Counter-insurgency and the war on terror: a deadly convergence?

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 10:45 a.m., Saturday, March 31, by its moderator, Nathaniel Berman of Brooklyn Law School, who introduced the panelists: Catriona Drew of the School of Oriental and African Studies, University of London; David Kennedy of Harvard Law School; and Philip Sundel of the International Committee of the Red Cross. *


This panel examined the increasing convergence of two of the key modern challenges to the law of war: first, the phenomenon of insurgencies led by non-state groups with the aim of territorial control, spanning the spectrum from Franco's fascist insurgency in the 1930s to anti-colonial movements in the 1950s and 1960s to the anti-American Iraqi and Afghan insurgencies in the 2000s; and second, the phenomenon of transnational ideologically based movements employing violence to achieve political ends, spanning the spectrum from the Communist International in the 1930s to the left-wing internationalism of the Che Guevara variety in the 1960s to Al Qaeda in the 2000s. The panel discussed how the convergence of these two phenomena challenges the laws of war to such an extent as to place that law in a troubled relationship to the key conflicts in the world.


By Philip Sundel ([dagger])

My remarks will concentrate on the second of the two phenomena that the panel has been asked to discuss--"transnational, ideologically based movements employing violence to achieve political ends" as parties to armed conflict. I will question the existence of such a uniform construct, and, more importantly, by extension question the premise that "new types of parties" and "new types of conflicts" challenge the relevance and applicability of international humanitarian law (IHL) in today's world.

Since we are exploring the possibility of transnational armed groups as parties to conflict, I think it is appropriate first to examine what international humanitarian law requires of a group for it to qualify as a party to an armed conflict. The panel is discussing what would be nonstate actors so the IHL requirements in a non-international armed conflict are relevant: of course, there must be an armed conflict--a situation of protracted violence of a certain level, and the violence must take place between two or more organized armed groups with responsible chains of command. Without both a situation of sufficient protracted violence and two or more organized, disciplined groups, there is no armed...

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