The law that turned against its drafters : guerrilla-combatants and the First Additional Protocol to the Geneva Conventions
Rethinking the law of armed conflict in an age of terrorism
Lanham [etc.] : Lexington Books, 2012
This chapter explores the effect of the First Additional Protocol's provisions on customary international law, both with regards to the question of entitlement to prisoner-of-war status and with regard to the application of the principle of distinction in the conduct of warfare. At the heart of the argument lies the proposition that state practice may have a destructive effect on customary norms that exceeds its constitutive effect. This is precisely what has happened with the Protocol. While the Protocol's provisions regarding guerilla insurgency failed to acquire a status of customary norms, they nonetheless undermined the customary status of preexisting rules. The implications of this are twofold and - from the perspective of the Protocol's drafters, who intended to give additional protections to groups fighting against state adversaries in irregular conflicts - sadly ironic. First, the Protocol failed to expand the category of guerillas entitled to POW status under customary law. Second the Protocol eroded much of the protection against attack previously afforded to guerillas under the customary law principle of distinction. Hence, from the perspective of guerilla fighters, the Protocol had only adverse consequences in terms of its influence on the state of customary international law.