While violations of international humanitarian law (IHL) are seemingly pervasive and remain a brutal reality for women, children and men in armed conflicts worldwide, it is inaccurate and dangerous to infer that IHL is always disrespected (and therefore useless). If we look past the headlines, we can see the positive impact of IHL everyday: when a wounded person is allowed through a checkpoint, when a child on the front lines receives food and other humanitarian aid, when the living conditions of detainees are improved or when they make contact with their families. What influences parties to conflict in deciding whether to comply with the laws of war? In this post, ICRC law and policy advisers Juliane Garcia Ravel and Madalena Vasconcelos Rosa identify seven patterns leading to compliance with IHL, based on findings from the IHL in Action platform.

 

You are driving your car in the middle of the night and arrive at a crossroads. You have a clear view from every direction and there are no other cars in sight. Yet, when the traffic light turns red, you stop. Why do you, and the vast majority of us, choose to abide by this traffic regulation?

For one, there is a clear rule which everyone agrees to obey when they receive their driving license. You know that violating that rule risks a fine, so it is in your best interest to abide by it. You agree that this rule is legitimate, for your safety and for others. Besides, you’ve followed this rule so many times now that it is part of your routine, a nearly automatic behaviour.

Legal scholars usually classify these behaviours into two categories[1]: first, coercion – avoiding legal consequences, or shaming, reputation loss and expulsion from cooperative relations[2] – and second, legitimacy of the law[3] – internalizing the law’s legitimate moral authority, and/or believing that it is in line with normative or moral judgments of what is right or wrong.[4] Building on recent research in cognitive science, social psychology, and social neuroscience, some authors even claim that people have a positive predisposition to respect the law[5], and natural cognitive and emotional propensities to consider the welfare of other people[6].

International law, and as a sub-branch of it, international humanitarian law (IHL), follows the same logic. Compliance with international obligations means ‘a behaviour or a situation which is in conformity with the international obligations of a subject of international law’.[7] The problem of how to ensure compliance is intrinsic to any legal order, but it is particularly relevant in international law, which is a ‘decentralized legal order and thus does not dispose of enforcement mechanisms that are typical for national law enforcement: a system of courts and police’[8]. To ensure that international law, and more specifically IHL, is complied with, one must often resort to other strategies beyond the necessary legal arguments.

Beyond the necessary legal arguments: influencing behaviours

As part of its mission to protect and assist victims of war and violence, the ICRC has long been working to influence behaviour to ensure greater respect for IHL. Much effort has been dedicated to understanding the roots of behaviour[9] as well as the roots of restraint[10] of weapon bearers in conflict, exploring behavioural science techniques, such as nudging[11].

The IHL in Action project[12], as part of the ICRC’s Changing the narrative on IHL approach[13], was launched in 2015 along these lines. Relying on psychological and behavioural studies, it assumes that focusing on unfavourable outcomes is not the most effective way of changing attitudes. Instead, pointing out desired behaviours is seen as more likely to generate change. This assumption has been confirmed in subsequent neuroscience research[14], as well as in reports such as the World Bank 2015 report on Mind, Society and Behaviour[15], as well as academic articles drawing upon the importance of positive role-modelling[16].

The IHL in Action platform collects real-life examples of respect for IHL by belligerents around the world in order to counter the erroneous perception that IHL is ‘always violated and never respected’. It demonstrates that not only is IHL more often respected than media coverage may have us believe, but that belligerents often believe it is in their interest to comply with it. Over the past five years, the platform has been a useful tool for the ICRC to engage in policy dialogue around the relevance of IHL and its protective power for people affected by armed conflicts.

By collating the motivating factors contributing to respect of IHL that emerge from more than 60 case-studies collected, seven reoccurring elements have become apparent[17].

1. Military interests

Clear examples emerge wherein parties to a conflict have complied with IHL because of a military interest. There are many statements or self-explanatory actions by belligerents demonstrating that respect for IHL is often perceived as more beneficial than costly, especially in military terms.

In Afghanistan, compliance with IHL proved to be strategically beneficial to the conduct of hostilities. In an updated Tactical Directive on the use of force by International Security Assistance Force (ISAF) and US Forces-Afghanistan (USFOR-A), General David Petraeus reported:

‘Concentrating our efforts on protecting the population is having a significant effect. We have increased security in some key areas, and we have reduced the number of civilian casualties caused by coalition forces . . . We must continue – indeed, redouble – our efforts to reduce the loss of innocent civilian life to an absolute minimum. Every Afghan civilian death diminishes our cause. If we use excessive force or operate contrary to our counterinsurgency principles, tactical victories may prove to be strategic setbacks.’

Likewise, in Somalia, the African Union Mission in Somalia (AMISOM) acknowledged that ‘incidents involving AMISOM and resulting in civilian casualties would have a strategic impact on AMISOM mission in Somalia’.

2. Legitimacy or recognition

Armed actors often seek legitimacy on the international or domestic stages and recognition as rightful representatives, demonstrating respect for the laws of armed conflict to further this objective.

