Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
5/1/2019 0 Comments
International Humanitarian Law (IHL) is a law that is meant to protect innocents from the sufferings of war. Challenges now stand between the original objective of the IHL and the actual reality of warfare.
War invariably causes indescribable pain and suffering. Left unregulated, it devastates millions of lives — civilians and combatants alike. This is where International Humanitarian Law (‘IHL’) comes into the picture to safeguard humanity. The purpose of its existence is to alleviate the sufferings of civilians and persons hors de combat during war.
It is a given that minimum standards of humanity within the ambit of IHL must be respected and met in any situation of armed conflict. What’s more, a balance must be struck between military necessity and basic sense of humanity. IHL allows parties to the armed conflict to impose drastic measures during war to overcome an adversary. For example, it may be militarily necessary to cause death of the belligerents. However, this is only permitted if humanity is considered. To this end, restraints and limitations on means and methods of warfare have been put in place for the waging of war; also, humane treatment must be given to prisoners of war. Today, 196 nations have ratified the four Geneva Conventions. It is clear that IHL has evolved into one of the most substantially codified branches of international law which is globally relevant. Therefore, its humanitarian principles should be consistently upheld by all state parties and their subjects.
Despite being universally pertinent, IHL is presently plagued with a wide array of challenges due to political, societal, economic, technological, religious, moral and ethical factors. Various violations of IHL are still taking place on a regular basis, for example, the deliberate attacks and forced displacements of civilian populations, sexual violence against combatants and civilians, wrongful confinements, and looting civilian properties. What is even more alarming is that medical personnel and humanitarian workers who should be neutral agents in war zones are being attacked and often, many end up dead. Hence, this article seeks to explain three contemporary challenges embedded in IHL, namely asymmetric warfare, the advancement of new weapons technologies, and the applicability of IHL on terrorism.
II. ASYMMETRIC WARFARE
An asymmetric warfare refers to a war between combatants whose relative military powers differ significantly. Put simply, it is a conflict which happens between a formal military and an informal, less equipped, less supported, undermanned, but resilient and motivated opponent. The war between the Israel military and Hamas in the Gaza Strip is an example of an asymmetric warfare. Asymmetric warfare poses challenges to the compliance of IHL, especially on the conduct of hostilities by the combatants. Fundamental humanitarian principles such as the principle of distinction between civilians and combatants are hardly abided by the combatants.
Due to the stark disparity in military powers, the weaker armed groups tend to engage in unlawful and prohibited means and methods of warfare. The superiority of the formal military group has rendered the weaker one to, for example, mix combatants with the civilian population, use civilians as human shields, misuse civilian clothing to take part in hostilities, and getting into a variety of guerrilla warfare. More alarmingly, asymmetric warfare causes armed conflicts to take place in densely populated areas. Pain and suffering are generated among innocent lives, including pregnant women, young children, the elderly, and people from all walks of life. This is categorically a violation of the principle of distinction under IHL.
All in all, asymmetric warfare creates a situation for armed groups to have excuses in disregarding and disrespecting the basic tenets of IHL. Ultimately, it is seriously detrimental to protected persons under IHL.
III. ADVANCEMENT OF NEW WEAPONS TECHNOLOGIES
The applicability and implementation of IHL to both domestic and international armed conflicts are under threat in the wake of rapid progress in the deployment of new weapons on the battlefield. Thanks to the advancement of science and technology, the likes of remote-controlled weapons (drones), means of cyber-warfare, chemical, biological and nuclear weapons, and autonomous weapons powered by artificial intelligence are the relatively new inventions adopted on the modern battlefield as opposed to conventional weapons. These new weapons pose a myriad of challenges to the application of century-old IHL. The challenge is whether the foundations of IHL, i.e. the principles of distinction, proportionality, and precautions will be respected where new methods and means of warfare are being adopted.
The use of new weapons is permitted so long as it does not violate the tenets of IHL. In reality, compliance of IHL is hardly seen in this regard. An agonising example is the use of chemical weapons in the Syrian Civil War, which is an indiscriminate attack against its civilian population. This has led to an enormous number of civilian casualties. Even more, although the use of remote-controlled weapons systems (drones) targets adversaries, more often than not, it also kills many innocent civilians including children and women. It cannot be tolerated absolutely.
On top of that, the frequent use of landmine, which is designed to implode automatically when triggered by a certain amount of pressure, has caused unspeakable consequences to the civilian population. The rural people of Tajikistan, eastern Ukraine, and Bosnia and Herzegovina are still suffering from the effects of landmines. Undeniably, their right to life has been severely threatened by this irresponsible use of weapons. These facts indirectly show that the principles of distinction and proportionality are not respected.
In sum, the advancement of new weapons technologies, if left unregulated, will surely bring more harm than benefit to humanity as a whole. Specific international conventions must come into play to ensure that humanity is protected. To this end, there has to be more effective communication between all stakeholders.
Terrorism is a global security challenge in this century. Images of the coordinated bomb attacks killing approximately 300 people in Sri Lanka on Easter Sunday can be vividly recalled. Now, the debate over the nexus between armed conflict and acts of terrorism is still ongoing. And the question that comes to the mind of all key stakeholders is whether IHL has a role to play in tackling terrorism.
There is no universally consistent and accepted definition of terrorism. It can happen during wartime or peacetime. Acts or threats which aim to permeate terror among the civilian population are prohibited by IHL and other types of national and international law. This raises the confusion as to which legal framework is applicable when it comes to terrorism. The lines are blurred. Be that as it may, the legal frameworks governing IHL and terrorism must continuously be distinguished as they are fundamentally different coupled with distinct rationales.
