this respect recognizes two categories of armed conflict: international and noninternational. International armed conflict happens between states and involves the use of armed force by one state against another. Non-international armed conflict involves hostilities between government armed forces and organized armed groups or between such groups within the territory of a state party to the Geneva Conventions.25 The widely accepted test for determining whether a non-international armed conflict exists, which is articulated by the ICTY,26 and endorsed by the International Committee of the Red Cross (ICRC),27 entails the consideration of two criteria. The first criterion involves “the identity and level of organization of the putative parties to the conflict”.28 It requires “clearly identifiable armed groups and/or state forces”. These groups or forces must be cohesively organized, maintain a responsible and recognizable command strategy and be capable of sustaining military operations.29 The level of organization of the armed group is assessed considering factors such as the existence of a chain of command, the capacity to transmit and enforce orders, the ability to plan and launch co-ordinated military operations and the capacity to recruit, train and equip new members.30 The second criterion relates to the scale and intensity of the conflict.31 It requires a certain scale of violence and intensity that goes beyond sporadic and isolated acts of violence.32 110. Based on the above, the situation in Afghanistan from the beginning of Operation Enduring Freedom on 7 October 2001, which was proclaimed as an exercise of self-defence under Article 51 of the Charter of the United Nations (UN), until the fall of the Taliban as the de facto government of Afghanistan in June 200233 warrant characterization as an international armed conflict.34 After this date, the use of armed force by the United States and its coalition partners could no longer be construed as being directed against another state as the continued presence of their forces in Afghanistan after this date was on the basis of the host-state’s consent. As such, the situation was incapable of falling within the definition of an international armed conflict. It is, however, ODIHR’s view that after the 25 Since the Geneva Conventions have been universally ratified, the requirement that the armed conflict arise on the territory of a state “has lost its importance in practice”. “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?”, ICRC, op. cit., note 20, pp. 3, 5. 26 ICTY, Prosecutor v. Tadic, 7 May 1997, op. cit., note 21, para. 562. 27 “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?”, ICRC, op. cit., note 20, p. 5. 28 ICTY, Prosecutor v. Tadic, 7 May 1997, op. cit., note 21, para. 562. 29 Ibid. 30 This stems from Article 1 of the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of NonInternational Armed Conflicts, Geneva, 8 June 1977 (hereinafter, “APII”), <https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=93F022B3010AA404C12563CD0051E 738>: “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. 31 ICTY, Prosecutor v. Tadic, 7 May 1997, op. cit., note 21, para. 562. 32 APII, Art. 1(2); “Assessing Damage, Urging Action”, International Commission of Jurists, op. cit., note 10, pp. 53-54. 33 “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007, op. cit., note 18, p. 725; Robin Geiß and Michel Siegrist, “Has the Armed Conflict in Afghanistan Affected the Rules on the Conduct of Hostilities?”, International Review of the Red Cross, Vol. 93, No. 881, March 2011, pp. 13-14, <https://www.icrc.org/eng/resources/international-review/review-881-afghanistan/review-881-all.pdf>; “Afghanistan. Applicable International Law”, Rule of Law in Armed Conflicts Project, Geneva Academy of International Humanitarian Law and Human Rights website, <http://www.geneva-academy.ch/RULAC/applicable_international_law.php?id_state=1>. 34 This does not signal a view from ODIHR that this international armed conflict was lawful. Without expressing a view either way, it is noted here that there are views that this conflict was unlawfully initiated. See, for example, Myra Williamson, Terrorism, War and International Law. The Legality of the Use of Force Against Afghanistan in 2001 (Surrey: Ashgate Publishing Limited, 2009). 39