Publications

2006
Allan G. Hill, Cari Jo Clark, Ismail Lubbad, and Claude Bruderlein. 10/2006. “Hope and Despair over Health in Gaza.” BMJ, 333.Abstract

The Israeli re-invasion of Gaza this July has redrawn the world’s attention to the dire straits of the population living in the Gaza Strip. There, within an area the size of the Isle of Wight, 1.4 million people live without free access to the outside world. Contrary to international hopes, the Israeli decision to withdraw from Gaza in September 2005 has led to increasingly tight control over the movement of goods and people. The destruction of the Gaza power station in addition to the damage to bridges, roads, and other infrastructure can only worsen the plight of Gazans in the coming months.

bmj_hope_despair_gaza.pdf
Harvard Humanitarian Initiative. 9/2006. 2006 Humanitarian Health Conference Report. hhc-conference-report-2006.pdf
Ismail Lubbad, Allan Hill, and Cari Jo Clark. 6/2006. Population Projections for Socioeconomic Development in the Gaza Strip.Abstract

By all accounts, demographic pressures in the Gaza Strip — in terms of population density, age structure, and growth rate — are extraordinarily high compared to neighboring countries and regions. This population pressure, combined with limited resources and territorial isolation, places immense strain on public services, social and political institutions, and the natural environment. At the same time, insecurity resulting from a deteriorating political context leads to further poverty and unemployment. Together these conditions require both immediate attention and long-term development planning, both of which are, admittedly, difficult in an environment of continuing political uncertainties. Since September 2000, the Gaza population has suffered periods of protracted closure imposed by the Israeli authorities. This has had deleterious consequences on the socioeconomic situation in the Gaza Strip. Currently, 30.3% of the Gazan workforce is unemployed. Concomitantly, poverty is rampant. As of 2004, 37.2% of Gazan families were below the poverty line, 26.0% of whom experienced extreme poverty suggesting that the majority of poor households in Gaza are unable to meet their most basic needs. These challenges to human security are exacerbated by the fact that approximately 64% of the Gaza population are refugees , approximately half of whom still reside in camps.

hpcr_working_paper_no1_demography.pdf
Laurel E. Fletcher, Phuong Pham, Eric Stover, and Patrick Vinck. 6/2006. Rebuilding After Katrina: A Population-Based Study of Labor and Human Rights in New Orleans.Abstract

In August 2005, Hurricane Katrina swept through New Orleans and the surrounding communities, inflicting massive destruction and displacing hundreds of thousands. In the wake of the disaster, the U.S. Department of Homeland Security lifted minimum wage restrictions, thus creating an environment ripe for exploitation of both documented and undocumented workers by their employers. This study presents the experiences of laborers in the construction industry following Hurricane Katrina, and makes recommendations for how federal, state, and local authorities may protect Gulf Coast laborers against exploitation and unfair treatment.

rebuilding-after-katrina.pdf
Claude Bruderlein and Pierre Gassmann. 5/2006. Managing Security Risks in Hazardous Missions: The Challenges of Securing United Nations Access to Vulnerable Groups.Abstract

Over the last decade, the United Nations (“U.N.”) has taken a central role in the international community’s response to the consequences of disasters and armed conflicts. Increasingly, international strategies to cope with instability and armed conflicts rely on the deployment of the staff of U.N. agencies in the midst of armed hostilities to provide urgently needed humanitarian assistance to threatened populations. Furthermore, reconstruction and development activities traditionally undertaken in peaceful environments have also become an integral part of stabilization efforts in situations that are far from secure.

managing_security_risks.pdf
Naz Modirzadeh. 5/2006. Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts and Minds.Abstract

