This article is written by Ms. Anjali Singh Bagri, a Third-year student of NMIMS, Indore.

ABSTRACT

The disparity between the fighting parties’ military capabilities (e.g., in terms of weapon technology, equipment, intelligence information, and number of troops) is what defines asymmetric warfare. The classical law of armed conflict was deliberately created to balance the interests of the parties fighting a symmetrical war. However, because asymmetric warfare is inherently different from conventional combat, it necessitates a unique set of substantive standards and specific enforcement mechanisms. The law of asymmetric warfare must reject the conventional division between jus ad bellum and jus in bello and require the powerful actor to recognize its institutional and normative duties to civilians who are vulnerable to its military might. The essay describes a trustworthy system of examination that should be applied to the discretionary powers it has under the law, including the ability to prevent disproportionate harm to civilians and determine what measures to take in advance of an assault.

INTRODUCTION

The wars that are fought between two or more governments’ armies on a conventional battlefield, with the soldiers’ skills and the military leadership standing between success and defeat, are very different from the battles that occur today. These days, battles are fought more often between parties with distinct legal statuses and vastly diverse military capabilities, structures, and commando structures than between governments on the front lines. Asymmetric conflicts arise when the parties have different strengths, either qualitatively or quantitatively. The wide phrase “asymmetric warfare” refers to scenarios in which one side in an asymmetric armed conflict uses illicit means and techniques—which are not always military—to defeat an adversary that possesses military might.

Unquestionably, irregular warfare that transcends national boundaries causes civilian casualties from war’s horrors to increase. These days, it is typical for fighting to occur in urban areas, carried out by individuals whose combatants status may be called into question, and directed towards targets that, according to international humanitarian law, should be safe from attack.

ASYMMETRIC WARFARE

The underlying issues with some of the previous attempts to describe asymmetric warfare have not been well-identified. For example, “a conflict involving two states with unequal overall military and economic resources” was the definition of asymmetric warfare in the past. The term was altered in response to the 9/11 terrorist attacks. “Leveraging inferior tactical or operational strength against [the] vulnerabilities of a superior opponent to achieve disproportionate effect with the aim of undermining [the opponent’s] will in order to achieve the asymmetric actor’s strategic objectives” is the current definition of asymmetric warfare provided by someone.

This concept has the benefit of not being restricted to armed conflicts between states, but it hasn’t added much because nearly all armed wars have been asymmetric. In combat, asymmetrical tactics encompass power, means, organisation, values, and time. Participatory, technological, normative, doctrinal, or moral asymmetry can all exist. That is to say, there has always been some degree of asymmetry in conflicts. For example, due to the US armed forces’ technological advantage, any military war involving the US will by definition be asymmetrical. This also applies to any armed confrontation in which non-State actors—whether they be terrorists, rebels, partisans, or resistance fighters—are involved.

Asymmetric warfare is exemplified by events such as the bombing near the Indian Embassy in Kabul, the attack on the Indian Parliament in 2001, the bombing of the German Bakery in Pune in February 2010, and the attacks on Mumbai’s 26/11 kind of infrastructure. The concept underlying these attacks can be used to any military scenario when an opponent with less technical expertise manages to obtain an edge using comparatively easy methods. An evident example is the landmine, sometimes known as an IED, which is not only inexpensive and simple to place, disperse, and trigger, but also challenging for an adversary to identify or neutralise.

ASYMMETRIC WARFARE AND NON- COMBATANTS 

The law of armed conflict and moral perspectives on war both acknowledge the critical need of protecting noncombatants from direct, intentional injury during armed conflicts. In fact, it has played a significant role in both the legal and moral discourses on war since World War II, making it a particularly notable aspect of both. However, asymmetric warfare presents serious obstacles to the task of shielding civilians from harm during hostilities. During such combat,

It’s not always easy to identify noncombatants, and various parties to the war may have different ideas about them—some even going so far as to deny that the adversary even possesses noncombatants. Furthermore, the very description of asymmetric warfare suggests that the means at each party’s disposal and in use throughout the fight are of differing kinds, meaning that various criteria may apply to each weapon and its target. Accountability is another problem. Noncombatant immunity violations are punishable as war crimes, however due to the erratic nature of one side’s forces in asymmetric warfare, it is very difficult to investigate and prosecute alleged crimes. As a result, troops in the occupying force might be held to a higher level than those in the occupying force.

CHALLENGES FOR INTERNATIONAL HUMANITARIAN LAW

Unconventional warfare techniques and irregular tactics are characteristics of asymmetric confrontations. The use of terrorism, ambushes, and guerilla warfare by non-state actors makes it more difficult to apply conventional IHL principles. States that adhere to established norms of engagement and legal standards face hurdles as a result of these strategies’ flexibility and adaptability.

It becomes vital to consider how IHL handles strategies that depart from accepted norms. Do these asymmetric warfare methods fall under the purview of established rules, or does IHL need to change to include a wider variety of tactics?In asymmetric warfare, enforcing adherence to IHL is a significant challenge. It is possible that non-state actors have not ratified international legal agreements, which begs the question of how well legal systems work to hold them responsible. Furthermore, assigning blame for infractions is made more difficult in several asymmetrical confrontations due to the absence of a centralised command structure.

