Privileging Asymmetric Warfare? Part I: Defender Duties under International Humanitarian Law

Abstract This article is part of a three-part series addressing the question whether the law of armed conflict, also called international humanitarian law (IHL), privileges a form of guerrilla warfare by nonstate actors that is often conducted in violation of these laws and in the process endangers civilians, in pursuit of a strategy of inviting a response from their opponents that helps them enlist additional recruits and international support. The strategy, rational from the standpoint of the guerrilla forces, derogates significantly from the law's overall objective of minimizing harm to civilian populations. The articles in this series approach this question of asymmetry by considering whether IHL in fact need or should be interpreted to privilege the guerrilla strategy. Most discussions of the laws of war focus on the limitations placed on attackers to avoid risks to civilians. The purpose of this article is to look at the issue from the standpoint of the duties of defenders to avoid such risks. Dangers to civilians during armed conflict are a joint product of both attackers and defenders, and minimization of such harm-presumably the overriding mission of IHL-requires establishing the right incentives for both attackers and defenders. Subsequent articles in the series will address the principle of "proportionality"-the duty of attackers to avoid use of excessive force that may imperil civilians, even if they are not being targeted-and consider whether intentional targeting of civilians during armed conflicts by nonstate actors constitutes a war crime under IHL. I. THE CHANGING PARADIGM The law of armed conflict has moved away from a contractual model to embrace a largely regulatory model. At one time the paradigm conflict involved standing armies of warring states clashing in a distinct "battlefield" removed from dense civilian settlements. The "laws of war" established ground-rules in an effort to limit "unnecessary" slaughter - killing and maiming not necessary to achieving the decisive defeat of the adversary - and to limit resort to certain weapons that could have enduring devastating effects beyond cessation of the conflict. The rules were kept in place not by pious invocation of the sanctity of agreement but by the rule of reciprocity: the prospect that non-compliance would incur retaliatory sanctions against the offending state. The horrific experience of World War II and its immediate aftermath led to a partial shift in emphasis in the 1949 Geneva Conventions (Geneva I- YV) away from the contractual model inching towards a regulatory model. "International humanitarian law" (IHL) was the new name for rules that supplemented the prior laws of war with greater protections for prisoners of war, further limits on the range of permissible targets, and, most especially with regard to Geneva IV, an overarching concern with the protection of civilians under occupation and during armed conflicts. Most importantly, for present purposes, the obligations of "High Contracting Parties" were not backed by a rule of reciprocity. These obligations apply "in all circumstances" - at least as between parties to the Convention and non-parties agreeing to assume those obligations2 - and cannot be suspended, or violations excused, because the adversary has flouted the rules of proper warfare. The model of two warring state armies locked in combat at a battlefield that could readily be distinguished from civilian settlements had been battered during World War II, as cities were treated as targets of legitimate bombing. The model also failed to fit guerrilla warfare - battle by irregulars not necessarily linked with state armies, typified by the "partisan" forces that often provided the only armed resistance to Nazi occupiers. The essential military theory of guerrilla warfare is to strike the enemy and then merge back into the civilian population in the hope either of discouraging a counter-attack or, of even greater value to the cause, inviting a military response laying waste to civilian areas and their inhabitants. …