Current Issues of International Law in Regulating Counter–Insurgency and Counter–Terrorism

Mária Bordás

doi:10.32565/aarms.2014.4.6

Abstract

The study sheds light on the current tendencies and examines if the international law on warfare can successfully be applied in practical reality in the progress of counterinsurgency and counterterrorism efforts. There have been two phenomena identified recently in warfare which endanger the public security and public safety of the democratic states of the world: terrorism and insurgency. Both of them mean a threat and attack on the population and the government authorities. It has been queried in military literature whether these new forms of warfare should be handled by military engagements or law enforcement. This is, nevertheless, not just a dilemma concerning the strategy on how to combat against them, but should be, at the same time, all done in accordance with the international legal regulations. This study is going to outline how the international law based on the principles of traditional warfare can be applied to insurgent or terrorist groups. Special emphasis will be given to see if the relevant laws have failures in regulating these new forms of warfare, and if so, what changes should be proposed for the recent regulations of international law.

Highlights

This study tries to shed light on the current tendencies if the international law on warfare can successfully be applied in practical reality in the progress of counterinsurgency and counterterrorism efforts
A general conclusion can be drawn based on this study that recent international law on warfare cannot sufficiently be applied in practical reality
The reason is that warfare has changed a lot during the last decades, in other words, traditional symmetric warfare has increasingly been replaced by new forms of asymmetric one, such as terrorism and insurgency

Summary

Introduction

This study tries to shed light on the current tendencies if the international law on warfare can successfully be applied in practical reality in the progress of counterinsurgency and counterterrorism efforts. There have been two phenomena identified recently in warfare which endanger the public security and public safety of the democratic states of the world: terrorism and insurgency. Both of them mean a threat and attack on the population and the government authorities. It has been queried in the military literature whether these new forms of warfare should be handled by military engagements or law enforcement. Special emphasis will be given to examine if the relevant laws have failures in regulating these new forms of warfare, and if so, what changes should be proposed for the recent regulations of the international law

Attempts to Define Insurgency and Terrorism

Challenges for Legal Regulations in Counterinsurgency and Counterterrorism

Characteristics of the International Law of War

The Law of Humanitarian Treatment and Human Rights

Findings

Summary