The Notion of Asymmetric Transnationalization of Warfare Within International Humanitarian Law

• THE NOTION OF ASYMMETRIC TRANSNATIONALIZATION OF WARFARE WITHIN INTERNATIONAL HUMANITARIAN LAW
   
• Hagler Okorie
• Ch.Arb., Med-Con, Notary Public & Justice of the Peace Faculty of Law,
  Abia State University Uturu

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ABSTRACT

The nature of asymmetric warfare is characterized by the use of unconventional tactics and strategies by non-state actors, such as terrorist groups, to challenge the power of a state. This type of warfare is often conducted in an irregular manner, with no clear front lines or battlefields. It also involves the use of new technologies, such as cyber warfare and drones, which can be used to target civilians and civilian infrastructure. Asymmetric warfare has become increasingly common in recent years due to the rise of transnational terrorism and other forms of non-state violence.

In response to this new form of conflict, international humanitarian law has been adapted to address some aspects of asymmetric warfare. For example, the Geneva Conventions have been amended to include provisions that protect civilians from indiscriminate attacks and prohibit certain weapons that are deemed too dangerous for use in war. Additionally, international criminal tribunals have been established to prosecute those responsible for war crimes committed during asymmetric conflicts.

Despite these efforts, there remain significant gaps in international humanitarian law when it comes to regulating asymmetric warfare. For instance, there is no clear definition of what constitutes a “war crime” in this context or how states should respond when faced with asymmetric threats. Furthermore, many non-state actors do not recognize the authority of international humanitarian law and may not abide by its rules even if they are aware of them.

Overall, while international humanitarian law has made progress in adapting to the changing nature of armed conflict, there is still much work that needs to be done in order to ensure that all parties involved in asymmetric warfare abide by its principles and respect human rights.

• Keywords: asymmetric, transnational, international humanitarian law, armed conflict, distinction, non- state actors, Geneva Conventions, Additional Protocols.

INTRODUCTION

IHL seeks to protect civilians and other non-combatants from the effects of armed conflict, while also allowing for military necessity. In asymmetric transnational armed conflicts, this balance is particularly difficult to achieve. On the one hand, states must be able to defend themselves against non-state actors operating from outside their territory. On the other hand, IHL seeks to protect civilians and other non-combatants from the effects of armed conflict.

In order to strike this balance, IHL has developed a number of principles that apply in asymmetric transnational armed conflicts. These include: proportionality; distinction; precaution; and humane treatment. Proportionality requires that any attack must be limited so as not to cause excessive civilian casualties or damage compared with the expected military advantage gained by such an attack. Distinction requires that parties distinguish between combatants and civilians at all times during an attack. Precaution requires that parties take all feasible precautions in order to minimize civilian casualties or damage when conducting attacks. Finally, humane treatment requires that parties treat all persons affected by an armed conflict humanely at all times, regardless of their status as combatants or civilians.

These principles are intended to ensure that states are able to defend themselves against non-state actors while also protecting civilians and other non-combatants from the effects of armed conflict. By striking a balance between military necessity and humanitarian considerations, IHL helps ensure that asymmetric transnational armed conflicts are conducted in accordance with international law and standards of human rights and dignity.

The asymmetric nature of the conflict has posed a challenge to the application of IHL. The asymmetry in the power between Israel and its adversaries, as well as the complexity of the situation, have made it difficult for both sides to comply with IHL. For example, in 2006, Hezbollah used civilians as human shields and launched rockets from civilian areas, making it difficult for Israel to distinguish between military targets and civilians. This has led to allegations that Israel has violated IHL by targeting civilians or civilian infrastructure. Similarly, Hamas has been accused of using civilians as human shields and launching rockets from civilian areas, which makes it difficult for Israel to distinguish between military targets and civilians.

In addition, the transnational nature of these conflicts has also posed a challenge to compliance with IHL. As these conflicts involve multiple actors across different countries, there is a lack of clarity on which rules should be applied and who should be held accountable for violations. This lack of clarity can lead to confusion over which rules apply and who is responsible for ensuring compliance with them. Furthermore, due to the complexity of these conflicts, it can be difficult for international organizations such as the International Committee of the Red Cross (ICRC) or other monitoring bodies to effectively monitor compliance with IHL in these situations.

Overall, armed conflicts that are characterized by asymmetry and transnationality pose significant challenges to compliance with IHL due to their complex nature. In order to ensure that all parties involved adhere to basic principles of IHL in such situations, there needs to be greater clarity on which rules should be applied and who should be held accountable for violations. Additionally, international organizations need better mechanisms in place for monitoring compliance with IHL in such contexts.

In order to address these issues, IHL has developed a number of principles and rules which are applicable to non–state actors. These include the principle of distinction between civilians and combatants, the principle of proportionality in the use of force, the prohibition on attacks against civilians, and the obligation to take all feasible precautions in attack. In addition, IHL also requires that non–state actors comply with certain obligations such as refraining from attacking protected persons or objects, respecting medical personnel and facilities, and providing humane treatment for prisoners of war. Furthermore, IHL also provides for certain protections for non–state actors such as the right to be treated humanely if captured by a state party.

