMENTARY], https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Com-
ment.xsp?action=OpenDocument&documentId=BE2D518CF5DE54EAC1257F7D0036B5
18 (“Even if none of the Parties recognize the existence of a state of war or of an armed
conflict, humanitarian law would still apply provided that an armed conflict is in fact in
existence.”).
40 See Terry A. Anderson, ASSOCIATED PRESS, Dec. 31, 1983 (“Syria says it considers
Goodman a prisoner of war and will release him only ‘after the war is over.’”); see also
Geoffrey S. Corn & Michael L. Smidt, “To Be or Not to Be, That Is the Question”: Contemporary
Military Operations and the Status of Captured Personnel, ARMY LAW., June 1999, at 1, 5; Steven
Dornfeld, Jackson Leaves for Syria to Seek Airman’s Freedom, MIA. HERALD, Dec. 30, 1983, at
11A; Excerpts from Interview with Syrian Defense Minister, ASSOCIATED PRESS, Dec. 30, 1983; Red
Cross Visits Flier Being Held by Syrians, N.Y. TIMES (Dec. 9, 1983), https://www.nytimes.com/
1983/12/09/world/red-cross-visits-flier-being-held-by-syrians.html; Telegram 348126 from
Dep’t of State to American Embassy at Damascus (Dec. 8 1983), in 3 MARIAN NASH (LEICH),
DEP’T OF STATE, CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW
1981–1988, at 3456–57 (1994).
forces did not engage directly in hostilities. News reports suggest that only a
few shots were fired and one Ukrainian soldier was killed in the course of
Russia’s consolidation of control.41 However, from the moment Russian
forces entered into Ukrainian territory without Ukrainian consent, the situa-
tion constituted an international armed conflict, even in the absence of fight-
ing and even if most Ukrainian soldiers were unarmed in most
confrontations. To trigger an international armed conflict, it
is also of no concern whether or not the party attacked resists. . . . [A]s soon
as the armed forces of one State find themselves with wounded or surrender-
ing members of the armed forces or civilians of another State on their
hands, as soon as they detain prisoners or have actual control over a part of
the territory of the enemy State, then they much comply with the relevant
[Geneva] convention.42
The threshold for international armed conflict is therefore “remarkably
low”43—one airstrike,44 detention of one soldier,45 even an incursion onto
the adversary’s territory without consent is sufficient. Furthermore, the exis-
tence of international armed conflict and the application of LOAC does not
depend on either the adversary’s response or lack thereof,46 or on the jus ad
41 See Carol Morello & Anthony Faiola, Ukrainian Soldier Fatally Shot at Base in Crimea,
WASH. POST (Mar. 18, 2014), https://www.washingtonpost.com/news/world/wp/2014/
03/18/ukrainian-serviceman-reportedly-shot-in-crimea/.
42 Hans-Peter Gasser, International Humanitarian Law: An Introduction, in HUMANITY
FOR ALL: THE INTERNATIONAL RED CROSS AND RED CRESCENT MOVEMENT 22–23 (Hans Haug
ed., 1993).
43 Marko Milanovic & Vidan Hadzi-Vidanovic, A Taxonomy of Armed Conflict, in
RESEARCH HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW: JUS AD BELLUM, JUS
IN BELLO, AND JUS POST BELLUM 256, 274 (Nigel D. White & Christian Henderson eds.,
2013).
44 See Françoise J. Hampson, The Relationship Between International Humanitarian Law
and Human Rights Law from the Perspective of a Human Rights Treaty Body, 90 INT’L REV. RED
CROSS 549, 553 (2008) (“[N]o minimum threshold for the amount or quality of force used
is specified. Clearly, this suggests that any use of armed force against a state triggers an
armed conflict.”); Christopher Greenwood, Scope of Application of International Humanitarian
Law, in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 45, 48 (Dieter Fleck ed., 2d
ed. 2008) (“An international armed conflict exists if one state uses armed force against
another state.”); DIETRICH SCHINDLER, THE DIFFERENT TYPES OF ARMED CONFLICTS ACCORD-
ING TO THE GENEVA CONVENTIONS AND PROTOCOLS 131 (1979) (“Even a minor frontier inci-
dent is sufficient. Any kind of use of arms between two States brings the Conventions into
effect.”).
45 See 2016 COMMENTARY, supra note 39, para. 238; NASH (LEICH), supra note 40, at
3456.
46 See 2016 COMMENTARY, supra note 39, para. 243 (“Indeed, States might not publicly
acknowledge [isolated or sporadic incidents] as armed conflicts and may describe them
simply as ‘incidents’. They may also choose not to respond with violence to an attack
against their military personnel or populations, or on their soil. Nevertheless, given that
humanitarian law applies based on the facts, the fact that a State publicly uses a term other
than ‘armed conflict’ to describe a situation involving hostilities with another State is not in
itself determinative of the classification of that situation as an armed conflict.”).
bellum question of “whether the use of force against another State is permit-
ted under the UN Charter.”47
Although some argue that international armed conflict requires some
level of intensity to trigger LOAC,48 nothing in the Geneva Conventions, the
Commentary or international jurisprudence supports such an analysis. In
fact, the immediate application of LOAC upon any dispute between states
leading to the engagement of their armed forces is fundamental to LOAC’s
core purposes and effectiveness. Thus, the threshold for the existence of an
international armed conflict is deliberately set quite low in order to maximize
LOAC’s protective purposes. First, when two states are in conflict, there may
be no mechanisms for individuals in one state to seek redress or protection
from the other in the absence of LOAC applying—consider, for example,
how soldiers or civilians from one state could enforce their rights if detained
or otherwise subject to the control of the adversary state. “In the absence of a
classification of a situation as an armed conflict, detained military personnel
would not enjoy equivalent legal protection under the domestic law of the
detaining State, even when supplemented by international human rights
law.”49 In fact, in many situations of conflict, neither human rights law nor
domestic law applies at all to ensure protection for those most vulnerable—
the populations specially protected by the four Geneva Conventions of 1949:
wounded, sick, shipwrecked, prisoners of war, and civilians. The low thresh-
old for LOAC’s application in international armed conflict helps ensure
there are no gaps in legal protection, guarding against situations in which
“no law governs the conduct of military operations below that level of inten-
sity,”50 and upholding the core purposes of the Geneva Conventions.
Second, the low threshold for international armed conflict encompasses
the opening phase of hostilities into the conflict and the application of
LOAC. A system in which a conflict begins with an attack by one state against
another and then develops from there, but LOAC does not apply to the ini-
tial attack, would simply not make sense and would not offer the necessary
protection for the individuals and objects targeted or incidentally harmed in
that first attack. Neither human rights law nor domestic law is designed to
47 Id. para. 215 (“The mandate and the actual or perceived legitimacy of a State to
resort to armed force are issues which fall within the province of jus ad bellum, and have no
effect on the applicability of international humanitarian law to a specific situation involv-
ing two or more High Contracting Parties.”).
48 See INT’L L. ASS’N, THE HAGUE CONFERENCE: FINAL REPORT ON THE MEANING OF
ARMED CONFLICT IN INTERNATIONAL LAW 2 (2010) [hereinafter ILA REPORT 2010].
49 2016 COMMENTARY, supra note 39, para. 239; see also INT’L COMM. OF THE RED CROSS,
INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CON-
FLICTS 7 (2011); Louise Arimatsu, Beginning of IHL Application: Overview and Challenges, COL-
LEGIUM, Autumn 2013, at 71, 76 (2013) (“This low threshold of violence corresponds with
the view that the overriding purpose of the Conventions is to ensure maximum protection
for those groups the law seeks to protect.”); Noam Lubell, What Does IHL Regulate and is the
Current Armed Conflict Classification Adequate?, COLLEGIUM, Autumn 2013, at 17, 20 (2013).
50 Dapo Akande, Classification of Armed Conflicts: Relevant Legal Concepts, in INTERNA-
TIONAL LAW AND THE CLASSIFICATION OF CONFLICTS 32, 41 (Elizabeth Wilmshurst ed., 2012).
address or regulate violence between two states. Applying LOAC to the start
of hostilities thus “avoid[s] the uncertainty surrounding the period during
which one would try to observe whether a given threshold of intensity has
been reached”51 and maximizes the application of the law to the entire spec-
trum of a conflict situation.
Unlike the threshold for armed attack, which seeks to contain the use of
force and prevent escalation and is therefore high, the threshold for the exis-
tence of an international armed conflict endeavors to provide maximum pro-
tection for all persons and is therefore low. Both thresholds focus on
activities involving the use of force of some kind; both play an essential role
in the international system. The following Part explores this gap in greater
detail and then examines the possible consequences that result from two dif-
ferent thresholds.
II. GAPS AND CONSEQUENCES

In many situations, an operation triggering an international armed con-
flict, such as an invasion, or artillery or rocket attacks, will obviously also con-
stitute an armed attack, and the different standards and definitions in the
two bodies of law will present no concerns. The very language used in the
two thresholds, however—gravity, scale, and effects for armed attack; “no
matter how minor” for international armed conflict—demonstrates the gulf
between an act that may trigger the existence of an international armed con-
flict and an act that constitutes an armed attack triggering the right to use
force in self-defense. Indeed, the type of act that could constitute a use of
force, recognized as a lower threshold than armed attack, is more likely to be
similar in nature and import to the threshold for international armed con-
flict. Regardless of the precise appropriate comparison, there can be little
doubt that the existence of an international armed conflict occurs or is trig-
gered below the threshold for an armed attack. As a result, without further
analysis, a simple side-by-side comparison of the two thresholds and the two
legal regimes leads to the conclusion that two states can be in a state of inter-
national armed conflict without any act or situation triggering or justifying
the right to use force under the jus ad bellum. And yet the very first lesson in
any discussion of the jus ad bellum is that it regulates the right of states to use
force in the international system—that is, to go to war.
This Part explores three examples of this gap between the thresholds for
armed attack and international armed conflict in order to highlight the
potential inconsistencies and challenges that result. Although LOAC and the
jus ad bellum are entirely separate legal regimes, with different goals, struc-
tures, and methodologies, both are integral in any situation that involves the
use of force by or against a state. One consequence of the gap between the
thresholds is that at times, the resulting rules in one body of law may seem to
operate at cross-purposes to the goals and principles of the other. As Part III
of this Article considers, these situations of cross-purposes may well be the
51 2016 COMMENTARY, supra note 39, para. 240.

