Small Wars and the War Crime Dilemma: The “Weaponization” of the Laws of War in Non-Conventional Warfare

Abstract

When 'savage or semi-savage peoples effect ruses, surprises, or massacres' against 'regular' troops, the uncivilized enemy must not be allowed to benefit from the international law of armed conflict.Elbridge Colby, 1927 ABSTRACTThe laws of armed conflict (LOAC), in an inadvertent but macabre paradox, are serving as weapons of war for rebels in asymmetric warfare, particularly in insurgencies. Thus, this paper is an inquiry into how guerrillas have capitalized on the International Humanitarian Laws, which tend to limit states behaviour and actions in armed conflicts. Asymmetrical conflicts are often fought between a state abiding by the laws of war or International Humanitarian Law, and rebel groups that more or less never obey these regulations and have very little need or sanction to do so. The Geneva and Hague Conventions and their protocols, which outlined the laws of war, were formulated in an era of conventional combat, when wars were fought between state actors and by armies that observed the rules of armed conflict. However, the nature of warfare has greatly altered in recent decades with the increased participation of civilians and the use of guerilla tactics, which makes the enemy virtually anonymous. The battle line is now drawn in urban and choked up areas, while army uniforms have almost become obsolete. These developments have raised arguments as to the efficacy of the present International Humanitarian Law to regulate non-conventional warfare. The present paper adds to the discourse by asserting that the revolution in warfare does not only present a dilemma to national armies in non-conventional warfare, but also gives the insurgents an opportunity to "weaponize" the laws of war for their own leverage, hence, the need to revolutionize the laws of war in tandem with the revolution in warfare itself.