Behind the doors of the most influential human rights organizations in the world, a crisis has been forming. It is a crisis that has become more acute with the increased global media, military, and economic focus on the Middle East/Muslim world since the September 11, 2001, attacks. The Middle East has long been considered a desert of non-compliance within the human rights community, often depicted as the region of the world least interested in international human rights law. The Middle East is, in fact, seen by some as the most rights-abusing region in the world. The growing sense in the West that something must be done about human rights in the Muslim world has pushed the region to the top of the priority list for major human rights organizations. At the same time, there is a sense within many international non-governmental organizations (“INGOs”) that the human rights movement’s response to recent events in the Middle East has been reactive, responding to an agenda set largely by the Bush administration and subject to the whims of global media attention. For many, it seems that human rights organizations are following the U.S. military into the Muslim world. Many also feel that the human rights movement’s rhetoric uncomfortably echoes that of the Bush administration, proclaiming disturbingly similar ends while espousing different means. Aside from making individual human rights professionals uncomfortable, this situation has brought a long-simmering dilemma within the Western-based human rights movement to the surface. This dilemma, yet to be openly addressed, concerns how the human rights movement should deal with Islamic law. 

nkm-ingosheartsandminds.pdf
HPCR. 4/2006. Transnationality, War and the Law - Roundtable Report.Abstract

On October 30, 2005, the Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR) brought together a select group of international experts for a discussion on the theme of “The Transformation of Warfare, International Law, and the Role of Transnational Armed Groups.” The meeting was hosted by the Geneva Center for Security Policy in their offices in Geneva, Switzerland. This project grew out of a research interest identified at the High-Level Informal Expert Meeting on International Humanitarian Law at Harvard University in June 2004 which gathered representatives of twenty-eight governments and international organizations, as well as distinguished scholars, to examine the legal and policy challenges faced by international humanitarian law (IHL). The purpose of the meeting in Geneva was to explore the changed landscape of transnational wars and the prominent geopolitical role played by transnational non-state armed groups as well as their impact on interpretations and responses of international law to the new warfare. Built around three pillars of changing war, changing actors, and static law, the discussion in Geneva was organized along sessions on the transformation of war, the regulation of new conflicts, the current gaps and limitations of international humanitarian law, and the challenge of compliance and protection in the new environment. Starting from the decolonization wars of the twentieth century, armed conflicts have been departing gradually from the classical, state-centered paradigm embodied in the Geneva Convention of 1949 to the current framework in which non-state actors have acquired a larger, if not yet central, role. That fluctuation constitutes a bending of the traditional tactics of war brought about by the rise of comparatively weaker non-state actors and a modification in the space taken up by the new wars. Participants to the Geneva meeting stressed that non-state actors have been fighting states throughout the history of the state. However, in previous eras they fit more clearly into the realm of domestic law enforcement, as states sought to quell “internal disturbances.” The new conflicts are driven across state borders and represent a true challenge in terms of regulating the behaviors of both transnational non-state armed groups and the corresponding territorial and extraterritorial response of states.

hpcr_-_transnationality_roundtable_-_april_2006.pdf
Marco Sassòli. 2/2006. Transnational Armed Groups and International Humanitarian Law.Abstract