Overall, IHL is an important tool in regulating the conduct of non–state actors during armed conflicts. It provides a framework for states to ensure that their actions are consistent with international law while also protecting civilians from unnecessary harm. By adhering to these principles and rules, states can help ensure that their operations are conducted in accordance with international law while also minimizing civilian casualties.

the state party is not under obligation to protect them, the non–state party may lack the capacity to do so, and third parties may be unable or unwilling to intervene. This can lead to a situation in which civilians are left unprotected from the consequences of warfare.

In addition, asymmetric transnational armed conflicts often involve multiple actors operating across different jurisdictions, making it difficult for states to exercise effective control over their own territory and citizens. This can lead to a breakdown in law and order, as well as an increase in human rights abuses. Furthermore, due to the nature of these conflicts, it is often difficult for international organizations and other third parties to intervene effectively. As a result, there is a risk that such conflicts will become protracted and intractable.

Finally, asymmetric transnational armed conflicts can have significant economic costs for both states and non-state actors involved. These costs include direct military expenditures as well as indirect costs associated with displacement of people, destruction of infrastructure, disruption of trade and commerce, etc. In addition, such conflicts can also have long-term economic implications for countries affected by them due to reduced investment opportunities and decreased access to markets.

• on the one hand, in practice it does not enjoy the full benefits derived from protection duties incumbent on territorial states;
• on the other hand, because of the nature of asymmetric transnational armed conflicts, it may suffer extensive harm caused by the reactions of states to non–state actors. Again, non–state actors might be incentivized to capitalize on civilian harm, in order to demonize their adversary in the eyes of the local and international public opinion.

The rules and principles of IHL are designed to protect civilians and other non-combatants, as well as to limit the means and methods of warfare. This is especially important in asymmetric transnational armed conflicts, where the weaker party may be unable to match the military capabilities of its adversary. In such cases, IHL provides a framework for protecting civilians from disproportionate harm, while allowing for legitimate military objectives to be pursued. Furthermore, IHL also serves to ensure that all parties adhere to certain standards of conduct during conflict, thus helping to maintain a level playing field between adversaries.

In addition, it is important to note that IHL does not only apply in traditional interstate conflicts; it can also be applied in asymmetric transnational armed conflicts. This is because IHL applies equally to all parties involved in an armed conflict regardless of their size or strength. Thus, even if one party has superior military capabilities or resources than another, they must still abide by the same rules and principles of IHL.

Finally, it is important to recognize that interpretation of existing norms is key when addressing unique problems posed by asymmetric transnational armed conflicts. This is because there may not always be clear guidance on how best to address certain issues related to such conflicts. Therefore, it is necessary for states and other actors involved in these conflicts to interpret existing norms in order to ensure that they are properly applied in each situation.

In conclusion, this work has argued that there exist rules and principles of IHL which can be used to regulate asymmetric transnational armed conflict and address their unique problems through interpretation of existing norms. It has further argued that strict adherence to these rules and principles is essential for maintaining legitimacy during such conflicts and ensuring a level playing field between adversaries. Finally, it has highlighted the importance of interpreting existing norms when addressing unique issues related to asymmetric transnational armed conflict.

Meaning and Nature

Asymmetric warfare is a type of conflict in which two or more parties are not equal in terms of military power, resources, and capabilities. It is characterized by the use of unconventional tactics and strategies to gain an advantage over the stronger party. This type of warfare often involves non-state actors such as terrorist groups or guerrilla forces that are not bound by traditional rules of engagement. Transnational warfare is a form of asymmetric warfare that takes place across multiple countries or regions. It typically involves non-state actors who have access to weapons and other resources from multiple sources, making them difficult to track and combat.

1. Armed conflicts between states and non-state actors, such as rebel groups or terrorist organizations.
2. Armed conflicts between two or more non-state actors, such as rival rebel groups or terrorist organizations.
3. Armed conflicts between a state and a coalition of non-state actors, such as a coalition of rebel groups or terrorist organizations.
4. Armed conflicts between two or more states in which one state is supported by non-state actors, such as rebel groups or terrorist organizations.
5. Armed conflicts between two or more states in which both sides are supported by non-state actors, such as rival rebel groups or terrorist organizations.

1. The existence of an armed conflict in which a state deploys its regular armed forces against a non–state armed group operating from outside the state’s territory.
2. The actions of the non–state actor are not attributable to the territorial state if such a state exists;
3. The deployment of the forces is not an intervention in an internal armed conflict, conducted with the territorial state’s consent; and
4. The non–state actor, either by choice or on counts of its limited capabilities, employs tactics resulting in a challenge to the traditional IHL concepts of combatant – civilian distinction, or the distinction between military and civilian objects.

“International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to govern the conduct of hostilities.”

In other words, IHL applies to all situations in which an armed conflict exists or has existed at some point in time. This means that IHL can apply to transnational conflicts as well as internal ones.

