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Can the existing framework of international humanitarian law adequately respond to issues arising from the so-called asymmetrical warfare between a sovereign state and a non-state actor?

von Otto Möller (Autor)

Studienarbeit 2017 13 Seiten

Politik - Internationale Politik - Thema: Völkerrecht und Menschenrechte

Leseprobe

Contents

Introduction:

Issue:

Regulatory Legal Frame Work

Application:

Conclusion:

Bibliography:

Introduction:

“It would not be right ... that the Aggressor Power should gain one set of advantages by tearing up all laws, and another set by sheltering behind the innate respect for law of its opponents. Humanity, rather than legality, must be our guide. “[1]

–Winston S. Churchill

Issue:

Kunar. Afghanistan on October 23th Al Qaida leader Faruq al Qatani got killed by targeted killing by a US American drone. Targeted assassinations are a common practice and part of the war strategy of the United States in Afghanistan. The use of drones opens a new chapter in the law of armed conflict (LAC) and International humanitarian law (IHL). The hypothetical scenario for the sake of argument will be: An Al Qaida leader who has been taking part in combat is found in the streets of Kabul. He is surrounded by civilians, and he is wearing civilian clothing himself and is not currently involved in combative activities. A targeted killing through a drone strike is possible but would bring civilian causalities with it. This case brings with itself several legal issues.

IHL intends to find an equilibrium between the indispensable armed strikes to unarm the opponent and humanity. When the non-state actor's action is not ascribable to the government on which territory it operates and the group uses strategies are part of asymmetric warfare. Even though, asymmetric warfare has been part of the social practice of war since the beginning of war. The nature of warfare has been changing dramatically. It has shifted from a classical symmetrical interstate war to a form that has long been around, yet in a less prominent way. In asymmetrical warfare, the conflicting parties are more and more differing in size and combatant capability. The rule of the equality of weaponry does not hold for this constellation. The less dominant party is enticed to resort to a lawless method of military action to compensate for the overwhelming power advantage of the opponent. The conflicting parties do not hold the same war goals and have different ways and practices to conduct their maneuvers and strategies. Transnational terroristic groups such as the Islamic State (ISIS) or Al Qaida utilize the power misbalance for their benefit by not complying to on the Westphalian peace based interstate legislation.[2]

The previous belief that reciprocity is a cardinal element to respect the jurisprudence is frequently elusive and interchanged with treacherous conduct. Clandestine military action replaces open assault," special rules" are made for "special situations."

Arguably, on of the biggest dissonance in international law stems from the concept of the right of self-defense, when is a state allowed to legally refer to it in a case of a military strike by a group? Moreover, does the attack have to have a certain scale, to be fall in the spectrum of self-defense? [3] Contemporarily, three general schools of thoughts regarding this question are present. Firstly, according to Article 51 of the United Nation (UN) Charter, it is only a nation state that can conduct an "armed attack. [4] [5]

Secondly, a perspective that is commonly taken by the International Court of Justice (ICJ)stating that groups are capable of conducting armed strikes. However, the attack has to be ascribable to a nation state for the strike to be considered capable of triggering the of self-defense. [6]

During the last decade, the ICJ has altered its stand on the issue and caused uncertainty on how it will perceive the question in the time to come. [7]

Thirdly, an approach that has gained momentum in the academic community is that an armed strike can be conducted by a non-state group and still fulfill the criteria formulated in Article 51 of the UN Charter. Meaning that the right to self-defense is applicable, even in the absence of a host state. [8] [9]

The ever predominant topic of combating international terrorism is a reflection of the asymmetrical warfare. “Elementary considerations of humanity” as formulated in the Geneva Conventions from 1949 article 3. Nevertheless, state the global validity of the legislation for every individual, be it a dissimilar and asymmetrical body to all armed conflict.[10] [11]

IHL was built around the perception of interstate wars, building on Clausewitz´s notion of two states of almost similar capacity going to war with each other. However, asymmetrical warfare brings about a new legal challenge. Arguably, contemporary IHL does not manage to regulate this type of armed conflict.[12] Due to the nature of Drones warfare, unparalleled legal issues come about since they are asymmetric and across boarders. Longstanding, this part of IHL has been under regulated. Thereby, a protection disparity came about on civilians and a responsibility disparity concern the non-state actors. In conventional warfare, the parties agree in keeping the civilian casualties to a minimum. In the case of asymmetrical warfare, civilians are situated close to the military strikes of the non-state actors, which creates three legal issues. Firstly, the advantages traced from protection duties incumbent on territorial states; do not fully apply. Besides, to that, the civilians can potentially be exposed to significant damage by the retaliation of either party. Lastly, the nature of asymmetrical warfare create circumstances that bring benefit for the nonstate actors about in attacking civilians. Thereby they state actors is demonized in the public perception.[13]

