In Defense of International Humanitarian Law
As the frequency and brutality of conflict increases around the world, a number of voices are questioning the relevance of international humanitarian law (IHL), as well as its chief guardian the International Committee of the Red Cross (ICRC). While many criticisms are undoubtedly warranted, some are unfair, inaccurate or misplaced; as such, they warrant a much more careful consideration.
The difficulty in assessing trends of (dis)respect and respect
Many critics of IHL argue that a seeming increase in civilian deaths in conflict means that the law is failing and/or increasingly irrelevant. Yet it is difficult to quantify whether we are in fact seeing an increase in disrespect of the law.
As a legal framework, IHL is a broad and complex beast; consequentially, such assumptions can often be misdirected. Humanitarian law seeks to limit harm and sets out specific prohibitions during conflict; however, the circumstances of the harm are given significant weight in determining legality. This means that damage caused cannot alone be seen as a defining factor. For example, physical harm inflicted during detention is always illegal, whereas physical harm inflicted during hostilities is not inherently illegal, even when it affects civilians. This can be frustrating to many, but it must be remembered that States, and not humanitarians, wrote the law with their interests in mind, including their reluctance to see any restrictions imposed on their “warfare” conduct.
Hence what we can take from this is that when it comes to behaviour during hostilities, statistics very rarely paint the full picture. IHL does not outlaw violence, but rather looks to limit the harm caused to civilians during conflict by prohibiting direct or indiscriminate attacks against civilians and civilian objects. However, what is considered civilian can have a fluid and unclear dynamic at times, especially in non-international and asymmetric conflicts. It is not enough to cite statistics alone, as this can lead to reactive and inaccurate findings and assumptions. Rather, proper monitoring, reporting, fact-finding and analysis is needed to formulate the best strategies to improve respect.
It is also worth noting that while there are clear examples IHL violations – with many instances raising concerns amounting to possible war crimes – there are also cases when steps taken by armed actors will adhere to legal norms. The problem remains that identification of adherence to the law is inherently far more challenging than establishing violations, which often shock and trigger extensive media coverage. On the contrary, occasions of respect will regularly occur without any external awareness. Therefore, it is difficult to know how many air strikes were aborted, or interrogation techniques limited because of a concern of respecting international law.
Old fashioned but not irrelevant
When statistics appear to show increasing disrespect for basic legal norms, the Geneva Conventions of 1949 may be viewed as old fashioned in light of the dynamics of modern conflict. Yet such an argument is misplaced and doesn’t demonstrate a clear knowledge of what the law itself actually states. Core notions in the Geneva Conventions of 1949 and their 1977 Additional Protocols remain as pertinent today as ever; prohibitions on direct attacks against civilians, rape, murder, and torture, if respected, would drastically change the face of many modern conflicts. Yet there are no arguments emanating from critics suggesting that such clear norms should change. Of course legal text cannot protect if it is not respected; the law sets out in clear terms the values and the standards to which we have agreed to adhere. If actors are not respecting it, the problem does not appear to be with the law itself, but rather its implementation and enforcement. Moreover, when there are no consequences for “bad behaviour,” or when states and non-state actors benefit from violations, there is even less incentive to comply. This would appear to be a more pervasive narrative than accepting that the law doesn’t make sense.
In addition, I would strongly suggest that there is little humanitarian value in opening up the law of war in the current political context. The need for consensus in treaty negotiations and agreements would most likely mean that certain states without an absolute prohibition on torture, for example, could transmit such a position into a global norm. Hence the limited legal protection we have now would likely dissolve further into the realm of frivolousness.
