Haim V. Levy

The complexities of asymmetric warfare: Legal and ethical challenges in modern conflict

Asymmetric warfare, characterized by conflict between state actors and non-state actors such as rebel groups and terrorist organizations, has emerged as a significant challenge to the application and enforcement of International Humanitarian Law (IHL)[1]. Unlike traditional warfare, where conflicting parties are clearly defined and the battlefield is distinct, asymmetric warfare blurs the lines between combatants and non-combatants, complicating adherence to the principles of distinction, proportionality, and necessity. As a critical reviewer rather than an expert in war laws, this paper attempts to explore the complexities introduced by asymmetric warfare, the ethical and legal dilemmas it poses, and the implications of technological advancements in modern conflict. It also discusses the burden of evidencing accountability for heads of state and military generals, highlighting recent attacks by Hamas and Hezbollah on Israel beginning October 7, 2024, and the associated war crimes.

Asymmetric warfare involves confrontations between state actors and irregular forces that operate with unconventional strategies and tactics. Non-state actors often lack the resources and capabilities of state militaries, prompting them to employ guerrilla tactics, terrorism, and cyber warfare to achieve their objectives. These groups frequently integrate themselves within civilian populations, making it difficult for state forces to target them without risking civilian harm.

One of the cornerstone principles of IHL is the principle of distinction, which requires parties to a conflict to differentiate between combatants and civilians. In asymmetric warfare, this distinction is often deliberately obscured by non-state actors who blend into civilian populations, utilize civilian infrastructure for military purposes, and employ tactics that heighten the risk of civilian casualties. For instance, militant groups might operate from schools, hospitals, or residential areas, complicating the identification of legitimate military targets. During the Gaza conflict, groups like Hamas were known to use civilian buildings and densely populated areas for their operations.

This approach complicates efforts by the Israeli military to target combatants without causing civilian harm. The 2024 Gaza War witnessed damage to civilian infrastructure and civilian casualties, drawing widespread, often unjust criticism and raising questions about the application of the principle of distinction. The use of civilian areas by militant Hamas terrorists for launching attacks, including rockets, leading to significant challenges for Israeli defense forces in adhering to IHL principles while responding to threats.

The October 7, 2024 Hamas (recognized as a terrorist organization by several countries, including the United States, the European Union, Canada, Israel, and Japan) attack on Israel significantly illustrates the severity of asymmetric warfare’s impact on civilian populations. Hamas launched a large-scale and coordinated assault involving rockets, ground assaults, the massacre of elderly, men, women, and children and capturing of innocent civilians as hostages, targeting civilian areas in Israel. This assault resulted in significant casualties and widespread damage, prompting a robust military response from Israel. Hamas’s tactics, which included using civilian areas in Gaza to launch attacks and deploying terrorists in densely populated regions, exacerbated the difficulty for Israeli forces to conduct operations without endangering civilians. This attack underscored the ongoing challenge of upholding the principle of distinction in environments where combatants and civilians are closely interwoven.

Simultaneously, Hezbollah, a powerful militant group supported and a proxy of Iran, based in Lebanon and designated as a terrorist organization by several countries, initiated attacks on Israel from the north. Hezbollah’s involvement added a new dimension to the conflict, creating a multi-front war for Israel. Hezbollah, which operates both a military and a political arm and holds seats in the Lebanese parliament, mirrored Hamas’s tactics by utilizing guerrilla warfare and integrating operations within civilian areas. This not only increased the difficulty for Israel to respond proportionately but also expanded the geographic scope of the conflict, posing additional challenges in adhering to IHL.

Given Hezbollah’s operations from Lebanese territory symmetry in responses raises legal questions regarding attacks on Lebanon. This situation implies that Lebanon, as a sovereign state, may have a responsibility to prevent such attacks or could be considered complicit in them. This dynamic raises issues under international law, particularly concerning the principles of self-defense under the United Nations Charter. Israel may argue that its responses to Hezbollah’s attacks are legitimate acts of self-defense against Lebanon, especially if Lebanon is unable or unwilling to prevent Hezbollah from using its territory for hostile actions. Thus, the situation between Israel and Lebanon, exacerbated by Hezbollah’s activities, underscores complex legal and geopolitical dynamics in the region.

The principles of proportionality and necessity face significant challenges in asymmetric conflicts. Proportionality mandates that civilian harm from any attack must not exceed the anticipated military advantage gained. However, when combatants blend with non-combatants, determining proportionality becomes highly complex. Similarly, the principle of necessity, which restricts actions to those essential for achieving legitimate military objectives, is undermined by the decentralized operations of non-state actors. For instance, US drone strikes in Pakistan’s tribal regions aimed at targeting terrorist leaders often result in civilian casualties despite efforts to minimize collateral damage.

