Non-State Actors and International Humanitarian Law: Ethical and Legal Dilemmas in Asymmetric Warfare

Haim V. Levy*

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Abstract:

This article explores the ethical and legal challenges posed by asymmetric warfare to International Humanitarian Law (IHL)[1]. Asymmetric conflicts involving non-state actors, such as the October 7, 2023 operations by Hamas and Hezbollah against Israel, blur the lines between combatants and civilians, complicating adherence to IHL principles. The study examines case studies like these, highlighting the difficulties in enforcing IHL amidst civilian populations. It also discusses the complexities of using civilians as human shields and the challenges of holding both state and non-state actors accountable under international law. The evolving nature of warfare necessitates robust legal frameworks and accountability mechanisms to mitigate humanitarian impacts and uphold human rights in conflict zones.

Keywords:? International Humanitarian Law (IHL); Asymmetric conflicts; Terrorists; Non-state actors; accountability and enforcement of IHL.

Introduction:

This article builds upon my previous work published on The Times of Israel blogs (Levy, 2024), focusing on the complexities of asymmetric warfare and its implications for International Humanitarian Law (IHL) (ICRC, 2021)[2]. It aims to depict and discuss the legal and humanitarian complexities of asymmetric warfare, particularly involving terrorist organizations like Hamas and Hezbollah, thereby contributing to a deeper understanding of the evolving legal dynamics in conflict zones.

The evolving landscape of warfare intersects with international legal frameworks, particularly the ongoing scholarly debate surrounding the relationship between International Human Rights Law (IHRL)[3] and IHL.

Ben-Naftali's edited volume[4] explores practical interactions between IHL and IHRL, examining their complex interplay in contexts such as belligerent occupation, cultural heritage protection, and post-conflict accountability (Ben-Naftali, 2011).

Shany's chapter on 'Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror' explores the challenges of legal frameworks in counter-terrorism efforts (Shany, 2011). He discusses how the shift after 9/11 from a focus on 'law and order' to an 'armed conflict' paradigm has significantly influenced human rights considerations in anti-terrorism strategies. Shany highlights a blended approach that incorporates human rights principles, evident in important legal rulings such as the International Court of Justice's Wall advisory opinion (OPINION, 2004) and Israeli Supreme Court decisions on targeted killings (Israel Supreme Court, 2006). However, Shany also suggests uncertainties remain regarding how this mixed paradigm affects state behavior in practice.

It is important to note that this article does not seek to provide an exhaustive review of the literature but rather to highlight key scholarly contributions that inform the discussion on asymmetric warfare and its legal implications. By analyzing the evolving relationship between IHL and IHRL, I seek to contribute to understanding the complex legal and operational dynamics at play in conflict zones, particularly regarding non-state actors and asymmetric conflicts.

Asymmetric Warfare: An Overview

Asymmetric warfare involves confrontations between state actors and irregular forces that employ unconventional strategies and tactics. Non-state actors, including terrorist groups and proxies backed by fundamentalist states like Iran (such as Hamas, Hezbollah, and the Houthis in Yemen), often lack the resources and capabilities of traditional militaries. This leads them to rely on guerrilla tactics, terrorism, and cyber warfare to achieve their objectives. These groups frequently embed themselves within civilian populations, using them as human shields and launching attacks from residential areas, schools, or hospitals.

For example, ISIS (Islamic State of Iraq and Syria) employed asymmetrical tactics during its control of territory across Iraq and Syria from 2014 to 2019. ISIS fighters integrated themselves among civilians, using towns and cities as bases for attacks against state and international forces. The liberation of Mosul in 2017, a major ISIS stronghold, exemplified the challenges of distinguishing between combatants and civilians in densely populated urban areas. ISIS deliberately used civilians as human shields to deter attacks and hinder military operations.

In Yemen, the Houthis, backed by Iran, have engaged in asymmetric warfare against the Yemeni government and the Saudi-led coalition since 2015. They have employed unconventional tactics such as drone and missile attacks on civilian and military targets in Saudi Arabia and Yemen. These tactics demonstrate the increasing sophistication of asymmetric warfare in modern conflicts, complicating military responses and exacerbating humanitarian crises by targeting civilian infrastructure, including airports, oil facilities, and residential areas.

Additionally, terrorist organizations like Al-Qaeda and its affiliates have historically utilized asymmetric warfare tactics, such as suicide bombings and ambushes, to destabilize governments and undermine security in regions like Afghanistan, Pakistan, and the Sahel region of Africa. These groups operate with agility and adaptability, exploiting local concerns and political instability to recruit fighters and expand their influence.

