Asymmetric Conflicts: a Challenge to International Humanitarian Law
| | RISQ Reviews | 06 July 2005 |
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Author: Stefan Kirchner
Contemporary warfare, engaging non-state actors in terrorist attacks and guerrilla tactics, demands a reassessment of the options available to enforce International Humanitarian Law.
I. Introduction
In a review of Wesley K. Clark’s book “Waging Modern War: Bosnia, Kosovo and the Future of Combat”, in which NATO’s former Supreme Commander draws his conclusions from Operation Allied Force, Richard K. Betts remarks that "One of the most striking features of the Kosovo campaign, in fact, was the remarkable direct role lawyers played in managing combat operations - to a degree unprecedented in previous wars. [...] The role played by lawyers in this war should also be sobering - indeed alarming - for devotees of power politics who denigrate the impact of law on armed conflict."[1]
Although Betts only shortly afterwards displays a surprisingly old-fashioned view on armed conflict and its legal consequences[2], his observation illustrates the impact of International Humanitarian Law (IHL) since the beginning of the Balkan Wars on military operations. If one compares NATO’s relative openness, especially European NATO partners,[3] with the U.S.’ attitude regarding operations in Vietnam and elsewhere, the gaining influence of IHL becomes apparent. Indeed, while in earlier wars cover-ups were the norm, the armed forces of Western states today are subject to more public scrutiny than ever before.
However, while International Law [4] is putting ever more constraints on the use of force by states, modern conflicts are increasingly waged inside national borders [5], which poses new problems for the enforcement of IHL. Most of these problems are due to the fact that wars are less often fought between national armies but all the more between a national army or several armies on one side and armed civilans, guerillas or terrorists on the other side - e.g. in Israel, Iraq, Afghanistan, Colombia etc. In the face of such forces, who typically employ asymmetric warfare tactics and strategies, including operations aimed at civilian targets, national armies are often prone to respond in a manner which Napoleon Bonaparte considered to be a doctrine of warfare: On s'engage et puis on voit. - 'Attack first and consider make decisions on how to win the war later. As the U.S. approach to the 2003 Iraq War seems to follow this Napoleonian doctrine, its already running up against the suggestions of the great Chinese military mind Sun Tzu for insurgents: When facing a superior enemy force attempting to invade your country, let it in and then counter it with initially small but gradually increasing attacks. The war waged by the U.S. in Vietnam, that of the Soviet Union in Afghanistan, and the 2003 Iraq War show that on s'engage et puis on voit has its limits. As Clausewitz would have it: don't start a war if you don’t know how to end it.
The nature of contemporary armed conflicts not only demands a reassessment of military strategies for the sake of winning a war, it also requires finding ways of doing so in compliance with International Humanitarian Law.
The question before us is whether and, if so, which tools there are to enforce International Humanitarian Law in modern asymmetric conflicts. We will especially have a look at alternatives to courts as a tool of IHL enforcement. Courts, while often serving as a useful venue for IHL enforcement within the context of regular armed forces, do not suffice to deter terrorists ready to kill innocent civilians with suicide attacks.
II. Enforcing International Humanitarian Law
1. Introduction
Enforcing IHL is one of the most difficult aspects of this interesting field of international law. On one hand, IHL constitutes in a sense 'a law beyond the law' - i.e. a set of legal rules that becomes applicable after the prohibition of the use of force, one of the most fundamental tenets of international law, has been breached. On the other hand, IHL applies equally to the attacking as well as the defending party in a conflict. Finally is it illegal to retaliate in kind, once International Humanitarian Law has been violated by one party to the conflict. Both aspects can make it difficult to explain to the general public why respect for International Humanitarian Law is crucial.
In this article we will have a look at the different options available for the enforcement of International Humanitarian Law and how the challenges posed by modern conflicts can be met. Already some years ago Samuel P. Huntington predicted such conflicts: International Humanitarian Law, like almost the entire modern system of international law[6] and the idea of human rights, has its roots in the western (legal) cultures, which might make it seem alien and hence inacceptable for others. What might be universalism for some might be imperialism for others.[7] An intentional violation of International Humanitarian Law, such as is the case with attacks against civilians, e.g. in Israel, New York, Madrid, Afghanistan, Iraq or Saudi-Arabia, therefore might be perceived by terrorists as a direct attack against the Western values.
