Humanizing Irregular Warfare: Framing Compliance for Nonstate ArmedGroups at the Intersection of Security and Legal Analyses

Abstract:     
This chapter combines legal and security analyses to address policy instruments that could serve to bring the traditional humanitarian law balance of humanitarian and security values into new paradigms of warfare. The chapter begins by showing how new challenges of regulating nonstate armed groups in armed conflict has eroded the original balance at the core of humanitarian law between states’ national security interests and humanitarian priorities to reduce unnecessary suffering for all victims of conflict. The chapter then explores, more particularly, how nonstate armed groups, by adopting an asymmetric strategy calculus that treats compliance with the law as a tactical vulnerability, have succeeded in leveraging compliance in their favor and, in turn, co-opting conventional incentives for increasing compliance, such as relaxed combatant status criteria in Additional Protocol I. Such resulting unintended consequences from attempts to change the law are constitutive: They not only create loopholes or disincentives for nonstate compliance, but enable the legal recognition of modern nonstate actors and their signature noncompliant practices on contemporary battlefields. We then return to the controversial history of the Martens Clause to provide perspective on the problem of the nonstate actor, showing that although this actor has never been entirely absent from the state-centric jus in bello, its marginal appearance in the law was a product of states’ early authority in regulating conflict — an authority now eroding as other international actors enter conflict regulation. The result is a “practicality gap,” a vacuum of ex ante formal spaces for habituating actors into the laws of war and its rules of engagement and the rise of ex post facto solutions, namely, the prevalence of prosecutorial measures and criminal law in humanitarian law. The chapter ends by recommending a policy approach for enlisting disparate and often recalcitrant armed groups into engagement with the law that targets their asymmetric calculus and maximizes the sources of resilience internal to humanitarian law.

Number of Pages in PDF File: 45

Keywords: International humanitarian law, the laws of war, nonstate actors, new battlefields, security studies

Accepted Paper Series