During Opération Serval, France – as a foreign country intervening on Malian soil – needed their intervention to be perceived as legitimate. In a publicly available analysis, French authorities expressed that ‘the freedom that politicians and military staff have to act depends on their legitimacy’ and ‘to ensure legitimacy, an operation must appear fair and be in line with our international obligations and universal ideals’. France even demonstrated a willingness to go beyond what is legally required by IHL, adopting a ‘zero collateral damage policy’ in their conduct of hostilities in Mali:

‘. . . we need to adopt an attitude whereby, to enjoy legitimacy, we must often restrict our actions more than official texts require us to, particularly in order to protect civilians and sensitive sites within our theatre of operations’.

During Canada’s Operation Mobile in Libya, two Canadian pilots aborted an authorized airstrike once their assessment indicated that the collateral damage would be too high. With this demonstrated respect for the principles of proportionality and precautions in attack, the Canadian Parliament confirmed Operation Mobile as ‘a perfectly legitimate operation since it is being carried out as a multilateral effort and its purpose is to protect civilian populations’.

In this category we can also find examples of non-state armed groups (NSAGs) complying with IHL in a bid to seek recognition or claims over a certain territory. In 2009, the Moro Islamic Liberation Front (MILF), a NSAG in the Philippines, signed an action plan with the UN to end the recruitment of children under the age of 18, and to release and reintegrate child soldiers into their communities. The MILF later publicly stated ‘I would like to thank […] all their efforts to identify, register and support the dissociation of those children and for contributing to the MILF recognition’. As later suggested by the press, the actions of compliance indicated that the ‘MILF wants to be part of mainstream Philippines’.

3. National and international public opinion

A corollary to the legitimacy argument is the search for approval by national and international public opinion or, as March and Olsen would describe it, a reputation incentive. A desire widely expressed through the cases of the platform, it suggests that States and NSAGs care about the ‘public opinion’ of the international community and of the national population when assessing their conducts, image and political positioning.

This includes political pressure by third parties, such as third States, organizations, local associations or local press causing a buzz or disapproval by the population. Reaction to political pressure is sometimes related to the need of reinforcing a certain image or to address criticisms, such as in Somalia, where decisions to protect civilians were taken with the explicit goal of ‘winning the support of the people’ which, as mentioned by AMISOM, ‘is the guiding principle for the planning and conduct of all our operations’.

Beyond public statements and declarations, public actions, like choosing to organize public ceremonies, demonstrate the importance for a belligerent to publicly acknowledge their act of compliance with IHL. This is the case in Central African Republic, where ‘[child soldiers] were released by the anti-Balaka militia during a ceremony Friday in the town of Batangafo’ or in Sudan, in which ‘the State Minister of Social Welfare signed the Action Plan on behalf of the Sudanese Government in a high-level ceremony presided by the Ministry of Foreign Affairs and attended by cabinet ministers to highlight the Government’s determination to turn the page on the recruitment and use of children’.

4. The role of neutral third parties

The intervention of national and international organizations seems also to positively influence the actions of parties to conflicts. These organizations have the know-how, expertise, and political capital, among other things, to act as neutral third parties and help States and NSAGs alike to act in accordance with the law of armed conflict.

Humanitarian organizations such as the ICRC, help inter alia through negotiations and mediation with local authorities to ensure the rights of detainees, such as in Libya, or as a neutral agent to whom prisoners are handed over for release, as in Ivory Coast. In Georgia and Croatia, National Societies of the Red Cross and the ICRC – as neutral intermediaries or chairs of the mechanisms for search of missing persons – were directly involved in all stages of the processes, gathering and consolidating essential information for the purpose of forensic human identification.

This is similar as to actions taken by UNICEF to advise the parties on how child soldiers should be reintegrated into their communities or families, as in South Sudan, or when UNESCO supported the Jordanian government to inventory seized objects and ensure their repatriation to Iraq.

5. Peace processes

The social, economic and political impact of unresolved conflict are tremendous, and, as can be observed in repeated instances, peace remains a shared desired outcome.

On the one hand, examples from the platform show that belligerents strive to act in a way that does not render return to peace impossible, and thus try to comply with the rules of war with that ultimate objective in mind. This is frequently the case where child soldiers are involved, where for example NSAGs tend to return these children to the communities and States tend to rehabilitate them to avoid future criminal behaviours or disturbances once they become adults, as has been seen in Colombia.

On the other hand, some cases show that, when reconciliation talks are on the negotiation table, respect for IHL provides a common ground for discussion, as it often proves to be in the interest of the nations’ long-term prosperity. This seems to be the case in interventions over the issues of missing persons and the dead by parties to the conflict, as it happened in Argentina, where a UK diplomat said ‘we were clear this was a humanitarian issue in which the wishes of the family were paramount’ and further added ‘[veterans] continue to teach us the real meaning of the words dignity and reconciliation’.

Finally, respect for IHL obligations following the end of hostilities is a way to consolidate peace between former enemies, as in Iran and Iraq, which ‘exchanged the remains of 241 soldiers killed during an eight-year war between the two countries – the latest sign of increased cooperation between the neighbouring nations that were fierce rivals’.

