Archaic laws in modern war : an examination of the failure of international humanitarian law to evolve alongside advances in modern warfare, in relation to the principle of distinction

Abstract

The law of armed conflict (or international humanitarian law) has evolved throughout history to respond to changes in the means and methods of warfare. However, the last multilateral treaty governing the regulation of hostilities was in 1977. War has evolved dramatically since this point, and the existing law is ill-equipped to deal with it. International humanitarian law must evolve once more to cover these new challenges, and therefore protect civilians in times of conflict. This thesis seeks to highlight the deficiencies in the current law, and propose reforms to bring humanitarian law in line with the realities of modern warfare. This thesis examines how warfare has changed from that imagined by the drafters of the previous conventions, and its impact upon civilians. Next, this thesis examines the development of the law in response to prior developments in the conduct of hostilities, and analyses the reasons why it has failed to respond to these latest developments. Next, the thesis considers the concept of direct participation in hostilities, an emerging concept which may serve as a foundation for future legal reform. An examination of the conflict in eastern Ukraine follows, concluding with the author‟s proposals for a new multilateral humanitarian law treaty.