By equalising attacks against military/terrorist targets with attacks against civilians, terrorists attempt to create a degree of legitimacy of violations of International Humanitarian Law. On the other hand will terrorists see a need to violate International Humanitarian Law since the creation of a large military potential that can truly match Western forces would require both time and funds,[8] which in turn will lead terrorists to search alternatives to traditional military power in order to create a counterweight against conventional Western military might.[9] Apart from the danger that terrorists might develop, purchase[10] or steal nuclear, biological or chemical weapons, terrorist attacks against civilians remain the weapon of choice for "non-western weak" actors.[11]
2. War, military requirements and International Humanitarian Law
Hostile soldiers are still considered a "ressource" of the opposing forces, the same holds true for supporting civilian institutions, creating a certain incentive for terrorists to attack civilians as well in order to harm the enemy through targeting enemy "ressources":
"In the nineteenth and twentieth centuries, states began to accept, as ancillary principles, codes for how to fight just wars that avoid excessive harm, that protect the rights of the noncombatant, that regulate appropriate behavior during sieges and blockades, that define the proper standards of surrender, and that (with Nuremberg) allow for the punishment of government leaders responsible for war crimes and the crimes of aggressive war and genocide.
These are rules of the road, conventions developed over long periods of time, convenient principles of "backscratching". Each sovereign does for the other what it would like to have done for itself over the long run. The actual evolution of these rules was shaped by the fact that were thought generally useful by the monarchs of Europeans the monarchs pursued their own interests, seeking to avoid unnecessary clashes among themselves. (Indeed, these are just the sort of backscratching rules that might be developed by equally ruthless "monarchs", the leaders of organized crime.)"[12]
Yet although initially International Humanitarian Law also benefited states, "This is not to say that rules do not have ethical significance. Rules of the road reduce traffic fatalities. They also can represent acceptable compromises among diverse moralities.[13] They work especially well for issues too unimportant, too unclear, or too dangerous to contest." [14]
In practice however, it can be hard to predict how individuals, which are obliged directly to comply with International Humanitarian Law, will react to violations by the opposite force. Despite the fact that armed reprisals are outlawed, violating International Humanitarian Law can start a vicious circle facilitated by the continuous danger in which those obliged to comply with International Humanitarian Law find themselves.
3. Difficulties in Enforcing International Humanitarian Law
Fundamental to all difficulties relating to the enforcement of international law is the classical and by now outdated point of view of the Westphalian legal system to the effect that only states (or international organisations of states) can be subjects of international law[15] - a view that has been confirmed in the UN General Assembly's Declaration on the Inadmissability of Intervention into the Domestic Affairs of States (1965).
The principle of non-intervention is the most visible sign of this problem: in contrast to domestic law the international legal system lacks a higher authority independent of states which can exercise the force necessary in order to ensure compliance with the law. This problem comes to light especially when International Humanitarian Law is being violated: not only has the International Criminal Court in The Hague only a limited jurisdiction, military considerations will always play an important role in the decision-making process of those engaged in combat. Furthermore might terrorists want to gain a certain degree of legitimacy for their actions in violation of International Humanitarian Law by jumping on the relativism-bandwagon. Yet unlike for human rights where regional regimes in Europe and the Americas have played a key role in the promotion of human rights, there is no room for any relativity of International Humanitarian Law, since many rules of International Humanitarian Law have become ius cogens and humanity has been accepted as a general principle of international law already in Corfu Channel[16] as well as later in the 1996 Legality of the Threat or Use of Nuclear Weapons advisory opinion.[17] Cultural differences therefore cannot be invoked to explain violations of International Humanitarian Law. Enforcing International Humanitarian Law, though, remains particularly difficult. The least invasive way to try to enforce International Humanitarian Law is through political means.[18]
III. Political Means of IHL Enforcement
1. Introduction
For the enforcement of International Humanitarian Law the same holds true as for the enforcement of international human rights outside a framework providing for courts and commissions, i.e. that half-hearted political attempts at enforcing legal obligations will most often fail to be successful,[19] since states' interests will collide with their obligations under international human rights law and International Humanitarian Law, especially in case the own security is concerned.
