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well as the Taliban and associated forces.51 If we accept such an assumption then we
are inevitably confronted with a question of the geographical boundaries of the armed
conflict and/or nexus to an armed conflict. And we are further confronted with an
additional question on the legal basis for the use of lethal force against an individual
Directly Participating in Hostilities from the territory of a non-belligerent State.52
Because of the frequency with which force was used extraterritorially against non-
state armed actors, and even affecting non-belligerent states as well, some experts started
to talk about various typologies of NIAC.53 In order to address this phenomenon, they
started to introduce new terminology or concepts of conflicts, such as “transnational
conflict” or “internationalized non-international armed conflict”.54
Subsequently, two main approaches appeared in this respect. The first, relates
to the determination of the geographical scope of armed conflict, as it is being
claimed that a legitimate military target (combatant, civilian directly participating in
hostilities) carries armed conflict with him/her.55 Leaving aside the ius ad bellum test,
because the nexus to an armed conflict would be fulfilled here, the person remains
targetable.56 Again, leaving aside the ius ad bellum test, a contradictory approach,
represented mainly by the ICRC, emphasizes that such expansion of the battlefield is
not acceptable because the conflict would get global dimensions.57
In summary, if the first approach proves to be unsupportable due to its dangerous
global expansion of the armed conflict, then the legality of the use of drones can be
examined only by human rights law under the law enforcement paradigm. Putting
this differently, if a drone would be used outside of the context of an armed conflict
in order to kill a person, it would be a clear example of extrajudicial killing.
This short analysis alarmingly shows the diverse views and approaches of the
international expert community. William Boothby interestingly observes: “it is no
51 HARALD KOH, Legal Adviser, Department of State, “The Obama Administration and International
Law”, Keynote Address at the Annual meeting of the American Society of International Law, 25 March 2010.
52 STEPHAN KOLANOWSKI (ICRC), Drones Strike in Armed Conflict under IHL, presentation at
Royal Higher Institute for Defence, Brussels, 6 February 2014.
53 JELENA PEJIC, Conflict Classification and the law applicable to detention and the use of force, in:
Elizabeth Wilhurst (ed.) International Law and the Classification of Conflicts, Oxford University Press,
p. 80-115.
54 NOAM LUBELL, “Transnational Armed Conflicts”, in Proceedings of the 10th Bruges Colloquium:
Armed Conflicts and Parties to Armed Conflicts under IHL: Confronting Legal Categories to Contemporary
Realities, October 2009, p. 56-63.
55 Study Group on the conduct of Hostilities under IHL in the 21st century, 10 April 2014, International
Law Association, Working Session Report, Washington, 2014,
study_groups.cfm/cid/1040. (visited on 17 August 2015).
56 ICRC, Report 31st International Conference of the Red Gross and Red Crescent, “International
humanitarian law and the challenges of contemporary armed conflicts”, 31IC/11/.5.1.2, Geneva,
October 2011, p. 22.
57 Ibid.