Richemond-Barak: Applicability and Application of the Laws of War in Modern Conflicts

Daphné Richemond-Barak (Interdisciplinary Center Herzliya - Radzyner School of Law) has posted Applicability and Application of the Laws of War in Modern Conflicts (Florida Journal of International Law, forthcoming). Here's the abstract:

This Article examines how concepts designed to regulate state-to-state interaction apply to conflicts involving nonstate actors - be they members of guerilla groups, terrorist organizations, or private military contractors. "Reciprocity” in international law refers to the expectation by a belligerent state that other state parties to a conflict will respect similar legal and behavioral norms - non-use of prohibited weaponry, minimization of collateral damage, and humane treatment of prisoners of war. The “principle of distinction” holds that civilians and combatants are clearly distinguishable protagonists on or near the battlefield. I focus on reciprocity and distinction because they constitute meta-issues whose resolution determines the applicability of accepted legal principles to virtually all modern conflicts. A close examination of these topics suggests that reciprocity and the principle of distinction are of central importance in conflicts involving nonstate actors. On the issue of distinction, I argue for a more expansive understanding of the notion of combatant - an understanding that allows for the greater application of international humanitarian law to nonstate actors, an easier implementation of the principle of distinction, and improved protection of civilian populations. On the issue of reciprocity, I argue that most of international humanitarian law is binding in most conflicts on most actors (whether or not the parties behave reciprocally). The only situation in which a state may not be bound by all of humanitarian law is when an opposing nonstate party repeatedly violates international humanitarian law in an international armed conflict.