Many of today’s armed conflicts involve opponents who significantly differ in terms of military capacity and resources. Military experts who recently gathered at the ICRC, Geneva, discussed how commanders would benefit from taking the high road in their military operations, even when their opponents fail to respect international humanitarian law (IHL). For armed forces, putting in place effective operational guidance and rules of engagement, as well as strong disciplinary systems, is key to ensuring compliance with the law of armed conflict.

Held on 4 October 2016, the panel discussion on Translating IHL into military operations was part of the ICRC’s Conference Cycle on Generating respect for the law. It gathered Richard Jackson, Professor of Law at Georgetown University and former Judge Advocate General of the U.S. Army for Law of War Matters; Andrew Carswell, Senior ICRC Delegate to Canada; Lone Kjelgaard, Senior Assistant Legal Advisor at the NATO Office of Legal Affairs; and Charles Garraway, Member of the International Fact-Finding Commission. It was moderated by Jamie Williamson, Head of the Relations with Arms Carriers Unit at ICRC.

“We have come a long way since the adoption of the Geneva Conventions in terms of what conflicts look like,” Jamie Williamson said in his opening remarks. “The terms we read about and see every day are protracted armed conflicts, complex environments, urban warfare. We have seen huge numbers of civilian casualties in many contexts… We have seen proxy warfare, hybrid warfare and we have seen international armed conflicts on the wane and an increase in terms of non-international armed conflicts.” For the armed forces, this presents a wealth of operational and legal challenges.

Legitimacy is at stake

Faced with opponents that sometimes show blatant disregard for IHL, Richard Jackson recommends that State armed forces take the high road. This means that regardless of their opponents’ potentially unlawful acts, commanders should strive to ensure strict respect for the laws of war in the operations they command. Rather than falling into the trap of themselves losing legitimacy by violating the law, Jackson argued that ensuring respect may be highly beneficial for the armed forces:

“If you stick to the high ground on the military side, then you follow the rules. That approach provides the most legitimacy for your actions and allows you to maintain the legitimacy with your own forces at home and with the civilians in the State where you are operating. Certainly in counterinsurgency tactics, fighting from the high ground by complying with the law of war is a great benefit to the military in establishing their legitimacy.”

Jackson’s recommendation echoes the growing recognition that violations of IHL and human rights law may exacerbate the very phenomena that many military operations are intended to fight. It also reflects the findings of recent studies demonstrating that civilian harm can be fatal to counterinsurgency and counter-terrorism strategies.

If one party to the conflict does not respect IHL, this does not entitle the other to disrespect this legal framework, as established by the principle of reciprocity.

Who is a ‘civilian’?

In situations where considerable steps are indeed taken and procedures are put in place to protect civilians, the critical follow-up question is: who is defined as a civilian? In modern armed conflicts, which are often marked by asymmetry between the parties, this question remains contentious.

It is an established norm of customary IHL that civilians are protected against attack “unless and for as long as they take a direct part in hostilities”. From the ICRC’s point of view, the concept of ‘direct participation in hostilities’ should be interpreted as referring to specific acts designed to support a belligerent party by directly harming its enemy, either by directly causing military harm or by directly inflicting death, injury or destruction on persons or objects protected against direct attack.

While the ICRC’s position has been firm that civilians who do not meet these criteria must not be attacked, recent trends have provided ample ground for continued legal debates.

Can lethal force be used in the first resort against an individual who manufactures and sells improvised explosive devices (IEDs) to a non-state armed group? Andrew Carswell takes on this controversial question.

As Andrew Carswell emphasized, it is important to bear in mind that ‘direct participation in hostilities’ and the connected notion of ‘continuous combat function’ does not put into question a soldier’s right to self-defense against an imminent lethal threat. Instead, the difficulties become more serious in cases where the targeting force wants to use lethal force against an individual whose membership is not immediately clear. Such a decision will only be necessary where there is no imminent threat to the life of members of the said force.

NATO’s rules of engagement

To face the realities of modern warfare, many armed forces have invested heavily in new military means and tactics. For NATO, which currently runs operations in Afghanistan, Kosovo and off the Horn of Africa, among others, adjusting to these new realities has meant a greater focus on detecting threats earlier and using more targeted force. In practice, this has led to a growing importance of Special Forces units, which are specially trained for operations in urban environments.

A key component of each and every deployment of NATO soldiers are the so-called rules of engagement. “In a NATO context”, Lone Kjelgaard clarified, “rules of engagement are political constraints on the otherwise lawful use of force”. They are a tool of the commanding officer on the ground who, according to Kjelgaard, “knows best how much force is necessary to achieve the mission… But the lawyers are always there.”

Kjelgaard provided a rare glimpse into how rules of engagement are drafted for NATO operations.

Investigating and sanctioning violations

“It is often being said that truth is the first casualty in war – the rules of war are as much subject to this as everything else,” Charles Garraway said at the start of his presentation. As “propaganda” and “demonization of the enemy” are commonplace in armed conflicts, fact-finding is vital.

“There are many different forms of fact-finding,” he added. “However, today, they are often conflated. This is not a good move”. According to him, a clear distinction must be made between truth finding (i.e. what happened) and accountability (i.e. who is responsible). “These are very different animals,” Garraway stressed. “The danger in militaries today is reversing the order. Post-incident investigations … are increasingly being told to look into accountability, not what went wrong.”

Against this background, Garraway also stressed the need for strong IHL compliance mechanisms. If the international community does not look into strengthening these mechanisms, Garraway argued, they “will increasingly be taken over by human rights bodies, which do not necessarily have the expertise in IHL that is required.”

Ensuring that IHL is respected in contemporary military operations requires serious commitments from a variety of actors. “It starts with strategic policy coming from the minister and chief of defense staff and working its way down to doctrine and policy,” Carswell recapped. “These things in turn affect the way in which you train on the field and in the classroom,” and most importantly “the way in which soldiers work are going to behave at the operations level.” In addition “it is important to have an effective disciplinary system and a justice system. Put all together, these things are actually capable of changing the way in which soldiers do business.”

Related content

• Generating respect for the law – ICRC event series, 2015-2016.

• Protracted conflict and humanitarian action: some recent ICRC experiences – ICRC report, August 2016.

• International humanitarian law and the challenges of contemporary armed conflicts – ICRC report, October 2015.

• Andrew Carswell, “Converting treaties into tactics on military operations”, International Review of the Red Cross, Vol. 96, No. 895/896, 2015.