Asymmetric warfare

- parties- unlawful targets

- direct participations in hostilites

Different types of asymmetry

FORMS

Force

Technological

Doctrinal

Normative

Moral

Legal Ad bellum In bello

LEVELS

Tactical

Operational

Strategical

In bello asymmetryIAC

Traditional rules of IAC, but often twisted

«Third category » always posed problems.

Now : APIart 44, API art 75. Irak 2003 Israel – Hamas ?

NIAC

The stereotypical situation : state versus non-state

actor is the proto-type asymmetric armed conflict

PARTIES : who are the parties ?

IAC

PARTIES = NATIONS

STATUS = presumed function in relation to the armed conflict

LINK to party through nationality (or direct involvement)

Nationality + function

NIAC

PARTIES = OTHER ENTITIES Non-state State function in relation to armed

conflict

STATUS = the function in relation to the armed conflict

LINK to party through « entity »

”function” + function ?

PARTIES cont. NIACs – two possible solutions :

A) state (all citizens) non-state organizationVery asymmetric, no distinction possible IHL no role or very limited role

”terrorist-paradigm”

B) entities engaged in armed conflictState : armed forces, political leadership, support-

systemNon-state : « armed forces of OAG », political

leadership, chain of supportRecreation of trinitaian structure distinction possible on both sidesICRC guideline on DPH attempts to do this

ICA + NIAC + THIRD WAY ?

Third way = a legal regime constructed to respons do third category. Problem : will inevitably undermine IHL.

Counter – terrorism operations paradigm of law-enforcement

Counter - insurgency operations paradigm of hostilities

Targeted killings ? paradigm of law –enforcement

TENDENCIES OF CONTROVERSY

The Public Committee against Torture in Israel et al. V.The Government of Israel et al., Supreme Court of Israel, 13 December 2006 Targeted killing as a method of counter-insurgency/anti-terrorist operations. COMPROMISE

UAV-drones in counter-terrorist operationsEffectsbased operations ( COIN)

TWO PARADIGMSHOSTILITIES ( IHL)

Weaken military force of organization

Disabling (kill, injure, capture) the greatest number of insurgents

Members of armed forces or OAG. Persons DPH

All lawful means & methods of combat

LAW ENFORCEMENT

Break up riots, unrest,dissolve criminal organizations

Arrest, trial and punishment. Killing only in self-defence or in case of resistance

Rioters, criminals

All lawful exercise of police powers

AIM

HOW

WHO

MEANS

TWO PARADIGMSHOSTILITIES ( IHL)

IHL : distinction Proportionality

between collateral damage and military advantage anticipated (from attack)

no unnecessary suffering or superfluous injury,

lawful means of war

LAW ENFORCEMENT

IHRL : Protect innocent bystanders Proportionality (entire

undertaking)

Graduated use of force ( only force necessary to arrest / disarm)

Lawful means of riot-control ( tear-gas, non-lethal weapons etc)

RULES

Targeted killings case ( HCJ)

Weakening the military force of terrorist organizations

Disabling terrorists = arrest, detention, trial

Use of means the least injurious to terrorists and innocent bystanders

Proportionality between collateral damage and the disablement of terrorists

Means : Targeted killing

Hostilites

Law-enforcement

Law-enforcement

Law-enforcement

Hostilites

STATUSIAC

DEFINITION Definition of combatant

( GC art4, API art 43 Negative definition of

civilian API50(1)

presumption of civilian status ( in the battlefield) API art 50 (1)

presumption of combatant status (upon capture) API art 45(1)

E.G ”protected person” = enemy civilians

NIAC

DEFINITION No definition of

combatant Civilian ? APII art 13 :

« protection of the civilian population »

UNLAWFUL TARGETSIAC

1) Belligerents hors de combat

2) Groups with special protection (medical personnel, red cross, UN – peace keepers)

3) Civilian population and individual civilians shall not be the object of attack. API art 51(2)

