A humane legal response to contemporary challenges on the use of force posed by non-state threats and possible misuses of military necessity

Abstract

Giving preeminence to military interests over humanitarian considerations in international law may encourage attacks that violate the jus ad bellum because the generation of an armed attack will entitle targeting individuals in order to further the goals of entities carrying out the attacks. If this happens, individuals will be treated as means, and their human dignity will be violated. Thus, attacks on life in the mentioned circumstances violate the foundational value of both human rights and humanitarian law norms. Therefore, in order to discourage resorting to war and tweaking the law, depriving humanitarian guarantees of their effectiveness, a prevalent human rights law approach that acknowledges the arbitrariness and ensuing unlawfulness in those conducts is necessary. International Humanitarian Law can also be understood as violated, but even if it is not considered to be breached, an autonomous understanding of human rights law not subject to IHL is possible. Apart from the previous concerns, there is the issue of non-state uses of force. A State-centered conception of international law is inadequate to answer to reality and protect international legal goods. This is felt in jus ad bellum and jus in bello, because the impact of non-state actors cannot be dealt with properly in its light. In this regard, there are problems concerning the possibility of resorting to self-defense against non-state armed groups located in the territory of another State or in the regulation of armed conflicts in which non-state actors participate. Some of these challenges can be met with existing norms although there are gaps that call for regulation de lege ferenda.