A/HRC/44/38 Non-International Armed Conflict? 14. The strike against General Soleimani was clearly a strike against the armed forces of another State, thus discarding the possibility that this was a non-international armed conflict, which is defined by internal armed hostilities. The Special Rapporteur emphasizes this point solely because of the unusual step taken by the US to label the IRGC a “terrorist organization”. This opens the possibility of the US presenting these killings a being a part of its NIAC against Al Queda and its affiliates (an anomalous assertion given Iran’s leading contribution to fight against ISIL). 21 While the ramifications of this US designation are unclear, one cannot eliminate the reality that any action taken by a State against General Soleimani is an action against a State official. The lawfulness of that action must be determined within that context. An International Armed Conflict? 15. Did the strike either initiate an IAC between the US and Iran or take place as part of an ongoing IAC? The determination and classification of armed conflicts “depend on verifiable facts in accordance with objective criteria.”22 However, that determination of the matter is not without ambiguity or debate. One prominent doctrine as to what triggers an IAC is the so-called “first shot” doctrine, according to which humanitarian law ought to apply from the first moment of use of force by one State against another state: literally, just a single shot by one state against another. The 2016 and 2017 ICRC commentaries on the Geneva Conventions are clear that an international armed conflict arises when one State makes recourse to the use of force against another, regardless of their reasons for doing so or the intensity of the confrontation. 23 In this perspective, it is not necessary for the conflict to extend over time or to provoke a certain number of victims.24 16. However, others express a different view. For instance, the ILA Committee on The Use of Force draws distinction between an armed attack (invoking the rights under Art. 51 of the UN Charter) and an international armed conflict. In its view “an armed attack that is not part of intense armed fighting is not part of an armed conflict.”25 The Venice Commission also supports the application of an intensity threshold, arguing that an armed conflict “refers to protracted armed violence between States”.26 More typically, however, commentators and States suggest that it takes at least a minimum, albeit undefined, threshold, beyond an isolated strike, to constitute an IAC.27 17. The Special Rapporteur believes that the determination of the existence of an international armed conflict, given its grave implications for the societies involved, should 21 22 23 24 25 26 27 26 Statement from the President on the Designation of the Islamic Revolutionary Guard Corps as a Foreign Terrorist Organization, Issued on April 8, 2019. Sylvain Vite, Typology of Armed Conflicts, International Review of the Red Cross, Volume 91 Number 873 March 2009, https://www.icrc.org/en/doc/assets/files/other/irrc-873-vite.pdf. Convention (I), 2016 Commentary, Article 2, at 218. The Special Rapporteur reads the decision as suggesting that both IAC and NIAC requires intensity. The Chamber states so when interpreting the circumstances at hand: “These hostilities exceed the intensity requirements applicable to both international and internal armed conflicts.” PROSECUTOR v. DUSKO TADIC, Oct. 2, 1995, at 70. Pictet suggested the threshold be a single wounded person from the intervention of armed forces. Pictet, Commentary to Common Art. 2 Geneva Conventions (1952), p. 32. INTERNATIONAL LAW ASSOCIATION, THE HAGUE CONFERENCE (2010), USE OF FORCE, at 8 http://www.rulac.org/assets/downloads/ILA_report_armed_conflict_2010.pdf. Venice Commission, 66th Plenary Session (Venice, 17-18 March 2006), at 78. UK Declaration upon signature of the I Protocol of 1977 to the Geneva Conventions (IAC does not include acts of terrorism, “whether concerted or in isolation”); Italy’s domestic definition of armed conflict, Art. 165, Codice Militare di Guerra, versione emendata L. 27 febbraio 2002, n. 15: “uso militarmente organizzato e prolungato delle armi” (an organized and prolonged uses of weaponry); see generally Marko Milanovic and Vidan Hadzi-Vidanovic,”A Taxonomy of Armed Conflict”, in Christian Henderson and Nigel White (eds), Research Handbook on International Conflict and Security Law, 2013, pp.256–313, pre-print draft: http://ssrn.com/abstract=1988915.