International humanitarian law prolongs international conflict

8/4/2019 International humanitarian law prolongs international conflict

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International humanitarian law prolongs international conflict

By Daniel Raca

Law is an evolving concept. It does not always represent what is just and often reflects what is

practical or what suits those who can exert influence upon it. Modern International humanitarian

law (IHL) can trace its beginnings to a single moment in history when Swiss businessman Henry

Dunant took pity on the wounded soldiers from the Battle of Solferino in 1859. From this

moment was born a movement that hoped to lessen the severity of armed conflict. In its slow

development IHL tended to be influenced by the interests of the nations which dominated

international politics. And many nations today still attempt to shape it in ways that is beneficial

to their interests. This has had the effect of derailing the primary purpose of IHL and prolonging

international conflicts as a consequence.

Early development

Early humanitarian law represented a heavily Euro centric bias. It formed under the assumption

that only conflicts of an international nature would be affected and domestic issues or conflicts

would remain outside of its jurisdiction. This notion was developed as many nation states in this

era sought to strongly protect their autonomy. But as some academics point out, colonial

interests also played a large role in this development. Colonialism effectively defined the

geography of international law and to avoid international law colonizing powers would often

successfully claim that they were merely maintaining order in territory under their control

(Mgret, 2005:5). Mgret argues that the west manipulated the development of humanitarian law

to ensure that how they dealt with indigenous populations in their colonies would be unaffected.

And there is evidence that this attitude was not only formed out of self-interest but also out of an

attitude of European superiority. John Stewart Mill famouslyjustified this approach arguing tosuppose that the same international customs can obtain between one civilized nation and

another, and between civilized nations and barbarians, is a grave error (Cudjoe, 1988:224). The

Spanish quelling of the 1924 Moroccan revolt provides a telling example of this attitude. No

major French, American or British international law journal published an article about this war

the War of the Riff was beyond the purview of mainstream international law ( Berman,

2009:202). Despite over 36,000 casualties and countless more wounded, the seriousness of this

conflict was overlooked as merely a restoration of colonial rule and there are countless otherexamples of this attitude.


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Modern development

It is in this context that the modern law has arrived. IHL has moved past the colonial era with an

extensiveness and universalism that ensures protection for all nations. Modern states, however,

still have broad national interests and have manipulated IHL to protect these interests, in affect

subverting IHL and prolonging conflicts. Cicero wrote that in time of war the law falls silent

(Garrison, 2006). War epitomizes what the law is not, a fundamental breakdown of law to a state

of anarchy and chaos. There can be no law whilst there is chaos, but IHL attempts exactly that.

The brutality of past wars has precipitated movements that have hoped to reduce the severity of

future conflicts. As Jochnick and Norman observe the League of Nations followed World War I,

the Geneva Conventions followed World War II and the 1977 protocols followed the Vietnam

War (Jochnick and Norman, 1994:56). But the noble sentiments that prompted this expansivebody of laws have only selectively penetrated the substance of the laws themselves (Jochnick

and Norman, 1994:56). And in the past century the growing rate of civilian casualties raises the

question as to whether these laws are effective at all. At the beginning of the 20th Century, some

90% of conflict losses were combatants, this number dropped to 50% in World War II and

continued to drop to its present rate of 20% (Noll, 2010:1). Such dramatic figures demonstrate

that IHL is at the very least ineffectual and at the very worst only serves the interests of nation

states.

Double Objective

IHL is fundamentally flawed as it pursues two diametrically opposing goals. As Noll (2010:7)

suggests IHL attempts to create as little violence so as not to cause a momentary excess of

suffering, and as much violence, so as not to cause the protraction of suffering. Essentially,

nations are instructed that if they must engage in warfare, it must be decisive and quick but this

must be done with significant prohibitions on certain tactics and weapons. This confusing

message has the potential of creating an environment where conflict is inevitably prolonged.

