The principle of passive precautions: A protection for escorted convoys rather than an obstacle to the legality of using armed escorts

Intuitively, armed escorts by a party to the conflict could qualify as a measure covered by Article 58(c) of AP I, as they protect humanitarian convoys from potential attacks. Indeed, Article 58(c) refers to “other necessary precautions to protect … civilian objects under [the party's control] against the dangers resulting from military operations”.Footnote ²⁸ However, a closer look at the use of armed escorts can reveal that such escorts could themselves be contrary to Article 58(c) as they could qualify as military operations endangering civilian objects by increasing the risk that the convoys could be harmed as collateral damage. Thus, the question of whether the practice of armed escort by a party to the conflict is even allowed under IHL, given the application of the principle of passive precautions as interpreted below, is raised. Each element of the material scope of Article 58(c) is examined below to address this question.

Regarding the notion of military operations under Article 58(c) of AP I, “the use of the term ‘military operations’ rather than ‘attacks’ (as in the general rule) may well mean that subparagraph (c) applies to a broader range of activities”Footnote ²⁹ such as armed escorts. Some challenge this interpretation, arguing that “the scope of the application is no different, regardless of the different language used”.Footnote ³⁰ But this last interpretation is against the letter of Article 58(c) and the understanding in the Conventions of the notion of military operations, which are understood in their ordinary meaning in this provision as “all movements and acts related to hostilities that are undertaken by armed forces”.Footnote ³¹ As such, the first interpretation should be retained, and armed escorts should fall under the notion of military operations as understood in Article 58(c).

As to the notion of danger, the application of this concept is unclearFootnote ³² in the context of Article 58 of AP I. Its ordinary meaning refers to “the possibility of harm or death to someone”.Footnote ³³ As such, danger may be equated with a risk of a conduct arising from military operations, such as targeting in the case of armed escorts. This is supported in light of the temporal scope of Article 58, whereby passive precautions are to be taken before the actual attack occurs.Footnote ³⁴

With regard to the notion of control, interpretations vary. On the one hand, Sandoz, Swinarski and Zimmerman interpret the notion of control as control over territory.Footnote ³⁵ On the other hand, Jensen asserts that the notion of control should be understood as control over persons or objects.Footnote ³⁶ In the case of escorted convoys, both thresholds overlap in practice. Indeed, escorting a convoy indicates that the escorting party has control over the delivery of the goods, as it is a modality of delivery that the party can accept, refuse or impose. Further, the party controlling the territory is the one consenting to this modulated delivery and providing the escort in the territory that it controls. Since both thresholds overlap, an escort other than the forces of a State that is a party to the conflict may also be considered as controlling the relief consignments in the sense of the customary rule equivalent to Article 58(c).Footnote ³⁷

In light of the above, it can be argued that the use of armed escort constitutes in itself a dangerous military operation because it increases the risk that the convoy will be attacked as collateral damage. As such, this use can be contrary to Article 58(c), which requires that the parties to the conflict avoid military operations endangering civilians or civilian objects under their control. While this is true in IACs, difficulties can arise in NIACs. Indeed, the ICRC Customary Law Study identifies the obligation to take passive precaution as customary.Footnote ³⁸ This customary nature has further been clearly stated by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Kupreskic case.Footnote ³⁹ However, the ICRC fully equates the scope of the customary rule with the treaty rule only in IACs.Footnote ⁴⁰ In NIACs, the scope is narrower in that the sole obligation of a party to the conflict is to take all feasible precautions to protect civilian objects under its control against the effects of attacks rather than the wider notion of military operations.Footnote ⁴¹ In order to overcome this difficulty, it may be argued that the obligation of precautions is an overarching principle stemming from the obligation of constant care to “spare the civilian population, civilians and civilian objects” traditionally imposed on the attacker,Footnote ⁴² which applies to a broader range of operations.Footnote ⁴³