unavoidable consequence of the interaction of LOAC and jus ad bellum in

certain specific circumstances and may be less problematic than other poten-
tial solutions or adaptations to address the gap between the thresholds. How-
ever, before examining and reaching that potential conclusion,
understanding the nature of the gap and its consequences is essential. Sec-
tion A of this Part therefore analyzes the interpretation of and application of
the thresholds for international armed conflict and for armed attack in three
situations—detention, a declaration of war, and anticipatory self-defense—to
highlight seemingly problematic, confusing, or surprising results. Section B
of this Part then examines the consequences of the gap for either or both
bodies of law, with particular attention to whether and how the core pur-
poses of the law or its logic may be undermined. In the end, this analysis
narrows to a few key questions: Do jus ad bellum and LOAC always apply
sequentially, with jus ad bellum applying first before any LOAC analysis can be
undertaken? Does the application of LOAC include the permission or even
authority to use force once a conflict exists or does that authority rest solely
in the jus ad bellum? And when there appears to be a conflict between the
two bodies of law with respect to the authority or permissibility of using force
in a given situation, how should that conflict be resolved?
A. Explaining the Gaps
1. Detention
Imagine that State A detains several members of State B’s military.
According to the general understanding of the threshold for international
armed conflict, this act of detaining members of another state’s military
would constitute an international armed conflict within the meaning of Com-
mon Article 2 of the 1949 Geneva Conventions and trigger the application of
the law of armed conflict. Both the original Commentary to the 1949 Geneva
Conventions and the 2016 updated Commentary affirm that the capture and
detention of even one soldier can be sufficient to trigger the existence of an
international armed conflict: “[I]t makes no difference ‘how numerous are
the participating forces; it suffices for the armed forces of one Power to have
captured adversaries falling within the scope of Article 4’ of the Third Con-
vention.”52 As explained above, the application of LOAC upon capture of
members of an adversary state’s military is an essential feature of the “entire
package of protection”53 the Geneva Conventions provide, ensuring legal
52 Id. para. 236 (quoting GC III COMMENTARY, supra note 36, at 23). For example,
when Serbia captured four U.S. soldiers serving in a UN peacekeeping mission in Macedo-
nia who allegedly crossed the border into Serbia without authority, the United States
asserted that they were entitled to treatment as prisoners of war. See generally GEOFFREY S.
CORN ET AL., THE LAW OF ARMED CONFLICT: AN OPERATIONAL APPROACH 75 (2012); Stephen
Lee Myers, Crisis in the Balkans: The Prisoners; Serb Officer, Captured by Rebels, Held by U.S., N.Y.
TIMES, April 17, 1999, at A9.
53 Jelena Pejic, Extraterritorial Targeting by Means of Armed Drones: Some Legal Implications,
96 INT’L REV. RED CROSS 67, 77 (2014).
protection when domestic law and international human rights law are not
able to provide the necessary protections. Just as the use of deadly combat
power is one central tool for achieving the defeat of the enemy forces, so
another means to “undermine the potential of the enemy army . . . is to
capture its soldiers,” such that the law of international armed conflict applies
as soon as “someone falls into the hands of the enemy.”54
At the same time that the capture and detention of these members of
State B’s military would trigger the existence of an international armed con-
flict, it would not rise to the level of an armed attack justifying the right to
use force in self-defense in accordance with Article 51 of the United Nations
Charter. In general, uses of force with sufficient gravity to constitute an
armed attack are those resulting in death or destruction. Even seemingly
“small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed
attacks’ activating Article 51 [of the] UN Charter, as long as they result in, or
are capable of resulting in destruction of property or loss of lives.”55 Deten-
tion is not of the same scale or gravity as acts that cause death and destruc-
tion and, although potentially a use of force under Article 2(4) of the UN
Charter, would not be an armed attack. Indeed, detention would at most
constitute a mere frontier incident, the type of low-level activity that was
deliberately excluded from the self-defense paradigm in order to guard
against escalation.
The capture and detention of soldiers, even just a few or perhaps one,
could therefore trigger the existence of an international armed conflict and
the application of the accompanying law, but at the same time would not be
sufficient for the use of force in self-defense against an armed attack. State B
therefore finds itself in an international armed conflict with State A but also
does not have any legal justification under the jus ad bellum to use force in
self-defense in response to State A’s action. A few potential outcomes may
arise, each of which raises challenging questions for the application of
LOAC, of jus ad bellum, and of the relationship and interplay between the two
bodies of law.
First, if State B believes that the existence of an international armed con-
flict allows—or even authorizes—the use of force in accordance with the
principle of military necessity and the rules governing the targeting of per-
sons and objects during an armed conflict, then State B may begin to take
action in accordance with the rules, authorities, and obligations of LOAC to
prosecute the armed conflict with State A in order to end the dispute in a
satisfactory manner. The result: a state is using force against another state
without satisfying, or even considering, the parameters of the jus ad bellum.
Alternatively, if State B believes that it cannot use force without the Arti-
cle 51 justification of self-defense in response to an armed attack, it will not
use force and will have fewer feasible options, if any, to resolve the dispute
54 Julia Grignon, The Beginning of Application of International Humanitarian Law: A Dis-

cussion of a Few Challenges, 96 INT’L REV. RED CROSS 139, 147 (2014).
55 TOM RUYS, ‘ARMED ATTACK’ AND ARTICLE 51 OF THE UN CHARTER: EVOLUTIONS IN
CUSTOMARY LAW AND PRACTICE 155 (2010) (emphasis omitted).
with State A and secure the release and return of its military personnel. In
addition, State A could detain additional members of State B’s military, if it is
in a position to capture them, and continue to detain them—in an interna-
tional armed conflict (which has been triggered by State A’s original capture
and detention of State B’s personnel), a state can detain members of the
enemy forces for the duration of the conflict. Here, the conflict persists as
long as State A is detaining State B’s personnel because that detention is, in
fact, the manifestation of the conflict. Although seemingly farfetched, this
scenario presents the possibility that a state could simply manufacture the
factual predicate to hold members of an adversary’s military nearly indefi-
nitely, while appearing to comply with the applicable law. State A could also
engage in other acts below the threshold of armed attack, leaving State B
perpetually handicapped from using force in self-defense because of the lack
of an armed attack, but facing the equivalent of “death by a thousand cuts.”
Third, consider that State A, having captured and detained State B’s
soldiers and thus triggered the existence of an international armed conflict,
could act according to the same theory of LOAC authorizing or at least
allowing the use of force to defeat the enemy presented in the first scenario.
State A would therefore use deadly combat power against State B’s military
personnel and objects in accordance with the principle of military necessity
and other rules of LOAC. In essence, State A would manufacture an interna-
tional armed conflict through the minor act of detaining a would-be adver-
sary’s personnel and thus grant itself permission to use force against that
adversary because of the existence of the conflict it created. Still more prob-
lematic, imagine State B sends one or more soldiers across the border into
State A for the purpose of getting detained so as to trigger the international
armed conflict it seeks as the acceptable paradigm for using force against
State A. Like the first scenario, in either version of this third scenario, the jus
ad bellum simply falls by the wayside as the gap between the thresholds for
armed attack and international armed conflict enable an “end run” around
the jus ad bellum.
2. Declarations of War
Historically, the law of war applied during wartime, but neither treaty
nor customary law specifically defined the parameters of war, because the
meaning of war was considered to be well understood. For example, Article
2 of the Hague Convention of 1899 stated that the annexed Regulations on
the Laws and Customs of War on Land applied “in case of war.”56 The
Hague Convention (III) of 1907 Relative to the Opening of Hostilities pro-
vided that “hostilities . . . must not commence without previous and explicit
warning, in the form either of a declaration of war, giving reasons, or of an
56 Convention with Respect to the Laws and Customs of War on Land art. 2, July 29,
1899, 32 Stat. 1803.
ultimatum with conditional declaration of war.”57 The primary purpose of a

declaration of war is to identify with precision the moment when a state of
war began. Traditional theories of declared war held that “the mere fact that
States are engaged in armed violence is insufficient to displace the law of
peace and trigger the applicability of humanitarian law[, such that] declared
war in its legal meaning starts with a declaration of war.”58 Although declara-
tions of war are now rarely used—the last time the United States declared war
was against Romania in June 1942 in the midst of World War II59—they
nonetheless continue to have the same legal force.
A declaration of war thus marks the initiation and existence of an inter-
national armed conflict and the application of LOAC. Although the drafters
of the 1949 Geneva Conventions introduced the objective analysis of armed
conflict based on the driving goal of protecting against the dangers of states
arguing that the law of war, and its concomitant obligations, did not apply
because there was no declared war,60 they did not eliminate declarations of
war as a trigger for IAC. Thus, as Common Article 2 states, “the [Geneva]
Convention[s] shall apply to all cases of declared war,”61 reaffirming that a
declaration of war marks the start of an international armed conflict. As the
Eritrea-Ethiopia Claims Commission noted, “the essence of a declaration of
war is an explicit affirmation of the existence of a state of war between bel-
ligerents.”62 Furthermore, the declaration of war is sufficient, in and of itself
and without any hostilities or other acts, to trigger the application of LOAC
and the existence of an international armed conflict.63 Like the low thresh-
57 Hague Convention (III) Relative to the Opening of Hostilities art. 1, Oct. 18, 1907,
36 Stat. 2259.
58 2016 COMMENTARY, supra note 39, para. 204; see also Eliza Ann and Others (1813)
165 Eng. Rep. 1298, 1300; 1 Dodson 244, 247 (stating that a declaration of war “proves the
existence of actual hostilities on one side at least, and puts the other party also into a state
of war, though he may, perhaps, think proper to act on the defensive only”).
59 See H.R.J. Res. 319, 77th Cong. (1942).
60 For example, during World War II, the Japanese referred to their operations in
China and Manchuria as an “Incident,” claiming that the hostilities therefore did not trig-
ger the law of war, an argument that was rejected by the International Military Tribunal for
the Far East, which applied the law of war and convicted numerous Japanese defendants of
war crimes and other atrocities. See International Military Tribunal for the Far East, Judg-
ment of 4 Nov. 1948, at 1003, 1008; see also WILLIAM L. SHIRER, THE RISE AND FALL OF THE
THIRD REICH: A HISTORY OF NAZI GERMANY 830 (1990) (explaining that Hitler argued that
Germany did not have to apply the law of war in the conflict with the Soviet Union because
the Soviets were not deserving of adherence to the law and therefore did not have a legiti-
mate right to the reciprocity inherent in LOAC).
61 GC I, supra note 33, at art. 2; GC II, supra note 33, at art. 2; GC III, supra note 33, at
art. 2; GC IV, supra note 33, at art. 2.
62 Jus Ad Bellum—Ethiopia’s Claims 1–8 (Eth. v. Eri.), Partial Award, 26 R.I.A.A. 457,
467.
63 See 2016 COMMENTARY, supra note 39, para. 206 (“The Geneva Conventions become
automatically applicable even when a declaration of war is not followed by armed confron-
tations between the declaring State and its designated opponent(s). Indeed, the declara-
tion of war does not need to be underpinned by hostile actions against the enemy to make
old for international armed conflict—the “one shot” threshold—in general,

