There is something that nowadays we all can agree on, and that is, that it is undeniable that the International Humanitarian Law (IHL) has been a source of support and hope for millions of people around the world for over 50 years, avoiding and limiting the suffering of men, women and children during times of armed conflicts all over the 5 continents.

More than 60 years ago, Henri Dunant, had the performative initiative of creating an institution as well as a legal instrument which would provide support to all those affected by armed conflicts. This idea of Dunant originated what we know today as the International Red Cross Committee, as well as the International Humanitarian Law. This last one, subject of the study in this article, has been evolving with the pass of the years, always with the intention of protecting the human person that can be affected or injured by an armed conflict. But these days is necessary to ask ourselves, is the International Humanitarian Law efficient enough in its normative, in order to protect all those people in need of humanitarian help around the world? Are the 4 Geneva conventions and the additional protocols providing a real support to all those people needing humanitarian help today? And, up to which point, we, the regular people, which are not involved in the war and are the victims of the conflicts, have knowledge of the humanitarian laws and are able to be supportive with each other when the conflicts happen in front of our eyes? Up to which point are we sick of the conflicts that stop us from being humanitarianly performative as Henry Dunant?

In spite of the good intentions of the International Humanitarian Law, unfortunately the reality is that exist many people all over the world that express the necessity of being helped by the War Law, people that are being victims of new types of wars and non conventional conflicts, that have strengthened in the past years, and that have been subtly instrumented, peacefully accepted and justified by everyone, such as terrorism, drug dealing, and organized crime. These new war formats pretend to present themselves under the figure of  non international armed conflicts, that escape of the violations of the rules of any internal’s country law and that become challenges to all the international community, without any doubts.

In the international society of the XXI Century, new and more complex actors have been emerging in progressively way. In the past, the international society was conformed only by the conglomerate of states from America, Asia, Africa, Oceania and Europe. Nevertheless, with the pass of the years, new actors have found their space, a space of great importance, such as the International Organizations, among them United Nations, the European Union, and the Organization of American States, as well as the International Labor Organization, the International Red Cross Committee (main representative and promoter of the International Humanitarian Law), among others, that seek to improve the living conditions for the human person worldwide.

But these have not been the only actors that have been appearing and taking significance within the international system. There are others that have looked and found a space of action, reaction and recognition. Among the most important ones, stand out terrorist groups such as Al-Qaeda, Jimah Islamiyah, FARC and the ELN –the last two present in Latin America, with their heart in Colombia-, which have been responsible of the death of thousands of people, displacements, etc. Likewise, we find different organized crime groups all over the world, that practice kidnappings, trafficking of arms, drugs and diamonds, that without any doubt have a real negative effect on those areas where they carry on with their activities, directly affecting the communities, generating movements of displaced people in the best scenarios, and injuring and even killing people, in not so favorable occasions.

For this reason, I cannot stop remembering the United Nations preamble, which states that one of their main objectives is “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. Now, the wars that our parents knew are not the wars that we are living nowadays, and results difficult to imagine how the United Nations can prevent the war scourge from us, when we are the ones in war, fighting each others, and struggling against the institutions that are called to protect us.

The world actors must adapt before these challenges that are presenting the new paradigms of the modern world, having to legislate in that matter. The direction of the International Humanitarian Law must be the same, to be more effective and pertinent in its labor.

The Terrorism as a humanitarian threat

It is undeniable that we have entered an era where terrorism is a determinant factor within the elaboration of the international agenda, for the States around the world, as well as for the other actors that interact within the international system. In the same order of ideas, it is also indisputable that terrorism affects every day diverse sectors and communities around the world. From ETA in the Basque Country to Al-Qaeda in Afghanistan and Pakistan, through the FARC in Colombia, which have incremented the global mortality rates, and originated massive displaced movements inside their own countries, moved by the high levels of insecurity in the zone where they carry on with their illegal activities.

In that sense, the International Humanitarian Law refers to terrorism in different aspects, but unfortunately tackles the subject in an untimely and inaccurate way, which does not allow it to properly protect and limit the suffering of the victims of these new modalities of asymmetric non conventional wars.

For example, the International Humanitarian Law states that the equality of rights and obligations established in the law allows that all the parties involved in a conflict must be aware of all the norms that regulate their way to conduct the hostilities, and can expect as well that the other party will adopt a similar behavior. Nevertheless, the modus operandi of the terrorist organizations functions based on the non recognition of any norm or law that can regulate any institution, this is how they plan and operate in contrast to the law. Then, the essence that gives the terrorist organizations their reason to exist, as new actors within the international system, is the same one that forbids them from complying to any norm that regulates the hostilities that they carry on.

Similarly, one of the fundamental International Humanitarian Law principles states that the persons that participate in the armed conflicts must distinguish, under all circumstances, between civilians and combaters, and between civilian objectives and military objectives. The “distinction principle”, as it is often referred when speaking of this norm, is the angular rock of the International Humanitarian Law. From it derivates numerous specific norms of the War Law destined to protect civilians, such as the forbidding on the direct or deliberate attacks against civilians or civilians objectives, the forbidding of indiscriminate attacks or the use of “human shells”. The international Humanitarian Law also forbids the taking of hostages. With this said, we would have to ask ourselves, are these norms applicable to terrorists? Sadly the answer is no. In first place, the terrorist strategies and tactics seek for them to be unidentifiable among the regular civilian population. This is why on the surface many the terrorists are living “normal lives”, studying in universities, working in big companies and big restaurant chains, just like we do, with the only difference that when the time comes for them to contribute to their cause, they do whatever they have to do, inclusively putting their cause over their lives, kidnapping, torturing and even assassinating civilians, sometimes in masses.  This is how, evidently, the “distinction principle” doesn’t apply to the terrorist groups, which seem to have invaded the world in the past years.