Nonetheless, it is flawed to consider that the principle of passive precautions expressed in Article 58(c) implies that each and every resort to armed escort by parties to the conflict is prohibited. Indeed, this obligation should be fulfilled to the extent of what is “reasonably practicable” or “practically possible”.Footnote ⁴⁴ There is a consensus that the assessment of the feasible measures is extremely context-dependent. It is “a matter of fact”Footnote ⁴⁵ that is assessed in light of the “circumstances ruling at the time”.Footnote ⁴⁶ Traditionally, this formulation is understood to allow for legitimate military requirements to be taken into account in the requirement of feasibility of the measures.Footnote ⁴⁷ Beyond this traditional understanding, however, humanitarian concerns may also play a role in the feasibility assessment. For example, the US Law of War Manual includes in the circumstances encompassed by the feasibility of passive precautions the humanitarian benefits arising from taking the precaution.Footnote ⁴⁸ In the case of armed escorts, taking the said precautionary measure consists in abstaining from escorting the convoy – but then the humanitarian benefit stemming from taking the precaution is null as the goods do not reach the population if targeted or harmed as collateral damage. The UK also takes the view that humanitarian considerations should be taken into account in the feasibility requirement.Footnote ⁴⁹

Further, regarding the availability of “other viable alternatives”Footnote ⁵⁰ in order to assess the feasible character of a precaution, there are indeed alternatives to armed escorts. In practice, they include “cultivation of greater acceptance with local stakeholders, Parties to the Conflict and other relevant stakeholders, humanitarian negotiations, de-conflation arrangements, humanitarian pause, [and] humanitarian corridors”.Footnote ⁵¹ The fact that armed escorts were resorted to after considering these kinds of alternatives may justify that taking passive precautions as encompassed under Article 58 was not feasible. This conclusion concurs with the requirements of the IASC non-binding framework, which insists on the use of armed escorts as a means of last resort, after the exhaustion of these available alternatives.Footnote ⁵²

In sum, in the author's view, the practice of armed escort falls under Article 58(c) of AP I applicable in NIACs under Rule 22 of the ICRC Customary Law Study, and it violates this provision only when used in a systematic manner, without considering alternatives. As such, Article 58 does not constitute an obstacle to the legality of the use of armed escorts but rather sets strong requirements to their use. Those requirements further protect humanitarian convoys, in line with the existing non-binding framework addressed to organizations on the resort to armed escorts.Footnote ⁵³

Convoys stopped as a result of attacks on an armed escort which is a party to the conflict: Application of the principle of proportionality

When an armed escort to a humanitarian convoy is attacked, the convoy might be incidentally damaged, stopped from proceeding, or both if partially damaged. Considering the reverberating effects on the civilian population of the attack on the escort is essential for assessing the lawfulness of the attack.

Taking into account the reverberating effects on the civilian population of an attack on the armed escort is especially relevant when the convoy is incidentally halted. This is because contrarily to incidental destruction of relief suppliesFootnote ⁵⁴, incidental halting of a convoy is not necessarily covered by the prohibition on the use of starvation of the civilian population as a method of warfare.Footnote ⁵⁵ Indeed, the halting does not constitute an attack on, destruction of or removal of objects indispensable to the civilian population in the sense of the prohibition. In some cases, relief supplies could fall under the scope of the prohibition because they are rendered useless – for example, foodstuffs may perish because of the prolonged incidental halting of a convoy. Outside such cases, the incidental halting does not fall under the specific prohibition against attacking, destroying, removing or rendering useless objects indispensable to the civilian population. Neither does it fall under the general prohibition on starvation of the civilian population because it is the consequence of an attack that is purported to pursue a military advantage.Footnote ⁵⁶

Moreover, when the convoy is halted, the obligation to facilitate the unimpeded passage of the convoy still applies.Footnote ⁵⁷ Provided that this obligation also applies to the attacking party,Footnote ⁵⁸ it may be questioned whether the incidental impediment of the passage of the convoy by the attack is in breach of the obligation. Indeed, Article 70(2) of AP I does not specify the type of impediment covered by this rule. The Commentaries refer to administrative impediments, denial of access and harassment as illustrations,Footnote ⁵⁹ and customary IHL requires the impediment to be “deliberate”.Footnote ⁶⁰ As such, with the purpose of an attack on the escort being the pursuit of a military advantage, one may wonder whether the incidental impediment falls under the obligation to facilitate the unimpeded passage of the convoy, at least under the customary rule and potentially under the treaty rule.

