Generating respect for the law in all armed conflicts

Article published on ICRC website on 01/19/2017

With this issue, the Review wants to take stock of the lessons learnt in the field of influencing behavior and developing strategies for enhanced respect for the law, and, more generally, to recall the importance of taking preventive measures to avoid the loss of the lives, livelihoods and prospects of entire generations. How can we ensure that respect for human life and dignity remains a common concern shared by the opposing parties? How to generate respect for the law in armed conflict? These are the central questions that we asked authors to reflect upon in their contributions for this issue.

EDITORIAL: TIME TO TAKE PREVENTION SERIOUSLY

The International Review of the Red Cross seeks to address urgent humanitarian issues, with a view to offering solutions: beyond the necessary repressive or remedial measures, it is striking to note how many contributions in our pages actually point to the need to prevent certain patterns of violence and even put a halt to human suffering. These are not only calls for respect of human life and dignity; often, authors include practical suggestions on ways to achieve it. For instance, recent international efforts to address the issues of violence against health care1 and sexual violence in armed conflict have put forward a series of measures that States and non-State actors can put in place to translate the relevant legal provisions into practice, train relevant personnel on that basis, or educate the public at large.

Vincent Bernard, International Review of the Red Cross

INTERVIEW WITH EMANUELE CASTANO

Emanuele Castano, Professor and Chair of Psychology, New School for Social Research
Emanuele Castano, The New School

COMMON ARTICLE 1 TO THE GENEVA CONVENTIONS AND THE OBLIGATION TO PREVENT INTERNATIONAL HUMANITARIAN LAW VIOLATIONS

Common Article 1 to the four Geneva Conventions lays down an obligation to respect and ensure respect for the Conventions in all circumstances. This paper focuses on the second part of this obligation, in particular on the responsibility of third States not involved in a given armed conflict to take action in order to safeguard compliance with the Geneva Conventions by the parties to the conflict.

Knut Dörmann, Head of the Legal Division at the ICRC
Jose Serralvo, Legal adviser in the Legal Division at the ICRC

INTERNATIONAL LAW AND ARMED CONFLICT IN DARK TIMES: A CALL FOR ENGAGEMENT

This Opinion Note highlights the international humanitarian law (IHL) provisions mandating dissemination of the Geneva Conventions and the Additional Protocols to the civilian population. In referencing three dilemmas concerning contemporary challenges to international law in armed conflict and how each of those dilemmas may result in a “breaking point” or a “turning point”, the author argues that it is vitally important not only for armed forces but also for the general public to learn – and actively engage with – IHL both during war and in (relative) peacetime.

Naz K. Modirzadeh, Director of the Harvard Law School (HLS) Program on International Law and Armed Conflict

BEHAVIOUR IN WAR: THE PLACE OF LAW, MORAL INQUIRY AND SELF-IDENTITY

Daniel Munoz-Rojas and Jean-Jacques Fresard’s study “The Roots of Behaviour in War” (RBW Study), which came out in 2004, provided very useful insight into how compliance with international humanitarian law may be better ensured. In essence, it emphasized the role of “the law” and associated enforcement mechanisms in achieving optimal results. Emphasis on “persuasion” regarding the values underpinning the law was identified as having a possibly corrosive effect and was to be de-emphasized, if not avoided. Such conclusions raise serious questions. The study’s reliance on neutral normativity of “the law” can be overstated. The issue may be less one of checking aberrant behaviour under the law and more one of ensuring that unnecessary harm is curtailed within the law. The assumptions made by the RBW Study concerning the efficacy of the law are too narrow in their avoidance of the moral and ethical questioning that can accompany legal interpretative approaches. The role of identity and professional culture offers an effective means of ensuring restraint under the law. This article argues that the RBW Study has not stood the test of time and that operational developments have transcended the conclusions made in the study.

