From Cold War to Cyber War: The Evolution of the International Law of Peace and Armed Conflict over the Last 25 Years

Edited by Hans-Joachim Heintze and Pierre Thielbörger

Springer, 2016
viii, 271 pp
ISBN 978-3-319-19086-0 (hardcover)

Reviewed by Sia Spiliopoulou Åkermark (The Åland Islands Peace Institute)

The edited volume entitled From Cold War to Cyber War came about as a result of a conference held in Bochum in 2013 to celebrate three parallel anniversaries: 150 years of the Red Cross movement, 25 years of the German Institute for International Law of Peace and Armed Conflict (IFHV) and 20 years of the Network on Humanitarian Action (NOHA). Gathered in this volume are eighteen contributions of varying length and style, originating primarily in the German speaking community of international law. This community is of course considerable in size and scope of interest, stretching across the European continent and covering academic lawyers as well as practitioners. Such a large professional community is not immediately and obviously dependent – for inspiration, response or influence – upon wider international debates outside the German-speaking environment. Therefore, it can be from the outset welcomed that the editors and contributors to this volume have taken the trouble to communicate their knowledge, insights and worries to a broader international audience. One of the strongest sides of the present volume is precisely this meeting between academics and various practising lawyers, whether in state administration, non-governmental organisations or the armed forces. This meeting offers us glimpses of wider societal debates in German-speaking countries on the use of force, the relationship between civil and military actors, and the law of peace versus the law of war.

The contributions in the volume are divided into six parts. Part I deals with the ‘progressive development of international law’. It starts off with a descriptive overview of the book, followed by a fairly short, but all the more important, contribution by Professor Knut Ipsen, entitled ‘Perspectives of International Humanitarian Law’ (at 9–18). Ipsen, founding father of IFHV and former President of the German Red Cross, opens with the following cautionary words:

International lawyers are often inclined to take primarily into focus of their interest problems of applicability, scope and interpretation of the law in force. This approach – which is doubtless acceptable and necessary – includes, however, the danger of blocking, at least sometimes, the perception of a changing reality.

There is a refreshing urgency and a frustration which cannot be missed in Ipsen’s argument. Not only was the number of armed conflicts ten times higher in 1992, i.e. at the euphoric years of the end of the Cold War, as compared to 1945, but it seems, says Ipsen, that to the extent that the number of conflicts is reduced today, this is due to the ‘disproportionately growing expenses of military superiority’ (at 10). Problems of non-international and asymmetric conflicts are at the heart of this perception of a changing reality which needs to be addressed. Ipsen identifies four questions which cry for answers in wars such as in Afghanistan, where there is considerable German (as well as Nordic) participation. Ipsen asks, among other things, whether the prohibition of any adverse distinction found in the 1977 Additional Protocols to the Geneva Conventions[1] ‘establish the guarantee of legal equality which is a fundamental principle of international law as a whole’. His sobering answer (at 16) follows the conclusions of the Customary International Humanitarian Law study of the International Committee of the Red Cross, namely that adverse distinctions are not precluded when based on the nature or origin of the armed conflict, i.e. in cases of non-international armed conflicts.

Ipsen draws four overall conclusions concerning the evolution of humanitarian law over the past 25 years. Firstly, the ‘most effective guarantee to ensure the application of international law is and will remain the expectation of the subjects of international law that their counterparts will comply with the law if they do the same’ (at 17). The expectation of reciprocity presupposes, according to Ipsen, a certain legal symmetry. Such symmetry is absent in non-international armed conflicts. So, for non-State actors the choice is one between victory or total defeat, in practice most often death. This becomes accentuated, I would argue, at times when legally binding lists of terrorist organizations preclude any negotiation or compromise between governments and armed non-state actors. Asymmetry in warfare, unavoidable as it may be as an empirical fact, makes the law less effective. States that claim to be based on the rule of law, argues Ipsen, should defend humanitarian law also in non-international armed conflicts, as was done in Germany when the Federal Prosecutor General brought charges in relation to the 2009 air strike in Kunduz.[2] Clarifying and endorsing the rules of warfare for non-international armed conflicts is an area where academic experts, non-governmental organisation as well as governments can still make considerable contributions. Ipsen helps us then to identify open issues, underlying problematic assumptions as well as methodological directions beyond a short-sighted fixation on de lege lata analysis.

