Present and future conceptions of the status of government forces in non-international armed conflict

Abstract

Legal voids exist and operate nowhere more clearly and widely in international law than in the laws of war applicable to non-international armed conflicts (NIAC). Status of government actors in NIAC provides an intriguing and specific example of just such a void. Where the protections and obligations of the law of armed conflict are premised almost entirely on the status of affected persons, the law of NIAC spurns such classifications, as well as the taxonomy of status-based protection generally. Yet modern forms of conflict and State practices may soon place pressure on the NIAC status void. Increasing media attention, growing international oversight, and progressively heightening sensitivity to the suffering produced by NIAC conspire to match the legal protective regime of NIAC with that of international armed conflict, including perhaps the latter's use of status. This article offers explanations of the likely influences behind the NIAC status void and offers logical, structural, and operational arguments in its defense. The article concludes by addressing a series of considerations related to generalizations about international legal voids as an opportunity to reflect more deliberately on an appropriate interpretive approach to the law of NIAC.