The Taliban in Afghanistan and Boko Haram in Nigeria have similarly employed asymmetric tactics since the early 2000s. The Taliban uses hit-and-run tactics, ambushes, and improvised explosive devices (IEDs) from remote and mountainous regions to target Afghan and international forces. Boko Haram utilizes tactics like suicide bombings, kidnappings, and raids on villages and military bases, causing significant humanitarian crises. Al-Shabaab in Somalia, another Al-Qaeda affiliate, conducts asymmetric warfare through suicide bombings, assassinations, and guerrilla tactics against the Somali government and African Union peacekeeping forces. The Revolutionary Armed Forces of Colombia (FARC) waged a decades-long asymmetric conflict against the Colombian government, using ambushes, kidnappings, and attacks on infrastructure funded through drug trafficking and extortion. The Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka employed asymmetric warfare tactics, including suicide bombings and assassinations, during their conflict with the Sri Lankan government until their defeat in 2009.

Asymmetric warfare presents significant challenges for the application of IHL, particularly concerning the principles of distinction, proportionality, and necessity , which will be discussed next. The deliberate integration of combatants within civilian populations by terrorist groups obscure traditional boundaries and increases the risk of civilian casualties, posing ethical and legal dilemmas for state actors tasked with upholding humanitarian principles in complex conflict environments.

Non-state actors, such as terrorist groups, often exploit various illegal activities to fund their operations, including drug trafficking. Reports by the United Nations Office on Drugs and Crime (UNODC) highlight how these groups engage in and benefit from illicit drug markets. For instance, the UNODC's World Drug Report 2022 details the complex interplay between drug trafficking and terrorist activities (UNODC, 2022). These groups use the profits from the drug trade to finance their operations, purchase weapons, and sustain their militant activities, which further complicates the principle of distinction in conflict zones. The convergence of terrorism and drug trafficking poses significant challenges for state actors attempting to adhere to IHL. The principle of distinction is fundamentally undermined when combatants blend into civilian populations and use civilian infrastructure for military purposes. By financing their activities through drug trafficking, terrorist groups not only perpetuate violence but also contribute to broader issues of organized crime and instability.

Moreover, the UNODC reports emphasize the necessity for coordinated international efforts to tackle these dual threats. State forces are required to adopt multifaceted strategies that address both the immediate threats posed by terrorist activities and the underlying economic structures that sustain them. This involves not only military action but also measures aimed at disrupting financial networks and enhancing legal frameworks to prosecute those involved in the drug trade and terrorism.

Principles of International Humanitarian Law in Asymmetric Warfare

International Humanitarian Law mandates that parties to a conflict must consistently differentiate between combatants and civilians to safeguard civilians and minimize harm during armed conflicts. However, in asymmetric warfare, non-state actors such as terrorist groups intentionally cloud this distinction. They operate within civilian populations and use civilian infrastructure like schools, hospitals, or residential areas for military purposes, such as storing weapons or launching attacks. This tactic significantly increases the risk of civilian casualties and complicates efforts by state forces to uphold the principle of distinction.

The use of civilians as human shields further complicates the ethical and legal landscape. Although IHL strictly prohibits such tactics, the responsibility for civilian deaths resulting from attacks on human shield targets is complex. State forces must navigate moral imperatives to minimize civilian harm while pursuing legitimate military objectives, often under intense pressure and with limited intelligence capabilities.

During conflicts like the Gaza War, militant groups like Hamas exploit densely populated civilian areas, such as schools and hospitals, to launch indiscriminate attacks, including firing rockets into civilian areas in Israel. This practice not only endangers civilians but also poses significant challenges for Israeli defense forces in distinguishing combatants from non-combatants, blurring the distinction and risking violations of IHL principles (UNODC, 2022).

Assessing proportionality in asymmetric warfare is particularly challenging. This principle mandates that the anticipated military advantage of an attack must be proportionate to the expected civilian harm. In contexts where non-state actors embed themselves within civilian populations, determining the potential civilian casualties versus military gains becomes highly complex. State forces must carefully weigh these factors to avoid excessive harm to civilians while still achieving their military objectives.