• An armed conflict exists “Whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such group within a state.â€

The threshold for the existence of an armed conflict is determined by international humanitarian law (IHL). IHL applies to situations of armed conflict, and sets out the rules governing the conduct of hostilities. It also defines what constitutes an armed conflict, and distinguishes between international and non-international armed conflicts. Generally speaking, an armed conflict exists when there is a resort to armed force between two or more states, or between a state and a non-state actor such as an organized armed group. The use of force must be widespread and sustained in order for it to be considered an armed conflict. Additionally, the intensity of the fighting must reach a certain level in order for it to be considered an armed conflict.

In such cases, the application of the Tadic standard may be difficult due to the fact that it was developed in the context of a symmetric conflict between two states. In asymmetric conflicts, there is often a lack of clarity as to who is a combatant and who is not, and what constitutes an attack or an act of war. This can make it difficult to determine whether certain actions are permissible under international humanitarian law. Furthermore, in asymmetric conflicts there may be multiple actors involved, making it difficult to identify which party has committed a violation. Additionally, the nature of asymmetric warfare often involves non-state actors operating in remote areas with limited access to information and resources, making it difficult to investigate alleged violations.

In order to apply the Tadic standard in these contexts, it is necessary to consider how its principles can be adapted for use in asymmetric transnational armed conflicts. This could involve taking into account factors such as the nature of the conflict (e.g., whether it is an internal or international conflict), the type of combatants involved (e.g., state forces or non-state actors), and the level of organization among those combatants (e.g., whether they are part of a hierarchical structure). Additionally, consideration should be given to how international humanitarian law applies differently depending on whether one side is considered a state actor or not. Finally, when applying this standard in these contexts, special attention should be paid to ensuring that all parties are treated equally and fairly under international law regardless of their status as either state or non-state actors.

In this case, the conflict is limited to those between non-state actors and the state in which the non-state actor’s actions are not attributable to the territorial state. This means that if a non-state actor is sent by or controlled by the territorial state, or if the state fails to exercise due diligence or vigilance to prevent its actions, then it would be considered an international conflict and not a non-international armed conflict.

In conclusion, the legal framework of international armed conflict is increasingly being applied to asymmetric transnational conflicts. This is due to the fact that occupation is seen as a low threshold for the existence of such conflicts, and thus more and more of these conflicts are being regulated by international law. As a result, it is important for all parties involved in such conflicts to be aware of their rights and obligations under international law.

In conclusion, our definition of asymmetric conflicts is based on four conditions: (A) the presence of a state actor and a non-state actor; (B) the non-state actor is not recognized as a state by other states; (C) the operations of the state are not permitted through the consent of the territorial state; and (D) IHL applies to both parties.

Challenges for the Regulation of
Asymmetric Transnational Armed Conflict

The second normative challenge is posed by the lack of clarity in the application of international humanitarian law (IHL) to asymmetric conflicts. The laws of war are designed for symmetric conflicts, and their application to asymmetric conflicts is often unclear. This lack of clarity creates a legal vacuum that can be exploited by powerful states to justify their use of force against weaker adversaries.

The institutional challenges stem from the fact that there is no single institution responsible for regulating transnational armed conflict. International organizations such as the United Nations, regional organizations such as NATO, and non-governmental organizations such as Human Rights Watch all have a role to play in regulating transnational armed conflict, but none has a monopoly on this task. This fragmentation makes it difficult to develop an effective system for regulating asymmetric transnational armed conflict.

In order to address these challenges, it is necessary to develop a comprehensive framework for regulating asymmetric transnational armed conflict that takes into account both the power dynamics between adversaries and the need for clear rules and enforcement mechanisms. Such a framework should include measures such as:

1) Strengthening existing international humanitarian law (IHL) norms and developing new ones specifically tailored to asymmetric conflicts;
2) Establishing an independent monitoring body with authority over all parties involved in an armed conflict;
3) Developing mechanisms for enforcing IHL compliance;
4) Enhancing transparency in military operations;
5) Establishing accountability mechanisms for violations of IHL; and
6) Strengthening international cooperation on arms control and disarmament initiatives.

This is seen in the current debate over the regulation of autonomous weapons. Autonomous weapons are weapons that can select and engage targets without human intervention. They are seen as a potential game-changer in warfare, as they could give militaries a decisive advantage on the battlefield. However, many countries have called for a ban on their use, arguing that they would be too dangerous and unpredictable to be used responsibly. The countries that have developed these weapons, however, have been reluctant to agree to any restrictions on their use, as they see them as an important strategic asset. This has led to a stalemate in negotiations over their regulation, with the weaker countries feeling powerless to challenge the stronger ones who hold all the cards.

that the belligerents were states, and that they fought in the open field. Neither of these premises is true in today’s conflicts.

