CHALLENGES IN THE DOMAIN OF IHL

To begin with, a significant challenge that still persists, is the meaning of an “armed conflict” and
the determination of the beginning of an “armed conflict”. With no definition in the Four GCs or the
Protocols additional to it, it is quite tricky to identify when an armed conflict actually begins. The
case laws such as the Tadic etc. have shed some light on the existence of an armed conflict apart
from the scholars advancing some criteria such as threshold of the force used, intention of the
parties etc. to identify the beginning of an armed conflict, albeit this is less than sufficient and
makes the invocation of IHL confusing. Based on subjective interpretation, the states might deny
the existence of an armed conflict. For instance, in the recent 2019 Pulwama attack in the Indian
territory of Jammu and Kashmir, the use of force by both states viz. India and Pakistan, didn’t
qualify to be an armed conflict, international in nature and hence, remained limited to the use of
force.
Although a considerable attention is given to NIACs now, in lieu of the increasing number of
NIACs around the world, some gaps remain unaddressed. For instance, states continue to justify the
use of force against the opposition armed groups within its own territory, labelling them as terrorists
and under the garb of counter-terrorism measures, which automatically eliminates the concept of
combatant immunity and prisoner of war status during NIACs. States are fearful of recognising a
NIAC within their territory and accruing them the status of Non-State Groups (NSGs), thus keeping
them within the purview of domestic law. Moreover, although NSGs, in many contexts, have
complied with IHL, they also expressed distress in being unable to become parties to IHL treaties,
consequently being reduced to passive observers of the same. Another gap is the point at which an
armed conflict becomes “internationalised”. Since only two categories are exclusively specified in
the GCs of 1949 and Additional Protocols, the internationalisation of modern conflicts of Syria,
Iraq, Iran etc. have not only shown the intervention in the conflict by third states but has also posed
serious questions as to the degree of their responsibility, when it came to supplying weapons etc.
Not only that, the issues of the changing global landscape adds to the woes, with proxy wars and
private military groups being on the rise. Furthermore, it is also consequential to evaluate the role of
neutral states and private military companies when it came to armed conflicts.

Cyber warfare, which might be a viable alternative to destabilise the targetting state’s military
establishments, doesn’t look like a distant dream any more. For instance, the recently updated ICRC
commentary on GC II incorporated an addition to the use of cyber operations in the conduct of
naval warfare. So, it can be assumed that in the time to come, wars can effectively be waged with
the help of computers only; rather than physical involvement of armies etc. The question is how far
IHL regime is equipped to mitigate the same.
Coming to the part of implementation of IHL, the contexts of Yemen, Somalia, Nigeria, Ukraine
etc. have proved to be abject failures. This calls for an introspection of the mechanisms- namely the
Protecting Powers Mechanism, the formal enquiry procedure and the International Humanitarian
Fact finding Commission (IHFCC), which have hardly been used as of now, to be tested. For
instance, in the context of Myanmar, the Government seems to be reluctant to prosecute those
senior generals responsible for war crimes etc. Maybe with some political will of the states, a
precedent can be set.