35 Cyber-warfare, asymmetric armed conflict and unpreparedness of IHL

Prof. Vik Kanwar

Table of Contents

1. Learning Outcomes

2. Introduction to Cyberwarfare, and asymmetric armed conflict

3. Symmetrical Warfare

4. Asymmetric Warfare

5. Case Study: Terrorism as asymmetry

6. Technological Innovations in Warfare

7. Cyber Warfare: Limits to IHL

8. IHL’s Anachronism: Defying traditional concepts of war

9. Summary:

1. Learning Outcomes:

• The students will get an overview of the different challenges IHL faces by virtue of new and advanced forms of warfare, and their ensuing dilemma to apply IHL rules
• By the end of this module, the students will understand various nuances on the unpreparedness of IHL when it comes to asymmetric armed conflict.

2. Introduction to Cyber warfare, and asymmetric armed conflict

The scope of warfare today has expanded beyond the conventional method of two or more armies fighting a battle on the battlefield. Today, warfare has expanded into civilian territories, and the parities to a war are no longer just restricted to states. These new dimensions in warfare have blurred the lines between civilians and soldiers. Modern day combat now usually takes place in an urban environment and is directed towards civilians who should be immune from attacks under International Humanitarian Law (IHL). IHL was laid down to protect the lives of civilians unless they are directly participating in the hostilities. In recent years, there has been an increase in the number of attacks in civilian territories as most non-state actors benefit from it. Non-state parties prefer to have an armed conflict within an urban setting as they provide better support. Also, due to the armed conflicts being asymmetric as non-state parties are not as well equipped or trained compared to a state’s military it is easier and effective for them to carry out attacks against civilians as they are “soft targets” . Attacking civilians is a way non-state parties use to overcome the asymmetry they face and consequently military targets are replaced by civilian ones. The increased number of conflicts in urban areas has made it difficult to ascertain the legitimate targets and it becomes difficult to protect civilians as these non-state parties easily blend in with the civilian population.

3.Symmetrical Warfare

Symmetrical warfare is a conflict fought between two states which are of equal military strength. In Symmetrical conflicts it is difficult to ascertain which party will be victorious and the costs usually outweigh the benefits. Huge amounts of resources and money are put in to create an asymmetry so that in the chance of a war it can be fought and possibly won. An asymmetric conflict on the other hand exists when the parties to an armed conflict significantly differs in terms of qualitative and quantitative strength (e.g. by having a military, technological or economic advantage). This is a broad definition that will lead to the classification of most armed conflicts as asymmetric, as one party is often stronger from an objective point of view. According to Thornton, “[a]symmetric warfare is as old as warfare itself and as recent as the last terrorist outrage.” Especially, in the last century conflicts have not only become more complex but have also become more unequal. As the asymmetry increases within a conflict the possibility for tactical, operational and strategic surprise also increases.

3. Asymmetric Warfare

As per this paper, we can define asymmetric warfare as, where the weaker party to an asymmetric conflict, as a way to compensate for lacking resources, uses means and methods that are prohibited under IHL. Acts of terror are an integral part and a good example of asymmetrical warfare in modern times. In cases, like that of the al-Qaeda, this type of warfare becomes the main war strategy. There are three salient features of the type of warfare used by these groups firstly traditionally accepted methods of warfare which are legal are deliberately rejected in favour, for example, of the hijacking of airliners and their deployment against civilian objects and civilians. Secondly, the future aim of these strategies may be to cause even greater loss of human life and to inflict non-military and above all economic damage, through the use of prohibited devices such as biological or chemical weapons. Thirdly, the strategies used are no longer confined to a particular territory, and there is no geographically circumscribed battlefield, a terrorist act can be committed anywhere and at any time. Another example of asymmetry is the new Iraq war. Where the stronger military side tries to secure a rapid victory on the battlefield through the massive use of force and the weaker party, recognizing the military superiority of its opponent, will avoid open confrontation that it is bound to loose. Instead the weaker side will compensate for its inadequacy by employing unconventional methods and prolonging the conflict through an undercover war of attrition against its well-equipped enemy.