The traditional law of war was designed to protect civilians from the ravages of war, but it is not well-suited to address the challenges posed by non-state actors who fight from within civilian populations or use civilians as shields. To address this challenge, a new set of norms must be developed that are tailored to the realities of modern warfare. These norms should focus on protecting civilians while allowing for effective military operations against non-state adversaries. They should also provide clear guidance on when and how force can be used against non-state actors, as well as how to distinguish between combatants and civilians in urban environments. Finally, these norms should ensure that all parties adhere to their obligations under international humanitarian law.

• that it was possible to isolate military and civilian targets with sufficient clarity and that there was a tangible military objective to be attained from the battle, such as hitting army bases or gaining control over territory. These premises give rise to the expectation that military conflict could be compatible with humanitarian ideals that war would involve inducing concessions from the defeated party by degrading its military capabilities and weakening and disabling its fighters without necessarily killing them.

Thirdly, the irregulars often have a greater understanding of the local terrain and population, allowing them to use guerrilla tactics to their advantage. Finally, the regular army is often constrained by international law and public opinion, making it difficult for them to respond effectively to asymmetric threats.

The challenge is to create an institutional framework that can effectively regulate transnational conflicts. This requires a combination of international law, regional organizations, and domestic legal systems. International law should be used to set the minimum standards for behavior in conflict situations, while regional organizations should provide a forum for dialogue and negotiation between parties. Domestic legal systems should also be used to ensure accountability for violations of international law and to provide remedies for victims of war crimes. Finally, all parties must commit to upholding these standards and ensuring that they are enforced.

Pure Normative Complexity of
Asymmetric Transnational Armed Conflicts

The challenge of ascertaining the normative frameworks that govern transnational armed conflicts is due to the fact that IHL has traditionally been viewed as a tool for regulating international and non-international armed conflicts. This means that it does not necessarily provide guidance on how to address transnational armed conflicts, which involve multiple states and non-state actors operating across borders. In order to address this challenge, scholars have proposed various approaches such as expanding existing IHL rules, developing new rules specifically for transnational armed conflicts, or relying on other sources of international law such as human rights law. Ultimately, the approach taken will depend on the specific context of the conflict in question.

• Rather, they are usually classified as non-international armed conflicts (NIACs). NIACs are defined in Article 3 common to the four Geneva Conventions of 1949 as “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties”. This definition has been further developed by customary international humanitarian law, which applies to all parties involved in a NIAC regardless of whether they have ratified the Geneva Conventions or not.

  The rules applicable to NIACs are less detailed than those applicable to international armed conflicts, but still provide for basic protections for civilians and combatants. These include prohibitions on attacks against civilians, torture and other cruel treatment, and collective punishment.

Non-international armed conflicts are regulated by Common Article 3 of the Geneva Conventions and Additional Protocol II. Since the conflicts in question are not internal, they do not fall within this traditional understanding of non-international armed conflict.

• The International Committee of the Red Cross (ICRC) has developed a set of criteria to determine whether a situation should be considered an internal armed conflict for the purpose of IHL. These criteria include: (1) intensity of the fighting; (2) organization of the parties involved; (3) duration and scope of the hostilities; and (4) recognition by one or more states. If these criteria are met, then a situation can be considered an internal armed conflict for the purpose of IHL.

  However, it is important to note that even if a situation does not meet all four criteria, it may still be subject to international law. In particular, international human rights law applies in all situations regardless of whether they qualify as internal armed conflicts under IHL. Therefore, even if a situation does not meet all four criteria for an internal armed conflict, it may still be subject to international law.

The possible answers to these questions are three-fold:

• 2 The second is that the conflicts are often characterized by a lack of clear distinctions between combatants and non-combatants, making it difficult to determine who is a legitimate target.

  3 The third is that the conflicts are often fought in urban areas, which can lead to civilian casualties due to the difficulty of distinguishing between military and civilian targets.

  4 The fourth is that these conflicts often involve non-state actors, such as militias or terrorist groups, which can make it difficult to hold them accountable for violations of IHL.

  5 Finally, these conflicts are often fought with unconventional weapons, such as improvised explosive devices (IEDs), which can cause significant civilian casualties.

• This interpretation would mean that Common Article 3 applies to any type of internal conflict, regardless of its intensity or the level of organization of the parties involved. This could include conflicts between states and non-state actors, such as armed groups or terrorist organizations. It could also include conflicts between different ethnic or religious groups within a state.

• The third position is that asymmetric transnational conflicts should be treated as international conflicts and subject to the same laws and protocols as international conflicts. This view has been adopted by the Israeli Supreme Court, although it is not widely accepted. This position recognizes that there are some differences between international and transnational conflicts, but argues that these differences do not warrant different legal regimes. Instead, this position argues for a unified approach to regulating all types of armed conflict, regardless of whether they are international or transnational in nature.

The court held that the conflict between Israel and Hamas is an international armed conflict, and thus the laws of war apply. This decision was based on the fact that both parties are organized entities with a certain degree of control over their respective territories, and that they have engaged in hostilities against each other.

