Filling the Gaps: The Expansion of International Humanitarian Law and the Juridification of the Free-Fighter

Abstract

This article traces the expansion of international law from the Hague Conventions, where only a state’s soldiers had legal status, to the contemporary understanding that international law governs all participants in conflict. This can be seen as a humanitarian shift that diminishes state power. This article, however, argues that the Hague Conventions only established a limited sphere of formal law because delegates deliberately left free-fighters outside the law, to be governed by their own will and moral code. In doing so, delegates echoed a philosophical tradition that situates true freedom outside the state. As this article shows, the expansion of law to include such fighters required the replacement of such alternative codes with a renewed and extended range of formal legal criteria. As such, the expansion of international law to the realm outside the state has led to a reaffirmation of that law which is synonymous with the state.