The compromised guardian
Conversations concerning the respect and relevance of IHL often also criticize the International Committee of the Red Cross (ICRC), the purported guardian of IHL, for its perceived lack of visible impact in influencing respect for the law. Yet it must be emphasized that the primary responsibility for respecting and enforcing the law falls on the warring parties themselves, and to some extent the international community as a whole, as set out in Common Article 1 of the Geneva Conventions. Furthermore, any criticism of the ICRC must be tempered by the fact that, as previously mentioned, it is typically more difficult to identify acts of respect than acts of disrespect or noncompliance, especially considering that much of ICRC’s work with parties is confidential. The ICRC remains one of the few humanitarian organisations operating globally with the continued ability to access and assess conditions of those held in detention, and to engage in direct contact with warring parties on issues of IHL and protection. Yet this has required a trade-off whereby confidentiality, albeit not completely unconditional, is exchanged for access. As the ICRC asserts, “[c]onfidentiality is an essential tool, enabling the ICRC to help people affected by insecurity, violence and armed conflict. It allows the ICRC to build trust, communicate and influence change.” Yet this has also inherently limited the ICRC’s ability to be outspoken as a method of attempting to increase pressure on warring parties to respect IHL; whether or not it is an impossible task to adhere to both elements of its mandate is a fair question.
Those clamouring for more outspoken statements from the ICRC should also note that the ICRC is not the only relevant civil society voice on issues of IHL. Professional organizations like Human Rights Watch or Amnesty International regularly draw attention to illegal conduct especially during armed conflict, centrally IHL, and often in a very vocal manner. In addition, United Nations bodies such as the Human Rights Council – in the absence of a similar council for matters of humanitarian law – frequently engage in commissions of inquiry for which a public report is produced condemning warring parties. The problem again seems to be not the failure to speak out or engage, but rather the lack of pressure that parties feel, once criticised, which would then lead to a change in behaviour. In many countries this pressure would need to emanate internally.
Conclusions: harsh and unfair
While a number of important critiques may be launched against IHL and the ICRC in particular, they should be done on the merits, rather than making IHL or its guardian the scapegoat for warring parties’ failure to adhere to the law itself.
This article has focused on IHL, yet it is important to mention that aside from issues of adherence or contravention of legal standards, there are many other factors that affect the humanitarian dynamic of a conflict. For example, duration of a conflict, as well as specific conflict dynamics such as location of hostilities (e.g. urban), can have a far greater impact upon civilian casualties. Ultimately, ending conflict will always protect civilians far more than limited regulation of an inherently violent activity.
Yet as long as conflict remains a factual reality, it must have some regulation. It remains a sad state of affairs that such a limited branch of law, which restricts but does not prohibit violence, is so often disrespected. Prohibitions on attacking civilians, and unconditional prohibitions on torture and rape, are some of the core tenants of IHL and serve as international norms that have inspired and triggered the development of extensive modern human rights. When such notions are ignored, questions should be asked of humanity, not of legal doctrine.
About the Law in Context Series
This series examines how international law lives in the context of constantly evolving humanitarian operations in complex environments. It explores the legal frameworks governing humanitarian assistance and protection, analyzing the current challenges, dilemmas and questions most salient for practitioners. Check out the first two installments here:
- Is There a Right to Humanitarian Assistance?
- Attacks on Cultural Heritage in Armed Conflict
- Contesting the Legality of Nuclear Weapons
- Enforcing International Law in an Age of Seeming Impunity
- Humanitarian Access: Yemen in Crisis
- U.S. Denies War Crime Allegations in Kunduz MSF Hospital Bombing: Could the Label Fit?
- The Rohingya: Genocide in the Modern Era?
- In Defense of International Humanitarian Law
Senior Legal Researcher
Stephen Wilkinson is a senior legal researcher with the Advanced Training Program on Humanitarian Action, specializing in international humanitarian law (IHL) and human rights in armed conflict. Previously he was a Legal Officer with the United Nations, a Legal Advisor with the Diakonia International Humanitarian Law Resource Center in Jerusalem and researcher with the Geneva Academy of International Humanitarian Law and Human Rights. He has engaged in numerous projects with both the United Nations and academic bodies relating to the monitoring and investigation of international humanitarian law. Other previous work includes time in Cambodia as a legal researcher on child sexual violence and for the United Nationals Relief and Works Agency in Lebanon. He has also engaged in recent consultancies addressing IHL and human rights issues in Syria and Mali. He holds an LL.M (distinction) from the Geneva Academy of International Humanitarian law and Human Rights, as well as an LL.B (hons) from the University of Leeds. In addition he is a PhD candidate at the University of Geneva. He has also previously worked with us on the MRF project.