The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors
Bassiouni, M. Cherif, Journal of Criminal Law and Criminology
I. INTRODUCTION II. INTERNATIONAL HUMANITARIAN LAW AND THE REGULATIONS OF ARMED CONFLICTS III. CHARACTERISTICS OF NON-INTERNATIONAL AND INTERNAL CONFLICTS A. LEGAL CHARACTERIZATIONS B. CONTEXT SPECIFIC DIFFERENTIATIONS OF LEGAL NORMS APPLICABLE TO NON-STATE ACTORS 1. Wars of National Liberation and Regime Change 2. Conflicts of an International Character Involving Non-State Actors on the Side of State Actors 3. Non-State Actors in Non-International Conflicts 4. Doctrinal and Jurisprudential Efforts Addressing Overlaps IV. THE CULTURE OF WAR IN NON-INTERNATIONAL AND PURELY INTERNAL CONFLICTS: ITS METHODS, MEANS, AND THE IMPACT ON COMPLIANCE AND NON-COMPLIANCE A. THE NEW CULTURE OF WAR B. THE MILITARY STRUCTURE AND THE STRATEGY OF VIOLENCE AND TERROR VIOLENCE BY NON-STATE ACTORS C. NON-STATE ACTORS AS STATE SURROGATES D. FINANCING, FUNDING AND ARMING OF NON-STATE ACTORS E. THE POLITICS OF HATE V. FACTORS ENHANCING AND DETRACTING FROM COMPLIANCE WITH IHL A. CLAIMS OF LEGITIMACY B. ASYMMETRY OF FORCES C. POSITIVE INDUCEMENT FACTORS D. VALUES AND BEHAVIOR E. CRIMINOLOGICAL FACTORS-- COMPLIANCE/DETERRENCE ISSUES IN IHL F. POLITICAL CONSIDERATIONS: THE POLITICAL QUICK FIX IN ENDING CONFLICTS VI. CONCLUSIONS AND RECOMMENDATIONS
Since the end of World War II, an estimated 250 conflicts have taken place on almost every continent in the world, resulting in estimated casualties ranging from seventy million to 170 million, most of whom were non-combatants, (1) Almost no region of the world has been spared the human and material devastation resulting from violations of International Humanitarian Law (IHL) (2) by state as well as non-state actors, notwithstanding the fact that such violations are contrary to the professed fundamental values and beliefs of most of those engaged in these conflicts. (3)
A number of research organizations, including the Carnegie Endowment for International Peace, SIPRI, PIOOM, International Human Rights Law Institute, and others, have attempted to identify the number of conflicts of a non-international character and the level of victimization that has resulted in these conflicts. (4) These research projects, however, seldom distinguish between groups of non-state actors who engage in armed conflicts that are legally characterized as international, non-international, or purely internal armed conflicts. (5) A number of legal consequences derive from these characterizations that impact on compliance with the norms of IHL, and in turn affect the levels of victimization occurring in these conflicts.
After World War II, the culture of war changed and a new generation of means and methods of warfare emerged, which extends until now. This development raises questions about the continued validity of classic assumptions underlying what is interchangeably called the Law of Armed Conflict, the Laws of War, and International Humanitarian Law. The invalidation by the new wars of the assumptions raises the question of whether these "laws" are still relevant. (6)
Three factors command consideration with respect to compliance by non-state actors. The first is that non-state actors in conflicts of a non-international or purely internal character are almost always in an asymmetrical relationship to the strength and resources of the governments that they oppose. This asymmetry puts them at a military disadvantage that precludes them from fighting a significantly more powerful opponent with the same limitations on means and methods of warfare. In fact, this asymmetry compels them to resort to unconventional and unlawful means and methods of warfare as the only way to redress the military and economic imbalance they face. …