During times of armed conflict, whether characterized as international or non-international, International Humanitarian Law ("IHL") is applicable. As a body of law, IHL does not question the lawfulness of a conflict (jus ad bellum) but seeks instead to apply humanitarian principles in warfare (jus in bello). IHL recognizes that even war has its limits, irrespective of its cause, and strives to establish humanitarian parameters to the means and methods of warfare and to alleviate the suffering that conflict so often causes to persons not taking part in the hostilities. The core IHL instruments are the four Geneva Conventions of 1949, their two Additional Protocols of 1977, and Additional Protocol III of 2005. The International Committee of the Red Cross ("ICRC") has been entrusted by states that are parties to the four Geneva Conventions and their Additional Protocols, (1) and through the Statutes of the International Red Cross and Red Crescent Movement ("Statutes"), (2) with the "guardianship" of IHL.
Tracing the history of the development of International Humanitarian Law during the twentieth century, it could be argued that IHL evolved to address new humanitarian concerns arising from the then existing conflicts. Thus after the Second World War, we saw states calling for greater protection of civilians during armed conflicts and an extension of the earlier Conventions to better address concerns relative to wounded and sick in armed forces in the field and at sea, and to prisoners of war. The addition of Common Article 3 to the four Geneva Conventions marked an important step forward in that, even in non-international armed conflicts, a minimum of protections would be ensured for persons taking no part in hostilities or those who are hors de combat.
Similarly, with the adoption of the two additional Protocols in 1977, more than a quarter of a century later, states sought to deal with aspects of human suffering not covered by the 1949 Geneva Conventions. Provisions on the conduct of hostilities and of combatants, traditionally found within the "Law of the Hague," were included. (3) Additional Protocol II represented the first international instrument dedicated to the protection of victims of non-international armed conflicts. With the Geneva Conventions having been ratified universally and the 1977 Additional Protocols ratified by the vast majority of states, the international community has voiced its commitment to the principles contained in these instruments and to respecting and ensuring the respect of IHL. (4)
However, in recent times, armed conflicts have given rise to new challenges and to new humanitarian concerns. The realities of modern day armed conflicts have also fuelled the debate as to the adequacy of IHL in the face of an evolving tapestry of conflict.
Indeed, it could be argued that starting in the early 1990s, there has been a notable shift away from the manner in which conflicts were traditionally fought, with new actors, new weapons and new tactics. Contemporary armed conflicts are vastly different creatures from those prevailing in the first part of the twentieth century, when states negotiated the texts of the Geneva Conventions. Gone are the days when the belligerents were often easily recognizable and were predominantly members of the regular armed forces of the states confronting one another, as was the case during the First and Second World Wars. Those actively engaged in the fighting then were usually soldiers who stood apart from civilians, and civilians were not seen to be taking any direct part in the hostilities. Combatants would wear military uniforms and carry their weapons openly.
Presently, most armed conflicts are not fought between states in such a traditional fashion. A wide range of highly complex and drawn-out internal conflicts of low intensity are replacing interstate warfare. (5) Most conflicts usually involve at least one organized non-state armed group, without a clear start or end to the hostilities. …