Contemporary challenges for IHL

29-10-2010 Overview

In contemporary armed conflicts, the challenge of upholding humanitarian values is not the result of a lack of rules but a lack of respect for them. There are currently a number of challenges to IHL that need to be addressed by the international community in such areas as terrorism, internment, the conduct of hostilities, occupation, and sanctions.

There is no comprehensive international legal definition of terrorism. IHL does not define it, but it does explicitly prohibit most acts committed against civilians and civilian objects during an armed conflict that would, if committed in peacetime, commonly be considered as “terrorist”.

A recent challenge for IHL has been the tendency of States to label as terrorist all acts of warfare against them committed by armed groups, especially in non-international armed conflicts. This has created confusion in differentiating between lawful acts of war, including such acts committed by domestic insurgents against military targets, and acts of terrorism.

There is considerable controversy on the legal qualification of the “global war on terror.” The ICRC does not hold the view that a global war is being waged. It prefers a case-by-case approach.
The ICRC believes it is dangerous and unhelpful to try to apply IHL to situations that do not amount to war.

There is a continuing challenge in interpreting existing provisions of IHL in relation to internment (or administrative detention). States, in drafting anti-terrorism legislation, have increasingly resorted to administrative detention. There is no international agreement on the legality of this. In response the ICRC has drafted guidelines on procedural principles and safeguards for internment or administrative detention in armed conflict and other situations of violence.

Regarding the conduct of hostilities, inequalities often exist between belligerents in today’s conflicts, particularly in terms of weaponry and technology. The weaker party may resort to using civilians as shields, attacking “soft targets” that cause civilian casualties and targeting civilians to generate propaganda to undermine the position of the stronger party. The weaker side in such conflicts has often threatened the use of chemical and biological weapons. All these breach IHL. The stronger party may in turn use the actions of the weaker to justify relaxing its own standards, the so-called “spiral-down effect”.

IHL essentially distinguishes between two categories of people in armed conflict, members of the armed forces and civilians. In contemporary armed conflict there is a blurring of civilian and military functions. Added to the difficulty of distinguishing between civilians and the military is the problem of civilians who directly participate in hostilities.

In recent years occupation law has been challenged as the types of occupation have become more complex. The ICRC intends to analyse whether and how the rules of occupation law might need to be reinforced, clarified or developed.

Achieving greater respect, implementation and enforcement of IHL remains an abiding challenge for the international community and a constant priority of the ICRC. This is the responsibility of parties to a conflict, State or non-State, but also requires action by States in peacetime. In addition sanctions of a disciplinary or criminal nature must be adopted.

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