Is the Law of Armed Conflict Outdated?

The law of armed conflict has often been described as outdated and ill suited to military conflicts in the twenty-first century. Both academics and practitioners have argued that today’s wars tend to be asymmetric conflicts between states and nonstate actors, whereas the law of armed conflict was made with a view to symmetrical interstate war. This article challenges that notion. T law of armed conflict—from the Lieber Code to the Additional Protocols to the Geneva Conventions—was drafted precisely as a response to challenges posed by irregular fighters. The problems with applying the law to irregular warfare stem from two aspects: first, that the drafters of the law repeatedly chose a negative approach to irregular fighters. They neither provided an explicit definition of an irregular fighter nor did they spell out principles for their lawful treatment. The second aspect is that the aims of western military interventions differ considerably from earlier forms of anti-irregular fighting: in today’s antiirregular wars, political stabilization and societal reconciliation are the main political objectives. Thus, the central question facing both academics and practitioners is how the law of armed conflict can be applied in a way that furthers these political aims. The terror attacks of 9/11 and the military operations in their aftermath sparked a debate over the status and applicability of the law of armed conflict in the wars of the twenty-first century. Policymakers on both sides of the Atlantic were quick to assert that the law itself, most of which was drafted during the twentieth century, was inapplicable on the battlefields of the twenty-first century. The argument that the law of armed conflict was ill suited for the new paradigm of what would become known as the War on Terror was decisive for the Bush administration’s decision in February 2002 not to apply the Geneva Conventions to al Qaeda and Taliban fighters captured in Afghanistan.1 Although most Europeans like to think of themselves as having consistently opted for a rule-of-law approach to terrorism, senior officials in Europe echoed the argument.2 1 President’s Memorandum for the Vice President, the Secretary of State, the Secretary of Defense, the Attorney General, Chief of Staff to the President, Director of Central Intelligence, Assistant to the President for National Security Affairs, Chairman of the Joint Chiefs of Staff, “Humane Treatment of al Qaeda and Taliban Detainees”’ (Washington, DC, 7 February 2002). The memorandum states: “By its terms, Geneva applies to conflicts involving ‘High Contracting Parties,’ which can only be states. Moreover, it assumes the existence of ‘regular’ armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm—ushered in not by us, but by terrorists—requires new thinking in the law of war, but thinking that should be nevertheless consistent with the principles of Geneva.” 2 John Reid, “Twenty-First Century Warfare —Twentieth Century Rules,” RUSI Journal 151, no. 3 (2006): 14-17. Fighting irregulAr Fighters Is the Law of Armed Conflict Outdated?