The 1949 Geneva Conventions and IHL lawmaking 70 years on
The achievements of negotiators in 1949 – and with also in 1977 – stand in stark contrast with more recent treaty-making efforts in the field of IHL, where successful initiatives have been rare. 1949 saw the negotiation and adoption in parallel of four different treaties addressing subjects as varied as the protection of wounded and sick members of the armed forces, the deprivation of liberty of prisoners of war, and the protection of the civilian population, including in occupation; the first codification of rules applicable in non-international armed conflict; and the inclusion of provisions establishing individual criminal responsibility. Not only is the range of topics striking in itself, but so is the degree of detail in which these issues were addressed, and the clarity of the provisions.
Since 1977, and with the exception of the 1998 Statute of the International Criminal Court,40 the instruments of IHL that have been adopted have focused on very specific issues, usually in the field of weapons regulation.41 Even in this field, some negotiations were started and abandoned, or have been on the agenda for many years but remain inconclusive.42 Other endeavours, such as the Swiss/ICRC initiative on strengthening compliance with IHL, have had to be abandoned.43
In the current international climate, states are unlikely to engage in similar, or even in less ambitious, treaty-making exercises – whether to clarify how existing rules of IHL apply to emerging technologies; to address perceived gaps in the law; or to develop the law by expanding its protections. In view of this, future endeavours should focus on clarifying existing law rather than attempt to develop it, and on promoting compliance. A number of different actors – states, civil society, international institutions and organized armed groups – have responsibilities and roles in this making and ‘shaping’ of IHL.44
National authorities
While it is states – and in particular the executive branch of government – that ‘develop’ IHL by negotiating and adopting new binding standards, other parts of states have a role in implementing and interpreting it. Parliaments may adopt legislation to give effect to the state’s IHL international obligations or, as in the case of counterterrorism, adopt laws that may affect the implementation of IHL. Domestic courts are also dealing with questions of IHL with increasing frequency in criminal and civil proceedings, as are quasi-judicial processes such as public inquiries.
There is scope for governments, without proposing new treaty negotiations, to act domestically to clarify the law and to take measures to give effect to the law in their activities. Such measures include policies and detailed operational directives by the armed forces on the targeting cycle, including to record the impact on civilians and feed this information back into the targeting loop; measures to give effect to the obligation to investigate possible violations, as set out in the ICRC/Geneva Academy’s recent Guidelines on Investigation of Violations of IHL;45 and steps taken by other parts of government to ensure compliance with IHL – for instance in the field of arms transfers.
The UK is, for example, currently undertaking a review of its strategy on the protection of civilians in armed conflict. In this review, and in other such policies, the UK has the opportunity to consider various aspects of IHL and to adopt processes and measures to assist understanding and enhance compliance.
States must also ensure that their authorities are well equipped and resourced to undertake the necessary investigations and prosecutions of war crimes of which they have suspicion or knowledge – both by their own forces and by others. Without the enforcement of criminal law, in respect of both a state’s own troops and those of others, the likelihood of continuing violations of the law increases. As noted by UN Secretary-General António Guterres in his 2019 report on the protection of civilians in armed conflict, despite some examples of national prosecutions and investigations, efforts to ensure accountability fall far short of what is required. Closing this gap means addressing problems of political will, and of capacity and resources, at the national level. Allegations of serious crimes under international law require investigation and prosecution wherever and whenever they occur. Accountability must be systematic and universal. It must also respond to the need for reparations for violations of the law.46 For the purpose of such enforcement, and for compliance with IHL more generally, the necessary recording of civilian injuries and deaths must be undertaken.
Without the enforcement of criminal law, in respect of both a state’s own troops and those of others, the likelihood of continuing violations of the law increases
In this area, too, initiatives to clarify the law are extremely useful. A case in point is the G8 Declaration on Preventing Sexual Violence in Conflict of 2013,47 which serves as a high-level reminder that rape and other forms of serious sexual violence in armed conflict are war crimes and grave breaches of IHL, and that all states must search for and prosecute or extradite any individual alleged to have committed or ordered such a grave breach, regardless of nationality.
