![]() The classical requirements for a NIAC to exist and, in particular, the intensity requirement, constitute a means to distinguish between two realities: on the one hand, situations of internal disturbances, which imply for State authorities to maintain public order and to which national law applies on the other hand, situations of armed conflicts, which imply for State authorities to fight an enemy and to which IHL applies. The ICRC’s ‘support-based approach’ and its main legal consequence do not seem unreasonable. By contrast, providing the territorial State merely with general intelligence information, without any link to any specific attack, would not be enough to make the intervening and supporting power a party to the pre-existing NIAC. In the ICRC’s view, this support is not limited to direct attacks by land, air or sea but also includes any other act of hostility, provided that such act is designed to directly impair the military capabilities of the adversary, such as transporting troops to the front lines or refueling aircrafts in order to allow them to directly launch attacks against the enemy. Thus, the nature of the support provided by the intervening power is pivotal in the ICRC’s theory. Therefore, the law of NIAC becomes applicable to the intervening power even before the traditional intensity threshold for a distinct NIAC is fulfilled or even if this threshold is never reached by its intervention itself. ![]() In other words, according to the ‘support-based approach’, only one single NIAC exists, ie the pre-existing NIAC, but the intervening power becomes a new party to this conflict, fighting alongside the supported party. Indeed, its main legal effect is to make the intervening power a new party to the pre-existing NIAC, without requiring the hostilities between this power and its enemy to reach the intensity threshold necessary to trigger a new separate NIAC. This new theory helps to define the ratione personae scope of application of International Humanitarian Law (IHL). This article offers an in-depth examination of the territorial control requirement.The International Committee of the Red Cross (ICRC) recently developed a new theory, entitled ‘support-based approach’, which deals with foreign interventions by ‘one or more States, a coalition of States or an international or regional organization’ in a pre-existing non-international armed conflict (NIAC) in support to one of the parties to this conflict. Even though Additional Protocol ii remains the only comprehensive treaty dedicated to the regulation of non-international armed conflict, there is a paucity of literature which analyses its scope of application, and specifically the territorial control requirement. Attaining legal certainty is pivotal with respect to conflict classification because the category of conflict determines the applicable rules of the conventional law of armed conflict. The complex conflict situations in the Central African Republic, Mali, South Sudan and the Democratic Republic of the Congo serve as examples. Multiple non-international conflicts involving numerous actors can co-exist in a single territory at the same time or lead to fighting across borders. ![]() In situations such as these, a non-international armed conflict is no longer restricted to the territory of a single State. Complex situations in which conflict is not confined to the territorial borders of the State where the non-international armed conflict originated increasingly present a challenge to those responsible for conflict classification under the conventional law of non-international armed conflict. In terms of Additional Protocol ii to the Geneva Conventions ‘territorial control’ is a requirement in order to determine whether, as contemplated by the provisions of the Protocol, a non-international armed conflict exists.
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