Does the Law of Armed Conflict Need to Evolve With Respect to Non-State Actors?

Abstract

The laws of armed conflict do not adequately address non-state actors, leaving their combatant status in question. While we may find short-term answers by creatively interpreting the existing guidance, we need to change the law to provide a long-term solution for dealing with non-state actors in armed conflicts, whether internal or international. Given the current doubt regarding the lawful combatant status of terrorists, mercenaries, international corporations, and multinational forces, operational commanders are required to provide all prisoners with a higher level of protection than they may actually be entitled to. This forces them to spend time and effort better used elsewhere. Since the focus of international power is gradually shifting from classic nation-states to non-state actors, the law needs to evolve as well, defining their authorized roles and ensuring that civilians and captured fighters receive the treatment they are entitled to. Ignoring the change in players will make the law irrelevant, undermining the protections it is intended to provide and resulting in confusion instead of order.