the fact that a declaration of war alone suffices to constitute an international
armed conflict helps to carry out the protective goals of LOAC. Individuals
who find themselves in the territory of an adversary state will therefore “bene-
fit from the protection conferred by humanitarian law should they be
exposed to the adverse effects of a declaration of war and its correlative belli-
cose rhetoric and atmosphere.”64
In contrast, under the modern jus ad bellum, a declaration of war does
not fall within the acceptable justifications for the use of force under the
United Nations Charter. Although historically a declaration of war was con-
sidered de rigeur for a justifiable resort to arms and was “the constant practice
among the powers of Europe,”65 by the early twentieth century, the interna-
tional community had begun to try to outlaw war as an instrument of
national power, first through the League of Nations, then the interwar trea-
ties, and finally the United Nations Charter. For the purposes of the instant
analysis, the key question is whether a declaration of war against a state can
constitute an armed attack against that state so as to trigger its right to use
force in self-defense. Under any ordinary interpretation of armed attack, it
does not—a declaration of war does not involve acts causing death, destruc-
tion or injury of any gravity or scale, or cause such effects. A declaration of
war, “if it is evident to all that [it is] unaccompanied by deeds, [is] not
enough”66 to trigger the right of self-defense. One could certainly character-
ize a declaration of war in certain circumstances as a threat of force, prohib-
ited under Article 2(4) of the United Nations Charter, “[b]ut such a threat
per se does not constitute an armed attack.”67
This dichotomy could produce similar contradictory results as the deten-
tion example above in certain potential situations. If State A issues a declara-
tion of war against State B, the two states will be in a situation of international
armed conflict and LOAC will apply. However, neither state will have a legal
justification to use force under the jus ad bellum. If, for example, the two
states subscribe to the theory that the existence of an international armed
conflict and the application of LOAC allows them to use force to defeat the
enemy in the conflict, the result will be two states using force without either
having authority under jus ad bellum. This scenario sets up a significant con-
flict between LOAC and the jus ad bellum, the nature and consequences of
which will be addressed in greater detail in Section B of this Part below.
humanitarian law applicable. Therefore, a State which confines itself to a declaration of

war but does not participate in the fighting has to apply the Geneva Conventions.” (foot-
notes omitted)).
64 Id. para. 208.
65 EMER DE VATTEL, THE LAW OF NATIONS 501 (Béla Kapossy & Richard Whatmore eds.,
2008); see also OONA A. HATHAWAY & SCOTT J. SHAPIRO, THE INTERNATIONALISTS: HOW A
RADICAL PLAN TO OUTLAW WAR REMADE THE WORLD 36–37 (2017).
66 DINSTEIN, supra note 11, at 186.
67 Id. at 186 n.62.
Alternatively, where the states in question do not believe that LOAC

includes the permission or authority to use force to defeat the enemy once in
an armed conflict, the same situation of State A declaring war against State B
would create a situation of international armed conflict, but one in which
neither state believes it can use force because of the lack of a jus ad bellum
justification. On first glance, this situation surely seems preferable because it
avoids the use of force and escalation—the very goal of the jus ad bellum.
However, the result may well be operationally illogical: consider that while
neither state believes it has a justification to use force in self-defense, it none-
theless believes that it can take other actions in accordance with rights and
privileges under LOAC, including detaining enemy nationals or even enemy
military personnel if feasible to capture, and other rights accorded to bel-
ligerents that do not rise to the level of a use of force.68 Although each state
has a variety of responses available to it under classic international law, such
as countermeasures, retorsions, or other tools, it would not be able to use
force to resolve what, over time, would be a festering dispute with persons
detained on both sides and other low-level acts taking place in the overall
context of a conflict that persists without any hostilities. There is little doubt
that this situation could well be seen as preferable to a shooting war because
of the lack of hostilities and kinetic violence—the opportunity to avoid vio-
lence and escalation will always be a positive in some, if not all, ways—but
operationally this result will likely be seen as illogical. The unfortunate con-
sequence may be that parties involved begin to see the law as divorced from
reality and as a hindrance rather than an effective complement to military
and strategic doctrine.
3. Anticipatory Self-Defense
Unlike the previous two examples, anticipatory self-defense frames the

gap between the threshold for armed attack and the threshold trigger for
international armed conflict in a different manner. Anticipatory self-defense
refers to the possibility of a state using force in self-defense in response to an
imminent armed attack, rather than waiting for the attack to actually happen
before having the right to respond to deter or repel the attack. Notwith-
standing significant disagreement regarding what specifically constitutes an
imminent attack and when the right of self-defense is triggered in such situa-
tions, there is general acceptance that a state may act in anticipatory self-
defense to prevent an attack from occurring.69
In situations of anticipatory self-defense, the threshold for armed attack
is, actually, an imminent armed attack—that is, the trigger for the use of
68 See id. at 152 (explaining that once a declaration of war brings about a state of war,
“[w]ithout resorting to hostilities, conceivably without even running any risk, the country
issuing the declaration is allowed to take steps seriously impinging on the rights of
individuals”).
69 See HENDERSON, supra note 28, at 277; NOAM LUBELL, EXTRATERRITORIAL USE OF
FORCE AGAINST NON-STATE ACTORS 54–56 (2010).
force in self-defense is the existence of an imminent armed attack. Consider

a state that faces an imminent armed attack. At the moment the armed
attack is imminent, such that it triggers the right of self-defense, that state has
the right to use force, but the situation does not constitute an international
armed conflict because there is not yet a dispute between two states leading
to the intervention of their armed forces. Once the victim state uses force in
response, an international armed conflict exists. But in the time when the
armed attack is imminent but not yet launched, and the intended victim state
has the right to self-defense but has not actually used force, there is no inter-
national armed conflict. The question of anticipatory self-defense and
the existence of an imminent armed attack is relevant for the jus ad bellum
only—i.e., for the exercise of the right of self-defence according to Article 51
of the UN Charter. For the determination of the existence of an interna-
tional armed conflict, there must in fact be a resort to a use of military force;
an imminent or allegedly imminent use of force or armed attack does not
suffice.70
Thus, even the low threshold for international armed conflict is not triggered
by an intended—but not launched—attack.
Although this scenario seems to present a gap between the threshold for
armed attack and the threshold for international armed conflict, this pre-
sumed gap is actually the ordinarily accepted progression of how interna-
tional law views and analyzes uses of force and situations of violence. It is
almost axiomatic that any analysis of the use of force starts with the jus ad
bellum—whether the state could use force—and then proceeds to LOAC—
how the state uses force in the context of the ensuing armed conflict. The
common view, therefore, is that “[c]ertainly, the rules governing the exercise
of State self-defense precede the application of humanitarian law and there-
fore are, at least initially, sequential in application.”71 As a result, the differ-
ence in the thresholds is seen as appropriate, even necessary to ensure the
proper application of international law: first assess whether a state has a right
to use force under international law, then examine the application of LOAC
to the international armed conflict that exists as a result of that use of force.
In contrast to the gaps presented in the detention and declaration of war
subsections above, here the gap between the armed attack threshold trigger-
ing the right of self-defense and the threshold marking the existence of an
international armed conflict seems uncontroversial and, in fact, sensible.
70 Wolff Heintschel von Heinegg, The Difficulties of Conflict Classification at Sea: Distin-
guishing Incidents at Sea from Hostilities, 98 INT’L REV. RED CROSS 449, 457 (2016).
71 KENNETH WATKIN, FIGHTING AT THE LEGAL BOUNDARIES: CONTROLLING THE USE OF
FORCE IN CONTEMPORARY CONFLICT 57 (2016); see also Greenwood, supra note 3, at 222
(explaining that the jus ad bellum “will always operate before the [LOAC] comes into
play”).
B. Exploring the Consequences
Any examination of the gaps between the armed attack and interna-
tional armed conflict thresholds and the consequences of those gaps must
inevitably encounter the timeless question of the interaction between the jus
ad bellum and LOAC. In effect, when a situation creates a gap between the
trigger for the use of force in self-defense and the existence of an armed
conflict, such as the examples above, one way to frame the resulting question
is to ask whether LOAC or the jus ad bellum governs whether the action in
question was lawful. Like the debates about the interplay between LOAC and
international human rights law, where the once starkly presented question of
lex specialis has morphed into a complex discourse about the complementary
application of the two legal regimes, the relationship between LOAC and jus
ad bellum also is susceptible to differing interpretations. Although the rela-
tionship is rarely framed through the lens of lex specialis, questions about how
the jus ad bellum and LOAC relate do offer some similarities to the LOAC
versus human rights law debates.
Over time, three primary approaches to this relationship are evident.
First, what some consider to be “the mainstream view is that the two bodies of
law apply at different stages of a conflict (jus ad bellum affects the legality of
the initial recourse to force, whereas [LOAC] logically applies after hostilities
have begun).”72 This approach focuses on the core function of each body of
law in assessing when it applies and when that application begins and, per-
haps, ends. Based on that methodology, the two legal regimes must “necessa-
rily apply at different times, at different stages in the deterioration of
relations between states [such that once] hostilities commence, ius ad bellum
ceases to be relevant and ius in bello takes control.”73 Under this approach,
the application of international law happens in two separate and sequential
steps: first, was the initial use of force lawful under the jus ad bellum; and
second, assuming the use of force triggered an international armed conflict,
are the parties to the conflict complying with LOAC in the conduct of hostili-
ties. For some, this view predominates in situations where the initial armed
attack not only triggers the right to use force in self-defense, but leads the
victim state to launch a “war of self-defence” in response.74 Overall, just as
LOAC does not apply to the first determination regarding the lawfulness of
the use of force, so—under this view—the jus ad bellum offers no contribu-
tion to legal analysis of the conduct of hostilities in the ensuing armed
conflict.
A second and related view is that jus ad bellum and LOAC apply simulta-
neously but one does not affect the application or analysis of the other.
Although the precise contours and consequence of this approach are not
72 Jasmine Moussa, Can Jus ad Bellum Override Jus in Bello? Reaffirming the Separation
of the Two Bodies of Law, 90 INT’L REV. RED CROSS 963, 968 (2008).
73 Greenwood, supra note 3, at 221 (presenting a traditional view but not supporting
that argument).
74 DINSTEIN, supra note 11, at 237.
entirely clear, the basic premise is that any limits imposed by the jus ad bellum
simply have no effect on any LOAC analysis, whether to affirm the legality of
an act or declare it illegal. Therefore, the “[s]imultaneous application of jus
ad bellum and jus in bello should not imply that the two concepts are linked or
interdependent. Acts that are in complete conformity with jus in bello may
nonetheless be prohibited under jus ad bellum.”75
Finally, the third approach sees the relationship between the two bodies
of law as one of continuous and concurrent application. The starting pre-
mise of this approach is that the fact that an armed conflict has begun does
not end the application of either Article 2(4) or Article 51 of the United
Nations Charter. “To hold otherwise would be to allow a state to avoid the
application of some of the most fundamental rules contained in the Charter
by the unilateral act of characterizing its relations with another state as
war.”76 Adherents of this approach therefore apply the jus ad bellum to assess
the lawfulness of the initial use of force and then apply both the jus ad bellum
and LOAC to all subsequent uses of force and hostilities throughout the con-
flict. Most commonly, scholars argue that the criteria for self-defense—the
principles of necessity, proportionality, and immediacy—continue to apply
throughout the conflict, in conjunction with LOAC’s rules. Through this
“ ‘overarching’ application,” the self-defense principles therefore affect “the
temporal and geographic scope of any resulting conflict, the choice of legiti-
mate military targets, the choice of weapons, belligerent reprisals, the con-
duct of an occupation, and dealings with neutrals.”77 Others demand a still
more comprehensive concurrent application of jus ad bellum and LOAC.
Under this interpretation, because the jus ad bellum applies to the first use of
force and to each subsequent use of force during the hostilities, “[a]ny use of
force, even after the outbreak of fighting, is prohibited if it cannot be justi-
fied by reference to the right of self-defence recognized in Article 51 of the
Charter.”78
With these general formulations of the relationship between jus ad bel-
lum and LOAC as background, this Section explores the consequences of the
gap between the threshold for armed attack and the threshold for the exis-
tence of international armed conflict. If an international armed conflict
exists but the armed attack threshold has not been met, such as in the exam-
ples presented above, this gap between the thresholds and the concomitant
application of the relevant international law regimes introduces challenging
questions in both the operational and legal spheres.
75 Moussa, supra note 72, at 968.