Recent developments in the U.S. such as the treatment of prisoners in Guantánamo Bay,[20] the USA PATRIOT Act etc. are indications of such a tradeoff of human rights and International Humanitarian Law in favour of a perceived safety. For terrorists there is even less of an incenvitve to adhere to international obligations in times of armed conflict.
The longer Western troops will be deployed in Afghanistan and Iraq without any substantial change in the enemy attitude regarding human rights and International Humanitarian Law, the less willing will states be in the long run to contribute to such missions. After all, it is no coincidence that islamic terrorists were behind against U.S. forces the attack in Mogadisciu and that the Western Sudanese war-torn province of Darfur used to be - and maybe still is - home to an extensive Al Qaida network. Applying pressure here might lead to retaliatory attacks at home, as has been experienced by Spain on 11 March 2004. Although some governments seem to turn a blind eye to such dangers, the transatlantic rift concerning Operation Iraqi Freedom indicates that less and less states will be willing to exercise political pressure on terrorist groups which violate International Humanitarian Law. Rather than addressing one of the many roots of the terrorism problem, the idea that human rights and International Humanitarian Law are solely Western concepts, such states seem to seek short term solutions by getting out of the line of fire. This reluctance becomes more understandable if one examines the little benefits political pressure has yielded in the past.
Yet even if one agrees with the former foreign minister of the Netherlands and former OSCE High Commissioner on National Minorities Max van der Stoel that peace and security have to take precedence over human rights,[21] the same does not apply to International Humanitarian Law. If International Humanitarian Law has become applicable, the peace has already been broken and security has already become endangered, which leads to the conclusion that violations of International Humanitarian Law require an even stauncher political reply than "ordinary" violations of human rights. This reply seems to be missing all too often.
2. “Silent Diplomacy”
A first step towards a political enforcement of International Humanitarian Law can consist in applying bi- or multilateral diplomatic (i.e. especially financial) pressure on the warring parties. Here as well we can find parallels to the protection of human rights through diplomatic channels. Initially human rights were not considered a legitimate matter of concern in diplomatic affairs.[22] To the contrary, diplomatic questions, it was thought, should be limited to state interests and not enter into the domestic affairs of other countries.[23] Yet since rules of International Humanitarian Law were meant to protect state interests as well, International Humanitarian Law considerations are a legitimate concern in diplomatic relations. Yet the prohibition of intervention into the domestic affairs of an other state - enshrined in Art. 41 (1) of the Vienna Convention on Diplomatic Relations and Art. 2 (7) UN-Charter - is still considered a cornerstone of present-day diplomatic relations.[24]
Yet adherence to International Humanitarian Law is not merely a domestic matter, not even in cases of internal armed conflict, because International Humanitarian Law obliges and benefits individuals directly. Especially in cases in which one country represents the interests of one of the warring parties, as Switzerland has done e.g. in the Islas Malvinas / Falkland Islands War between Argentina and the United Kingdom, the principle of non-intervention quickly reaches its limitations.
In principle, therefore, diplomacy remains a feasible means of attempting to enforce International Humanitarian Law. Yet the case of the Taliban harbouring Usama bin Laden and his followers shows that diplomatic pressure can only go so far.
3. Negative Sanctions
Negative sanctions, e.g. on regimes harbouring terrorists, are also not too likely to yield the results envisaged, since it is never the leadership but ordinary people who will suffer, as has been the case in Iraq, North Korea, Afghanistan and South Africa. The examples of Iraq and North Korea serve as reminders, that the toll paid by the civilian population due to sanctions imposed on the regime under which they live (and more often than not suffer, too) can backfire dramatically. Negative sanctions limited to e.g. UN Security Council-imposed arms embargoes, furthermore only work, if all states participate and the embargo is enforced as well, conditions that will only rarely be met in practice.
4. Positive Sanctions
Positive Sanctions with the aim of achieving compliance by a party to a conflict on the other hand appear to be even less feasible, since the sanctioning states would give benefits to a party on an ongoing armed conflict, and one would even create an incentive to violate International Humanitarian Law at least for some time. While positive sanctions during the conflict therefore appear to be less feasible, positive sanctions can play a vital role in the aftermath of armed conflicts when it comes to prosecuting those responsible for atrocities as has been shown by the case of the extradition of Slobodan Milosevic, which was linked to substantial financial aid from Western states.
