Is the Law of Armed Conflict Outdated?

Abstract

ABSTRACT: The law of armed conflict has often been described as outdated and ill suited to military conflicts in the twenty-first century. Both academics and practitioners have argued that today's wars tend to be asymmetric conflicts between states and nonstate actors, whereas the law of armed conflict was made with a view to symmetrical interstate war. This article challenges that notion. ********** The law of armed conflict--from the Lieber Code to the Additional Protocols to the Geneva Conventions--was drafted precisely as a response to challenges posed by irregular fighters. The problems with applying the law to irregular warfare stem from two aspects: first, that the drafters of the law repeatedly chose a negative approach to irregular fighters. They neither provided an explicit definition of an irregular fighter nor did they spell out principles for their lawful treatment. The second aspect is that the aims of western military interventions differ considerably from earlier forms of anti-irregular fighting: in today's anti-irregular wars, political stabilization and societal reconciliation are the main political objectives. Thus, the central question facing both academics and practitioners is how the law of armed conflict can be applied in a way that furthers these political aims. The terror attacks of 9/11 and the military operations in their aftermath sparked a debate over the status and applicability of the law of armed conflict in the wars of the twenty-first century. Policymakers on both sides of the Atlantic were quick to assert that the law itself, most of which was drafted during the twentieth century, was inapplicable on the battlefields of the twenty-first century. The argument that the law of armed conflict was ill suited for the new paradigm of what would become known as the War on Terror was decisive for the Bush administration's decision in February 2002 not to apply the Geneva Conventions to al Qaeda and Taliban fighters captured in Afghanistan. (1) Although most Europeans like to think of themselves as having consistently opted for a rule-of-law approach to terrorism, senior officials in Europe echoed the argument. (2) The assumption on which this assessment is based is that the law of armed conflict was drafted with a view to symmetrical interstate wars, whereas wars in the twenty-first century will be asymmetric conflicts in which regular state forces are fighting against a variety of actors such as terrorists, rebels, insurgents, militias, mercenaries, pirates, and so on, who are usually lumped together under the notion of nonstate actors. Symmetry implies reciprocity, meaning all parties to a conflict will abide by the same rules. The concept of belligerent reprisals, which were a legitimate means of war until the drafting of the Geneva Conventions in 1949, reflects this assumption of reciprocity: if one party to a conflict systematically breaks the law of armed conflict, the opponent is entitled to retaliate in kind or in another punitive way to ensure the law is upheld. In asymmetric conflicts--and it is important to note that the notion of asymmetric warfare predates the War on Terror and encompasses not only terrorism but also conflicts in the peripheries of the international system variously labeled new wars, low-intensity conflict, military operations other than war, or fourth generation warfare--reciprocity is by definition undermined. (3) The concept of asymmetric warfare implies that a weaker opponent with fewer military capabilities and resources is pitted against a powerful state actor. Weak opponents will use almost any means at their disposal to achieve their aims in war; they will use terrorist tactics, attack civilians, plant roadside bombs, and kill prisoners if they happen to capture any. (4) However, weak opponents, although not abiding by the law, will challenge any perceived transgression on the part of the state actor and exploit it in the court of international public opinion. …