The Law on Asymmetric Warfare
Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, Mahnoush H. Arsanjani, ed., 2010
21 Pages Posted: 5 Aug 2012 Last revised: 12 Aug 2012
Date Written: January 1, 2010
The traditional law of armed conflict was carefully designed to align the incentives of parties engaged in a symmetric type of warfare. But asymmetric warfare against non-state actors is fundamentally different, and therefore requires a distinct set of substantive norms as well as different modalities of enforcement. The law of asymmetric warfare must eschew the traditional distinction between jus ad bellum and jus in bello, and instead demand that the powerful actor acknowledge its normative and institutional obligations toward civilians exposed to its military might. The discretion it has under the law, inter alia, to prevent excessive harm to civilians and to decide which precautions to take before an attack must be subjected to a reliable system of scrutiny which the essay outlines.
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