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Asymmetrical warfare from the perspective of humanitarian law and humanitarian action

Published online by Cambridge University Press:  27 April 2010

Toni Pfanner
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Abstract

Warring parties are increasingly unequal and the principle of equality of arms does not apply to them. This asymmetry in warfare has many ramifications. The militarily weaker party is tempted to have recourse to unlawful methods of warfare in order to overcome the adversaries' strength. The expectation of reciprocity as a fundamental motivation for respecting the law is often illusory and replaced instead with perfidious behaviour; covert operations substitute for open battles, “special rules” are made for “special situations”. The fight against international terrorism seems to constitute the epitome of this kind of warfare. “Elementary considerations of humanity” as enshrined in article 3 common to the 1949 Geneva Conventions however constitute universally binding rules for all — even unequal and asymmetrical — parties to any situation of armed violence. Furthermore, attacks on humanitarian organizations have showed that humanitarian relief may be contrary to belligerents' interests, or, even worse, that attacks on humanitarian workers may be part of their agenda. Humanitarian actors must be aware of these facts and adapt their working methods so as to be able to continue to provide impartial assistance, based solely on the needs of the victims of armed violence.

Type
Selected articles on international humanitarian law
Information
International Review of the Red Cross , Volume 87 , Issue 857: Detention , March 2005 , pp. 149 - 174
Copyright
Copyright © International Committee of the Red Cross 2005

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References

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11 Paul Collier and Hanke Hoeffer (Greeds and Grievances in Civil War, 2001, published in Oxford Economic Papers, Vol. 56, 2004, pp. 563–595) examine the distinction between greed and grievance as the two main motivations for civil wars. The grievance aspect (including inequality, lack of political rights, and ethnic or religious divisions) is well known and is covered in numerous political science studies. In Collier and Hoeffler's statistical investigation of civil wars from 1960 to 1999, they find that greed-related explanations (access to finance, including the scope for extortion of natural resources, but also other opportunity factors such as geography) have a greater explanatory power than grievance and economic viability appears to them to be the predominant systematic explanation of rebellion.

12 See in particular The 9–11 Commission Report. Final Report of the National Commission on Terrorist Attacks upon the United States, official government edition, available online at <http://www.gpoaccess.gov/911/> (visited on 27 July 2004) (The 9–11 Commission Report), especially Chapter 2 (“The foundations of new terrorism”), pp. 48–70.

13 In an annual report on threats to the United States, Porter Goss, director of central intelligence, told the Senate intelligence committee: “It may be only a matter of time before al-Qaeda or other groups attempt to use chemical, biological, radiological or nuclear weapons.” International Herald Tribune, 17 February 2005.

14 See United Nations Security Council Resolution 1373 of 28 September 2001, UN Doc. S/RES/1373 (2001); Christopher Greenwood, War, Terrorism, and International Law, pp. 505–530, in: Current Legal Problems 2003 Volume 56, February 2004, agreeing with the resolution (pp. 516–518). The argument can also be made from an effects perspective (“gravity”, “significant scale”), like that adopted by the International Court of Justice (ICJ) Military and Paramilitary Activities in and against Nicaragua (Nicaragua, v. United States.), Merits, 27 June 1986, ICJ Reports 1986, para. 195. The attacks by non-state actors can trigger the right to self-defense under the Charter, but do not create a state of war in a legal sense (see Paust, Jordan J., “Use of armed force against terrorists in Afghanistan, Iraq and beyond”, Cornell International Law Journal, Vol. 35, No. 3, 2002, sections 534–539Google Scholar).

15 “Calling this struggle a war accurately describes the use of American and allied armed forces to find and destroy terrorist groups and their allies in the field, notably in Afghanistan. The language of war also (emphasis added) evokes the mobilization for a national effort.” (The 9–11 Commission Report (footnote 12), p. 363).