Because the incidental halting is covered neither by the prohibition on starvation nor the impediment of the passage of the convoy, correctly assessing the proportionality of the attack on the escort by considering its reverberating effects on the civilian population is extremely important. The proportionality rule applies to an attack, in the sense of an “act of violence against the adversary, whether in offence or in defence”,Footnote ⁶¹ against a legitimate target escorting a humanitarian convoy. If the convoy is merely stopped because of an attack on an escort, it appears that it does not fall under the scope of Article 51(5)(b) of AP I because there is no “loss of life, injury to civilians, damage to civilian objects, or a combination thereof”.Footnote ⁶² However, this conclusion is flawed as it does not take into account the actual harm to civilians caused by the halting of the transportation of the objects concerned. This harm is reflected in the reverberating effects of the attack, which are those that are not directly and immediately caused by the attack but are nevertheless the product thereof.Footnote ⁶³ The author examines an application of the reverberating effects doctrine in the following paragraphs.

On the side of the expected military advantage to be gained, this advantage is the annihilation of the armed escort.Footnote ⁶⁴ If the attacking party seeks the advantage of stopping the convoy, this advantage is merely political, as part of the politicization of humanitarian aid.Footnote ⁶⁵ The military advantage remains the annihilation of the escorting party, and even this small military advantage can render the attack lawful where only minimal incidental harm to property is expected.Footnote ⁶⁶ Moreover, the context of the conflict may change the value of the military advantage.Footnote ⁶⁷ In a highly asymmetric conflict, a few soldiers may have a higher value as a military advantage to the weaker party, such as a non-State armed group, than the same amount of escorting military in another context.Footnote ⁶⁸

On the side of the incidental harm, the attacker should take into account the reverberating effects of the attack on the civilian population. In contemporary practice, the question of reverberating effects in the proportionality assessment has been posed inter alia in the case of the use of explosive weapons in urban areas,Footnote ⁶⁹ cyber warfareFootnote ⁷⁰ and the targeting of dual-use objectsFootnote ⁷¹ because of the interconnectivity of the military objective with the civilian infrastructure incidentally harmed. This question is controversial in multiple aspects, but the controversy can be mitigated when applied to convoys incidentally halted by an attack on the armed escort.

First, on the very existence of an obligation to take those effects into account, the proponents of this obligation emphasize that the use of “the qualifiers ‘expected’ and ‘incidental’ do[es] not limit the relevant incidental harm to direct effects only, unlike the relevant military advantage which must be ‘concrete and direct’”.Footnote ⁷² Moreover, they also hold that the purposive interpretation of Article 51(5)(b) of AP I leads to the inclusion of indirect effects in the proportionality assessmentFootnote ⁷³ and provides for a legal basis to this obligation.Footnote ⁷⁴ By contrast, opponents of this obligation argue that as the anticipated military advantage must be concrete and direct, so must the expected incidental harm. To them, only the direct effects of the attack on civilian objects or the civilian population must be taken into consideration in the proportionality assessment.Footnote ⁷⁵ To this author, the fact that States increasingly accept the need to factor reverberating effects into the proportionality assessmentFootnote ⁷⁶ strengthens the argument in favour of the existence of such an obligation.

