Monday, 25 August 2014

Indonesian Supreme Court Rejects Prabowo Appeal, Clears Way for Jokowi Presidency

The fall of the Suharto government in 1998 following the Asian Financial Crisis brought an end to decades of authoritarian military governments. Over the past 16 years, Indonesia has been slowly transforming into an emerging democracy, yet political dynasticism, aloof elites, corruption and nepotism still abound. The July 9th Indonesian presidential election saw Joko Widodo (popularly known as 'Jokowi') running on an anti-corruption, economic reform platform, and buoyed by his man-of-the-people image, defeat Prabawo Subianto garnering 53% to Prabawo's 46.8%. Despite some commentators declaring the victory as definitive; Jokowi won by eight million votes out of a popular vote of some 180 million, making it the smallest margin of victory in any Indonesian presidential election. This fact appears to be of significant importance, yet efforts to put any stock in this state of affairs must be tempered by the knowledge that during the Suharto years elections were still held with Suharto winning 63.8% in 1973 and running unopposed in elections in 1978, 1983, 1988, 1993, and 1998. Consequently there are few contenders for Indonesia's narrowest electoral victory margin.

This margin of victory did however cause Prabowo to challenge the election results; appealing to the Supreme Court, claiming widespread electoral fraud affecting twenty-one million votes and fifty-two thousand polling stations. Such a challenge is not uncommon with similiar actions having become a common course of action in previous elections, in part as a face-saving mechanism. Despite the frequency of these appeals, the Supreme Court has never overturned the result of a presidential election, with Prabowo's appeal encountering a similar fate. The nine judges of the Supreme Court unanimously rejected the appeal, stating in their verdict which took over four hours for the court to read, that Prabowo had not proffered any credible evidence of electoral fraud. Prabowo's concerns were not completely unfounded as election officials had in some cases opened ballot boxes early, a fact which the Court acknowledged, yet ruled had been done in a transparent manner. The Court's decision cannot be appealed and while Prabowo camp accepts the appeals it has stated that it considers the decision a miscarriage of justice.

Images of Prabowo (left) and Jokowi stare out at a passing woman
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Given the lack of Supreme Court precedence in overturning election results, the Court's rejection of the appeal was widely expected, especially since prior to the Court's decision the General Elections Commission as well as independent election observers had dismissed Prabowo'sclaims. Despite such widespread rejection of the claim, following the public broadcast of the Court's decisions, supporters of Prabowo clashed with riot police outside of the Supreme Court. Some pro-Prabowo protestors attempted to storm the razor wire fence surrounding the court and several trucks were rammed against barricades. Thousands of riot police had been deployed around the Court as a precaution and responded to these actions with tear gas, quickly dispersing the crowds. Aside from isolated incidents, the majority of protests were non-violent, with only a few individuals injured and the arrest of four others, as parts of Jakarta were put under lock-down

Going forward Jokowi, as a political outsider, and now as president-elect will have to consolidate his legitimacy among the political elite. Despite winning the election, Jokowi is faced with an opposition coalition that backed Prabowo holding the majority of seats in the House of Representatives. Jokowi's Indonesian Democratic Party of Struggle is largest in the House with twenty percent of seats, yet the Prabowo coalition holds sixty-eight percent of the remainingseats. However, these coalition partners are pragmatic and since Prabowo has lost his appeal, cracks are emerging in the coalition. In a bid to prevent infighting and create a functioning government, Jokowi has stated that he will welcome coalition parties to his side, reserving some seats for them in his government

Prabowo Supports Protest Decision Outside Supreme Court in Jakarta
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The election of Jokowi is important because in many ways it signifies a new era in Indonesia politics. Despite Suharto's departure in 1998, the political class has continued to be dominated by elites tied to previous autocratic regimes. Suharto era technocrats and career politicians still control much of the power in Indonesia, with political dynasticism a creeping issue. For instance from 2001-2004 Megawati Sukarnoputri, the daughter of Sukarno, Indonesia's first president and pre-Suharto autocrat presided over a mediocre presidency. Prabowo himself is Suharto's son-in-law and was a special forces commando and later general during his father-in-law's reign. Prabowo's background, combined with accusations of human rights violations during his military career and his aloof public image all have contributed to Jokowi's victory. Furthermore, while the Court's decisions is in line with precedence, it may also be part of a greater move away from politicians with links to Suharto, politicians who since 1998 have done little to tackle corruption.

The lack of dynamism and accessibility in the Indonesian political class should not fool observers into thinking that Jokowi has been elected by default or as the lesser of two evils. Jokowi enjoys widespread popularity across the country, with many citing his humble demeanour and accessible public image as key points in his favour. In contrast to established political elites, Jokowi was born and raised in a slum in the mid-sized city of Solo, eventually training himself as a carpenter before entering politics in 2005. Since then his rise has been meteoric, having been twice elected mayor of his hometown, and later becoming Governor of Jakarta in 2012. The same year Jokowi won third place in the World Mayor Prize: an award that is given to politicians who have revitalized their cities. During his time in office Jokowi did not draw on his mayoral salary, built free housing for slum dwellers, upgraded transit infrastructure and according to the Supreme Court “turned a crime ridden city into a regional centre for arts and culture which has started to attract international tourism. His campaign against corruption earned him the reputation of being the most honest politician in Indonesia."

Even with such an accomplished record, Jokowi will face many challenges once he is sworn in as president in October. Foremost amongst these are corruption, bad infrastructure such as a lack of drainage systems which sees many cities in Indonesia regularly flood, and finding funds for the budget. A key problem in the Indonesian budget is that long running energy subsidies are draining the state of vital funds to the tune of $31.3billion dollars. This amounts to eighteen percen tof the budget or three times the total infrastructure budget. Previous attempts to reduce or eliminate these subsidies have caused widespread protests, yet the system which is inefficient, needs to be drastically changed. This is especially pressing given the wide economic disparity in the country. Funds which are flowing into energy subsidies need to be redirected towards healthcare, housing and education for despite being a G20 country, Indonesia still has over one hundred million people living at or below two dollars a day

Sunday, 17 August 2014

Japan's Defence White Paper: China & South Korea Speak Out

The recent defence White Paper which was released by the Japanese government has caused discord in East Asia, as both South Korea and China cite grave concerns over the content of Tokyo's military outline. Japan's latest defence paper outlines an increase in defence spending over the next five years as well as new acquisitions for the Japanese Self-Defense Naval Forces. The Paper also outlines Prime Minister Shinzo Abe's moves to ease restrictions on Japanese weapons exports. Japan is also seeking to emphasize the notion of collective peace and security; a rubric that would allow Japan to intervene militarily if an ally nation is under threat. To this end, Shinzo Abe announced in July that his cabinet had approved of a constitutional re-interpretation, which lifts the ban on Japanese troops fighting overseas.

While the Japanese government characterizes its defence policy and spending increase as a return to geopolitical normalcy, other nations, notably China view this trend as signs of a re-emerging Japanese militarism. The Chinese defence ministry claims that “Japan ignores the facts and deliberately embellishes the China threat as an excuse to adjust its military and security policies and expand arms manufacturing.” Sino-Japanese are at a nadir not seen for many years, with tensions between the two countries resulting in a lack of bilateral dialogue. Currently Shinzo Abe is seeking to arrange a leader's summit between himself and President Xi Jinping, as neither leader has met his counterpart since both came to power over 18 months ago.

No Meeting as of Yet: President Xi Jinping (left) & Prime Minister Shinzo Abe
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Rather than scrapping Article Nine - the pacifist clause in the Japanese post-war constitution - Japan is seeking to remain true to its pacifist constitution, yet while still being able to fulfil it's treaty obligations to the United States. Japan's increased military spending and international assertiveness grates against its post-war pacifist constitution, yet Tokyo argues that it is largely seeking to operate as any 'normal' state does vis-à-vis its respective security concerns. Specifically, the Abe government cites the dual threats of North Korea and China as the key driving forces in determining Japanese defence policy. Repeated North Korean missile tests, combined with increased incursions by Chinese and Russian aircraft into Japanese airspace has caused Japan to feel threatened. In 2013 Japanese fighters were scrambled 810 times, the highest amount in twenty-four years.

2013: highest interdiction levels since Cold War
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The recent establishment of a Chinese air defence identification zone over Japanese controlled islands caused outrage in Japan, which in turn has sought to re-engage with the United States, breathing new life into the mutual defence treaty, which following the Cold War had begun to chafe some quarters of the Japanese polity. Japan has lined up to purchase the F-35 Lightning II as well as an additional two or three Aegis equipped destroyers from the United States. Furthermore this year Japan is for the first time hosting joint coast guard drills with the United States, South Korea, Russia and Canada. China's air identification zone combined with the various disputes and naval clashes over the Senkaku/Diaoyu islands has led Japan to describe Chinese actions as 'dangerous', which could "lead to unintentional consequences." This point was accentuated by the fact that following the release of the White Paper three Chinese coastguard vessels sailed into Japanese controlled twelve kilometre territorial waters around said islands.

