Asymmetric warfare and challenges for international humanitarian law : Civilian direct participation in hostilities and state response

Abstract: Most conflicts today are asymmetric, meaning that the parties differ in terms of qualitative and quantitative strenght. The definition of asymmetric warfare used in this thesis is when one party to the conflict is a non state-actor seeking to defeat a state opponent by using means and methods that are prohibited under international humanitarian law. In this thesis, three specific challenges in contemporary international humanitarian law are lined out: the fact that most armed conflicts today are non-international in character whereas most rules pertaining to armed conflict governs international armed conflicts means that regulation becomes unclear due to diverse interpretation. Further, when non-state adversaries use means and methods not in line with IHL, it leads to a downward reciprocal spiral where reprisals become an unwelcomed element of warfare. Lastly, when warfare is taking place in urban environments rather than on traditional battlefields, the risk is apparent that innocents will be affected by hostilities, as those who participate in the conflict blend in with the civilian population and use civilian objects as a cover for operations. Who is considered to be directly participating in hostilities is a main question in this thesis, and the discussion is based on ICRC’s Guidance on Direct Participation in Hostilities. One important question in the Guidance is how to determine the temporal and material scope of participation, and how to avoid the “revolving door”-effect of civilian participation in hostilities. The answer to this question is important since great military powers such as the U.S. and Israel seek to fight terrorism by the targeting and detaining of individuals that are deemed to pose a security risk. These policies requires due assessment of whether the person in question has lost immunity under international humanitarian law. ICRC has sought to remedy the problem by introducing the concept of continuous combat function, the effect of which is discussed in the thesis.