Chapter

Current challenges to international humanitarian law

Antonio Cassese

The Oxford handbook of international law in armed conflict

Oxford : Oxford University Press, 2014

p. 3-19

English

In the view of the author, the real weakness of humanitarian law lies in the fact that in the numerous wars that plague the planet, civilians are no longer protected. All wars, internal or international, result in massacres. Why? The reason is very simple: the segment of IHL that governs the conduct of hostilities, namely the use of the means of war (arms) and the methods of war (attacks against the enemy), is loose and flawed by lacunae. The first failing is the total and asymmetric nature of modern armed conflicts. The entire body of law which we have at our disposal today is modelled on a Rousseauian conception of war, fought between two armies. As a result, the author identifies specific gaps: First, guerrillas and terrorists are discouraged from respecting IHL, irregular combatants usually do not comply with the prescriptions of IHL and make no effort to distinguish themselves from civilians. A second serious deficiency of modern IHL lies in the fact that it does not sufficiently limit the exorbitant military might of belligerent powers. Thirdly, IHL fails to control the actions of ‘private contractors. A fourth deficiency of modern IHL is that there are no effective mechanisms for determining when a belligerent has violated that very law. Finally, IHL fails to secure compensation to victims. After identifying these gaps, the author proposes action on three level to mitigate the devastation of armed conflicts: the drawing up of non-binding guidelines; the set up of flexible and effective monitoring mechanisms; and the compensation of victims

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• The Oxford handbook of international law in armed conflict / ed. by Andrew Clapham and Paola Gaeta ; assistant ed.: Tom Haeck, Alice Priddy