According to the second approach, IHL is, generally speaking, territorially unrestricted. IHL attaches not to territories but to the conduct of armed conflicts and their effects on individuals, irrespective of location (except, of course, when provided otherwise by specific rules, e.g. rules on occupied territories). The only condition to the application of IHL to a given act or ommission is the existence of an armed conflict and of a sufficient nexus to it. For arguments in favor of this approach see here and here. Critics have expressed fears that this would result in a “global battlefield” as States would be able to rely on the supposedly more permissive rules of IHL to conduct hostilities across the globe.
If it were to adjudicate allegations of torture committed by the CIA in Poland, Romania or Lithuania, the ICC (or national courts) would have to take a stand in this debate. If judges follow the first approach, they will have to examine whether IHL applied in Poland, Lithuania or Romania. As no hostility occurred there, they will have to conclude that the NIAC threshold was not crossed there. A finding of war crimes would be possible only if they adopt the view -shared by the ICRC – that IHL is automatically overseas chinese in canada dataapplicable to the territory of States engaged in an extraterritorial NIAC. The three countries were indeed parties to the NIAC(s) against the Taliban (and other armed groups) at the time of the alleged crimes, as they were contributing troops to Operation Enduring Freedom and ISAF since early 2002 (Lithuania deployed troops under ISAF from October 2002 and OEP from November 2002 but had provided other kinds of support before). Then the judges would have to examine the existence of a sufficient nexus between this NIAC and the acts of ill-treatment.
Or they could adopt the second approach. In that case, once the existence of a NIAC is established, they would only have to address the nexus requirement. Because NIAC rules prohibiting ill-treatment contain no territorial limitation, the location of the incriminated conducts would not impact their analysis. In doing so, they would also leave the door open for the future prosecution of other crimes committed in the name of the global fight against terrorism, in connection to a distant NIAC. Indeed, if IHL applies across frontiers, it protects, for instance, anyone detained in connection to an armed conflict from ill-treatment, irrespective of where (s)he is being held. A breach of this IHL prohibition could then be prosecuted as a war crime by the ICC or non-territorial State courts (which otherwise would have no jurisdiction, unless the violation constituted another international crime, such as a crime against humanity), irrespective of whether the threshold of an armed conflict is met in the State where it occurred, and of whether the territorial State was a party to the conflict.