Part II of the book deals, somewhat surprisingly, with ‘Autonomy and Independence in International Law’. The two contributions in this part leave the reader with many questions about the historical, conceptual and structural linkages between struggles for, and institutions of, territorial autonomy on the one hand and ‘the law of peace and armed conflict’ on the other. Not only do we see an increase in the number of peace agreements that include elements of territorial autonomy; more importantly we see a ‘norm cascade’ of institutional post-conflict solutions involving territorial sub-state solutions. So, there are new solutions but also new asymmetries which are not addressed by international law, but which pose important challenges to this law. There are also new problems raised for constitutional law with regard to, for instance, the jurisdictional competences of sub-State entities in international matters and the creation of international legal obligations of sub-State entities. The contributing authors are – at least implicitly –  aware of this, as shown in Lisa Gow’s eloquent analysis of the tensions between a popular and a parliamentary sovereignty trajectory in the Scottish independence referendum in 2014, which prompted the United Kingdom and the international society to a reconsider a relational and multi-layered concept of sovereignty in a globalised world (at 49–50).  Markku Suksi summarises his earlier findings on territorial autonomy but adds two new perspectives, namely the role of sub-state entities as aid recipients (for instance in Zanzibar and Aceh). He concludes that donors, relief agencies and other humanitarian actors ‘should consider the Sub-State level as a legitimate counterpart and interact with that level in all suitable ways’ (at 38). However, as Ipsen argued in an earlier chapter in the book, this does not seem to work today when governments and international organisations are quick to put a stamp of terrorism on oppositional forces, exacerbating the use of desperate armed force also by less militant forces in search of a platform for negotiation.

Part III of the book is entitled ‘New Threats to International Peace and Security’. Here, ‘environmental threats’ are at the core of analysis with one chapter (by Peter Thielbörger) discussing them as threats to international peace and security before the UN Security Council and another chapter (by Kerstin Rosenow-Williams) addressing environmental migration as a humanitarian challenge.

Several contributions in the book deal with core problems of international legal theory and practice. This includes (in Part IV of the book, entitled ‘New Forms of Warfare and Weaponry’) the issue of the applicability of self-defence arguments under Article 51 of the UN Charter in asymmetric wars (Peter Hilpold) and ‘humanitarian bombardments’ (Robert Kolb). In this same part, Stephan Hobe discusses unmanned aerial systems (often called drones) used for civilian as well as for military purposes. The regulatory framework on this new technology is currently under development at the EU as well as at the national level, raising a multiplicity of issues concerning registration, surveillance, licencing and safety requirements, as well as the highly controversial targeted killings.

Part V turns then to the changing role of the individual in the law of peace and armed conflict.  Here ‘peace’ means an exploration of the role of a human security perspective (by Wolfgang Bendek). Armed conflict issues dominate and include problems of access to victims in humanitarian operations (Hans-Joachim Heintze); the principle of non-refoulement in refugee law, human rights and asylum legislation (Charlotte Lülf) and gender in armed conflict (Wolfgang S. Heinz and Judith Kaiser). Sexual violence in armed conflict is addressed by Heinz and Kaiser from the perspective of judicial pronouncements and adopted legal standards.

A broad discussion of the awkward – in the legal as well as in the empirical sense – situation of ‘the humanitarians’ is perhaps one of the most important and strong contributions of the present volume. This theme stretches across several parts of the book, in particular, Parts III, V and VI.

Part VI of the book is entitled ‘Practical Insights on Humanitarian Action and Challenges to the Humanitarian Principles’. In this part, we find the experiences and legal effects of the recognition of and supply of military support to opposition groups in Libya and Syria in the period 2011–2014, discussed vividly and insightfully by Christian Schaller. Furthermore, Part VI includes chapters on the efforts for coordination of humanitarian assistance (by Eltje Aderhold); the role of the German Red Cross as auxiliary to the German public authorities in humanitarian action (by Sascha Rolf Lüder).