The concept of ‘transnational armed groups’ has been used increasingly since September 11, 2001 by those who consider the ‘war on terror’ to be an armed conflict and who wish to apply the laws of armed conflict, called international humanitarian law (IHL), to that conflict (rather than human rights domestic legislation and international law on cooperation in criminal matters). In this debate, it is often claimed that IHL, as it stands, is inadequate to cover such a conflict and such ‘transnational armed groups’. This paper discusses, firstly, when IHL applies to transnational armed groups. Concretely, this involves the question of whether, and to what extent, the ‘war’ against Al Qaeda can be classified as an armed conflict. It is argued, that under international humanitarian law, the ‘war on terror’ must be split into different components. In some cases, the law of international armed conflicts applies. In others, the law of non‐international armed conflicts applies. In most situations of the ‘war on terror’, IHL does not apply at all. Secondly, this paper looks at the related issue of what determines the existence of an armed group as an addressee of IHL of non‐international armed conflicts. According to what criteria can Al Qaeda be considered an armed group for the purpose of making IHL applicable? When are members of such a group covered by IHL, even though said group is not fulfilling those identified criteria? Thirdly, the rules of IHL covering an armed conflict between a transnational armed group and a state are summarized, in particular the status and treatment of members of such groups. Most importantly, this paper examines whether and how the existing rules of IHL should or could be adapted to (more) adequately cover transnational armed groups. In this context, few concrete proposals suggesting which rules should be adapted, and in what sense, were found. Nevertheless, as a fourth issue, this paper tries to identify certain areas where the existing IHL of non‐international armed conflicts is not entirely adequate because of the extraterritorial character of the fight against transnational armed groups. Fifth, skepticism is expressed about the possibility of extending IHL and of applying it beyond armed conflicts as currently defined when transnational groups are involved. Sixth, as for the mechanisms of implementation, several proposals are brought forward regarding ways by which respect for existing (or any new rules of) IHL by transnational or any other armed groups can be improved. It is argued, centrally, that if armed groups are addressees of IHL, it is indispensable to involve them in the development and implementation of the rules. Finally, the article explores ways, obstacles, and the risks of developing new rules and mechanisms of IHL specific to armed conflicts with transnational armed groups. The author remains skeptical about the realism and utility of any attempt to develop specific rules for such conflicts.

occasionalpaper6.pdf
ATHA. 1/2006. “ATHA: Security of Humanitarian Staff”.Abstract

Humanitarian organizations operate in increasingly hostile environments. Although authoritative statistics are scarce, anecdotal evidence suggests that aid workers face life-threatening risks that are exacerbated by the growing number of humanitarian organizations operating in the field with varying mandates, without common professional security standards and with limited success with inter-agency security coordination. The ability of humanitarian organizations to fulfill their mandates in the future, will be depend in part on their individual success in improving internal security management practices and in finding ways to coordinate their efforts on building common security standards and security coordination across agencies. To meet this challenge, humanitarian organizations must implement improved security management methods and finds ways to coordinate their security operations and planning. Despite broad acceptance of the need to develop better security management and coordination, many humanitarian organizations remain ambivalent about coordinating their security activities and few have instituted robust measures for improving their own security management practices. Further, efforts to improve security management practices are hampered by a critical lack of basic empirical knowledge about the field security environment. In discussions about humanitarian staff safety and security, the least common denominator continues to be cumulative anecdotal evidence provided by the many security personnel working for humanitarian organizations in the field. This policy brief reviews the literature on humanitarian organization security management, highlighting common misconceptions about the field security environment, reviews the main structural and procedural issues impeding more effective security management, and illustrates why current initiatives to improve security management practices will remain only partial successes if they do not include a serious effort to replace anecdotal reporting on the field security environment with systematic collection and analysis of field security data. It argues that staff security requires a common professional approach based on sound security expertise adapted to meet the operational needs of humanitarian organizations. A model is developed for creating a network of security professionals responsible for guiding the design and implementation of common security standards and security information sharing protocol. 

atha_thematic_brief_security_of_humanitarian_staff.pdf
Claude Bruderlein. 2006. Towards a Common Security Framework: Securing Access and Managing Risks in Hazardous Missions.Abstract