76 Greenwood, supra note 3, at 224.
77 WATKIN, supra note 71, at 58.
1. Using Force in International Armed Conflict Below the Armed Attack

Trigger
A first question arises in the scenarios above, or similar situations, where

the facts trigger the existence of an international armed conflict but neither
state has engaged in acts constituting an armed attack. Perhaps one state has
detained members of the military of another state, or one state has engaged
in low-level uses of force that exceed the low threshold for international
armed conflict but do not meet the higher threshold of armed attack so as to
trigger the right to use force in self-defense. The existence of an interna-
tional armed conflict, even if there is no kinetic action, triggers the applica-
tion of LOAC, particularly the full panoply of the four Geneva Conventions
of 1949. Can the states involved in this international armed conflict there-
fore use force against each other—in compliance with LOAC—even if there
is no event triggering the jus ad bellum authority to use force?
Within the international legal discourse, no consensus exists on this
question. For some, only the jus ad bellum provides the authority to use force,
regardless of any characterization of a situation under LOAC; for others, the
existence of an armed conflict is the necessary authority to use force in the
context of that armed conflict, irrespective of any jus ad bellum analysis. This
subsection focuses primarily on the latter argument and its consequences
and the following subsection addresses the former considerations. Upon first
glance, any consideration of using force that does not first involve the classic
jus ad bellum analysis of Article 2(4)’s prohibition and then the three possible
exceptions of consent, United Nations Security Council authorization or self-
defense is simply inconceivable. But does the existence of an international
armed conflict permit, or even authorize parties to the conflict to engage in
forceful combat action against each other? In essence, is the existence of an
armed conflict another, albeit implicit, exception to the prohibition on the
use of force, or simply a separate but parallel framework for understanding
the employment of force in disputes between states?79
During armed conflict, LOAC provides for the identification of persons
and objects and lawful objects of attack. As a factual matter, apart from
debates regarding legal authority, permission or regulation, states in an
armed conflict use force to accomplish the subjugation of the adversary’s
forces in order to achieve their core strategic objectives through defeat or
capitulation of the adversary. In a situation where one state launches an
armed attack triggering the other state’s right to use force in self-defense, the
question of whether the states (or, at a minimum, the victim state) can use
force to prosecute the armed conflict—at least to the extent allowed accord-
ing to necessity, proportionality, and immediacy, depending on one’s view of
79 See François Bugnion, Just Wars, Wars of Aggression and International Humanitarian
Law, INT’L REV. RED CROSS 3, 8 (2002) (English version) (raising the question of whether
“the rules governing relations between belligerents (jus in bello) [are] autonomous, or is
their application conditioned by the rules prohibiting the recourse to force (jus ad
bellum)?”).
the jus ad bellum–LOAC interplay—is answered easily by the fact that the jus
ad bellum was triggered by the armed attack. From there, analysis of the use
of force proceeds along the regular trajectory of LOAC and, possibly, jus ad
bellum analysis. If the international armed conflict comes into existence with-
out actions meeting the threshold for armed attack, however, it remains
unclear how international law does or should view the use of force, the regu-
lation of that use of force, and, most importantly, the authority or entitle-
ment to use force.
Notwithstanding an extensive debate over the past decade regarding
whether LOAC includes the authority to detain persons during armed con-
flict80—or only regulates such detention with the authority coming from
another source—the debate over whether LOAC authorizes, permits, or
merely regulates the use of deadly force has not necessarily been seized in
the same explicit manner in the international discourse. Rather, there
appear to be two, or perhaps three, views on the question that the propo-
nents of each accept as axiomatic. Given that most situations of international
armed conflict arise after the jus ad bellum trigger of armed attack has
occurred, this issue does not necessarily come to the fore, but in the unusual
situation of an international armed conflict without an armed attack, it
becomes an existential question for both LOAC and the jus ad bellum.
LOAC does not pronounce on the legality of the resort to force and the
application of LOAC does not depend on the rightness or lawfulness of
either state’s resort to force. This separation is fundamental and has been
repeatedly affirmed.81 LOAC does, however, rest on the presumption of
both sides in a conflict “deploy[ing] military means in order to overcome the
enemy or force it into submission, to eradicate the threat it represents or to
force it to change its course of action.”82 The law provides detailed rules for
identifying legitimate targets of attack—whether combatants, members of an
organized armed group, civilians directly participating in hostilities, or mili-
tary objectives83—and principles and rules setting forth the necessary steps
80 See, e.g., Mohammed v. Ministry of Defence [2014] EWHC (QB) 1369 (Eng.); Law-
rence Hill-Cawthorne & Dapo Akande, Does IHL Provide a Legal Basis for Detention in Non-
International Armed Conflicts?, EJIL:TALK! (May 7, 2014), https://www.ejiltalk.org/does-ihl-
provide-a-legal-basis-for-detention-in-non-international-armed-conflicts/; Derek Jinks, Does
IHL Authorize Detention in NIACs?, JUST SEC. (May 5, 2014), https://www.justsecurity.org/
10144/ihl-authorize-detention-niacs/#:~:text=one%20important%20question%20confront
ing%20the,international%20armed%20conflicts%20(NIACs).
81 See supra note 2.
82 2016 COMMENTARY, supra note 39, para. 82; see also YORAM DINSTEIN, THE CONDUCT
OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 6 (2nd ed. 2010) (“A
Belligerent Party is entitled to do whatever is dictated by military necessity in order to win
the war, provided that the act does exceed the bounds of lawfulness set by LOIAC.”).
83 See, e.g., AP I, supra note 33, art. 48 (mandating that parties to a conflict distinguish
between combatants and civilians and only direct attacks at the former, as well as similar
obligations with regard to military objectives and civilian objects); id. art. 51 (prohibiting
deliberate attacks on civilians except when directly participating in hostilities and prohibit-
ing indiscriminate attacks); id. art. 52 (prohibiting deliberate attacks on civilian objects
required in targeting so as to minimize harm to civilians and civilian objects

during hostilities.84 As the International Committee of the Red Cross
explains, these rules “are based on the assumption that the use of force is
inherent to waging war because the ultimate aim of military operations is to
prevail over the enemy’s armed forces.”85 If the use of force is inherent to
waging war, is the existence of an armed conflict sufficient to allow the states
involved to employ force? More specifically, the legal question is whether the
fact that LOAC applies (i.e., because there is an armed conflict) means that
states can use force—without any other considerations.
The three different perspectives on this question produce vastly differ-
ent results in this gap between the thresholds. One view is that only the jus
ad bellum can provide justification or authority to use force, so even if an
international armed conflict exists due to the low threshold for application of
LOAC in a dispute between states, the states involved do not have legal
authority to use force. The ramifications of this view are examined in the
following subsection. A second view is that LOAC provides the authority to
use force once an international armed conflict exists. A third, and perhaps
middle, view is that LOAC permits the use of force once an international
armed conflict exists but does not necessarily authorize it, meaning that the
authority must be found elsewhere, even if not only in the jus ad bellum. This
subsection addresses these latter two views and their ramifications in the gap
between the thresholds.
Although no treaty provision in LOAC specifically states something akin
to “once an international armed conflict exists, states involved in the conflict
can use deadly force against the adversary,” several principles and treaty rules
in LOAC imply exactly this result. First, the principle of military necessity
provides that parties to an armed conflict can use all force necessary to
achieve the submission of the enemy as quickly as possible, as long as not
forbidden by the law.86 Often understood as a principle of authority
allowing for, or justifying, the employment of deadly combat power to defeat
and providing a definition of military objectives to describe objects that can be attacked
during armed conflict).
84 Id. art. 57 (setting forth precautions an attacking party must take before launching
an attack, including the obligation to verify the target is a lawful target, to choose the
means and methods of attack so as to minimize harm to civilians, to refrain from attacks
where the expected civilian harm will be excessive in relation to the anticipated military
advantage gained, and to provide effective advance warning where feasible of attacks that
may endanger the civilian population).
85 GLORIA GAGGIOLI, INT’L COMM. OF THE RED CROSS, THE USE OF FORCE IN ARMED
CONFLICTS: INTERPLAY BETWEEN THE CONDUCT OF HOSTILITIES AND LAW ENFORCEMENT PARA-
DIGMS 6 (2013).
86 DEP’T OF THE ARMY, DEPARTMENT OF THE ARMY FIELD MANUAL 27-10: THE LAW OF
LAND WARFARE 4 (1956); FRANCIS LIEBER, INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF
THE UNITED STATES IN THE FIELD 7 (Washington D.C., Gov’t Printing Off. 1898) (1863);
UNITED KINGDOM MINISTRY OF DEFENCE, THE JOINT SERVICE MANUAL OF THE LAW OF ARMED
CONFLICT: JOINT SERVICE PUBLICATION 383 para. 2.2 (2004).
an enemy, military necessity forms an essential underpinning of LOAC.87 As

