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?
Join 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.
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 Kjelgaard, Senior 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.
Related content
- Protracted conflict and humanitarian action: some recent ICRC experiences – ICRC report, August 2016.
- International humanitarian law and the challenges of contemporary armed conflicts – ICRC report, October 2015.
- Andrew Carswell,“Converting treaties into tactics on military operations”, International Review of the Red Cross, Vol. 96, No. 895/896, 2015.
- Armed violence and the new urban agenda: Recommendations for Habitat III – ICRC Policy Paper, 20 July 2016.
- Remember the millions of people living in urban violence – Hugo Slim, 4 July 2016.
How do commanders go about drafting rules of engagement that are simple enough to be easy to follow in the “fog of war”, and yet account for all the nuance that IHL requires? Are lawyers involved in the process and, if so, at what stage?
At the Warsaw Summit in July, NATO adopted a new policy for the protection of civilians. To what extent will this policy have an impact on the Rules of Engagement of potential NATO operations in the future?
Hello panelists.
I’d like to ask how different states are operationalising the notion of DPH and CCF in light of the debates that have followed the ICRCs Guidance and the seemingly increasing relevance of human rights law.
Thanks.
Charlie.
Is it possible for this excellent discussion series to be recorded and made available online for the benefit of those in distant time zones (it will be 2am Australian time)?
Hi Tara,
Yes, the event will be broadcasted live on the Internet from this page (via Youtube), and will remain available after the event is over. I hope you enjoy the discussion!
Raphael
Dear Panelists
How ICRC can be more proactive in ensuring respect for IHL, specially in Syria, in regards to conflicting blame game between two big powers who seems to be voicing conflicting claims for their actions, where civilians are suffering?
Regards
Colonel Muhammad Shahnoor Rahman, afwc,psc (Rtd)
Programme Responsible for Military and Armed Forces
ICRC, Dhaka Delegation
Dear panelists,
I would be keen on hearing you out on my following questions:
How is the possibility of losing soldiers’ life (nationals) valued against the possibility to create civilian casualties (foreigners) in the targeting process of armed forces? Any worrying trend to identify in that regard? If yes, what factors cause it and how can it be reverted?
What complementary roles can humanitarians, media, public opinion, heads of States, legal advisers to armed forces and military commanders play to ensure compliance with IHL in military operations?
Thank you!
Etienne
There is a widely accepted view that parties to conflict must take into account not only the immediate but also the foreseeable reverberating effects of attacks, particularly when evaluating potential incidental harm to civilians during the precaution and proportionality assessment. This is especially important in protracted situations, where services may be functioning but are gradually deteriorating and weakening due to the cumulative impact of conflict over time. It is also very important in urban areas, where many people depend on infrastructure and services that are highly interconnected and thus collectively more fragile and vulnerable to collateral damage, especially where heavy explosive weapons are used repeatedly.
How does an assessment of foreseeable reverberating effects of an attack concretely look like in military operations? Do militaries usually have sufficient information about the actual state of civilian infrastructure and services to assess the impact of potential further damage/disruption accurately?
How can United Nations ensure respect to IHL while participating to military operations conducted by a national defense force in the context of a peace keeping mission ?
It has almost become a truism to say that asymmetrical armed conflicts do not fit the legacy of the Westphalian Peace Treaty (1648). As is known, this Treaty led to a development in which nation-states became the primary actors under international law; they were subsequently the entities which had a say in its development. Armed non-state actors were, by-and-large, not involved. Thus, the risk of a so-called ‘normative gap’ came into existence – a normative gap in the sense that non-state actors were expected to be bound by IHL, though they had no say in its wording.
In order to address this normative gap, various learned authors have argued that non-state actors should be bound by IHL regardless. The arguments made to that effect have been diverse: some authors have invoked ius cogens, others have invoked customary humanitarian law in general, yet others have sought a ceremonial declaration from non-state actors in which they commit themselves to IHL, etc. All viewpoints may be laudable, even though they amount to coping mechanisms, in the sense that they attempt to cope with the fact that the Westphalian framework no longer matches reality on the ground.
