Shocked by the seemingly unending news streams of civilians being starved, of hospitals, schools and places of worship being bombed unlawfully, of communities being forcibly uprooted, international figures have claimed that “international humanitarian law is unraveling”. Under this laudable and indispensable concern lies a discourse which risks obscuring the vitality of the law of armed conflict and the reach of its respect.
In the face of widespread violations of international humanitarian law (IHL) around the world, others even alleged that IHL is no longer a relevant international legal framework – ‘What good are the Geneva Conventions when they are so dramatically disrespected?’
This line of reasoning is a fallacy: IHL has grown stronger, not weaker, over the past years. New international treaties have been ratified by States; international courts and tribunals produce judgments on the basis of IHL; States and non-State armed actors are increasingly trained in this body of law. In addition, IHL is being increasingly integrated into States’ domestic legal orders. In fact, there is a proportional relationship between societies and governments’ outrage at certain behaviours in war and the development of the normative framework. And the outrage expressed when the law is breached has never been greater.
Where do we actually stand? Is there really a downward trend either in the normative IHL framework or in the respect for this body of law? What can be done to improve compliance with IHL in light of current trends in international relations? Beyond the law, what is the role of the international community in addressing the causes and consequences of armed conflicts?
On 21 April the ICRC convened leading jurists, researchers and UN officials to gain insights into the matter.
What about when the law is actually respected?
Drastic improvements in telecommunication technologies have increased our awareness of atrocities and crimes. In mainstream discourses, however, we hardly hear about imminent violations that have ultimately been avoided.
As International Law Professor Marco Sassòli explains, “the perception of the number of violations is greater than the real situation in the field. Wherever I have worked in the field – and there were terrible armed conflicts – I have also seen plenty of respect, while NGOs, the media – understandably – report only on violations. So you could get the impression that IHL is nearly always violated. This impression is fortunately wrong.”
Indeed, ICRC delegates working for the implementation of IHL have plenty of stories to tell in which parties to conflict have successfully been persuaded in complying with the law. What is crucial is that examples of respect receive more attention, and that dissemination efforts focus on showing when adverse parties make efforts to respect IHL.
Generating respect for the law
Recognizing the contemporary vitality of IHL does not obliterate the need to act upon blatant and all too frequent violations of the law amid situations of conflict and violence.
For Adama Dieng, the UN Secretary General’s Special Advisor for the Prevention of Genocide, “the need for humanitarian law has never been greater.” In his view, “we do have the necessary [legal] foundation upon which we can build and enhance our commitment to the protection of civilians and non-military objects.” What is lacking is the political will to implement existing obligations to protect civilians as well as a real appetite of the international community to invest in preventing armed conflicts, with the aim to avoid situations where IHL is needed in the first place.
Professor Michael Schmitt perceives an erosion of respect for IHL, which is linked to powerful States – some of which parties to armed conflict – having become disengaged from the process of law-making. “States seem to have quit making expressions of opinio juris”, Schmitt said, “and if they don’t author expressions as to what they believe the law is – then they are opting out of the process of law-making.” This retreat comes with great risks for IHL: “if States surrender the battlespace of law-making, and the law develops in directions that they don’t like, then that’s going to engender disrespect on the part of States for that body of law.” While NGOs, tribunals, and scholars have filled this vacuum and increasingly shaped the content and evolution of IHL, Schmitt argues this cannot replace requisite State engagement to ensuring greater respect for the law.
Understanding the psycho-social factors that restrain armed actors from committing atrocities might also yield answers. The 2004 ICRC study Roots of Behaviour in War, which highlighted the importance of integrating IHL into the doctrine and training of armed forces and groups, is currently being revisited by a team of researchers led by Fiona Terry and Brian McQuinn. The former was on the panel to announce the update, which will not only test what impact the integration of IHL norms has had on the behaviour of those fighting in vertically-organized (i.e. hierarchical) groups, but will also explore behavioral patterns characteristic of horizontally-organized groups, which are increasingly present in today’s conflicts. According to Terry, a better understanding of these factors will have important implications for the policies and practices of humanitarian actors, with the aim to influence armed actors in better respecting the laws that protect people in war.
The event was part of a conference series on Generating Respect for the Law and was organized on the occasion of the meeting of the Editorial Board of the International Review of the Red Cross.
Watch the conference