Civil society
It is the ICRC, of course, that has traditionally taken the lead in seeking to ensure respect for IHL by a multitude of initiatives, some of which focused on the clarification of the law.48 There is further scope for civil society, with or without governments, to make efforts to clarify existing law and to provide guidance on its implementation. Recent examples where this has been done include: the 2014 Guidelines on Safe Schools;49 the 2016 Practitioners’ Guide to Human Rights Law in Armed Conflict;50 the 2016 Oxford Guidance on the Law Relating to Humanitarian Relief Operations; the 2018 Chatham House paper on Proportionality in the Conduct of Hostilities;51 and the 2019 Geneva Academy/ICRC Guidelines on Investigation of Violations of IHL. These documents set out existing law, at times bringing together relevant rules from different areas of international law, and suggest good practices for implementing obligations and enhancing protection, sometimes over and above what is required by the letter of the law as a matter of policy.
All these exercises were initiated and for the most part led by civil society, academia or think-tanks, rather than commissioned and convened by states. The nature of the formal involvement of states varied: at times state representatives were involved in the expert discussions for the elaboration of the documents in their ‘personal capacity’, or states were consulted on the substance. The most significant involvement of states is in the Safe Schools Declaration, linked to the Guidelines, which states can endorse.52
None of these documents is binding per se. Nor was there an intention that they be turned into binding instruments.53 Even so, such documents can be extremely influential. In clearly elaborating existing law on a particular issue, they can focus the attention of the armed forces on particular issues, and can provide clarity and guidance for refining military manuals or elaborating military doctrine and policies: to states when adopting legislation; and to courts, quasi-judicial bodies and intergovernmental organizations.
Among the other legal issues raised in contemporary armed conflicts that could benefit from similar clarification processes include the deprivation of liberty of children in armed conflict; and the interplay between the rules regulating blockades and other maritime interdictions and those regulating humanitarian relief operations.
International institutions
A range of intergovernmental bodies are applying IHL or otherwise considering the lawfulness of the activities of belligerents in situations of armed conflict. These include bodies tasked with reviewing compliance with international human rights law (IHRL) such as the European Court of Human Rights, and the various UN human rights treaty bodies such as the Human Rights Committee, or the Committee against Torture; and ad hoc bodies – commissions of inquiry or fact finding mechanisms – established by the UN Security Council or the Human Rights Council (HRC), as well as UN sanctions panels of experts. Such bodies may have a mandate that expressly includes IHL, like the UN Committee on the Rights of the Child, or the Committee on the Rights of Persons with Disabilities, the HRC Universal Periodic Review, and the African Court of Justice and Human Rights; or they may be applying IHRL in situations of armed conflict – like for example the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee – which similarly requires an understanding of IHL and its interplay with IHRL.54
States, and in particular the armed forces, have expressed concern about the involvement of IHRL bodies, and of IHRL-focused non-governmental organizations in IHL oversight for a variety of reasons. At times they – rightly – point out that politicized mandates that only focus on the behaviour of one party to a conflict can impair their capacity to properly apply IHL. At other times, the reservations are due to these bodies’ perceived lack of understanding of IHL, or arise from general opposition to the involvement of IHRL bodies in situations of armed conflict. Ways must be found to address these concerns where possible, and enhance these bodies’ familiarity with IHL.55
States, and in particular the armed forces, have expressed concern about the involvement of IHRL bodies
Two key opportunities for doing this are, first, when a particular entity is tasked with considering a situation; and, second, by enhancing the IHL expertise of the entities. The first opportunity arises only for entities that consider situations of armed conflict and/or IHL in an ad hoc manner – i.e. commissions of inquiries, fact-finding missions or sanctions panels of experts, the mandates of which are set on a case-by-case basis. It is not relevant to permanent bodies such as the various human rights courts or HRC treaty bodies whose jurisdiction or mandates have been set by their founding instruments. With regard to the ad hoc bodies, efforts should be made to ensure that the tasks with which they are mandated are compatible with IHL – compatible in the sense that they must consider the behaviour of all parties to a conflict rather than simply the one(s) perceived as most responsible for the violations. An opponent’s conduct may be determinative of the lawfulness of a belligerent’s act. For example, what might appear as an unlawful attack against a civilian object might in fact be permissible if the enemy had put it to a military use. A further source of concern is the tendency for such ad hoc bodies to consider the situation through the lens of criminal responsibility, and consequently to make determinations about the commission of war crimes rather than violations of IHL. This, too, is frequently the consequence of how their mandates are formulated in resolutions of the UN HRC or Security Council. As a matter of law, both issues could be avoided by careful drafting of the mandates; in practice however, the resolutions are adopted in politicized forums, where states’ legal advisers hold little sway or have limited involvement. Members of the various bodies should interpret the mandate in a manner that permits the proper application of IHL.
