Introduction

• Author: Michael N. Schmitt
• Position: Chairman, International Law Department, United States Naval War College
• Pages: xiii-xv

Introduction

During the past half century, non-international armed conflicts have far

outnumbered those that are international in character. Indeed, as the con-

ference that provided the basis for this volume was underway, the United States

was engaged with its NATO allies in anon-international armed conflict in Afghan-

istan and was winding down its long participation in one in Iraq. The nation was

also "at war" with various transnational terrorist groups in what many characterize

as non-international armed conflict.

Yet, the lex scripta governing international armed conflict dwarfs that address-

ing non-international armed conflict. Moreover, although international tribunals

have handled many cases involving the latter, their decisions often prove contro-

versial, especially when applying the law of international armed conflict to non-

international conflicts. Unfortunately, even the academic community pays less

attention to the law of non-international armed conflict than merited by its legal

complexity and the frequency and human consequences of the conflicts to which

it applies.

This reality is unsurprising. International armed conflict self- evidently affects

international stability. As history has demonstrated time and again, the risks of

escalation and of spread are high whenever such conflicts occur. These and other

factors motivate the members of the international community to agree upon

norms limiting the effects of State-on-State conflict lest they find themselves in-

volved therein. In doing so, States not only accept limitations on their battlefield

actions, but also secure protection for, inter alia> their civilians, civilian property

and soldiers hors de combat. The key to the system is the reciprocity inherent in the

treaty and customary law regimes that encompass opposing belligerents. Since the

law ofinternational armed conflict is more robust than its non-international coun-

terpart, so too is the attention paid it.

Non-international armed conflict is of afundamentally different nature. In

most cases, States are facing organized groups oflawbreakers from whom reciproc-

ity cannot be expected. Therefore, there is often little incentive for States to limit

their scope of action by agreeing to legal norms with which only they will abide.

Moreover, as the conflict is "internal," the risk of spread is limited, while the in-

volvement of other States is amatter of their discretion.

However, the context in which non-international armed conflict occurs is un-

dergoing transformation. Transnational terrorism has become aglobally pervasive