In seeking the moral high ground, China regularly invokes Japan's wartime past as proof of Japan's untrustworthy nature, and views any increase in spending or procurement by Tokyo as slippery-slope militarism fuelled by WWII revanchism. By continually putting the focus on Japan, China seeks to distract from its own rapidly growing defence budget, one which by far exceeds any other Asia nation, and is second only to the U.S. While China's defence spending trajectory is meteoric, Beijing still feels insecure vis-à-vis Japan. Even disregarding the role of the U.S.-Japan defence treaty, Japan's military, notably its navy, remains greatly superior to China's, at least technologically if not in terms of gross tonnage.

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Photo Credit: Financial Times

Japan's navy is one of the youngest and most advanced, as well as the second biggest among Asian nations. Japan has added many new vessels to its fleet in recent years, most notably the two new Izumo class helicopter destroyers (which China - rightly - calls aircraft carriers in all but name). Moreover Japan spends significantly less on defence as a percentage of GDP than China. China's economy is over twice the size of Japan, yet were Japan to match China's 2% of GDP level, it would reach $100billion, compared to China's $122billion. 1Such an increase is something which is currently restrained by Japan's pacifist constitution which places a 1% of GDP guideline on defence spending. This fact is an important factor why China views any reinterpretation of Article Nine and the Constitution in general which such trepidation.

Japan's Largest Vessels Since WWII: Izumo class helicopter destroyer
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Moreover China gets less 'bang-for-its-buck' as its $122billion has to cover a vastly larger country, one which borders over a dozen other states (notably North Korea, Russia, Pakistan, Afganistan and India). Consequently China's resources are widely dispersed. Conversely Japan, as an island nation is far more secure. Japan's entire eastern seaboard open onto the vast expanse of the empty Pacific, patrolled by allied American ships. The end of the Cold War as to a large extent diffused the Russian threat, while the other closest country, South Korea shares with Japan both democratic government and the United States as an ally. Consequently Japan can expend the entirety of its resources on dealing with China (and to a far lesser degree North Korea in the Sea of Japan) in the East China Sea. 

These geo-political realities in turn inform the way in which China deals with Japan and its attendant defence related issues. Following the release of the Paper, various Chinese media sources quickly responded, with Xinhua accusing Japan of “hyping up the China threat,” Beijing Times calling out Japanese actions as expansionism and The People's Daily describing the White Paper as “harbouring evil intentions.” This consistent message is not a surprise given that these news organs are closely linked to the Chinese government. In any case, such rhetoric is not new, as Beijing often invokes anti-Japanese sentiment in order to boost nationalism and collective identity as the CCP continues to shift into its post-communist identity. Similarly, Japan uses the spectre of China to bolster support amongst conservatives, but also more liberal voters who oppose China's human rights record.

Photo Credit: BBC

While resistance from Beijing is expected, what is of interest is that alongside China, South Korea is also criticizing Japan, as the White Paper pronounced - with certainty - Japan's position on the territorial dispute surrounding Dokdo/Takeshima island. Both South Korea and Japan claim ownership over the island, part of a longstanding territorial dispute that has been largely eclipsed by the more prominent Sino-Japanese disputes over the Senkaku/Diaoyu islands further south. Seoul has been angered as a map in the White Paper shows the island in question labelled only as Takeshima, despite the fact that South Korea currently exercises sovereignty over the outcropping. Moreover, another map clearly delineates the borders of an exclusive economic zone (EEZ), despite the boundaries still being negotiated over with Seoul.

12013 defence spending numbers for both countries as reported by International Institute for Strategic Studies. Estimates of China's actual defence spending are difficult and vary, with the Stockholm International Peace Research Institute claiming Chinese defence spending to be $188 billion. The accompanying charts in the post further highlight this range of estimates.

Voluntary Human Shields & International Humanitarian Law: Issues of Identity and Immunity Stratification

Voluntary human shields (VHS) occupy a nebulous spot on the civilian/combatant scale, and as such there is significant debate as to how VHS ought to be classified. The civilian/combatant dichotomy in the 21st century is in certain situations very permeable, and “as the inverse figure of the suicide attacker, the human shield who sacrifices his/her life not to destroy and terrorize others but to resist organized violence and protect others deserves the scrutiny as a similarly symptomatic figure of the present.”1 The parallel with terrorism is apt for both comprise some of the most nuanced and divisive issues in international law.

Just as one man's terrorist is another man's freedom fighter, there exists differing opinions regarding the legal status of VHS. The legality of VHS rests on three factors. Firstly, in order to discuss VHS one must distinguish between combatants and civilians. This is necessary to then determine the level of involvement permitted as well as the rights and responsibilities allocated to both. Secondly, a large part of VHS' legal status hinges on whether they act in a manner which constitutes direct participation in hostilities, thus rendering them legal targets, either as fighters or illegal combatants. Thirdly, the legality of VHS stems less from their actions as human barriers per se, and more from the legal, moral and military characteristics of the individuals or objects under their protection.

This paper argues that VHS manifest themselves in one of three ways, each with varying degrees of legality. VHS defending military personnel and objects are to be viewed as misappropriating and thereby forfeiting their civilian immunity. VHS defending objects and facilities which do not possess an overtly military nature (such as bridges), yet which can take on a martial nature if co-opted by combatants, ought not to be engaged, yet find themselves at the mercy of events. The final category comprises of VHS which defend civilians and humanitarian objects. This group is protected by civilian immunity, as well as (in the case of foreign nationals) the rights of aliens: any violence directed towards them is legally and morally abhorrent.

Civilian or Combatant - Issues of Identity in Warfare

The delineation of individuals in combat zones as either civilians (non-combatants) or combatants poses challenges when considering the role and position of voluntary human shields. It is necessary to distinguish between civilians and combatants in order to identify legitimate targets and recognize which parties are legally permitted to engage in hostilities. International customary and humanitarian law have on numerous occasions elucidated the guidelines and prohibitions surrounding the treatment of non-combatants. Attacks on civilians and civilian objects (such as property, and facilities), either deliberate or indiscriminate in nature are banned under international law.

The emergence of total warfare during the 20th century, combined with an increase in intra-state, sub-national conflicts stoked by ethno-religious violence, has resulted in civilian deaths accounting for the vast majority of causalities. The rapid of evolution of military technology also exposed non-combatants to an array of new dangers, as witnessed by the 1923 Hague Rules of Air Warfare, which sought an injunction against the indiscriminate bombardment of civilian populations.2 With civilians bearing the brunt of aggression in modern warfare, international law has sought to address this development by enshrining strict rules of conduct for combatants vis-à-vis civilian populations.

In order to determine which individuals and groups constitute combatants, and before it is possible to delineate combatant duties and responsibilities, it is necessary to distinguish fighters from civilians. Under international law the definition of a civilian is purely negative, namely civilians are simply regarded as those individuals which neither directly participate in hostilities, nor are part of the armed forces, resistance movements or militias.3 Such a non-specific definition is typical of international law. The brevity of the definition is not the result of insufficient attention to the issue of civilians in warfare but rather the “reason for abstaining from giving [a positive definition] was to avoid limiting the concept of civilians; the drafters of the Geneva Conventions and the Protocols also wished to avoid the risk of leaving behind exceptions or specific cases. Any strict definition might indeed exclude certain civilians, or the people who fall in between categories.”4 5

This ambiguity is key because “if the human shield is a civilian, he therefore enjoys the protection associated with civilian status and cannot be targeted during an attack.”6 Opponents of the VHS-as-civilian stance, argue that the actions of such individuals interfere in military operations, thereby signalling combatant status. The debate surrounding VHS, demonstrates that the hesitancy of international law to revoke civilian status is well placed. This caution is demonstrated in the Additional Protocols I (API), which adopted the “principle of distinction” (between military and civilian objects and persons) in 1977.7 More specifically, Article 50 of API states that when in doubt, a person will be considered a civilian.8

Civilians Have Rights, but also Corresponding Duties

Civilians are in turn imbued with various rights and protections under international law, namely against attacks on their persons or property (civilian objects are, like civilians themselves negatively defined as merely those objects which are not military objects).9 Under Additional Protocol II (APII) Article 13.1, “[the] civilian population, and individual civilians shall enjoy general protection against the dangers arising from military operations.”10 Under international law, civilians are immune from attack, and any violence done unto them is considered a war crime. The protection afforded to civilians is such that it debars them from engaging in hostilities, or any form of armed resistance, even in cases of self-defence.11 12

Engaging in hostilities voids civilians status and designates individuals (if not part of an official military or armed group) as unlawful combatants. While civilians are not allowed to engage in hostilities, they may also, under Article 8 of the Fourth Geneva Convention (GCIV) “in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the forgoing Article.”13 The actions of VHS are argued by some to constitute an illegal renunciation of these rights, thereby constituting a breach of international humanitarian law. Consequently VHS are seen by some to fall outside of the scope of protected persons as enumerated by GCIV Article 4, for protected persons cannot renounce their Article 8 rights.14

Claims regarding the alleged illegality of VHS, cite the prohibitions in international law against the use of human shields. This prohibition can be traced back to the Hague Regulations of 1907, and appears in the British Manual of Military Law issued during the First World War, which states that “placing prominent citizens on trains in occupied territory to prevent attacks cannot be considered a commendable practice.”15 Where explicit reference is made to human shields in international humanitarian law, the shields in question are assumed to be acting under duress, most often either as prisoners of war or subjects of autocratic regimes. In 1949 GCIII (Article 23) and GCIV (Article 28) had originally limited their understanding of the prohibition on human shields to the use of POWs and other protected persons by regimes respectively.

