Asymmetric Warfare. A Challenge for International Humanitarian Law?

Scientific Essay, 2015

12 Pages



1 Introduction

2 Enforcing International Humanitarian Law
2.1 Introduction
2.2 War, military requirements and International Humanitarian Law
2.3 Difficulties in Enforcing International Humanitarian Law

3 Political Means of IHL Enforcement
3.1 Introduction
3.2 So called “Silent Diplomacy”
3.3 Negative Sanctions
3.4 Positive Sanctions
3.5 Interim Conclusions

4 The military Enforcement of International Humanitarian Law

5 Enforcement with the Help of the ICRC and Red Cross/Red Crescent Societies

6 Outlook


Asymmetric Warfare as a Challenge for International Humanitarian Law? [1]

Stefan Kirchner[2]

1 Introduction

The Conflict in Syria has brought asymmetrical warfare back to the attention of the wider public - at the same time is the outside view on the conflict no longer limited to what the media chose to report as Youtube has become a propaganda tool in this conflict as well. At the same time, the degree of uncertainty with regard to events on the ground is significant. This provides a stark contrast to the way in which the North Atlantic Treaty Organization (NATO) provided information on operations during the 1999 war against Yugoslavia. In a sense, the daily press briefings and in all likelihood unprecedented openness which were utilized by NATO in Operation Allied Force helped to create the image of a clean war. This image was aided by the massive involvement of lawyers in the war effort. 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."[3] Although Clark saw the origin of the increasing role of lawyers in U.S. law, Operation Allied Force serves as a showcase for the effect the demand for compliance with International Humanitarian Law has had on armed forces not only since the beginning of the Balkan Wars but maybe already since the wake of My Lai: if one wants to compare NATO’s relative openness about military activities conducted in the name of Human Rights to, influenced especially by the European NATO partners,[4] with the U.S.’ attitude regarding operations in Vietnam and elsewhere, the influence IHL has had especially in Europe becomes obvious: While in earlier wars cover-ups were the norm, the armed forces of Western Democracies nowadays are subject to more public scrutiny than ever before.

Yet while the renaissance of International Law[5] has created more constraints on the use of force by states, modern conflicts are waged inside national borders more often,[6] which requires a new understanding of the enforcement of IHL. An other aspect requiring a new look on the enforcement of International Humanitarian Law is the fact that wars are more and more often fought not between national armies but between a national army or national armies on one side and guerrillas or terrorists on the other side. National Armies are facing enemy forces which employ asymmetric warfare tactics and strategies, which more often than not rely heavily on violations of International Humanitarian Law by targeting civilians. The lack of preparedness by national armed forces will lead to a situation which Napoleon Bonaparte still considered to be a doctrine of warfare: On s'engage et puis on voit. – Attack first, make decisions on how to win the war later. While the U.S. approach to the 2003 Iraq War seemed to resemble this Napoleonian style, already the great Chinese military mind Sun Tzu suggested the strategies with which Iraqi insurgents answered the American occupation: when facing a superior enemy force attempting to invade your country, let it in and then counter it with small, gradually increasing attacks. Also Clausewitz counseled against starting a war if one doesn’t know how to end it. Both the U.S. war in Vietnam and the Soviet War in Afghanistan as well as the 2003 Iraq War showed the consequences of rushing in without a plan to get out. The eventual decision by the Obama government to withdraw forces from Afghanistan by a specific date however was no longer motivated by military considerations (which would have been the case, had the forces no longer been needed) but by domestic politics and a desire to get out of (rather then end, let alone win) a war which has lost its popularity with the voters. As the withdrawal of foreign forces means victory for those who had been occupied, the two Afghan wars, Vietnam and Operation Iraqi Freedom show that asymmetric warfare can be successful. In fact, from the perspective of the weaker side to an armed conflict, the departure of the occupying force means victory. Asymmetric warfare therefore helps the weaker party to overcome some of its disadvantages. Yet, asymmetric warfare comes at a price. Asymmetric warfare often means not only new tactics and strategies but often also means hiding in the civil population, not being identifiable as fighters, not wearing uniforms, using indiscriminate weapons, attacking civilians who are suspected of collaboration and infrastructure which is used by civilians and enemy forces alike. Asymmetric warfare means snipers in church towers and ammunition depots in mosques. It can also mean a frustrated enemy who is unable to know who is the enemy and who will resort to violence against civilians. While civilians already pay a high toll in armed conflict, this toll can be increased dramatically if one side resorts to asymmetric warfare. This does not have to be the consequence but if history is any guide, the likelihood of an increased direct and indirect damage to civilians increases significantly in case of asymmetric warfare.

In recent years, wars between states have become the exception and intra-state wars have become much more common, often pitting government and “rebel” forces against each other or, as in the case of the Global War on Terror, foreign governments against global terrorists. The Global War on Terror and the internal conflicts in places like Iraq, Syria, Yemen, Libya, Mali and Nigeria, but also Mexico’s drug war and of course the continued attacks against Israel, to name just a few, are characterized by terror as the main modus operandi of many non-state groups. The new challenges of modern conflicts therefore demand that both the military as well as the legal community adapt to the changed military situation in order to ensure compliance with International Humanitarian Law also in modern asymmetric conflicts.

The question before us is which tools are available for the enforcement of International Humanitarian Law against non-state actors 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 tool for IHL enforcement within the context of western armed forces, are an insufficient deterrent for enemies ready to killed innocent civilians with suicide attacks. Yet, contrary to the old adage, the law cannot be silent when weapons speak.[7]

2 Enforcing International Humanitarian Law

2.1 Introduction

Enforcing International Humanitarian Law is one of the most difficult aspects of this interesting field of international law. On one hand International Humanitarian Law in a certain sense constitutes a law beyond the law, that is, a set of legal rules which 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 does International Humanitarian Law apply equally to the attacking as well as the defending party to 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.


[1] This text is in part based on research originally conducted for the author’s Diploma Thesis “Towards a culture of compliance”. A first updated, shortened, version of this thesis was made available under the title “International Humanitarian Law in Modern Asymmetric Conflicts” at <> last accessed 22 March 2014.

[2] Rechtsanwalt, Dr., MJI. Email:

[3] Richard K. Betts, “Compromised Command - Inside NATO's First War”, in: 80 Foreign Affairs (2001), Vol. 4, July / August, pp. 126 et seq., at p. 129.

[4] Ibid., at p. 128.

[5] Cf. Christina Wagner / Stefan Kirchner, “Das VStGB - Ein Meilenstein in der Durchsetzung des humanitären Völkerrechts”, in: 24 Jura (2002), pp. 128 et seq.

[6] Ibid.

[7] Marcus Tullius Cicero, Pro Tito Annio Milone ad iudicem oratio, available online at <> last accessed 22 March 2014, I.11.: “Silent enim leges inter arma.”

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Asymmetric Warfare. A Challenge for International Humanitarian Law?
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law, war, warfare, laws of war, international humanitarian law, afghanistan, Kosovo, Syria, Iraq, Islamic State
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Stefan Kirchner (Author), 2015, Asymmetric Warfare. A Challenge for International Humanitarian Law?, Munich, GRIN Verlag,


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