Applicability and application of the laws of war to modern conflicts
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Florida Journal of International Law, Vol. 23, no. 3, December 2011, p. 327-357
The article examines if, and how, the laws of war apply to conflicts involving non-state actors - whether they are guerilla groups, terrorist organizations or private military contractors. Non-state actors, which are not party to treaty-based norms regulating the conduct of war, cannot be assumed to operate on the basis of reciprocity. Given that reciprocity is the assumption underlying this entire body of law, the question arises of whether, in the absence of reciprocity, the law continues to apply. I answer this question in the affirmative. I argue that the involvement of non-state actors in warfare does not, in and of itself, affect the applicability of the laws of war. The only situation in which a state may not be bound by all of humanitarian law is when an opposing non-state party repeatedly violates international humanitarian law in an international armed conflict. Having established the applicability of most, if not all, of international humanitarian law to most conflicts involving non-state actors, I analyze the application of the law to these actors. I argue for a more expansive interpretation of the concept of "combatant" - one which allows for the greater application of international humanitarian law to these actors, an easier implementation of the principle of distinction, and improved protection of civilian population. I review the historical evolution of the principle of distinction, how it became fundamental to international humanitarian law, and how the concept of "combatant" evolved over time from an activity-based to a membership-based designation. I then examine the substance of the law as stated in the Geneva Conventions, which diverge, I argue, from both earlier and subsequent characterizations of combatant status. I conclude by offering an interpretation of combatant status which would allow more non-state actors to accede to combatant status.