LOTF2011 | Hanneke Piters


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  • First of all, I would like to welcome everyone. The trend I indicated during my research is increasing ‘universalization’.
  • My research concerns asymmetrical warfare. A tension can be indicated between Western powers which are restricted by international humanitarian law and their adversaries in asymmetrical conflict which, for various reasons, often not adhere to it. Consequently, I examine how future international humanitarian law should be designed and/ or future Western methods and means of warfare should evolve in order to overcome asymmetrical threats. I will present several solutions. In case these solutions will be implemented they will lead to increased universalization. Whereas, three of the solutions I came up with foster ‘universalization’, one of my solutions promotes pluralism.
  • Metz and Johnson define asymmetry as ‘[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 , operational , 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 conjunction with symmetric approaches. It can have both psychological and physical dimensions.’ I would like to emphasize that it may be inherent to the strategy of the adversary of Western forces in asymmetric conflicts to refuse to adhere to international humanitarian law, and as a result create asymmetry. Now I would like to explain why asymmetrical warfare is an important topic to address when discussing the law of the future. In order to explain this I have to explain today’s security context.
  • The nature of warfare is changing. According to General Sir Rupert Smith the paradigm shifted from interstate industrial war (i.e. regular war) towards ‘war amongst the people’ (i.e. irregular war). At the end of the Cold War, ‘war amongst the people’ became the dominant form of war. ‘War amongst the people’ entails that people are the battlefield, since military operations can take place anywhere: in the presence of civilians, against civilians and/ or in defence of civilians. In 2005, the Human Security Report reported that in the last decade 95% of armed conflict have occurred within states, not between states, and as a result amongst the people. Most of today’s armed conflicts tend to be low intensity civil wars or asymmetric wars. However, it is important to highlight that asymmetrical warfare is not a new concept at all. What is new is that the actors and the methods and means they use and the effects they bring about altered dramatically. Technological developments and the changing security landscape led to the modification of asymmetrical principles of armed conflict (i.e. aerial warfare).
  • Opponents of Western forces often do not adhere to international humanitarian law in asymmetrical conflict, because they think they will not be punished. Worst case scenario: downward levelling of the ‘moral playfield’ by downplaying the in bello restrictions. Or in other words, in this scenario Western forces will only adhere to customary international humanitarian law (i.e. they would only respect minimum requirements, and not the treaties and conventions). In order to prevent this worst case scenario of international humanitarian law is needed (by e.g. specialized tribunal or a world government) enforcement of IHL is needed. Universalization: enforcement leads to general applicability of international humanitarian law.
  • A prerequisite for enforcement is adaption and supplementation of IHL. In order to bring about enforcement I think it would be highly recommendable: (1) To allow the opponents of Western forces in asymmetric wars to (i.e. non-state actors) to adhere to treaties and conventions on international humanitarian law. In other words, these non-state actors should be given standing. Therefore, adaptation of the law is needed. (2) Next to giving non-state actors standing it is needed that international humanitarian law is suitable to all actors (i.e. not dominated by Western ideas). In other words, in order to persuade all actors in asymmetrical conflict to abide IHL it is necessary that these laws are suitable to all actors (i.e. also non-Western actors). NGOs showed that they are in cooperation with states are able promote changes and fill gaps with regard to international humanitarian law, and as a result revise the law. Universalization: standing and suitability results also in general applicability of international humanitarian law.
  • There are other solutions outside the law, namely to develop other methods and means of warfare. First I will address a solution that further develops other methods of warfare. Followed by an solution that further develops other means of warfare. An example is the Dutch 3D approach (Development, Defence and Diplomacy) which entails interagency cooperation at different levels: ministers, Chief of Defence and Director General and lower policy making levels. Not to forget are the joint effort by development experts, diplomats and the military on the ground. Next to cooperation between ministries, the ministries are working together with NGOs. Universalization: the Dutch 3D approach was replicated by other Western countries (i.e. the US). In other words, these countries also started to pursue defence, diplomacy and development simultaneously. (Key word: reinforcement).
