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Counterinsurgency LawNew Directions in Asymmetric Warfare$
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William Banks

Print publication date: 2013

Print ISBN-13: 9780199941445

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199941445.001.0001

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Reunifying the Law of Armed Conflict in COIN Operations Through a Sovereign Agency Theory

Reunifying the Law of Armed Conflict in COIN Operations Through a Sovereign Agency Theory

(p.45) 3 Reunifying the Law of Armed Conflict in COIN Operations Through a Sovereign Agency Theory
Counterinsurgency Law

Eric Talbot Jensen

Oxford University Press

This chapter proposes a sovereign agency theory for reunifying the law of armed conflict (LOAC) in counterinsurgency operations. It begins with an overview of the current paradigm of LOAC applicability based on conflict characterization, including a historical background on the bifurcation of the LOAC into provisions regulating international armed conflicts (IAC) and non-international armed conflicts (NIAC). More specifically, it considers whether such bifurcation has been effective in curbing either the violence against victims of armed conflict or in promoting LOAC compliance by participants in armed conflict. It argues that states should apply the LOAC to their use of armed forces to apply sovereign force and outlines some benefits of the sovereign agency theory, including historical examples. Finally, the chapter suggests that the traditional international humanitarian law (IHL) dichotomy between IAC and NIAC causes confusion and, at times, a failure to apply core IHL protections to armed conflict.

Keywords:   sovereign agency theory, law of armed conflict, counterinsurgency, international armed conflicts, non-international armed conflicts, violence, armed forces, international humanitarian law

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