The Israeli government’s position is that the law of targeting should be applied in a manner that takes into account both international and non-international armed conflicts. This means that the same principles and norms should be applied to both types of conflicts, regardless of their classification. The Israeli government believes that this approach is necessary in order to ensure that civilians are adequately protected from harm during armed conflicts.

The Commission also concluded that the use of force by Israeli forces was excessive and unreasonable in the circumstances, and that there were several violations of international law. It found that the blockade imposed by Israel on Gaza was legal under international law, but that it should have been implemented in a manner consistent with international humanitarian law. The Commission also noted that the actions of some of the passengers on board the flotilla vessels were provocative and dangerous, and could have led to a violent confrontation.

The Israel-Hamas conflict is viewed by international bodies as an international armed conflict due to the fact that the Gaza strip is still considered to be occupied by Israel. This is in accordance with Common Article 2 of the Geneva Conventions, which states that any conflict between two or more High Contracting Parties must be considered an international armed conflict. Additionally, documents such as the Goldstone Report and MCGOWEN-Davis report have accepted this position and have stated that the rules of international and non-international conflicts are becoming increasingly similar.

In addition, the International Court of Justice (ICJ) has held that international humanitarian law applies to all armed conflicts, regardless of their nature. This includes the Geneva Conventions and their Additional Protocols, as well as customary international law. The ICJ has also held that the principles of distinction, proportionality and necessity are applicable in all armed conflicts. These principles are essential for protecting civilians from unnecessary suffering and ensuring that military operations are conducted in a manner consistent with international law.

Finally, it is important to note that the United Nations Security Council has adopted several resolutions which reaffirm the applicability of international humanitarian law to all armed conflicts. These include Resolution 2444 (2018), which calls on all parties to any conflict to respect international humanitarian law and take all necessary measures to protect civilians from harm.

In conclusion, it is clear that international humanitarian law applies to both international and non-international armed conflicts, including those between Israel and Hamas or Hezbollah in Lebanon. This includes the principles of humanity, proportionality, distinction and necessity which must be respected by all parties involved in any conflict.

Principles of Distinction in
Asymmetric Transnational Armed Conflict in
Relation to Targeting of Persons

The principle of distinction is essential to the protection of civilians in armed conflict, as it requires parties to the conflict to distinguish between civilian and military targets. This helps to ensure that civilians are not targeted or harmed in the course of hostilities. It also helps to ensure that civilians are not used as human shields by combatants, as this would violate the principle of distinction. Furthermore, the principle of distinction helps to ensure that civilian objects are not attacked or destroyed, which would constitute a violation of IHL.

This means that civilians are not protected from attack if they are actively participating in hostilities. This includes activities such as taking up arms, providing logistical support to combatants, or engaging in acts of sabotage or espionage. Civilians who take part in these activities can be targeted by the opposing forces and may be subject to attack.

The application of the ‘direct participation in hostilities’ standard is thus a complex process that requires a careful consideration of the facts and circumstances of each case. In particular, it is important to consider the context in which the armed group operates, its structure and methods of operation, as well as any other relevant factors. Furthermore, it is essential to ensure that any interpretation of the principle does not grant non-state armed groups an unfair advantage over state forces. Ultimately, the goal should be to ensure that civilians are adequately protected while also allowing for effective military operations against those who threaten international peace and security.

The main challenge in this debate is to determine the criteria for determining who can be lawfully targeted. The most commonly accepted criteria are those set out by the International Humanitarian Law (IHL), which states that only combatants and civilians directly participating in hostilities can be targeted. However, there is still a lack of clarity regarding what constitutes direct participation in hostilities, and how it should be interpreted in different contexts. This has led to a variety of interpretations of the concept, with some arguing that it should be interpreted narrowly, while others argue for a more expansive interpretation.

In addition to this, there is also the question of whether or not certain individuals should be considered as combatants even if they do not meet the traditional definition of combatant under IHL. For example, some have argued that members of non-state armed groups should be considered as combatants even if they do not wear uniforms or carry arms openly. This has been particularly relevant in recent years due to the rise of non-state armed groups such as ISIS and Al Qaeda.

Ultimately, these questions remain highly contested and will likely continue to be debated for many years to come. It is important that all parties involved in an armed conflict take into account both international law and human rights considerations when making decisions about who can lawfully be targeted during an armed conflict.

Membership Status

The legal status of members of non–state organizations involved in asymmetric transnational armed conflicts is thus a complex and contested issue. In general, it is accepted that members of such organizations are not combatants under international law, as they do not meet the criteria set out in Article 43 of Additional Protocol I. However, there is disagreement over whether they should be considered civilians or some other category of persons. Some argue that they should be treated as civilians, while others suggest that they should be afforded a special status distinct from both combatants and civilians.

Ultimately, the legal status of members of non–state organizations involved in asymmetric transnational armed conflicts will depend on the specific facts and circumstances surrounding their involvement in the conflict. It is important to note that international humanitarian law does not provide a single answer to this question; rather, it provides a framework for determining the appropriate legal status based on an assessment of the individual’s role in the conflict.