International agencies are facing increasing levels of threats against their staff and activities in many of their operations. Since the end of the Cold War, these agencies, intergovernmental and non-governmental alike, have been called to work more intensely in conflict areas.1 These areas have become singularly more dangerous in recent years, exposing staff to greater risks. The threats of attack, as well as recurring levels of criminal violence, are now part of the daily life of international agencies’ workers in many of these situations, hindering their work and limiting their access to people in need. Although significant resources have been invested recently in building the security capabilities of international agencies, the escalation in security threats has not been matched with the development of corresponding institutional strategies to mitigate operational risks and reduce the exposure of international agencies. Despite serious flaws in existing security systems, international agencies have been inclined to expand their security capacity at a technical level rather than reviewing the relevance of their security strategies. As a response to the attacks against United Nations (UN) headquarters in Baghdad and other field missions, the United Nations is planning to expand significantly the capacity of the UN security system by creating a Directorate of Security, which will centralize all UN security systems, and by adding a number of staff and layers of technical responsibilities to an already bureaucratic and over-procedural security apparatus. While most operational managers agree that the security environment of UN agencies has evolved considerably over the recent years, this significant expansion in security capabilities is being considered without a clear and proper understanding of the types or sources of threats the UN will face in the coming decades.2 There are few discussions on global and local threats against UN operations or the role that agencies can play to mitigate exposure to risks. Similarly, other agencies, such as the International Committee of the Red Cross (ICRC) or Médecins Sans Frontières (MSF), are increasingly tying their security response to conservative interpretations of their mission — relying significantly, in the process, on the neutral character of their activities and the acceptance of the communities. Many organizations, however, fail to acknowledge the changing perceptions of international assistance in some areas of the world and the changing profile of the security threats that endanger not only their operators but the recipient communities as well. For these agencies, the current security developments represent a major challenge 

commonsecurityframework.pdf
2005
Mohammed-Mahmoud Ould Mohamedou. 12/2005. “Al-Qaida : une guerre non lineaire.” a contrario, 3, 2.Abstract

L’après-guerre froide a été marqué par une rupture dans la réglementation internationale régissant le recours à la force. Malgré le potentiel dévastateur des armes nucléaires, la Guerre froide avait la vertu de réguler le flux de violence. Elle constituait un déploiement tangible de forces antinomiques dont le déclin a conduit, en particulier, à la transformation de la façon dont la conflictualité est canalisée, organisée et argumentée. «Au commencement de la Guerre froide, ce régime a insisté sur l’inviolabilité des obligations du droit international, conformément au dicton pacta sunt servanda (‹les traités lient›). Les dix dernières années de ce conflit, il y a eu un soutien grandissant en faveur de la doctrine légale rebus sic stantibus (‹pour autant que les choses restent ainsi›) qui aurait résilié ces accords si les conditions au moment de la signature n’avaient plus été réunies.»

guerre_non_lineaire.pdf
William Boothby. 11/2005. Cluster Bombs: Is There a Case for New Law?.Abstract

The numerous unexploded bomblets, or submunitions, discarded on the battlefield as a result of cluster munition attacks have attracted widespread criticism, particularly from non‐governmental organizations, prompting suggestions that new international law arrangements should be agreed to address the problem. These ‘dud’ bomblets may pose a post‐conflict risk for troops and civilians alike. The humanitarian concerns raised by this hazard have been recognised for a number of years. An important debate is now under way, however, to try to identify a way of addressing the problem effectively while recognising the essential defense needs of states. Working out which, if any, developments in the law are appropriate to such a problem necessitates an analysis of existing, relevant law. There are numerous general legal principles that limit the weapons which states are permitted to employ in armed conflict. There are also important treaties applicable to particular technologies. There is, then, the legal obligation accepted by many states to review weapons plans to ensure they comply with applicable law. Of particular relevance to the cluster munition debate is the Conventional Weapons Convention (CCW), a framework treaty under which individual protocols have been negotiated to address such diverse technologies as mines and lasers. Following a seminal meeting in Nyon, Switzerland in September 2000, CCW member states started to discuss the problem of unexploded and abandoned explosive ordnance. Having clarified the nature of the problem, they negotiated a Protocol to the Convention. Its focus is the marking, clearance, removal, and destruction of explosive remnants of war.

occasionalpaper5.pdf
Phuong Pham, Patrick Vinck, Marieke Wierda, Eric Stover, and Adrian di Giovanni. 7/2005. Forgotten Voices: A Population-Based Survey on Attitudes About Peace and Justice in Northern Uganda.Abstract

