The conduct of hostilities under international humanitarian law - challenges of 21st century warfare
The central question is whether the current regime of international humanitarian law governing the conduct of hostilities in armed conflict is still adequate to deal with modern conflict scenarios, or whether it needs revision or amendment.
- 2011 - 2016
- Robert Heinsch
- Gieskes-Strijbis Fund
Already after World War II, but increasingly with the end of the Cold War, there has been a change in the conduct of armed conflicts. We have witnessed a move away from classical interstate wars towards armed conflicts which are no longer characterized by two equal armies on each side. Rather, the majority of conflicts involve a (militarily) superior party, usually government troops opposed by armed rebel groups, freedom fighters, or terrorist cells – parties which are characterized by their conventionally weaker position. The inherent asymmetry of these conflicts creates a temptation for the inferior party to use war tactics which violate rules of international humanitarian law (IHL) in order to make up for disadvantages in matters relating to materiel, resources and fighters. This links in with the observation that today’s conflicts (‘new wars’) are not characterised mainly by the objective to gain territory or military victory in the classical sense, but are rather about achieving independence, identity, ethnic cleansing of an area, spreading terror and publicity for their cause in the case of terrorist groups.
This proposal suggests that the ILA form a study group to examine whether the IHL rules governing the conduct of hostilities are still sufficient to regulate these new kinds of conflicts. Although the law of armed conflict has arguably already adapted in a certain way by providing special rules for non-international armed conflicts, one needs to keep in mind that especially the Hague Law dealing with the means and methods of warfare was mainly designed to deal with interstate wars. Even though some of these rules are nowadays held to be equally applicable to non-international armed conflicts, they were originally not drafted to cover the situation of these kinds of conflicts, and thus the fit is not always appropriate. What is more, in modern asymmetric conflict constellations the conduct of hostilities increasingly seems to intersect/coincide with law enforcement operations. Thus, the central question is whether the regime governing the conduct of hostilities is still adequate to deal with current conflicts, or whether it needs revision or amendment. Although some sub-aspects of this issue have been examined before, what is still missing is a coherent and more principled approach to the challenges of 21st century warfare. Since the new kinds of conflicts involve non-State actors who partially merge with the civilian population, the legal cornerstones governing the conduct of hostilities, including the principle of distinction, the prohibition of indiscriminate attacks, the principle of proportionality, and the obligation to take active precautions in attack, warrant closer examination.