16 Art. 1(2) Protocol II Additional to the Geneva Conventions (applicable to non-international armed conflicts) defines “isolated and sporadic acts of violence and other acts of similar nature” “as not being armed conflicts”. Difficulties to determine the threshold of applicability of humanitarian law apply in many other situations. Covert operations in international armed conflicts are difficult to attribute to a State in international armed conflicts and in non-international armed conflicts according to Art. 3 of the Geneva Conventions, the organisational level of the parties to a conflict may widely vary in time and there is rarely a single event which indicates the beginning or end of hostilities.

17 The 9–11 Commission Report, (footnote 12), p. 67: “Most in the core group swore fealty (or bayat) to bin Laden. Other operatives were committed to Bin Laden or to his goals and would take assignments for him.” See also p. 55 (on recruitment of new adherents) and pp. 145 ff. (on the enterprising al-Qaeda). The German Bundeskriminalamt estimated that around 70,000 fighters were trained and educated in al-Qaeda camps in Afghanistan (cf. Case against Munir al-Motassadeq, cf. Reuters, 4 January 2005).

18 E.g. the Jordanian Abu Mussab al-Zarqawi fighting with the Tawhid wal-Jihad Group in Iraq has pledged allegiance to Osama bin Laden and al-Qaeda (see Reuters, Iraq-Phantom Zarqawi in marriage of infamy with bin Laden, 18 October 2004).

19 George Tenet who headed the US-Central Intelligence Agency testified in April 2004 that militant jihadi groups operate in no fewer than 68 countries (up from 40 in 2001). In Iraq alone may pursue what they consider as jihad, see <http://fpc.state.gov/fpc/31428.htm> (visited on 15 November 2004). According to The Economist (8 July 2004, quoting Adrian Karim), there are some 36 different Sunni groups owing alliance to the Salafis, Suffis, Muslim Brothers or tribal sheiks and a half a dozen Shia rebel groups operating ion Iraq.

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23 See for example Michael Novak, Asymmetrical Warfare & fust War: A Moral Obligation, February 2003, available online at <http://nationalreview.com/novak/novak021003.asp> (visited on 6 July 2004).

24 See paragraph 5 of the preamble to 1977 Additional Protocol I to the Geneva Conventions of 1949.

25 Rousseau, Jean-Jacques, The Social Contract, translated by Betts, Christopher, Oxford University Press, Oxford and New York, 1994Google Scholar, Book I, ch. IV, p. 51 (original French edition, Du Contrat Social, 1762).

26 See Article 3 (4) common to the Geneva Conventions of 1949.

27 On the balance between freedom and security, see Ignatieff, Michael, The Lesser Evil. Political Ethics in an age of Terror, Princeton University Press 2004Google Scholar and Heymann, Philip B., Kayyem, Juliette N., Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism, National Memorial Institute for the Prevention of Terrorism (MIPT), December 2004Google Scholar, <http://www.mipt.org/Long-Term-Legal-Strategy.asp> (visited on 30 January 2005).

28 However, reciprocity invoked as an argument not to fulfil the obligations of international humanitarian law is prohibited.

29 See Article 4. A.2 (d) of the Third Geneva Convention of 1949, and also Pfanner, Toni, “Military uniforms and the law of war”, International Review of the Red Cross, Vol. 86, No. 853, March 2004, p. 109.Google Scholar

30 Lauterpacht, Hersch, The Limits of Operation of the Laws of War, British Yearbook of International Law, Vol. 30 (1953), p. 212.Google Scholar

31 This is valid especially for the so-called “Hague Law”, see Reisman, W. Michael, “Aftershocks: Reflections on the implications of September 11”, Yale Human Rights & Development Law Journal, Vol. 6, 2003, p. 97Google Scholar: “The implicit ethic of the Hague law is that conflict should be symmetrical and that an adversary that does not fight accordingly is not entitled to the protection of the laws of war>.

32 See “A letter from Osama bin Laden to the American people”. The letter appeared first on the Internet in Arabic on 17 November 2002 and was subsequently translated into English. Available online at <http://observer.guardian.co.uk/worldview/story/0,11581,845725,00.html> (visited on 6 July 2004).

