Is the law of armed conflict in crisis and how to recommit to its respect?

03 June 2016

On 21 April 2016, the ICRC hosted a panel at the Humanitarium to discuss whether adherence to international humanitarian law (IHL) has been eroding in today's armed conflicts and if so, how to rebuild respect for it. The panel also provided an opportunity to reflect on the role of actors such as the ICRC in upholding IHL. The event was part of the Conference Cycle on "Generating Respect for the Law" and was organized on the occasion of the meeting of the Editorial Board of the International Review of the Red Cross.

Introduction

  • Vincent Bernard, Head of Law and Policy Forum, Editor in Chief of the International Review of the Red Cross, ICRC

Moderator

  • Helen Durham, Director of International Law and Policy, ICRC

Panelists

  • Marco Sassòli, Professor of International Law and Director of the Department of International Law and International Organization of the University of Geneva
  • Adama Dieng, UN Secretary-General's Special Adviser for the Prevention of Genocide
  • Michael N. Schmitt, Professor at the US Naval War College and the University of Exeter
  • Fiona Terry, Research Advisor, ICRC

It is often alleged today that widespread violations of international humanitarian law (IHL) contribute to the "erosion of its respect". Indeed, we are often made aware of violations of IHL and tremendous human suffering. Against this background, it is tempting to conclude that IHL is less relevant or no longer relevant at all.

Yet, in substance, IHL has grown stronger, not weaker, over the past years. A range of new international treaties have been ratified by States, international courts and tribunals produce judgments on the basis of IHL, States and non-State armed actors have been trained in this body of law, and IHL is integrated into States' domestic legal orders more than ever before.

So what is happening? Is the "erosion of respect for IHL" real or perceived? How can we better bridge the gap between the development of IHL and the situation on the ground? Beyond the law, what is the role of the international community in addressing the causes and consequences of armed conflicts? These were some of the key questions the panelists tried to address and discuss during the conference.

Setting the record straight

Marco Sassòli began his presentation by recognizing that respect for IHL is indeed too often insufficient. But in his view, this is not due to the substance of IHL, which remains highly adequate for contemporary armed conflicts, but because States have rejected the development of efficient enforcement mechanisms and do not accept credible fact-finding missions.

Moreover, Sassòli argued that the perceived disrespect for IHL is worse than its actual disrespect. While media and NGO reports understandably give the opposite impression, IHL is more often respected than violated in all armed conflicts. Also, new channels of communication such as social media have increased our awareness of atrocities and crimes. Against this background, it is crucial that examples of respect receive more attention and that dissemination efforts increasingly focus on showing that the adverse party makes efforts to respect IHL. States and armed groups could in turn facilitate this by accepting credible fact-finding missions which would show their own efforts to respect the law.

Adama Dieng also deplored the alarming disregard for IHL in many situations of conflict around the world. In his view, we possess both the legal tools and the capacity to reverse this trend. What is lacking is the political will to implement existing obligations to protect civilians as well as a real appetite of the international community to invest in prevention strategies aiming to avoid situations where IHL is needed in the first place.

States must not retreat from the battlespace of law-making

Michael Schmitt addressed the topic from a different angle. From his point of view, the so-called "erosion" of respect for IHL is linked to the fact that powerful States, some of which have been directly involved in armed conflicts, appear to have opted out of the process of interpreting and developing IHL. At the same time, non-State actors such as NGOs, tribunals, and scholars have filled the vacuum left by States and increasingly shaped the debates on IHL.

This retreat comes with great risks for IHL. As States – the primary subjects and law-makers in international law – are surrendering the battlespace of law-making, interpretations of the law may develop in directions they will end up rejecting. This, in turn, can engender disrespect on the part of States for that body of law. To avoid this scenario, Schmitt believes that it is paramount that States re-engage more actively in the interpretation and development of IHL and make expressions of 'opinio juris'.

Understanding the roots of restraint in armed conflicts

Fiona Terry, Research Advisor at the ICRC, laid the focus of her presentation on the need to better understand the underlying factors influencing armed actors to respect IHL. In other words, what influences these actors in not committing atrocities? This question lies at the heart of the ICRC study on the Roots of Behaviour in War, which is currently being revisited by a team of researchers under Terry's lead. Having a better understanding of these factors will have important implications for the policies and practices of humanitarian actors operating in zones of armed conflict around the world.

In conclusion, the conference offered a variety of perspectives on the current state of IHL. While the so-called "erosion" of its respect might be more perceived than real, there are indeed real problems that must be addressed. In the face of serious violations of IHL in conflicts around the world, greater political will is needed to establish credible-fact finding missions, enforcement mechanisms and prevention strategies. While bridging the gap between the development of IHL and the situation on the ground remains a big challenge, gaining a better understanding of what restrains armed actors from committing IHL violations is an important piece of the puzzle.

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