Teachers & instructors of IHL have to cope as well: should they continue to argue their case in a quasi-legalistic way, saying that they base themselves on respectable and ratified norms despite the fact that non-state actors had no say in them? Or should they, alternatively, argue their case from a teleological perspective, by arguing that a just peace cannot be achieved by illegal means, suggesting that the process of transitional justice will become more complicated if a wounded society has to come to terms with a great number of war crimes in its recent past? Or, yet again alternatively, should they argue their case from a perspective of military psychology/military sociology/military ethics, by saying that a violation of IHL disgraces both the perpetrator and his entire unit? How should teachers & instructors of IHL move forward given this normative gap?
I am lliving in the USA central time zone: New Orleans area. What time will this be available for me to listen. Thank you.
Hi Joanne,
In your time zone in New Orleans, the event will take place on Tuesday 4 October from 11:00 to 12:30.
The event will be recorded and can also be viewed on this page after the event is over.
Best, Raphael
Deart: Panelists
Somalia there is no active government which can keep the security of its people.
Some regions in Somalia there is human suffering from armed conflicts especially South & east Galgudud region
my question: is ICRC planning to recruit a qualified field officers who can record and solve the human suffering caused by armed conflicts?
I get very sad when I think problems never get solutions. As we look at all the problems happening throughout the world. For example take Right now Russia is bombarding Syria & America is supporting the rebels, everything is spoiled. The elephants are fighting & grass is severely being damaged. Therefore, as long as the designers of the law are the elephants the grass will continue its suffering. However, this law will have to emerge from grassroots of the victims. History taught us many laws & strategies designed to no avail to bring a solution. There is death tolls in money countries, which the elephants call it or Arab Spring or other names whatever they want, but the opposite is true. What is the cause of suffering of Libya, Iraq syria, Afganistan? Yemen? Can we Identify/ stipulate the problem? Yes, if we analyze it rationally & scientifically the problem is not far away. Even this agenda seems to be making the warriors of equal capacity in all aspects rather than halting the war. That means to give the warriors equal sticks to continue their fighting. Why don’t we stop the war from the surface of the Earth? Is it a big or unattainable problem? please consider all these things?
There have been high level political commitments made in the last 8 years to address sexual violence in armed conflict – both to prevent one’s own forces committing it (including SEA) and to prevent it in areas of operations, and to address the needs of survivors.
How are commitments regarding sexual violence being addressed in military doctrine and operations? Will response to sexual violence by third parties ever be regarded as more than essentially discretionary for a commander, always weighed against its cost in terms of other mission objectives and force security?
How do we better build an understanding of IHL and IHRL beyond legal advisors and among our action-oriented military commanders? This debate appears confined to an exchange between the legal representatives of advocate and defence. Very few if any readings, for example, on the legal implications of IHL appear on the reading lists of higher and advanced defence colleges. Even less–beyond basic Law of Armed Conflict training–appears at intermediate officer and other ranks level. So this debate among advisors is necessary, but likely to be insufficient in the field., leading to accusations by commanders about the ‘fog of law’.
Can Child Soldiers be ‘members of non-state armed groups’ or can they merely ‘directly participate in hostilities’ (with the view on the far reaching targeting consequences: revolving door/ continuous targeting)? Furthermore, should child soldiers be prosecuted for their crimes committed during direct participation in hostilities or should alternatives be explored (such as transitional justice mechanisms)?
I would like to know about some practical experiences on criminal investigation on the battlefield and in middle of combat operations.
Thanks.
Thank you ICRC and panelists for the great talk. Is there a plan to certify this and future talks for continuing legal education credit in the US?
Hi Harry,
Thanks for your kind words. These events are organized for the sake of energizing humanitarian debates but do not lead to formal education credits.
Best,
Raphaël