It is possible to suggest that IHL is capable of change. This is unequivocally demonstrated by the sources of IHL, with treaties and custom having expanded and altered the disposition of the system over time. These sources, which are stated in the Statute of the International Court of Justice,180 stress the changing nature of war and
the capacity for the rules governing warfare to adapt. The history of IHL also bears testament to this capacity to change, so long as the international community is incentivised to produce the required laws and customs. The desire to improve the protection of humans in wars has, unfortunately often followed the illustration of the existing law’s inadequacy to do so in dramatic fashion.181 There are however some
changes, or transformations, that IHL is not capable of undertaking; or, at least, not without titanic effort. For instance, it would prove difficult to alter the principles that underpin the interpretation and development of the system.182 Additionally, IHL has
adopted a clear trajectory regarding its approach to non-state armed conflict, in which the protections available draw ever closer to those available in interstate wars.183
Reacting to the notion that unconventional armed groups not only fight and organise differently, but that this may merit different protections than those present in relation to more conventional non-state armed conflicts could foreseeably entail, pushes IHL beyond the concessions it is equipped to make in relation to the changing nature of war.
180 Statute of the International Court of Justice (n 30). 181 Meron (n 20).
182 Indeed, these principles are to be considered “indivisible”. See The Lancet, ‘Examining
Humanitarian Principles in Changing Warfare’ (2018) 391 The Lancet 631.
183 Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge
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When asking what changes IHL could make in order to better address new wars, a question must first be posed: can IHL adapt to such threats within the same terms that it has applied to past changes? If not, what new forms of change might be required, and how might these changes be facilitated? These questions are naturally very complicated. This chapter suggests that the type of war and the understanding of force present in groups like ISIS inverts many of the assumptions IHL relies upon, particularly those derived from interstate war. The exact changes required to ensure that adequate humanitarian protections exist when such groups are fought, however, cannot be readily defined in the absence of an understanding of how such conflicts function. In short, determining the manner in which IHL needs to change – if indeed this is the case – requires an understanding of the manner in which current wars are different. Accordingly, it would be beneficial to gain a more complete understanding of groups like ISIS and how they fight before presuming to assert the changes needed to ensure that humanitarian protections exist when such groups are fought.
IHL has changed in the past and would be capable of changing again in the future. Should the precise changes necessary be determined, these changes would require that the will to alter IHL is present. For instance, the treaty portion of IHL has grown, with the volume of available statute having developed significantly since the inception of the system.184 This growth has reflected a recognition on the part of states
that a change was needed. This expanding statute has additionally extended the remit of situations covered, which, alongside an appreciation of the history of IHL, suggests that this transition has occurred in order to better realise humanitarian protections as war shifted from a state enterprise to one often fought between states and other kinds of armed actor.185 Today, in contrast, problems with the implementation of IHL are
more readily equated with a lack of enforcement, rather than the need for new laws.186
This suggests that the will needed to undergo change may not be present, with state being content to proceed with the system as it stands.
Many of the changes that have been proposed to better adapt IHL to the type of conflict taking place today would require the support of a new treaty to effectively
184 See Nicolas Lamp, ‘Conceptions of War and Paradigms of Compliance: The “New War” Challenge
to International Humanitarian Law’ (2011) 16 Journal of Conflict & Security Law 225, 225–226.
185 Rogier Bartels, ‘Timelines, Borderlines and Conflicts’ (n 108).
186 UNOCHA, ‘“We don’t have to change the law, we have to enforce it” – UN Humanitarian Chief’
(24 June 2019) <https://unocha.org/story/we-don%E2%80%99t-have-change-law-we-have-enforce-it- un-humanitarian-chief> accessed 10 January 2020.
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accomplish.187 Recognising this has taken place in the past, the generation of new
statute or serious changes to the substance of existing treaties does however require serious will on behalf of a significant proportion of the international community.188
These transitions have however resulted from the need to adapt being recognised, often after the need for revisions has been eloquently demonstrated by a sizable conflict. It is questionable if at the current juncture, sufficient will exists to generate new statute in relation to new types of conflict. Additionally, any universal or multilateral agreement on new types of warfare would almost surely represent a generational undertaking, taking time to draft and implement.189 It may prove expedient to consider
more timely approaches to adapting IHL.
The construction of new statute is not the sole option for changing IHL. The capacity to evolve is likewise borne out by the customary elements of IHL, which have expanded significantly, as well as clearly adapting to new technologies and types of war.190 It can be contended that in relation to new types of armed group, customary
international law is already undergoing a transition in relation to ISIS specifically.191
The customary approach is perhaps more viable than requiring new treaties, yet also has its limitations. States are just as confused as everybody else when it comes to the expedient use of force in new wars and can be expected to misinterpret their obligations in complex situations. Moreover, it is perhaps premature to suggest that states have arrived at any general practice or approach to current transnational and unconventional armed conflicts.192
To summarise, IHL is in theory capable of adapting to new types of armed conflict, even those as divergent as those of ISIS. Theoretically, it is possible to issue new statute to bring IHL into line with the nature of modern conflict. Alternately, a coherent set of customs could arise from the concerted action of states against groups like ISIS, with these actions serving to extend the principles of IHL into such scenarios. However, these adaptations, whilst theoretically possible, require that not only is the changing nature of armed conflict understood, but that the will to recognise
187 Marco Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’ (2006) 6
Program on Humanitarian Policy and Conflict Research, Harvard, Occasional Paper Series 1, 41.
188 New treaties do not simply materialise but require a concerted effort on the part of states. 189 Treaties often have an extensive drafting process.
190 Bartels (n 136).
191 Michael P. Scharf, ‘How the War Against ISIS Changed International Law’ (2016) Paper 1638.
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and implement changes is present. Of these two barriers, it is perhaps more appropriate to commence with the first. Understanding what causes groups like ISIS to challenge IHL, as well as the nature of this challenge, is a necessary component of producing a solution. To relate this back to IHL, it is appropriate to specifically understand how an organisation like ISIS diverges from IHL’s current means of defining an armed group, and how the type of war that states are required to fight against a group like ISIS may fall outside of the definition of armed conflict that IHL curates.