International Regulation of Armed Conflicts: 'Jus in Bello' in an Age of Increasingly Asymmetric and Hybrid Warfare

The changing character of warfare, exemplified by the increasingly asymmetric and hybrid character of modern armed conflicts, presents complex challenges for the international legal framework regulating armed conflicts - Jus ad Bellum and Jus in Bello. The key factor driving this change has been the growing involvement of non-State actors (combatants, insurgents, militants and terrorist groups) in armed conflicts. While acknowledging the normative progress made in articulating the principles of ‘jus in bello’, the paper highlights persistent and pervasive problems in the application of the law governing armed conflicts to battlefield situations. The article’s key objective is to counsel the necessity for the further refinement and granulation of current ‘signature policies’ involving the use of armed drones in targeting terror suspects. This task is undertaken with a view to attaining a greater degree of accuracy, clarity and precision in calibrating the vital distinction between civilian status and the various categories of presumed combatants. The paper posits the impossibility of attaining the rule of distinction in the use of weapons of mass destruction (WMDs). It further argues that when viewed from this perspective, the mere possession and stockpiling of WMDS could per se be construed as constituting the requisite mens rea, or animus belligerendi, of preparation for the possible future commission of war crimes. The concluding part of the paper outlines a possible conceptual framework for establishing war crimes culpability in the context of nuclear warfare.