And this leads to the second opportunity: enhancing the familiarity with IHL of members of ad hoc and permanent bodies. This can be itself be done in three ways, the first of which being when they are selected. If an ad hoc body is mandated to consider a situation of armed conflict, competence in IHL should be one of the selection criteria. Following the example of the UN sanctions panels of experts, the procedures for appointing members of the ad hoc bodies should be modified. Positions should be advertised so that a range of experts could apply for them, rather than solely relying on nominations by states or the relevant secretariats. The same approach could not be adopted for the human rights treaty bodies and human rights courts, but expertise in IHL could be included among the various criteria for eligibility.
Second, the various entities should be able to rely on people with expertise in IHL. This can include specialists within the relevant secretariats, or designated external experts, like the Special Adviser on IHL to the ICC Prosecutor. Consideration could be given to consulting the International Humanitarian Fact-Finding Commission, either as an institution or through nomination of individual experts to provide assistance.
Third, training in IHL should be systematically provided to members of the various bodies and secretariat staff. A further possibility would be to allow third-party submissions by civil society organizations, something that the Human Rights Committee is already doing during its elaboration of General Comments. While some submissions are likely to fall within the ‘activist’ camp, others are likely to contribute to a more accurate understanding and application of IHL.
Organized armed groups
States have repeatedly made the point that it is only states that make new law, and this is a prerogative that they are guarding jealously. Their assertions have been prompted by the perceived intrusions of civil society in lawmaking, as well as by suggestions that organized armed groups that are parties to armed conflicts may also have a role to play.
While there is no question that such groups are bound by IHL, they are not involved in its formal creation or development. They cannot ratify treaties; their practice does not constitute ‘state practice’ for the development of customary rules; and at present they do not participate in treaty negotiations. This is simply a reflection of the state-centric nature of public international law. However, it has consequences for efforts to ensure that such groups comply with IHL.
Those engaging with organized armed groups believe that finding ways for the groups to formally take on obligations themselves, rather than being held to those obligations assumed by the very state they are fighting, can be symbolically important and can contribute to better compliance. Moreover, such assumption of responsibilities can be a starting point for further engagement with the groups to encourage them to give effect to their obligations, including by training their forces, adopting measures to implement them in their operations, and investigating violations.
While organized armed groups remain bound by the relevant treaty and customary law rules of IHL, a number of approaches have been developed to give them ‘ownership’ in the law. These include the ‘Deeds of Commitment’ that groups can conclude under the auspices of the non-governmental organization Geneva Call;56 and the ‘action plans’ concluded with the Office of the Special Representative of the Secretary-General for Children and Armed Conflict.57 Organized armed groups can also enter into agreements with their opponents to give effect to specific provisions of IHL.58 These agreements could relate to the issues envisaged by the Geneva Conventions and Additional Protocols in relation to international armed conflicts, such as establishment of various types of protected areas or the conduct of evacuations,59 or, indeed, any other issue regulated by IHL.60 In 2017 in eastern Ukraine, for example, belligerents were negotiating the establishment of a safety zone around two water installations on the contact line, to spare from the effects of hostilities this critical infrastructure on which people on both sides of the contact line depended.61 These agreements not only give organized armed groups ‘ownership’ in IHL, but also allow precise modalities to be established and may go beyond what is required by the law.
Consideration could also be given to including or at least consulting organized armed groups in the various clarification initiatives mentioned above. While many groups are unlikely to have legal advisers who could engage in detailed discussions of the law, the mere fact of hearing the challenges facing the groups in complying with the relevant rules would be very instructive.62
Key to all these endeavours is the possibility for humanitarian actors and other stakeholders to engage with organized armed groups without fear of violating counterterrorism measures.
40 Rome Statute of the International Criminal Court, 17 July 1998.
41 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997; Protocol on Explosive Remnants of War (Protocol V to the 1980 CCW Convention), 28 November 2003; Convention on Cluster Munitions, 30 May 2008; Arms Trade Treaty, 2 April 2013; and Treaty on the Prohibition of Nuclear Weapons, 7 July 2017.
42 Parties to the Convention on Certain Conventional Weapons (CCW) have been unable to reach consensus on starting negotiations on a number of topics, including the establishment a compliance mechanism, and a provision to ban small-calibre bullets. Negotiations on limiting the use of anti-vehicle mines remain stalled. For a summary, see Arms Control Association (2017), ‘Convention on Certain Conventional Weapons (CCW) At a Glance’, https://www.armscontrol.org/factsheets/CCW.