a starting point, therefore, once an armed conflict exists, military necessity
allows for the use of force against the adversary.88 Most important for the
instant discussion, the inherent constraint built in through the principle of
military necessity refers to the law of war in particular, ensuring that states
and other parties to armed conflict cannot turn to military necessity as the
justification to jettison critical protections for persons and objects during
armed conflict.89
Beyond military necessity, other key rules of LOAC support the idea that
LOAC either permits or authorizes the use of force in armed conflict. Article
22 of the 1907 Hague Convention and Article 35(1) of Additional Protocol I
provide that “the right of the Parties to the conflict to choose methods or
means of warfare is not unlimited,”90 suggesting that parties to an armed
conflict have a right to employ combat power in an armed conflict and that
right is then subject to constraints on how it is employed. To that end, the
Commentary explains that “when the law of armed conflict does not provide
for any prohibition, the Parties to the conflict are in principle free within the
constraints of customary law and general principles.”91 Such statements can
be interpreted to suggest authority or, at a minimum, permissiveness with
regard to combat force against an adversary in armed conflict. In addition,
the language of Common Article 3, the definition of military objective, and
the rules regarding targeting of persons all implicitly support the idea of
LOAC as authorizing, or at least permitting, the use of force once an armed
conflict exists. Common Article 3 protects persons who are not actively par-
ticipating in hostilities from “violence to life,”92 leading to the reasonable
conclusion that persons who are actively participating in hostilities can be
attacked—that is, that a state or other party to a conflict can attack those who
are participating in hostilities. Once an armed conflict exists, LOAC pro-
87 See Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian

Law: Preserving the Delicate Balance, 50 VA. J. INT’L L. 795, 796 (2010).
88 See, e.g., The Hostage Case, supra note 2, at 1230; CORN ET AL., supra note 52, at 116
(“[M]ilitary necessity supplies the authority to employ the means necessary to bring an
enemy to submission, including the application of deadly combat power, and to detain
captured enemy personnel until the end of hostilities.”).
89 See, e.g., The Hostage Case, supra note 2, at 1253 (“Military necessity permits a bellig-
erent, subject to the laws of war, to apply any amount and kind of force to compel the com-
plete submission of the enemy . . . .” (emphasis added)).
90 AP I, supra note 33, art. 35, para. 1. Article 22 of the 1907 Hague Convention states
that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.”
Convention IV Respecting the Laws and Customs of War on Land and Its Annex, Regula-
tions Respecting the Laws and Customs of War on Land art. 22, Oct. 18, 1907, 36 Stat.
2277.
91 CLAUDE PILLOUD ET AL., INT’L COMM. OF THE RED CROSS, COMMENTARY ON THE ADDI-
TIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 393
(Yves Sandoz, Christophe Swinarski & Bruno Zimmerman eds., 1987) [hereinafter AP I
COMMENTARY].
92 GC I, supra note 33, art. 3; GC II, supra note 33, art. 3; GC III, supra note 33, art. 3;
GC IV, supra note 33, art. 3.
vides that all members of the enemy armed forces are presumptively liable to
attack and “can participate directly in hostilities, i.e., [can] attack and be
attacked.”93 The definition of military objective in Article 52(2) of Addi-
tional Protocol I provides further support, affirming that objects qualifying as
military objectives can be attacked,94 again implying a permission or author-
ity to use force when in armed conflict.95
As a result, under this view, once an armed conflict exists, the jus ad
bellum is no longer the determining factor in assessing the right to use force.
Rather, “[t]he individual military action undertaken within the framework of
the conflict can only be judged in the light of the ius in bello” and “the only
question to be asked under the rules of the ius ad bellum, the prohibition of
the use of force, is: who started the whole conflict?”96 Similarly, an ongoing
armed conflict, even if marked by long periods of quiet, provides the neces-
sary justification for uses of force by one state in that conflict against the
other, without the need for reference to the jus ad bellum.97
The related view, that LOAC permits the use of force during armed con-
flict, produces a similar result. For proponents of this view, the authority to
use force during armed conflict does not necessarily derive only from the jus
ad bellum but rests in the sovereignty of states or other related sources. His-
torically, states enjoyed the right to go to war as a fundamental incident of
sovereignty. In essence, “prior to 1919 there were no restrictions upon the
freedom of states to go to war” and “every state had the unfettered right to go
to war.”98 To the extent that sovereignty or other inherent rights of states
93 AP I COMMENTARY, supra note 91, at 515.

94 AP I, supra note 33, art. 52, para. 2.
95 See Geoffrey S. Corn, Self-Defense Targeting: Blurring the Line Between the Jus ad Bellum
and the Jus in Bello, 88 INT’L L. STUD. 57, 68 (2012).
96 Michael Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EUR. J. INT’L L. 227,
234–35 (2003) (“In principle, an individual military action undertaken within the frame-
work of an armed conflict cannot be singled out to be judged according to the yardstick of
the ius ad bellum.”).
97 See DINSTEIN, supra note 11, at 186 (explaining that “[w]hen Israeli aircraft raided
an Iraqi nuclear reactor (under construction) in 1981, the legal justification of the act
should have rested on the state of war which characterized the relations between the two
countries” and that if no such conflict existed, the act “would have been prohibited, since
(when examined in itself and out of the context of an on-going war) it did not qualify as a
legitimate act of self-defence consonant with Article 51”); Pnina Sharvit Baruch, Operation
Protective Edge: Legality and Legitimacy, INSS (July 22, 2014), https://www.inss.org.il/publica
tion/operation-protective-edge-legality-and-legitimacy/ (noting that because Operation
Protective Edge was “part of an existing protracted armed conflict . . . . Israel [did] not
need to rely on the right to self-defense, which is relevant only at the outset of an armed
conflict”); Amichai Cohen & Elena Chachko, The Israel-Iran-Syria Clash and the Law on Use of
Force, LAWFARE (Feb. 14, 2018), https://www.lawfareblog.com/israel-iran-syria-clash-and-
law-use-force/ (noting that, if there is an ongoing armed conflict between Israel and Syria,
“then the legality of Israel’s use of force in Syria would be assessed under the law of armed
conflict, not the law governing the resort to force in the U.N. Charter”).
98 Elihu Lauterpacht, The Legal Irrelevance of the “State of War,” 62 PROC. AM. SOC’Y INT’L
L. 58, 61 (1968).
provide the authority to use force in the context of armed conflict, LOAC
permits the exercise of that authority once an armed conflict exists. “Thus,
each side in a conflict might lawfully kill the other’s soldiers in open combat,
not because international law gave it a right to kill but because international
law left it alone to kill or not according to its ability and inclination.”99 If
valid, this view also results in the use of force during armed conflict apart
from and without regulation by the jus ad bellum.
This first consequence of the gap between the armed attack threshold
and the international armed conflict threshold therefore is stark and dra-
matic: if the existence of an international armed conflict and the concomi-
tant application of LOAC is sufficient authority for the use of force during
that conflict, then the states that are party to that armed conflict can use
force without satisfying the jus ad bellum trigger of an armed attack or immi-
nent armed attack. Given that the jus ad bellum and the United Nations Char-
ter framework seek to constrain and regulate the resort to force—for the
fundamental purpose of ending “the scourge of war”100—a situation in
which states can lawfully use force without needing to satisfy the jus ad bellum
is a significant chink in the armor of the international system against the
escalation of violence and conflict. If the purpose of the United Nations
Charter framework is to create the only legal infrastructure for considering,
authorizing, or justifying the use of force by one state against or in the terri-
tory of another state—in essence, a closed universe of law on the use of
force—then this gap creates a parallel universe in which the jus ad bellum
criteria and requirements would not dominate or control the analysis
because the existence of an international armed conflict would create an off-
ramp out of the jus ad bellum.
Consider, for example, a situation in which one state sends a few of its
soldiers across the border unarmed into the neighboring state, knowing that
they will be captured and detained by that neighboring state’s military. In
accordance with the low threshold for the application of the law of interna-
tional armed conflict, that capture and detention of a few soldiers (indeed,
even one soldier) creates a situation of international armed conflict to which
the law of armed conflict applies.101 The capture and detention of one or a
few soldiers does not meet the threshold for armed attack and thus would
not justify the use of force in self-defense under the jus ad bellum.102 How-
ever, if the existence of an international armed conflict and the application
of LOAC therefore authorizes, or even permits, the use of force to achieve
strategic objectives in armed conflict, then either state would then be allowed
99 Greenwood, supra note 3, at 229. For many, although this sovereign authority
exists, it is regulated solely and entirely by the jus ad bellum, thus removing the possibility of
this middle view of permissiveness.
101 2016 COMMENTARY, supra note 39, para. 236.
102 The capture and detention could constitute a use of force, as could the sending of
one or a few soldiers across the border, even unarmed, but a use of force alone does not
trigger the right to use force in self-defense.
to use force in the course of the international armed conflict. In the com-
monly referenced examples of capture and detention as the sole manifesta-
tion of an international armed conflict and the application of LOAC—such
as the detention of fifteen British sailors by Iran in 2007—the states involved
either do not reference LOAC or reference it solely for the purpose of ensur-
ing prisoner-of-war treatment in accordance with the Third Geneva Conven-
tion.103 However, this gap raises the possibility of a state making, in effect, an
“end run” around the jus ad bellum by creating an international armed con-
flict with another state in order to thus trigger the authority to use force
under LOAC without the risk of violating the jus ad bellum or any other simi-
lar concerns. Sending one’s soldiers to “mistakenly” cross the border, know-
ing they will be captured and detained and therefore trigger the existence of
an international armed conflict, would be a potential means for a state to
effectively create the authority to use force—a result that would dramatically
endanger the jus ad bellum and its core purpose of preventing the resort to
force and the escalation of violence.
2. An International Armed Conflict Without Authority to Use Force