5. Conclusions
We therefore have to conclude that political means of enforcement of International Humanitarian Law appear not to be all too promising. Yet as in the Kosovo-Case, political pressure, which in the case of Kosovo found its unsuccesful climax in Rambouillet, can pave the way for more forceful measures of ensuring the compliance of parties to a conflict with International Humanitarian Law.
IV. The military Enforcement of International Humanitarian Law
Enforcing International Humanitarian Law through military means cannot mean a retaliation in kind since violations of International Humanitarian Law can never be justified and because all forms of armed reprisals are deemed unlawful under international law. Humanitarian Interventions for the purpose of preventing violations of International Humanitarian Law, although desirable, as well are still illegal under international law,[25] unless justified by the UN Security Council or the UN General Assembly within the spirit of the Uniting for Peace Resolution.
V. Enforcement with the Help of the Red Cross
Such problems lead the attention to the important work of the Red Cross, in particular the ICRC but also the national Red Cross / Red Crescent societies. The ICRC can encourage states to implement rules of International Humanitarian Law on a national level and monitor the behavior of those involved in armed conflicts thanks to its experience and the ICRC's reputation for impartiality. The ICRC can directly contact state authorities, deliver protests and if necessary verify alleged violations of International Humanitarian Law,[26] especially if the ICRC acts under Art. 5 (4) of the 1st Additional Protocol to the Geneva Conventions.[27] Furthermore has an international commissioned been established by Art. 90 of the same Protocol which is tasked with the examination of all facts which allegedly constitute a grave violation of International Humanitarian Law within the meaning of the four Geneva Accords or the 1st Additional Protocol of an other significant violation of these texts.[28] Yet although this commission seems to be highly efficient in theory, things looks different in practice. Therefore although the ICRC theoretically has a number of means to enforce International Humanitarian Law, the practical value of the ICRC's means can be limited, making them a potential that cannot always be used fully.
Also national RC Societies play a key role in the process of disseminating knowledge of International Humanitarian Law with the aim of creating an environment in which there is not only space for International Humanitarian Law but which could best be described as a "culture of compliance"[29] with International Humanitarian Law.
VI. Outlook
Yet violations of International Humanitarian Law by both sides involved in the War against Terrorism / Global Jihad let one doubt, whether such a culture of compliance with International Humanitarian Law is actually possible, especially given the fact that one party to the conflict considers deliberate attacks against civilians to be its best weapon and cannot be deterred due to the martyrdom culture underlying the idea of islamo-fascist terrorism. Enforcement literally requires a target against which force can be used. If the individual responsible for the violation of International Humanitarian Law is killed in the act, this
Given that it remains difficult to effectively target the terrorist leadership, the creation of a global culture of compliance with International Humanitarian Law is also in the best interest of western states. The dissemination of knowledge of International Humanitarian Law might turn out to be the key weapon in the fight against terrorism, providing a model of behavior which runs counter to the jihad/martyrdom ideas behind many terrorist attacks, while at the same time being compatible with Islam. There can be no retribution in kind against terrorists. To the contrary. Teaching International Humanitarian Law and Human Rights both at home and to young people who could be targeted by terrorist recruiters is now more important than ever.
Notes
Stefan Kirchner is cand. iur. (Justus-Liebig-University, Giessen, Germany); Diploma in International Law (University of Helsinki, with distinction); Diploma in International Humanitarian Law (ICRC Geneva - IFHV Bochum - DRK Bonn); http://www.stefankirchner.int.tc. The article only reflects the author's private opinion and is based on a Diploma Thesis entitled "Towards a Culture of Compliance" for which the author was awarded a Diploma in International Humanitarian Law. Initially work on the article had begun before the 9 / 11 terrorist attacks with a focus on the situation in Israel.
[1] Richard K. Betts, Compromised Command - Inside NATO's First War, in: Foreign Affairs, Vol. 80, No. 4, July / August 2001, pp. 126 et seq., at p. 129.