Does International Law Address VHS?

Specifically Article 28 of GCIV (Protection of Civilian Persons in Time of War) states that “the presence of a protected person may not be used to render certain points or areas immune from military operations.”16 This prohibition was eventually expanded to include the whole civilian population in 1977 under API Article 51(7) which explicitly states that “the use of civilians [as well as captured enemy personnel] to shield a military objective or operation is forbidden. It is also forbidden to use them to obstruct an adversaries operations...[This article] is undoubtedly reflective of customary international law in both international and non-international armed conflict.”17 Article 51(7) speaks to the often involuntary nature of most human shields, such as the 1997 actions of Saddam Hussein.

Fearing a coalition attack in order to enforce UN weapons inspections, Hussein announced that citizens had “voluntarily” gathered around potential targets, with Saddam thanking “all the sons of the great people of Iraq [for being] a strong shield against unjust aggression.”18 These actions were obviously coerced, a fact which is acknowledged by international humanitarian law. The ICRC states that individuals compelled to act as human shields are not considered to be direct participants in hostilities, and therefore not legitimate targets, even if they are surrounding military objectives or objects.1920

The language employed by the various legal prohibitions against human shields all implicitly assume the presence of some coercive force, such as a state or terrorist group which wields the human shields as a tool for their own nefarious goals. There is a trend to only ascribe agency to the state actors involved in human shield scenarios; ignoring the role of the shields themselves. Such language precludes the possibility of individuals operating on their own accord, potentially not connected to or interested in any one group party to the conflict. The moral and legal infraction implied by the aforementioned Articles is that a third party is putting civilians in danger. Like the efforts of Saddam, in 2006 Iran positioned approximately one thousand athletes around a nuclear reactor in Isfahan: a scripted media event, including free T-shirts spouting anti-Western and pro-nuclear energy slogans.21

The presence of these human shields in Iran and Iraq, despite being illegal under international law, were - in the event of an American or Israeli attack – not to be targeted. Specifically, the employment of human shields by the Iraqi and Iranian government does not deprive those civilians of their legal rights, for according to Article 51(8) of API “any violation of these prohibitions shall not release the parties to the conflict from their legal obligations with respect to the civilian population.”22 However, “although VHS do not lose their right to protection as civilians, they may lose their de facto protection by staying close to a military target.”23 This distinction in turn illustrates the point that “current interpretations of international law scrutinize the actor forced to make a difficult decision just as much (if not more than) the actor who created the scenario by actions that were, in themselves, violations of international law.”24 Under international law parties to the conflict are to be considered war criminals if they employ human shields. According to Elements of Crimes (2002), state actors are guilty of war crimes if they:

  1. moved to take advantage of the location of persons protected under international law
  2. intended to shield military targets from attack or favour / impede operations 
  3. acted in the context of or was associated in international armed conflict 
  4. was aware of factual circumstances that established existence of armed conflict25

The emphasis on state actors and international armed conflict demonstrates the narrow focus of much of the dialogue surrounding the issue of human shields. VHS can easily fulfil conditions ii to iv, yet not the first clause, for this refers to the use of shields, not shields themselves. To employ Kantian terminology, states use human shields as simply a means, whereas VHS exist as both a means and an end.

It is apparent that there exists no reference to VHS in the aforementioned texts, yet Al-Duaij argues that “the mere fact that voluntary shielding was not in the contemplation of the drafters does not necessarily suffice to remove voluntary shielding from its reach. International humanitarian law is and must remain, responsible to the evolving nature of warfare.”26 Consequently, the issue of VHS has been addressed in recent years by several legal bodies such as the International Criminal Court (ICC), which states that “it is prohibited to use civilians to form human shields, and it is considered a war crime by Article 8(2) of the Rome Statute. The prohibition remains even if the civilians consent.”27 28

Lessons from Israel

Israel has witnessed many instances of voluntary human shields, such as the efforts by Palestinian civilians in Ramallah in surrounding Yasser Arafat's compound in 2003. Similarly Hamas urged Palestinian women to enter a mosque housing militants under siege by the Israeli army. These women clothed the militants in female attire and shielded them as they escaped.29 While one can question whether said action was truly voluntary, it is certainly plausible, given that Hamas does not enjoy the levels of autocratic power and command as Iraq or Iran over the civilians under its jurisdiction. Voluntary or not, such levels of intervention by the Palestinian women was seen as crossing the line, and Israel decided to view them as combatants. Furthermore, the Israeli Supreme Court ruled in 2006 that;

Certainly if [human shields] are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism. However, if they do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in the hostilities30 31...[This view argues that support for such organizations can equate to direct participation, echoing Uwe Steinhoff, who writes that]...a civilian – an alleged non-combatant – may support soldiers qua soldiers and deliberately support the war and engage in an effort to destroy the enemy at least as much as do the soldiers themselves.32

[In PCATI v. Government of Israel the court decided that] the Palestinian militants fail to meet the qualifying conditions set in the Hague Regulations and in the Geneva Conventions for combatants. Consequently they are civilians. They are not, however, entitled to the full protection granted to civilians who do not take a direct part in hostilities.33

Voluntary human shields illicit strong opinions from many experts, who in turn have been unable to reach a consensus as to the legality or role of VHS. Since voluntary human shields do engage in actions which can be viewed as direct participation in hostilities, the debate as to whether they constitute civilians or combatants centres on definitions of direct participation. Bargu argues that VHS do not directly participate, rather human shields “attempt to transform the idea of non-participation in hostilities as the defining feature of the civilian qua legal subject from a deficiency for any politics into an active potential for oppositional politics and from a victim to a non-violent political actor who challenges the organized powers that engage in armed conflict.”34 35 According to Van Engeland, under international humanitarian law, the term “direct participation in hostilities” is not explicitly clarified; however, there exist several attempts to describe it nonetheless. The ICRC states that;

undoubtedly there is room here for some margin of judgement: to restrict [direct participation] to combat and to active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly.36 [Similarly Steinhoff argues that] combatants are those anywhere within the chain of command or responsibility...the links of the chains are held together logically and not merely causally, i.e. all [are] held together, in this case, under the notion of who it is that is engaged in an attempt to destroy you. The farmer qua farmer is, like the general performing actions which are casually necessary for your destruction; but unlike the general, he is not necessarily engaged in an attempt to destroy you...the farmer is aiding the soldier qua human being, whereas the general is aiding the soldier qua soldier.37

How Much Support is Too Much? The Issue of Direct Harm

The issue of direct harm is an important issue in determining direct participation, for the latter requires an immediate threat to be evident from the actions of parties to the conflict in order to qualify as such.38 The actions of all civilians in armed conflict contribute in some minor or indirect way to the war effort, yet civilians still retain their protected status. Schmitt speaks to this issue of direct/non-direct participation, writing that instead of a clear dichotomy there exists a participation continuum which ranges from general support of the war effort all the way to conducting combat operations.39 Human Rights Watch also argues along similar lines, highlighting the slippery-slope of direct participation, arguing that human shields “like workers in a munitions factory” contribute indirectly to the war capacity of a state.40

Furthermore Schmitt talks about the “kill-chain” - an action is considered direct participation if it necessary to accomplish “the kill”. Schmitt thereby limits direct participation to those things directly related to the use of force.41 The challenge is to determine what constitutes a significantly direct enough action to be considered a harmful act. Individuals can engage in acts which may harm the enemy, yet which may not do so in an offensive manner or use force.

In international law there are several examples of groups whose treatment offers insights into the potential status of VHS. Those in favour of viewing VHS as combatants can point to the status of the levée en masse, in which the civilian population spontaneously rises up against aggressors. In such cases the ordinary requirements of combatant status (about carrying arms openly, being organized or wearing emblems) are waived for the civilian population.42 The levée en masse is considered a belligerent and a direct participant in hostilities, despite not adhering to the traditional description of a combatant. It can be argued that VHS could be viewed in a similar light, as they too lack many of the defining feature of combatants, yet still (arguably) directly participate against aggressors.

Conversely, proponents of viewing VHS as non-combatants can cite Protocol I Article 65 which gives civilian defence personnel and organizations non-combat immunity.43 These organizations exhibit characteristics of combatants, as they have an organized command structure, recognized insignia, and can constitute of either volunteer or conscripted individuals. These defence organizations are tasked to protect the civilian population and infrastructure. If such organizations which exhibit martial qualities can be protected, then arguably the far more informal and by extension “more civilian-like” groups such as VHS who also protect civilians ought to fall under the protection of international law as well. The examples of the levée en masse and civilian defence organizations demonstrate that the gap between VHS and either combatant or non-combatant status as well direct and indirect participation is not as wide as it first appears.

