Estreicher: Privileging Asymmetric Warfare (Part III)?: The Intentional Killing of Civilians Under International Humanitarian Law

Samuel Estreicher (New York Univ. - Law) has posted Privileging Asymmetric Warfare (Part III)?: The Intentional Killing of Civilians Under International Humanitarian Law (Chicago Journal of International Law, forthcoming). Here's the abstract:

The overarching objective of the law of armed conflict, also called international humanitarian law (IHL), is the minimization of harm to civilians during such conflicts. Yet, at least in some circles, there is a reluctance to make evaluative judgments about non-state groups who, in a variety of contexts, intentionally target civilians as a tactic in pursuing their political or military objectives. Sometimes, such non-state actors target civilians affiliated with the enemy state simply as way of demoralizing or harming the enemy. In other situations, these actors attack civilians living in the enemy state’s (or a third party state’s) territory without regard to whether they are citizens or otherwise affiliated with the enemy state. As is true with regard to locating and deploying their military assets among dense civilian gatherings, the non-state group’s purpose is to provoke a military response from the enemy state that will result in the death of civilians in the areas the non-state group controls or occupies; such deaths help recruit new enlistees from the outraged civilian population, and stoke outcry from certain sectors of the international community.

The focus of this paper is on Common Article 3 of the Geneva Conventions of 1949 - the strongest, least debatable basis for applying certain IHL principles to those who kill noncombatants during internal armed conflict. It seeks to demonstrate that Common Article 3 binds both the state and those seeking its violent overthrow. The binding force of Common Article 3 flows both from the positive premise that states can legislate on behalf of all those within its territory, even its armed opponents, and from the fact that Common Article 3 reflects customary international law.

This paper is a call for moral and legal clarity. Politically-inspired murder of civilians during armed conflict is murder, pure and simple, and should be regarded as such by the world. Such acts, whether they occur in interstate or wholly internal armed conflicts, violate not only the domestic law of the victim’s state and of the state where the acts occur, but also violate well-established treaty and customary law. Murder of civilians is not a legitimate part of armed struggle, and cannot be justified by pleas of needing to right wrongs suffered at the hands of other states, or equalizing the balance of forces between the weak and the strong. The murderer of civilians, like the pirate, slave trader or torturer, merits the condemnation of all mankind, of all organized society.