After two decades of armed conflict waged by the Lord’s Resistance Army (LRA) in Northern Uganda, Ugandans and the international community remain divided on how to effectively pursue and obtain peace and justice. This study presents Ugandans’ exposures to violence, the needs and concerns of displaced peoples, and opinions on specific transitional justice mechanisms as the country moves forward. Additionally, the study proposes that controversies over interventions in the region may be resolved by the local and international adoption of a comprehensive strategy that aims to achieve both peace and justice.

forgotten-voices.pdf
Mohammad-Mahmoud Ould Mohamedou. 7/2005. Non-Linearity of Engagement: Transnational Armed Groups, International Law, and the Conflict between Al Qaeda and the United States.Abstract

The conflict between Al Qaeda and the United States illustrates the evolution of warfare in three respects. First, in an effort to compensate for the disparity in logistical military capability, a non-state actor party to an international conflict has sought to expand the platform of combat, regarding disparity of forces not as a deterrent but as an opportunity. This has implied the expansion of the panoply of means at the disposition of Al Qaeda; not merely terrorism but the full range of kinetic force to influence its enemy. Second, a non-state armed group, whose membership transcends borders and nationality, has declared war on a state and its citizens, regarding war as retaliation for what can be termed ‘privatized collective responsibility.’ Al Qaeda estimates that the citizens of the countries with whom it is at war bear a responsibility in the policies of their governments. Such democratization of responsibility rests, it is argued, in the ability that citizens of the enemy state have to elect and dismiss the representatives which take foreign policy decisions on their behalf. Third, a political movement with a demonstrated military ability has sought to overstep the state while co-opting the latter’s attributes and channeling its resources. In that sense, Al Qaeda’s is a claim to circumvent statehood, and particularly its monopoly over legitimate violence. The leading conflict of our time takes the form of war between a major state (and allies) and a group of a few thousand individuals harboring a perceived right of self-defense that is substituted for statist authority. Al Qaeda’s actions alter the grammar of the existing international relations regime thus: • the geographical indeterminacy of the group’s action speaks of the dissolution of territorial power; • Al Qaeda’s pretension has an important twofold implication for enduring principles of international humanitarian law, namely the obliteration of the combatant/civilian status categories and the refusal to distinguish between civilian and military targets; and • a rational disputation has arisen whereby the authority to fight may no longer be related to the state authority that governs lawfully, and the will and power to act militarily is affirmed by a private entity. Claiming a valid jus ad bellum case, Al Qaeda sets itself as deciding war as a proper authority whose just cause is a case of self-defense. Permissible warfare is channeled within (i) aggrandizement of the principle of necessity, (ii) literalization of civilian responsibility, and (iii) tactical instrumentalization of technological imbalance. Coming to grips with such metamorphosis of offense means acknowledging the logic in which terrorism is used as a method of warfare, according to a principle of indiscrimination whose rationale is negation of the notion of innocence of the civilian population, and imputation of collective responsibility. Al Qaeda is an industrious, committed, and power-wielding organization waging a political, limited, and evasive war of attrition — not a religious, open-ended, apocalyptic one. Since its creation, it has implemented a clearly articulated policy, skillfully conducted complex military operations, and demonstrated strategic operational flexibility. Of late, this versatile transnational phenomenon has exhibited an ability to operate innovatively amid heightened international counter-measures. The organization has also suffered setbacks, chiefly the loss of Afghanistan as an operational base and the arrest or death of several key figures.

non-linearity_of_engagement.pdf
Michael N. Schmitt. 7/2005. War, Technology, and International Humanitarian Law. occasionalpaper4.pdf
Bertrand Ramcharan. 5/2005. OPS Issue 3: The United Nations High Commissioner for Human Rights and International Humanitarian Law.Abstract