The International Committee of the Red Cross (ICRC) defines direct participation in three parts. It is interesting to note that the issue of VHS fell into a category of unclear situations which caused consternation for participants at the first ICRC Conference on Direct Participation in Armed Conflict. The delegates could not categorize VHS because they disagreed on the issue of distinguishing different classes of civilians, arguing against a stratification of civilian status.44 Lyall agrees with this wariness against delineating among civilians, arguing that the graduation of civilian statuses is not the way to go, as it does not offer a better outcome than considerations of proportionality.45 Despite this refutation of civilian status stratification, Lyall does state that “harming such civilians [VHS], even if the result is death, is permitted, on the condition that there is no other less harmful means, and on the condition that innocent civilians nearby are not harmed.”46

Defining Direct Participation in Conflict Zones

According to the ICRC, direct participation comprises firstly of acts which “must be likely to actively affect the military operations or the military capacity of a party to an armed conflict.”47 Secondly there must exist a direct causal link between the act and any harm likely to result therefrom. Lastly the act must be designed to directly cause the necessary level of harm as part of support for a party to the conflict.48 Any action which adversely affects the enemy can be viewed as direct participation, as noted by Article 71(4), which states that relief personnel in areas of conflict must not exceed the terms of their mission.

Moreover said relief personnel are not to engage in any action which might adversely affect their status as civilians. This invocation for the exclusion of “acts harmful to the enemy” rests upon a very broad definition of harm; “[referring] not only to direct harm inflicted on the enemy, for example by firing at him, but also to any attempts of deliberately hindering his military operations in any way whatsoever.”49 If presenting a hindrance to military operations suffices to constitute harm to the enemy and therefore direct support, are not VHS deeply implicated, as creating hindrances comprises a chief aspect of human shields?

Writers such as Schmitt,50 and Dinstein51 argue that the actions of VHS suffice to be considered direct participants. Moreover Van Engeland notes that common human shield actions such as road blocks constitute military harm.52 Bouché de Belle disagrees with Schmitt and Dinstein, arguing that the actual physical nature of a VHS presents very little actual hindrance. Very little fighting by infantry units would suffice to quickly overwhelm a human shield. Furthermore, Bouché de Belle argues that VHS in the vicinity of military targets present no actual shield against airstrikes, merely a legal one – no material hindrance to destruction is present.53 This is counter to Schmitt's claims that Serbian VHS in Kosovo who were protecting (arguably) legitimate targets (bridges) were therefore no different from air defences; “the bridge occupiers lost their non-combatant immunity. In essence they made themselves part of the bridges defence system.”54

Schmitt continues by claiming that “[civilians] who do directly participate in hostilities may be legally targeted and their injury or death does not bear on such conduct of hostility issues as proportionality or precautions in attack.”55 Bargu counters the type of language used by Schmitt, claiming that with the “infiltration of military logic into humanitarian interest, civilian deaths tend to be folded into the attendant category of collateral damage that is in an increasingly symbiotic and complicit discursive relationship with military necessity.”56 Whereas Bouché de Belle also describes the VHS as defences, albeit rather impotent legal ones, she maintains that “it would be therefore seem overbold to declare an obstacle of that nature to be direct participation in hostilities.”57

If however, VHS do indeed constitute direct obstacles and threats to enemy forces, “the presence of human shields will not therefore systematically prevent an attack – even if conducting an attack despite their presence may have a considerable media and political impact. This is something that should be made widely known, particularly to potential voluntary human shields.”58 59 Bargu references the actions of 750 Turkish activists of Diyarbakir Youth Platform, who supported by the pro-Kurdish Democratic People's Party (DEHAP), created a three kilometre human chain around Kurdish forces in September 2004. Despite their vicinity to military targets, their presence did not stop the aerial bombardment.60

Preservation of Civilian Immunity Ultimately Predicated on Status of the Protected

VHS protecting military personnel of one side or another, can be reasonably viewed as being in breach of their civilian status; however, most incidents of VHS witness the protection of civilian and military buildings and objects, as demonstrated by the VHS in Kosovo. Several prominent incidents of VHS occurred as civilians in Kosovo occupied bridges in an attempt to prevent their destruction by NATO aircraft. The strategic importance of a bridge is obvious, yet it does not merely possess military characteristics, it is inoffensive, yet still a target. This again brings up the question of what constitutes a military target. Can the present use of a school by military forces make it a target when it is unoccupied? Similarly can the potential future intended use of a building, in this case a bridge (to facilitate troop movement) override or replace its original civilian intention as a link between peaceful communities?61

For instance during the NATO bombing of Belgrade, the civilian radio station Radio Televizija Srbija (RTS) was bombed because it was being used by the military, yet only civilians were killed (no VHS were present at RTS), yet the target was considered legitimate because it had been appropriated by armed forces.62 Returning to the bridges in Kosovo, the US Air Force states that the presence of human shields does not bar attack if they are protecting a legitimate target.63 Despite the bridges being viewed as legitimate targets, and counter to Schmitt's assertion that VHS become mere defence systems, Michael McGuinty of the Royal United Services Institute writes that;

it is a straightforward battle between military necessity and non-combatant immunity, but there is this third factor of voluntarism. So if you're fighting a war which claims in some way to be moral or such as in Kosovo – you'd perhaps recall the bridges with voluntary shields on [them] weren't bombed – you'd perhaps be more restrained. If it's perhaps a more unrestrained war overall then the voluntary human shields might find themselves swept aside and killed anyway. [But] the prejudice has to be against going into action against them.64 [Consequently as Bargu argues] human shields put into question the maxim that inter arma silent leges and they bring to the public agenda the morality and legality of the conflict.65

VHS raise the issues of morality and legality during war, thereby problematizing armed conflict. By drawing domestic and international focus to aggressors, VHS seek to utilize the “CNN effect” in which images of civilian casualties increase the effectiveness of VHS.66 The greater number of witnesses of VHS, the greater their political clout becomes, yet the nature of media attention is such that the efforts of indigenous VHS are often overshadowed by (often smaller) efforts by foreign (read white) activists. More attention was given to foreign individuals in Iraq than similar efforts by domestic groups in Turkey.67 The higher level of attention garnered by foreign VHS is criticized by Bargu who claims that “within a context where some lives are more equal than others, human shields try to overturn this implicit hierarchy by offering their own lives for the protection of those deemed less worthy than human shields themselves.”68

Such sentiments are acknowledged and voiced by foreign VHS themselves, such as ex-marine and leader of Truth, Peace & Justice, Ken O'Keefe, who discusses the efforts in Iraq in 2003. O'Keefe elaborates on his organizations plans, for if enough Westerners are in the country, they [the US-led coalition] will be reluctant to bomb: “they don't want Western body parts flying everywhere,”69 the implication of course being that non-Western airborne bodies represent a less grave outcome. It is important to note that significant danger still face foreign VHS, as seen by the death of activist Rachel Corrie in March 2003 when she was crushed by an Israeli bulldozer, whilst protecting Palestinian houses from demolition.70

The participation of foreign nationals in VHS adds a new element to the debate, for such individuals are protected by both civilian immunity as well as the protections ascribed to aliens. Al-Duaij argues that foreign VHS ought to enjoy the status of aliens in the territory of a party in conflict, pursuant with Articles 35 and 36 of GCIV.71 The rights for aliens surround the issue of freedom of movement, for if the hosting country requests the departure of VHS, they are bound by the decision, otherwise their safety cannot be guaranteed. Furthermore Article 35 accords aliens the right to depart territories, with the provision of necessary funds as well as an allowance for a reasonable amount of personal belongings.

Similarly Article 36 states that aliens are to be guaranteed the requisite conditions for departure (hygiene, safety, sanitation and food).72 Moreover Al-Duaij contends that foreign VHS are those“individuals who voluntarily seek to shield civilians or civilian properties without showing any support to any of the parties in conflict and who [in turn] have unconditioned freedom to abrogate the mission at any time.”73 The influx of foreign VHS to Iraq in 2003 was driven by the wish to show solidarity with the Iraqi people and to defy the aggressor coalition nations to bomb their own civilians; not as an endorsement of the Hussein government.74 VHS (especially foreign VHS) who protect civilians or humanitarian sites (listed under the Geneva Convention as important sites for the civilian population such as water treatment plants, food silos, hospitals and archeological sites) enjoy strong arguments for civilian immunity.75

The exclusive protection of explicitly non-military individuals and objects diffuses allegations that VHS can aiding a party to the conflict, or are directly intervening in hostilities. Individuals who participate in human shields who do so out of their own free will need to be aware that the legal protection afforded to them does not in and of itself rest upon their act of shielding, but rather their situation in armed conflicts relates directly to the individuals and objects under their protection. There exists a continuum along which the actions of VHS fall. VHS which directly intervene to shield military personnel or explicitly military objects (weapon systems), such as the actions of the Palestinian women do so at their own risk.

