The changing nature of war and its impacts on International Humanitarian Law
“Civilians play an increasingly important and complex role in armed conflicts. At the same time, the lines between “civilians” and “combatants” are becoming blurred.”
At the beginning of the 21st century it seems that warfare and armed conflict get messier and more chaotic than ever before. The phenomenon of weak and fragile statehood destabilizes whole regions and makes intra-state conflict to a constant feature with spill-over character in many areas of the world. At the same time do non-state armed actors, from warlords to armed militias to terrorists to private military firms, re-enter the international conflictscene. The globalized character of contemporary organized violence, especially the phenomenon of transnational terrorism, does challenge the international security structure. While symmetric inter-state conflicts are constantly decreasing and less likely to appear, the dominant form of contemporary armed conflict is intra-state and asymmetric by nature. One of the most striking features within contemporary armed violence is the increasingly important role of civilians, as victims but also as perpetrators and participants in hostilities. The year 2009 begins, much as 2008 ended, with hundreds and thousands of civilians killed in international and intra-state wars around the globe. Since World War II and, much more, since the end of the Cold War, it seems that there is a development towards a ‘re-victimization’ of civilians in global armed conflict. The last two to three centuries were marked by efforts to regulate and to institutionalize war as such. Private conflict entrepreneurs, like e.g. well-known mercenaries in the Thirty Years’War, became banned and the modern state developed a monopoly on violence. In the nineteenth century, a comprehensive body of laws of war became established and efforts to protect civilians and prisoners of war (POWs) in armed conflict became somehow and at least partially successful. Although the laws of war do not demand no civilian casualties in armed conflict, they do hold them on low level due to their balance between military necessitiy and humanity:
“The law does not demand that there be no casualties in armed conflict. However, the law, political expediency and public sentiment combine to demand that casualties, whether among members of the armed forces or among the civilian population, should be reduced to the maximum extent that the exigencies of armed conflict will allow.”
But with recent developments in forms of armed conflict and with strongly increasing numbers of civilian victims, the balance between military necessity and humanity seems to be flawed and the protection of civilians in war seems to fail. According to the International Committee of the Red Cross (ICRC) and various U.N. reports, the ratio of civilian to combatant casualties was between 5% and 10% in the First World War and then dramatically leapt to 50% during the Second World War. During the 1990s, 75% - 90% of all casualties in armed conflicts were civilian. The changing structure of armed conflicts, its drivers and its impacts is becoming a mayor issue in social science.
“At the turn of the twentieth century, the ratio of military to civilian casualties in wars was 8:1. Today, this has been almost exactly reversed; in the wars of the 1990s, the ratio of military to civilian casualties is approximately 1:8.”
This development has raised concern with the U.N. Security Council. Since 1999, the Council has adopted several resolutions deploring civilian casualties in global armed conflicts and urging states to comply with their obligations under international humantiarian law.
But, civilians are not only increasingly victims in wars but they are also perpetrators and participants in hostilities. With the rise of non-state armed actors in organized violence it seems to be increasingly difficult to distinguish between civilians and combatants. The fundamental line between soldiers and civilians has long been essential to the law of war, but with the rise of transnational terrorism, warlords and other non-state actors in armed conflict this distinction gets seemingly blurred. In fact, international humanitarian law not only tries to restrict conflict actors legally but also gives priveleges and rights to lawful combatants. Recently, with a growing number of violent actors which do not fit the concepts of either civilian or combatant, like for example members of non-uniformed armed militias who take part in hostilities from case to case or civilians who support terroristic organsations, a discussion concerning new criterias and concepts appeared. It is not clear anymore who or which group is a legitimate military target. In context to the United States’ approach in the “War on Terror” and the situation in Guantanamo, a critical discussion with regards to the ad-hoc concept of ‘unlawful combatant’ takes place and some scholars even argue that the Principle of Civilian Immunity in warfare is outdated due to the changing nature of war.