International human rights law and international humanitarian law are parallel and complementary branches of international law with their distinct and distinctive supervision arrangements. In the conflicts taking place in the world today, both the institutions of international humanitarian law and international human rights law are called upon to apply and uphold international humanitarian law. The International Committee of the Red Cross has the lead responsibility internationally for watching over the implementation of international humanitarian law, while the United Nations High Commissioner for Human Rights, the Commission on Human Rights, its subsidiary bodies, and the human rights treaty bodies have the lead responsibility for overseeing the implementation of international human rights law. Basic human rights are being violated on a widespread scale during armed conflicts, and international human rights law operates in parallel alongside international humanitarian law in situations of armed conflict. Violations of international humanitarian law, especially as regards civilians, women and children, are violations of basic human rights with which the High Commissioner for Human Rights must be concerned as part of her responsibilities for the worldwide promotion and protection of human rights. Situations may arise increasingly when a High Commissioner for Human Rights is called upon to react to human rights violations in situations of armed conflict. In such situations, a High Commissioner is perforce required to address violations of international humanitarian law. This calls for the exercise of care and discernment on the part of the High Commissioner. Situations must be handled on the basis of principles, first of international humanitarian law, second of international human rights law, and principles of coexistence regarding institutions of international humanitarian law and international human rights law. Specifically, it is fundamental that the High Commissioner be cognizant of and act in the spirit of the principles pervading international humanitarian law. Generally, it is imperative upon a High Commissioner to help discharge the duty of protection and the responsibility to protect. 

occasionalpaper3_un_humanrights_ihl.pdf
James Cavallaro and Mohammad-Mahmoud Ould Mohamedou. 5/2005. Public Enemy Number Two?: Rising Crime and Human Rights Advocacy in Transitional Societies.Abstract

On March 5, 2002, a special division of the São Paulo military police in Brazil positioned several vehicles with heavily armed officers on a highway near Campinas. The police sought to intercept and ambush a truck transporting twelve suspects that their intelligence services had indicated was on its way to participate in an armed robbery. When the suspects’ vehicle came into their sights, the police opened fire, spraying hundreds of rounds of machine gunfire at the truck, killing all twelve men. No police were injured. It is unlikely that there was any return fire at all, given the sudden intensity of the police attack. Authorities reported, later that day, that a dozen drug traffickers had been killed in a shootout with police forces on the highway. The state governor hailed the killings as a “dream police” operation. Rights activists and policing experts in Brazil know that authorities routinely contend that the police have killed in shootouts to paper over what are in fact summary executions. They also recognized that it was highly unlikely, in this case, that a gun battle would leave twelve civilians dead and no police killed or wounded. Yet, remarkably, in the immediate aftermath of the incident, no rights groups stepped forward to challenge the official version. Individually or through consultation, these rights defenders seemingly concluded that challenging the official version would be counterproductive. Because there was little doubt that those killed were tied to a dangerous criminal enterprise, rights groups feared—and rightly so—that denouncing police excesses would be unpopular. 

rising_crime.pdf
Mohammad-Mahmoud Ould Mohamedou. 3/2005. The Pitfalls of Lawlessness: Disorder, Emergencies, and Conflict.Abstract