By employing their status as civilians they, either intentionally or unwittingly augment a party to the conflict with elements of civilian immunity. By shrouding military force in the legal and moral web of civilian immunity, VHS breach international law. Whereas aggressor forces ought to make efforts to minimize the amount of violence directed against such VHS, it remains permissible to engage the protected military objective. VHS protecting (potential) military targets, such as the bridges in Kosovo, represent the most difficult case, in which the words of McGuinty remain highly relevant. VHS employ the language of morality and as such, conflicts which are fought along moral lines and/or are limited in nature, ought to see those touting the moral high-ground not place humanitarian below military concerns.

Lastly, incidents in which VHS seek to protect civilian and humanitarian targets, should be protected under the auspices of civilian immunity as enshrined by international law. The participation of foreign nationals in VHS only further solidifies their protection under international law, as they (rightly) enjoy protection as non-interfering civilians and as aliens. Their efforts to shield the civilian population represent a concern for a common humanity and is as such beyond the political machinations and violence inherent in armed conflict.

Works Cited:

Al-Duaij, Nada. “The Volunteer Human Shields in International Humanitarian Law.” Oregon Review of International Law, Vol. 12, No. 1 (2010), 117-138.

Banu Bargu, “Human Shields,” Contemporary Political Theory, (March 19th 2013), 1-19

Bouché de Belle, Stéphanie. “Chained to Cannons or Wearing Targets on their T-Shirts: Human Shields in International Humanitarian Law.” International Review of the Red Cross, Vol. 90, No. 872 (Dec. 2008), 883-906.

Brun-Rovet, Marianne. “Human Shields Prepare for Trip to Baghdad.” Financial Times. January 11th 2003. 1-6.

Dieter, Ingrid. The Law of War. 2nd ed. Cambridge: Cambridge University Press, 2000.

Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict Cambridge: Cambridge University Press, 2004.

Kretzmer, David. “Civilian Immunity in War: Legal Aspects.” in Civilian Immunity in War, ed. Igor Primoratz. New York: Oxford University Press, 2007. 84-112.

Lyall, Rewi. “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States.” Melbourne Journal of International Law, Vol. 9, (2008), 313-333.

Melzer, Nils. “Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.” International Review of the Red Cross, Vol. 90, No. 872 (2008), 992-1047.

Russell, Ruth. interview by Allison Murchie, South Australians at War, OH670, Government of South Australia, 1-5.

Schmitt, Garraway and Yoram Dinstein. Manual on Non-International Armed Conflict. Geneva: International Institute of Humanitarian Law, 2006.

Schmitt, Michael N. “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees.” Second Expert Meeting on the Notion of Direct Participation in Hostilities, The Hague: ICRC, Oct. 25-26th 2004. 1-25.

-----. “Human Shields in International Humanitarian Law,” Colombia Journal of Transnational Law, Vol. 47. (2009), 547-586.

Schoenkase, Cpt. Daniel P. “Targeting Decisions Regarding Human Shields.” Military Review, Vol. 84, No. 5 (Sept/Oct. 2004), 26-31.

Steinhoff, Uwe. “Civilians and Soldiers.” in Civilian Immunity in War. ed. Igor Primoratz. New York: Oxford University Press, 2007. 42-61.

Van Engeland, Anicée. Civilian of Combatant? A Challenge for the Twenty-First Century. New York: Oxford University Press, 2011.


1Banu Bargu, “Human Shields,” Contemporary Political Theory (March 19th 2013), 3.

2Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), 116-117.

3Anicée van Engeland, Civilian of Combatant? A Challenge for the Twenty-First Century (New York: Oxford University Press, 2011), 29.

4Van Engeland, 29.

5Michael N. Schmitt, “Human Shields in International Humanitarian Law,” Colombia Journal of Transnational Law, Vol. 47. (2009), 316. – the ICRC states that “unlikely that [the shielding] norm was originally devised to cover an event where individuals acted knowingly and on their own initiative”

6Stéphanie Bouché de Belle, “Chained to Cannons or Wearing Targets on their T-Shirts: Human Shields in International Humanitarian Law,” International Review of the Red Cross, Vol. 90, No. 872 (Dec. 2008), 892.

7David Kretzmer, “Civilian Immunity in War: Legal Aspects,” in Civilian Immunity in War, ed. Igor Primoratz (New York: Oxford University Press, 2007), 88.

8Van Engeland, 30. - the travaux preparatoires for API note confusion and concern concerning the mandate of Article 50, which signatories felt overlapped with Article 5 of the Third Geneva Convention (GCIII) which states that “in case of doubt regarding the status of a person who has committed acts of belligerency, the person will be protected by GCIII until his status id determined by a competent tribunal.” As to the relevancy of these articles to voluntary human shields, Article 50 remains pertinent, whereas Article 5 refers to individuals who have identified themselves as belligerents.

9Cpt. Daniel P. Schoenkase, “Targeting Decisions Regarding Human Shields,” Military Review, Vol. 84, No. 5 (Sept/Oct. 2004), 28. - Article 52(2) General Protection of Civilian Objects, states that attacks on objects are to be strictly limited to “those objects which by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time, offers a definitive military advantage.”

10Schmitt, “Human Shields in International Humanitarian Law,” 306.

11Ingrid Dieter, The Law of War, 2nd ed. (Cambridge: Cambridge University Press, 2000), 140.

12Michael N. Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” Second Expert Meeting on the Notion of Direct Participation in Hostilities, (The Hague: ICRC, Oct. 25-26th 2004), p 6. - it is important to note that “defending any personnel or property against looters or others (including lawful combatants) engaged in criminal activity or war crimes does not comprise direct participation.”

13Nada Al-Duaij, “The Volunteer Human Shields in International Humanitarian Law,” Vol. 12, No. 1 (2010), 125.

14Rewi Lyall, “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States,” Melbourne Journal of International Law, Vol. 9, (2008): 318.

15Schmitt, “Human Shields in International Humanitarian Law,” 293.

16Schoenkase, 28.

17Michael N. Schmitt, Charles H.B. Garraway & Yoram Dinstein, Manual on Non-International Armed Conflict, (Geneva: International Institute of Humanitarian Law, 2006), 44.

18Al-Duaij, 128.

19Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees” 19.

20Schoenkase, 28. - Article 51(7) states that “the parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objective from attack.” This injunction relates in part to Article 58 in which “parties to the conflict, to the extent feasible shall remove the civilian population and material under their control from the vicinity of military objectives, avoid locating military objectives within or proximate to densely populated areas, and take other necessary precautions to safeguard the civilian population an civilian objects under their control against the dangers of military operations.”

21Lyall, 316.

22Bouché de Belle, 899.

23Bouché de Belle, 897

24Lyall, 328. - Lyall goes on to cite Fischer who conversely argues that “responsibility for deaths of human shields should fall more on the states which put them there, rather than combatants exercising self-defence.”

25Bouché de Belle, 898.

26Al-Duaij, 120.

27Van Engeland, 110.

28Schmitt, “Human Shields in International Humanitarian Law,” p. 307. - Rule 97 of the ICRC International Customary & International Humanitarian Law states also states that “the use of human shields is prohibited”

29Al-Duaij, 127.

30Al-Duaij, 129.

31Lyall, 320. - Israeli courts have also ruled that “a civilian takes a direct part in hostilities when he is physically engaged in them or when he plans, decides on and sends others to be thus engaged. At one of the spectrum, a civilian bearing arms who is on his way to (or from) the place where he will use (or had used) the other [end] are cases of indirect support, selling of supplies and financing hostile acts. In between are the hard cases, where the function that the civilian performs determines how direct a part he takes in the hostilities; in this middle area, collecting intelligence, servicing weapons and functioning as a human shield are direct acts of participation.”

32Uwe Steinhoff, “Civilians and Soldiers,” in Civilian Immunity in War, ed. Igor Primoratz (New York: Oxford University Press, 2007), 44.

33Lyall, 317.

34Bargu, 7. - emphasis added.

35Bargu, 14. - Bargu continues by stating that “human shields problematize the very idea of protection...the etymology of “target” itself points to targa, meaning a protective shield...the movement from target to targeting, or the transformation of the noun into a verb with military and political connotations is symptomatic of the underlying concern for the desire of protection. The equivalence established between protecting and targeting resides in the very tension born in the identity of the human shield, bringing together the vulnerability of the human as target and the possibility of protection as shield.”

36Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 15.

37Steinhoff, 43.

38Bouché de Belle, 894-895.

39Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 15-16. - “It is not necessary that the individual foresaw the eventual result of the operation, but only that he or she knew their participation was indispensable to a discrete hostile act or series of related acts.”

40Schoenkase, 26.

41Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 16.

42Dieter, 140.

43Dinstein, 150.

44Lyall, 317.

45Lyall, 331.

46Ibid, 324.

47Nils Melzer, “Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,” International Review of the Red Cross, Vol. 90, No. 872 (2008), 995.

48Melzer, 996.

49Dinstein, 150-151.

50Schmitt, “Human Shields in International Humanitarian Law,” 321.

51Dinstein, 130.

52Van Engeland, 106.

53Bouché de Belle, 896.

54Schmitt “Human Shields in International Humanitarian Law,” 320-321.

55Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 6.

