INTERROGATING THE PROBLEMS ASSOCIATED WITH THE APPLICATION OF PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW TO ASYMMETRIC ARMED CONFLICTS

Abstract

The changing nature of warfare in the 21st century poses a multitude of challenges to the application of International Humanitarian Law for both State and non-State actors in contemporary conflicts. These issues, including, but not limited to: ambiguity in the distinction of violent conflict, the changing type of actors involved, issues of asymmetric warfare, challenges of negative reciprocity, and an inhibited ability to engage with all parties to conflict, are detrimental to the overriding purpose of International Humanitarian Law (IHL). Still, as a result of the inefficient nature of the international system, as well as the lack of consensus regarding new legislation, it is obvious that formal changes in International Humanitarian Law to more flexibly reflect the reality of situations will not be developed anytime soon. Therefore, it is in the best interest of all parties to non-international conflicts to aspire to better respect the existing norms of International Humanitarian Law, which can only be attained if States recognise the dire need for inclusive engagement with all types of non-State actors. In addition, practices of positive reciprocity must be carried out by all parties, in order to better serve the ultimate goal of International Humanitarian Law, which is the reduction of human suffering, and the preservation of human dignity in times of violent armed conflict. The applicability of International Humanitarian Law (IHL) must, therefore, be determined according to objective criteria and must not be left to the discretion of the warring parties. The main objective of this Paper is to discuss the legal implications of the use of asymmetric warfare in armed conflicts between states and non-state actors vis-à-vis the existing law and practice of war. The Paper holds the view that, the mandatory stipulation of Common Article 3 to the Geneva Convention notwithstanding, non-state actors in asymmetric armed conflicts often does not feel obliged to obey the fundamental principles of International Humanitarian Law and other rules of engagement in armed conflicts. The Paper, therefore, recommends, among other things, a modification of the traditional law in the context of transnational asymmetric warfare in at least three areas: first, the recognition of an obligation to consider alternatives to military action (asking not only whether targets were legitimate military targets, but also whether the decision to use force against them rather than explore the non-forcible, or less-forcible alternatives, was justified under the circumstances); second, if there were no available alternatives, the army would be expected to invest significant resources to minimise harm to civilians; and finally, following an attack, the army would be obliged to conduct a transparent and accountable investigation to reexamine its own actions.