From Multilateralism to Minilateralism in International Humanitarian Law Compliance

This is the final post in the joint EJIL:Talk and Articles of War blog series from the Oxford Forum for International Humanitarian Law Compliance.

Geneva law (the Four Geneva Conventions 1949 and their Additional Protocols 1977 and 2005) has few compliance mechanisms. As I argued in my introduction to this blog series, IHL has an enduring compliance problem. This is because of 1. IHL’s contested primary norms combined with high stakes in the event of their misinterpretation, 2. its delegation of obligations to individual soldiers and armed group fighters, and 3. its history of confidential diplomacy between states and the ICRC or states and their allies, combined with multilateral monitoring initiatives that are either never agreed (such as the ICRC/Swiss Strengthening Compliance Initiative: the subject of Yvette Zegenhagen and Michael Meyer’s post in this series) or fall into disuse (Protecting Powers, the enquiry mechanism, and the meetings of states foreseen by Art 7 Additional Protocol I). Geneva law’s compliance mechanisms apply only to international armed conflicts (with the possible exception of the IHFFC).

This post critically evaluates the Intergovernmental Process, the Bringing IHL Home resolution, and current diplomatic initiatives on IHL. I ask why multilateral compliance initiatives in IHL are repeatedly difficult, when the Four Geneva Conventions 1949 have been universally ratified, and their Additional Protocols enjoy majority support. I locate the answer in two trends: first, states’ longstanding preferences to exclude civil society from norm-creation, interpretation and monitoring in IHL; and second: fractures in multilateral decision-making, so that ‘minilateral’ initiatives (led by one or several willing states, in dialogue with civil society) take their place.

Intergovernmental Process

The 32^nd International Conference of the Red Cross and Red Crescent (RCRC) held in 2016 did not establish voluntary meetings of states as earlier discussions in the ICRC/Swiss Strengthening Compliance Initiative might have predicted. There had been concerns that the proposed reporting mechanism might be similar to the universal periodic review mechanism established by the UN Human Rights Council; and the Arab Group of states in particular was concerned that the process would become politicised. Resolution 2 provided for ongoing intergovernmental dialogue, and confidential bilateral meetings between states and the ICRC. These were held at approximately six-monthly intervals. No updates on these meetings were released to the public until the final Factual Report of April 2019, showing a commitment to inter-state dialogue only, without civil society and scholarly input. States agreed on four mechanisms to improve IHL compliance: increased use of the triennial RCRC, regional IHL forums, a digital tool (for states to share best practice in IHL) and a dialogue on IHL among states.

Bringing IHL Home

At the 33^rd RCRC in December 2019, states passed a resolution on Bringing IHL Home. This limits ambition to the national implementation of IHL, instead of multilateral engagement on compliance. The resolution is nonetheless detailed and wide-ranging. It prioritises ‘necessary legislative, administrative and practical measures at the domestic level’ and ICRC-state dialogue on further improvements to the national implementation of IHL (OP 2). The ‘intensification’ of and innovative means for civilian dissemination and military instruction in IHL should be a priority (OP 3, 8, 10), as should the ratification or accession to IHL treaties and declarations which recognise the competence of the IHFFC (OP 4). States are encouraged to share best practices in IHL, including via the RCRC and national IHL committees (OP 13).

Some willing states have done just that. Many Pledges and Pledge Reports, especially on IHL dissemination and training, have been issued at the 32^nd and 33^rd RCRCs. A significant majority of these Pledges come from states in the global North, as do the small but increasing number of states to issue Voluntary Reports on their practice in IHL (e.g. UK, Switzerland, Germany, Bulgaria: see the Voluntary Pledge signed by more states since the 33^rd RCRC). These states demonstrate their multilateral credentials and their willingness to share their national implementation of IHL. The release of Law of Armed Conflict Manuals (e.g. by Denmark, UK, USA) similarly shows willingness to share a state’s opinio juris.