  • There are also developments that do not point in the direction of increasing ‘universalization’. New technologies (like drones) could make it easier for Western forces to adhere to international humanitarian law principles such as the principle of distinction (a.k.a. the principle of discrimination). Pluralism: opponents of Western forces do not have the means to develop new high-tech technologies and as a result will use other means and methods of warfare (compared to Western forces). A possibility would be to refuse to adhere to international humanitarian law.
  • LOTF2011 | Hanneke Piters

    1. 1. HiiL Conference: The Law of the Future Increasing ‘Universalization’ By Hanneke Piters, 24 June 2011
    2. 2. <ul><li>Trend: Increasing ‘universalization’ </li></ul><ul><ul><li>HiiL: Universality, pluralism and competition </li></ul></ul><ul><ul><li>Field of research: Asymmetrical warfare </li></ul></ul><ul><ul><li>Solutions increasing ‘universalization’: </li></ul></ul><ul><ul><ul><li>Enforcement of International Humanitarian Law (IHL) </li></ul></ul></ul><ul><ul><ul><li>Adapt and supplement IHL </li></ul></ul></ul><ul><ul><ul><li>Comprehensive approach – CIMIC </li></ul></ul></ul><ul><ul><li>Solution increasing pluralism: </li></ul></ul><ul><ul><ul><li>Functional approach: high-tech solutions </li></ul></ul></ul>Outline
    3. 3. HiiL: Universality, Pluralism and Competition <ul><li>Trend: </li></ul><ul><ul><li>Universality </li></ul></ul><ul><ul><li>Increasing pluralism </li></ul></ul><ul><ul><li>Competition between rule systems </li></ul></ul><ul><li>Result: </li></ul><ul><ul><li>‘ More difficult to maintain an adequate level of coherency and consistency.’ </li></ul></ul>
    4. 4. Asymmetrical Warfare <ul><li>Definition I: </li></ul><ul><li>‘ In 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.’ </li></ul><ul><li>Definition II: </li></ul><ul><li>‘ The situation where regular, well-armed and well-trained and disciplined forces, duty bound to act lawfully, are opposed by irregular forces that are lightly armed, more loosely structured and for whom respect for the law is not important.’ </li></ul><ul><li>Example: </li></ul><ul><li>Western forces fighting with insurgents in Afghanistan </li></ul>
    5. 5. Asymmetrical Warfare <ul><li>Today’s security context: </li></ul><ul><ul><li>Changing nature of warfare </li></ul></ul><ul><ul><li>‘ War amongst the people’ </li></ul></ul><ul><ul><li>Asymmetric wars </li></ul></ul>
    6. 6. Solution Increasing ‘Universalization’ I <ul><li>Enforcement IHL: </li></ul><ul><ul><li>Opponents of Western forces often not adhere to IHL </li></ul></ul><ul><ul><li>Worst case scenario </li></ul></ul><ul><ul><li>Prevention </li></ul></ul><ul><li>Increasing ‘universalization’: </li></ul><ul><ul><li>General applicability of IHL </li></ul></ul>
    7. 7. Solution Increasing ‘Universalization’ II <ul><li>Adapt and supplement IHL: </li></ul><ul><ul><li>Standing </li></ul></ul><ul><ul><li>Suitability </li></ul></ul><ul><li>Increasing ‘universalization’: </li></ul><ul><ul><li>General applicability of IHL </li></ul></ul>
    8. 8. Solution Increasing ‘Universalization’ III <ul><li>Comprehensive approach – CIMIC: </li></ul><ul><ul><li>Dutch 3D approach </li></ul></ul><ul><li>Increasing ‘universalization’: </li></ul><ul><ul><li>Replication by other Western countries </li></ul></ul>
    9. 9. Solution Increasing Pluralism <ul><li>Functional approach - high-tech solutions: </li></ul><ul><ul><li>Developing and using new technologies </li></ul></ul><ul><li>Increasing pluralism: </li></ul><ul><ul><li>Opponents of Western forces cannot compete with them and will use other means and methods of warfare </li></ul></ul>
    10. 10. Thank you for your attention!