Extra-State Armed Conflicts: Is There a Need for a New Legal Regime?
78 Pages Posted: 16 Oct 2005
Recent decades have presented us with a significant increase in cases of ongoing hostilities between a non-state actor and a state that are not limited to the territory of the state involved (extra-state hostilities). This Article addresses the classification and regulation of extra-state hostilities and in so doing, makes three claims. First, it is the law of armed conflicts, and not that of peace, that should be the frame of reference for the regulation of extra-state hostilities. Second, the Article calls for the creation of a new category of armed conflict in international law for such situations - extra-state armed conflict - since such hostilities have unique features rendering their classification into traditional categories of intra or inter-state armed conflict inappropriate. Finally, the Article argues that recognition of this new category of armed conflicts does not result in a legal void. Extra-state armed conflicts are governed by specific rules that are derived from an interpretation of the general principles of international humanitarian law in the unique context of such conflicts, and are therefore tailored to their dynamics. Such interpretation must take account of two major conceptual pillars. First, in the case of extra-state armed conflicts the justification for the use of force is more limited than the justification to use force in other situations of armed conflict. Thus, it is possible that the application of the general principles of international humanitarian law to extra-state armed conflicts will lead to rules that impose grater restrictions on the party using force. Second, the way in which the general principles of international humanitarian law should be interpreted in the context of extra-state armed conflict should take into account the way in which the same principles have been interpreted and applied in the context of inter-state and intra-state armed conflicts. Thus, if, for example, nothing distinguishes the need for protection of civilians in extra-state armed conflicts from the need for protection of civilians in intra-state armed conflicts, then there is no reason to interpret the basic principles any differently in these two contexts.
Keywords: War, laws of war, international humaitarian law, terrorism, armed conflict, extra state armed conflicts, hostilities, Al Qaeda, prisoners of war, targeted killings
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