Two issues have become particularly troublesome in recent conflicts involving irregular non-state armed groups, especially those that fight through the use of terrorism rather than more traditional military campaigns. The first is to determine when such fighters can be the target of military attack. According to a provision of both Additional Protocols that is also recognised as customary law, civilians can only be targeted when they are taking a direct part in hostilities. (This is in contrast to formal combatants, who can be targeted at any time when military necessity demands, except when they are hors de combat.) But it is far from clear how this criterion should be interpreted, and the ICRC has recently produced guidelines that have already been the focus of much discussion.
The second issue concerns the detention of those suspected of fighting for such groups. The Geneva Conventions provide a detailed scheme for the detention of prisoners of war in international armed conflict, and civilians in occupied territory. But there is nothing in the law to specify rules and procedures for the detention of suspected enemy fighters in armed conflicts involving non-state groups. This question has been at the centre of debates about how prisoners captured by the United States in Afghanistan and elsewhere in its “war on terror” should be regarded.
One effect of the increasing attention paid to conflicts against insurgents and terrorists has been to raise the question of how the laws of armed conflict relate to human rights. Already the Geneva Conventions reflect the influence of a human rights sensibility—most notably in Common Article 3, which imposes obligations on states during internal conflicts which are binding even when insurgents do not observe the law themselves. A possible direction of future legal development could involve the clarification of how human rights against prolonged arbitrary detention and arbitrary deprivation of life should be understood in the context of military action, both domestically and overseas.
Undoubtedly one of the most striking developments in international humanitarian law since the drafting of the Geneva Conventions in 1949 has been the growing assimilation of international and non-international conflicts. Building on the foundation of Common Article 3, a whole structure of legal thought has grown up that increasingly treats all armed conflicts as subject to the similar rules. This tendency reached its highest development in a recent ICRC study of customary IHL, in which all but 13 of the 159 rules applicable in international armed conflict were also found to be applicable in non-international conflict.
This development clearly represents an enormous advance in humanitarian protection, given the prevalence of civil wars and other campaigns against non-state groups in today’s world, even if the enforcement of the law in such conflicts remains difficult. But at the same time, there may be grounds for believing that the pendulum has swung too far. The drive to promote protection for the victims of all conflicts should not obscure the essential ways in which non-international conflicts remain distinct. One of these concerns the aims of the fighting. In inter-state wars it is prohibited to annex any territory seized or import your own political system, and IHL recognises a strict separation between military and political targets. But it is precisely the aim of insurgent groups to seize political power and the structures of domestic authority—so rules that forbid attacks on political targets in domestic conflicts do not offer an equal playing field to such groups. This threatens to forfeit the impartiality between parties to a conflict that has always been an essential attribute of the laws of armed conflict.
Similarly, there is an increasing tendency to treat non-state groups as analogous to regular armed forces for the purposes of targeting. The ICRC’s recent guidelines on the concept of direct participation in hostilities suggested that fighters who perform a “continuous combat function” for armed groups should no longer be regarded as civilians, but subject to attack on the same basis as combatants in an armed conflict. The purpose of the proposal is to avoid a situation where fighters can benefit from a “revolving door”—fighting on a regular basis, but benefiting from civilian protection when they are not actually fighting. At the same time, it appears anomalous for IHL to create a category of fighters who are deprived from protection from attack by virtue of their status, yet who are not themselves protected from prosecution for their military acts if they are captured.