Most of today’s armed conflicts are characterized by asymmetry between the parties. When faced with opponents who significantly differ in terms of military capacity and resources, how can  commanders ensure their military operations remain within the confines of international humanitarian law (IHL)? What does asymmetric warfare mean today and what are the legal challenges – real or perceived – that we face?

 

military operations, armed conflict, IHL, international humanitarian lawJoin the debate! On 4 October, the ICRC will host a panel discussion on Translating IHL into military operations. Submit your questions to the panelists by leaving a comment below.

military operations, armed conflict, IHL, international humanitarian law

The event will take place from 18:00-19:30 (UTC+1) at the Humanitarium in Geneva and will be part of the ICRC’s ongoing series on Generating respect for the law. Please register below to watch the livestream or to attend in person.

 

Asymmetric warfare has become one of the defining features of modern armed conflicts – with terrible consequences for the civilian populations living in the affected areas. As many of these conflicts are fought in urban areas, civilian populations in towns and cities have been particularly affected.

At the last International Conference of the Red Cross and Red Crescent Movement, ICRC President Peter Maurer painted a stark picture of current trends in conflict: “We have entered an era in which armed conflicts are greater in complexity and numbers of actors, longer in duration, wider in their regional impact, broader in tactics and weapons used and, above all, more atrocious in the human suffering they cause.” The ongoing conflict in Syria is a case in point if one considers its complexity, duration and the multiplicity of actors controlling swathes of territory, making it difficult to respond to the enormous humanitarian needs.

Another notable feature in recent conflicts has been the presence of so-called ‘foreign fighters’ – nationals of one country who travel abroad to fight alongside a non-State armed group in the territory of another State. While further adding to the complexity, the phenomenon has also raised questions about the implications for the legal framework applicable to armed conflict.

Clearly, complex asymmetric conflicts seem to pose particular challenges for the implementation of IHL. As Nils Melzer explains in the ICRC’s new IHL Handbook:

“The enormous technological and military superiority of the States involved [in asymmetric conflicts] has led opposition groups to avoid identification and defeat by moving underground, intermingling with the civilian population and engaging in various forms of guerrilla warfare. As a result, military confrontations often take place in the midst of densely populated areas, which not only exposes the civilian population to increased risks of incidental harm, but also facilitates the direct participation of civilians in hostilities.”

Therefore, the argument has been made that when under attack, parties to a conflict that are militarily inferior may be tempted to hide from modern sophisticated means and methods of warfare and engage in practices not permitted by IHL, potentially increasing the risk of incidental civilian casualties and damage. Examples range from feigning protected status, mingling combatants and military objectives with the civilian population and civilian objects, to using civilians as human shields.

In turn, key IHL concepts such as ‘military necessity’, ‘proportionality’, ‘direct participation in hostilities’ and ‘military objective’ have sometimes come under fire from the parties to the conflict who were faced with opponents that deliberately use such tactics. Overall, this asymmetric conflict pattern seems to have made the civilian population as a whole more vulnerable to the effects of hostilities.

Against this background, how can respect for the law be improved? The task is clearly not made easier by diverging perspectives between armed forces and humanitarian actors. As Andrew Carswell explained in the Review:

“Whereas disciplined armed forces are certainly preoccupied with civilian protection, they naturally interpret the law in a manner that is most conducive to protecting the security and ensuring the operational viability of the young men and women they put in harm’s way. Although credible humanitarian organizations will certainly account for military necessity to the degree that is possible within their frame of reference, their main focus is invariably on the beneficiaries of IHL, and civilians in particular.

 

Ensuring respect for the law in contemporary military operations

It is paramount that legal, military, and policy circles reflect on ways to address these legal challenges and avoid the vicious circle of violence that has characterized armed conflicts in recent years.

Where do we stand with regard to translating IHL into coherent operational guidance and rules of engagement that are not only legally accurate, but also relevant and effective in contemporary armed conflicts? How can military commanders make sure their operations remain within the confines of the law? What changes in the political sphere would be conducive to generating greater respect for the law?

To discuss these and related questions, the ICRC has invited four renowned experts to offer their insights at a panel discussion, on 4 October 2016 in Geneva:

  • Richard Jackson, Adjunct Professor of Law, Georgetown University, and Former Special Assistant to the U.S. Army Judge Advocate General for the Law of War Matters
  • Andrew Carswell, Senior delegate to the Armed Forces, ICRC
  • Lone KjelgaardSenior Assistant Legal Adviser at the NATO Office of Legal Affairs
  • Charles Garraway, Colonel, Member of the International Humanitarian Fact-Finding Commission.

The discussion will be moderated by Jamie Williamson, Head of Unit, Relations with Arms Carriers, ICRC.