Emily Crawford

Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts

This article examines the possibility of creating a law of armed conflict that could be uniformly applied to both international and non-international armed conflict. The article looks at the history of modern armed conflict, and charts the progression of warfare from a predominantly interstate event to that which is more likely to be characterized as non-international or internal. The increasing prevalence of non-international armed conflicts throughout the twentieth century has lead to ongoing moves on behalf of the international community to bring the regulation of such conflicts further within the ambit of international regulation. With this in mind, the article argues that such moves have blurred the historical distinction between types of armed conflict to the point where the distinction could be eliminated altogether. By looking at international treaties, tribunals, and state practice, this article asserts that the law of armed conflict could be uniformly applied, with the aim of ensuring that all participants in armed conflict are equally and humanely treated.

The Principle of Distinction and Remote Warfare

In theory, certain forms of remote warfare are ideal for compliance with the principle of distinction. Technologically advanced weaponry, such as unmanned aerial vehicles (also known as UAVs, or drones), are able to conduct precision attacks, eliminating targets with a degree of exactness and surety unmatched by previous technologies such as missiles or bombs. In the realm of cyber-hostilities, precisely engineered software or computer code can target and disable very specific objectives, ensuring that only specific objectives are affected by the attack, leaving other systems untouched. Equally, however, the remoteness of such warfare can make distinction assessments and distinction-compliant targeting a harder task. This chapter therefore examines certain questions that arise regarding the principle of distinction and remote warfare. What impact does the remoteness of these means and methods of warfare have on the principle of distinction? Does the fundamental ‘remoteness’ of these kinds of attacks – drone attacks and cyber-attacks – mean that compliance with the principle of distinction is made easier or harder? That is to say, does the physical removal of the attacker from the immediate or proximate vicinity of the target make respecting the principle of distinction more or less achievable? And if compliance with the principle of distinction is facilitated by these remote means and methods of war, how much of that is due to the ‘remoteness’ of the weapons? Is the remoteness of the drone pilot or the cyber-attacker fundamentally linked to distinction-compliant warfare?

Tracing the Historical and Legal Development of the Levée en Masse in the Law of Armed Conflict

Levee en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regards to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levee en masse in the modern laws of armed conflict, there have been few, if any, instances of levee en masse taking place in modern armed conflicts. This article examines how and why the category of levee en masse developed. In doing so, this paper situates the concept and evolution of levee en masse within the history of international humanitarian law more generally.

From Inter-State and Symmetric to Intra-State and Asymmetric: Changing Methods of Warfare and the Law of Armed Conflict in the 100 Years Since World War One

This chapter examines the changing methods of warfare over the last 100 years, how the law has adapted to respond to these changing methods, and whether the law as it exists in 2014 is still consonant with armed conflict as it exists in 2014. Over the last century, the preponderant type of armed conflict—international armed conflict—has given way to non-international, transnational, and internal armed conflicts. These newly predominant types of armed conflict have also brought with them new participants, new tactics, and new targets. The law of armed conflict has attempted to keep pace with these developments, adopting new comprehensive treaties in 1949 and 1977 (along with a raft of treaties governing permissible means and methods). However, as these new participants employ new or irregular methods to fight their wars, pressures are brought to bear on the existing law of armed conflict. This chapter will use the First World War and its centennial in 2014 as ‘bookends’ with which to frame the discussion of just how wars have changed over the last 100 years, how the law has responded to such changes, and whether the law needs to continue to change in response to altered methods of armed conflict.

Advanced introduction to international humanitarian law

Robert Kolbs Advanced Introduction to International Humanitarian sets itself an ambitious objective: to provide an ‘advanced, challenging, short and selective introduction to IHL’ (p. viii). This ...

International Humanitarian Law in the Courts of Australia

Australia’s courts most often grapple with international humanitarian law in the context of refugee and asylum cases, and in cases that deal with extradition requests. However, Australia has also had some cause to directly investigate war crimes, though attempts at prosecuting such acts in the courts of Australia have proven to be less than successful. This chapter will look at some of the major cases in Australia’s legal history where international humanitarian law has been examined and applied.

Convergence of Norms Across the Spectrum of Armed Conflicts – International Humanitarian and Human Rights Law

International armed conflicts are by far the most highly regulated types of conflict, with a raft of treaties and comprehensive customary international law regulating permissible state conduct. By comparison, non-international armed conflicts have comparatively few laws regulating their conduct. However, despite the apparent lack of comprehensive treaty rules regulating non-international armed conflict, and the seemingly entrenched legal division between the types of armed conflicts, an examination of the history of IHL actually demonstrates a growing willingness among states to accept the introduction of more rules – and more detailed rules at that – on permissible conduct in non-international armed conflicts. The progressive development of the law of armed conflict over the past century has evidenced a growing acceptance of the need for comprehensive guidelines on the conduct of hostilities, whether they are international or non-international. This confluence of norms has been influenced significantly by the emergence in the post-World War II era of international human rights law. The wealth of treaties, declarations and customary law protecting human rights has seen states began to accept limits on their sovereign power in the name of protecting the rights of their citizens. In turn, the belief that states’ rights could only extend so far in their conduct towards their citizens necessarily influenced the conduct of states in non-international armed conflicts. With this background in mind, this chapter will examine how, over the past 60 years, we have seen a convergence in the laws relating to armed conflict, to the point that it is possible to speak of a large body of law applicable in all armed conflicts.