States that use asymmetric warfare may contend that departing from accepted legal rules is justified by the conflict’s unusual nature. This conflict between non-state actors’ flexibility and the strictness of current legal frameworks emphasises the necessity of a sophisticated strategy for asymmetric warfare enforcement measures.

Advanced technology is frequently integrated into asymmetric wars, such as unmanned aerial vehicles (UAVs) and cyberwarfare. The application of current IHL principles is called into doubt by the employment of technology in conflict. For example, when one takes into account the possible effects of sophisticated weaponry on civilian populations, the concepts of proportionality and differentiation become more nuanced.

The emergence of cyberwarfare poses difficulties in assigning blame and figuring out the proper legal retaliation. The increased reliance of both states and non-state actors on technology in asymmetric conflicts necessitates an adaptation of IHL to meet the legal implications of these advances.

PROTECTING CIVILIANS IN ASYMMETRIC WAR

A cornerstone of IHL is the protection of civilians. Effective civilian protection is difficult in asymmetric warfare, though, because of the incorporation of non-state actors into civilian populations and the employment of irregular tactics. In the asymmetric situation, the principle of proportionality—which forbids strikes that could injure civilians more severely than the expected military advantage—faces formidable obstacles.

In order to improve civilian protection in asymmetric warfare, it is necessary to reevaluate international humanitarian law (IHL) standards and create plans to lessen the effects of hostilities on civilians. Long-term civilian safety also depends on tackling the underlying causes of asymmetrical wars, such as socioeconomic issues and political instability.

ADAPTING INTERNATIONAL HUMANITARIAN LAW

It is imperative that IHL be modified in order to properly handle the changing nature of armed conflicts, given the particular difficulties presented by asymmetric warfare. Some possible ways to improve the application and efficacy of IHL in asymmetric circumstances are as follows:

1. Adaptable Frameworks: To better address the varied character of asymmetric conflicts, IHL ought to include more adaptable frameworks. This involves acknowledging the validity of some unconventional strategies employed by non-state actors as long as they follow the basic rules of proportionality and differentiation.
2. Including Non-State actors: It is important to work towards persuading non-state actors to voluntarily abide by IHL rules. Political and diplomatic actions can be extremely important in encouraging non-state actors involved in asymmetric warfare to comply and feel accountable.
3. Regulations Particular to Technology: Since technology is still a major factor in contemporary conflict, IHL ought to create regulations that specifically address the employment of cutting-edge weapons, cyber capabilities, and autonomous systems. Establishing guidelines for the appropriate use of technology in order to protect the values of IHL and reduce harm to civilians is part of this.
4. Strengthening Enforcement Mechanisms: State and non-state actors should both be subject to investigations and prosecutions for violating international humanitarian law (IHL), according to the international organisations in charge of upholding it. To handle the particular difficulties presented by asymmetric conflicts, this may include establishing specialised tribunals or expanding the authority of already-existing international courts.
5. Education and Training: A thorough education in international humanitarian law (IHL) should be provided to states, armed forces, and non-state actors. Particular attention should be given to the difficulties posed by asymmetric conflict. Improved knowledge and instruction can aid in improving adherence to local standards.

CONCLUSION

In conclusion, the problems presented by asymmetric warfare necessitate a reevaluation and adaptation of international humanitarian law (IHL) as the terrain of armed conflicts changes. The conventional division between jus in bello and jus ad bellum needs to be reevaluated in light of the particularities of wars with divergent military prowess and non-traditional strategies. In asymmetric warfare, the protection of civilians—a cornerstone of international humanitarian law—faces significant challenges that call for a nuanced application of proportionality and difference.

In order to overcome these obstacles, IHL should develop by incorporating flexible frameworks that recognise the legitimacy of nontraditional approaches as long as they follow fundamental guidelines. Encouraging non-state actors to voluntarily comply with IHL norms through diplomatic and political channels is essential, as is the development of laws tailored to the rapidly advancing technologies of contemporary warfare. To guarantee accountability for infractions, enforcement mechanisms—such as specialised tribunals for asymmetric conflicts—need to be strengthened.

Furthermore, promoting adherence to ethical principles is greatly aided by IHL education and training that is specifically designed to address the challenges posed by asymmetric warfare. Ultimately, preserving the integrity of armed conflict rules and the welfare of civilians caught in the crossfire will need a forward-thinking and all-encompassing strategy to adjusting international humanitarian law as we traverse the complicated terrain of conflicts in the twenty-first century.

REFERENCES

1. https://www.diva-portal.org/smash/get/diva2:575506/FULLTEXT01.pdf 
2. https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1089&context=ils 
3. https://law.bepress.com/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1151&context=taulwps 
4. https://www.airuniversity.af.edu/Portals/10/ASPJ_French/journals_E/Volume-06_Issue-1/johnson_e.pdf 
5. https://www.idsa.in/idsacomments/TheChallengesofAsymmetricWarfare_kcdixit_090310#:~:text=Asymmetrical%20threat%20refers%20to%20the,less%20significant%20between%20opposing%20forces.