Contemporary Challenges in International Humanitarian Law

This presentation highlights the current pressing problems and challenges in compliance and enforcements of the law of armed conflict.

1. Some Contemporary Challenges IHL

2. Presentation by Major General Nilendra Kumar Executive President , Indian Society of International Law. NK Photo

3. IHL LECTURE SERIES

4. NEW ISSUES 1. Urbanization 2. New technologies 3. Challenges of civilians in long conflicts 4. Non-state armed actors 5. Terrorism & counter terror 6. Climate, armed conflicts & natural environment 7. Enhancing respect for IHL

5. CHALLENGES SHOWN IN ICRC REPORT These provide an overview of some of the major challenges.

6. URBANIZATION OF ARMED CONFLICTS As the world urbanizes, so do the conflict. Use of explosive weapons are major causes of death and injuries to civilians.

7. INVASION OF IRAQ AS CASE STUDY 1. Need to target dual use infrastructures 2. Constitutive relationship between warfare and migration .

8. ROBOTIC WARFARE 1. Military use of lethal autonomous weapons. 2. Blurring lines between science and fiction. 3 . Force multiplier a military necessity. 4. Robo ethics .

9. POPULATED AREAS AS BATTLE ZONES Non-State armed groups operating within populated areas against government forces. This makes civilians and civilian objects treated as targets during the hostilities.

10. PROBLEM Conflict is migrating into villages, towns and cities, but governments and non-state actors are continuing to use weapons designed for open battle fields.

11. CONSEQUENCES   Use of explosive weapons in densely populated areas, e xamples ; Afghanistan Libya Syria Ukraine Yemen

12. NEW TECHNOLOGIES OF WARFARE 1. Cyber operations 2. Autonomous Weapon Systems 3. Artificial Intelligence 4. Potential use of weapons in outer space 5. Legal review of new weapon systems.

13. CHALLENGE Applying pre-existing legal rules to a new technology may raise the question whether the rules are sufficiently clear in light of the technology’s specific characteristics and foreseeable humanitarian impact?

14. LONG CONFLICTS CAUSE FOLLOWING PROBLEMS 1. The problems of internally displaced persons. 2. Protection of persons with disabilities. 3. Access to education during armed conflicts.

15. EXAMPLES OF LONG DURATION CONFLICTS 1. Rwanda civil War (1990-94) 2. Sierra Leon Civil War (1991-2002) 3. Algerian Civil War (1991-2002) 4. Somalia Civil War (1991-ongoing) 5. Burundian Civil War (1993-2005) 6. Armenian-Azerbaijan conflict (1994-ongoing) 7. countless more

16. IHL AND NON-STATE ARMED GROUPS 1. Multiple NSAGs in conflicts. 2. Protection of person living in territory controlled by NSAGs. 3. Detention/Hostages by NSAGs.

17. KEY QUESTIONS 1. What should be the mechanism for holding NSAGs accountable for IHL violation? 2. Can states and international actions enhance engagement with an NSAGs to improve respect for IHL?

18. TERRORISM AND COUNTER TERRORISM 1. Applicability of IHL to fighting terror. 2. NSAGs designated an terrorists. 3. Counter terrorism measures. 4. Foreign fighters.

19. FOREIGN FIGHTERS They are usually merely prosecuted for being members of a terrorists organizations and not for criminal and brutal acts. It often lets them get away with light sentences.

20. THREE SOURCES OF LAW IN NIAC SITUATIONS 1. Common Articles 3 (CA 3). 2. AP II. 3. Customary international law (state practice and Opino Juris )

21. ICTY TRIAL CHAMBER BOSKOSKI CASE Five Indicators in case of foreign fighters 1. The group’s command structure. 2. The group’s ability to carry out operations in an organized manner. 3. Its logistics. 4. Its discipline and ability to implement IHL provisions. 5. Its ability to speak with one voice.

