Privileging Asymmetric Warfare? Part I: Defender Duties under International Humanitarian Law

This article is part of a three-part series addressing the question whether the law of armed conflict, also called international humanitarian law (HL), privileges a form of guerrilla warfare by nonstate actors that is often conducted in violation of these laws and in the process endangers civilians, in pursuit of a strategy of inviting a response from their opponents that helps them enlist additional recruits and international support. The strategy, rational from the standpoint of the guerrilla forces, derogates significantly from the law's overall objective of minimizing harm to civilian populations. The articles in this series approach this question of asymmetry by considering whether IHL in fact need or should be interpreted to privilege the guerrilla strategy. Most discussions of the laws of war focus on the limitations placed on attackers to avoid risks to civilians.

The purpose of this article is to look at the issue from the standpoint of the duties of defenders to avoid such risks. Dangers to civilians during armed conflict are a joint product of both attackers and defenders, and minimiZation of such harm-presumably the overriding mission of IHL-requires establishing the right incentives for both attackers and defenders.