The use of civilians as human shields by non-state actors not only increases the risk of civilian casualties but also places ethical and legal burdens on state forces. While IHL prohibits the use of human shields, the responsibility for civilian deaths resulting from an attack on such targets is complex. State forces must navigate the moral imperative to minimize civilian harm while pursuing military objectives, often under intense pressure and with limited intelligence. During the battle for Mosul, ISIS fighters used civilians as human shields, deliberately positioning themselves in residential buildings and public spaces to deter attacks by Iraqi and coalition forces. This tactic complicated military operations aimed at liberating the city, resulting in significant civilian casualties and widespread destruction. In the 2024 Gaza conflict, reports have emerged of militant groups employing similar tactics, using civilian populations to shield their operations, and thus increasing the humanitarian toll of the conflict.

Asymmetric warfare raises profound questions about accountability and the enforcement of IHL. Non-state actors often operate outside international norms, and their decentralized structure complicates efforts to hold them accountable for violations, contrasting sharply with the strict standards to which state actors are held. State actors face legal and reputational consequences for breaches of IHL, whereas the accountability of non-state actors can be more elusive, creating perceptions of bias and potentially undermining the legitimacy of IHL enforcement mechanisms. The International Criminal Court (ICC) encounters significant challenges in prosecuting non-state actors for war crimes, primarily due to jurisdictional and enforcement issues.

Holding heads of state and military leaders accountable for violations of IHL in asymmetric warfare poses significant challenges in terms of evidencing responsibility. Leaders are often removed from direct actions on the ground, making it complex to attribute specific acts to them. The principle of command responsibility holds that superiors can be held liable for war crimes committed by their subordinates if they knew or should have known about the actions and failed to prevent them or punish the perpetrators. However, establishing the necessary knowledge and intent is particularly difficult in the chaotic and dispersed nature of asymmetric conflicts.

A notable example is the trial of former Liberian President Charles Taylor by the Special Court for Sierra Leone. Taylor was convicted of aiding and facilitating war crimes and crimes against humanity committed by rebel groups in Sierra Leone. Proving his guilt required extensive evidence linking him to the rebels’ actions and demonstrating his knowledge and support of their operations.

Similarly, the International Criminal Court’s indictment of Sudanese President Omar al-Bashir for genocide, war crimes, and crimes against humanity in Darfur involved gathering substantial evidence to establish his command responsibility and direct involvement in the atrocities. The allegations against al-Bashir included orchestrating attacks against civilians, directing military operations targeting ethnic groups, and overseeing widespread human rights abuses.

These cases underscore the complexities and challenges of holding high-ranking officials accountable under IHL in asymmetric warfare, where leaders may be shielded from direct responsibility and evidence collection is often hindered by the chaotic nature of conflict zones.

Prosecutions of heads of state or high-ranking military officers in democratic countries for such crimes are uncommon compared to situations in non-democratic or conflict-affected countries. Democratic nations uphold strong legal and political frameworks that prioritize accountability and adherence to international law, serving as deterrents to these offenses. In Israel, for instance, the High Court plays a crucial role in overseeing the legality of military actions and ensuring compliance with domestic and international legal standards. Additionally, allegations of violations of IHL are subject to thorough investigation and prosecution by military and civilian investigative bodies. These procedures aim to uphold transparency, accountability, and the rule of law, both domestically and within international legal frameworks.

Asymmetric warfare presents profound challenges to the application and enforcement of International Humanitarian Law. The blurring of lines between combatants and non-combatants, the use of civilians as human shields, and the difficulties in ensuring proportionality and necessity in such conflicts complicate the legal and ethical landscape. Technological advancements, while offering precision and efficiency, also introduce new dilemmas regarding accountability and compliance with IHL. Addressing these challenges requires a concerted effort by the international community to adapt existing legal frameworks, enhance accountability mechanisms, and promote adherence to humanitarian principles in all forms of conflict. The evolving nature of warfare necessitates a dynamic and robust approach to safeguarding human dignity and minimizing suffering in times of armed conflict.

[1] [1] International Committee of the Red Cross. (n.d.). International humanitarian law. Retrieved June 26, 2024, from


About the Author
Dr. Levy is an Entrepreneur, Founder, and CEO specializing in the biomedical and medical devices sectors, and he is also a practicing lawyer. Additionally, he serves as an Executive Fellow at Woxsen University in Telangana, India.
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