Reconstructing the Civilian/Combatant Divide: A Fresh Look at Targeting in Non-international Armed Conflict

Since the end of the Second World War, there have been 313 armed conflicts worldwide, resulting in 92 million casualties.1 Most of them were fought not between sovereign states, but rather against or among non-state actors such as rebel groups or secessionist movements. Yet if we look at the legal regulation of non-international armed conflict, we are left with one provision of the 1949 Geneva Conventions—the Common Article 3, the narrowly applicable Additional Protocol II, and the International Committee of the Red Cross's (ICRC’s) rather optimistic conclusion that an overwhelming majority of rules adopted to regulate inter-state hostilities are equally applicable in non-international armed conflicts as a matter of customary law.2 Although analogy with international armed conflicts may help to provide answers to some legal questions, there are others that cannot be settled simply by looking at the Geneva Conventions, let alone the elementary principles enshrined in Common Article 3. Among them the vital question of who is a civilian and who is a combatant in non-international armed conflicts, who can be directly targeted and where. Without being able to provide answers to these questions, any attempt at effective regulation of non-international armed conflict is bound to fail.