 A. Wenger/S. Mason,’The Growing Importance of Civilians in Armed Conflict’, CSS Analyses in Security Policy, Vol. 3, No. 45 (December 2008), at 1, accessed at: http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?id=94537&lng=en (visited January 7, 2009)
 See e. g., ‘Deadly Israeli hits on Gaza schools as war toll tops 635 deads’, The Age January 7, 2009, accessed at: http://news.theage.com.au/world/deadly-israeli-hits-on-gaza-schools-as-war-toll-tops-635-dead-20090107-7baz.html (visited January 7, 2009); ‘2008 a Deadly Year for Afghan Civilians’, National Public Radio January 4, 2008, accessed at: http://www.npr.org/templates/story/story.php?storyId=98964989 (visited January 7, 2009); ‘Post-surge violence: its extent and nature’, Iraq Body Count December 2008, accessed at: http://www.iraqbodycount.org/analysis/numbers/surge-2008 (visited January 7, 2009)
 “But, despite these differences [in modes of warfare between the 17th and the late 20th century], war was recognizably the same phenomenon: a construction of the centralized, ‘rationalized’, hierarchically ordered, territorialized modern state”, M. Kaldor,’New and Old Wars – Organized Violence in a Global Era’, at 17 (Stanford: Stanford University Press, 2nd Edition 2007).
 “To distinguish war from mere crime, it was defined as something waged by sovereign states and by them alone. Soldiers were defined as personnel licensed to engage in armed violence on behalf of the state. […] To obtain and maintain their license, soldiers had to be carefully registered, marked and controlled to the exclusion of privateering. They were supposed to fight only when in uniform, carrying their arms ‘openly’and obeying a commander who could be held responsible for their actions. They were not supposed to resort to ‘dastardly’ methods such as violating truces, taking up arms again after they had been taken prisoner, and the like. The civilian population was supposed to be left alone, ‘military necessity’ permitting”, Martin van Creveld,’The Transformation of War’, at 41 (New York: Free Press, 1991)
 A.P.V. Rogers, ‘Law on the Battlefield’, at 108 (Manchester: Manchester University Press, 2004).
 See U.N. SCOR, 60th Sess., 5319th mtg. at 16, U.N. Doc. S/PV.5319 (RESUMPTION1) (Dec. 9, 2005); U.N. SCOR, 54th Sess., 3980th mtg. at 11, U.N. Doc. S/PV.3980 (Feb. 22, 1999); Sylvia R. Limerick, ‘The International Red Cross and Red Crescent Movement’, 25 J. ROYAL COL. PHYSICIANS LONDON 246, 251 (1991).
 See The Secretary-General, ‘Report of the Security Council on the Protection of Civilians in Armed Conflicts’, para. 3, delivered to the Security Council, U.N. Doc. S/2001/331 (Mar. 30, 2001) [hereinafter U.N. Report on Civilians].
 M. Kaldor,’New and Old Wars – Organized Violence in a Global Era’, supra note 3, at 9
 See e.g ., S.C. Res. 1738, U.N. Doc. S/RES/1738 (Dec. 23, 2006); S.C. Res. 1296, U.N. Doc. S/RES/1296 (Apr. 19, 2000); S.C. Res. 1265, U.N. Doc. S/RES/1265 (Sept. 17, 1999).
 For an excellent overview, see International Committee of the Red Cross, ‘International Humanitarian Law and the challenges of contemporary armed conflicts’, 89 International Review of the Red Cross 2007, 719-757.
 Wesley K. Clark/Kal Raustiala,’Why Terrorists aren’t Soldiers’, New York Times August 2007, accessed at: http://www.nytimes.com/2007/08/08/opinion/08clark.html?_r=1 (visited January 7, 2009)
 See e. g. Roy S. Schondorf, ‘Extra-State Armed Conflicts: Is there a Need for a New Legal Regime?’, New York University Journal of Law and Politics, Vol. 37, No. 1, Oct. 2005,
 See e. g. Johan Steyn, ‘Guantanamo Bay: The legal black hole’, accessed at: http://www.statewatch.org/news/2003/nov/guantanamo.pdf (visited January 8, 2009)
 See Knut Dörman,’The legal situation of “unlawful/unprivileged combatants”’, 85 International Review of the Red Cross 2003, accessed at: http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LPHBV/$File/irrc_849_Dorman.pdf (visited January 8, 2009)
 For an excellent overview, see Igor Primoratz (ed.), ‘ Civilian Immunity in War’ (Oxford: Oxford University Press, 2007)