As aforementioned, the leveling between military necessity and humanity demands a differentiation between combatants and those who according to IHL have to be protected, non-combatants. These two notions are a main point of debate in IHL, the debate about adequacy circulates distinction.[14]

The questions that are arising when non-state actors go to war are, for instance, who is a combatant? The legislation for war does not solely hold for armies, but also for forces that fit fulfill these characteristics:

"1 That they are commanded by a person responsible for his subordinates;
2. That they have a fixed distinctive emblem recognizable at a distance…;
3. That they carry arms openly; and
4. That they conduct their operations following the laws and customs of war.[15]

The Brussels draft from 1874, is affirmed by the Hague regulation from 1899/1900 as well as the Geneva Convention III.[16]

Following the standing definition of a combatant, a feature which is a matter of interpretation according to all three legislations how to define "carrying arms openly." Backpack bombing and explosive belt being carried underneath jackets are only one feature that makes the definition a blurry one. Already over 100 years ago when the laws were formulated, there was no common agreement over what was covered by definition, hand pistoles were debated about. The debate has lived on up until today and kept academics, and military experts engaged. That goes without having mentioned the issues that arise in clearly defining what "a fixed distinctive sign recognizable at a distance" signifies are the more abstract wording of "engaged in a military deployment preceding the launching of an attack"[17] IHL formulates a differentiation behind the logic of going to war is it " waging war and warfare itself." The differentiation has its origin in the Middle Ages expresses two concepts. "Jus ad Bellum, the right to wage war, and jus in bello, the law governing the conduct of war." In contemporary IHL this distinction remains a key and deciding factor. It protects the global recognition of IHL.[18] From a legal point of view, non-state actors who are not actively engaged in the fighting are considered civilians. In addition to that, the idea of differentiation is he decisive factor, they are protected by law and are not a lawful casualty. Nevertheless, they can be regarded as ‘collateral damage’ of military strikes against strategic targets. Interestingly, non-State actors have relatively little rights following IHL. [19] The groups have more legal obligations than their counter parts the states, the domestic law as well as in IHL. Non-state actors are being perceived as unlawful groups, as terrorist which do not posses any legality. [20] [21]

Guerrilla warfare, international terrorism, drone warfare and the revolving door phenomena, all of which are increasing in number and part of the same phenomenon: asymmetrical warfare. The legal issue becomes even more complicated when taking the criterion of national vs., international war respectively, national legislation or international law. The introduction has touched upon several issues in the existing framework of IHL about asymmetrical warfare between sovereign states and, especially transnational non-states actors. This paper will focus on the particular phenomena of drones being used as a weapon against non-states for target killings against non-state actors as part of asymmetrical warfare.

Regulatory Legal Frame Work

Since Article 2(4) of the U.N. Charter, forbids war in general, the legal framework for the case of war is provided by IHL. Target killings by drones are under no circumstances legal, outside of war periods, according to human rights law. And even during war times, Shot and kill tactic are unlawful if a capture is possible. Therefore, every single drone strike has to occur during war time, which in the case of asymmetrical warfare involving one party that does not follow international war costumes can cause legal issues. The Geneva Convention states in the legal frame work in case of an interstate war; the legal niece arises when a non-state actor is involved. [22] [23] [24]

In Article three non-state actors who are involved in a non-international dispute between a state and non-state group which has to a particular grade of structural organization and command over territories, as well as possessing the ability to exercise military strikes. Moreover, the dispute has to reach a threshold regarding is magnitude which has to exceed inner turmoil. This is stated by “AP II, Article 1 of this Protocol”[25] [26] [27]

Treaty as well as customary law cover the right to self-defense as one of the main pillars of preventing the illegitimacy of armed strikes on a territory other than the attack launching nation even in the case of non-allowance of the hosting nation. According to, to Article 51 of the UN Charter which protects nations integral right for “individual or collective self-defence11 “if an armed attack occurs” against a member State of the UN.[28] ” IHL has reacted on the development of rising part taking in hostilities by non-combatants in implementing a general rule. That is present in two “additional protocols to the Geneva Conventions."

