‘Jus in Bello’: The IHL Principle of Distinction in the Context of Asymmetric and Hybrid Armed Conflicts

Armed conflicts are increasingly assuming an asymmetric character through the involvement of non-State actors such as terrorist groups, militants, and insurgents. This phenomenon presents complex challenges for the international legal framework regulating warfare (Jus ad Bellum and Jus in Bello). This paper sets out to critically evaluate the legal challenges and practical difficulties which attain the application of the IHL principle of distinction in asymmetric and hybrid armed conflicts. While acknowledging the progress made in articulating the norms of ‘jus in bello’, the paper highlights persistent and pervasive problems in the application of the law governing armed conflicts to battlefield situations. The paper’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 the targeting of terror suspects. This is done 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 conclusion 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 a war crime.