This paper examines the issues of disorder, emergency, and conflict and their management in a rule of law-based framework, with illustration from the aftermath of the September 11, 2001 attacks on the United States and the war in Iraq. Noting that the promotion of the rule of law by state institutions has decreased in recent years, the paper postulates that the manifestation of violence as a result of sociopolitical unrest and armed conflict, whether domestic or international, is an indicator of a defective functioning of institutions, and that the maintenance and strengthening of the rule of law at all times are key to an effective enjoyment of human rights and to the practice of democracy. The paper notes that there exist a number of distinct corpora of rules in international and domestic law that are applicable to an orderly, efficient, and rights-respecting management of disorder. In particular, it calls for a symbiotic application of international humanitarian law and international human rights law. Whereas the latter is a general law which is implemented at all times, the former is a special branch of law that to be only enacted during conflicts. Yet, though clearly different, the two bodies overlap, particularly in times of emergency as both seek to protect human dignity and reduce human suffering. Clarifying the core connections and establishing an explicit recognition of the international human rights normative framework and humanitarian values to democracy is particularly called for in times of emergency. The typical state response to internal disorder is to enforce stricter interpretations of security laws, assert the power of the state government, and enact emergency legislation meant to facilitate investigation and prevention of violent emergencies. In that respect, the paper places emphasis on the existence of legal limits to emergency powers noting the extent to which derogation is codified formally. Similarly, the paper argues that legitimacy of the power to compel is a fundamental component of the rule of law, particularly in situations where institutions are failing. The practical result, during emergencies, is that no room is provided (or no longer available) for the articulation of citizens’ aspirations as no structural accountability derivative of democratic dynamics is present. In times of crisis and social disorder, dangers to the effective enjoyment of rights can originate (i) in the context of the implementation of derogation to rights, (ii) in the process of the administration of justice, or (iii) in the course of the enforcement of security laws. Limiting the effect of emergency powers and delineating clearly permissible derogations, so that the state of emergency is regarded as a temporary situation and not a norm, is a central aspect of the regulation of societal disorder processes. During emergencies, particular attention should also be paid to the administration of justice, which can come to suffer from degraded or weakened institutions. The modus operandi is the perpetuation of effective and justiciable remedies under the umbrella of a constitution incorporating the principles of international human rights and freedoms. 

pitfalls_of_lawlessness.pdf
HPCR. 3/2005. Security Management Initiative Progress Report.Abstract

The purpose of this note is to present a first report on the progress of the Security Management Initiative project as of March 15, 2005. This report covers the research and consultation phase, in preparation for the development of a draft curriculum and assessment tools, to be presented to an expert group in May 2005.

smi_progress_report_-_march_2005.pdf
Colonel K.W. Watkin. 1/2005. Combatants, Unprivileged Belligerents and Conflicts in the 21st Century.Abstract

At the dawn of the 21st century international humanitarian law is facing a number of significant challenges. The events since 11 September 2001 in particular have focused a bright spotlight on issues such as: the law governing conflict between states and nonstate actors; the criteria to be applied for qualification as a combatant; the identification and targeting of the enemy; and the status and treatment to be afforded to captured “noncombatants” who participate in hostilities. The campaign on terrorism is in many ways a reflection of a broader transformation of modern conflict. The conduct of asymmetric warfare, which has been defined as “acting, organizing and thinking differently than opponents in order to maximize one’s own advantages, exploit an opponent’s weaknesses, attain the initiative, or gain greater freedom of action” is challenging traditional notions of armed conflict. 

The transnational reach of information warfare, the growth of global terrorism, the blending of domestic and international criminal acts and easier access to weapons of mass destruction have raised the stakes in terms of the types of threats posed to states and their citizens. The ability of both states and non-state actors to act asymmetrically has been enhanced by the technological leap into the information age and the so-called revolution in military affairs. The capacity of international humanitarian law to adequately address conflict in its modern form is being grappled with by government officials and legal practitioners, undergoing judicial review, carefully being analyzed by legal scholars and receiving close scrutiny by the media. In meeting its goal of limiting the effects and suffering of armed conflict international humanitarian law shares many of the same principles and concepts as human rights. However, international humanitarian law differs from human rights law in its requirement to interface with “military necessity”. At the heart of military necessity is the goal of the submission of the enemy at the earliest possible moment with the least possible expenditure of personnel and resources. It justifies the application of force not prohibited by international law. The balancing of military necessity and humanity is often the most challenging aspect of finding agreement on the norms of international humanitarian law. In balancing these two concepts the requirement to distinguish between those who can participate in armed conflict and those who are to be protected from its dangers is perhaps its most fundamental tenet. A careful analysis shows that much of the discussion about the adequacy of international humanitarian law is centered on the principle of distinction. 

session2.pdf

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