Analogies in the ongoing development of IHL (2001–present)

Abstract Since the onset of the third millennium, the battlefield reality has undergone profound changes, a trend that is expected to persist in the coming decades. State armed forces are increasingly investing in the development of lethal autonomous weapons systems and expanding their strategic capabilities in cyberspace and outer space. Concurrently, the prevalence of non-international armed conflicts – not only internal armed conflicts occurring within the territory of a single State, but also transnational armed conflicts crossing State borders – is steadily rising. In addition, recent armed conflicts have pushed belligerent actors to cooperate in various ways against a common enemy. The principle of effectiveness, which is of paramount importance in international humanitarian law (IHL), compels this legal framework to adapt to these changing realities of the battlefield. This article argues that analogical reasoning plays a pivotal role in facilitating IHL evolution, while also cautioning against the limitations and risks of its widespread use. The analysis is structured in two main sections. First, the article explains the dual function of analogies in contemporary IHL discourses, illustrated through five paradigmatic examples addressing some of the field’s most pressing issues. Second, it examines the limitations and risks of relying heavily on analogical reasoning in the ongoing development of IHL. The article concludes by underscoring the responsibility of IHL scholars and experts to remain vigilant against the misuse of analogies within this legal domain.