Joint Symposium: The Oxford Forum for International Humanitarian Law Compliance

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This is the first post in a joint symposium hosted by EJIL:Talk and Articles of War, the blog of the Lieber Institute at West Point. The symposium reflects a series of conversations held in the context of the Oxford Forum for International Humanitarian Law Compliance, an initiative to promote dialogue between scholars and practitioners on military training and compliance in IHL.

The word ‘compliance’ is disconcerting in its benevolence, as is the ‘humanitarian’ in international humanitarian law (IHL). Both terms hide what IHL permits – killing and destruction within certain limits – in its malleable balance between military necessity and the principle of humanity (Weizman, Scarry, af Jochnick and Normand). IHL allows the death of combatants and the destruction of military targets, but prohibits the targeting of non-combatants, offering protections to the wounded, shipwrecked and prisoners of war. As Benvenisti explains (echoing Luban), the choice between ‘international humanitarian law’ or the ‘law of armed conflict’ is code for opposing ‘camps’, where labels are clues for interpretive preferences.

Yet ‘compliance’ can also be diplomatic doublespeak: states which participate in multilateral fora on IHL compliance might demonstrate their humanitarian credentials while also supplying ‘weapons and other forms of military and security assistance’ to states and armed groups which violate IHL. For the protection of civilians, civil society organizations argue that ‘compliance with the law is the bare minimum’.

Compliance scholars are humanitarian idealists. We emphasise IHL’s norms of restraint, and the obligations of implementation and enforcement that persist even in peacetime. These include dissemination and military instruction in IHL norms, the obligation to ‘respect and ensure respect’ for the Four Geneva Conventions and their Additional Protocols, ‘in all circumstances’, and the requirement to criminalise, prosecute or extradite those suspected of grave breaches of the IHL in international armed conflict; Additional Protocol I’s provisions on legal advisers, and on commanders’ responsibility to prevent and suppress breaches of Geneva law.

In this post, I articulate IHL’s compliance problem; and why scholarly/practitioner dialogue is a fruitful, if de minimis response. I present my own scholarly/practitioner initiative, the Oxford Forum for International Humanitarian Law Compliance: conversations between military legal advisers and academics in Australia, Denmark, the UK, USA and Zambia, and lawyers from the Red Cross and Red Crescent Movement. Finally, I introduce the blog posts in this joint symposium.

IHL’s Enduring Compliance Problem

Concerns about IHL compliance are not new. Hersh Lauterpacht, writing in 1961, observed that military legal advisers would have ‘dialectical doubts’ about Geneva law’s uncertain content, and would need humility in their work, because if international law compliance is at the ‘vanishing point’ of law, the law of war is ‘even more conspicuously, at the vanishing point of international law.’

Why is this? I suggest three reasons: 1. Contested primary norms combined with deadly stakes in the event of misinterpretation; 2. IHL’s obligations are delegated to individual soldiers and armed group fighters ,whose understanding of IHL and their willingness to comply matter for state compliance ; and 3. A transparency gap in state practice, because of bilateral confidential discussions (between states and between states and the International Committee of the Red Cross (ICRC)), and because Geneva law’s multilateral monitoring mechanisms either fall into disuse or are never agreed. On this third point, there is a nuanced contrast between Geneva law and Hague law on weapons.

1. While all legal norms require interpretation, and contested norms are found in all branches of international law, IHL’s primary rules are contested in their applicability (the definitional boundaries of international and non-international armed conflict, and the threshold for the latter), the extent of their co-applicability with international human rights law, and their indeterminacy (where those preferring force protection arguments weigh military necessity more strongly than civilian protection, or those emphasizing the principle of humanity weigh civilian protection more strongly than military necessity). IHL interpretations might vary within a coalition of state armed forces, leading to disagreements over whether dual-use targets are permissible under IHL. While not all IHL is contested (the prohibition on torture of those hors de combat and the substantive protections for prisoners of war are beyond doubt), the extent of these uncertainties, combined with the bloody stakes for an interpretive error make IHL’s compliance problem particularly acute.

2. The individual soldier and non-state armed group fighter matter for IHL compliance. While planned targeting decisions and policies on detention are made centrally by senior military and civilian officials, opportunistic targeting, capture and detention is delegated to a junior ‘strategic corporal’, often in conflicts that veer from traditional to asymmetric engagements. IHL exemplifies Besson’s call to ‘lift the state veil’, moving beyond the fiction of states as the only subjects of international law. Where IHL training is squeezed among other priorities, or confined to a single, annual lecture on applicable law, soldiers’ understanding is in doubt. Their willingness to comply will be affected by the rhetoric about IHL that they hear in their unit and more broadly in their armed force or group.

