Asymmetric Transnationalization of Warfare and the Core Principles of International Humanitarian Law

The major task of international humanitarian law (IHL) has always been to strike the 'right' balance between military necessity and humanitarian considerations. This task is made more pronounced in the context of asymmetric transnational armed conflicts. Asymmetric transnational armed conflicts occur where an armed conflict exists, in which a state deploys its armed forces against a non-state armed group operating from outside its territory; when the actions of the latter are not attributable to the state from which it operates; and the non-state actor employs tactics that bring about the dynamics of asymmetric warfare.

This nature of armed conflict places severe pressure and challenge on the compliance with basic rules and principles of IHL. This challenge has been felt in the case of Israel on its war with the Hezbollah in Lebanon in 2006, and to a large extent, in operations Cast Lead of 2008-2009 and Protective Edge of 2014 against Hamas in the Gaza Strip. These incidents exhibit the substantive characteristics of asymmetric transnational armed conflicts. Similarly is the case of Boko Haram incursions from Cameroon, Chad and Niger into Nigeria and against Nigerian armed forces backed by ISIS, Al-Qaeda and Al-Shabaab.

There have been controversies over the tactics engaged by non-state actors which significantly stretches the principles of IHL, especially the principles of distinction between civilians and combatants. The dynamics of asymmetric transnational armed conflicts give rise to complex problems under humanitarian law. Indeed, non-state actors seldom hold territory in classical sense, and usually, they do not aspire to forcibly take territory from states. Their goals are generally limited to the continuous harassment of armed forces, using guerilla tactics or the terrorization of civilians by launching indiscriminate attacks. If they can survive an attack launched by a state, that is to say, if they can still engage in some level of guerilla action, or attacks on civilians, a few weeks into the operations, by this mere fact, they deny the state its main objective. Due to their decentralized nature and their use of guerilla tactics, physically preventing all activities by a non-state armed group is virtually impossible, at least without acquiring complete effective control over the relevant territory. However, extended military occupation, as is well known, raises a host of problems, and is likely to give rise to further security concerns, resulting in a vicious cycle of occupation, insurgency and counter-insurgency.

Asymmetric transnational armed conflicts give rise to additional and unique challenges, which derive cumulatively from their being both asymmetric and transnational. The traditional under-regulation of such conflicts can result in a responsibility gap concerning non-state actors, which in turn generates a protection gap in relation to the civilian population. For instance, in traditional international armed conflicts, each state party is under obligation to take the maximum feasible precaution to protect its 'own' civilians from the consequences of warfare. In asymmetric transnational armed conflicts, however, the civilian population located in proximity to the operations of the non-state party is caught in a triple -bind: 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.

Meaning and Nature
It is important to note that neither the term 'asymmetric warfare' nor the sometime synonymously employed terms 'fourth - generation warfare' or 'non - linear war' have thus far been concordantly defined. Again, neither the term 'asymmetric' nor 'transnational' are legal terms. Both are terms connoting factual situations that might give rise to complex questions of legal interpretation. The terms are not currently recognized as distinct categories of conflicts in positive international law.

Transnational armed conflicts are sometimes asymmetric but there is no necessary correlation between the terms. Indeed transnational armed conflicts can in theory be symmetric (for instance, when non-state actor across the border operates in scope and methods that resembles regular armed forces of a state; or conversely when both parties, state and non-state actor, employ guerilla tactics); just as international armed conflicts can be asymmetric (for instance, when a regular army faces decentralized armed resistance during occupation).

The term asymmetric transnational armed conflict can be elusive in comprehension. However it refers to the following situations which may be cumulative in nature:

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. The actions of the non-state actor are not attributable to the territorial state if such a state exists;
The deployment of the forces is not an intervention in an internal armed conflict, conducted with the territorial state's consent; and 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.

In the first condition, we presuppose the existence of an armed conflict, at least at some point in time, which is a precondition for the application of IHL in a specific case. As stated though not within the context of transnational conflicts, by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), in the famous Tadic case:

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.

The determination whether an armed conflict exists in a specific instance is crucial, since if this is not the case, state actions are regulated strictly by the international law of human rights (IHRL), a body of law which severely restricts the use of lethal force, and which might well apply also to a states extra - territorial actions. Threshold for the existence of armed conflict must be determined, since otherwise states could always derogate from, or even abrogate, their human rights obligations, by arbitrarily declaring that a certain situation amounts to an 'armed conflict'.