In traditional conflicts between states, which pit soldier against soldier, the categories were clear in what we define as “new warfare”, the categories are, at best, blurred. The essence of new warfare is that states are engaged with non-state actors. Applying these two principles in new warfare brings us to the fundamental question: who can be lawfully targeted, when, and how often? The principle of proportionality requires soldiers to not attack a target if the expected innocent casualties are excessive in relation to the anticipated military advantage gained.
The principle of distinction requires soldiers to differentiate between people they can target and people they are obligated to protect from harm. New warfare poses extraordinary dilemmas for the application of two key humanitarian law principles: the principle of distinction and the principle of proportionality.
The law of armed conflict governs the conduct of both states and individuals during armed conflict and seeks to minimize suffering in war by protecting persons not participating in hostilities and by restricting the means and methods of warfare. These multiple categories of participants pose great challenges to the implementation of LOAC on the ground. More important, re-categorizing or re-defining the ever-expanding variety of individuals who participate in and are affected by hostilities in new warfare is a critical next step. It must now adapt to these new and more complicated conflicts, which we call new warfare. The law of armed conflict (“LOAC”), also known as the laws of war or international humanitarian law (“IHL”), was developed and codified in times of more traditional state-state conflicts. These changes have a powerful impact on the conduct of hostilities. War, or armed conflict, to use a more precise legal term, now takes place everywhere - in cities, refugee camps and other historically non-military areas - and involves or affects nearly everyone in the area. Gone are the days of soldiers facing each other across large battlefields, tanks shelling tanks, and fighter jets engaging in dogfights. Click here to download the published PDF version
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