IHL governs armed conflicts between State and non-State parties. It permits both sides to inflict certain lawful acts of violence and prohibits unlawful acts of violence. For example, combatants are entitled to attack against military objectives or against individuals not entitled to protection. Those are lawful targets, while civilian population and persons hors de combat are unlawful targets. Ultimately, the aim of armed conflict is to win over the opponent’s armed forces. On the other hand, any acts of violence labelled under the name of terrorism are always unlawful. Put simply, acts of terrorism are always penalised as criminal acts and bound for prosecution. However, it is important to note that lawful acts of violence permitted during armed conflict under IHL should not be labelled as terrorist acts. Acts like causing injury to legitimate military targets during armed conflict should be allowed. Otherwise, it will discourage non-State armed group to comply with IHL.
Having clarified the fundamental distinction of the legal framework between IHL and terrorism, lawful acts of violence under IHL should not be legally labelled as terrorism whether at an international or domestic level. Otherwise, it would be confusing if an act is lawful under IHL but unlawful under another regime of law.
The discussion above is certainly not an exhaustive one; many other challenges are still entrenched in IHL. Primarily, ensuring respect, compliance and effective implementation of IHL should be the top priority and goal to be achieved. All key stakeholders in armed conflicts, be it State or non-State actors, should honour the duty of fulfilling their obligations in accordance with the law of armed conflict. To that end, State Parties should establish a national committee to advise their government on matters concerning IHL. The key to ensure effective enforcement of the law is to first ensure parties understand the law itself.
Written by Na Chin Aun, final year law student of the Faculty of Law, University of Malaya.
Edited by Corina Robert Mangharam.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 IHL Database: Customary IHL, International Committee of the Red Cross (ICRC). 26 November 2018 <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule47>. Rule 47 Customary IHL: “Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is:
(a) anyone who is in the power of an adverse party;
(b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or
(c) anyone who clearly expresses an intention to surrender;
provided he or she abstains from any hostile act and does not attempt to escape.”
 How Does Law Protect in War: Military Necessity, International Committee of the Red Cross (ICRC). 26 November 2018 <https://casebook.icrc.org/glossary/military-necessity>. The “principle of military necessity” permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.
 These restrictions apply to the type of weapons used, the way they are used and the general conduct of all those engaged in the armed conflict; International Committee of the Red Cross (ICRC), “Methods and Means of Warfare”, 29 October 2010, 26 November 2018 <https://www.icrc.org/en/doc/war-and-law/conduct-hostilities/methods-means-warfare/overview-methods-and-means-of-warfare.htm>.
 Prisoners of War are usually members of the armed forces of one of the parties to a conflict who fall into the hands of the adverse party. The third Geneva Convention provides a wide range of protection for prisoners of war. It defines their rights and sets down detailed rules for their treatment and eventual release; International Committee of the Red Cross (ICRC), “Prisoners of War and Detainees Protected under International Humanitarian Law”, 29 October 2010, 26 November 2018 <https://www.icrc.org/en/document/protected-persons/prisoners-war>.
 The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. They protect people who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war); International Committee of the Red Cross (ICRC), “The Geneva Conventions of 1949 and their Additional Protocols”, 1 January 2014, 26 November 2018 <https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols>.
 Rule 1 Customary IHL: “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”; International Committee of the Red Cross (ICRC), IHL Database: Customary IHL, 26 November 2018 <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1>.
 Fundamental principles of IHL are the principle of humanity; the principle of distinction between civilians and combatants, and between civilian objects and military objectives; the principle of proportionality; and the principle of military necessity (from which flows the prohibition of superfluous injury and unnecessary suffering.); International Committee of the Red Cross (ICRC), “How Does Law Protect in War: Fundamental Principles of IHL”, 26 November 2018 <https://casebook.icrc.org/glossary/fundamental-principles-ihl>.
 The sarin attack in Khan Shaykhun, Syria, on 4 April 2017 was one of the deadliest chemical attacks of the Syrian conflict, as reported by the OPCW’s Fact Finding Mission and by the OPCW–United Nations Joint Investigative Mechanism (JIM); International Committee of the Red Cross (ICRC), “Conference of the States Parties to the Chemical Weapons Convention – 2017”, 30 November 2017, 26 November 2018 <https://www.icrc.org/en/document/twenty-second-session-conference-states-parties-chemical-weapons-convention>.
 Most of the current debate has been generated by the use of armed drones for combat operations, in Afghanistan, Gaza or Yemen for example. Advocates of the use of drones argue that they have made attacks more precise and that this has resulted in fewer casualties and less destruction. But it has also been asserted that drone attacks have erroneously killed or injured civilians on too many occasions; International Committee of the Red Cross (ICRC), “The Use of Armed Drones Must Comply With Laws”, 10 May 2013, 26 November 2018 <https://www.icrc.org/en/doc/resources/documents/interview/2013/05-10-drone-weapons-ihl.htm>.
 Anti-personnel mines leave a long-term legacy of death, injury and suffering. Stepping on a mine will often kill or injure one or more people, frequently children, and have lifelong consequences for the victims and their families. Mine contamination puts vast areas of valuable land out of use, compromising food production and destroying livelihoods. The consequences of anti-personnel mine use on communities and countries often last for decades; International Committee of the Red Cross (ICRC), “Anti-Personnel Mines”, 24 May 2018, 26 November 2018 <https://www.icrc.org/en/document/anti-personnel-mines>.
 United Nations Development Programme, “How landmines hinder development”, 1 April 2019 <https://www.undp.org/content/undp/en/home/blog/2019/how-landmines-hinder-development.html>.