3. While IHL provides for i) enquiries into alleged breaches, ii) meetings of states to discuss ‘general problems’ in the application of Geneva law, iii) a duty on parties to a conflict to designate Protecting Powers or their substitute (the ICRC), and iv) an International Fact-Finding Commission (IHFFC), these mechanisms are either in disuse (with enquiries and meetings of states never used, and Protecting Powers not used since the Falklands War) or, in the case of the IHFFC, used just once. This contrasts with Hague law, where reporting and compliance mechanisms are in use for the treaties on conventional weapons, against anti-personnel mines, chemical weapons and cluster munitions. Self-evidently, the existence of a compliance mechanism does not guarantee states’ and armed groups’ compliance with these treaties in practice.

Writing about Geneva law, Pejic observes that no other branch of international law requires state consent to trigger its monitoring mechanisms to this extent. Bilateral, confidential dialogue is preferred, either with other states and armed groups, or between individual states and the ICRC. IHL has a transparency problem, which leads to a data gap on the extent of states’ and armed groups’ compliance or violation of its primary rules.

From 2011-2015, the ICRC and the government of Switzerland led a multilateral initiative, Strengthening Compliance with IHL. Despite considerable agreement during this process on a voluntary, non-binding meeting of states to discuss general issues in IHL compliance, consensus was elusive at the 32nd International Conference of the Red Cross and Red Crescent Movement, and this initiative fell (the subject of Yvette Zegenhagen and Michael Meyer’s piece in this blog series).

There followed from 2015-2019 an Intergovernmental Process to strengthen respect for IHL, which was also unable to agree upon a compliance mechanism, passing a resolution on Bringing IHL Home (the national implementation of IHL), for which the ICRC has since issued guidelines. There was agreement on increased use of the International Conference of the Red Cross and Red Crescent (RCRC), regional IHL forums, a digital tool for states to share best practice on IHL, and a dialogue on IHL between states. These are not compliance mechanisms properly so-called, because states hold the power to interpret what compliance is, and to decide which practices to share and which to keep confidential.

Scholarly/Practitioner Dialogue on IHL Compliance

Established in response to these elusive compliance negotiations, the Oxford Forum for IHL Compliance aims to use research findings to inform a conversation with states as to how IHL’s implementation works in practice. My colleagues Andrew Bell and Dale Stephens and I held remote video conversations with military lawyers and legal advisers at of Red Cross national societies (with all participants speaking in their personal capacities). These conversations focused on the obligation to train the armed forces in IHL, drawing on our own research (Stubbins BatesBellBell and Stephens). There werefruitful discussions on the ‘mutual reinforcement’ between law and shared values, how best to design IHL training for members of the armed forces, and the value of state reporting to build cumulative improvements in IHL’s implementation. For Yvette Zegenhagen, head of the IHL Department at the Australian Red Cross, IHL is about ‘ensuring the common thread of humanity in the most stressful of circumstances’. Treaty provisions, their dissemination and discursive engagement with armed forces and armed groups are all necessary but insufficient to produce this ‘thread of humanity’ in practice.

Outline of this Symposium

Following this introductory post, Dale Stephens and Eve Massingham’s articlewill be hosted on the Articles of War blog. They analyse state practice in support of Common Article 1 of the Four Geneva Conventions: the obligation to ‘respect and ensure respect’ for Geneva law ‘in all circumstances’. Stephens and Massingham argue that the obligation ‘principally relates’ to a state’s internal obligations to ‘respect’ IHL, but also requires states to be ‘engaged and responsive’, particularly in their compliance dialogue with coalition partners.

Andrew Bell’s post follows, hosted by EJIL:Talk. He surveys the state of the art in political science scholarship on combatant socialisation and norms of restraint and aligns this to the obligation to include IHL in military instruction or training. Evaluation of training programmes remains essential.

Craig Jones’s post, which will be published on the Articles of War blog, draws on his recent monograph on military legal advisers. Subtly argued and empirically rich, his post contrasts the ‘extensive’ role of legal advisers in planned targeting with their ad hoc involvement in dynamic targeting.

Lt Col Tom Oakley offers a US-based reflection on military legal advisers, highlighting the role of pre-deployment training in the law of armed conflict, both to maintain commanders’ ‘legal manoeuvre space’ and to ensure compliance with the law. His post will appear on EJIL: Talk.

Yvette Zegenhagen and Michael Meyer’s blog, on Articles of War, will offer an in-depth reflection on the ICRC/Swiss initiative on Strengthening Compliance with IHL, and the implications of the resolution at the 32nd RCRC.

I conclude the blog series with a post on EJIL Talk, critically evaluating the Intergovernmental Process, the Bringing IHL Home resolution, and current ‘minilateral’ diplomatic initiatives on IHL.

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