The Challenges of Asymmetric Warfare. Enhancing Compliance with International Humanitarian Law by Organized Armed Groups

All armed conflicts, whether international or non-international, are characterized by some sort of asymmetry. Disparities between parties to armed hostilities have always been an issue as a matter of fact, although not necessarily addressed by IHL as a matter of law. IHL remains a stranger to such situations, for it is based on ist equal applicability to all parties of a conflict.
Nonetheless, contemporary conflicts have shown that the said equality may no longer be the rule, but rather the exception. This refers in particular to non-international armed conflicts where parties are inherently asymmetrical and the weaker ones tend to act in straightforward violation of universally hailed rules in order to engage their technologically advanced and more resourceful enemy.
Accordingly, the ways in which asymmetric actors behave during armed conflicts challenge IHL's basic foundations, and the fact that civilians still endure the burden of hostilities, as their primary victims, underpins the necessity for further efforts in the attempt to promote respect for IHL.
This work assesses diverse alternatives to respond to these brutal forms of asymmetric confrontations, with a view on those mechanisms which best address the causes why non-state actors deny not only complying with IHL from a legal perspective but also contemplating policy-making considerations.

Leseprobe
Text Sample:
Chapter III. Organized Armed Groups:
i: Legal Considerations:
Article 1.1 AP II states that OAGs must, "[...]under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations".
In the same manner that Common Article 3 was intended to be precluded from applying to simple criminality, Article 1.1 requirements were introduced with a view to the likelihood of OAGs implementing the Protocol, which is why the criteria imposes higher standards than those briefly mentioned by Common Article 3.
The rationale behind the named standards is that these groups cannot lack the "necessary structures of authority, hierarchy, communication [...] and process of accountability, all of which are necessary [...] to enforce IHL or any other rules." Yet, it has been asserted that the existence of a responsible command implies some degree of organization but this does not necessarily mean that there is a hierarchical system of military organization similar to that of regular armed forces.
In that regard, the ICTY's case law laid down some indicators of the existence of a command structure, such as the existence of headquarters; a general staff or high command; internal regulations; the issuing of political statements or communiques; the use of spokespersons; and identifiable ranks and positions.
As far as the territorial control is concerned, it is closely connected with the previous requirement, so long as territorial domination needs an ANSA that is in fact organized. How much territory should be controlled is not specified, even though several proposals were made in order to include constructions such as "a non-negligible part of the territory" or a "substantial part of the territory", but as the wording of the provision displays, no such prerequisite was adopted.
In fact, it has been indicated that there is no such requirement of territorial control "in and of itself." Article 1.1 states that OAGs must "exercise such control [...] as to enable (it) to carry out sustained and concerted military operations and to implement the [...] Protocol." Therefore, territorial control is a mere enabling element that portrays the ability of the OAG to conduct military operations in the mentioned fashion, as well as to implement the Protocol, and those are the essential features of the Article, not the quantum of the territory under the OAG's control.
This view seems to be in harmony with the International Criminal Tribunal for Rwanda's [ICTR] statement in the Akayesu case, where the judges expressed that an OAG "must be able to dominate a sufficient part of the territory so as to maintain sustained and concerted military operations and to apply the Additional Protocol II". This non-objective term that was used to rephrase the wording of Article 1.1, focuses on the ability to undertake military operations and enforcing AP II, rather than the extension of the territory where both requisites take place.
This interpretation lines up with the opinion of the ICRC on the matter, as it admits that territorial control can be only partial. It also suits reality better, since a stricter or more rigid interpretation of the Article would lead to the conclusion that only OAGs with similar control to that of a State qualify as OAGs, and it would imply that only rare cases such as the Sudan People's Liberation Army [SPLAM] or the Liberation Tigers of Tamil Eelam [LTTE] of Sri Lanka are OAGs formally.
Nonetheless, it still raises other questions concerning those groups that without any territorial control, still manage to concert and undertake sustained military operations even transnationally, for instance, the Ugandan Lord's Resistance Army; a catholic extremist group also operating in Sudan, Republic of The Congo and Central African Republic.
Even more, arguments could be brought forward concerning other groups which; in spite of lacking territorial control themsel