22. IHL & TERRORISM IHL prohibits 1. Indiscriminate and disproportionate attacks. 2. Attacks on civilians and civilians objects. 3. Taking of Hostage: API Art 75(2) (c)& AP II Art 4 (2) (c).

23. GC IV Art 33 All measures of intimidation or of terrorism are prohibited .

24. CLIMATE, ARMED CONFLICT AND THE NATURAL ENVIRONMENT  1. Vulnerable populations are disproportionately affected by- a. Food insecurity b. Loss of livelihood opportunities c. Health impact d. Displacement 2. Environmental Degradation 3. Climate Change

25. CLIMATE EMERGENCY  The largest industrial migrant in world history is also the single biggest polluter on the planet. The US Dept of Defence has a larger annual carbon foot print than most countries on earth. Murtaza Hussain, The Intercept .

26. ENHANCING RESPECT FOR IHL 1. Effective investigation by the States of their own forces for IHL violations. 2. Measures by actors supporting parties to armed conflicts for further respect for IHL. 3. Impose more restraints as regards means and methods of war. 4. Publicize concrete examples of IHL compliance .

27. CONTEMPORARY CHALLENGES 1. Notion and Typology of Armed Conflicts 2. Interplay between IHL and HR Law 3. Protective scope of IHL 4. Extra territorial Military Operations. 5. New technologies 6. Non-State Armed Groups 7. Conventional Weapons Misuse 8. Terrorists Acts

28. Typology of armed conflicts in International Humanitarian Law: legal concepts and actual situations- Sylvain Vite

29. TRADITIONAL CLASSIFICATION OF CONFLICTS 1. International 2. Non- International 

30. NEW TYPES OF ARMED CONFLICTS 1. Internal Tensions 2. Internal disturbances 3. Occupations 4. Common Article 3 5.  Article I of AP I 6.  Rome Statute of ICC 7.  Control of a territory without military presence on the ground 8.  Foreign intervention NIAC 9. Multinational forces intervention in NIAC

31. INTER PLAY BETWEEN IHL AND HR LAW Salient Issues- 1. Detention 2. Use of Force 3. Extra territorial targeting of persons Jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice.

32. EXAMPLES 1. Situations of occupation in Northern Cyprus, the Palestinian territories or Iraq. 2. Judgments of ECHR on Chechnya conflicts.

33. PROTECTIVE SCOPE OF IHL IHL is one of the powerful tools the international community has at its disposal to ensure the safety and dignity of people in times of war. It seeks to preserve a measure of humanity amidst conflict with the guiding principle that even in war there are limits.

34. CENTRAL QUALIFICATIONS 1 . Are the fighters civilians or combatants? 2. What circumstances the person affected is in? Is it a situation of ongoing hostility for the person facing detention?  3. Is he in the power of a party to the conflict? Or is he an individual who is part of a population living under occupation?

35. TRANSFER OF WEAPONS TO NON STATE ACTORS 1. Transfer of weapons ends up in possession of arms and ammunitions by the parties who do not have adequate respect for the IHL. Examples: Armed groups operating in Afghanistan, Lebanon, Libya, Sri Lanka and Yemen. 2. Flow of Small Arms and Light Weapons (SALW) to the combatants.

36. INDICATIVE LIST OF NON STATE ACTORS  1. Armed rebel groups, freedom fighters, paramilitaries, or war lords. 2. Paramilitaries and other NSAs closely associated with state agencies. 3. Civilian militants including communal groups and militaries, civil defence forces, vigilante groups. 4. Terrorists and terrorists organizations. 5. Criminals and criminal groups, including black market arms traders. 6. Political parties & groups. 7. Private military companies.

37. CONSEQUENCES Use on explosive weapons in densely populated areas.

38. LABEL OF TERRORISTS A recent tendencies of States to label as 'terrorists' all acts of warfare committed by non-state armed groups against them.

39. CONCLUSION The past track record of IHL management by the ICRC is indication of its resolve to actively face contemporary challenges.