6. The role of local culture, ethics and religion imperatives

As concluded by the Roots of Restraint in War study, the role of local culture, ethics and religion imperatives is crucial in convincing armed actors to comply with IHL. The fact that rules are integrated as part of local identities or that religious leaders lobby for certain actions to be taken in accordance with IHL in their communities clearly seems to influence belligerents to respect IHL, as happened in the Philippines, where a local Archbishop led an independent humanitarian mission where he negotiated the release of detainees.

The same is found in Syria with the involvement of local religious leaders who, during that training, addressed the issue of Islamic sources of IHL and Muslims’ obligations to abide by it. Likewise, in Somalia, training programs were specifically designed ‘for the Somali context and included references to traditional and religious rules’.

7. Positive reciprocity

Finally, positive reciprocity might also play a role in the decision to respect the law of armed conflict, as described in several cases on the platform. In other words, one party’s act of respect often induces the enemy to do the same. An example of this is found in Eritrea and Ethiopia where, in the aftermath of a peace agreement signed by both parties, ICRC delegates based in the countries accompanied the release of prisoners from both sides of the conflict.

Likewise, in Yemen, while releasing a group of enemy detainees, a Houthi representative said, ‘our initiative proves our credibility in implementing the Sweden agreement and we call on the other party to take a comparable step’. A few months later, the other party to the conflict proceeded to release some of their detainees.

Conclusion

While the obligation to respect and ensure respect for IHL in all circumstances shall remain the primary reason why belligerents must comply with that body of law, these examples show that very often parties to the conflict seem to be influenced much beyond coercion[18] and legitimacy of the law[19] and that many non-legal factors can contribute to better compliance. They also demonstrate that most belligerents, States and NSAGs alike, are willing to act in accordance with the law of armed conflict, and thus dispel the myth that IHL is always violated and therefore irrelevant.

Trying to better understand the underlying motives of armed actors’ behaviours – be they military, political and legal self-interests or ethical arguments and self-identification to values – is not an easy task, based on the complexity of human behaviour. Although reoccurring, these elements can always be challenged and questioned, and depend on the circumstances of each situation. Nonetheless, they can be truly valuable to further the objective to better protect and assist people affected by armed conflicts and violence. As such, humanitarian practitioners may resort to them consciously when engaging with parties to conflict to positively influence their behaviours and generate further respect for international humanitarian law.

See also

[1] See McAdams, R.H., The Expressive Powers of Law: Theories and Limits, Harvard University Press, 2015.

[2] Schauer, F., The Force of Law, Harvard University Press, 2015.

[3] Tyler, T., Why people obey the law, Princeton University Press, 2006.

[4] Lawrence, M. F., Grant, M. H., Chapter 12 – Legal Culture: Legitimacy and Morality, in American Law: An Introduction, Oxford Univeristy Press, 2017.

[5] Sassòli M., International Humanitarian Law, Rules, Controversies and Solutions to Problems Arising in Warfare, Elgar, 2019, p. 75.

[6] Traven, D., Moral Cognition and the Law and Ethics of Armed Conflict, in International Studies Review (2015) 17, 556-587.

[7] Bothe, M., Compliance, Max Planck Encyclopedia of Public International Law, available at https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e46?prd=EPIL, last updated: October 2010

[8] Ibid.

[9]Muñoz-Rojas D., Frésard J.J., The Roots of Behaviour in War: Understanding and Preventing IHL Violations, ICRC, 2004.

[10] Terry F., McQuinn B., The Roots of restraint in war, ICRC, 2018.

[11] Thaler R.; Sunstein C., Nudge, Yale University Press, 2008.

[12] See online platform at: https://ihl-in-action.icrc.org/

[13] Garcia Ravel J., Bernard V., Changing the narrative on international humanitarian law, ICRC Humanitarian law & policy blog, 2017, available at: https://blogs.icrc.org/law-and-policy/2017/11/24/changing-the-narrative-on-international-humanitarian-law/

[14] Ligouri L., Brain Research Suggests Emphasizing Human Rights Abuses May Perpetuate Them, Open Global Rights, 2019, available at: https://www.openglobalrights.org/brain-research-suggests-emphasizing-human-rights-abuses-mayperpetuate-them

[15] The World Bank, Mind, Society and Behaviour, 2015, available at: https://www.worldbank.org/en/publication/wdr2015

[16] Sjöberg A.K., Where are the carrots? Positive discipline for armed groups, ICRC Humanitarian law & policy blog, 2020, available at: https://blogs.icrc.org/law-and-policy/2020/03/19/carrots-positive-discipline-armed-groups/

[17] For the purpose of our discussion, we followed Marco Sassòli’s categories to analyze the non-legal factors contributing to respect for IHL emerging from the IHL in Action case-studies, namely: military interests; the need for legitimacy/recognition;  the role of national and international public opinion; the role of neutral third parties; the prospect of a peace process; cultural, ethical and religious imperatives; and positive reciprocity.

[18] Schauer, F., The Force of Law, Harvard University Press, 2015.

[19] Tyler, T., Why people obey the law, Princeton University Press, 2006.