Asymmetrical warfare and international humanitarian law.

• Author: Schmitt, Michael N.

1. INTRODUCTION II. FORMS OF ASYMMETRY III. ASYMMETRY AND IHL A. Technological Asymmetry B. Doctrinal Asymmetry C. Normative Asymmetry D. Participatory Asymmetry E. Ad Bellum or Moral Asymmetry IV. CONCLUDING THOUGHTS I. INTRODUCTION

   In much the same way the notion of "revolutions in military affairs" dominated the attention of military thinkers in the last decade, "asymmetry" has now become the catch-phrase du jour. Yet, asymmetry hardly represents a radically new operational model, for it is in the very nature of warfare to seek strategies, tactics, and weapons that either leverage one's own strengths (positive asymmetry) or exploit the enemy's weaknesses (negative asymmetry), or both. Sun Tzu understood this two and a half millennia ago when he proclaimed "an army may be likened to water, for just as flowing water avoids the heights and hastens to the lowlands, so an army avoids strengths and strikes weaknesses." (1) Centuries later, General Curtis E. LeMay, who, while the USAF Chief of Staff in 1964, famously set out his asymmetrical recipe for ending the Vietnam war: "They've got to draw in their horns and stop their aggression, or we're going to bomb them back into the Stone Age." (2) Modern foes also grasp the dynamics of asymmetry in warfare, a fact well illustrated by none other than Osama bin Laden:

   The difference between us and our adversaries in terms of military strength, manpower, and equipment is very huge. But, for the grace of God, the difference is also very huge in terms of psychological resources, faith, certainty, and reliance on the Almighty God. This difference between us and them is very, very huge and great. (3) This article explores asymmetry's influence on the law governing methods and means of warfare. International humanitarian law (IHL) and war exist in a symbiotic relationship. Most typically, IHL reacts to shifts in the nature of warfare; indeed, most major humanitarian law treaties arrived on the heels of a major conflict in response to post factum concerns over particular aspects thereof. (4) As importantly, the nature of the hostilities in which belligerents find themselves shapes their attitude towards IHL. When they view law as serving their needs, for instance by protecting their civilians, fidelity to legal strictures is usually high. On the other hand, when belligerents see themselves as disadvantaged by normative boundaries, those boundaries may well be ignored. (5) This being so, in what ways does asymmetry in 21st century warfare affect application of IHL? (6)

2. FORMS OF ASYMMETRY

   To grasp the normative consequences of asymmetry, it is necessary to conceive of the notion very broadly. Steven Metz and Douglas Johnston of the U.S. Army War College have fashioned a particularly useful definition in this regard. According to Metz and Johnson,

   [i]n the realm of military affairs and national security, asymmetry is acting, organizing, and thinking differently than opponents in order to maximize one's own advantages, exploit an opponent's weaknesses, attain the initiative, or gain greater freedom of action. It can be political-strategic, military strategic, or a combination of these. It can entail different methods, technologies, values, organizations, time perspectives, or some combination of these. It can be short-term or long-term. It can be deliberate or by default. It can be discrete or pursued in combination with symmetric approaches. It can have both psychological and physical dimensions. (7) As is apparent, asymmetry has many dimensions. It operates across the entire spectrum of conflict, from the tactical through the operational to the strategic levels of war. (8) For example, at the tactical level, troops with lightweight body armour have a distinct advantage over those without advanced protection. At the operational level, a networked force with real-time access to state-of-the-art C4ISR assets has a much better understanding of the battle. This allows it to act more quickly and decisively than does its enemy. (9) The strategic level of conflict has both military and political dimensions. At the military strategic level, asymmetry may itself become a strategy. Terrorism is the most compelling contemporary exemplar. Political strategies with military impact include the formation of alliances, crafting humanitarian law or arms control regimes, and other efforts to leverage diplomacy, law, information, and economics to enhance one's military wherewithal. (10)

   Asymmetry not only acts at different levels, it also takes multiple forms. Most noticeable is technological asymmetry, which occurs when one side of a conflict possesses superior weapon systems and other military equipment (means of warfare). (11) Currently, the U.S. military far outdistances all other armed forces in this regard. Other Western countries, primarily those in NATO, occupy a second tier of technological advantage. The militaries that remain have little hope of reaching such levels. This reality is unlikely to change anytime in the near future, for U.S. investment in research and development dwarfs that of all other nations. (12) Of course, some technology will "trickle down," but those who benefit in this way are the least likely to find themselves at odds with the United States. The existing qualitative divide can only be expected to grow.

