Introduction
The basic principle under International Humanitarian Law for regulation of methods of warfare acts as a restriction to the right of the parties to choose kinds of weaponry during war. The Hague Law is concerned with the limitations on methods of warfare.
ASYMMETRICAL WARFARE
Considering the aspects that form the bedrock of International Humanitarian Law (IHL), the principles of reciprocity and equality in terms of methods of warfare is an ideal that should be achieved by the warring parties. However, the concept of ‘equally ranked parties’ is so utopic because no party wants to be in a disadvantaged position and want to up their game. From investing advanced espionage systems (also considered part of ‘covert warfare’) to building nuclear arsenal, all parties want to be at a better position than their adversary. At this juncture, it becomes imperative to consider ‘asymmetrical warfare’ and the role IHL will play in its regulation.
Evolution
The biblical story of David and the giant Goliath forms one of the earliest stories western hemisphere for asymmetrical war wherein the ‘weaker’ party won. If we look into our own mythology, the Mahabharat and Ramayan, the great epics are in themselves great examples of asymmetrical warfare wherein the weaker side, be it the Pandavas or Lord Ram respectively, won the wars they waged. However, the certainty of such phenomenon is less in a battle, much lesser in war. The wars in history prominently, the World Wars bear an example of how asymmetry favours the powerful. The Cold War can also be considered a ‘power struggle’ with the intent to shed symmetry of the parties.
Concept
In its practical sense, all warfare would be construed as asymmetrical. Symmetrical Warfare, in the modern times, wherein the parties are well-matched in all aspects including power, means, methods, organization etc.is almost impossible. Ideal examples would be terrorism. Acts of terrorism by the non-state actors are something that any state would not indulge in unless it wages a full-fledged war against another state. This becomes asymmetry of strategy.
Asymmetrical Warfare and IHL
The Geneva Law extends the applicability of IHL to Non-International Armed conflict as well. However, this applicability is only in terms of the differentiation and protection of civilians, prisoners of war, shipwrecked and wounded (hors de combat) and the war participants (the former must not be harmed). Scholars have argued that the extent of IHL is only to protect the people that the law does not protect during wars. They have also stated that the ICRC is essentially concerned with humanitarian work and not with whether the war is equal.
IHL concerns itself with the methods of warfare as well, prescribing the permissible extent and categories of weaponry during wars. But in such situations, IHL must concern itself with the standing of the parties, not just militarily, but also in legal connotations. Especially in Non-International Armed Conflicts, it is easier to make the non-state actors as ‘belligerents’ and ‘war criminals’ as the State opposing them is a legal entity and has better legal protection under International Law. But the question also arises as to whether the category of non-state actors such as terrorist groups deserve to be ordained legal protection and duties under International Humanitarian Law as a State.
In other words, the debate is whether the non-state warring parties should be ordained legal protection under IHL. This is a question that the law is silent on. No war should take place in a lawless domain. At the same time, the debate also arises that whether this falls under the subject matter of the law.
The second aspect is the extent of reciprocity. While the States and the belligerents sign agreements alike to abide by the legal principles during war, there is no actual enforcement of these words. Ideal examples would be the atrocities on the vulnerable sections committed by the Boko Haram and the ISIS, or the Nanking massacre (by Japan). Another fact is that if there are military imbalances between the two warring parties, the weaker party finds only more reason to not comply with the law.
The third aspect is neutrality. The issue is if the ICRC decides to hold on to the principle of equality, it can only carry out humanitarian work and cannot regulate the war as it may be sidelined. However, if the belligerents are treated as criminals, the ICRC may have a larger role, but this may be construed against the basic principles of IHL.
Food for Thought – Palestine and ISIS
The Statehood of both the entities is not universally accepted. But both the situations are wars and demand the attention of IHL. What should be the role of IHL in such a circumstance, especially considering the fact that they are asymmetrical wars?
Conclusion
With the rise of different war strategies and covert wars, the balance of powers between the warring parties is more difficult to find. Asymmetry in any aspect of war has become a common phenomenon, with the increase in treacherous practices. In such circumstances, the role IHL plays must be of paramount importance. But the ambiguity of concepts like armed conflict, extent of Non-International Armed Conflict, Principles’ applicability, render it unenforceable during such warfare.
Previously published 15.10.2019