Black Magic – IHL’s protective powers

As a young ICRC legal delegate on mission in Papua New Guinea, I was having a discussion with the Minister of Health, making the case for the creation of legislation to protect the Red Cross emblem. The Minister, who was also a senior tribal Chief from the Highlands, made a remarkable statement. He said that he saw the purpose of such legislation, and the Red Cross emblem more broadly, as ‘black magic’ in the sense that if one believed in it, protected it, in turn it could protect you. Rather than rebutting this important decision-maker with legal arguments, I too saw the meta-message, that respecting the emblem brings protection, rather similar to ancient concepts found in ideas surrounding black magic (or perhaps white magic). Through this prism, I was finding traction to start a conversation in a space my interlocutors understood, or at least felt more comfortable with.

In the current global context, much is written and spoken about the death of an international rules-based order, that international law – and in particular IHL – may have lost some of its ‘magic’. Serious questions are being raised about whether this order – in place for decades if not centuries – is indeed relevant today.

In many ways, we (the practitioners, academics, diplomats and students of international law) are to blame for a discourse that at times verges on despair. We heavily profile breaches of the law, rightly pointing out the unacceptability of aspects of modern conflict and voicing our frustration. We are outraged that the significant work done in the last few decades in enforcement and international criminal law prosecutions hasn’t revolutionized behaviour. We rightly bemoan the fact that consensus-making across the globe for new norms is, these days, almost impossible.

Yet we need to exercise some caution that we don’t create and perpetuate a destructive narrative. If we only raise our voice when IHL doesn’t work, the general public may be forgiven for thinking that the system we believe in actually isn’t worth the paper it is written on. When the magic isn’t believed in, the magic doesn’t work.

To address this challenge, the ICRC has started a range of projects to ‘change the narrative on IHL’. We do not have rose-tinted glasses. We, more than most, see the horrific suffering on the modern battlefield (with its changed scope, length, and increased number of armed groups) and we know that the status quo is not tolerable. Yet we also witness the daily implementation, respect, and use of IHL, and the difference it makes. Thousands of acts that demonstrate respect of human dignity occur every day, even in the worst possible circumstances. Our ‘IHL in Action’ database collects case studies of examples of compliance with IHL from across the world.

There is also more information on the connection between IHL compliance and reducing human suffering in other areas such as displacement. A recent ICRC study on displacement in times of armed conflict demonstrates the impact of respect for IHL. We have the elements and pieces of some of the solutions for problems that are often perceived to be overwhelming but that can in fact be addressed.

The collection of examples like these will enable us to better articulate the immediate and long-term benefits of respecting IHL and, over time, change the general narrative. Our ‘Roots of Restraint’ report confirms the importance of training amongst arms carriers in reinforcing respect for IHL, but also investigates how formal and informal norms condition the behaviour of soldiers and fighters. Better understanding socialization (the process by which norms and rules become socially accepted) and the political, ethical and socio-economic reasons why different parties to conflict behave as they do can help us adapt our work and ensure greater respect for IHL.

While it is important to focus on violations and accountability, the daily implementation of IHL in the field is often overlooked. To counteract this, more research and different ways to profile the usefulness of compliance with IHL are needed. We need to build on the impact of examples of respect and bring back belief in the ‘magic’ of IHL – for if you respect it, it is more likely to protect you.

Zombies – dehumanization discourse

Another current challenge is the discourse that portrays those committing acts of terror as sub-human; not worthy of the legal protections found in well-established norms. Indeed, in many ways we have taken those who commit acts of terrorism and turned them into “less than humans” – zombies – who look human and almost act human but who are not what they seem. They are the “undead”.

There is a plethora of literature on zombies and they have a rich history – from Voodoo folklore in the Caribbean to one of the first science fiction stories of Frankenstein. More recently, the famous post-apocalyptic horror series ‘The Walking Dead’ sees survivors trying to stay alive under near-constant threat of attack from mindless zombies, known as the ‘walkers’. In elements of this show, there is initially deep concern that the ‘enemy’ is blurred, in the guise of small children, women and those one is not used to seeing on the battlefield but are engaged in violent acts.