The temporal and geographical scope of this obligation is less controversial. The travaux preparatoires of AP I indicate that States explicitly rejected the attempts to limit incidental harm to the areas surrounding the military objective.Footnote ⁷⁷ Similarly, there is no requirement that the effects be limited in time.Footnote ⁷⁸ Consequently, “provided that the harm falls into one of the categories identified in Additional Protocol I, the geographic or temporal proximity of the harm to the attack is not determinative”.Footnote ⁷⁹ This means that even an injury taking place away from the location of the attack on the armed escort and not immediately after the attack can be factored into the proportionality assessment.

Further, regarding the material scope of application of the obligation, the most controversial issue is the fact that the incidental harm expected from the reverberating effects of the attack must be foreseeable. It is particularly difficult to determine whether the effects accounted for should be restricted to those brought about in one causal step. Some argue that “the number of causal steps between the attack and the harm” is not determinative.Footnote ⁸⁰ However, others opine that this relationship is limited to one causal step.Footnote ⁸¹ This aspect of the controversy can be mitigated in the case of a humanitarian convoy stopped as a result of an attack on an armed escort to the convoy. Indeed, contrarily to objects targeted in cyber warfare and urban warfare, and to dual-use objects for which reverberating effects are traditionally discussed, a humanitarian convoy is not integrated into an extensive network of services for the civilian population. When a humanitarian convoy is stopped as a result of an attack on the escort, the deprivation of humanitarian assistance already brings the injury in one causal step, although it may occur later in time. In addition, in many cases, the population in question is already inadequately supplied with essential goods,Footnote ⁸² to the extent that the injury is probable.Footnote ⁸³ For example, the deprivation of food supplies likely leads to hunger, especially if the civilian population is food insecure.Footnote ⁸⁴ If hunger is an injury within the meaning of Article 51(5)(b) of AP I, it should not be excessive in relation to the military advantage.

Hence, the consequences of stopping the convoy are more directly foreseeable than those arising in a complex network of essential services. This mitigates the traditional controversy surrounding the foreseeability of reverberating effects. In other terms, when humanitarian convoys are incidentally halted, it is the delineation of the notion of injury brought about in the first causal step that would narrow down the foreseeability criteria. By contrast, in the case of attacks on essential services integrated into a complex network, it is the question of the number of causal steps which defines the contours of the notion.

Moreover, with regard to foreseeability, opponents of the obligation to take into account reverberating effects of attacks argue that “there are too many potential variables outside of the attacker's control that make it practically impossible to consider these effects as ‘expected’”.Footnote ⁸⁵ Among those, the willingness of the enemy to repair the harm may arise in the case of a humanitarian convoy incidentally halted as a result of an attack on the armed forces escorting it. Even some of the proponents of such a doctrine have expressed that this willingness is relevant in the assessment.Footnote ⁸⁶ However, this issue is controversial; it does not have a clear answer.Footnote ⁸⁷ To answer these concerns, the author suggests that the politicization of humanitarian aid comes into play to infer the willingness of the enemy to mitigate the effects of an attack on an armed escort to a humanitarian convoy. For example, a pattern of denial of access to humanitarian aid may indicate a lack of willingness on the part of the attacker to mitigate the reverberating effects of an attack in the future.

Furthermore, there is a strong tendency against “the idea that humanitarian assistance [as a mitigating measure] could be viewed as broadening the possibilities of attack”.Footnote ⁸⁸ The author agrees with this statement. In the case of a humanitarian convoy, the fact that the attacker of its escort is aware that the relief convoy is not the only relief convoy destined to civilians or sends another convoy instead to compensate for the reverberating effects of the attack cannot create an open door for collaterally impeding humanitarian assistance. Similarly, the fact that the attacker expects the convoy to be halted only temporarily, or that the attacker knows that the other party is also under an obligation to facilitate the unimpeded passage of the convoy after the attack on the escort,Footnote ⁸⁹ cannot open such a door.

