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.
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.
The use of computers in modern warfare stretches back over decades. Computers have been employed for functions that range from managing materiel and personnel flows into an area of operations to sorting intelligence data and improving the precision capabilities of weapons. In recent conflicts, however, we have witnessed their transformation into a “means of warfare” (weapon) and modern militaries are busily developing information technology “methods of warfare.” This article briefly addresses the legal issues surrounding computer use in classic kinetic-based warfare. Attention then turns to the most significant phenomenon for humanitarian law, namely the employment of information technology during network-centric, four-dimensional operations, which increasingly characterize twentieth-first century conflict.
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.
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.
This paper explores the nature of children’s security within the context of modern threats from globalization and new forms of warfare. It analyzes the sources of insecurity faced by children and the survival strategies they and their families employ as a result. Through a number of case-studies, it questions the usefulness of assistance programs that focus on the physical needs of children in isolation of their social and communal environment. As children are in a constant state of development, protecting their security requires more than support against physical harm. The paper argues that four dimensions of security are important for the protection of children in times of war: physiological necessities, safety, communal relationships and opportunities for personal development. Efforts to promote children’s security must involve analysis of these core dimensions and treat the coping strategies of children and their families as a roadmap for protection. The focus of this paper is children affected by war but the analysis also applies to children at risk in other circumstances, from street children, to those living in extreme poverty. Children’s security is particularly at risk in those countries under economic embargo, afflicted by armed conflict or by extreme poverty. Today’s threats take place in the context of wars sustained by the import of small arms and light weapons and are often fought over the control of valuable resources – oil, minerals, timber, gems - whose major markets are in the North. The dislocation caused by these wars fragments families and isolates children. While few of these threats are new, their impact on the life and security of children has increased with the globalization of trade, migration and communication. Civilians, especially children and their families, have been forced to develop new coping mechanisms for their changed situations. Children can no longer be viewed merely as the victims of war. They have taken on new roles as heads of households, child combatants, student leaders and actors in peace building. This paper explores how globalization affects the security of children, particularly in conflict areas. It presents a framework to structure the core dimensions of children’s security and discusses how the survival strategies employed by families and children when protections fail may be used as a signal for improving security conditions for children. The paper was produced for the Human Security Network meeting in Amman, 11-12 May 2001, with a contribution from the Canadian Department for Foreign Affairs and International Trade.
From 20th June through the 5th of July 2002, the Conflict Prevention Initiative of the Harvard Program on Humanitarian Policy and Conflict Research (CPI HPCR) in cooperation with the Center for Peace and Security Studies at the University of Gadjah Mada (CSPS) carried out a series of activities under the theme: “Building sustainable peace and fostering development in Papua”. This event was an effort to gather ideas and support from those representing Papua in the fields of peacebuilding and development. Using the Internet to discuss policies in the field of conflict prevention, this CPI-CSPS event also aimed at providing a platform for spreading information and strengthening networks between participants and decision makers at the national and international levels. The event started with a roundtable discussion at the University of Gadjah Mada on 20-22 June 2002, with 8 people from Papua representing the academic world, NGOs, religious organizations, customary institutions, women’s groups and youth. The main ideas that emerged during this discussion then became entry points for the e-conference, an online virtual discussion online in Indonesian. The e-conference took place between 24 June and 25 July 2002, with the participation of 89 people from various backgrounds. Simultaneously, an e-forum was carried out in English, with the participation of 32 people.
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.