The most striking account is perhaps that of the brilliantly revealed experiences of vulnerability and legal uncertainty of Médecins Sans Frontières (MSF) Germany in their contact with Western military intervention. Ulrike von Pilar, Corinna Ditscheid and Alfhild Böhringer trace the contradictions between the rhetoric of humanity and the effects of a ‘comprehensive approach to security’. They argue that the repeated rhetoric of respect for the humanitarian principles of humanity, impartiality and neutrality by the ‘west’, masks the real effects of this ‘comprehensive approach’. This ambiguity results in the fusion and confusion between military and humanitarian actions and actors putting at risk and impeding the very task of impartial and neutral humanitarian assistance. This contribution is rich in detail and evidence, and includes, firstly, a fierce critique of the incremental replacement of peace-oriented political efforts (i.e. negotiations, compromises and agreements) by government-driven and -manipulated humanitarian assistance. It also offers a blueprint for how to deal in the future with the reality of the coexistence between humanitarian, political and military actors ‘in the tight and tense corridors of war’ (citing here the former president of MSF Christophe Fournier, at 236). Among the considerations here is the need to resist the incorporation of humanitarian aid into political-military decisions, operations and doctrinal approaches, which are often summarised as CIMIC (civil-military co-operation) and found across countries and institutions.

Support for this call for distinction comes from Daniel-Erasmus Khan who teaches at the University of the Bundeswehr (German armed forces) in Munich. In a contribution entitled ‘Civil-Military Relations and International Law’ (at 265–71), Khan cautions against the blurring of the military – civil and humanitarian distinction. ‘The raison d’être of armed forces’, Khan reminds us, ‘is the application of physical, ultimately deadly, violence in the political interest of their respective home country’ (at 269). He essentially agrees with MSF that the assumption of a ‘common goal’ that unites political, military and humanitarian actors is a chimera, producing false expectations and dangerous – potentially even lethal – consequences.

Peter Hilpold (see above, on Part IV) and Christian Schaller (in Part VI) both address, although in different ways, problems of asymmetry in warfare and in international law. Hilpold seems to endorse the content of the short comparative conclusions he offers on the basis of three earlier efforts, namely The Chatham House Principles on the Use of Force by States in Self-Defence (2005); the Leiden Policy Recommendation on Counter Terrorism and International Law (2010) and the Principles on Self Defence as summarised by Daniel Bethlehem, former legal adviser of the British Foreign Office (2012).  Hilpold affirms then the ‘extraordinary flexibility of international law when it comes to sorting out what international consent at a certain moment in time is’ (at 135). More critical voices seem to be raised today among international lawyers globally about the tendencies towards an abusive invocation of self-defence, most notably as a response to terrorism.[3]

A more critical outlook is also adopted in this present volume by Schaller who discusses the usage of the concept of ‘responsibility to protect’ and ‘humanitarian intervention’ by different governments involved in military assistance and support in Libya and Syria. He reveals important but rather tacit differences among Western proponents of such intervention, with France being in both cases the most eager to recognise and thereby support oppositional forces. Schaller concludes that ‘the cases of Iraq and Libya, … serve as alarming and deterrent examples for how an enforced regime change (no matter for what purpose) can easily create an environment of insecurity and instability conducive to the further spread of domestic and international terrorism’ (at 263).

The edited volume under examination does not offer a clear red line nor a coherent argument. However, in the end, there are some strong and troubling points left in the mind of the reader. How can law move beyond the limitations of the one-sided focus on reciprocity based on the legal fiction of a sovereign equality of states? How can we address issues of non-international armed conflict without falling into the jungle of recognition (or, of the undermining) of governments and of states? How can we re-introduce political negotiation, political compromise and political agreement informed by international legal norms? Is it possible to avoid the present day proliferation of policy driven, technocratic ‘crisis management’ which does not obey to any rule of law claim and which seems to boost the imperialistic ambitions or reflexes of a small number of dominant states? The stakes are high, signal many of the authors and contributions in this volume. The stakes are high indeed, not only for all the potential victims of authoritarian regimes, victims of armed conflict and natural disasters. The stakes are high equally for international law itself and for the relevance of legal norms as part of international affairs, especially at times of conflict.

Sia Spiliopoulou Åkermark
The Åland Islands Peace Institute

[1] Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), preamble, and Articles 9(1), 69(1), 70(1), 73 and 75(1) ; Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978), Articles 2(1), 4(1), and 18(2).

[2] For a thorough discussion of the case see Wolff Heintschel von Heinegg, and Peter Dreist, ‘The 2009 Kunduz Air Attack: The Decision of the Federal Prosecutor-General on the Dismissal of Criminal Proceedings Against Members of the German Armed Forces’, 53 German Yearbook of International Law (2010) 833–66.

[3] ‘A Plea against the abusive invocation of self-defence as a response to terrorism’, launched by the Centre de droit international, Université Libre de Bruxelles, The plea has currently more than 300 signatures (visited 3 October 2016).