Similarly, the principle of necessity dictates that the use of force must be necessary to achieve a legitimate military objective. In asymmetric conflicts, where non-state actors may exploit civilian infrastructure for military purposes, determining the necessity of military actions becomes paramount. State forces must strike a delicate balance between military necessity and the protection of civilian lives and infrastructure to comply with IHL standards.

The humanitarian impact of asymmetric warfare tactics on civilian populations is profound. Beyond physical harm, these tactics inflict psychological, social, and economic suffering on communities caught in conflict zones. The deliberate use of human shields and attacks on civilian infrastructure disrupt essential services, exacerbating civilian vulnerability and prolonging the humanitarian crisis.

State forces continually adapt military strategies to mitigate these challenges. Technological advancements, such as precision-guided munitions and improved surveillance capabilities, aim to minimize collateral damage and enhance the accuracy of targeting military objectives while reducing harm to civilians. Changes in operational tactics, including enhanced intelligence gathering and coordination with humanitarian organizations, are critical in navigating complex conflict environments while upholding IHL principles.

In addressing the complexities of asymmetric warfare, adherence to International Humanitarian Law remains crucial. By exploring these principles through detailed examples and legal considerations, it becomes evident how state forces must balance operational imperatives with ethical obligations to protect civilian lives and uphold humanitarian standards amid evolving conflict dynamics.

Case Study: October 7 Hamas Attack on Israel

Hamas, also known as the Islamic Resistance Movement, is a Palestinian Sunni-Islamic fundamentalist organization recognized as a terrorist group by several countries, including the United States, the European Union, Canada, Israel, and Japan. Operating primarily in the Gaza Strip and the West Bank, Hamas has engaged in armed conflict with Israel, employing asymmetric warfare tactics such as rocket attacks and suicide bombings targeting Israeli civilians?(Levy, 2024).

The October 7, 2023, Hamas attack on Israel starkly exemplifies the severe impact of asymmetric warfare on civilian populations. In this incident, Hamas launched a large-scale and coordinated assault involving rockets, ground assaults, and deliberate attacks on civilians, including the massacre of elderly, men, women, and children, along with the capture of innocent civilians as hostages, targeting civilian areas in Israel. This assault resulted in significant casualties and widespread damage, prompting a robust military response from Israel. Hamas’s tactics, which included using civilian areas in Gaza to launch attacks and deploying terrorists in densely populated regions, exacerbated the difficulty for Israeli forces to conduct operations without endangering civilians. This attack underscores the ongoing challenge of upholding the principle of distinction in environments where combatants and civilians are closely interwoven

Hezbollah's Role in Asymmetric Warfare

Hezbollah, a Shia Islamist political party and militant group based in Lebanon, is supported by Iran, and designated as a terrorist organization by numerous countries, including the United States and Israel. It has engaged in asymmetric warfare against Israel, employing tactics such as rocket attacks and cross-border raids, and maintains a significant military presence in Lebanon.

Hezbollah's involvement has introduced a new dimension to the conflict, creating a multi-front war for Israel. Operating with both military and political arms, Hezbollah mirrors Hamas's tactics by using guerrilla warfare and embedding operations within civilian areas. This strategy not only complicates Israel's ability to respond proportionately but also extends the geographic scope of the conflict, posing additional challenges in adhering to IHL.

The situation also raises legal questions regarding Israel's responses to attacks originating from Lebanese territory. This dynamic suggests that Lebanon, as a sovereign state, may bear responsibility for preventing such attacks or could be seen as complicit in them. This complexity underscores significant issues under international law, particularly concerning the principles of self-defense as outlined in the United Nations Charter. Israel may argue that its actions against Hezbollah are legitimate acts of self-defense, especially if Lebanon fails to prevent Hezbollah from using its territory for hostile actions. Thus, the ongoing situation between Israel and Lebanon, exacerbated by Hezbollah’s activities, highlights intricate legal and geopolitical dynamics in the region.

Accountability and Enforcement of IHL

Enforcing International Humanitarian Law IHL against terrorist organizations presents a complex and daunting challenge due to several interconnected factors. Firstly, the jurisdictional complexities inherent in prosecuting terrorists who operate across borders and under various legal systems hinder effective legal action. Unlike conventional state actors, these groups exploit gaps in international law and jurisdictional ambiguities, making it challenging to establish accountability under traditional legal frameworks.

Secondly, while international legal instruments such as the Geneva Conventions provide foundational norms for the conduct of armed conflicts, they were primarily crafted to regulate state behavior. As a result, they may not fully address the unique tactics and strategies employed by non-state actors like terrorist organizations. This limitation underscores the pressing need for innovative approaches within international law to effectively confront and prosecute terrorism on a global scale.

