A/HRC/25/59 State, without the territorial State’s consent, where it judges that there is an imminent risk of attack to its own interests? If so, how is imminence to be defined?38 (c) Does the international humanitarian law test of intensity of hostilities (which is one of the criteria determining whether a non-international armed conflict exists) require an assessment of the severity and frequency of armed attacks occurring within defined geographical boundaries? In applying the intensity test to a non-State armed group operating transnationally, is it legitimate to aggregate armed attacks occurring in geographically diverse locations in order to determine whether, taken as a whole, they cross the intensity threshold so as to amount to a non-international armed conflict? If it is possible for a State to be engaged in a non-international armed conflict with a non-State armed group operating transnationally, does this imply that a non-international armed conflict can exist which has no finite territorial boundaries?39 (d) Does international humanitarian law permit the targeting of persons directly participating in hostilities who are located in a non-belligerent State and, if so, in what circumstances?40 (e) Do the pattern and frequency of the armed attacks currently being perpetrated by Al-Qaida, and the various affiliate organizations in different parts of the world that claim allegiance to Al-Qaida, satisfy (or continue to satisfy) the criteria of organization and intensity required under international humanitarian law to qualify as a state of armed conflict?41 (f) Assuming that a non-international armed conflict exists, does the test of “continuous combat function”, as elaborated by the International Committee of the Red Cross for determining whether a person is a “member” of an armed group (such that that person may be targeted with lethal force at any time) reflect customary international law? If not, what is the correct test?42 (g) Does the guidance promulgated by the International Committee of the Red Cross for “direct participation in hostilities” reflect customary international law? In particular, does an individual who has participated in hostilities cease to be targetable during a pause in his or her active involvement? Does providing accommodation, food, financing, recruitment or logistical support amount to “direct participation in hostilities” for targeting purposes?43 (h) In the context of non-international armed conflict, when (and under what circumstances) does international humanitarian law impose an obligation to capture rather than kill a legitimate military target where this is feasible?44 72. The Special Rapporteur invites Member States to express their views on these questions prior to the twenty-seventh session of the Human Rights Council and (subject to 38 39 40 41 42 43 44 See A/68/389, paras. 57 and 58; A/68/382, para. 92. See A/68/389, paras. 62–65; A/68/382, paras. 64–66. Ibid. See A/68/389, paras. 66–69; A/68/382, paras. 55–63. For a comprehensive and up-to-date assessment of the threat of armed attack by Al-Qaida and its various affiliate organizations, and the degree of operational coordination, organization and leadership among the various groups, see the fifteenth report of the Analytical Support and Sanctions Monitoring Team established pursuant to Security Council resolution 1526 (2004), transmitted with the letter dated 22 January 2014 from the Chair of the Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning AlQaida and associated individuals and entities addressed to the President of the Security Council (S/2014/41). A/68/389, para. 69; A/68/382, para. 68. A/68/389, paras. 70–72; A/68/382, paras. 69–71. A/68/382, paras. 77–79. 19