In conclusion, the legal standing of such fighters is complex and depends on the approach taken. If they are viewed as civilians, then their actions must be assessed in terms of whether they fall within the ambit of direct participation in hostilities. Alternatively, if Common Article 3 is interpreted as attributing a legal meaning to the term ‘armed forces’, then there may be recognition of a different status for members of such armed forces. In either case, further questions remain regarding the relationship between this status and the concept of ‘Direct Participation in Hostilities’.

Members in Non–State Actors as Civilian Directly Participation in Hostilities ‘The Civilian Approach’

In conclusion, the civilian approach to IHL defines civilians as any person who does not belong to or is not affiliated with the armed forces of a state. This understanding was reflected in the Targeted Killing Case, where operatives of armed Palestinian groups were deemed civilians and targetable only when directly participating in hostilities. Thus, individuals engaged in hostilities in the context of asymmetric transnational armed conflicts are civilians, who can be targeted for such time as they take a direct part in hostilities.

Principle of Distinction Relative to Targeting of Objects

parties to an armed conflict must take all feasible precautions to ensure that their attacks are directed only at military objectives and not at civilian objects.

Military objectives are those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Civilian objects are those objects which are not military objectives. Examples of civilian objects include dwellings, hospitals, schools and places of worship.

• For example, if a bridge is destroyed, civilians may have to take a longer route to get to their destination, or may not be able to reach it at all. Therefore, it is important for warring parties to take into account the potential harm that their actions could cause to non–participating civilians and make sure that they are not put in danger.

“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

The principle of distinction is also found in other international humanitarian law instruments, such as the Geneva Conventions of 1949, which provide that civilians must be protected from attack unless they take a direct part in hostilities. The principle of distinction is also reflected in customary international law, which requires that parties to an armed conflict distinguish between civilians and combatants. This means that attacks must be limited to military objectives only, with no intentional attacks on civilians or civilian objects.

• The parties to the conflict must always distinguish between the civilian population and combatants, as well as between civilian objects and military objectives. They must ensure respect for and protection of the civilian population and civilian objects by only directing their operations against military objectives.

This is recognized as customary law.
 

It is the basis for determining what is a legitimate target in warfare and what is not.

In general, a military objective is any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization offers a definite military advantage. This includes objects such as enemy combatants, weapons and ammunition, military installations and equipment, transportation systems used for military purposes, and other objects that are used to support the enemy’s war effort.

The use of force against dual-use objects is often seen as a violation of international law, as it can cause disproportionate harm to civilians and civilian infrastructure. Regular armies must be mindful of the potential for collateral damage when targeting dual-use objects, and must take steps to minimize such damage. Additionally, regular armies must consider the political implications of their actions in asymmetric warfare, as non-state actors may use the destruction of dual-use objects as a propaganda tool. Finally, regular armies must also consider the economic implications of their actions in asymmetric warfare, as the destruction of dual-use objects can have long-term economic consequences for all parties involved.

Dual–Use Object

The legality of targeting dual-use objects is thus a complex issue. On the one hand, international humanitarian law (IHL) prohibits attacks on civilian objects and requires that all parties distinguish between military objectives and civilian objects. On the other hand, IHL also recognizes the right of self-defense, which may include attacking dual-use objects if they are being used for military purposes. In such cases, the attacking party must take all feasible precautions to minimize harm to civilians and civilian objects. Ultimately, it is up to each state to determine whether an object is a legitimate military target or not.

Contracting out military work to civilian companies can be a cost-effective way for states to save money. This is because civilian companies often have access to more resources and technology than the military, allowing them to complete tasks more quickly and efficiently. Additionally, civilian companies may be able to provide services at a lower cost than the military due to their lack of overhead costs associated with maintaining a large force. By outsourcing certain tasks, states can free up resources that can then be used for other purposes. However, this trend towards militarizing civilian activities and civilianizing military ones also complicates the distinction between the two roles, as it is not always clear who is responsible for what.

In other words, the target must be a legitimate military objective in order to be considered a valid target. This means that it must have some direct or indirect military value, such as being used for military operations, providing support to military forces, or having an impact on the enemy’s ability to wage war. Civilian morale is not considered a legitimate military objective and therefore cannot be used as a basis for targeting.

Jefferson D. Reynolds noted thus:

• “while the civilian population should never be the subject of direct kinetic attack, the effects on this center of gravity are largely discomfort, morale and resolve to support their leadership in conflict participation. The primary obstacles to this type of campaign is that Article 52 (2) arguably prohibits Attacking these targets, even though their destruction may reduce the length, cost, damage and casualty rate typically of objects providing a distinctly military advantage. Objects providing a military advantage typically translate into the highest center of resistance and the most difficult to engage, especially when they are commingled among the civilian population in concealment warfare.â€

This is a difficult inquiry, as it requires an assessment of the adversary’s intentions and capabilities. The ‘location’ category is also important, as it requires an analysis of the object’s proximity to military objectives or combatants. Finally, the ‘use’ category is significant in that it requires an examination of how the object is being used at present.

