Rethinking the Divide between Jus Ad Bellum and Jus in Bello in Warfare Against Nonstate Actors

Abstract

Nonstate actors exploit and, hence, challenge two basic assumptions that have grounded jus in bello since its inception: that it is possible to compartmentalize the battlefield and isolate with sufficient clarity, military from civilian targets and that there are clear objectives to any military campaign, such as gaining control over territory. With no tangible military objectives, regular armies are often tempted to simply capture or kill as many of their opponents as possible or to intimidate their opponents’ non-combatant constituency. The essay argues that those concerned with the protection of non-combatants in such asymmetric conflicts should consider introducing jus ad bellum considerations in assessing compliance with jus in bello obligations.

Keywords: International Law, Laws of War, Asymmetric Warfare