“Jousting at Windmills”

Abstract

This chapter examines the status, rights, and obligations of nonstate entities within the framework of international humanitarian law and asks whether modern international humanitarian law is viable in light of changing threats posed by terrorists locally, regionally, and internationally. More specifically, it considers the existing rules and paradigms of international law and proposes a new framework for the treatment of nonstate actors in armed conflicts. To this end, the chapter looks at two elemental humanitarian law precepts—the distinction between combatants and civilians and the link between combatant and prisoner of war (POW) status—and argues that they create an impasse today for states dealing with such actors as Taliban fighters in Afghanistan or Hezbollah forces on Israel's borders. Because no state dealing with transnational terrorism wishes to grant designated terror groups the legitimacy associated with POW status or impose upon themselves the targeting limitations of “civilians taking a direct part in hostilities,” the chapter calls for a new category of combatant and a review of the contingent relationship between combatant and POW status in light of today's national security environment.