This essay scored a mark of 72, distinction.
The construction of international humanitarian law on an inter-state basis means that it is incapable of evolving to adapt to the requirements of modern, asymmetrical warfare.'
Discuss.
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UNIT CODE: LAWDM0158 UNIT TITLE: INTERNATIONAL LAW AND ARMED CONFLICT
COURSEWORK TITLE/QUESTION: ‘The construction of international
humanitarian law on an inter-state basis means that it is incapable of
WORD COUNT: 2943
evolving to adapt to the requirements of modern, asymmetrical warfare.’
Discuss.
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, Introduction
Today, the majority of armed conflicts look very different from the inter-state World Wars of the
last century. In fact, since 1998 “most asymmetric attacks have been in cities 1”. It has become
increasingly difficult to determine where these ‘new’ conflicts start and end, both temporally
and geographically, posing challenges to the law that seeks to protect in war. This essay will
examine the difficulties posed for the body of international humanitarian law (IHL) in dealing
with these conflicts, asserting that the law is incapable of fully evolving to the requirements of
modern, asymmetrical warfare. Initially, the original intentions and ‘design’ of IHL will be
considered, exploring the practical obstacles in the application of IHL in modern warfare.
There will be a focus throughout the piece towards the Goldstone Report, published in response
to the asymmetric Gaza-Israel conflict, in order to aid in this examination. In doing so, this essay
will look at warfare in Gaza and assess the perceived inefficacy of IHL in this environment. This
essay will also assess the fundamental IHL principle of distinction and the ability of IHL to
protect in urban conflicts, arguing that a great deal of difficulty is encountered here. The
necessity for international human rights law to intervene and ‘bolster’ IHL will also be
discussed, following an assessment of how practicable it is to re-address the treaty bodies that
underpin IHL. Provided that most armed conflicts today are non-international conflicts (NIACs),
there is concern that the existing body of IHL rules are largely catered towards international
conflicts (IACs) and thus may struggle in adapting to new methods of warfare. This essay
concurs with these concerns and explores them further.
The inter-state construction of international humanitarian law (IHL)
The body of international humanitarian law (IHL) is a lex specialis regime; a specific body of law
which applies only in situations of armed conflict as set out by Articles 2 and 3 of the Geneva
Conventions. An armed conflict can be of an international nature (IAC), occurring either
between two or more “high Contracting Parties2” or states, or non-international (NIAC),
occurring within the territory of a state3. The ability for non-international warfare to be
classified as an ‘armed conflict’ was established in the Tadic case, in which the ICTY Trial
Chamber decided that an armed conflict exists where there is “…protracted armed violence
between governmental authorities and organised armed groups or between such groups within
a State”.4 The aim of IHL within armed conflicts is ultimately to preserve elements of humanity.
In 1949, the International Committee of the Red Cross (ICRC) convened to revise the text of the
Geneva Conventions5 which now “provide the bedrock of humanitarian law in force today6”.
However, these texts were written with a focus on inter-state warfare. A further IHL legal
source, Article 1 of Additional Protocol II (AP II) to the Geneva Conventions, provides further
protections for non-international armed conflicts which are absent in the Common Articles of
the Geneva Convention. Despite encompassing ‘less law’ as such, Article 1 of AP II actually
provides stronger protections for NIACs, and some of the provisions of AP II are arguably
constituted in customary international law. However, the provisions of the Articles themselves
are only applicable to states who have ratified the Protocol. Military powers such as the U.S. and
Israel have failed to do so, which is concerning from an accountability viewpoint. This concern
rises when considered alongside the particularly high threshold of AP II – there is a requirement
1
S Sassen, When the City Itself Becomes an Instrument of War, [2010] Theory, Culture and Society Vol 20; 6 pp.
33 – 50, at pp. 36.
2
Common Article 2, GC I – IV.
3
Common Article 3, GCI – IV.
4
ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
IT-94-1-A [1995], para.70.
5
F Bugnion, The International Committee of the Red Cross and the Development of International Humanitarian
Law, [2004] Chicago Journal of International Law: Vol. 5: No. 1, Article 14.
6
ibid, pp. 194.
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