Contemporary challenges for IHL
In contemporary armed conflicts civilians are the primary victims of violations of IHL committed by both State and non-State parties. The nature of contemporary armed conflicts continues to provide challenges for the application and respect of IHL in a number of areas, ranging from the classification of armed conflicts to the use of new technologies. There is a need to understand and respond to these challenges to ensure that IHL continues to perform its protective function in situations of armed conflict.
The increasing complexity of armed conflicts has given rise to discussions over the notion and typology of armed conflicts, including whether the IHL classification of conflicts into international (IAC) and non-international (NIAC) is sufficient to encompass the types of armed conflicts taking place today. The ICRC believes that to be the case, while recognizing that there is an increasing number of different factual scenarios that may be classified as NIAC.
The interplay between IHL and human rights law continues to have practical consequences on the conduct of military operations. The relationship between human rights law and IHL impacts issues related to detention, as well as to the use of force, in both international and non-international armed conflicts, as well as the extraterritorial targeting of persons.
In contemporary armed conflicts the protective scope of IHL remains of utmost concern. In many situations States are unable or unwilling to meet the basic needs of civilians and in such situations IHL provides that relief actions may be undertaken by other actors, including humanitarian organizations, subject to the agreement of the State. However, there remain many obstacles to humanitarian access, including military, political and security-related concerns, which hinder the provision of assistance to civilians in need.
In recent years extraterritorial military operations have given rise to new forms of military presence in the territory of a State and refocused attention on the rights and duties of an occupying power, the regulation of the use of force in occupied territory and the applicability of the law of occupation to UN forces. The responsibilities and tasks assigned to multinational forces have also evolved to encompass a spectrum of operations including conflict prevention, peace-keeping, peace-making, peace-enforcement and peace-building. The multifaceted nature of these operations means multinational forces are more likely to use force and raises the question of when and how IHL will apply to their actions.
A wide array of new technologies has entered the modern battlefield. Cyberspace has opened up a potentially new war-fighting domain. Remote controlled weapons systems such as drones are increasingly being used by the parties to armed conflicts. Automated weapons systems are also on the rise, and certain autonomous systems such as combat robots are being considered for future use on the battlefield. There can be no doubt that IHL applies to these new weapons and the employment of new technology in warfare. However, these new means and methods of warfare pose legal and practical challenges in terms of ensuring their use complies with existing IHL norms, and also that due regard is given to the foreseeable humanitarian impact of their use.
Hostilities pitting non-State armed groups operating within populated areas against government forces using far superior military means are also a recurring pattern, exposing civilians and civilian objects to the effects of hostilities. The intermingling of armed groups with civilians, in violation of IHL, has by some armies been used as a justification to by-pass the taking of all possible precautions to minimise risks to civilians, as required by IHL. In this context, the effects of the use of explosive weapons in densely populated areas on civilians and civilian structures continue to be of concern.
An ongoing challenge to the protection of civilians is the inadequate regulation of the availability and the misuse of conventional weapons. Under the Geneva Conventions and customary international law, States have an obligation to ensure respect for IHL. This includes a responsibility to ensure that the arms and ammunition they transfer does not end up in the possession of persons who are likely to use them to violate IHL. An Arms Trade Treaty, which the ICRC supports, is meant to address some of those concerns.
A recent challenge for IHL has been the tendency of States to label as ‘terrorist’ all acts of warfare committed by non-State armed groups against them, especially in non-international armed conflicts. While armed conflict and acts of terrorism are different forms of violence governed by different bodies of law, they have come to be perceived as almost synonymous due to constant conflation in the public domain. The use of the term ‘terrorist act’ in the context of armed conflict causes confusion between the two separate bodies of law and may lead to a situation where non-State armed groups disregard IHL norms because of a perception that they have no incentive to abide by the laws and customs of war. The designation of some non-State armed groups as ‘terrorist groups’ also has significant implications for humanitarian engagement and may impede humanitarian action.
IHL is continually challenged by the evolution of contemporary armed conflict. Achieving greater protection for civilians in armed conflict is dependent on the respect, implementation and enforcement of IHL. It is the constant priority of the ICRC to ensure that IHL is able to adequately address the realities of modern warfare and provide protection to victims of armed conflict.