56Bargu, 7.

57Bouché de Belle, 896.

58Bouché de Belle, 900.

59Schmitt “Human Shields in International Humanitarian Law,” p. 336. - “although striking a voluntary shielded target may be lawful, conducting attacks that harm human shields will more often than not prove counter-productive.”

60Banu, 3.

61Kretzmer, 88.

62Van Engeland, 52.

63Al-Duaij, 127.

64Lyall, 330.

65Bargu, “Human shields do not wage war; they wage law.” 7.

66Schmitt, “Human Shields in International Humanitarian Law,” 318.

67Bargu, 15.

68Bargu, 14.

69Marianne Brun-Rovet, “Human Shields Prepare for Trip to Baghdad,” Financial Times, (January 11th 2003), 1.

70Bargu, 2.

71Al-Duaij, 133.

72Al-Duaij, 136.

73Al-Duaij, 124.

74Ruth Russell, interview by Allison Murchie, South Australians at War, OH670, Government of South Australia, 2.

75Ruth Russel, 2.

Tuesday, 5 August 2014

Out of (Ying) Luck: Thai Junta Appoints New Legislature Following Coup

The bloodless ousting of Thailand's Prime Minister Yingluck Shinawatra on May 22nd is just the latest in a series of coups which have occurred in the last eight years, to say nothing of the litany of similar actions in past decades. The seeming regularity with which such events occur has (unfortunately) led to putsch joining prostitution in becoming the two most common stories propelling Thailand into the news. The actions of the military have long played an important part in Thai politics, yet the armed forces do not fall into the typical profile of power hungry militarists. It is tempting to lump the actions of the Thai military with those of similar juntas in Burma, Cambodia, and Laos as merely another South-East Asian army demonstrating the region's tendency to fall into authoritarianism.

The reality of the situation is more complicated. Throughout the 20th century the military has intervened in Thai politics (1932 saw a bloodless revolution, the implementation of a constitution and the end of absolute monarchical rule), repeatedly interceding to 'save' the country from messy democratic governments. Successful interventions have often occurred following popular unrest, and always with the consent of the monarchy, for whom stability is paramount. Conversely, during the 1973 democracy movement the King sided with the public, seeking to remove heavy-handed military rulers.

King Bhumibol Adulyadej, Rama IX of Thailand
Photo Credit:

Since the 1970s proto-democracy intermingled with growing modernization and intermittent military directed regimes, with the King at the center of affairs. By the 1990s Thailand's democratic credentials were slowly improving, following successive elections. Then in 1997 Asian Financial Crisis caused the incumbent government to deal with the International Monetary Fund (IMF) and its accompanying demands. During the 2001 election, the Chuan government's handling of the crisis caused serious debate, with his challenger Thaksin Shinawatra running on a populist platform. Thaksin won the election and the story of Thai politics for the following thirteen years has been the tensions between the Shinawatra family and urbanites, cosmopolitan elites, and elements of the military-monarchy establishment

Thaksin Shinawatra
Photo Credit: The Telegraph

While Thaksin was able to turn the Thai economy around, he remains loathed by many due to allegations of corruption, money laundering, fund siphoning, non-judicial killings and other nefarious acts. In addition to its hold on political power, the Shinawatra family have made billions by controlling Shin Corporation, one of Thailand major telecommunications firms. Thaksin was ousted in coup in 2006, with at least implicit consent of King Bhumibol, and went into self-imposed exile in 2008. Significant anti-Shinwatra sentiment also stems from opponents of the family's populist policies, notably the rice-buying program. This program buys rice from farmers at above market prices, ensuring rural support, but is extremely expensive and riddled with corruption.

Happier Times: Yingluck Shinawatra campaigning in 2011
Photo Credit: The Times

Protests against the Yingluck government during 2013-2014 led to dozens of deaths, with the military eventually stepping in to oust Yingluck. The military sided with the urban population and elites who had protested against Yingluck's government, wanting an end to Shinawatra dominance of Thai politics. Following the coup on May 22nd the King appointing General Prayuth as leader on May 26th. Royal assent is crucial to any Thai government and the King's actions provided a stamp of legitimacy to the new military order. While she was briefly seized, Yingluck has since been allowed to leave the country on a personal trip. Despite this Yingluck remains under investigation by an anti-corruption body over the rice-buying program.

Interim Leader Prayuth Chan-O-Cha
Photo Credit:

On August 1st the junta government, the National Council for Peace and Order (NCPO) appointed current and ex-military officials to the majority (116 of 200) of seats in the interim legislature. The junta has also purged allies of Yingluck from government. Crucially, the King has approved of these appointments, and has selected army chief Prayuth Chan-O-Cha as interim leader.

Furthermore there is currently an interim constitution in place which gives the NCPO immunity as well as the ability to override the legislature and interim government. A national reform council has been implemented to create a permanent constitution that could take effect by July 2015. This is in line with other statements made by Chan-O-Cha that the junta is ruling out holding out elections until October 2015.

Sunday, 3 August 2014

Asymmetry Through the Ages: The Myth of Irregular Warfare as Modern Phenomenon

The collapse of the Soviet Union and the end of the Cold War saw the United States as the unchallenged hegemon. America in all its military superiority and glittering technological panoply now stood with no enemy in sight. During the 1990s and into the new millennium the political community witnessed the re-emergence of asymmetrical conflicts, with irregular forces now the commonplace enemy. Consequently international relations at the beginning of the 21st century is characterized by several new factors. Firstly there has been a marked decline in the level of inter-state warfare; specifically a virtual cessation of great power conflict has occurred following the Second World War. With the end of the Cold War, most developed states such as the United States, Western Europe and Japan, inhabit a “security community in which war is unthinkable.”1

Specifically changes in the national identities of many former colonial powers and traditional rivals, has resulted in the decline of territorial disputes and other historic causes for war.2 As such, the probability of states engaging in conflict is at its lowest since the early 1950s; however, most modern conflicts are not purely inter-state affairs.3 While the possibility still exists of conflict between the United States and major powers not party to the aforementioned security community (Russia, China), the potential 'sparks of war' have also changed. Whereas it is theoretically possible to conceive of conflicts between China and America over Taiwan, or with Russia over the Baltic states, these conflicts would result not from traditional great power interests, rather from “milieu goals” such as democracy and self-determination.4

Ideals and ideologies are presently the most potent drivers of modern conflicts. These conflicts have been instigated by the re-emergence of national, racial, ethnic and religious forces. Moreover the vast majority of conflicts in the post-WWII era have been of an asymmetrical nature. Since the early 1990s asymmetrical threats and low intensity conflicts have become prominent topics in debates concerning (inter)national security.5 These so called “new wars”6 are viewed by many as a new paradigm in warfare for “given the scale and frequency of war amongst the great powers in the proceeding millenia, this is a change of spectacular proportions, perhaps the single most striking discontinuity that the history of international politics has anywhere provided.”7
Contrary to such hyperbolic claims, asymmetrical warfare is by no means a recent phenomenon, rather it has been an integral facet of warfare throughout human history. This paper argues that examples of asymmetrical conflicts litter history, and that their legacy and lessons are of great importance. This paper shall also demonstrate that the challenges faced and counter-measures undertaken by modern actors find many parallels in the historical record.

Hearts and Minds, Guerrillas and Guardsmen

Asymmetrical conflicts manifest themselves as insurgencies and guerrilla wars. Such conflicts are characterized by a lack of large confrontations, with insurgents electing to attack the stronger force via hit-and-run tactics.8 Insurgents also utilize superior local knowledge and their environments to counter superior firepower and technology, while operating unseen amongst the general population.9 In such conflicts, no real battlefield exists, and conflicts are characterized by an oft maddening fluidity between combatants and civilians.10

Insurgencies and their corresponding counter-insurgencies see governments waging war against non-state actors, with significant portions of the populace potentially supporting either side.11 As a result the “shooting side of this business is only 25 per cent of the trouble and the other 75 per cent lies in getting the people behind us.”12 The key struggle in asymmetrical conflicts is over the 'hearts and minds' of the populace, for the goal is no longer that of military defeat per se, rather “the internal political collapse of the opponent's willingness to continue.”13

Insurgents do not follow traditional organizational methods, rather they use a myriad of political, societal, economic and technological means in order to coordinate, operate and fight. The 'traditional' style of inter-state warfare which Western armies are organized to fight, is described as 4th generational warfare; which is founded upon structures, be they command, firepower, logistical etc.14 Militaries operate within a context of over lapping structures, which allows for effective broad based and large scale operations.

Conversely this reliance on structures hampers efforts at small, delicate low-intensity operations, for military-complexes are too unwieldy to effectively counter insurgent activities. In asymmetrical conflicts neither side can predict what the other intends and as such flexibility and speed of adaptation are the key determinants in deciding a conflict's outcome.15 Insurgents in turn adhere to what is described as 5th generational warfare, namely operating in autonomous networks,16 – Western militaries routinely fail to defeat insurgents by 'cutting off the snake's head,' for no head exists.

