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New Wars and the Crisis of Compliance With the Law of Armed Conflict by Non-State Actors

NCJ Number
Journal of Criminal Law and Criminology Volume: 98 Issue: 3 Dated: Spring 2008 Pages: 711-810
M. Cherif Bassiouni
Date Published
100 pages
This article identifies and examines various issues that have a significant bearing on noncompliance with International Humanitarian Law (IHL) by non-state actors involved in conflicts of a non-international or purely internal character, with attention to whether such noncompliance has reached crisis proportions that require a re-examination of the validity of the assumptions underlying compliance expectations.
The article notes that the asymmetry of forces between state and non-state actors in a conflict is almost always going to lead to violations of IHL by the weakest protagonist, i.e., the non-state actors. Further, non-state actors give priority to media attention, which drives non-state actors to engage in dramatic violations of IHL that the media cannot ignore, so as to promote their claims or prove their power and effectiveness against the superior military resources of state actors. In responding to non-state actors whose tactics routinely violate IHL, states are tempted to suspend strict compliance with IHL under declarations of an emergency and imminent dangerous threat by a non-state enemy that has no regard for IHL. The latter state actions are then cited by non-state actors as justification for continuing and even intensifying their IHL violations. Among the 12 recommendations offered, this article proposes adding a Protocol to the Geneva Conventions that eliminates the disparities in protections between all forms of conflict and giving combatants willing to abide by IHL the status of lawful combatants and that of prisoners of war (POW). Also, governments should recognize non-state actors engaged in conflicts of a non-international character as lawful combatants, granting them lawful-combatant and POW status when they agree to comply with IHL. Further, governments should stop the practice of legitimizing their IHL violations while condemning IHL violations by non-state actors. 398 notes