The wording states that non-combatants gain from legal protection in case of straightforward military operations. "Unless and for such time as they take a direct part in hostilities." The additional protocol intends to cover the concept of direct participation of civilians in armed operations of non-states actors."[29]

Interestingly, the comparable new form of war fare conducted by and through drones is not yet covered by present jurisdiction, including international accords or customary law. As a result of that, the usage is not illegal. Drones as a method of military operations do not have the factor of distance from the opponent as a stand-alone factor. Torpedo or long range missiles share this feature. Moreover, there is no particular feature of drones as a method armed conduct that implies that they are inherently violating the current applications of international rules.[30]

In the court case for the former Yugoslavian political leader Tadic, a widely accepted standard definition came about. The International Tribunal stated that [31] "an armed conflict exists whenever there is a resort to force between two States or protracted armed violence between governmental authorities and organized armed groups or between such groups. [32] [33]

The issue remaining is the one of definition, since only direct participants of violence can lawfully be the aim for target killings according to Common Article 3 GCs.

The United States (US) based their drone strikes with the right to self-defense, the government under President Obama was of the opinion to be in an armed conflict the Taliban and terroristic groups connected to it.[34] The question at the time that remained unclear was in which parts of Pakistan non-international or even international warfare was present. [35]

Crucial is as well to consider the adversity to the idea of ‘global war on terror' rational loci remains the most powerful conceptualization of what an armed conflict is. It is built around the notion of a certain territorially enclosed area . [36]

Drones attacks that take place in a territory other then the "theater of war" the relevance of the IHL has to be challenged. An example of that is the drone assault that took place in Yemen in May 2011. The attack was targeted at “Anwar Al-Awlaki, a U.S. citizen who was suspected to have recruited Islamist militants for terrorist attacks." [37] [38]

[...]


[1] Rubinstein, Amnon, and Yaniv Roznai. "Human Shields Modern Armed Conflicts: The Need for a Proportionate Proportionality." Human Shields Modern Armed Conflicts: The Need for a Proportionate Proportionality. January 2011. Accessed December 04, 2017. https://journals.law.stanford.edu/stanford-law-policy-review/print/volume-22/issue-1-defense-policy/human-shields-modern-armed-conflicts-need-proportionate.

[2] Adams, Zachary J. "Fighting the Islamic State in the Fifth Domain: Transnational Terrorism in the Indo-Pacific." Http://www.sirjournal.org/. March 28, 2016. Accessed November 12, 2016. http://www.sirjournal.org/research/fighting-the-islamic-state.

[3] Wilmshurst, Elizabeth, and Michael Wood. "Self-Defense Against Nonstate Actors: Reflections on the "Bethlehem Principles."The American Journal of International Law 107, no. 2 (2013): 390. doi:10.5305/amerjintelaw.107.2.0390.

[4] Deeks, Ashley S. "Unwilling or Unable: Towards a Normative Framework for Extra-territorial Self-Defense."Virginia Journal of International Law, 2012th ser., 52, no. 3, 492. March 2012. Accessed November 12, 2016. http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1971326.

[5] Ibid., p. 492, note 24.

[6] See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 194, in which the Court rejected Israel’s claim of self-defense because it did not argue that the relevant attacks were imputable to a State.

[7] See ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment; ICJ Reports 2005, para. 116, in which the Court noted that it has “no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces."

[8] See A. S. Deeks, above note 21, p. 493, note 26.

[9] Extraterritorial targeting by means of armed drones: Some legal implications." Review. International Review of the Red Cross 96, no. 893 (March 2014): 67-106.

[10] "Asymmetrical warfare from the perspective of humanitarian law and humanitarian action." Review of International Review of the Red Cross, by Toni Pfanner. International Review of the Red Cross, 857th ser., 87 (March 2005): 149-179.

[11] Ibid., p. 154

[12] Ibid., p. 155

[13] Lieblich, Eliav, and Owen Alterman. Transnational Asymmetric Armed Con it under International Humanitarian Law: Key Contemporary Challenges. Ramat Aviv, Israel: Institute for National Security Studies, 2015.p.19

[14] Watkin, Colonel K.W. "COMBATANTS, UNPRIVILEGED BELLIGERENT." INTERNATIONAL HUMANITARIAN LAW RESEARCH INITIATIVE. January 27, 2003. Accessed November 15, 2015. http://www.hpcrresearch.org/sites/default/files/publications/Session2.pdf.

