Assessing Damage, Urging Action 4. The war paradigm lacks a credible legal basis The Bush administration’s legal position also runs counter to the previously accepted international consensus concerning when and how the laws of war apply. Neither the nebulous operation of a “war” on terrorism, nor the engagement against particular groups that commit terrorist acts, such as al-Qaeda, warrant characterisation as an armed conflict within the meaning of international humanitarian law. Moreover, whilst the laws of war clearly apply to armed conflicts in places such as Afghanistan and Iraq, this fact does not justify a claim that international humanitarian law is applicable to other settings that do not constitute situations of armed conflict but in which the broader “war” on terror is being waged. The conduct of armed conflict is governed by international humanitarian law (IHL), including the four Geneva Conventions of 1949, and their two Additional Protocols of 1977, and rules of customary international law.89 Many violations of international humanitarian law are codified as substantive offences covered by international criminal law and are contained, inter alia, in the Rome Statute of the International Criminal Court.90 International humanitarian law has clear boundaries delimiting the conduct that can be considered an armed conflict; the widely accepted test is that articulated by the International Criminal Tribunal for the Former Yugoslavia,91 and endorsed by the International Committee of the Red Cross.92 This assessment looks to (a) the identity and level of organisation of the putative parties to the conflict, and (b) the scale and intensity of the conflict. These criteria allow for “distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.” 93 The current situation (aside from the conflicts in Afghanistan and Iraq) clearly do not meet either of these criteria. With respect to the first criterion, an armed conflict can only exist between clearly identifiable armed groups and/or State forces which are cohesively organised with a responsible and recognisable command structure, and have the capacity to sustain 89 The authoritative iteration of the IHL customary law can be found in the major ICRC study: Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, Cambridge [etc.], 2005. 90 See in particular Article 8 of the Rome Statute of the International Criminal Court. With respect to acts committed in an international armed conflict, the Geneva Conventions and its Additional Protocol I also criminalise acts such as wilful killing, and wilfully causing great suffering or serious injury to body or health to protected persons, as grave breaches of the Conventions or the Protocol. See Article 130 of the Third Geneva Convention, Article 147 of the Fourth Convention and Article 85 of Additional Protocol I. 91 International Criminal Tribunal for the Former Yugoslavia (ICTY), Opinion and Judgment of 7 May 1997, Prosecutor v. Dusko Tadic, No. IT-94-1-T, para. 562. 92 See International Committee of the Red Cross (ICRC), Opinion Paper, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law”, March 2008, www.icrc.org. 93 ICTY, Opinion and Judgment of 7 May 1997, Prosecutor v. Dusko Tadic, No. IT-94-1-T, para. 562. 53