The legal questions surrounding targeting dual-use objects are complex and require careful consideration of international law. Under Additional Protocol I, an object may qualify as a military objective due to its nature, location, purpose, or use. Dual-use objects are not considered military objectives by virtue of their nature; however, they may be considered such if they are located near military objectives or combatants, have a purpose that could be used for military purposes in the future, or are currently being used for military purposes. In order to determine whether a dual-use object qualifies as a legitimate target under international law, all four criteria must be taken into account and carefully evaluated.

The ICRC Commentaries, Distein’s standard, and Schmitt’s standard all agree that the purpose of an object must be considered in order to determine whether it qualifies as a military objective. However, they differ in terms of how remote the purpose must be for an object to qualify. The ICRC Commentaries require intent on the part of a party to convert the object to military use, while Distein requires intentions known to guide the adversary and not hypothetical plans based on worst-case scenarios. Schmitt offers a more lenient standard, requiring only that the likelihood of military use is reasonable and not remote in the context of the particular conflict under way.

In order to determine whether an object is a military objective, the Schmitt standard would require a showing of reasonable likelihood that the object is being used for military purposes. This could include evidence such as the presence of armed forces or weapons at the site, or evidence that the object is being used to support military operations in some way.

CONCLUSION

the use of force, the protection of civilians and the accountability for violations.

The first area is the use of force. In asymmetric transnational armed conflicts, third parties expect that the more powerful side should exercise restraint in its use of force and limit it to what is necessary and proportionate to achieve a legitimate military objective. This means that the more powerful side should not resort to indiscriminate or disproportionate attacks, which may cause excessive civilian casualties or damage to civilian objects.

The second area is the protection of civilians. Third parties expect that the more powerful side should take all feasible precautions to protect civilians from harm during hostilities, including by providing advance warning of attacks when possible and avoiding locating military objectives in densely populated areas. They also expect that the more powerful side should provide humanitarian assistance to those affected by conflict, including access to medical care and other basic necessities.

Finally, third parties expect that there should be accountability for violations committed by either side in an asymmetric transnational armed conflict. This includes ensuring that those responsible for war crimes are held accountable through criminal prosecution or other forms of justice such as truth commissions or reparations programs. It also includes providing victims with access to effective remedies such as compensation or restitution for losses suffered due to violations committed by either side in an asymmetric transnational armed conflict.

Overall, these expectations have led to a shift away from traditional laws governing warfare towards a new set of norms designed specifically for asymmetric transnational armed conflicts which emphasize greater respect for human rights and international humanitarian law principles such as distinction between combatants and civilians, proportionality in attack, and protection of civilians from harm during hostilities.

• 2 Secondly, the recognition of an obligation to take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

  3 Thirdly, the recognition of an obligation to respect and protect medical personnel, facilities and transports.

  4 Fourthly, the recognition of an obligation to respect and protect journalists engaged in dangerous professional missions in areas of armed conflict.

  5 Fifthly, the recognition of an obligation to respect and protect humanitarian personnel exclusively engaged in humanitarian relief activities.

• The army would be expected to take all necessary steps to protect civilians, including providing medical assistance and food aid, as well as ensuring that any military operations are conducted in a way that minimizes civilian casualties. The army would also be expected to ensure that any displaced persons are provided with safe shelter and access to basic services. Additionally, the army should work with local authorities and international organizations to ensure that civilians have access to information about their rights and how they can seek help if needed.

• The army would be required to conduct a thorough and impartial investigation into the attack, including any potential violations of international humanitarian law. The investigation should be conducted in an open and transparent manner, with the results made public. Third parties may also demand that the reasonable military commander’s discretion be limited in order to ensure accountability for any violations of international law.

When one side fails to comply with the law, the other side is less likely to do so as well.

The asymmetric nature of contemporary transnational armed conflicts also has implications for the application of IHL in terms of its scope and content. For example, while some rules may be applicable to all parties regardless of their relative military power, others may only apply to certain types of actors or situations. Moreover, the interpretation of existing rules may be affected by the context in which they are applied. In particular, it is important to consider how different forms of asymmetry can shape the way in which IHL is interpreted and applied.

Finally, it is important to note that asymmetric transnational armed conflict can have a significant impact on civilian populations. This includes both direct effects such as displacement and injury or death due to violence, as well as indirect effects such as economic disruption and psychological trauma caused by prolonged exposure to violence. It is therefore essential that IHL takes into account these realities when formulating rules and regulations governing such conflicts.

• Parties are obliged to agree to limit their actions during hostilities because they will benefit when their opponent does the same, IHL presumes corresponding interest among the belligerents.

The development of IHL has made it easier to identify situations in which it applies, as the rise of asymmetric transnational conflicts between states and non-state armed groups has become more common. This body of law provides a framework for understanding the legal obligations of all parties involved in such conflicts, including those of the state and non-state actors. It also helps to ensure that civilians are protected from harm and that humanitarian aid is provided where necessary.