Dale Stephens, Associate Professor at the University of Adelaide Law School

DEBATE: THE ROLE OF INTERNATIONAL CRIMINAL JUSTICE IN FOSTERING COMPLIANCE WITH INTERNATIONAL HUMANITARIAN LAW

The Review invited two practitioners to share their perspectives on the concrete effects of international criminal justice on fostering compliance with international humanitarian law. Chris Jenks questions the “general deterrence” role of international criminal justice, contending that the influence of complicated and often prolonged judicial proceedings on the ultimate behaviour of military commanders and soldiers is limited. Guido Acquaviva agrees that “general deterrence”, if interpreted narrowly, is the wrong lens through which to be looking at international criminal justice. However, he disagrees that judicial decisions are not considered by military commanders, and argues that it is not the individual role of each court or tribunal that matters; rather, it is their overall contribution to an ever more comprehensive system of accountability that can ultimately foster better compliance with international humanitarian law.

Chris Jenks, Assistant Professor
Guido Acquaviva, Senior Legal Officer

TOWARDS EFFECTIVE MILITARY TRAINING IN INTERNATIONAL HUMANITARIAN LAW

The obligation to train troops in international humanitarian law (IHL) is simply stated and its implementation delegated to State discretion. This reflects a past assumption that mere dissemination of IHL would be an effective contribution to the prevention of violations. Academic literature has evolved so that dissemination alone is now known to be insufficient for compliance, while the ICRC’s integration model emphasizes the relevance of IHL to all aspects of military decision-making. A separate process, the ICRC/Government of Switzerland Initiative on Strengthening Compliance with IHL, is still in its consultative stages at the time of writing, but may result in voluntary State reporting and/or thematic discussions at meetings of States. This article synthesizes academic and practitioner insights on effective IHL training, and suggests a collaborative rubric for informative, standardized reporting on IHL training. Such a rubric could enable States and researchers to share best practice and future innovations on IHL training, using a streamlined, cost-effective tool.

Elizabeth Stubbins Bates, PhD Candidate in Law at the School of Oriental and African Studies, University of London

THE INTERNATIONAL COMMITTEE OF THE RED CROSS AND THE PROMOTION OF INTERNATIONAL HUMANITARIAN LAW: LOOKING BACK, LOOKING FORWARD

In a globalizing world marked by geopolitical upheaval, unprecedented threats to human security, new forms of violence and technological revolutions, particularly in the area of information technology, it is no simple task to raise awareness of international humanitarian law (IHL) applicable to armed conflict and ensure that warring parties comply with this body of law. This article traces the history of the International Committee of the Red Cross’s (ICRC) work in promoting IHL from 1864 to the present, juxtaposing this history with important events in international relations and with the organization’s (sometimes traumatizing) experiences that ultimately gave rise to innovative programmes. The article summarizes lively debates that took place at the ICRC around such topics as the place of ethics in the promotion of IHL, respect for cultural diversity in the various methods used to promote this body of law, and how much attention should be devoted to youth – as well as the most effective way to do so. The author concludes by sharing her personal views on the best way to promote IHL in the future by drawing on the lessons of the past.

Marion Harroff-Tavel, Political Adviser to the International Committee of the Red Cross (ICRC))

BUILDING RESPECT FOR IHL THROUGH NATIONAL COURTS

Respect for international humanitarian law (IHL) comes in many forms, one of which is through the practice of domestic courts in addressing IHL-related cases. This article takes a closer look at the structural conditions necessary for the effective enforcement of IHL by domestic courts, elaborates on the spectrum of options that are available to national judges when faced with IHL-related cases, and describes the functional roles of courts in adopting a particular posture. It is demonstrated that even if the structural conditions are fulfilled, this will not necessarily result in the normative application of the law. It appears that national judges are in the process of defining their own roles as independent organs for overseeing the State’s acts during armed conflicts. In that regard, the article outlines a few suggestions for future research on the choices courts make and the conditions necessary for them to effectively handle IHL-related cases.

