Event Title

Afternoon Panel: A Wrench in the Machinery: Applying International Humanitarian Law to the Armed Conflicts Involving Boko Haram and Isis

Start Date

27-3-2015 2:00 PM

End Date

27-3-2015 5:00 PM

Description

We struggle to evaluate the ability of International Law to provide justice and stability in a rapidly changing and increasingly complex international system. As we speak today, this system continues to experience rapid changes such as dramatic technological advances in all fields, rapidly increasing populations, steadily decreasing and overstressed natural resources, growing gaps between developed and less-developed nations, continuous threats to the human rights of the inhabitants of this system, and a continuous movement toward a multipolar world increasingly influenced by non-state actors.

Since the end of World War II, these changes have given rise to numerous armed conflicts as states and non-state actors try to accommodate these developments or use them to their advantage. The increased involvement of non-state actors has rapidly changed the nature of armed conflict as well as International Law’s ability to deal with it. The Law of Armed Conflict no longer focuses exclusively on state versus state (international) armed conflicts; it applies to armed conflicts other than international as well and, of late, has been tasked with accommodating armed conflicts between states and armed opposition groups.

First, this paper argues that the evolution of the nature of armed conflict and the changes to International Humanitarian Law – Law of Armed Conflict (“IHL-LOAC”) that have been introduced to deal with the changing nature of armed conflict have stressed this body of law to its limit. While IHL-LOAC has the inherent structure and flexibility to accommodate this evolution, applying that structure and flexibility has not been consistent or thorough. While the primary instruments of IHL-LOAC have inherent principles that can be applied to these new conflict types, that application tends to be general because those instruments were not drafted to explicitly deal with these newer types or armed conflicts and, more importantly, the participants. The language of these instruments needs some modernization and updating to more adequately bring these new types of armed conflicts and the new categories of participants under the jurisdiction of IHL-LOAC.

Second, this paper will address the adjudication of alleged violations of armed conflicts. It will look at the three-tier system currently in place: ad hoc tribunals, the International Criminal Court, and national courts and discuss how the three tiers should be able to adjudicate all alleged violations of IHL-LOAC but fails to do so.

Third, this paper will seek to ascertain whether the system discussed in the first two sections will be able to accommodate the introduction of a new type of armed conflict involving a different type of non-state actor: the caliphate. In particular, it will examine the ongoing armed conflicts involving ISIS and Boko Haram to determine if and how those conflicts and the participants therein can be placed under the protections of IHL-LOAC.

This paper recommends bringing armed conflicts involving non-state actors under the protective cover of IHL-LOAC. It discusses the benefits as well as the problems with expanding the coverage of IHL-LOAC. The paper also points out the drawbacks inherent in imposing an international legal norm upon those having no say in its structure. The paper concludes that there must be uniform accountability under IHL-LOAC for the actions of the participants of all armed conflicts.

Comments

Warren Small spent twenty-five years in the U.S. Navy as a commissioned officer. He earned his J.D. from the Golden Gate University School of Law, where he specialized in International Law. He joined the adjunct faculty of the Golden Gate University School of Law in 1996 to complement his private practice in domestic and international intellectual property matters as well as domestic and international business formation and business transactions. Adjunct Professor Small is also a member of the adjunct faculty of the Monterey Institute of International Studies and the Monterey College of Law where he teaches several courses in international law.

Adjunct Professor Small frequently delivers guest lectures on international legal issues arising from operations sponsored by the Department of Defense and has been a regular presenter at the ASIL Regional Meetings on the topic of the Law of Armed Conflict. Professor Small teaches International Legal Studies, and Intellectual Property courses at Golden Gate University School of Law. His course offerings include International Patent Law, Copyright Law of the United States, Intellectual Law for the Solo Practitioner, The Law of International Armed Conflict, Contemporary Issues in International Law, the Law of the Sea, and Pacific Rim Trade Seminar.

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Mar 27th, 2:00 PM Mar 27th, 5:00 PM

Afternoon Panel: A Wrench in the Machinery: Applying International Humanitarian Law to the Armed Conflicts Involving Boko Haram and Isis

We struggle to evaluate the ability of International Law to provide justice and stability in a rapidly changing and increasingly complex international system. As we speak today, this system continues to experience rapid changes such as dramatic technological advances in all fields, rapidly increasing populations, steadily decreasing and overstressed natural resources, growing gaps between developed and less-developed nations, continuous threats to the human rights of the inhabitants of this system, and a continuous movement toward a multipolar world increasingly influenced by non-state actors.

Since the end of World War II, these changes have given rise to numerous armed conflicts as states and non-state actors try to accommodate these developments or use them to their advantage. The increased involvement of non-state actors has rapidly changed the nature of armed conflict as well as International Law’s ability to deal with it. The Law of Armed Conflict no longer focuses exclusively on state versus state (international) armed conflicts; it applies to armed conflicts other than international as well and, of late, has been tasked with accommodating armed conflicts between states and armed opposition groups.

First, this paper argues that the evolution of the nature of armed conflict and the changes to International Humanitarian Law – Law of Armed Conflict (“IHL-LOAC”) that have been introduced to deal with the changing nature of armed conflict have stressed this body of law to its limit. While IHL-LOAC has the inherent structure and flexibility to accommodate this evolution, applying that structure and flexibility has not been consistent or thorough. While the primary instruments of IHL-LOAC have inherent principles that can be applied to these new conflict types, that application tends to be general because those instruments were not drafted to explicitly deal with these newer types or armed conflicts and, more importantly, the participants. The language of these instruments needs some modernization and updating to more adequately bring these new types of armed conflicts and the new categories of participants under the jurisdiction of IHL-LOAC.

Second, this paper will address the adjudication of alleged violations of armed conflicts. It will look at the three-tier system currently in place: ad hoc tribunals, the International Criminal Court, and national courts and discuss how the three tiers should be able to adjudicate all alleged violations of IHL-LOAC but fails to do so.

Third, this paper will seek to ascertain whether the system discussed in the first two sections will be able to accommodate the introduction of a new type of armed conflict involving a different type of non-state actor: the caliphate. In particular, it will examine the ongoing armed conflicts involving ISIS and Boko Haram to determine if and how those conflicts and the participants therein can be placed under the protections of IHL-LOAC.

This paper recommends bringing armed conflicts involving non-state actors under the protective cover of IHL-LOAC. It discusses the benefits as well as the problems with expanding the coverage of IHL-LOAC. The paper also points out the drawbacks inherent in imposing an international legal norm upon those having no say in its structure. The paper concludes that there must be uniform accountability under IHL-LOAC for the actions of the participants of all armed conflicts.