33 US Supreme Court, Hamdi v. Rumsfeld 124 S. Ct. 2633 (28 June 2004), available on-line <http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf> (visited on 15 November 2004) and Martinez, Jenny S., V. Rumsfeld, Hamdi, American journal of International Law, Vol. 98 No. 4, October 2004, pp. 782–788CrossRefGoogle Scholar. See also the Supreme Court's decision Rasul v. Bush 124 S. Ct. 2686 (28 June 2004) (cf. Sloss, David L., American Journal of International Law, Vol. 98 No. 4, October 2004, pp. 788–798)CrossRefGoogle Scholar.

34 See <http://www.defenselink.mil/releases/2004/nr20040707-0992.html> (visited on 15 November 2004).

35 The federal judge ruled that the military commissions set up to try detainees at the US naval base in Guantánamo are not in accordance with the Geneva Conventions and should be stopped, “unless and until a competent tribunal determines that petitioner is not entitled to the protections afforded prisoners-ot- war under Article 4 of the Geneva Convention (‥)”, see Hamdan v. Rumsfeld, Civil Action No. 04–1519, US District Court, District of Columbia, 8 November 2004, available at <http://www.dcd.uscourts.gov/04-1519.pdf> (visited on 15 November 2004). According to the Washington Post (9 November 2004), military officers halted commission proceedings in the light of the ruling. The administration announced that it will ask a higher court for an emergency stay and reversal of the decision.

36 See as examples the papers on the laws of war by David B. Rivkin Jr., Lee A. Casey and Darin R. Bartram, available at <http://www.fed-soc.org/lawsofwar> (visited on 15 November 2004), Dershowitz, Alan, “The laws of war weren't written for this war”, Wall Street Journal, 12 February 2004.Google Scholar

37 E.g. a new organization, called the Strategic Support Branch, designed to operate without detection and under the defense secretary's direct control, deploys small teams of case officers, linguists, interrogators and technical specialists alongside newly empowered special operations forces (cf. “The Secret Unit Expands Rumsfeld's Domain”, Washington Post, 23 January 2005). The creation of a new unit was confirmed in a statement from Pentagon spokesman Lawrence DiRita (on Intelligence Activities of the Defense Department), 23 January 2005, cf. <http://www.defenselink.mil/releases/2005/nr20050123-2000.html> (visited on 30 January 2005). On counterterrorism, see also Jonathan Stevenson, Counter-terrorism: Containment and Beyond, Adelphi Paper 367, International Institute for Strategic Studies, 2004.

38 See e.g. Dworkin, Anthony, Law and the campaign against terrorism: The view from the Pentagon, 16 December 2002Google Scholar, <http://www.crimesofwar.org/print/onnews/pentagon-print.html> (visited on 6 July 2004).

39 Article 60.5 of the 1969 Vienna Convention on the Law of Treaties.

40 See ICJ, Nicaragua v. United States, Merits, op.cit. (footnote 14), para. 218. (“Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’ (ICJ, Corfu Channel, Merits, ICJ Reports 1949, p. 22; paragraph 215 above”.)). See also the confirmation in ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, para. 157.

41 The International Criminal Tribunal for the former Yugoslavia (ICTY), has denned “armed conflict” as existing “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.” Prosecutor v. Tadic, No. IT-94–1, Decision on the Defense, Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.

42 Green, Leslie C., The Contemporary Law of Armed Conflict, 2nd ed., Manchester University Press, — Manchester, 1999, p. 70Google Scholar. See also Roth, Kenneth, “The law of war in the war on terror, Washington's abuse of enemy combatants”, Foreign Affairs, January/February 2004, p. 2Google Scholar; Rona, Gabor, “Interesting times for international humanitarian law: Challenges from the ‘war on terror’”, Fletcher Forum of World Affairs, Vol. 27, 2003, p. 57Google Scholar.

