The Diversification of Actors Involved in Armed Conflicts: Beyond 'Direct Participation to Hostilities'? (La Diversification Des Acteurs Impliqués Dans Les Conflits Armés: Vers Un Dépassement De La 'Participation Directe Aux Hostilités'?)

31 Pages Posted: 30 Sep 2009

See all articles by Frederic Megret

Frederic Megret

McGill University - Faculty of Law

Date Written: September 28, 2009

Abstract

This paper (in French) was originally presented at a conference at the Collège de France organized by the University of Paris I on "The role of third parties to the implementation of international humanitarian law". As discussant, I was asked to provide a general presentation of the challenges of distinguishing between "parties" and "non-parties" in today's conflicts. The paper seeks to give an overview of current debates, whilst questioning how long this distinction can remain the summa divisio of the laws of war in a context where it radically challenged both by non-state actors and states. I suggest that the distinction is in practice more a continuum than a clear binary opposition in that, although some actors may more naturally be seen as "parties" or "non-parties", there is no status that cannot change over the course of a conflict depending on what one does (as opposed to what one is). I suggest that this essential and inevitable fluidity is also what makes it very difficult to keep these distinctions stable over time. I then turn to what I see as the two hardest cases of maintaining the division, namely private security companies on the one hand, and terror groups on the other (arguably both instances - albeit very different - of a larger trend towards privatization of violence). The great difficulties that these actors create in terms of the implementation of international humanitarian law suggest that the distinction is under threat. In the conclusion, I outline some ways in which the distinction might be reinvigorated or transcended. I suggest, for example, that one should critically assess international humanitarian law's continued statist biases (state forces are always combatants, even if they violate the laws of war, whereas this is not true of non-state or irregular forces) on humanitarian grounds. Moreover, I suggest that the normative asymmetry of conflicts creates conditions where states must be willing to abide by high standards even confronted with an adversary that does not - so much so, in fact, that international human rights law may in the end turn out to be the most cogent way to regulate contemporary modes of even armed violence.

Keywords: laws of war, combattants, special forces, peacekeeping, journalists, human shields, humanitarian organizations, terrorists, belligerents, private security companies

JEL Classification: K33, N40

Suggested Citation

Mégret, Frédéric, The Diversification of Actors Involved in Armed Conflicts: Beyond 'Direct Participation to Hostilities'? (La Diversification Des Acteurs Impliqués Dans Les Conflits Armés: Vers Un Dépassement De La 'Participation Directe Aux Hostilités'?) (September 28, 2009). Available at SSRN: https://ssrn.com/abstract=1479897 or http://dx.doi.org/10.2139/ssrn.1479897

Frédéric Mégret (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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