A final difficulty which may arise is that it is controversial whether the obligation to account for reverberating effects in the proportionality assessment is present when the assessment is undertaken under the customary rule of proportionality. However, practice is evolving in this direction.Footnote ⁹⁰

All in all, without solving the question of reverberating effects in abstracto, this author suggests that the specific case of humanitarian convoys incidentally stopped from proceeding offers an opportunity for the application of the reverberating effects concept, and does not pose the same controversial questions on the matter as those arising from contemporary practice regarding cyber warfare, explosive remnants of war and the targeting of dual-use objects. As such, it is an avenue for enhancing the protection of humanitarian convoys and correctly assessing the proportionality of an attack against an armed escort which is a party to the conflict.

It appears that a categorization of the nature of the collateral damage would operationalize the criteria of foreseeability. Approaches to classifying the reverberating effects depending on the nature of the objects surrounding the attack have been made in the area of the use of explosive weapons.Footnote ⁹¹ While for civilian lives such an approach could “lead to a slippery slope towards considering that the lives of some civilians ‘weighed less’”Footnote ⁹², these ethical considerations are less strong for objects.Footnote ⁹³ Further, this approach is in line with the principle of humanity underlying IHL.Footnote ⁹⁴

Attacks on convoys: The status of escorted convoys under IHL

In practice, humanitarian convoys are targeted in order to prevent access of the relief consignments into enemy-controlled areas, for instance.Footnote ⁹⁵ In addition, in the specific case of the use of armed escorts, humanitarian convoys are at higher risk of being targeted due, inter alia, to confusion as to the impartiality of humanitarian organizations vis-à-vis the parties to the conflict.Footnote ⁹⁶

Yet, IHL is clear on the fact that humanitarian relief objects must be respected and protected.Footnote ⁹⁷ Contrary to medical units,Footnote ⁹⁸ however, humanitarian convoys are not specially protected under IHL. For targeting purposes,Footnote ⁹⁹ relief objects are considered civilian objects protected under Article 52 of AP I and Rule 7 of the ICRC Customary Law Study.Footnote ¹⁰⁰ Consequently, relief objects cannot be targeted unless they turn into military objectives.

When relying on the applicable targeting rules, it appears that the mere presence of the armed escort is not sufficient to turn the convoy into a military objective. Formally, the aid is no longer perceived as neutral when escorted by a party to the conflict because the relief convoy does not maintain “an absolute distance from the different parties to the conflict”.Footnote ¹⁰¹ For targeting purposes, however, what matters is whether this situation is more than an absence of formal neutrality and rather a situation falling under Article 52 of AP I. In the case of escorted humanitarian convoys, the most relevant situation in which the relief objects would turn into a military objective would be a use of these convoys which fulfils the requirements of Article 52 and its customary equivalent. For example, the mixed transport of weapons along with humanitarian assistance and the case of diversion of humanitarian goods to combatants could amount to such a use.

As such, humanitarian convoys remain protected under IHL,Footnote ¹⁰² even when joined by an armed escort: they must be respected in that they may not be attacked unless they fulfil the requirement of a military objective under Article 52 of AP I. The mere presence of the escort does not automatically lead to the convoy's fulfilment of those requirements.

Non-State armed groups or armed forces of a State acting in self-defence or in defence of the convoy against attacks by another party to the conflict

From the perspective of the armed escort, the first question to highlight is whether this “security measure” amounts to a military operation against which the convoy under its control should be protected to the maximum extent feasible as per Article 58(c) of AP I, or to a law enforcement operation subject to the law enforcement paradigm as a paradigm which “continues to govern all exercise by parties to the conflict of their authority or power outside the conduct of hostilities”.Footnote ¹⁰⁴ The answer to such a question is not necessarily clear-cut. On the one hand, the resort to the armed escort clearly occurs in the context of the conduct of hostilities, because it is an attempt to protect the convoy from the effects of such hostilities. In addition, as previously explained, provided that the convoy remains a civilian object, if used systematically, the practice of armed escorts may in itself violate Article 58(c) because it qualifies as a military operation endangering the civilian convoy in the sense of this provision. Moreover, “the resort to means and methods of warfare between parties to an armed conflict is governed by the legal paradigm of hostilities even if the ultimate purpose of [the] military operations is to maintain, restore, or otherwise impose public security, law, and order”.Footnote ¹⁰⁵ On the other hand, however, it remains uncertain whether the resort to an armed escort qualifies as a method of warfare in that while it may contribute to the war effort, it does not necessarily directly or actually inflict harm on the enemy.Footnote ¹⁰⁶ Lastly, these uncertainties may be strengthened if the escorting party is a non-State armed group, since whether or how the law enforcement paradigm applies to such groups is controversial.Footnote ¹⁰⁷