Sharon Weill, Lecturer in international law applicable during armed conflicts at Sciences Po, Paris, and the Geneva Centre for Education and Research in Humanitarian Action

BUILDING RESPECT FOR THE RULE OF LAW IN VIOLENT CONTEXTS: THE OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS’ EXPERIENCE AND APPROACH

How does the Office of the High Commissioner for Human Rights (OHCHR) discharge its mandate of “promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights”, especially in armed conflicts and other situations of violence? What are its concrete responsibilities, and how does it work to generate respect for the rule of law on the ground? This article aims to provide an overview of OHCHR’s activities, and point to some of the challenges associated with its work to generate respect for the rule of law, in particular in violent contexts. It begins with an overview of the unique mandate of OHCHR and situates it within the broader United Nations human rights machinery. It then gives an account of OHCHR’s experience and approach in building respect for the rule of law, including in armed conflicts and post-conflict situations, outlining how this informs OHCHR’s field setup. Finally, the article summarizes the main challenges that OHCHR faces in the discharge of its mandate. It highlights the need for more concerted action on the part of human rights/humanitarian protection organizations on the ground, despite differences in mandates and constituencies.

Annyssa Bellal, Annyssa Bellal is a lecturer at Sciences Po, Paris, and Legal Adviser for the Swiss NGO Geneva Call

CONTEMPLATING THE TRUE NATURE OF THE NOTION OF “RESPONSIBILITY” IN RESPONSIBLE COMMAND

Operating under responsible command is an essential requirement to qualify as a lawful combatant, and is also central to the doctrine of command responsibility. This reveals the inextricable link between the role of the commander and the effective implementation of the international humanitarian law (IHL). Understanding this linkage is vital to ensuring that commanders and other military leaders fulfil their obligation to prepare subordinates to navigate the chaos of mortal combat within the legal and by implication moral framework that IHL provides. Few commanders would question the proposition that responsible commanders prepare their military units to effectively perform their combat missions. However, operational effectiveness is only one aspect of developing a “responsible” command. Because this term is grounded in the expectation of IHL compliance, a truly responsible command exists only when the unit is prepared to execute its operational mission in a manner that fully complies with IHL obligations. This broader conception of a disciplined and effective military unit reflects the true nature of the concept of responsible command, as only military units built on this conception of discipline advance the complementary objectives of military effectiveness and humanitarian respect. Accordingly, the requirement that lawful combatants operate under responsible command is an admonition to all military leaders that truly effective military units are those capable of executing their missions with maximum operational effect within the framework of humanitarian constraint that defines the limits of justifiable violence during armed conflict.

Geoffrey S. Corn, Presidential Research Professor of Law at South Texas College of Law

CONVERTING TREATIES INTO TACTICS ON MILITARY OPERATIONS

Despite widespread State acceptance of the international law governing military use of force across the spectrum of operations, the humanitarian reality in today’s armed conflicts and other situations of violence worldwide is troubling. The structure and incentives of armed forces dictate the need to more systematically integrate that law into operational practice. However, treaty and customary international law is not easily translated into coherent operational guidance and rules of engagement (RoE), a problem that is exacerbated by differences of language and perspective between the armed forces and neutral humanitarian actors with a stake in the law’s implementation. The author examines the operative language of RoE with a view to facilitating the work of accurately integrating relevant law of armed conflict and human rights law norms. The analysis highlights three crucial debates surrounding the use of military force and their practical consequences for operations: the dividing line between the conduct of hostilities and law enforcement frameworks, the definition of membership in an organized armed group for the purpose of lethal targeting, and the debate surrounding civilian direct participation in hostilities and the consequent loss of protection against direct attack.

Andrew J. Carswell, ICRC’s Senior Delegate to the Armed Forces of the US and Canada

DIRECT PARTICIPATION: LAW SCHOOL CLINICS AND INTERNATIONAL HUMANITARIAN LAW

Law school clinics focused on international humanitarian law (IHL) enable students to participate directly in the development and application of IHL through concrete “real world” work – from training to research and fact-finding, litigation to high-level advocacy, and many spaces in between. These opportunities do far more than just contribute to these students’ development as effective, reflective lawyers, certainly a key goal of any clinical environment. Clinical IHL work also matches clinical pedagogy with cutting-edge issues in armed conflict to deepen students’ law school experiences and enables them to engage in the IHL goals of promotion, implementation and enforcement.

