by Caroline J.S. Picart, Ph.D., Editor-in-Chief, FJIL
Issue 23.3 (December 2011, forthcoming) of the Florida Journal of International Law features, among others, Daphné Richemond-Barak’s “Applicability and Application of the Laws of War to Modern Conflicts,” which analyzes how principles governing inter-state wars could be applied to conflicts involving nonstate actors, whether they are members of guerilla groups, terrorist organizations, or even private military contractors. Richemond-Barak’s inquiry begins with the question of whether the laws of war apply at all, in “asymmetrical conflicts” because conflicts revolving around nonstate actors “challenge a fundamental assumption of the laws of war: reciprocity, or the expectation that other parties to the conflict will respect similar legal and behavioral norms.” Richemond-Barak takes the position that “most of international humanitarian law is binding in most conflicts on most actors (whether or not the parties behave reciprocally).” However, she notes one exception: Richemond-Barak argues that the “only situation in which a state may not be bound by all of humanitarian law is when, in an international armed conflict, an opposing nonstate party repeatedly violates international humanitarian law.” Nevertheless, Richemond-Barak acknowledges that “even when the applicability of the laws of war is established,” the legitimacy of their applicability to actors “who do not fit easily within the civilian/combatant divide” remains problematic. Consequently, she argues for “a more expansive and dynamic interpretation of the notion of ‘combatant,’” which includes religious, historical, and legal traditions. For Richemond-Barak, such a “broader” understanding of what a “combatant” is, “would clarify the legal regime applicable to nonstate actors and enhance the protection of civilian populations in modern conflicts.”
Dr. Daphné Richemond-Barak teaches at the Radzyner School of Law at the IDC, Herzliya. She holds a Maitrise from Université Panthéon-Assas (Paris II), a Diploma in Legal Studies from Oxford University (Hertford College), an LL.M. from Yale Law School, and a Ph.D. from Tel Aviv University. Prior to joining the IDC, she served as a clerk at the International Court of Justice and worked as an attorney in the New York office of Cleary Gottlieb. Dr. Richemond-Barak has acted as a private counsel for international law firms and as a legal adviser to several states including the government of Colombia in its territorial dispute against Nicaragua before the International Court of Justice. Much of her research focuses on the role and status of non-state actors, asymmetric warfare, and the morality of war.