The same question regarding the applicable paradigm from the perspective of the escort – who can be targeted given their status as armed forces of a State or non-State armed group which is a party to the conflict – arises in cases of the use of armed force in self-defence against an attack on their person by the other party to the conflict. In the author's view, the defensive reaction of the escort can be qualified as conduct of hostilities because of the pre-existing conflict; the fact that, at least from the perspective of the attacker, the attack occurs in the context of the conduct of hostilities; the definition of “attack” in IHL as potentially occurring not only in offence but also in defence;Footnote ¹⁰⁸ and the fact that the escort actually and directly inflicts harmFootnote ¹⁰⁹ on a legitimate targetFootnote ¹¹⁰ who is a party to the conflict.

Similarly, in the author's view, in cases of the use of force in defence of the convoy by the military or an armed group which is a party to the conflict against an attack on the convoy which is unlawful, the unlawful character of the attack does not affect the prevailing paradigm for such a use of force on both the attacker and the escort's side. Indeed,

Application of the IHL framework to peace forces

Peace forces often have a mandate to protect civilians.Footnote ¹¹² In this context, they use force in “defence of the mandate”Footnote ¹¹³ with a gradual response ranging from deterrence, such as resorting to armed escorts, to direct confrontation when civilians are at risk.Footnote ¹¹⁴ When peace forces are escorting humanitarian convoys in situations of armed conflict, questions related to the applicability of the IHL framework delineated in the present article may arise.

One may wonder how UN peace forces may be bound by the principle of precautions as interpreted in the present article. The now widely cited Secretary-General's Bulletin on “Observance by United Nations Forces of International Humanitarian Law” famously sets the engagement of UN forces in armed conflicts as combatants as a prerequisite for the application of the fundamental principles and rules of IHL.Footnote ¹¹⁵ Those principles include the obligation to protect the civilian population from the dangers resulting from military operations.Footnote ¹¹⁶ Given the lack of a clear definitionFootnote ¹¹⁷ of the situations in which peace forces are engaged as combatants,Footnote ¹¹⁸ it is difficult to assess whether the Bulletin can serve as a legal basis to infer that peace forces should avoid the systematic use of armed escorts. A more solid legal basis would be Article 1 common to the four Geneva Conventions, which the updated Commentary of 2016 interprets as imposing an obligation on national contingents put at the disposal of international organizations to respect and ensure respect for IHL in the same way as States, to the extent that the organization retains command and control over the operation.Footnote ¹¹⁹ In that sense, and if peace forces can be considered as a party to the conflict,Footnote ¹²⁰ the same question as to whether the escorting operations falls within the purview of Article 58(c) of AP I under the conduct of hostilities paradigm which arises for State forces escorting a convoy can be posed here. An additional difficulty is that the principle of passive precautions would apply as matter of customary law, which is not the same in IAC as in NIAC, as previously examined.

Moreover, if peace forces are a party to the conflict and are considered legitimate targets, in case of a use of force in self-defence or in defence of the convoy, the same questions as those that arise for parties to an armed conflict can be raised here mutatis mutandis and answered accordingly. Moreover, an additional layer from the attacker's perspective compared to the armed forces of a State or a non-State armed group that is party to the conflict escorting the convoy is whether the attack falls within the conduct of hostilities or not if UN peace forces are not considered legitimate targets. If not, it means that the obligation to consider the reverberating effects of the attack does not apply to the attacker since the attack does not even fall under the conduct of hostilities paradigm.

