CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … 3.3 States’ Domestic Legal Systems Concerning any possible foreign military intervention against the IS, states are responsible for making sure that their domestic legal systems are capable of handling the situation. Domestic law is especially important, as activities of states’ armed forces are directly governed by the provisions of respective domestic law. Before making the decision about the military intervention, which could lead to a complex legal situation, described above and especially, during the next part, states shall make sure that their domestic legal system has the necessary norms codified. With more European countries, this is not necessarily a problem with qualification of the situation. Domestic law of many those simply do not make a difference between international and non-international conflicts, they just simply stipulate rules and prohibitions, define crimes during “hostilities”, leaving the question of qualification of the conflict opened, which generally means that they are applicable in all kind of conflicts. But in many cases it is possible to find missing domestic legal norms, for example those related to captured individuals and their treatment. The lack of these norms may lead for example to human rights violations, as we will elaborate on later. It is very important for any intervening state to make sure if their domestic provisions are in conformity with the norms of international humanitarian law and international human rights law. While maintaining this conformity is a constant obligation of states, regardless of participating in a military operation against IS anyway, but in a situation like that it becomes absolutely essential to make sure that its armed forces and any other of its agents act in line with the applicable rules. Asymmetric Warfare and IHL Challenges In case of a foreign military intervention against IS, regardless of any legal considerations about the qualification of the conflict, the situation will evolve to a special situation known as an “asymmetric conflict”. This is not a legal category, rather one of military science and art of war: it refers to the fact that, contrary to inter-state conflicts where the opposing armed forces of states often pose some balance against each other, a state’s armed forces face a less developed and often less sophisticatedly organised adversary who is compelled to mitigate the greater power’s advantages with the use of cunning tactics and exploitation of the advantages offered by asymmetry. 25 Asymmetric warfare is not a new phenomenon. The paradoxes and hardships of a military nature have been elaborated on by military thinkers and analysts. The general conclusion is that states often fail (at least politically) in these conflicts, because they employ the same paradigms as in classic conflicts. 26 Accepting the validity of this statement, it is important to emphasise that international law does not have any set of rules specifically targeted to be 25 See inter alia CASSIDY, Robert M., Russia In Afghanistan And Chechnya: Military Strategic Culture And The Paradoxes Of Asymmetric Conflict, SSI , February 2003; MEIGS, Montgomery C., Unorthodox Thoughts about Asymmetric Warfare, Parameters , 2003 Summer, p. 4-18; BREEN, Michael, GELTZKER, Joshua A., Asymmetric Strategies as Strategies of the Strong, Parameters , 2011 Spring. p. 41-55; BLANK, Stephen J., Rethinking Asymmetric Threats, SSI , September 2003; GEISS, Robin, Asymmetric conflict structures, International Review of the Red Cross Vol. 88 No. 864 December 2006, p. 757-777. 26 CASSIDY, op. cit. pp. 4-6; MEIGS, op. cit. p. 8; BREEN-GELTZKER, op. cit. p. 43; BLANK, op. cit. p. 48; 4.

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