In real life, we are witnessing an alarming trend whereby some leaders increasingly dehumanize adversaries and employ demonizing rhetoric to indicate that actors designated as ‘terrorist’ are undeserving of the protections of international law, most notably those provided by IHL. The desire not to ‘bring them home’ – referring to foreign fighters and even their families (children who are orphaned behind enemy lines) is symbolic of the fear of lack of control and almost of contamination.

In the balance between security interests and humanitarian imperatives, this trend has translated into legal approaches which, bit by bit, are swinging the cursor towards security interests at the expense of the legal safeguards protecting human life and dignity in times of armed conflict. By arguing that actors designated as ‘terrorists’ are undeserving of the protection of IHL, proponents of this theory are constructing excuses to fight terrorism unrestrained. Under IHL the designation of a group as a “terrorist organization” or its conduct as “terrorist acts” has absolutely no bearing upon the applicability and application of international humanitarian law. IHL is clear with respect to the obligations toward persons ‘hors de combat’ even if designated as terrorists: IHL protective rules apply to them with no exceptions.

Through our presence and proximity to affected people on the ground, and in the conduct of our humanitarian operations, the ICRC is witnessing first-hand the situation concerning “foreign fighters” and their families. We see that security measures taken against “foreign fighters” are diverse in kind and often include deprivation of liberty in unsatisfactory, even inhumane conditions, and prosecutions which do not necessarily comply with the most basic judicial guarantees. The impact of these measures on the most vulnerable, including children and their mothers, as well as people with disabilities, is of concern.

A further issue is the increased impact of counter-terrorism measures on impartial humanitarian action. The consequences of such measures may be fiduciary, legal/compliance, criminal or reputational in nature. Of course, States may have legitimate concerns about ensuring security and eliminating terrorism. However, the measures taken in some cases – notably counter-terrorism legislation and sanctions – can criminalise and restrict our humanitarian action.

What is at stake is our ability to cross frontlines to deliver humanitarian assistance for communities living in areas controlled by armed groups and individuals designated as terrorists. Counter-terrorism measures can negatively impact our ability to visit persons being detained by “the other side”, recover dead bodies, train armed groups on IHL, and facilitate mutual detainee releases and swaps. In short, our ability to carry out our mandate is increasingly hampered. As a consequence, people suffer at the very moment when IHL should protect them.

UN Security Council Resolution 2462 on combatting and preventing financing of terrorism, unanimously adopted on 28 March 2019, is an important step forward. The Council decided that these counter-terrorism measures must be implemented “in a manner consistent with IHL”, and urged States, when applying such measures, to take into account the effect of such measures on “exclusively humanitarian activities” carried out by “impartial humanitarian actors”. This is a very welcome development, which States now need to implement. We need to keep stressing the point that those ‘on the other side’ – whether the military, non-State armed actors or even those accused of ‘terrorism’ – are human.

Dragons – new technology

Looking forward, there is a need for further reflection regarding new technology and IHL, in particular the development of weapons and means of warfare. Whilst humans continue to be extremely innovative in their approach to finding new ways to kill and maim, it is important to remember that IHL is a living body of law and as such, will continue to provide guidance on the gritty realities of war. Today, our collective challenge is to find ways to ensure greater respect for the law within the changing dynamics of conflict and the challenges we face with new technologies. Of course, new technologies can bring great advances to humanity, yet they also pose dilemmas.

This raises issues of both law and ethics. As an interested ‘Game of Thrones’ watcher, I thought the final episodes provide a fascinating window into conflict, even in the ‘fantasy world’ created by the show. In relation to methods and means of warfare, watching as fire-breathing dragons fly over a densely populated city, neither using the principle of distinction nor following the prohibition of superfluous injury or unnecessary suffering, made me reflect more widely on the power of new weapons and the degree of human control. Although throughout the show mass killings, torture, sexual abuse and other unacceptable acts are predominant, the terrible suffering caused by the dragons and their aerial fire bombardment finally proved to be a tipping point for the characters in the story. The disproportionate impact of the attacks on civilians and those not engaged in the fighting at last became clear.

