A Critical Study on the assertion of New Rule for New Type of War in IHL - Focused on 9.11 and Afghanistan war -

September 11 attack, also referred to as 9/11, launched by the Islamic terrorist group Al-Qaeda was a shocking day for everyone around the world. During the immediate Global War on Terror, personnel of the United States military and the Central Intelligence Agency committed series of human rights violation against detainees in the Abu-Graib prison and Guantanamo prison, escalating the trauma even further. These series of human rights violation gave rise a questions of International Law and International Humanitarian Law: whether International Humanitarian Law can effectively resolve the armed conflict between state forces and non-state perpetrators. And there are still debates concerning the issue, recent scholarly assertions proclaim that current International Humanitarian Law shows its limitation and incapacity to regulate new types of armed conflicts―armed conflicts between states and non-state perpetrators such as terrorist groups―and this incapacity resulted in the Guantanamo scandal. Thus, new rule to regulate such armed conflicts must be devised. However, for the following reasons, I strongly disagree with those who emphasize an ambiguity in current International Humanitarian Law, and those who propose a new law based on such ambiguity. First, the assertion of new rules for new types of armed conflicts including the War on Terror overlooks the subject matter of the armed attack against Afghanistan by the United States. Secondly, this assertion’s posture of interpretation and application is inconsistent with not only the purpose but also the recent trends of International Humanitarian Law. Thirdly, the assertion of new rule for new type of armed conflicts has bare chance of feasibility. Finally, assuming that International Humanitarian Law is incapable of dealing with this new type of conflict, there is still no traceable causation between this incapability of the law and the Guantanamo scandal where detainees were tortured and subjected to inhumane treatments. In this regards, the purpose of this paper is to review the premise of the new rule in its effort to identify a new type of armed conflict; whether or not the War on Terror is an armed conflict between states and non-state actors. This examination will also review whether or not there is the third type of armed conflicts, which is neither an international armed conflict nor an armed conflict not of an international character. In addition, it will review whether present International Humanitarian Law can apply to the War on Terror, because even though present International Humanitarian Law may not be able to cover certain new types of armed conflicts until new rules are formally adopted, it is the only source of a rule to regulate armed conflicts and the only means to protect the lives of civilians and combatants in the situation of armed conflicts.