The existence of an international armed conflict in the absence of an
armed attack or other justification to use force under the jus ad bellum
presents a diametrically opposite challenge as well. As above, consider the
earlier examples where a low-level engagement between the armed forces of
two states triggers the existence of an international armed conflict and the
application of LOAC but does not rise to the level of an armed attack. How-
ever, this subsection flips the analysis and considers the argument that LOAC
in and of itself does not provide any authority for the use of force and what
that means for the gap between the armed attack threshold and the thresh-
old for international armed conflict. According to this view, only the jus ad
bellum can provide justification, and therefore the authority, to use force,
regardless of the existence of an armed conflict.
The starting point for this view is that although states traditionally
enjoyed the sovereign right to resort to war, that right is now overtaken by
the rules and framework of the jus ad bellum. Thus, while
the ius in bello . . . leaves states free to fight as they please within the limits
which it sets . . . [t]he legal vacuum which once existed within the limits set
by the ius in bello is now filled by the ius ad bellum which determines whether
any action involving the use of force is lawful or not in the eyes of interna-
tional law.104
With the entry into force of the United Nations Charter, the starting point
for any discussion of the use of force must therefore be Article 2(4) and the
prohibition of the use of force. Article 2(4) does not include any reference
to armed conflict or to LOAC, and therefore does not exempt conflict but
covers all situations in which a state might use force against the sovereignty,
103 See supra notes 38–40 and accompanying text.

territorial integrity, or political independence of another state. Further-

more, the United Nations Charter then provides the only exceptions to this
prohibition: authorization by the United Nations Security Council under
Article 42 or self-defense in accordance with Article 51.105 Given that the
goal of the jus ad bellum, as enshrined in the United Nations Charter, is to
end the resort to war as a tool of international relations, any other interpreta-
tion of the scope of the prohibition on the use of force or toleration of other
exceptions or justifications to use force would be difficult to reconcile.106 As
a result, the existence of an international armed conflict alone cannot, in
and of itself, provide the justification for the use of force by one state against
another.
Beyond this basic presentation of the structure of the jus ad bellum, this
approach to the interplay between and the authorities triggered by the two
bodies of law further rests on two primary arguments: first, a foundational
understanding of LOAC as limited to regulating the use of force during
armed conflict, and second, the purpose of the jus ad bellum as the constraint
on the resort to force and a brake on the escalation of violence. In contrast
to the arguments above that LOAC authorizes the use of force once an
armed conflict exists, many argue that LOAC is solely a regulatory body of
law, designed to set rules for warfare—for how parties can fight and how they
must treat individuals, groups, and objects during an armed conflict.
Through such rules, LOAC thus fulfills its core purpose of minimizing harm
to and protecting civilians during war. As a result, under this approach it
“cannot be seen as providing rights to States, but rather as setting forth objec-
tive rules of behaviour binding them for the benefit of individuals affected by
war.”107 In effect, international law wholly separates the question of “can
force be used” from the question of “how force must be used.” LOAC does
not pronounce on the decision to use force, including when, if, and by
whom, but rather merely regulates how any party to an armed conflict uses
force, from targeting of persons and objects to protection of persons during
military operations and when detained. On this view, issues of the permissi-
bility of using force or the authority to use force do not arise at all under
LOAC; such questions are reserved solely for the jus ad bellum.108
105 U.N. Charter, arts. 42, 51. Consent is regularly understood to be a third exception
to the prohibition on the use of force; however, it would not be relevant in considering an
armed conflict between two states. ILA 2018 REPORT, supra note 5, at 18; INT’L. & OPERA-
TIONAL L. DEP’T, supra note 5, at 31.
106 Bugnion, supra note 79, at 8 (noting that the parties to the Kellogg-Briand Pact
declared that “they condemned ‘recourse to war for the solution of international controversies’
and renounced it ‘as an instrument of national policy’”) (citing Renunciation of War as an
Instrument of National Policy art. 1, Aug. 27, 1928, 46 Stat. 2343).
107 Marco Sassòli, Ius ad Bellum and Ius in Bello—The Separation Between the Legality of
the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated?, in
INTERNATIONAL LAW AND ARMED CONFLICT: EXPLORING THE FAULTLINES 241, 245 (Michael
N. Schmitt & Jelena Pejic eds., 2007).
108 Eliav Lieblich, On the Continuous and Concurrent Application of ad Bellum and in Bello
Proportionality, in NECESSITY AND PROPORTIONALITY IN INTERNATIONAL PEACE AND SECURITY
Most proponents of this view assume, indeed insist, that jus ad bellum
always comes before LOAC—that is, any analysis of a state’s conduct that
involves force goes through a two-part process: Was the resort to force lawful
under the jus ad bellum, and then, assuming that an armed conflict exists, did
the states in question use force in accordance with the rules of LOAC?
Indeed, the idea that the jus ad bellum “will always operate before the
[LOAC] comes into play”109 is foundational to the ordinary way in which
lawyers analyze and advise, students are instructed, and courts adjudicate on
questions relating to the use of force. The idea that LOAC could be trig-
gered in the absence of any jus ad bellum trigger or assessment is rarely, if
ever, discussed.110 For some, this omission stems from the simple fact that
any action taken under LOAC must “nonetheless comply with the jus ad bel-
lum necessity and proportionality criteria,”111 so consideration of the use of
force in a LOAC-only vacuum simply does not occur. In effect, because the
first question asked whenever a state uses force is the jus ad bellum question,
the issue raised here—what happens when an international armed conflict is
triggered by acts not rising to the level of an armed attack—simply does not
arise.
The belief that LOAC is purely regulatory further rests on an under-
standing of jus ad bellum having a broader reach or role than the question of
legality at the moment of the initial decision to use force. Thus, the more
robust presentation of this view mandates that jus ad bellum “applies not only
to the act of commencing hostilities [i.e., the use of force in self-defense to
repel or deter an armed attack] but also to each act involving the use of force
which occurs during the course of hostilities.”112 The nature and extent to
which the jus ad bellum rules and principles of self-defense apply to acts and
operations once an armed conflict is underway vary depending on the partic-
ular presentation of this approach. At a minimum, most argue that each act
LAW (Claus Kreb & Robert Lawless eds., forthcoming Oct. 2020) (manuscript at 15),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3284411 (noting that LOAC “does
not grant justification to resort to force, which can only be found in jus ad bellum—rather,
it only identifies situations of armed conflict”).
110 For one example, see James A. Green & Christopher P.M. Waters, Military Targeting
in the Context of Self-Defence Actions, 84 NORDIC J. INT’L L. 3, 6 (2015), addressing questions of
targeting in self-defense but assuming that “[e]ven if one accepts that the jus in bello can be
triggered where the jus ad bellum is not, such a scenario would be unproblematic in rela-
tion to the military targeting requirement because the absolute IHL prohibition on civilian
targeting would apply.”
111 Id. at 25 (citing Christopher Greenwood, International Humanitarian Law (Laws of
War), in THE CENTENNIAL OF THE FIRST INTERNATIONAL PEACE CONFERENCE: REPORTS & CON-
CLUSIONS 161, 184 (Frits Kalshoven ed., 2000)) (“[T]he fact that a particular use of force
does not contravene the laws of war no longer suffices to make it lawful if it fails to meet
the criteria of being necessary and proportionate for the achievement of the goals of self-
defence, the discharge of a Security Council mandate, the exercise of an authority granted
by the Security Council or, perhaps, some other goal for which the use of force may be
permitted by international law.”).
during the conflict must meet the criteria of necessity and proportionality
that are essential to any exercise of self-defense.113 Others go a step farther,
suggesting that the armed attack trigger itself continues to apply throughout
the conflict, such that all force used must satisfy the self-defense rules in Arti-
cle 51 of the United Nations Charter.114 Regardless of the extent of this
approach to the concurrent application of the jus ad bellum once an armed
conflict is underway, the effect is that LOAC itself cannot be the source of
any authority to use force even during armed conflict, because the jus ad
bellum continues to play that role even after a conflict is triggered.
Second, the very purpose of the jus ad bellum reinforces that it can be the
only source of authority for the use of force and that LOAC cannot be an
independent source of authority for the use of force. As detailed above, the
goal of pre–United Nations efforts, including the League of Nations, the
Locarno Treaty, and the Kellogg-Briand Pact, was to outlaw recourse to war,
and the drafters of the United Nations Charter formalized and solidified that
purpose, carrying out their “clear interest in making it more difficult for
countries to go to war.”115 More specifically, it is through the high threshold
for armed attack that the jus ad bellum seeks to prevent escalation of conflict.
The purpose of the high threshold for armed attack is to encourage and
require states to rely on peaceful tools for resolving lower level or less urgent
disputes. Thus,
the prevailing view [is] that the danger of escalation which is inherent in
most forms of transboundary uses of force justifies the rule that States deal
with small-scale uses of force against them by using force on their own terri-
tory or by using non-violent means, and thus in a way which does not involve
the use of cross-border force.116
With this core purpose, accepting that LOAC independently authorizes the
use of force once an international armed conflict exists would fundamentally
undermine the jus ad bellum and destabilize the international legal architec-
ture designed to reduce and promote stability and order.
However, consider the same example of an international armed conflict
that exists as a result of one state detaining a small number of military forces
of another state. According to this view of LOAC as purely regulatory, LOAC
applies because of the existence of the international armed conflict, but in
the absence of an armed attack or other jus ad bellum justification, neither
state has a right to use force against the other. The detaining state is obli-
gated under LOAC to provide prisoner-of-war protections and treatment to
the soldiers it has detained, in accordance with the Third Geneva Conven-
tion, but the soldiers’ state is limited to nonforceful means to secure their
release, notwithstanding the existence of an armed conflict between the two
states. At an operational level, this result is troubling and, when taken to a
113 WATKIN, supra note 71, at 56–63.

115 Zweifach, supra note 31, at 393.
116 Nolte & Randelzhofer, supra note 8, at 1402.
more extreme level, appears absurd—the detaining state can hold those
soldiers until the end of the conflict, but because the detention is the only
manifestation of the conflict, the result is a self-fulfilling prophecy that the
detaining state can simply hold those soldiers as long as it chooses. Perhaps
the soldiers’ state manages to take a few of the detaining state’s military per-
sonnel into custody, treating them as prisoners of war as well, and now the
result is an international armed conflict in which each state holds soldiers
from the other state and neither has the authority to use any measure of
force to bring the conflict to an end and secure the release of its soldiers.
Although this hypothetical is unusual, it is certainly impossible to envision
that states would consider this an acceptable legal conclusion.
This result also runs counter to the logic of LOAC, namely the principle
of military necessity, which allows the use of all force necessary to achieve the
complete submission of the enemy as quickly as possible, as long as that force
is not prohibited by the law. An international armed conflict exists when
there is a dispute between states leading to the intervention of their armed
forces. In this example, the capture and detention of the soldiers is the dis-
pute between the two states—and yet the soldiers’ state is left with no means
to resolve that dispute beyond the tools it would have in the absence of the
armed conflict. Even if this is the correct legal result based on a view that
LOAC is purely regulatory and jus ad bellum is the entire universe of use of
force options, the resulting operational disconnect would lead states to sim-
ply disregard the law as operationally illogical if the alternative was to leave
soldiers detained indefinitely by another state. Disregard for the law under-
mines the legal framework overall and poses substantial risks of a slippery
slope regarding other legal rules and principles.
III. WHERE TO GO FROM HERE: SHOULD THE GAP BE RECONCILED?

