Challenges to International Law in the 21st Century [2/4]

Since the 1940s, States have been guided on what is considered appropriate when faced with threats to international and domestic security. In the 21st Century however, the nature of war has shifted considerably; new threats in the form of non-state actors and advanced technology means state centric laws are no longer as pertinent. This four part blog will discuss the various challenges international law is being faed with following the changes to nature and security. 

A considerable challenge faced by international law is the one brought by asymmetric warfare.

Defined as: “strategies and tactics adopted by a force when military capabilities… are so significantly different that they cannot make the same sorts of attacks on each other,” asymmetrical warfare is the modern style of conflict due to the changing characters of war and state responses. This new style of warfare has only thrown more challenges at the legal principles of war as they now must respond to the question of non-state actors.

The fracturing of the Soviet Union, in particular the re-emergence of enclaves, and the factional power shifts in the Middle East have led to the proliferation of non-state actors. This pushes the question of how does a state engage in conflict with groups who are not party to international treaties, and have no interest in them.

Already, there have been examples of states attempting to manoeuvre around this impasse. For example, in the case of Hamdam v. Rumsfeld (2004), the U.S Supreme Court rejected the Government’s attempt to argue that Al-Qaeda was not a state and therefore it did not have to apply the Geneva Convention when engaging in conflict. Furthermore, the General Provision of Art.2 of the Geneva Convention explains that “although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it.”

 

Salim Ahmed Hamdan, second from left, appears with appointed council during a preliminary hearing, Aug. 24, 2004

Whilst this is justifiable when engaging in conflict in traditional battlefields, the clarity of what actions are permissible becomes muddled when civilian life is brought into question. “If a tank is parked inside a schoolyard, is it legitimate to strike?” (Cited by Singer, 2009: 389).

A key principle of war law is that “a clear separation is to be kept between those who take a direct part inhostilities and those who don’t.” An ‘Erga Omnes’ rule; if conflict must take place, civilians should not be threatened. This is no longer so clear. While it is still understood that States are not to engage in any conflict which puts non-combatants at risk, non-state actors have recognised this and used it to their advantage. Asymmetrical warfare has enabled non-state actors to use these legal principles and exploit them to their benefit.

Clear examples of this is the use of human shields, where those involved are not always willing volunteers, but rather their “proximity to the fray…was enough to brand them asweapons…thereby stripping them of some of the protections international humanitarian law (IHL) bestows on civilian,” (329). These new types of tactics have been noted to be “extremely effective in countering the normally vastly superior military capabilities of the other party,” (33).

Additionally, non-state actors have responded to the battlefield flattening force of State armies by moving into urban settings, with the complete understanding that this will severely hinder a State’s ability to engage. Due to the legal principles, States are prohibited from engaging whilst also inadvertently putting more civilian lives at risk. International law therefore, and its attempt of providing protection and order, is being challenged by the changing actors of war.