Academic journal article Duke Journal of Comparative & International Law

The Legal Battle to Define the Law on Transnational Asymmetric Warfare

Academic journal article Duke Journal of Comparative & International Law

The Legal Battle to Define the Law on Transnational Asymmetric Warfare

Article excerpt

INTRODUCTION: TECHNOLOGY AND THE RISE OF PERSISTENT AND PREVALENT ASYMMETRIC WARFARE

Asymmetric warfare is not a new phenomenon. From the dawn of history, adversaries developed capabilities to overwhelm their opponents and conquer them into submission. The technological innovations of the day, from gun powder and the napalm bomb to unmanned fighting systems, were the most noticeable form to gain asymmetric power. But technology also helped the weaker side that resorted to guerilla warfare or terrorism. The spread of innovations like hand-held missiles, undetectable explosives, and increasingly improving communication tools offered loosely-organized insurgents affordable and effective means of confronting mighty opponents. "[T]he democratization or privatization of the means of destruction" (1) provided novel opportunities for non-state actors to challenge not only their own governments but also the strongest of powers.

The contemporary democratic spread of technological innovations ensures the persistence and the prevalence of asymmetric military conflict between regular armies and irregular, sub-state militias. The powerful side is drawn into such conflicts relying on increasingly more sophisticated and accurate, and hence more potent and discerning, weapons that promise a short and decisive submission of a loosely-organized enemy, with reduced self-risk and fewer civilian casualties. The stronger party is determined to end an indefinite state of insecurity caused by a handful of individuals whose access to an increasingly diverse and lethal arsenal of weapons threatens national interests. It is politically difficult for both sides to seek amicable avenues to resolve their conflict: the strong side because it regards the irregulars as extortionists and the weak side because it must cultivate an uncompromising maximalist ideology among its fighters. And as asymmetric battles continue indefinitely, their very persistence is likely to be regarded as a successful strategy from the perspective of weak or relatively weak actors. Hence, such conflicts become prevalent: states in conflict situations whose military capacity is relatively weak tend to adopt the strategies of the non-state militias, by supporting such groups as proxies or by turning their own forces into guerilla or terrorist units. This phenomenon can be observed in the Middle East, with Iraqi forces reverting to guerrilla tactics during the 2003 invasion, and Syria and Iran supporting the Hezbollah in Lebanon. (2) We can therefore anticipate that most future wars will be characterized as asymmetric, involving powerful regular armies and irregular non-state militias.

The rise of transnational asymmetric conflict and the unique challenges it poses led Toni Pfanner to argue that, if "wars between States are on the way out, perhaps the norms of international law that were devised for them are becoming obsolete as well." (3) This essay is a modest attempt to explore the possible avenues for responding to this challenge. The regulatory potential of the jus in bello lay in the types of wars anticipated in Europe during the nineteenth century, and in the common European effort to maintain the prevailing balance of power. These were conventional military conflicts between state armies that operated under similar principles using similar means of warfare. The law consisted of norms to which the parties consented and which reflected their shared concerns--the safeguarding of non-combatants and the elimination of unnecessary suffering of combatants. The law was created by mutual agreement and enforced through the promise and threat of reciprocity. Because the law depended on reciprocity not only for consent but also for enforcement, it applied to aggressors and defenders alike; otherwise, the aggressor would have no incentive to respect the law during fighting.

In fact, the disjunction between jus ad bellum and jus in bello indicates that the traditional law was carefully designed to align the incentives of the parties to the conflict, making sure they all had strong incentives to obey the law. …

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