4. Case Study: Terrorism as asymmetry

Attacks carried out by various terrorist organisations such as the al-Qaeda in various countries were not immediately identified as a war at first. The Bush administration claimed that there was a war between the U.S. and the al-Qaida following the 9/11 attacks, it raised an important question as to whether the IHL applied to the so-called “war on terrorism”, as the adversary wasn’t a state any longer but a non-state entity carrying out attacks on innocent individuals. The United Nations Security Council also deemed the 9/11 attacks as armed attacks threatening world peace, thereby implying the existence of a situation similar to a war. Furthermore, it can be considered that there is a state of war that exists as these organisations carrying out attacks operate globally and their use of weapons of mass destruction which can take hundreds of lives are not only a strategy but also a crime, thereby the situation replicates a scenario which is similar to that of a war. The members of the al-Qaeda who carried out the 9/11 attacks also engaged in them with the intention to create a state of war. Acts of terrorism are difficult to predict and it’s often difficult to assess the beginning and the end of hostilities. Most terrorist organisations are well structured with proper hierarchical positions and tasks. The war on terror has just driven terrorist organisations such as the al-Qaida underground rather than defeat them. Before the 9/11 attacks they were well established in Afghanistan which gave it a territorial context but today its supporters are spread out worldwide and hide among civilians so that they can carry out calculated and targeted attacks against their stronger opponents. By labelling these conflicts with non-state actors as the “global war on terror”, states try to insinuate that the international community as a whole is involved in a war like scenario. From this point of view it is clear that the conflict is between states and non-state entities which operate at both local as well as international levels and resort to violent acts of terror to achieve their purpose.

The rapid increase in technological innovations has led to an increasing disparity between the weak and the strong. But sometimes even the more technologically advanced and militarily stronger side might be defeated by a weaker side by use of asymmetric warfare. Since asymmetrical warfare consequentially leads to loss of civilian lives the contours in terms of IHL are not clearly defined. As per IHL, states try to keep the civilian casualties to a minimum. The worldwide consensus is that civilian populations should not be affected by ongoing hostilities. The very problem that arises out of these conflicts is that as non-state actors use asymmetric warfare as their main strategy and capitalise on the state’s fear of casualties as a method to win wars. The non-state actors benefit from this fear in different ways. Firstly, if attacks are directed towards civilians, the state can be easily be coerced as the non-state actors know that the state will do anything to save lives. This puts the non-state actor in a more powerful position than it would otherwise have. Secondly, non-state actors know that a conflict is justifiable only for a certain time limit. A state can only sustain a fight while it has the support and non-state actors know that if it loses support, it runs the risk of not being re-elected. Support for the state decreases with the loss of every innocent life regardless of which side fired. The non- state party on the other hand does not really risk losing any of its support as they are able to create a strong local support for themselves who support these acts. Organizations such as the ICRC have to face the direct humanitarian consequences of asymmetrical warfare, especially civilians affected by indiscriminate and targeted attacks and the threat to dignity and integrity of persons detained in such contexts. In the new scenario where the manifestations of war like situations are barely covered by humanitarian law, institutions are confused when it comes to dealing with such situation. It is crucial for the institutions to be able to combat asymmetrical wars, so as to perform those tasks which are in keeping with the basic principles governing humanitarian relief and it must be able to provide relief impartially and without discrimination to all the victims of hostilities. Weaker parties to a conflict need and take humanitarian relief as long as they do not perceive them to be an entity of the opposite government. Weaker parties need these reliefs many times as it becomes key to their survival.

6. Cyber Warfare: Limits to IHL

Another dimension that has been added to armed conflicts in the modern era is cyber warfare, in this paper we mainly focus on means and methods of warfare that consist of cyber operations amounting to or those conflicts conducted in the context of an armed conflict, within the meaning of IHL, as IHL does not cover all kinds of cyber-attacks. Cyber warfare can be deadly as it could lead to civilians being deprived of essentials such as drinking water, medical care and electricity. Cyber-attacks can also interfere with rescue services that save lives or disrupt vital infrastructure such as dams, nuclear plants and aircraft control systems. The well-being, health and even lives of hundreds of thousands of people could be affected. One of the ICRC’s roles is to remind all parties to a conflict that constant care must be taken to spare civilians: wars have rules and limits that apply to all means and methods of warfare.