Current discussions at the international level are focusing on establishing limits on autonomy in weapon systems, so that humans retain control of – and responsibility for – decisions to use force in armed conflict. Major powers are investing heavily in artificial intelligence (AI) for military advantage, and a potential ‘arms race’ raises concerns that new technologies will be deployed without full consideration of the risks, and legal and ethical issues. The ICRC sees at least three broad areas with significant implications: AI-enabled autonomous weapons; cyber and information warfare capabilities; and decision-making systems.

We are advocating for a human-centered, and humanity-centered, approach to the use of AI and machine learning to ensure legal compliance and ethical acceptability. AI and machine learning systems are tools that should be used to augment – not replace – human judgment in armed conflict. The ICRC is continuing to call for internationally agreed limits to ensure human control over weapons and the use of force.

Along with AI, the ICRC is also concerned about the potential human cost of cyber operations. Indeed, prominent cyber-attacks have affected the functioning of electricity networks, medical facilities and nuclear plants – a stark reminder of the vulnerability of essential civilian infrastructure to cyber-attacks and of the significant humanitarian consequences that may ensue.

At the ICRC, we are primarily concerned with cyber operations that form part of armed conflict and are used as means and methods of warfare. In our view, cyber operations are regulated by IHL when used as part of an ongoing armed conflict otherwise waged through kinetic means. Moreover, it is also possible that the use of cyber operations alone may amount to an armed conflict and make IHL applicable. Crucially, IHL prohibits cyber-attacks against civilian objects or networks, and prohibits indiscriminate and disproportionate cyber-attacks.

Asserting that cyber warfare must respect the rules of IHL is by no means an encouragement to militarise cyberspace, nor does it legitimize cyber warfare. For us, the key point is that the limits imposed by IHL also govern and constrain any cyber operations to which States or other parties to an armed conflict might resort. In our view, it is essential that all States clearly recognize that IHL applies to cyber operations, and we are pleased that more and more States are taking this view.

We need to move the discussion to the next level and focus on how IHL applies to cyber operations. Even though existing rules apply to cyber warfare, the interconnectedness of military and civilian networks poses a significant practical and legal challenge in terms of protecting civilians from the dangers it poses. In this vein, States must urgently address questions around the interpretation of IHL rules raised by the unique characteristics of cyberspace. They need to assess whether more specific normative developments are required to supplement the general rules.

Conclusion

Seventy years on, we know that the drafters of the Geneva Conventions did not ask the impossible. They found wording and developed obligations that carefully balanced military necessity and the principle of humanity. Today we face new challenges – including lack of confidence in the rules-based order, a growing ‘de-humanization’ discourse and rapid technological developments in new weapons systems. However, the Conventions are still relevant and highly useful. Their practical impact can be seen and felt on the ground, where they matter most, every day. They contain the tools to help us navigate dilemmas now and in the future. Finally, they continue to stand proudly for the concept that even wars have limits.

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See also

• Artificial intelligence and machine learning in armed conflict: A human-centred approach, ICRC, 6 June  2019
• The potential human cost of cyber operations, ICRC, 29 May 2019
• Autonomous weapons systems: an ethical basis for human control?, Neil Davison, 3 April 2018

Other blog posts by this author

• Equal treatment for women in State armed forces: Three practical implications for medical care, 8 March 2019
• 100 ratifications of the Arms Trade Treaty: Celebration and reflection, 7 February 2019
• Strengthening compliance with IHL: Disappointment and hope, 14 December 2018
• Shining a spotlight on sexual violence in war: The 2018 Nobel Peace Prize, 11 October 2018
• The Treaty on the Prohibition of Nuclear Weapons one year on: Reflections from Hiroshima, 20 September 2018
• Detention and armed conflicts: Exploring realities and remedies, 10 September 2018
• A conversation with Dr Helen Durham – IHL and women, 8 March 2018
• ICRC report demonstrates people believe that wars should have limits, 5 December 2016

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