   A second form of military asymmetry involves methods of warfare, specifically doctrines. (13) For advanced Western militaries, effects-based operations (EBO) have replaced attrition warfare as the pre-eminent asymmetrical operational concept. (14) Effects-based operations are designed to generate defined effects on an opponent. Terrorism also constitutes an asymmetrical doctrinal concept. (15) Increasingly adopted by low-tech forces to counter the military preeminence of their opponents, it is analogous to, albeit more nefarious than, the guerrilla warfare that was so effective against U.S. technological dominance in Vietnam.

   Less obvious forms of asymmetry also influence the application of IHL. A conflict can be normatively asymmetrical when different legal or policy norms govern the belligerents. Normative asymmetry may even exist between allies. Conflicts can also be asymmetrical with regard to the participants therein. Although IHL is based on the premise of hostilities between armed forces (or militia and other groups that are similarly situated and meet set criteria), actors in modern warfare increasingly deviate from this paradigm. Finally, belligerents may be asymmetrically positioned by virtue of their jus ad bellum status or moral standing, real or perceived. Of course, when notions of legal or moral valence infuse the resort to arms, attitudes towards the application of IHL are inevitably shaped accordingly. It is to the impact of such asymmetries on international humanitarian law that we now turn.

3. ASYMMETRY AND IHL

   Each of the cited forms of asymmetry--technological, doctrinal, normative, participatory, and legal or moral standing--exerts measurable influence on the application of international humanitarian law. A disturbing example is mistreatment of detainees by members of the U.S. armed forces. (16) However, this paper limits itself to those aspects of IHL governing means (weapons) and methods (tactics) of warfare. Because technological asymmetry has the greatest relevance to the application and interpretation of IHL, most discussion will focus on that form.

   1. Technological Asymmetry

      The technological edge enjoyed by the United States and other advanced militaries is sometimes misunderstood. In wars of the last century, range, precision, and mobility were the dominant media of technological asymmetry, a reflection of the linear construct of the battlefield. With forces facing each other across a FEBA (forward edge of the battle area), the immediate objective of warfare was to weaken the enemy sufficiently to allow one's own forces to seize territory. You wore the enemy down through attrition warfare, the serial destruction of its military. Being able to shoot farther with greater accuracy than the other side was obviously useful in conducting attrition warfare. So was greater mobility, because it allowed your forces to avoid the enemy's assaults and strike at its weaker flanks.

      Today, battlefields are multi-dimensional, i.e., technology has evolved to the point where the concept of a line marking the heart of the battle (with combat fading the greater the distance from that line) no longer makes sense. There may be ground forces facing each other, but the conflict is everywhere. Consider Operation Iraqi Freedom (OIF). During the campaign, there was literally no point within Iraq untouchable by Coalition forces. Indeed, the first blow of the war was not the crossing of the Iraqi border by an invasion force, but rather an attack by Tomahawk cruise missiles and F-1 17s designed to kill Saddam Hussein.

      In this environment, an ability to rapidly gather, process, and react to information about an opponent, while hindering the enemy's efforts to do the same, is even more determinative than range, precision, and mobility. Using networked C4ISR unavailable to the other side, friendly forces seek to "get inside the enemy's observe-orient-decide-act (OODA) loop." (17) In other words, acting more quickly than the enemy forces him to become purely reactive, thereby allowing you to control the flow, pace, and direction of battle. Eventually he becomes so disoriented that paralysis ensues. In this style of warfare, the technological edge that matters most is C4ISR--and it is in C4ISR that the gap between the technological "haves" and "have-nots" is widest ... and still growing.

      Operating inside an opponent's OODA loop requires: the ability to locate and accurately identify enemy forces quickly and reliably; weapon systems that are immediately available; sufficient command and control assets to monitor and direct fast-paced, changing engagements...