Law is an essential tool for understanding, regulating, and adjudicating
relationships between and among individuals, groups, states, and more. A
common—and perhaps the natural—instinct when law does not seem to
address a given situation, relationship, or activity in a sufficient manner is to
identify that gap in coverage and seek to fill it, or at least minimize the vac-
uum or its effects. On first glance, jus ad bellum and LOAC, the two legal
regimes at issue in the instant discussion, would seem to present this urge on
an almost existential level because both bodies of law apply to and provide
the fundamental rules for the most consequential behavior for humankind
and the international community: war and the use of force in a collective
manner. Indeed, the Fourth Geneva Convention itself was a direct response
to gaps in the law with regard to protection of civilians, to ensure that the
shortcomings in legal protection exposed during World War II would be cor-
rected to the extent possible in an effort to define “the essential rules for that
protection to which every human being is entitled.”117 The provisions
117 INT’L COMM. OF THE RED CROSS, COMMENTARY ON THE GENEVA CONVENTION (IV)
RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 9 (Jean S. Pictet ed.,
prohibiting and regulating the resort to force in the United Nations Charter
were a direct response to, and attempt to eliminate, the weaknesses in the
international system regarding the resort to war.
Gaps in the international framework applicable to the use of force there-
fore may seem untenable; after all, these legal regimes govern activity that
has the starkest consequences for humankind—life and death. Given the
disconnect between the threshold for international armed conflict and the
threshold for armed attack highlighted in this discussion, as well as the
potential ramifications of that disconnect for both the application and the
integrity of the relevant legal regimes, a likely response would be to identify
some ways to close or even eliminate the gap. However, as problematic as a
gap between the armed attack threshold and the international armed conflict
threshold may be, any call to close or minimize that gap must first explore
whether that possible cure is worse than the disease—that is, whether the
risks or negative outcomes from aligning the two thresholds are more damag-
ing than leaving the gap as it stands.
A. Aligning the Thresholds
Consider what is required to align or match the thresholds for interna-

tional armed conflict and armed attack: (1) raise the threshold for interna-
tional armed conflict to meet the high threshold for armed attack, or (2)
lower the threshold for armed attack to meet the low threshold for interna-
tional armed conflict. One could also possibly envision adjusting both
thresholds to find some sort of middle ground. In any of these possible
options, the alteration in the threshold would not only be for the particular
circumstances raised in the instant discussion where the thresholds collide
but would then apply in all circumstances. As a result, it is critical to examine
what such a change in the thresholds would mean for the law more generally.
The first option requires a significantly higher threshold for interna-
tional armed conflict in order to trigger the existence of a conflict and the
application of LOAC. Such a higher threshold could include a greater
degree of violence, a more protracted engagement between the armed forces
of the two states involved, or other indicia pointing to the existence of a
conflict, such as pronouncements by one or both states to that effect or state-
ments of concern by the United Nations Security Council, for example. Rais-
ing the threshold for international armed conflict to match the armed attack
threshold means that an international armed conflict would only exist when
one state launches an armed attack against another state. Acts or activities
1958) [hereinafter GC IV COMMENTARY] (quoting Draft Resolution on the Revision of the Con-
vention Relative to the Treatment of Prisoners of War, in SEVENTEENTH INTERNATIONAL RED
CROSS CONFERENCE 74 (1948)). As another example, in discussing the status of persons
under LOAC, the Commentary later affirms that “[t]here is no intermediate status; nobody
in enemy hands can be outside the law;” i.e., there can be no gap in status categorizations
because a gap would leave individuals without protection. Id. at 51.
that do not constitute the “most grave forms of the use of force”118 would
therefore, under this altered threshold, be insufficient to trigger an interna-
tional armed conflict.
At present, some argue that the threshold for international armed con-
flict is higher and demands some level of intensity. Most well known, for
example, is the International Law Association’s 2010 report, which asserts
that all armed conflicts necessarily involve “fighting of some intensity.”119 As
a result, “border incidents” or “skirmishes” between the armed forces of two
states would not constitute an international armed conflict because such
events would not reach the requisite level of intensity demanded under this
argument. Proponents of this approach also look to the reluctance of states
to affirm the existence of an international armed conflict, arguing that “state
practice suggests that the threshold at which a violent exchange between
states is regarded as amounting to an armed conflict rather than merely a
series of armed ‘incidents’ may be relatively high.”120 In theory, although
this asserted standard for international armed conflict remains unclear, it
would seem to narrow (or potentially even eliminate) the gap between the
threshold for international armed conflict and that for armed attack.
However, this “some intensity” approach is decidedly a minority view.
Indeed, it remains an outlier perspective precisely for reasons that highlight
the significant risks of raising the threshold of international armed conflict to
match the meaning of armed conflict. The law of international armed con-
flict exists to protect persons and regulate the conduct of hostilities during
armed conflict. At the time of the drafting of the Geneva Conventions in
1949, the goal was to maximize humanitarian protections and the drafters
did not evince any concerns about overly extensive application of the law.
Rather, any “potential for such over-broad application was simply perceived
as a benefit, because it could only result in enhanced humanitarian protec-
tions for war victims.”121
118 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judg-
ment, 1986 I.C.J. 14, ¶ 191 (June 27).
119 ILA REPORT 2010, supra note 48, at 2.
120 LOUISE ARIMATSU & MOHBUBA CHOUDHURY, THE LEGAL CLASSIFICATION OF THE
ARMED CONFLICTS IN SYRIA, YEMEN AND LIBYA 3 (Chatham House ed., 2014); see also ILA
Report 2010, supra note 48, at 13–14; Agnes Callamard, The Targeted Killing of General
Soleimani: Its Lawfulness and Why It Matters, JUST SEC. (Jan. 8, 2020), https://www.justsecur
ity.org/67949/the-targeted-killing-of-general-soleimani-its-lawfulness-and-why-it-matters/
(“[N]o State, expert commentator or expert body, such as the International Committee of
the Red Cross, had identified the escalation of the conflict between the U.S. and Iran as
amounting to an international armed conflict.”). But see GEOFFREY S. CORN ET AL., THE
LAW OF ARMED CONFLICT: AN OPERATIONAL APPROACH 106 (2nd ed. 2019) (“[W]hatever
motivated the inclusion of the intensity element, the practice of states seems to contradict
this effort to qualify the meaning of armed conflict. Where inter-state hostilities are con-
cerned, this practice suggests that an intensity threshold is not a legitimate or widely
accepted requisite element for assessing the existence of armed conflict.”).
121 CORN ET AL., supra note 52, at 76.
Altering the threshold inherently removes situations, and therefore the

individuals and populations caught up in those situations, from the essential
protective framework LOAC imposes on such situations. One reason the def-
inition of non-international armed conflict—conflict between a state and an
organized armed group or between two or more such groups—rests funda-
mentally on a certain level of intensity of violence is that the state’s sovereign
right and obligation to maintain public order and security both demands and
provides opportunity for the state to quell unrest and address low-level vio-
lence through its existing and legally regulated law enforcement apparatus
and tools.122 In contrast, in international armed conflicts, whether low level
or marked by more violence, domestic law is not a viable mechanism to
ensure the protection of individuals or other essential legal needs. Thus,
“[i]f minor clashes between States are not considered to be an international
armed conflict or if the very beginning of hostilities is not regulated by
humanitarian law, one would have to identify an alternative in terms of the
applicable law.”123 In the simplest example, an international armed conflict
that begins with an exchange of fire would have one legal framework—as of
now, unidentified—applicable to the first volley and a second—LOAC—
applicable to the return volley of fire.
Beyond that disconnect, the lack of any law that appropriately governs
the first action is enormously consequential and damaging. Neither the
domestic law of one state nor international human rights law effectively man-
dates the conduct, obligations, privileges, or protections of the opposing
state in such an initial clash.124 Raising the trigger for international armed
conflict to match the high threshold for armed attack would only exacerbate
this legal vacuum, leaving still more actions and interactions in a space with-
out law appropriately designed to ensure the necessary protections and
“undermining the original purpose of the Geneva Conventions.”125 In
effect, attempts to narrow the gap between armed attack and international
armed conflict only serve to create a much greater and more problematic
gap—a gap in which individuals have no law to grasp in seeking protection
from the actions of a state adverse to their own, a gap in which states have no
authority to take necessary action to defend their own population and sover-
eign interests, and a gap in which states engage in armed and even violent
interactions and the international community has no legal framework to
assess, advocate, critique, and impose political or legal accountability. Rais-
ing the threshold for international armed conflict therefore poses too great a
risk to the very fabric of LOAC.
The second, and opposite, possible means to reconcile the gap between
the international armed conflict threshold and the armed attack definition
122 Laurie R. Blank & Benjamin R. Farley, Identifying the Start of Conflict: Conflict Recogni-
tion, Operational Realities and Accountability in the Post-9/11 World, 36 MICH. J. INT’L L. 467,
484 (2015).
123 2016 Commentary, supra note 39, para. 243.
124 Akande, supra note 50, at 41; Lubell, supra note 49, at 20.
125 CORN ET AL., supra note 52, at 77.
would be to lower the threshold for armed attack. In considering this option,
a reminder of what the armed attack threshold means is essential: the exis-
tence of an armed attack provides legal justification for the victim state to use
force, an action otherwise prohibited under international law. Adjusting the
armed attack threshold therefore means fundamentally reconsidering the
seventy-five-year-plus consensus regarding the acceptable exceptions to one
of the most foundational ordering principles of the international system.
“[A]ware that an expansive right of self-defense—permitting states to launch
a ‘defensive’ war in response to an arms buildup by a rival state, for
instance—could undo the charter’s prohibition on the use of force,” the
drafters of the United Nations Charter “deliberately wrote it narrowly.”126
Lowering the threshold for an armed attack would expand the aperture for
the use of force in self-defense by broadening the circumstances in which a
state could justify such resort to force. Justifications such as Turkey’s claim of
responding to “the threat of terrorism”127 as the basis for its January 2018
operation against Kurdish forces in the Afrin region of Syria, according to its
Article 51 letter to the United Nations, raise concerns about a “huge poten-
tial for escalation of violence”128 if such a low threshold for self-defense were
adopted or accepted.
A lower threshold for armed attack also fundamentally alters the manner
in which the existing international legal and collective security apparatus
encourages and requires the peaceful settlement of disputes. Article 33 of
the United Nations Charter requires that states in a dispute that “is likely to
endanger the maintenance of international peace and security . . . shall, first
of all, seek a solution by . . . peaceful means.”129 The rules regarding the use
of force and self-defense further reinforce this structural preference for
peaceful settlement of disputes: the use of force is prohibited as the main
ordering principle and the one unilateral exception to that prohibition—i.e.,
self-defense—is limited in scope. In this manner, the “armed-attack thresh-
old effectively narrows the right to use defensive force” and “requires states to
respond to low-level violence either with non-forcible measures or by going
through the Security Council.”130 Without a high threshold for armed
attack, “inter-state conflict could arise out of minor cross-border incidents or
other minor uses of force.”131 Similarly, the requirement that an armed
126 Oona Hathaway, Turkey Is Violating International Law. It Took Lessons from the U.S.,
WASH. POST (Oct. 22, 2019), https://www.washingtonpost.com/outlook/2019/10/22/tur-
key-is-violating-international-law-it-took-lessons-us/.
127 Chargé d’affaires a.i. of the Permanent Mission of Turkey, Identical Letters dated
20 January 2018 from the Chargé d’affaires a.i. of the Permanent Mission of Turkey to the
United Nations addressed to the Secretary-General and the President of the Security Coun-
cil, U.N. Doc. S/2018/53 (Jan. 22, 2018).
128 Anne Peters, The Turkish Operation in Afrin (Syria) and the Silence of the Lambs,
EJIL:TALK! (Jan. 30, 2018), https://www.ejiltalk.org/the-turkish-operation-in-afrin-syria-
and-the-silence-of-the-lambs/.
129 U.N. Charter art. 33, ¶ 1.
130 Hakimi & Cogan, supra note 13, at 270.
131 CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 157 (4th ed. 2018).
attack encompass only the most grave uses of force helps to limit the involve-
ment of third states in disputes or minor incidents by ensuring that only a
sufficiently grave use of force can constitute an armed attack justifying collec-
tive self-defense.132
One, if not the, central goal of the United Nations is to end the “scourge
of war” by reducing the resort to force and the escalation of disputes between
states into situations of violence and conflict. The concept of and threshold
for armed attack is an important pillar in the infrastructure created and
maintained to pursue and achieve this goal—indeed, it forms an essential
bulwark against the unfettered resort to force and to the use of war as a first
tool for the settlement of disputes. Weakening this critical support beam in
the core structure of the international legal architecture would irrevocably
undermine the ability of the United Nations and its legal framework to
achieve this fundamental goal. As a result, lowering the threshold for armed
attack in an effort to align it with the threshold for international armed con-
flict is enormously problematic and, by nearly any measure, a nonstarter.
B. Living with the Gap
The severe downsides of altering either threshold—raising the threshold

