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not determinative of whether the permissions that are sometimes viewed as inherent in jus inbello rules may be relied upon by a State or non-State actor. 473.4.1 Intent-Based Test for Applying Jus in Bello Rules. Jus in bello rules apply when aparty intends to conduct hostilities.If a State chooses to go to war, then it is bound by jus in bello rules for the conduct ofthose hostilities. 48 For example, if a State considers it necessary to respond to attacks withmilitary force, then those military operations must comply with jus in bello rules. 49The fact that the intention to conduct hostilities gives rise to obligations to comply withthe law of war is important because law of war obligations must be taken into account evenbefore the fighting actually begins, such as in the planning of military operations. 50 Similarly,certain obligations under the GPW and the GC are triggered by the onset of hostilities, and itmay be necessary to implement these obligations even before the fighting actually begins. 51 Asanother example, the party that is subject to attack is often in a position to take feasibleprecautions for the protection of the civilian population even before the fighting begins. 523.4.1.1 Declarations of War or Other Official Recognition by States of a State ofHostilities. The application of the 1949 Geneva Conventions and other law of war treaties tocases of “declared war” is an example of how jus in bello restrictions apply when a party intendsto conduct hostilities. 53 Traditionally, a State could create a state of hostilities with another State47 Refer to § 1.3.3.2 (Law of War as Permissive Law).48 L. OPPENHEIM, II INTERNATIONAL LAW 66 (2nd ed., 1912) (“But if [States] choose to go to war they have tocomply with the rules laid down by International Law regarding the conduct of war and the relations betweenbelligerents and neutral States.”).49 For example, Patrick F. Philbin, Deputy Assistant Attorney General, Legality of the Use of Military Commissionsto Try Terrorists, Nov. 6, 2001, 25 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 238, 276 (“In addition, the UnitedStates has determined that it is necessary to respond to the attacks with military force. That decision is significantbecause one element often cited for determining whether a situation involving a non-state actor rises to the level ofan “armed conflict” (for example, for purposes of common Article 3 of the Geneva Conventions) is whether a stateresponds with its regular military forces. The United States has urged this position. See 3 U.S. Practice § 2, at3443; see also G.I.A.D. Draper, The Red Cross Conventions 15-16 (1958) (under common Article 3, “armedconflict” exists when the government is “obliged to have recourse to its regular military forces”). Here, thiscriterion is overwhelmingly satisfied. As outlined above, the United States has found it necessary to respond with amassive use of military force. The current operations in Afghanistan and continuing preparations for a sustainedcampaign easily establish that the situation here involves an armed conflict for purposes of international law.”).50 Refer to § 18.8 (Considering Law of War Obligations in the Planning of Military Operations).51 Refer to § 9.4 (National-Level GPW Implementation Measures); § 10.2 (National-Level GC ImplementationMeasures).52 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the PartySubject to Attack).53 See, e.g., GWS art. 2 (The convention applies “to all cases of declared war … between two or more of the HighContracting Parties”); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURALPROPERTY CONVENTION art. 18 (“the present Convention shall apply in the event of declared war … between two ormore of the High Contracting Parties”); CCW art. 1 (“This Convention and its annexed Protocols shall apply in thesituations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of WarVictims,”).79