Application of the IHL framework to private military and security companies

When considering attacks on convoys, the central question is whether the a priori unlawful character of the attack against the civilian convoy gives rise to the application and precedence of the conduct of hostilities paradigm or not. When PMSCs guard or defend a civilian object against unlawful attacks, they are considered as not directly participating in hostilitiesFootnote ¹²¹ because the defensive reaction lacks a belligerent nexus.Footnote ¹²² Therefore, it appears that a PMSC escorting a humanitarian convoy generally does not need to respect Article 58(c) of AP I as interpreted in the present paper, since it does not prevail in the first place. However, this author has examined the conditions under which humanitarian convoys turn into military objectives, which are scarce but do exist. As such, it is not always a given that the attack against a humanitarian convoy is not legitimate and therefore that the PMSC is defending the convoy in self-defence.Footnote ¹²³ In light of this, a PMSC might be precluded from systematically escorting humanitarian convoys under Article 58(c) through the obligation of States – as parties to the conflict – to ensure respect for IHL,Footnote ¹²⁴ national laws and their contract.Footnote ¹²⁵

When an attack on the escort falls under the conduct of hostilities paradigm, difficulties which blur the application of the IHL framework considered in the present article arise. PMSC members may not know that the convoy has turned into a military objective and thus that the practice of armed escort falls under the conduct of hostilities paradigm.Footnote ¹²⁶ Moreover, the fact that PMSC members are in the vicinity of a convoy which has turned into a military objective does not mean that they are legitimate targets.Footnote ¹²⁷ Yet, this assessment is crucial to the attacker even before envisaging the proportionality principle considered in the present article. In light of such uncertainties, this author agrees with Sassòli that PMSC staff should not be put in such ambiguous situations,Footnote ¹²⁸ in order to enhance protection surrounding humanitarian access.Footnote ¹²⁹

Looting convoys and convoys resisting searches

The nexus requirement has been understood to require that a conduct took place “in the context of and was associated with” an armed conflict.Footnote ¹³⁰ In the author's view, when a convoy is halted and looted by a party to the conflict in order for it to proceed further into the territory under that party's control, the belligerent nexus is sufficiently clear and the situation falls under the conduct of hostilities paradigm: it is covered by Rule 32 of the ICRC Customary Law Study, and if force is used by the escort in order to proceed, that force needs to comply with IHL. However, when the convoy is looted as a result of opportunistic criminality by an organized armed group, the conduct lacks a belligerent nexus, it is covered by international human rights law and domestic law, and the force used by the escort as a result must comply with the law enforcement paradigm.Footnote ¹³¹ This is clear when the armed escort is comprised of State military forces. However, in a NIAC, where a non-State armed group which controls a territory requires members of its own group to escort a convoy which is then looted by an organized criminal group, the situation might not be as clear-cut. Indeed, the position according to which “the way in which non-State armed groups exercise control over, and interact with, persons living in territory under their de facto control is inherently linked to the conflict in question”Footnote ¹³² has been put into question and can be opposed to the position where an armed group acting against ordinary criminals lacks a belligerent nexus.Footnote ¹³³

Regarding escorted convoys resisting searches, the use of an armed escort does not indicate an intent to resist a search of the consignments to which the parties are entitled.Footnote ¹³⁴ This is supported by the fact that the arrival of the relief consignments is anticipated. Indeed, in both IACs and NIACs, technical arrangements may be concluded between the parties concerned. Lattanzi notes:

These agreements may include the requirement not to be escorted.Footnote ¹³⁶ Therefore, the parties concerned already consent to the armed escort. When a party did not consent to an armed escort – in such arrangements, for instance – it may indicate an intent to resist search, but such resistance triggers at best a denial of entry and “raise[s] suspicion and may justify the use of force according to a law enforcement paradigm”.Footnote ¹³⁷