If the terrorist does not comply with the International Humanitarian Law norms, since he does not respect the “distinction principle”, and hides among civilian groups, not allowing to his counterparty, generally States and governments, to identify him; frontally attacks civilians, the same way it was previously explained in this article, and; doesn’t comply with the proportionality principle, when explodes a bomb killing hundreds and hundreds, or when he crashes a plane against a building with thousands of innocent people inside, how can be considered possible a war against terrorism, with no possibility of considering the terrorist a belligerent combater? And, how can be expected in the previous cited conflict the complying of the International Humanitarian Laws by any of the parts, when the objective of the terrorist is the absolutely rejection of all the legal regulations?. Answering these questions, would be a good start for the legislators of the world in the matter of the International Humanitarian Law, and a good way to expand the humanitarian help to all those persons that day after day are victims of these groups.

The organized crime in the new millennium

Within the world of the current organized crime, we can identify different groups, such as the arm traffickers, the drug dealers, and the organized kidnapping groups, among the ones with more presence mainly in the third world countries.

The true is that in many developing countries, these groups are part of the social structure, and the common citizen has to deal, adapt and cohabitate with these criminals on a daily basis. On the other hand, the fact that the citizens adapt and cohabitate with the criminals, does not mean that they are not victims of these new formats of non conventional wars, to which the International Humanitarian Law should extend its help in the XXI century. But up to which point, this type of internal conflicts must be regulated by international laws?

It is understood that most of the crimes committed by the mentioned groups, are seen as internal ones, covered by the State’s law. But, what happens with those States that show themselves incapables of protecting the victims of these crimes? What happens in those cases that the same States are accomplices of the organized crime groups, and furthermore are equally guilty of the humanitarian crisis? What happens when these internal conflicts are extended to other States or are globalized? Don’t these people, these victims, deserve to be protected by any international humanitarian figure?

Punctually speaking, what is the difference between the hundreds of Mexican women and children that die every year by the hand of the drug cartels and the organized groups that traffic persons through the United States and Mexico border lines, with the women and children that die in the streets of Afghanistan?
What is the difference between the hundreds of thousands people that die in the Latin American “barrios” year after year, victims of the common crime and the organized crime, and the thousands that have died in Iraq, since de beginning of the war more that 6 years ago? Would it be morally correct to say that the victims of these new formats of non conventional wars do not need the humanitarian help? There is something really clear, and it is that the governments of these nations are incapable of protecting these innocent people from the actions of the organized crime organizations by themselves.

Consequently, would it be unimaginable and incongruent to think that the International Humanitarian Law in the XXI century could elaborate a legal instrument which could protect these people,  who have shown with bloodsheds and suffering that they need the help of a supranational organism to face these new modalities of non conventional wars?

The number of deaths in many developing countries is overwhelming. According to a research done by the “Grupo Multisistemas de Seguridad Industrial”, in South Africa 126 homicides are committed for every 100.000 habitants, in Colombia 114.5, Guatemala 44, Thailand 41.5, Paraguay 19.4 and Mexico 12. If on top of this, we add the study done by the “Instituto Nacional de Estadistica” from Venezuela, which establishes that in the Latin American country for every 100.000 habitants, 75 homicides are committed, we can realize that the numbers speak for themselves, and we can conclude that these third world countries are subject of a new form of non conventional war. And I call them wars, not only for the death rates, but because of the contexts in which these crimes are committed. And it is because of the hard circumstances lived in these countries, caused by the institutional chaos, the criminals have decided to declare the war against hunger, the war against institutions, inclusively, the war against the government organisms, primarily affecting the regular citizen, men, women and children. According to the same study done by the “Grupo Multisistemas de Seguridad Industrial”, every homicide committed affects between 3 or 4 persons, who are directly related to the victims. It would be just a matter of doing the math; to realize the hundreds of thousands victims that are being left out as a result of these wars carried on by the organized crime groups, causing even a bigger harm, the dehumanization of the human person.

The new wars of the XXI century

The institutional chaos of many developing countries has contributed to the construction of huge permissive platforms to traffic arms, drugs, diamonds and even people, used usually as a source of revenues for the armed groups around the world.

In this order of ideas, hundreds of thousands of guns go straight to the hands of civilians, causing the cohabitation –in most of the cases not peacefully- of armed civilians and armed groups in the same territory, in an unstable equilibrium. Terrorist groups, leftist armed groups controlling urban areas, the formation of political militias, and the generation of organized crime groups have caused the loss of sovereignty and power in the societies of these developing countries, always putting at risk the lives of innocent persons, among them, civilian women and children.

What is actually being developed in these places is an internal conflict which faces some weakened States against diverse armed groups that have ended up being transformed into organized crime. The weakening of the States and the multiplicity of armed informal powers along to the geographical profitability for the different kinds of trafficking opens the possibility to a new form of conflict in which are mixed bandits and military men, cops and corrupted rebels, generating new war scenarios and battle fields, resulting in new challenges to the International Humanitarian Law.

This is how, in the quest of fighting the terrorism and organized crime phenomenon, the Criminal Internal Law is mutating to intertextual intersystemic relations; where the State considers that the internal law shows itself useless. All its basic guaranties and principles lack of sense if they pretend to be applicable to a subject that in a way doesn’t guarantee the smallest cognitive security in its personal behavior. This is how that the States are no longer dialoguing with the citizens, but combating their enemies. It will depend on the efficiency and the capacity of adaption of the specialists and professionals in charge of legislating on this subject, that with the pass of time the people and institutions protected by the humanitarian legal instruments will increase according to their needs.