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Counter-Terrorism Law and Practice: An International Handbook

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Asymmetrical war and the notion of armed conflict – a tentative conceptualization Andreas Paulus and Mindia Vashakmadze Professor DrAndreas Paulus is Professor of Public and International Law and Co-director of the Institute of International and European Law at the University of Go « ttingen.Dr MindiaVashakmadze is Max Weber Fellow at the European University Institute in Florence. Abstract States across the globe are increasingly involved in violent conflicts with non-state groups both within and across borders. This new situation challenges the classic distinction in international humanitarian law between international and non- international armed conflicts. However, the changing face of warfare does not diminish the importance of IHL. The essence of this body of law – to protect civilians and persons hors de combat and to lessen unnecessary harm during armed conflict – remains the same. The applicability of IHL must therefore be determined according to objective criteria and must not be left to the discretion of the warring parties. This article seeks to conceptualize the notion of armed conflict and examines the extent to which the existing body of humanitarian law applies to the new asymmetrical conflicts. It finds that the definition given by the ICTY Appeals Chamber in its Tadic ´ Decision on Jurisdiction, which was taken up by Article 8(2)(f) of the Rome Statute, is a useful starting point for an analysis of the ‘triggering mechanism’ of international humanitarian law in asymmetrical conflicts. One of the main purposes of the laws of war has been to tame the ‘dogs of war’ to ensure political control of the use of armed force. This was also the main purpose Volume 91 Number 873 March 2009 95
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behind Clausewitz’s often misconstrued claim that war was ‘the continuation of politics by other means’. 1 But does this logic also apply in non-international armed conflict or in ‘asymmetrical’ conflicts 2 between the armed forces of a state and non- state groups, or even terrorists? Are the mechanisms of the ‘classic’ law of war, and international humanitarian law (IHL) in particular, still suited to the current situation, where states often only go to war against each other through the ‘proxy’ of non-state groups, or are involved in battles with such groups within and across borders? When the Chinese president visited his counterpart in the White House during the heyday of the Bush administration, he brought with him some gift- wrapped advice; 3 while Bush was fighting an increasingly ferocious insurgency in Iraq, it was reported that Hu Jintao presented him with a copy of Sun Tzu’s The Art of War . 4 The point was subtle, but the allusion clear: while Bush had sent a con- ventional army to Iraq to topple Saddam Hussein, the insurgency was waging another kind of war. Thus Clausewitz was dethroned by Sun Tzu and conventional battle by insurgency tactics – a kind of warfare with which a classical army trained in the spirit of Clausewitz could not cope. Similarly, when Western critics chastised
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