for international armed conflict or lowering the threshold for armed
attack—suggest that perhaps the differences between the two thresholds are
simply irreconcilable. A change to either threshold presents an existential
risk to the ability of that legal regime to fulfill its core purpose, whether to
ensure protection for persons during armed conflict or to minimize the
resort to war and the escalation of disputes between states into violence. In
comparison, the desire for and benefits of uniformity and complete legal
coverage are important, but the failure to fulfill those goals does not present
the same threat to the foundational purposes of the law. Living with the gap
can therefore be considered the more reasonable, in fact only, solution to
the chasm between the meaning of armed attack and the notion of interna-
tional armed conflict.
States make international law and, as a result, existing treaty and custom-
ary law reflects where and how states have aligned their interests and agreed
upon the applicable law. Although LOAC and the jus ad bellum both apply to
situations involving the use of force and have developed in parallel and even
sometimes in tandem, they exist and have developed for different reasons
and to accomplish different goals. Within each body of law, states have nego-
tiated and agreed upon certain rules based on their view of how to achieve
those goals. The existence of a gap may, like other “[u]nclear rules[,] . . .
reflect States’ judgment that more precise or logically consistent rules would
132 Id. at 156 (“If there was no armed attack, there could be no collective self-
defence.”); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v.
U.S.), Judgment, 1986 I.C.J. 14, 543 (June 27) (Jennings, J., dissenting) (“It is of course a
fact that collective self-defence is a concept that lends itself to abuse. One must therefore
sympathize with the anxiety of the Court to define it in terms of some strictness.”).
prove legally unmanageable.”133 Seeking to fill that gap through interpreta-

tion may offer the chance to reduce uncertainty and ambiguity, but in the
process can unravel the very law states made and consented to through care-
fully constructed consensus and negotiation.
The ordinary practice of states also suggests that accepting and navigat-
ing the gap is more desirable than attempting to reconcile the difference
between the thresholds. In most situations where an international armed
conflict is triggered at the low end of the threshold, perhaps because of
detention of military personnel or other low-level acts, states are highly reluc-
tant to outwardly identify the situation as an armed conflict and instead seek
to deescalate the situation. Even where military or civilian leaders demand
compliance with the basic protections set forth in the Geneva Conventions,
such demands reference LOAC as the applicable law or the status of detained
persons as prisoners of war but stay far short of any statement regarding an
armed conflict. Thus, for example, Prime Minister Tony Blair alluded to the
Third Geneva Convention’s prohibition against subjecting prisoners of war
to public curiosity after Iranian authorities broadcast videos of the detained
British sailors on television in 2007,134 and President Ronald Reagan
demanded that Syria treat Lieutenant Bobby Goodman as a prisoner of war
after Syrian forces shot down his plane and captured him,135 but in neither
of those cases did the countries involved declare war, escalate the situation
with forceful measures, or otherwise act as if they were in fact in an active
armed conflict.
The pragmatic effect of the gap between the trigger for international
armed conflict and the threshold for armed attack may therefore be mini-
mized because it represents the space in which the international legal frame-
work pushes states to settle disputes through nonforceful means. In effect,
both LOAC and the jus ad bellum are performing in accordance with their
respective purposes: LOAC provides protection for the individuals left vul-
nerable by the dispute and the jus ad bellum helps to restrain the states
involved from escalating the situation. Even if one takes the view that LOAC
authorizes the use of force once an armed conflict exists regardless of the
lack of an armed attack, the general emphasis on peaceful settlement of dis-
putes strongly encourages resort to nonforceful measures in exactly this
space formed by the gap between the two thresholds. Furthermore, and per-
haps most important, apart from the contributions the legal norms and prin-
ciples offer in such situations, the general reluctance of most states to get
involved in an actual conflict with another state—that is, one with active vio-
lence—helps to mitigate the situation in this gap rather than exacerbate it.
In the final analysis, a focus on and adherence to the object and purpose
of the law leads to a nearly unavoidable conclusion that not only are the two
133 Sean Watts, Humanitarian Logic and the Law of Siege: A Study of the Oxford Guidance
on Relief Actions, 95 INT’L L. STUD. 1, 45 (2019).
134 Iran Calls on Britain to Admit ‘Mistake,’ IRISH EXAM’R (Mar. 29, 2007), https://
www.irishexaminer.com/world/arid-30304140.html.
135 See CORN ET AL., supra note 52, at 74–75.
thresholds irreconcilable, but that the gap between them may be a part of the
individual strength of each threshold. Examination of the gap also rein-
forces the importance of not merely knowing the law but of understanding
why it exists, what it seeks to achieve and how, and the risks of eroding its
foundations even for what appears to be a productive reason elsewhere. The
difference between these two central triggering definitions offers explicit
confirmation of the different goals of the two legal regimes overall. If alter-
ing the thresholds means revising the fundamental object and purpose of
one or both bodies of law, then surely retaining the gap in order to affirm
and sustain the core purposes of both legal frameworks is the wiser choice.

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Notre Dame Law Review

Volume 96 Issue 1 Article 5

Irreconcilable Differences: The Thresholds for Armed Attack and

Follow this and additional works at: https://scholarship.law.nd.edu/ndlr

IRRECONCILABLE DIFFERENCES: THE

250 notre dame law review [vol. 96:1

2020] armed attack and international armed conflict 251

I. ARMED ATTACK AND INTERNATIONAL ARMED CONFLICT:

A. The Meaning and Purpose of Armed Attack

252 notre dame law review [vol. 96:1

inconsistent with the Purposes of the United Nations.”4 International law

4 U.N. Charter art. 2, ¶ 4.

2020] armed attack and international armed conflict 253

254 notre dame law review [vol. 96:1

trea-Ethiopia Claims Commission determined that “geographically limited

2020] armed attack and international armed conflict 255

256 notre dame law review [vol. 96:1

common interest.”27 As a result, a higher threshold for armed attack fits

27 U.N. Charter pmbl.

2020] armed attack and international armed conflict 257

By establishing armed attack as a subset of the use of force more broadly—

B. The Threshold for International Armed Conflict and Its Purpose

258 notre dame law review [vol. 96:1

Conventions were concerned about opportunities for states to argue that

2020] armed attack and international armed conflict 259

260 notre dame law review [vol. 96:1

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262 notre dame law review [vol. 96:1

II. GAPS AND CONSEQUENCES

51 2016 COMMENTARY, supra note 39, para. 240.

2020] armed attack and international armed conflict 263

unavoidable consequence of the interaction of LOAC and jus ad bellum in

A. Explaining the Gaps

264 notre dame law review [vol. 96:1

54 Julia Grignon, The Beginning of Application of International Humanitarian Law: A Dis-

2020] armed attack and international armed conflict 265

266 notre dame law review [vol. 96:1

ultimatum with conditional declaration of war.”57 The primary purpose of a

2020] armed attack and international armed conflict 267

old for international armed conflict—the “one shot” threshold—in general,

humanitarian law applicable. Therefore, a State which confines itself to a declaration of

268 notre dame law review [vol. 96:1

Alternatively, where the states in question do not believe that LOAC

Unlike the previous two examples, anticipatory self-defense frames the

2020] armed attack and international armed conflict 269

force in self-defense is the existence of an imminent armed attack. Consider

270 notre dame law review [vol. 96:1

B. Exploring the Consequences

2020] armed attack and international armed conflict 271

75 Moussa, supra note 72, at 968.

272 notre dame law review [vol. 96:1

1. Using Force in International Armed Conflict Below the Armed Attack

A first question arises in the scenarios above, or similar situations, where

2020] armed attack and international armed conflict 273

274 notre dame law review [vol. 96:1

required in targeting so as to minimize harm to civilians and civilian objects

2020] armed attack and international armed conflict 275

an enemy, military necessity forms an essential underpinning of LOAC.87 As