The Geographical Scope of Non-International Armed Conflict

The focus of this Chapter is the ratione loci - the geographical scope of applicability - of IHL during NIAC. This chapter is divided into four sections. The first section provides a critical examination of the orthodox ‘territorial approach’ to determining IHL’s geographical reach during NIAC. The second section explores and evaluates the principal alternative to the territorial approach, referred to here as the ‘battlefield approach’. While both approaches possess certain advantages and limitations, it is argued that neither produce entirely satisfactory results. As a result, the third section proposes and explores a third alternative: a ‘functional approach’, the utility of which is demonstrated by its practical application to select provisions of both the hostilities and protections regime. The fourth section examines the legal implications of extraterritorial military operations, and briefly explores three legal bases for crossing an international border during NIAC: the consent of the territorial state; Chapter VII authorization from the UN Security Council; and self-defence pursuant to Article 51 of the UN Charter.