IHL’s applications to these new technologies, is crucial to identify ways of limiting the potential humanitarian cost of cyber operations in armed conflict. Warfare has evolved since the Geneva Conventions was drafted in 1949, but IHL continues to apply to all activities conducted by parties in the course of armed conflict, and it is essential that it is followed. However, there is still a need to develop the law further to ensure it provides sufficient protection to the civilian population, as cyber technologies evolve and their impact is better understood. The main challenge faced in cyber warfare is that there is only one cyberspace, which is shared by both military and civilian users and everything is interconnected. The key objective is to ensure that attacks are directed against military objectives only, and that civilian population and civilian infrastructure are spared. States need to take extra caution when they are resorting to cyber-attacks. Most cyber-attacks do not come under the ambit of the IHL. Also as many hackers are civilians, they are protected by IHL and can only be subject to criminal proceedings. However, if hackers do take part directly in hostilities, by carrying out a cyber-attack in support of one side in an armed conflict, they lose their protection.

Termination of conflicts is another complexity faced in cyberspace. Conflict termination is when decision-makers on both sides have agreed to cease hostilities. However, a key issue in implementing such agreements is not knowing whether the other side is abiding by the negotiated terms. One party may not be sure whether the other side is honouring a cease-fire in cyberspace, given the risk that one or both sides are likely to be targets of hostile cyber operations from third a party. In other words, there is a constant background of hostile cyber operations going on all the time. Parties determining operations would require each side to keep careful track of its various preparations.

7. IHL’s Anachronism: Defying traditional concepts of war

The question of the hour is whether today’s IHL is satisfactory when “traditional wars” have become less common. As Pfanner puts it: “[a]symmetrical wars do not fit in with either Clausewitz’s concept of war between basically equal parties or the traditional concept of international humanitarian law. It is debatable whether the challenges of asymmetrical war can be met with the current law of war. If wars between States are on the way out, perhaps the norms of international law that were devised for them are becoming obsolete as well.”

Technological advancements today have led to the evolution of warfare. The increasing use of drones on the battlefield by the U.S. military is a fine example of such an evolution. The U.S. has forgone many IHL’s and has begun to use its drone program extensively. Drones are a cheap and effective way for the U.S. to combat the asymmetry they face. But many a times the targets of these drones are not identifiable, and this leads to loss of innocent lives. A summation of the framework used by the U.S. to authorise and justify drone strikes was answered by a former defence department adviser Rosa Brooks, where she said that “the executive branch has the right to kill anyone, anywhere on earth at any time, for secret reasons, based on secret evidence, in a secret process, undertaken by unidentified officials.” The legal loopholes that some countries especially the U.S. have created to justify their attacks make it difficult to enforce IHL’s.

According to Osiel, asymmetric warfare presents challenges to IHL that should be met by revising the treaties concerned: “like any other body of law, the Geneva Conventions have been regularly revised in light of novel challenges in warfare. In fact, major revisions have occurred about every twenty-five to thirty years. By that standard, the world is now due for another such reassessment.”

The IHL’s protection in armed conflicts is perhaps more important than ever in today’s time. With increasing frequency in insurgencies and terrorist attacks, having devastating effects for those affected there is an urgent need more than ever to develop new laws and instruments to govern these conflicts . Till the time such instruments come into existence, it would be a good idea for states to come together and unite against the violence being caused to civilians.

8. Summary:

This chapter mainly teaches us about the new kinds of warfare that have broken the traditional roles that wars used to play. With the instance of state and non-state actors to conflict, the warfare has turned asymmetrical in nature. The applicability of the same to IHL outdated norms and principles has led to a legal perplexity to handle new advanced and technological forms of warfare, such as drone warfare, bioterrorism, use of destructive missiles and questioned the ethicality of armed intervention that have involved the same, and violated the rights of civilians and the State.

Reference

• Lindstrom, Frida. “Asymmetric warfare and challenges for international humanitarian law”. (2012)Janis, Mark W., and Carolyn Maree Evans, eds. Religion and international law. Martinus Nijhoff Publishers, 1999.
• Pfanner, Toni. “Asymmetrical warfare from the perspective of humanitarian law and humanitarian action”. (2005)
• Thornton, “Asymmetric Warfare: Threat and Response in the Twenty-First Century”. (2007), p. 2.c)
• Osiel, The End of Reciprocity: Terror, Torture, and the Law of War, 2009
• “Cyber Warfare.”  International  Committee  of  the  Red  Cross.  July  1,  2013 https://www.icrc.org/en/war-and-law/conduct-hostilities/cyber-warfare.’Laws Which Guarantee Religious Freedom’. N.p., 2014. Web. 4 Nov. 2014.
• Lin, Herbert. “Cyber Conflict and International Humanitarian Law.” International Review of the Red Cross 94 (2012). Accessed March 16, 2015. https://www.icrc.org/eng/assets/files/review/2012/irrc-886-lin.pdf.