The International Criminal Court (ICC) represents a potential avenue for prosecuting individuals associated with terrorist groups for the most serious crimes, including genocide, war crimes, and crimes against humanity. However, the ICC's jurisdiction over non-state entities remains limited, posing a significant challenge to achieving comprehensive accountability for terrorist acts worldwide.

Beyond individual criminal accountability, there is also the concept of state responsibility. States that harbor or support terrorist groups may themselves be held accountable under international law. This aspect underscores the importance of robust international cooperation and collective action among states to prevent terrorism and ensure justice for victims of terrorist atrocities.

Moreover, the nature of asymmetric warfare further complicates traditional enforcement efforts against terrorist organizations. These groups increasingly utilize sophisticated tactics such as cyber warfare, improvised explosive devices (IEDs), and the deliberate use of civilian shields. These tactics not only endanger civilian lives but also challenge the application of fundamental IHL principles such as distinction (between combatants and non-combatants), proportionality (limiting civilian harm relative to military objectives), and necessity (using force only when absolutely necessary).

Addressing these multifaceted challenges requires a nuanced and adaptive approach to legal frameworks and enforcement mechanisms. Efforts to enforce IHL against terrorist organizations must navigate these complexities to effectively deter, prosecute, and hold accountable those responsible for grave breaches of international humanitarian norms. This entails integrating innovative technologies, strengthening international cooperation mechanisms, and upholding humanitarian principles amidst evolving global security dynamics. It also necessitates continuous adaptation of legal and operational strategies to stay ahead of the evolving tactics and threats posed by terrorist groups worldwide.

Asymmetric warfare raises profound questions about accountability and the enforcement of IHL. Non-state actors often operate outside international norms, and their decentralized structure complicates efforts to hold them accountable for violations, contrasting sharply with the strict standards to which state actors are held (United Nations Office on Drugs and Crime, 2022). State actors face legal and reputational consequences for breaches of IHL, whereas the accountability of non-state actors can be more elusive, creating perceptions of bias and potentially undermining the legitimacy of IHL enforcement mechanisms. The International Criminal Court (ICC) encounters significant challenges in prosecuting non-state actors for war crimes, primarily due to jurisdictional and enforcement issues (International Committee of the Red Cross, n.d.;).

Holding heads of state and military leaders accountable for violations of IHL in asymmetric warfare poses significant challenges in terms of evidencing responsibility. Leaders are often removed from direct actions on the ground, making it complex to attribute specific acts to them. The principle of command responsibility holds that superiors can be held liable for war crimes committed by their subordinates if they knew or should have known about the actions and failed to prevent them or punish the perpetrators (UNODC, 2022). However, establishing the necessary knowledge and intent is particularly difficult in the chaotic and dispersed nature of asymmetric conflicts.

A notable example is the trial of former Liberian President Charles Taylor by the Special Court for Sierra Leone. Taylor was convicted of aiding and facilitating war crimes and crimes against humanity committed by rebel groups in Sierra Leone. Proving his guilt required extensive evidence linking him to the rebels’ actions and demonstrating his knowledge and support of their operations ?(Special Court for Sierra Leone, 2012). Similarly, the International Criminal Court’s indictment of Sudanese President Omar al-Bashir for genocide, war crimes, and crimes against humanity in Darfur involved gathering substantial evidence to establish his command responsibility and direct involvement in the atrocities ?(International Criminal Court., 2009 ). The allegations against al-Bashir included orchestrating attacks against civilians, directing military operations targeting ethnic groups, and overseeing widespread human rights abuses.

These cases underscore the complexities and challenges of holding high-ranking officials accountable under IHL in asymmetric warfare, where leaders may be shielded from direct responsibility and evidence collection is often hindered by the chaotic nature of conflict zones.

Prosecutions of heads of state or high-ranking military officers in democratic countries for such crimes are uncommon compared to situations in non-democratic or conflict-affected countries. Democratic nations uphold strong legal and political frameworks that prioritize accountability and adherence to international law, serving as deterrents to these offenses. In Israel, for instance, the High Court plays a crucial role in overseeing the legality of military actions and ensuring compliance with domestic and international legal standards. Additionally, allegations of violations of IHL are subject to thorough investigation and prosecution by military and civilian investigative bodies. These procedures aim to uphold transparency, accountability, and the rule of law, both domestically and within international legal frameworks.

