Violations of the law of armed conflict are tearing apart the lives of countless numbers of people in ongoing Middle-Eastern crises. On 26 February the ICRC convened academics and humanitarian workers in Beirut to find ways to ensure greater respect for the humanitarian and Islamic laws that protect people in war.
The spiral of violence that has engulfed the Middle East over the last years has provoked distressing and large-scale violations of human rights and humanitarian law, including against civilians, wounded combatants, aid workers and journalists.
“Whether in Syria, Iraq, Yemen, Libya, Sudan or Palestine. . . the tremendous amount of destruction and human suffering that accompany these armed conflicts too often put IHL [international humanitarian law] rules into question,” said Omar Mekky at the opening of the conference. After five years of working for the ICRC in the region, the legal coordinator claims that “every single person in this part of the world [knows] how bitter the war tastes. Therefore [they] do feel the need for IHL more than ever. However, unfortunately, the warring parties pay little attention to these rules.”
What are the factors that exacerbate the wide-scale, intense violence that has characterized the region over the past years? How can respect for the law be improved in this region? What does the ICRC and other humanitarian actors do and can further do to protect and alleviate the suffering of victims of armed conflict?
The Middle East in turmoil
In an attempt to understand the specificity of violations in the region, Marco Succi submitted that “most fighting parties in the Middle East – including States – resort to exceptional violence because of claims of exceptional circumstances.” Among those, the ICRC deputy head of delegation in Beirut identified the proliferation of non-State armed groups, asymmetric warfare and a ‘struggle for survival’ narrative.
In the Middle East as in other parts of the world, counterterrorism and authoritarianism are yet other elements that hinder the compliance with the normative legal framework. The complexity of contemporary armed conflicts, marked notably by the multiplication of actors and proxy conflict, makes engagement with belligerents difficult for humanitarian actors. In addition, protracted crises in the Mid-East require sustainable solutions for millions of people on the move, as migration movements take a toll on often scarce local resources in host communities.
Faced with such difficult circumstances, what to make of the narrative that IHL is unfit for the region?
According to Marco Sassòli, Professor of International Law at the University of Geneva, the substance of IHL is adequate for contemporary armed conflicts, including in the Middle East. The challenge is to bring parties to recognize that they are bound by the laws that apply in conflict: “The main alibi used by States, here and elsewhere. . . to avoid discussions about their respect of IHL is to deny the existence of an armed conflict.”
In addition, Sassòli argued that due to sectarian divisions and the widespread perception of historical injustices in the Middle East, the perception of violations of IHL is often selective, making many people believe that the parties they favour respect IHL while the opposing party systematically violates IHL. This perception is not only wrong, but it undermines the readiness of people thus manipulated to respect IHL, including to respect enemies, which is the basic message of IHL.
Humanitarian law and Islam
In Sassòli’s opinion, religion can play an important role in the prevention of violations, but is often instrumentalized – in the Middle East more than anywhere else today, just as it was frequently abused in Europe and by European powers in the past. In consequence, religion is being used to incite to and justify violations of IHL. Fortunately, leaders of all religions have clearly spoken out to clarify that their religion cannot justify violations.
According to Professor Ahmed Al-Dawoody, Islamic Law and IHL have a strong common heritage and contain very similar rules. However, in the Middle East and other regions of the world, we witness gross violations of the humanitarian provisions of Islamic law. The Professor of Islamic Studies and Islamic Law argued that: “The reasons need to be closely examined and are due to several factors, including the failure by most modern Muslim scholars to take into account research in those fields. For cultural and political reasons, this relates to the architecture of the State in the Muslim world, which is no longer built upon the judicial legacy of ancient Muslim scholars, but instead upon a Western legal system. This has created an academic vacuum which, unfortunately, has allowed the system to be infiltrated by many individuals who are not experts in Islamic law, but rather extremists who present their own interpretations of Islam as the truth.”
Generating respect for the law in the Middle East
According to Sassòli, States resist the implementation of IHL-based compliance mechanisms. Most States of the Middle East and of North Africa are particularly reluctant. They should not be surprised then that existing mechanisms of other branches of international law take over, although such mechanisms are often less qualified and more politicized.
“States still believe that the major problem of the (rights and) obligations of armed groups will disappear if it is simply ignored in efforts to generate respect,” Sassòli noted. Most governments and parts of the populations in the Middle East are obsessed with State sovereignty, which is understandable because their States are particularly threatened by armed groups. Needless to say, this will not make the threat disappear. Such an obsession with sovereignty simply makes it impossible to deliver humanitarian assistance and to obtain the respect for IHL for the benefit of those who happen to live under the control of armed groups.
As collective action to stop violations through IHL mechanisms appears to be impossible for the time being, we have to rely on individual action under Common Article 1. Though some deny that this is the meaning of this article, this provision would offer great opportunities to individual States having the necessary political will, especially so if they are put under pressure by public opinion and civil society. It is however crucial for the credibility of such efforts by outside powers to avoid selectivity in the violations they choose to address, often for political motives. In Sassòli’s words, “selectivity is the greatest cancer to the law.”
Focusing more closely on dissemination efforts, “the Middle East, the birthplace of the three great religions of the Book, is a fertile ground for teaching and making people respect rules, which are written down in the Geneva Conventions, simply because it is the law, accepted by all States.” The main obstacle to efficient teaching is no longer ignorance of the law, but perceived and real violations which demotivate students, officials and fighters.
Towards new approaches
According to Ahmed Al-Dawoody, it is important to conduct further research in the fields of IHL and Islamic law. In particular, scholars should go beyond the study of the humanitarian provisions of Islamic Law as developed by early Muslim jurists in relation to the wartime context of their own era, and translate those provisions into the context of modern armed conflicts.
For its part, the ICRC strives to respect the humanitarian principles which allow the organization to operate with proximity, pragmatism and efficiency. While relying on its traditional but consolidated approaches (detention visits, assistance, etc.), it also studies new funding models to face the consequences of protracted crises and chronic long term needs by means of ensuring sustainable response and prompting resilience.
Other key evolving strategies mentioned by Marco Succi focus on: boosting humanitarian diplomacy with key stakeholders in the various conflicts in the Region; improving the ICRC’s capacity to shape the debate in political and humanitarian fora, resorting to multi-layered approaches and global network, notwithstanding its operational priority: gaining access to people caught in conflict and violence.