Recent and Current Compliance Initiatives

In 2019, France and Germany supported a soft law Call for Action to Strengthen Respect for International Humanitarian Law and Principled Humanitarian Action, which sought to ‘spread the strategic narrative that it is in everyone’s interests’ to comply with ‘international norms for the protection of civilians’ including IHL, international human rights law, international refugee law and applicable Security Council resolutions. Its first recommendation includes ratifying and implementing applicable legal instruments; and endorsing a range of soft law documents including the Paris Principles on Children Associated with Armed Forces or Armed Groups, the Safe Schools Declaration, and the Vancouver Principles and the 2017 Political Declaration on the Protection of Medical Care in Armed Conflict. The Call for Action requests that states ‘consider… report[ing] on a regular basis’ on their domestic implementation of IHL, contributing to the ICRC’s national implementation database. Subsequent recommendations focus on IHL training to partner forces and non-state armed groups, military, security forces and diplomatic personnel. In a reflection of the ICRC’s Updated Commentary to Common Article 1 to the Four Geneva Conventions, the third recommendation asks states to ‘[i]nfluence parties to a conflict to ensure they take all feasible measures to protect civilians’ including by facilitating humanitarian aid; assess the risks to civilians of arms transfers; and to support Security Council sanctions where individuals or groups attack civilians or humanitarian and medical workers. The fourth recommendation calls for the ratification of the Rome Statute of the International Criminal Court, and support for existing multilateral mechanisms (outside IHL) including the UN Monitoring and Reporting Mechanism on Children and Armed Conflict and the Monitoring and Reporting Arrangements on Sexual Violence in Armed Conflict. The fifth and final call is for states and civil society to exchange information and best practices, and to ‘participate in [voluntary] meetings open to all interested states and … civil society’. This call for transparency and participation, in an initiative led by two states, rises above the consensus requirement of the Strengthening Compliance Initiative and the Intergovernmental Process, so that spoiler states cannot jeopardise the agenda.

Delayed by the Covid-19 pandemic, the Draft Political Declaration on Strengthening the Protection of Civilians from Humanitarian Harm arising from the Use of Explosive Weapons in Populated Areas is now reaching its final stages. This initiative is led by the Irish government, and includes civil society perspectives and feedback. Non-governmental organisations (NGOs) have called for clearer, strengthened language on avoiding the use of explosive weapons with wide area effects in populated areas, statements on the ‘reverberating effects’ of explosive weapons on infrastructure and civilian services, and the importance of civilian casualty data. Civil society groups have emphasised that compliance with IHL is a ‘bare minimum’ for civilian protection. This emphasises practical policies, in contrast to the Draft’s emphasis on IHL compliance. IHL compliance is necessary but insufficient for civilian protection, given its awkward tension between military necessity and the principle of humanity. The process contrasts with the Intergovernmental Process’ exclusion of civil society groups, and the absence of interim reports until the final Factual Report was released.

Analysis

These developments reveal two discrete trends. First is the longstanding practice of states to exclude civil society from norm-creation, interpretation and compliance activity in IHL. Benvenisti and Lustig found evidence of this in nineteenth century IHL-creation. Shereshevsky acknowledges the tetchy dialogue between states and the ICRC following the publication of the latter’s Customary IHL Study and the Interpretive Guidance on Direct Participation in Hostilities. The Strengthening Compliance Initiative and the Intergovernmental Process that followed showed some states’ unwillingness to have ‘politicised’ discussions of particular conflicts, and to replicate the UN human rights system in an IHL compliance mechanism.

Second, these faltering compliance initiatives reflect larger fractures in multilateralism, which Sossai observes in relation to disarmament and arms control law since 2014. Ginsburg predicts shifts within ‘international law structures’ from ‘rising authoritarianism’, so the emergence of several authoritarian populist regimes might explain a reduced willingness to engage in IHL compliance mechanisms.

Pledges, reports and manuals are a unilateral response to delicate multilateralism. Shereshevsky reasons that these unilateral declarations on IHL (he uses the example of the US Law of Armed Conflict Manual) are attempts to ‘regain [states’] influence over IHL from non-State actors’, including the ICRC. This unilateral compliance activity is beneficial, beginning to correct Watts’ observation that disclaimers by state officials that they are speaking in their personal capacity leads to ‘an impoverishment of dialogue… [which] founder[s] in the absence of authoritative State opinio juris.’

Bilateral compliance activities exist among coalition partners, and states’ allies (whether armed forces or armed groups): Stephens and Massingham point to the pragmatic potential of interoperability to encourage ‘respect’ for IHL ‘in all circumstances’. The ICRC and Geneva Call both engage in bilateral compliance diplomacy with armed forces and armed groups, with Geneva Call encouraging public Deeds of Commitment on specific topics in IHL and international human rights law.

Yet current diplomatic activities are ‘minilateral’, even when they attempt to engage a large number of states. Minilateral initiatives are ‘flexible, ad hoc frameworks, whose membership varies based on situational interests, shared values, or relevant capabilities’ (Patrick). Minilateral initiatives are led by one or several states and show greater willingness than the Intergovernmental Process to engage civil society perspectives and critique.

While national implementation through ‘Bringing IHL Home’ has potential, particularly for the granular improvement of states’ dissemination, training and integration of IHL principles among military and civilian officials, these minilateral initiatives are tactically valuable for IHL compliance. They can circumvent spoiler states and current flaws in multilateral humanitarian diplomacy.