The e-briefing you are about to enter presents the results of a reflection led by the ICRC’s Law and Policy Forum on how to generate respect for international humanitarian law (IHL). Based on the editorial of the International Review of the Red Cross edition of the same title by Vincent Bernard, it focusses on ways to prevent IHL violations.
How can we ensure that respect for human life and dignity remains a concern shared by opposing parties in armed conflicts? In other words, how does one generate respect for the law in times of war? What tools and strategies are successful in influencing the behavior of both weapon bearers and decision-makers?
These questions have brought the ICRC to reflect on how to generate respect for the law. A key point of this process was the publication of an issue of the International Review of the Red Cross on the theme Generating respect for law in December 2015. The edition was aimed at taking stock of the lessons learnt in the field of influencing behaviour 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 caught up in armed conflict. Building on this, a conference cycle on the same theme was initiated in 2016, resulting in 19 public events held in 10 different countries over the course of the year. In parallel, the Humanitarium, the ICRC’s conference center in Geneva presented a three-part exhibition showing the means used by the ICRC over the years to increase adherence to and compliance with IHL. Additionally, a new research project, IHL in action, was developed in collaboration with four IHL legal clinics. This project, which was designed to counterbalance the narrative about the erosion of respect for IHL, resulted in the collection and publication of a number of case studies documenting situations of respect for IHL. A number of blogposts on the subject were also published on the Law and Policy Blog. This e-briefing, based on Vincent Bernard, ICRC Vincent Bernard is the head of the Law and Policy Forum and editor-in-chief of the International Review of the Red Cross. ’s editorial in the Review, will present the outcomes of this process powered by the ICRC.
Before entering into the discussion on how to generate respect for the law, it is imperative to address the subject of prevention. Generally, the ICRC’s understands prevention as the work it does to prevent problems of humanitarian concerns from arising. This has translated into a prevention approach, in which the ICRC seeks to avert human suffering by fostering an environment conducive both to respect for life and dignity of persons affected by armed conflict and other situations of violence, and to the respect for the ICRC’s work. Two common objections to investing in prevention need to be addressed: First, it is often considered a misplaced or useless endeavour. Some argue that investing in the promotion of IHL is misplaced, as preventing the very occurrence of conflicts or bringing a peaceful end to them would be the ideal way of preventing atrocities. However, political efforts to maintain or re-establish peace are not in contradiction with efforts to build safeguards against abuses in the context of armed conflict. Indeed, history has shown time and again that efforts to prevent or stop conflicts often fail. In such circumstances, a consensus on respecting the basic tenets of IHL can provide a minimal safety net.
Second, given the apparent deficit of respect for the basic tenets of IHL in armed conflicts, one may be tempted to despair at the state of the humanitarian endeavour today and conclude that prevention is useless. Over 150 years after States first sought to introduce limits to barbarity in war, elementary rules such as the provision of medical aid to the wounded and sick, the prohibition against sexual violence or the protection of civilians from attack are at times disregarded. Yet the persistence of IHL violations in conflict situations today – and in the future – does not discredit past prevention efforts. Rather, it calls for a renewed commitment to prevention, as we know that it is a continuous and proactive process.
Nonetheless, engaging in prevention remains extremely challenging for humanitarian actors. Some of the obstacles relate to the political will of the parties to conflicts and very often to difficulties in accessing and engaging with non-State armed groups in a context of increasing radicalization and, at the same time, criminalization of humanitarian engagement. Other challenges are of a structural nature within the humanitarian sector itself: what is the best way to demonstrate that prevention efforts are relevant and effective? How can we justify investing limited resources with a long-term perspective when existing needs for ongoing relief operations are so vast and urgent? How can we “stay the course” and maintain prevention efforts in an age that seems to privilege short-term output over long-term vision?
As a set of norms, IHL is the expression of an international consensus. It could be seen as a “social contract” between States to protect human life and dignity even in times when mortal peril might seem to justify all acts of violence. It is in its faithful application by the parties to conflict that the full power of IHL can unfold. States are the primary addressees of the obligation “to respect and ensure respect for IHL in all circumstances”. Knut Dörmann, ICRC Dr Knut Dörmann is Head of the Legal Division at the International Committee of the Red Cross (ICRC). and José Serralvo, ICRC José Serralvo is legal adviser in the Legal Division at the ICRC. explain that States are expected, first and foremost, to live up to their own obligations but also to abstain from assisting in the commission of violations by others, and to take measures to put an end to ongoing violations and to actively prevent their recurrence.
At the level of the individual, the very existence of IHL and its continuous development could have been seen as a sufficient deterrence to IHL violations. After all, “ignorance is no excuse” (or “nul n’est censé ignorer la loi”): a person accused of having committed a crime cannot claim ignorance to avoid responsibility. Unfortunately, the existence of the law is not in itself a guarantee that it will be respected. Without proper implementation mechanisms, the law usually remains a rather weak tool for social order. Gustave Moynier, ICRC Gustave Moynier (1826-1910) was the one of the founders of the ICRC and its president for 46 years. , the second president of the International Committee of the Red Cross (ICRC) – and the founder of this journal – recognized this when he made the proposal to set up an international court, back in 1875.
Indeed, the ad hoc tribunals for the former Yugoslavia and for Rwanda, the International Criminal Court, and other international courts and tribunals have been seen as “actors of deterrence” against the commission of war crimes and other serious violations of international law, with prosecutions serving to dissuade potential perpetrators from committing violations.
In the Review, Guido Acquaviva, Special Tribunal for Lebanon (Chambers) Dr Guido Acquaviva is Senior Legal Officer at the Special Tribunal for Lebanon (Chambers). He is an expert on public international law and international criminal law and has lectured and published extensively on both subjects. and Chris Jenks, SMU Dedman School of Law Chris Jenks is Assistant Professor and Director of the Criminal Justice Clinic at the SMU Dedman School of Law in Dallas, Texas. Prior to joining academia, he served for twenty years in the US Army in various posts, notably as the chief of the Army’s international law branch. debate on the role on international criminal justice in fostering compliance for IHL. Though the discussion is not over, what can be said is that by virtue of their existence and via their jurisprudence, international courts and tribunals have significantly strengthened the international system of accountability for IHL violations. In parallel, Sharon Weil, Sciences Po Dr Sharon Weill is a lecturer in international law applicable during armed conflicts at Sciences Po, Paris, and the Geneva Centre for Education and Research in Humanitarian Action, a joint centre of the University of Geneva and the Graduate Institute for International and Development Studies. argues that domestic courts remain the best avenue for pursuing effective and lasting enforcement of IHL. Hence, she calls for the international community to invest in understanding their functioning, and to ensure that they are equipped and well placed to perform this role within the domestic legal order.
Today, continuing efforts are being put into the development of more effective compliance mechanisms in IHL. And yet, recent conflicts demonstrate an appalling disregard for elementary humanitarian considerations, and in some instances even intentional violations of the law as a war tactic. In the face of such violations, how can one hope to influence the behaviour of parties to the conflict?