Following the events of September 11th 2001, and the resulting quagmires which now characterize operations in Iraq and Afghanistan, leaders and policymakers promptly declared the familiar forms of warfare as “no longer relevant to modern asymmetrical times.”17 Criticisms were also levelled against Western armed forces for being equipped and based on “the obsolete concept of large scale war in the post-1945 [and post 9/11] world.”18 Similarly aspects of the 'traditional' institutional and legal framework have been called into question. On January 11th 2002, US defence secretary Donald Rumsfeld declared that insurgents would not be handled as POW (prisoners of war) rather as “unlawful combatants [for] technically unlawful combatants do not have any rights under the Geneva Convention.”19

Traditional/Asymmetrical Dichotomy False

Such claims sought to paint Geneva and its ilk as irrelevant, however these very conventions were created in response to asymmetric forces. The 1863 Lieber Code which regulates American military forces, was created by Abraham Lincoln in response to the actions of irregular forces during the American Civil War.20 Similarly the 1874 Brussels Declaration, which sought to regulate wartime operations, and in turn influenced many later conventions, was born out of Prussian experiences during the Franco-Prussian war of 1870-1871. Despite being seen as the archetype of traditional regular inter-state conflict, the war saw Prussian forces suffer most of their causalities after the decisive victories at Gravelotte and Sedan in 1870.

Following the capture of Napoleon III and the French army, the nascent civilian government adopted new tactics and dispersed into the countryside.21 The rear-guard attacks by French franc-tireurs (free-shooters), led in turn to the Brussels Declaration. German paranoia of franc-tireurs led to the later repression of the Belgium populace during WWI and slaughter of partisan fighters during WWII, acts which in turn sired further conventions in 1929 and 1949 respectively.22 It is true that those present at the Hague and Geneva “repeatedly choose to deal with the challenge of irregular fighters by placing them outside the remit of the law. But that does not mean that the law is not geared towards irregular 'asymmetric' conflict.”23

Contemporary asymmetric conflict sees modern armies routinely frustrated in their counter-insurgent efforts, often by distinctly 'unmodern' opponents.24 Insurgents contradict core modern notions such as the state monopoly on violence, and religious guerrilla movements such as the Taliban, the Eritrea Islamic Jihad Movement and Islamic Movement of Uzbekistan flaunt modernist secular conventions.25 Furthermore, the language of 'insurgent' delegitimizes asymmetrical struggles26, for “irregular warfare implies a distinctness from 'regular' warfare...irregular implies infrequent, yet such events are common occurrences.”27

There exists a common tendency to view combatants who do not organize along 'normal' lines nor field 'normal' armies as backward and primitive.28 In truth these combatants operate within a post-modern rather than pre-modern context, a fact often mistaken, for former often resembles the latter.29 For instance consider the following description of an asymmetrical conflict in which “small groups of armed partisans attack civilians, special forces throw their enemies off balance with surprise attacks, insurgents murder diplomats and take hostages, and [warring parties] use infiltration and information gathering.”30 Such words conjure images of Kabul, Baghdad or Waziristan, yet in fact the above passage refers to the Peloponnesian War between Athens and Sparta during the 5th century BC.

Asymmetrical warfare has been a persistent aspect of human conflict. Those who characterize asymmetry in war as a merely modern, nay 21st century phenomenon, fail to acknowledge the myriad of pertinent examples throughout history. Indeed most conflicts have been asymmetric.31 Following the conclusion of the First World War a British army officer stated; “good we can now get back to proper soldiering” - referring to small wars and counter-insurgencies.32 Moreover many of the tactics, happenings and frustrations experienced by modern policymakers, are present in historical conflicts.

Consequently “lessons and insights from past low-intensity war deserve revisiting...they provide perspective as well as context for what may be a defining period for the American war on terrorism.”33 The notion that warfare has somehow drastically changed from the past is simply fallacious, for the issue of asymmetrical conflict has been an important topic of discussion in many eras. Whereas “counter-insurgency is a modern term...we can go back at least a couple of centuries to Ireland, to India [over] a century and a half ago, to Africa at about the same time, and indeed to Iraq almost a century ago.”34

Asymmetrical Tactics Throughout History

This common misinterpretation of military history stems from misunderstandings of previous time periods due to incomplete or selective readings of history. Specifically “incidents of irregular warfare throughout history [have] become analytical orphans...unfairly excluded [from the] knowledge of strategic studies [thus] simultaneously weakening and limiting models of war.”35

There exists a popular view that prior to WWII nations fought large traditional wars, whereas after 1945 asymmetrical wars evolved. The traditional form of warfare is described as Clausewitzian and that the “pre-conditions of [such] Napoleonic warfare [are] absent” in modern conflicts.36 Such descriptions of historical and contemporary warfare, however rest upon misconceptions surrounding 'normal' warfare. Carl von Clausewitz (1780-1831) is known as the theorist of grand inter-state wars, and his oft quoted (and unfinished) opus “On War” is seen to be representative of traditional military thinking.37

Interestingly, Clausewitz also speaks at length concerning small wars, and was the first theorist concerned with wars of national liberation. Clausewitz states that weaker actors should adopt an active defence, thereby aiming not for the annihilation of one's enemy, rather his destruction through attrition.38 Indeed it was Clausewitz who advocated for a popular uprising and guerrilla war against Napoleonic forces, by abolishing the regular Prussian army, and reorganizing troops into independent action groups to attack and ambush the French from behind.39

Such statements clearly demonstrate the existence and importance of asymmetrical warfare prior to the mid-twentieth century, and show that “military events that depart from standard set-piece battles are frequent throughout history and in the post-Napoleonic period.”40 The Napoleonic era is championed as the golden age of large inter-state war, yet by defining 'regular' warfare as Napoleonic, one commits a severe error. The Napoleonic wars coined the term 'guerrilla' during the Peninsular War of 1808-1814,41 in which Spanish irregulars fought the French by harassing spread out parties, cutting communication lines, ambushing patrols and intercepting supplies.42

Such tactics sound familiar to the modern ear, for many common themes are present throughout asymmetrical conflicts, with history echoing the difficulties and experiences of 21st century combatants. The US military upon entering Afghanistan in 2001 and Iraq in 2003 enjoyed overwhelming firepower superiority, yet could never bring it to bear as insurgents never confronted the Americans in open combat. The American military was structured to fight a massive technological war against another superpower, yet found all that expertise and power was rendered impotent in asymmetrical conflict. Similar problems faced Napoleon's forces two centuries prior.

During the royalist Vendee counter-revolution against Revolutionary French control which began in 1793, there was “no specific fortress to storm, no real army to this theatre the sophisticated military education of the Revolution's generals was found to be largely irrelevant.”43 The French in Spain fought under similar circumstances in which “if small columns were sent out to attack the insurgency, they were liable to be destroyed. Yet if larger columns were sent out they found no one to fight.”44

Similarly British armies in India during the 1760s-1790s found that East India Company soldiers who adapted to Indian circumstances fared better than professional soldiers with European training and experience.45 This was due to the fact that “country (Indian) armies hardly seemed to constitute what would have been understood by European officers as 'coherent' standing establishments.”46 Furthermore large infantry and artillery based armies with their “superior firepower, might win battles, when they could be contrived, but could not win wars quickly or decisively.”47

More recently following WWII, the French in their efforts to subdue Indo-China tried and failed to force the Vietminh to fight in the only manner they knew - classic pitched battles.48 These exact problems resurfaced a decade later, as did the same type of mistakes with US military leaders lamenting that “if only the little bastards would come out of the jungle and fight like men, we'd cream them.”49

This frustration has yet again emerged in American rhetoric concerning Afghanistan-Pakistan; one need simply replace the word jungle with mountain, and the above sentence loses none of its relevance. Such consternation is due to in part to the fact that following Vietnam, America made a conscious move away from counter-insurgency,50 and as such is in the process of relearning the same old lessons in Afghanistan.51 The main factor, however, is the faulty presumption that the “United States must end military conflicts quickly and at minimum cost [a notion which] has achieved almost the status of orthodox dogma.”52

Speed Anathema to Successful Counter-Insurgency Efforts

Speed and economy, the defining features of much of our 21st century lives, are anathema to the successful completion of counter-insurgent activities. Counter-insurgencies are lengthy affairs, in which much time and effort must be put into the delicate non-military (hearts and minds) aspects; however, the US has as of yet been unable to create systems to “effectively execute non-lethal side efforts.”53

The successful British counter-insurgency in Malaysia (1948-1960), resulted from the realization that the country could not have been “subdued by a purely military solution, because insurgency is not primarily a military activity.”54 The term 'hearts and minds' is assumed to be a modern one, and is usually attributed to the Malayan conflict, however as with so much surrounding asymmetric warfare, the notion has more distantroots. John Adams described the American revolution / insurgency as being “effected before the war commenced...the revolution was in the hearts and minds of the people.”55 Similar notions were present in British actions in India during the 1770s.