43 Christopher Greenwood, op.cit. (footnote 14), p. 529.

44 See also Roberts, Anthea, Righting Wrongs or Wronging Rights? The United States and Human Rights Post-September 11, European journal of International Law, Vol. 15, September 2004, pp. 742.CrossRefGoogle Scholar

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46 For an institutional view of the ICRC on related issues see the ICRC's report on “International humanitarian law and the challenges of contemporary armed conflicts”, submitted to the 28th International Conference of the Red Cross and Red Crescent, ICRC, Geneva, 2003, published in International Review of the Red Cross, Vol. 86, No. 853, March 2004, pp. 213–244.CrossRefGoogle Scholar

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49 See in particular Article 126 of the Third Geneva Convention (visits to prisoners of war) and Article 143 of the Fourth Geneva Convention of 1949 (visits to civilian internees).

50 See Anderson, Kenneth, Humanitarian Inviolability in Crisis: The meaning of Impartiality and Neutrality for UN. and Agencies Following the 2003–2004 Afghanistan and Iraq Conflicts, Harvard Human Rights Journal, Vol. 17 (2004), pp. 41–74Google Scholar, especially on contacts with organizations classified as terrorist organizations. No peace or accommodation, but “the hard won practical wisdom” imposes such contacts (pp. 63–66). A possible strategy to negotiate with or at least to bind in organizations such as al-Qaeda is outlined by Helmuth Fallschellel, Soll man mit al Quaida verhandeln? Anmerkungen zu einem Tabu, available online at <http://www.freitag.de/2003/07/03071601.php> (visited on 6 July 2004); see also Frei, Bruno S., Dealing with Terrorism — Stick or Carrot, Edward Elgar, Cheltenham (UK) and Northampton (USA) 2004CrossRefGoogle Scholar.

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57 See Rana, Raj, Contemporary challenges in the civil-military relationship: Complementarity or incompatibility?, International Review of the Red Cross, Vol. 86 No. 855, September 2004, pp. 565–587CrossRefGoogle Scholar, and Studer, Meinrad, The ICRC and civil-military relations in armed conflict, International Review of the Red Cross, Vol. 83, No. 842, June 2001, pp. 367–391.Google Scholar

58 On the integration of politics and humanitarian action see in particular Nicolas de Torrente, Humanitarian Action Under Attack: Reflections on the War, Iraq, Harvard Human Rights Journal, Vol. 17 (2004), pp. 1–29Google Scholar (warning of the dangers of co-opting humanitarian action by States) and O'Brian, Paul, Politicized Humanitarianism: A Response to Nicolas de Torrente, Harvard Human Rights journal, Vol. 17 (2004), pp. 31–37Google Scholar, who doubts about the apolitical character of humanitarian action.

59 See Resolution 4 adopted by the 26th International Conference of the Red Cross and Red Crescent “Principles and actions in international humanitarian assistance and protection”, in particular para. G.2 (c), published in: International Review of the Red Cross, Vol. 36, No. 310, January/February 1996, pp. 74–75.Google Scholar

60 See Plattner, Denise, “The neutrality of the ICRC and the neutrality in humanitarian assistance”, International Revue of the Red Cross, Vol. 36, No. 311, March-April 1996, pp. 161–180CrossRefGoogle Scholar, and Minear, Larry, The theory and practice of neutrality: Some thoughts on the tensions, International Review of the Red Cross, Vol. 81 No. 833 March 1999, pp. 63–71.CrossRefGoogle Scholar

61 See the preamble and Article 1.2 of the Statutes of the International Red Cross and Red Crescent Movement.

62 See Johnson, Chris, Afghanistan and the war on terror, Humanitarian Policy Group Report, No. 14 July 2003 (Joanna Macrae and Adele Harmer, Eds.), pp. 49–62Google Scholar; Minear, Larry, The Humanitarian Enterprise, Kumarian, Bloomfield, CT, 2002, pp. 189Google Scholar ff. (on terrorism and humanitarian action).

63 Kellenberger, Jakob, Speaking out or remaining silent in humanitarian work, International Review of the Red Cross, Vol. 86 No. 855, September 2004, pp. 600–601Google Scholar calls the access to the victims the ICRC's top priority.