Under Article 43 of the Hague Regulations, an occupying power must restore and maintain public order and civil life, including public welfare, in an occupied territory. This is not a result it has to achieve, but an aim it has to pursue with all available proportionate means not prohibited by International Humanitarian Law (IHL) and compatible with International Human Rights law. It may suspend the derogable provisions of the latter — but is not obliged to do so - if necessary for that purpose. Local legislation and institutions based upon such legislation must be respected by an occupying power and by any local authorities acting under the global control of the occupying power. New legislation or derogations from existing legislation are however admissible, for the period of the occupation, if essential for (1) the security of the occupying power and of its forces, (2) the implementation of IHL and of International Human Rights Law (as far as the local legislation is contrary to such international law), (3) the purpose of restoring and maintaining public order and civil life in the territory, (4) the purpose of enhancing civil life during long-lasting occupations, (5) or where explicitly so authorized under UN Security Council Resolutions. These obligations and limitations also apply to post-conflict reconstruction efforts, including constitutional reforms, economic and social policies. Article 43 also applies to peace operations when they are at all subject to IHL, i.e., UN authorized or mandated operations resulting from an armed conflict or consisting of military occupations meeting no armed resistance, independently of whether the conflict or operation is authorized by the Security Council and of the aim of the operation. IHL is however not applicable if and as long as the operation meets the consent of the state on the territory on which it is deployed. The applicability of IHL to UN run operations, including UN international civil administrations, is more controversial, even when they result from an armed conflict. When Article 43 is not applicable to such a peace operation, the latter is nevertheless confronted with problems similar to those of an occupying power, which deserve solutions similar to those adopted in State practice under Article 43. Limits to such application of Article 43 by analogy are the purpose of the peace operation defined by the UN Security Council, specific instructions by the Security Council and the fact that UN Human Rights standards, even if laid down in soft law instruments, are binding upon UN operations. Both occupying powers and those involved in peace operations must take into account, when engaged in the restoration or maintenance of public order and civil life according to Article 43 or in legislation permitted under that article, that they are not the sovereign. They should therefore introduce only as many changes as absolutely necessary under Article 43 as understood above and stay as close as possible to similar local standards and the local cultural, legal and economic traditions.
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.»
Undoubtedly, Afghanistan represents one of the most complex and difficult environments in which humanitarian agencies could operate. Working amidst ongoing military operations, continuous insecurity, and the massive displacement of populations, humanitarian agencies also have to cope with a rising demand for their services and a radically different political and social environment. Shifting from a policy that effectively isolated the former Taliban regime during the last six years, the international community is now gearing itself to actively support the political rehabilitation and social reconstruction of the country. This support, resulting in a new availability of funding and political backing, represents to many Afghans a much awaited engagement of the international community. Unfortunately, it has also generated a number of new challenges due to the sudden availability of political and economic resources emerging amid an operational infrastructure that cannot absorb, coordinate, and manage them properly.
Since the late 1980s, the Lord’s Resistance Army (LRA), a spiritualist rebel group with no clear political agenda, has abducted tens of thousands of children and adults to serve as porters and soldiers. In the early 1990s, children who escaped from the LRA or were captured by Ugandan soldiers were often paraded in the streets in the hope that someone would identify them. This treatment prompted a group of parents of abducted children to establish the Gulu Support the Children Organization (GUSCO), a reception center in Gulu, in 1994. In December 2005, the Berkeley-Tulane Initiative on Vulnerable Populations launched The Database Project to better document abduction and help improve the capacity of 8 reception centers in the northern districts of Gulu, Kitgum, Pader, Apac, and Lira to collect and analyze information about former LRA abductees.
The rising importance of non-state armed groups is heightened by three post-Cold War phenomena: the increased fragmentation of states into smaller self-governing entities, the augmented privatization of warfare, and, by virtue of the expansion of global communication networks, the inflated accountability of states towards non-state actors. This context has influenced significantly the emergence of modern transnational and non-state armed groups (NSAGs) — i.e., groups that use force, flow across state boundaries, utilize global communication and transportation networks, seek international influence, and increasingly undertake military operations against dominant states. The key markers of how contemporary conflict between states and NSAGs varies from classical state-based warfare are to be found primarily in tactical and strategic differences. The increased (quantitative) participation of NSAGs in conflict presents in and of itself a strategic challenge for states. Since the events of September 11, 2001, and their aftermath, Al Qaeda and its associated groups, for example, have decentralized and diversified their activities significantly. Almost systematically, NSAGs have proven through their military aptitude that they can innovate faster than states. It, thus, became a strategic test for states to transform and adapt their intelligence and war-fighting capabilities to face these new contests and such mutation. From the tactical perspective, one of the most important developments is the increasingly unconventional and irregular means and methods used by transnational NSAGs. This is also one of the areas that conventional military forces have struggled to respond to. It is important in this changed context to differentiate between non-state armed groups, acknowledge their complexity and broadened goals, and register the implications of such development for states (which are themselves just as variegated as NSAGS). The ability of an NSAG such as Hezbollah to rely on local support, or at least tolerance, is another important modern-day advantage of armed groups that render conventional military tactics much less effective, if not obsolete in some cases. Such evolution underscores the fact that many an NSAG — whether as sophisticated as Hezbollah or more fluidly organized — is well suited to engaging in protracted conflicts in which no decisive military victory is required.