On 22 October, the ICRC and the Geneva Academy organized a conference to discuss the efforts made to prevent violations of the law in armed conflict. The event was part of the programme of the 2015 Advanced Seminar for IHL Lecturers, and marked the opening of a new Conference cycle on Generating respect for the law. It featured content from an issue of the International Review of the Red Cross on "Generating Respect for the Law", available in print in November 2015.
- Vincent Bernard, Editor-in-Chief of the International Review of the Red Cross, Head of the Law and Policy Forum Unit, ICRC
- Marco Sassòli, Professor of International Law and Director of the Department of International Law and International Organization, University of Geneva
- Helen Durham, Director of International Law and Policy, ICRC
- Naz Modirzadeh, Founding Director of the Program on International Law and Armed Conflict, Harvard Law School
- Elisabeth Decrey Warner, Executive President and Co-founder, Geneva Call
Summary of the conference
Marco Sassòli presented a generally positive picture of the evolution of International Humanitarian Law (IHL) in the past decades, while noting that challenges of course remain. An increasing number of publications and courses taught on the subject reveal a growing interest in the field. Public discourse has become more accurate and many States have integrated IHL into their national legislation and take measures to ensure that armed forces are trained in IHL. A number of international tribunals have been created to prosecute violations of the law. Nonetheless, due to lack of political will among states, IHL enforcement mechanisms are limited and the creation of new, stronger mechanisms remains a significant challenge. Working to prevent violations of the law by generating greater respect for IHL in the long term thus remains essential, and is an approach States are actually less reluctant to take, as many, in Sassòli's words, are "less afraid of IHL in peace time".
One element of prevention that could be improved is to narrow the gap between policy and reality. – Marco Sassòli
Disseminating IHL to the civilian population
The Convention must also be widely disseminated among the population so that its principles are known to all those who may benefit from it. It is possible to go even further and to say that men must be trained from childhood in the great principles of humanity and civilization, so that those principles take deep root in their conscience. (Commentary on Convention (IV) relative to the Protection of Civilian Persons in Time of War).
Quoting this extract of the commentary of the Geneva Conventions, Naz K. Modirzadeh articulated how dissemination to the civilian population could help overcome some of the main challenges facing IHL. She identified 3 challenges in particular: the blurring of the line of the principle of distinction between civilians and combatants; contemporary security concerns supplanting the provision of impartial humanitarian assistance; and the lack of dialogue and thus limited understanding and agreement on the notion of borderless conflict.
For each of these challenges, she underlined that we may reach either a turning point or a breaking point in the future, explaining that the "turning point" would involve states and the general public recognizing the need and the possibility to address these issues within the existing framework, recognizing where gaps exist and taking the necessary steps to both implement and build the law.
Professor Modirzadeh emphasized that a key element of strengthening IHL and reaching these "turning points" is dissemination of IHL, noting that understanding this body of law can create in the general population a sense of empathy and encourage society to demand more of governments and authorities when it comes to respecting IHL.
Dissemination to the civilian population may create a public that through the act of study and obtaining knowledge begins to understand not just the rules, but why the rules were created, begins to have a real sense about what is required from governments in terms of applying the law. - Naz K. Modirzadeh
Disseminating IHL to non-State armed groups
Elisabeth Decrey Warner identified three key aspects of effectively disseminating the law to non-State armed actors.
The first aspect, prevention, requires training armed groups on a regular basis on general and specific IHL norms. Ms. Warner noted the importance of tailoring trainings to the combatants' existing level of knowledge, teaching the law in an accessible language, and the positive experience Geneva Call has had with using modern tools such as video messages and mobile phone quizzes. She emphasized that creating a feeling of "ownership of norms" is essential to overcoming armed groups' reluctance to respect norms perceived as imposed: this is the purpose of Geneva Call's "deed of commitment".
The second aspect, implementation, addresses the extent to which armed groups can actually respect the norms. Explaining clearly to non-State armed groups how the law applies to them is a challenge, as many grey areas remain, notably with respect to detention and human rights. The question of command and control in armed groups, and the possibility that these groups may split into different factions also requires that dissemination work be done with a long term vision, at various levels. Armed groups can be supported in their capacity to implement the law to the extent that it does not involve providing them with dual-use technologies that could help them gain a military advantage.
The third aspect, accountability, involves determining criminal responsibility for violations of international law, often at the international level. This is a powerful incentive, but it can lose significance when perceived as biased in favour of States.
The approach chosen within Geneva Call is through engagement, dialogue, dissemination, confidence building and ownership of norms. – Elisabeth Decrey Warner
ICRC's work on prevention
Helen Durham underlined the importance of reflecting on the concept of prevention by considering the things we manage to stop from happening, rather than focusing only on what happens. She also emphasized that the fact that a law is not always followed does not impact the legitimacy of the framework as a whole, noting that one has to be realistic and humble about the aims of the ICRC: while IHL is about mitigating suffering, prevention of IHL violations mainly lies in the hands of political actors.
One important element of the ICRC prevention policy is that it aims to create an environment conducive to respect for the law by influencing a wide range of actors, from arms bearers, whether States or non-State actors, to policy-makers, media, teachers and scholars.
What matters is not only the good the ICRC brings but the evil it prevents. – Nelson Mandela
Enforcement and compliance by states
Marco Sassòli and Helen Durham both mentioned the current proposal by the ICRC and the Swiss government to put in place a non-binding voluntary mechanism which would bring states together to: 1) exchange information and best practices on key thematic and technical issues, and 2) participate in a voluntary self-reporting process on IHL compliance. Ms. Durham described this mechanism as an incentive, a carrot rather than a stick, for states to take time to reflect on IHL implementation, successes, challenges, and the way forward.
Professor Sassòli praised the initiative, but emphasized the challenges that remain given the significant lack of political will on the part of many States to have any sort of enforcement mechanism that will directly address violations of IHL. In addition, Professor Sassòli notes that many States still believe that the major problem of the rights and obligations of non-State armed groups will disappear if it is simply ignored in efforts to generate respect for the law.
We have to be always very aware of the real responsibility of prevention. Prevention lies in the hands of States and warring parties. That being said, we as the ICRC have a particular role to play to try to influence these warring parties. – Helen Durham
As States do not want an IHL mechanism, they should not be astonished that mechanisms of other branches such as Human Rights law or the Security Council deal with violations of IHL. – Marco Sassòli