Guerra asimétrica y proporcionalidad : retos para el derecho internacional humanitario

Abstract

War has historically been, as a security concept, a fluid notion. This fluidity has given rise to different interpretations concerning its nature. However, the central question to be addressed is, how permanent is the nature of war? There are, at least, three constant elements which underlie that nature. First, war does not mean violence at random but rather organised and systemic violence. Second, war pursues rational political ends and, in this sense, it could lead to structural transformations such as power shifts, loss or gain of territorial control, or the weakening of a state’s army. Third, war implies probability or uncertainty. These clausewitzian constant elements, common to all wards, lead to barbarie without any normative constraints. Thus, war does not signify ‘chaos’ but a ‘humanised’ conduction of organised violence, governed by a humanitarian legal framework. Armies, and the rightful use of force, have been structured taking into consideration this normative background. This situation can be traced back first to the barbarie and then to the high intensity conflicts which developed during the renaissance, both events together leading to the construction of the modern state. Indeed, the modern state machinery was born out of the prevailing violence during both historical periods. Therefore, in order to be able to survive, the construction of strong, independent and centralised political units was paramount. The modern state was created after the Peace of Westphalia, in 1648, with the aim of exerting power within its territorial boundaries and, therefore, maintaining domestic and external security. It follows that in order to be able to exert these functions the construction of professionalised armies was also necessary...