Conclusion

Asymmetric warfare poses profound challenges to the application and enforcement of International Humanitarian Law. The blending of roles between combatants and non-combatants, exacerbated by tactics such as the use of civilians as human shields, complicates the legal and ethical landscape of armed conflict. Issues of proportionality and necessity further underscore the complexities faced in ensuring adherence to IHL principles.

Addressing these challenges necessitates exploring measures such as imposing international sanctions on states supporting terrorism, like Iran, which sponsor proxy groups involved in asymmetric warfare. Such actions are crucial for deterring violations of IHL and promoting accountability among state and non-state actors alike.

Moreover, accountability extends to holding terrorist leaders responsible for their actions, alongside state leaders who sponsor terrorism, such as Iran. This includes ensuring that those who plan, authorize, or facilitate attacks against civilians or commit other war crimes are held legally accountable under international law. Enforcing accountability not only upholds the rule of law but also protects human rights and provides justice for victims of terrorist atrocities.

The international community faces significant challenges due to disparities and intense race between Western countries led by the USA and rising powers like China, Russia, North Korea, and Iran. These geopolitical dynamics often lead to divergent approaches to conflict resolution and enforcement of international norms. Competing interests and strategic conflicts can hinder unified responses to humanitarian crises and the effective implementation of legal frameworks designed to protect civilians and uphold human rights.

Looking ahead, continued scholarly inquiry, policy innovation, and international cooperation are essential. These efforts should prioritize safeguarding human dignity, minimizing civilian suffering, and upholding the integrity of IHL amidst evolving global security dynamics. By addressing these complexities comprehensively, we can navigate the ethical and legal dilemmas posed by asymmetric warfare, ultimately striving for a more just and humane approach to armed conflict.

References

Ben-Naftali, O. (2011). International Humanitarian Law and International Human Rights Law . Oxford University Press.

ICRC. (2021). Retrieved from ICRC Database, Customary IHL , Rules - Customary IHL: https://ihl-databases.icrc.org/en/customary-ihl/v1

International Criminal Court., Prosecutor v. Omar Hassan Ahmad Al Bashir. Case No. ICC-02/05-01/09. (International Criminal Court. March 4, 2009 ).

Israel Supreme Court, HCJ 769/02, Judgment Public Committee Against Torture in Israel v. Government of Israel (Supreme Court of Israel, December 11, 2006).

Levy, H. V. (2024, June 26). The Complexities of Asymmetric Warfare: Legal and Ethical Challenges in Modern Conflict. Retrieved from THE TIMES OF ISRAEL: https://blogs.timesofisrael.com/the-complexities-of-asymmetric-warfare-legal-and-ethical-challenges-in-modern-conflict/

Levy, H. V. (2024, May 24). The Inevitable Truth about Hamas: A Lesson for Protesters on US University Campuses. Retrieved from Times of Israel: https://blogs.timesofisrael.com/the-inevitable-truth-about-hamas-a-lesson-for-protesters-on-us-university-campuses/

OPINION, I. A. (2004). Legal Consequences cf the Construction of a Wu11 . The Hague: I. C. J. Reports.

Shany, Y. (2011). Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror. In O. Ben-Naftali, International Humanitarian Law and International Human Rights Law (pp. 13–33). Oxford University Press.

Special Court for Sierra Leone, Case No. SCSL-03-01-T. (Special Court for Sierra Leone. Prosecutor v. Charles Ghankay Taylor. April 26, 2012).

UNODC. (2022). Retrieved from United Nations Office on Drugs and Crime: https://www.unodc.org/unodc/en/data-and-analysis/world-drug-report-2022.html

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*Dr. Levy is a scientist, entrepreneur, founder and CEO in Bio-Pharma & medical devices, also a lawyer.

[1]For general information refer to ICRC: publication International Human Law,?? icrc-002-0703.pdf .

[2]For further reading see for example, The Handbook of International Humanitarian Law. This handbook offers an in-depth understanding of the development and current challenges of the law of armed conflicts. It addresses legal and policy issues from the perspectives of academics, as well as military and diplomatic practitioners.

[3] International Humanitarian Law- International Huma Rights Law:? dp_consult_3_ihl_and_ihrl_web.pdf ( icrc.org )

[4] The volume under review is published in the series ‘The Collected Courses of the Academy of European Law,’ which draws upon the lectures given at the European University Institute in Florence within the Academy of European Law Summer School.?