43 Durham, H. (2018), ‘Strengthening compliance with IHL; Disappointment and hope’, Humanitarian Law and Policy, 14 December 2018, https://blogs.icrc.org/law-and-policy/2018/12/14/strengthening-compliance-with-ihl-disappointment-and-hope/.
44 Sivakumaran, S. (2018), ‘Making and Shaping the Law of Armed Conflict’, Current Legal Problems, 71(1), p. 119, doi: 10.1093/clp/cuy004.
45 Lubell, N., Pejic, J. and Simmons, C. (2019), Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Good Practice, Geneva Academy and ICRC, https://www.geneva-academy.ch/joomlatools-files/docman-files/Guidelines%20on%20Investigating%20Violations%20of%20IHL.pdf.
46 UN Secretary-General’s report on the Protection of Civilians in Armed Conflict, UN Doc S/2019/373, 7 May 2019, paras 61–62.
47 G8 Declaration on Preventing Sexual Violence in Conflict, 2013, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/185008/G8_PSVI_Declaration_-_FINAL.pdf.
48 For example, the 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.
49 Guidelines for Protecting Schools and Universities from Military Use During Armed Conflict, 2014.
50 Murray, D. (2016), Practitioners’ Guide to Human Rights Law in Armed Conflict.
51 Gillard E.-C. (2018), Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, Research Paper, London: Royal Institute of International Affairs, https://www.chathamhouse.org/sites/default/files/publications/research/2018-12-10-proportionality-conduct-hostilities-incidental-harm-gillard-final.pdf.
52 As of February 2020, 102 states had endorsed the Safe Schools Declaration; see Norwegian Government Security and Service Organisation (2020), ‘States that have endorsed the Safe Schools Declaration’, https://www.regjeringen.no/en/topics/foreign-affairs/development-cooperation/safeschools_declaration/id2460245/.
53 Compare this with the 1998 Guiding Principles on Internal Displacement, which were elaborated by experts with the intention that they would be adopted by states as a treaty. While this never occurred, precisely because states refused to adopt an instrument they had not negotiated, the Guiding Principles nonetheless proved extremely influential, frequently forming the basis of domestic legislation and also playing a key role in shaping the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa.
54 The application of IHRL in situations of armed conflict and its interplay with IHL have been the subject of considerable debate in the past decade; the substantive discussion is beyond the scope of this briefing.
55 Max, E. (2019), Implementing International Humanitarian Law Through Human Rights Mechanisms: Opportunity or Utopia?, Geneva Academy Working Paper.
56 At present, Geneva Call has elaborated four deeds of commitment, respectively addressing antipersonnel mines; child protection; sexual violence and gender discrimination; and the protection of healthcare.
57 As part of the monitoring and reporting framework established by UN Security Council Resolution 1612 (2005), the Office of the Special Representative of the Secretary-General for Children and Armed Conflict can enter into plans of action with groups listed under the Secretary-General’s annual report on Children in Armed Conflict for having committed five of the six grave violations of IHL identified in Resolution 1612. As of early 2020, there are 19 such action plans under implementation. Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Action Plans’, https://childrenandarmedconflict.un.org/tools-for-action/action-plans/.
58 The GCs and AP I specifically envisage the possibility for parties to international armed conflicts to enter into agreements on a range of issues, including the establishment of various protected and demilitarized zones, and the conduct of evacuations (Articles 23 GC I, 14 and 15 GC IV, and 60 AP I; and Articles 15 GC I and 17 GC IV respectively). In non-international armed conflicts, common Article 3(2) GCs simply encourages parties to bring into force, by means of special agreements, all or part of the other provisions of the conventions.
59 Articles 23 GC I, 14 and 15 GC IV, and 60 AP I; and Articles 15 GC I and 17 GC IV respectively.
60 Common Article 3(2) GCs simply encourages parties to bring into force, by means of special agreements, all or part of the other provisions of the conventions.
62 In 2015, ahead of the World Humanitarian Summit, Geneva Call consulted a number of organized armed groups on their perception of humanitarian action, including on the relevant rules of IHL. Jackson, A. (2016), In their words: Perceptions of armed non-State Actors on Humanitarian Action, Geneva: Geneva Call.