• Since the Hamdan and Boumediene rulings by the US Supreme Court, it seems universally acceptable that armed conflicts with non–state groups do not constitute a ‘law–free zone’ or a ‘legal black hole’, but are subject to IHL or to human rights provided by national and/or domestic law.

The article has argued that the application of Common Article 3 to these conflicts is not only possible, but also desirable. It provides a framework for assessing the legality of actions taken by both state and non–state actors in such conflicts, and it serves as a reminder that even in times of war, certain fundamental principles must be respected. In addition, it can help to ensure that the rights of civilians are protected and that any violations are punished. Finally, it can provide a basis for international cooperation in addressing the underlying causes of conflict.

The principle of equal application of IHL is also reflected in the fact that all parties to a conflict are bound by the same rules, regardless of their legal status. This means that even if one party is not recognized as a state or does not have a government, it must still comply with IHL. Furthermore, all parties must respect the fundamental principles of humanity and refrain from any acts which would violate these principles. This includes refraining from targeting civilians or civilian objects, using prohibited weapons, and committing other war crimes.

REFERENCES

• EliavLiebliah and Owen Alterman, Transnational Asymmetric Armed Conflict Under International Humanitarian Law: Key Contemporary Challenges (Institute for National Security Studies, Tel Avivi, 2015) 17
• ThazhaVarkey Paul, Asymmetric Conflicts: War Initiation by Weaker Powers, (Cambridge University Press, Cambridge, 1994); Robin Geib, ‘Asymmetric Conflict Structures’, [2006] IRRC, Vol. 88, No. 864, 759
• Noam Lubell, Extraterritorial Use of Force Against Non – State Actors, (Oxford University Press, Oxford, 2010), 126
• EyalBenveristi, ‘The Legal Battle to Define the Law on International Asymmetric Warfare’, [2010] Duke J. Com. & Int’l. 339, 341 – 342
• See, Laurie R. Blank & Benjamin R. Farley, ‘Characterizing Us Operations In Pakistan: Is the United States Engaged in an Armed Conflict?’, 34 Fordham Int’l L.J., 151, 2010
• Prosecutor V. Tadic, Case No. IT – 94 – 1 – A,. (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction), 70. We thus exclude instances in which, for example, a state abducts an individual from the territory of another state, such as the famous 1960 Eichmann abduction from Argentina by Israeli agents, or the Turkish abduction of alleged Hamas Operative Dirar Abu – Sisi by Israeli agents operating in the Ukraine.   

See, e.g., HCJ 769/02, The Public Committee against Torture in Israel v. The Government of Israel (1) PD 507 , 21 (2006); see also Common Article 2 of the Geneva Conventions of 1949 State of Israel, The Operation in Gaza, 27 Dec 2008 -18 Jan. 2009: Factual and Legal Aspects, 28 Ibid.; see also HCJ 769/02, The public Committee, at 11. The Public Commission to Examine the Maritime Incident of 31 May 2010. Report Part I, 41 (Jan. 2011). HCJ 9132/01, A1–Bassiouni v. The Prime Minister, 2008, Jan. 30 International Fact Finding Mission, Report of the International Fact Finding Mission to Investigate Violations of Intentional Law, including International Humanitarian and Human Rights Law

• YoramDistein, ‘Legitimacy Military Objectives Under the Current Jus in Bello, in Legal and Ethical Lessons of NATO’s KOSOVO Campaign’, International Law Studies, Vol. 78 (Andru E. Wall (ed.) Michael N. Schmitt, ‘Wired Warfare: Computer Network Attack and Jus in Bello’, [2002] IRRC, 365, 385.
• 1 ICRC, Customary Law Study, supra, Rule 10
• 1 On the attempt to create such a zone at Guantanamo Bay, see, John Steyn, ‘Guantanamo Bay: The Legal Black Hole’, International & Comparative Law Quarterly, Vol. 53, I. The judgment of the US Supreme Court in Boumediene has apparently definitely laid this attempt to rest – see Boumediene V. Bush, 128 Sct 2229 (2008), reprinted in 47 ILM 650 (2008).

Mohammad Mahmoud Ould Mohamedou, “Non-Linearity of Engagement: Transnational Armed Groups, International Law, and the Conflict between Al Qaeda and the United States,” Harvard University Programme on Humanitarian Policy and Conflict Research, July 2005.

• See, Mary Ellen O’Connell, ‘Ad hoc War’, in Horst Fischer, Ulrike Froissart and Wolff Heintsche Von Heinegg (eds.), KrisenSicherung and Humanitarian Schute – Crisis Management and Humanitarian Protection (Festschrift fur Dieter Fleck, BWV, Berlin, 2004), 415

             

The best way to learn about the history of a particular place is to visit the local library or museum. Libraries and museums often have a wealth of information about the area, including books, photographs, artifacts, and other materials that can provide insight into the past. Additionally, many libraries and museums offer educational programs and tours that can help visitors gain a better understanding of the history of the place. Finally, talking to locals who have lived in the area for a long time can be an invaluable source of information.