In their efforts to subdue the irregular forces of troublesome hill tribes, the British created special counter-insurgency units trained in jungle warfare, street fighting and night attacks. Such tactics “in conjunction with a 'hearts and minds' policy, followed over the next 20 years, secured a tolerable degree of order in the borderlands.”56 The aforementioned example demonstrates a key characteristic of counter-insurgency operations: time. American forces are entering their twelfth year in Afghanistan, and this very issue of time commitment remains totally antithetical to American military policy, and public opinion expectations.

Arbitrary time constraints and an aversion to long-term commitment in part doomed American efforts in Vietnam, and hastened their exit from Somalia.57 Counter-insurgency actions took twelve years in Malaya and El Salvador, fourteen in Oman, over twenty in Colombia and Vendee, the combined Franco-American fiasco in Vietnam lasted over three decades and insurgencies in Nepal, and until recently Sri Lanka and Burma lasting decades more.58

By examining past endeavours, modern tacticians and leaders can gain valuable insights, and dispel some of the ominous nebulosity surrounding asymmetric conflicts. It is important to remember that “today's insurgencies differ significantly from those of the 1960s...classical theory is necessary but not sufficient for success against contemporary insurgents.”59 Indeed the views of Mao Zedong for instance concerning the role of insurgents as paving the way for regular armies, differs vastly from contemporary realities.60 Furthermore the recognition of asymmetric warfare as equally important and serious as its more 'traditional' counterpart, is an important step towards better dealings with insurgencies.

The false assumption of asymmetric conflicts as deviations from the norm as well as the successive 'forgettings' of past lessons have had severe and deadly consequences on modern battlefields. The ascendency of asymmetric conflicts in recent decades is not, as dreaded by some, a fearsome apparition heralding the death knell of western military competency and power. Rather it is merely a longstanding facet of human conflict, and its past appearances can be studied and learned from.

While the wholesale adoption of previously successful tactics is not ideal, by referencing historical examples, modern policymakers can distinguish successful trends. The variety of past operations demonstrates the need for making local circumstances and issues paramount in any counter-insurgence stratagem. The plethora of problems facing modern combatants, be they irregular tactics, local idiosyncrasies or the ensuing battle for hearts and minds, have all been encountered before and at times successfully surmounted by warriors past.


Bryant, G. J. "Asymmetric Warfare: The British Experience in Eighteenth-Century India." The Journal of Military History 68, no. 2 (2004): 431-469.

Carvin, Stephanie. "Linking Purpose and Tactics: America and the Reconsideration of the Laws of War during the 1990s." International Studies Perspectives 9, no. 2 (2008): 128-143.

Daase, Christopher and Sebastian Schindler. "Clausewitz, Guerillakrieg und Terrorismus. Zur Aktualität Einer Missverstandenen Kriegstheorie." Politische Vierteljahresschrift 50, no. 4 (2009): 701-731.

Dixon, Paul. “Hearts and Minds? British Counter-Insurgency from Malaya to Iraq.” Journal of sssssStrategic Studies 32, no. 3 (2009): 356.

Esdaile, Charles. "Heroes Or Villains? Spanish Guerrillas in the Peninsular War." History Today 38, no. 4 (1988): 29.

Goldstein, Joshua & Jon C. Pevehouse & Sandra Whitworth. International Relations. 2nd ed. Toronto: Pearson Education, 2008.

Harbom, Lotta and Peter Wallensteen. "Armed Conflict and its International Dimensions, 1946-2004." Journal of Peace Research 42, no. 5 (2005): 623-635.

Jackson, Mike. "British Counter-Insurgency." Journal of Strategic Studies 32, no. 3 (06, 2009): 347-351.

Jervis, Robert. "Theories of War in an Era of Leading-Power Peace "Presidential Address, American Political Science Association, 2001"." The American Political Science Review 96, no. 1 (2002): 1-14.

Murden, Simon. "Staying the Course in ‘Fourth-Generation Warfare’: Persuasion and Perseverance in the Era of the Asymmetric Bargaining War." Contemporary Security Policy 28, no. 1 (2007): 197-211.

Porter, Patrick. "Review Essay: Shadow Wars: Asymmetric Warfare in the Past and Future." Security Dialogue 37, no. 4 (2006): 551-561.

Robert R Tomes. "Relearning Counterinsurgency Warfare." Parameters 34, no. 1 (2004): 16.

Scheipers, Sibylle. "Review Article: Levelling the Battlefield in ‘Asymmetric’ Conflict? some Comments on Michael L. Gross’s Moral Dilemmas of Modern War." War in History 18, no. 4 (2011): 547-550.

Schuurman, Bart. "Trinitarian Troubles: Governmental, Military, and Societal Explanations for Post-1945 Western Failures in Asymmetric Conflicts." Small Wars & Insurgencies 22, no. 1 (2011): 32-54.

Vacca, W. Alexander and Mark Davidson. "The Regularity of Irregular Warfare." Parameters 41, no. 1 (2011): 18.

Yun, Minwoo. "Insurgency Warfare as an Emerging New Mode of Warfare and the New Enemy." Korean Journal of Defense Analysis 22, no. 1 (2010): 111-125.


1Robert Jervis, “Theories of War in an Era of Great Power Peace: Presidential Address, American Political Science Association, 2001,” American Political Science Review 96, no. 1 (2002): 1.

2Jervis, 5.

3Lotta Harbom & Peter Wallenstein, “Armed Conflict and its International Dimensions 1946-2004,” Journal of Peace Research 45, no. 15 (2005): 623.

4Jervis, 2.

5Simon Murden, “Staying the Course in ‘Fourth-Generation Warfare’: Persuasion and Perseverance in the Era of the Asymmetric Bargaining War,” Comparative Security Policy 28, no. 1 (2007): 207.

6Sibylle Scheipers, Review Article: “Levelling the Battlefield in ‘Asymmetric’ Conflict? Some Comments on Michael L. Gross’s Moral Dilemmas of Modern War,” War in History 18, no. 4 (2011): 547.

7Jervis, 1.

8Patrick Porter, “Review Essay: Shadow Wars: Asymmetric Warfare in the Past and Future ,” Security Dialogue 37, no. 4 (2006): 551.

9Porter, 552.

10Joshua S. Goldstein, Jon C. Pevehouse & Sandra Whitworth, International Relations, 2nd ed. (Toronto: Pearson Education, 2008), 160.

11Paul Dixon, “Hearts and Minds? British Counter-Insurgency from Malaya to Iraq,” Journal of Strategic Studies 32, no. 3 (2009): 356.

12Dixon, 362.

13Minwoo Yun, “Insurgency Warfare as an Emerging New Mode of Warfare and the New Enemy,” Korean Journal of Defense Analysis 22, no. 1 (2010): 112.

14Yun, 117.

15G. J. Bryant, “Asymmetric Warfare: The British Experience in Eighteenth-Century India ,” The Journal of Military History 68, no. 2 (2004): 433.

16Yun, 118.

17Christopher Daase & Sebastian Schindler “Clausewitz, Guerillakrieg und Terrorismus. Zur Aktualität einer Missverstandenen Kriegstheorie,” Politische Vierteljahreschrift 50, no. 4 (2009): 703.

18Bart Schuurman,“Trinitarian troubles: Governmental, Military, and Societal Explanations for post-1945 Western Failures in Asymmetric Conflicts,” Small Wars & Insurgencies 22, no.1 (2011): 40.

19Stephanie Carvin, “Linking Purpose and Tactics: America and the Reconsideration of the Laws of War During the 1990s,” International Studies Perspectives 9, no. 2 (2008): 140.

20Scheipers, 549.

21Alexander W. Vacca & Mark Davidson, “The Regularity of Irregular Warfare,” Parameters 41, no. 1 (2011): 21.

22Scheipers, 550.

23Scheipers, 550.

24Yun, 117.

25Harbum & Wallenstein, 624.

26Porter, 559.

27Vacca & Davidson, 24.

28Porter, 559.

29Yun, 117.

30Porter, 551.

31Schuurman, 40-41.

32Gen. Mike Jackson, 347.

33Robert R. Tomes, “Relearning Counterinsurgency Warfare,” Parameters 34, no.1 (2004): 16.

34Gen. Mike Jackson, “Opening Address: Speech at the conference, ‘Hearts and Minds: British Counter- Insurgency from Malaya to Iraq’, 21 September 2007,” Journal of Strategic Studies 32, no. 3 (2009): 347.

35Vacca & Davidson, 17.

36Murden, 198.

37Daase & Schindler, 703.

38Daase & Schindler, 706.

39Ibid, 706.

40Vacca & Davidson. 24.

41Vacca & Davidson, 20.

42Charles Esdaile, “Heroes or Villains? Spanish Guerrillas in the Peninsular War,” History Today 34, no. 4 (1988): 32.

43Vacca & Davidson, 20.

44Esdaile, 32.

45Bryant, 434.

46Bryant, 439-440.

47Ibid, 448.

48Tomes, 18.

49Porter, 558.

50Schuurman, 42.

51Vacca & Davidson, 20.

52Schuurman, 37.

53Murden, 208.

54Dixon, 356.

55Dixon, 362.

56Bryant, 453. - emphasis own.

57Schuurman, 37.

58Porter, 558.

59Schuurman, 42.

60Porter, 558.