Civilians enjoy protection « unless and for such time as they take a direct part in hostilites » API art 51(3)

CUSTOM

NIAC1) Belligerents hors de combat

2) Groups with special protection (medical personnel, red cross, UN- peace keepers)

3) Civilian population and individual civilians shall not be the object of attack APII art 13 (2)

Civilians enjoy protection « unless and for such time as they take a direct part in hostilites » APII art 13(3)

CUSTOM

Unlawful targets cont. « Unless and for such time as they take a direct part in hostilites » APIart 51

(3), APII art 13(3)

when DPH = no protection against direct attack

In practice, DPH defines target –immunity (and the importance of civilian status) in NIACs, since target immunity is defined negatively from DPH

WHEN a person is DPH can be directly targeted no rights to be protected from the effects of hostilites does not count in proportionality test !

WHAT ARE THE REQUIREMENTS FOR DPH ?

Narrow or wide ?

ANALOGY FORM IAC ?

DIRECT PARTICIPATION IN HOSTILITES

IAC

COMBATANTS : Members of armed forces

APIart 43 Militias etc : if CGart 4(2)

or APIart 44 (OAG belongs to party if its

acts are attributable to the State which is party)

Can be targeted at all times

DPH : only loss of target immunity «  for such time as » ( art 51 (3)

NIAC Are all belligerents only

targetable «  for such time as » they participate in hostilites ? ( NO)

Are only member of the armed forces targetable at all times ? ( NO)

criteria is ” CONTINUOUS COMBAT FUNCTION

Targetable for as long as person retains a continuous combat function

ICRC Guidance on DPH

No codified or customary rule on DPH

ICRC guidance the best point of departure:

Specific act as part of conduct of hostilites

Preparatory acts to the specific acts, deployment to and return from the location of its execution are integral parts of the act

Not unlawful target «  for as long as » : API 51(3), APII 13(3)

Two types of DPH : ordinary civilians who DPH (I) members of OAG : (II)

ICRC guidance cont. DPH (I)

For civilians ( other than combatants or person with a continuous combat function): i.e civilians DPH : regain target immunity when DPH is over: APIart 51(3) APII art 13(3

DPH in APIart 51(3) and APII art 13(3) = preparation, hostile act, return from act

3 ELEMENTS OF ACT in order to constitute DPH:

THRESHOLD OF HARM : the act must be likely to adversely affect the military capacity of the adversary or inflict death or destruction on protected persons or objects

DIRECT CAUSATION : causal link between the act and the harm caused

BELLIGERENT NEXUS : act must be designed to cause harm in support of one party to the conflict and to the detriment of another

Civilian DPH regains target immunity when hostile act is carried through and has returned from act ( «  for such time as »)

Same DHP in IAC and NIAC - API art 51(3), APII art 13(3)

ICRC Guidance cont. DPH (II)

For members of armed groups : regain target immunity when cease to assume a

continuous combat function DPH = have a continuous combat function

Must be member of organized armed group (OAG) Must have a continuous combat function in relation to armed

conflict

Regain target immunity when have changed function from continuous combat function within group, or when has ended its affiliation with the group

DPH ressembles situation of combatants : armed forces of States and members of organized armed groups with a continuous combat function are put in the same position with resepct to target immunity.

ICRC : added general principle of restraint on the use of force against all lawful targets. ( Lex ferenda for the time being). Only the amount of force necessary.

Sum upAsymmetric armed conflict =>the in bello expression is

NIAC

In NIAC : DPH = core definition to determine who are lawful or unlawful targets, and hence who are « civilians » in the sense of conduct of hostilites ( to whoom rules of distinction, proportionality, precaution in attack applies)

DHP Two types of DPH :

DPH (i) : specific acts carried out by civilians. Target immunity regained once the act is terminated ( NARROW) AND

DHP (ii) : continuous combat function in OAG. Target immunity regained when the function is terminated (WIDE :similar to combatant)