Fighting by the rules
Could a voluntary compliance mechanism, designed to be non-binding and non-political, help bridge the gap between the ideals behind the rules of war and real-world practice on the ground?
Denial of humanitarian relief to civilian populations. Indiscriminate shelling. Hostage-taking. Torture.
These are just some of the visible trends seen in today’s conflicts that are causing great suffering, but also undermining the notion that wars have rules that must be obeyed.
As Peter Maurer, president of the ICRC, told the fourth meeting of states on strengthening compliance with international humanitarian law (IHL) in Geneva in April: “The current state of human suffering, and of humanitarian needs caused by armed conflicts around the world, would be far lower if international humanitarian law were properly implemented by the parties on the ground.”
The problem is there is a big difference between what is called for under international humanitarian law and what often happens on the ground. Or as Maurer put it during the meeting in Geneva: “There is — still — an overwhelming implementation gap.”
Bridging that gap is not an easy task, however. Today’s conflicts have become increasingly complex and less international in nature with a greater number of those engaged in fighting belonging to what are often referred to as ‘non-state’ armed groups.
Although they are still bound by international humanitarian law, some of these armed groups may have limited knowledge of its rules — while others reject them outright or ignore them in practice.
States meanwhile also often violate the letter and spirit of IHL in their battles against such armed groups. In either case, this can lead to unspeakable civilian suffering and the prevention of assistance and protection to affected populations.
In terms of addressing alleged violations of IHL there is also a wide gap. Under the Geneva Conventions and Additional Protocol I, there are three potential mechanisms which a state party to an international armed conflict can trigger with respect to its adversary.
Developed at a time when most conflicts were international disputes between states, they have rarely been put into action and it is even less likely today, given that most armed conflicts involve states and one or more non-state armed groups.
Thus, as Maurer further noted, “The IHL mechanisms provided for in the Geneva Conventions and Additional Protocol I have proven unable to contribute to filling the implementation gap.”
A need to meet
Meanwhile, the Geneva Conventions are practically the only treaties of international law that are not accompanied by a framework within which states can regularly discuss implementation and compliance.
With other international treaties — such as the ban on the use of anti-personnel mines or the regulation of arms transfers — regular meetings are called for as part of the treaty text. These meetings help focus states and international bodies on developing the capacity, internal reporting, good practice and other measures that might ensure compliance.
In this context, the ICRC has been involved as facilitator in a joint diplomatic initiative with the government of Switzerland aimed at developing agreement around new ways to ensure compliance with IHL. Based on Resolution 1 adopted at the 31st International Conference of the Red Cross and Red Crescent, which took place in Geneva in 2011, Switzerland and the ICRC carried out a consultation process open to all states parties to the Geneva Conventions. During this process, more than 140 states took part in nine meetings between 2012 and 2015.
The resulting proposal, favoured by the great majority of states, which will be discussed at the 32nd International Conference in Geneva this December, calls for a non-binding, voluntary mechanism with the following main components:
- A regular meeting of states as the centrepiece of the new system. It would provide a venue for sustained dialogue and cooperation among states on ways to enhance the implementation of IHL.
- Thematic discussions on IHL issues that would allow an exchange of views on key legal, practical or policy questions.
- A periodic reporting system on national compliance with IHL that would permit states to periodically review and assess the efficacy of measures taken at the domestic level to ensure respect for IHL. This function would also enable the sharing of good practices, recognizing each state’s capacity-building needs. It will also help them identify challenges in IHL implementation and ways of resolving them.
Some observers have questioned whether a voluntary system will be sufficient to ensure changes on the battlefield, arguing that perhaps stronger elements are required.
However, given concerns that such enforcement mechanisms may not always be politically neutral, Helen Durham, director of International Law and Policy of the ICRC, says the proposed non-political approach is an important step towards enabling states to share best practice and discuss their experiences in the implementation of IHL.
“The ICRC has been very appreciative of the level of engagement and interest many states have shown during the four years of discussions relating to the mechanism being proposed,” Durham says. “It is clearly an issue that is recognized globally as requiring attention.
“There are many approaches to improving compliance with IHL and we need to look at how all these means can complement each other,” she says. “The role of the ICRC is to constantly focus on proposing solutions that address critical humanitarian problems — the lack of compliance with IHL certainly has a significant impact on the lives of all those involved in armed conflict.” n
L An elderly man sits in the ruins of homes and buildings destroyed by intense bombardment. In many of today’s conflicts, such widespread destruction, caused by indiscriminate use of force in populated areas, is one manifestation of the lack of respect for international humanitarian law on the part of
“The mechanisms provided for in the Geneva Conventions and Additional Protocol I have proven unable to contribute to filling the IHL implementation gap.”
Peter Maurer, ICRC president