[2] ibid., at p. 130: "The laws of war did not fully apply because NATO had not formally declared war."
[3] ibid., at p. 128.
[4] cf. Wagner / Kirchner, Das VStGB - Ein Meilenstein in der Durchsetzung des humanitären Völkerrechts, in: 24 Jura (2002), pp. 128 et seq.
[5] Wagner / Kirchner, Vom klassischen Krieg zum bewaffneten Konflikt - Das humanitäre Völkerrecht im Wandel der Zeit, in: 42 JuS (2002), Issue 1 (January), pp. XXI et seq.
[6] With the exception of the principle of uti possidetis, the primary intention of which was the avoidance of boundary disputes between Latin American countries by making the former borders between the different provinces of Spanish Latin America the new international borders, cf. Simmler, p. 78.
[7] Samuel P. Huntington, The Clash of Civilisations, Simon & Schuster, New York, 1996.
[8] Huntington, op. cit., at p. 296.
[9] ibid., at pp. 296 et seq.
[10] As was attempted by the Republika Srpska, cf. Barry L. Rothberg, Averting Armageddon, Preventing Nuclear Terrorism in the United States, in: 8 Duke Journal of Comparative & International Law (1997), pp. 79 et seq., at p. 85.
[11] cf. Huntington, at p. 299.
[12] Doyle, pp. 387 et seq., footnotes ommitted.
[13] Terry Nardin, Law, Morality and the Relations of States, Princeton University Press, Princeton, 1983.
[14] Doyle, S. 388.
[15] cf. Epping, in: Ipsen, Völkerrecht, § 4, mn. 3.
[16] I.C.J. Reports 1949, p. 22
[17] cf. there no. 79 of the opinion given on 8 July 1996, General List No. 95.
[18] cf. E. Luard, Human Rights and Foreign Policy, Oxford, Pergamon Press, 1981, pp. 26 et seq. and Peter R. Baehr, The Role of Human Rights in Foreign Policy, 2nd ed., Macmillan Press Ltd., Houndsmills, London, 1996, pp. 31 et seq.
[19] cf. Christine M. Chinkin, Editorial Comments: Women's International Tribunal on Japanese Military Sexual Slavery, in: AJIL 2001, 335 (339): "[...] states cannot through their political agreements and settlements ignore or forgive crimes against humanity that are committed against individuals."
[20] cf. S. Kirchner, The Case of the 'Detainees' in Camp X-ray at the U.S. Naval Base in Guantanamo Bay (Cuba) Before the Inter-American Commission on Human Rights, available online at http://papers.ssrn.com/papers.cfm?abstract_id=390440.
[21] Max van der Stoel, De Rechten van de Mens in de Oost-West betrekkingen, in: Ph. Everts / J. L. Heldring, Nederland en de Rechten van de Mens, Anthos, Baarn, 1981, p. 79.
[22] Cees Flinterman / Vincent de Graaf, Diplomatie en mensenrechten - Van gespannen verhouding naar gearrangeerd huwelijk, in: Jan Melissen (ed.), Diplomatie, raderwerk van de internationale politiek, Van Gorcum, Assen, 1999, p. 92.
[23] ebenda sowie Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7. Auflage, Routledge, London, New York, 1997, Nachdruck 1998, p. 11.
[24] Flinterman / de Graaf, op. cit., at p. 95.
[25] cf. S. Kirchner, The Human Rights Dimensions of International Peace and Security and Humanitarian Intervention after 9 / 11, in: Journal of Humanitarian Assistance, 25 October 2004, http://www.jha.ac/articles/a143.pdf
[26] Österreichisches Rotes Kreuz (Hrsg.), IKRK, Das humanitäre Völkerrecht - Antworten auf Ihre Fragen, IKRK Publikationen, Geneva, p. 36.
[27] Epping, in: Ipsen, § 8, mn. 4.
[28] cf. Art. 90 (2) lit. c (i) 1st Additional Protocol to the Geneva Conventions.
[29] Prof. Kalshoven during the 2001 Summer Course on IHL in Hangelsberg, Germany.
Published on 06 July 2005 by RISQ
© Stefan Kirchner | www.risq.org
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