The war between Israel, Hamas, and other terror organizations has heightened the awareness of the question of whether today’s international law is capable of addressing armed conflict between a state and terror organizations.
Simply put, the question is how a sovereign state, obligated by the customary and conventional rules of international humanitarian law and the laws of armed conflict, is expected to engage in asymmetrical war with terror organizations that distinctly, and by definition, do not consider themselves as bound by such rules. Openly, they deliberately and even proudly consider themselves to be entitled, as terror organizations, to flout all accepted humanitarian norms and rules of international law to advance their aims. All this knowing that the international community lacks practical and legal means, as well as the basic desire and capability of obliging such terror groups to abide by the rules.
Today’s international community is riven with a severe dichotomy because what is currently known and acknowledged to be “the law of armed conflict,” by which states and their armed forces have operated, was developed over the years. The law was set out in clear terms in the late 1800s and early 1900s; the laws of armed conflict have, from time to time, been updated and amended, whether immediately following the Second World War (1949) and between 1974-7 following the Vietnam War. Apart from specific instruments to reflect the need for the protection of cultural property in times of war and instruments reflecting technological developments in conventional and non-conventional warfare, the fundamental norms and principles have not been substantially updated since then.
It is questionable whether the law of armed conflict as it exists today, incorporating as it does international humanitarian law, is capable of providing legal as well as operative answers to the practical issues arising out of today’s struggle against terror, directed not necessarily against a defined and identifiable armed force of a state, but rather against terror groups purposely embedded within the civilian population. The conflicts today may not necessarily be confined to the territory of a particular state and, by its very definition, are not necessarily directed against the military forces of a state but against civilians.