Laurie R. Blank, Clinical Professor
David Kaye, Clinical Professor

AUSTRALIAN RED CROSS LEADERSHIP IN THE PROMOTION OF INTERNATIONAL HUMANITARIAN LAW

Editor’s note: In this Opinion Note, Tim McCormack highlights the Australian experience of setting up and developing an IHL programme domestically as an example of how IHL can be disseminated and promoted at the national level. The Australian experience is a great success story and can serve as an example for others seeking to do the same.

Tim McCormack, Professor of Law at Melbourne Law School and an Adjunct Professor of Law at the University of Tasmania Law School

PREVENTION IN PRACTICE: TEACHING IHL IN US LEGAL ACADEMIA

This paper assesses the evolution of teaching international humanitarian law (IHL) in law schools in the United States since 2007, analyzes progress made in overcoming challenges to more effective integration of IHL content in law school curricula, and provides a measure of the contribution of promotional initiatives and strategies undertaken by the International Committee of the Red Cross (ICRC) to this effort. The findings and recommendations should serve to support law faculty and law schools in the US and elsewhere, as well as the ICRC, in expanding opportunities for teaching and scholarship, and in encouraging law students and professors to pursue their interest in this field.

Kate Jastram, Lecturer
Anne Quintin, Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights

PROMOTING RESPECT FOR IHL BY NGOS: THE CASE OF ALMA – ASSOCIATION FOR THE PROMOTION OF IHL

ALMA – Association for the Promotion of International Humanitarian Law is an Israeli-originated non-governmental organization. ALMA was established with the prime objective of promoting knowledge, understanding and discussion of IHL. For that purpose, it has established several projects aimed at different audiences and with different goals. Since its establishment in March 2010, ALMA has managed to make its way to the front line through cooperation and dedication. This article provides an overview of ALMA’s goals and projects, as well as its challenges and future aspirations in the quest to generate respect for international humanitarian law.

Ido Rosenzweig, Chairman and Co-Founder of ALMA – Association for the Promotion of International Humanitarian Law

ENSURING NATIONAL COMPLIANCE WITH IHL: THE ROLE AND IMPACT OF NATIONAL IHL COMMITTEES

Since the First Geneva Convention was adopted in 1864, international humanitarian law (IHL) has become a complex and steadily developing body of international law. Its conventions, protocols and customary rules encompass a large range of subjects, from the protection of the sick and wounded, civilians, civilian objects, prisoners of war and cultural property to the restriction or prohibition of specific types of weapons and methods of warfare.

Cristina Pellandini, Head of the ICRC Advisory Service on International Humanitarian Law

THE WORK OF MEXICO’S INTERMINISTERIAL COMMITTEE ON INTERNATIONAL HUMANITARIAN LAW

In the six years since it was created, the Comisión Intersecretarial de Derecho Internacional Humanitario de México, Mexico’s Interministerial Committee on International Humanitarian Law, has become one of the region’s most active national bodies for the implementation of international humanitarian law (IHL). Its achievements are the result of the efforts of the federal executive branch agencies that form and participate in the Committee, as well as of the support that the International Committee of the Red Cross and the Mexican Red Cross have provided to facilitate its work. In this article, the author describes the structure and operation of the Committee, as well as the activities it has carried out in fulfilling its mandate to disseminate and promote respect for IHL rules, principles and institutions and further the national implementation of IHL.

Mariana Salazar Albornoz, Director of International Humanitarian Law at the Office of Legal Counsel of the Ministry of Foreign Affairs of Mexico

PERU’S NATIONAL COMMITTEE FOR THE STUDY AND IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW

Implementation of international humanitarian law (IHL) in national legislation is necessary to promote compliance with IHL in the event of an armed conflict. Owing to its consultative and interdepartmental nature, the National Committee for the Study and Implementation of International Humanitarian Law (CONADIH) plays a strategic role in promoting its implementation in Peru. To fulfil that role more effectively, CONADIH was strengthened during a structural internal reform of the Peruvian Ministry of Justice and Human Rights (MINJUS), where its presidency lies. Two of the crucial steps to that end were that the presidency fell under a higher authority within the Ministry and the creation of a governing body with decision-making powers regarding IHL and international human rights law, thus leading to the incorporation of IHL into a broad range of public policies.