[15] Brussels Draft Article 9, (1874)

[16] Hague Regulations 1899/1907, Article 1

[17] See Levie, supra note 27, at 44-59 and W.T. Mallison & S.V. Mallison, The Juridical Status of Irregular Combatants under International Humanitarian Law, 9 Case W. Res. J. Int’l L. 39, 49-65 (1977).

[18] Bugnion, Francois. "Guerre juste, guerre d'agression et droit international humanitarian." In ternational Review of the Red Cross 84, no. 847 (September 2002): 523-46.

[19] Ryngaert, Cedric. Non-State Actors and International Humanitarian Law. Master's thesis, Leuven/ KU Leuven, 2008. Leuven: University Press KU Leuven, 2008. 15-33.

[20] Article 51 of Additional Protocol nr. I to the Geneva Conventions (1977).

[21] Ryngaert, Cedric. Non-State Actors and International Humanitarian Law. Master's thesis, Leuven/ KU Leuven, 2008. Leuven: University Press KU Leuven, 2008. 15-33.

[22] J. K. Kleffner, ‘Human Rights and International Humanitarian Law: General Issues,' in Gill & Fleck, supra note 33, 64, para. 27

[23] Compare Alston-report, supra note 3, para. 51.

[24] Common Article 3 GCs

[25] Compare Article 1(2) AP II

[26] Compare Article 1(2) AP II.

[27] Wuschka, Sebastian. "The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?"Goettingen Journal of International Law 3 (2011): 891-905. Accessed November 15, 2016. doi:doi: 10.3249/1868-1581-3-3-wuschka.

[28] Extraterritorial targeting by means of armed drones: Some legal implications." Review. International Review of the Red Cross 96, no. 893 (March 2014): 67-106. p.70

[29] Melzer, Nils. Interpretive guidance on the notion of Direct involvement in hostilities under international humanitarian law. Geneva, Switzerland: International Committee of the Red Cross. May 2009. Accessed November 2016. https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf. p. 5

[30] Extraterritorial targeting by means of armed drones: Some legal implications." Review. International Review of the Red Cross 96, no. 893 (March 2014): 67-106. p.70

[31] Paulus, Andreas, and Mindia Vashakmadze. "Asymmetrical war and the notion of armed conflict – a tentative conceptualization."International Review of the Red Cross 91, no. 873 (2009): 95. doi:10.1017/s181638310999018x.

[32] "Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY (Appeals Chamber), IT-91-1-AR72, 2 October 1995, para. 70.

[33] Paulus, Andreas, and Mindia Vashakmadze. "Asymmetrical war and the notion of armed conflict – a tentative conceptualization."International Review of the Red Cross 91, no. 873 (2009): 95. doi:10.1017/s181638310999018x.

[34] H. Koh, Legal Adviser to the Department of State, ‘The Obama Administration and International Law,' Keynote Address at the Annual Meeting of the American Society of International Law (25 March 2010) available at http://www.state.gov/s/l/ releases/remarks/139119.htm (last visited 21 November 2016).

[35] For a detailed analysis of the situation in Pakistan see L. R. Blank & B. R.Farley, ‘Characterizing US Operations in Pakistan: Is the United States Engaged in an Armed Conflict?’, 34 Fordham International Law Journal (2011) 2, 151.

[36] Greenwood, supra note 62, 59, para. 216; Kleffner, supra note 60, 65, para. 29; M. E. O'Connell, ‘Combatants and the Combat Zone,' 43 University of Richmond Law Review (2009) 3, 845, 863-864.

[37] Y. Musharbash, ‘The Death of Jihad's English-Language Mouthpiece,' Spiegel Online International (30 September 2011) available at http://www.spiegel.de/international/ world/0,1518,789427,00.html (last visited 3 January 2016).

[38] Wuschka, Sebastian. "The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?"Goettingen Journal of International Law 3 (2011): 891-905. Accessed November 15, 2016. doi:doi: 10.3249/1868-1581-3-3-wuschka.

Details

Seiten
13
Jahr
2017
ISBN (eBook)
9783668508460
ISBN (Buch)
9783668508477
Dateigröße
720 KB
Sprache
Englisch
Katalognummer
v373378
Institution / Hochschule
University of Kent – Brussels School of International Studies
Note
2,0
Schlagworte
asymmetrical warfare sovereign state non-state actor framework IHL International Humanitarian Law Proportionality terrorism transnational Extraterritorial drones

Autor

  • Otto Möller (Autor)

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Titel: Can the existing framework of international humanitarian law adequately respond to issues arising from the so-called asymmetrical warfare between a sovereign state and a non-state actor?