Tania Elizabeth Arzapalo Villón, Executive International Humanitarian Law Adviser at the Directorate-General for Human Rights

BELGIUM’S INTERMINISTERIAL COMMISSION FOR HUMANITARIAN LAW: PLAYING A KEY ROLE IN THE IMPLEMENTATION AND PROMOTION OF IHL

The Belgian Interministerial Commission for Humanitarian Law was created in 1987 for the purpose of identifying and coordinating national measures for implementing the Geneva Conventions of 1949 and their Additional Protocols of 1977, which Belgium had just ratified. In the first part of this article, the authors describe the Commission’s background, composition, missions and structure. They then explain how, through its work, the Commission helps incorporate the rules of international humanitarian law into domestic law, disseminate these rules and promote compliance with them. In the final part of the article, the authors highlight the key factors underpinning the Commission’s success in achieving its missions.

Frédéric Casier, Legal advisor
Alix Janssens

WHAT’S NEW IN LAW AND CASE LAW AROUND THE WORLD? (AUTUMN/WINTER 2014)

The biannual update on national legislation and case law is an important tool in promoting the exchange of information on national measures for the implementation of international humanitarian law (IHL). In addition to a compilation of domestic laws and case law, the biannual update includes other relevant information related to regional events organized by the international Committee of the Red Cross (ICRC), to the development of national committees for the implementation of IHL or similar bodies and to accession and ratification of IHL and other related international instruments.

THE CONFERENCE OF HIGH CONTRACTING PARTIES TO THE FOURTH GENEVA CONVENTION OF 17 DECEMBER 2014 AND THE DUTY TO ENSURE RESPECT FOR INTERNATIONAL HUMANITARIAN LAW

While international humanitarian law envisages the possibility of holding formal thematic discussions, only United Nations General Assembly resolutions prompted the depositary of the Geneva Conventions to consult the High Contracting Parties on the opportuneness of conflict-specific conferences. Recalling the precedents of 1999 and 2001 – convened on the basis of the support expressed by the States Parties during related consultations – this article focuses on the Conference of High Contracting Parties to the Fourth Geneva Convention of 17 December 2014, which is likewise related to the Israeli–Palestinian conflict. The result of the conference consists of a declaration reflecting the willingness of the States Parties to further implement Article 1 common to the four Geneva Conventions.

Matthias Lanz, Deputy Head
Emilie Max, Legal officer
Oliver Hoehne, Diplomat

TAKING THE LAW OUT OF THE BOOKS: THE ANNUAL JEAN-PICTET IHL COMPETITION, 19–26 MARCH 2016, ÉVIAN-LES-BAINS AND GENEVA

The Committee for the Jean-Pictet Competition is pleased to announce that the 28th Jean-Pictet Competition will take place in Évian-les-Bains (France) and Geneva (Switzerland) from 19 to 26 March 2016.

BOOK REVIEW: REFUGE FROM INHUMANITY? WAR REFUGEES AND INTERNATIONAL HUMANITARIAN LAW

David James Cantor and Jean-François Durieux’s edited volume Refuge from Inhumanity? War Refugees and International Humanitarian Law explores the legal dimensions of the significant protection gap for those fleeing violent conflict. The authors of the eighteen chapters each assess different scenarios, and aspects of the existing international protection regime, in a bid to clarify and potentially expand the boundaries of legal protection currently available for war refugees. The analysis is underpinned by the omission of any explicit protection for those fleeing conflict in the 1951 Refugee Convention1 and looks to international humanitarian law (IHL) for a potential solution.
Sarah Barr, Programme Partnership Arrangement Officer at the British Red Cross

BOOK REVIEW: THE ROLE OF NATIONAL COURTS IN APPLYING INTERNATIONAL HUMANITARIAN LAW

Book review: The Role of National Courts in Applying International Humanitarian Law
Shane Darcy, Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway

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