Article 48 of Protocol III of the Geneva Convention states that the parties of the conflict

shall direct their operations only against military objectives and in a very crude way this

summarises the attitude of IHL to the conduct of warfare. But as Parks (2007:115) concedes

except in the most dictatorial societies, the will of the nation is affected by the will not only of

its military but that of its civilianpopulation. IHL treats war though it occurs in a vacuum and

fails to recognise the working parts and complex environments that lead to warfare. From the

over million killed by the civilian incited massacres of Rwanda to the terrorist attack of

September 11 perpetrated by a loose association of individuals the nature and cause of conflict is


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changing. IHL is too focused on the traditional formulation of interstate conflict fought between

organised armies and must recognise the new conflict paradigms of the 21st

century. The narrow

framing of IHL omits threats outside the traditional framing of warfare and can inhibit nations

achieving decisive victories.

Discretion to act

Furthermore the discretion to act within the context of traditional formulations of conflict are too

permissive and allows too much discretion to act. An Australian Defence force Journal went as

far as to say that many would argue that these rules leave so much room for interpretation that

the commander is essentially without guidance from the law, but rather must rest on his or her

own discretion (Rogers, 1997:5). Article 51(5)(b) of Protocol 1 (1977) of the Geneva

Conventions explicitlyprohibits incidental loss of civilian life, injury to civilians, damage tocivilian objects which would be excessive in relation to the concrete and direct military

advantage. However these provisions do not provide any guidance as to the meaning of

excessive as indeed any attempt to quantify loss of life or damage to civilian objects would be

controversial and near impossible. But this does not obviate the fact that civilian loss is

acceptable if it is in the pursuance of direct military advantage. This lack ofa definition of

excessive, as well as this requirement of military advantage has essentially given nations a

significant discretion to act without restraint. A telling example of this is the 2003 U.S. invasion

of Iraq. A Human Rights Watch report stated that Coalition Forces for the most part, made

efforts to uphold their legal obligations (Human Rights Watch, 2003:5). Despite this, casualty

reports suggested that civilian deaths caused directly or indirectly as a result of the initial

invasion were estimated to be almost as high as 100,000 (CNN, 2004).

This is partly due to IHL being too permissive of military imperatives. Instead of adding a level

of protection to civilians and civilian objects IHL creates a powerful justification and rebuke for

collateral damage. During the first gulf war coalition forces attacked targets which greatly varied

in both their use by, and proximity to civilians. These targets were attacked for direct military

advantage but resulted in significant civilian casualties. In some instances these attacks had a

limited impact on military installations, but also had a correspondingly worse effect on civilian

infrastructure, and in some instances the effects were only truly felt in the long term. Coalition

attacks on the Iraqi electrical grid resulted in power being reduced to little over 4% of its pre-war

capacity by the wars end which had a devastating effect on sewage systems, hospitals, irrigation

and food production systems (Harvard Study Team, 1991:19). However attacking Iraqs electric

grid was considered a high military priority for US forces. Numerous human rights reports were


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dedicated to questioning the legality of U.S. attacks especially those made on the electrical

system, but these reports all concluded that the attacks were ultimately legally justified (Jochnick

and Norman, 1994:408). This is due in large part to the fact that these attacks were solely

designated as military strikes. As long as coalition attacks were directed toward military targets

they were legally justified in executing them and enjoyed a wide discretion to act.

Proportionality

In many ways this discretion to act is worsened by the absence of proper scope and definition

contained in IHL, most notably in respect to the principle of proportionality. There isnt even a

specific reference to proportionality in IHL, but it is widely accepted to be formed under

Protocol 1 of the Geneva Conventions under Article 51(5)(b) prohibiting excessive force and

Article 57(2)(a)(iii) requiring precautions to be taken. The principle of proportionality issummed up in the dissenting opinion in the decision ofLegality of the Threat or Use of Nuclear

Weapons [1996] ICF Rep 226 at 587 by Judge Higgins who described proportionality as

requiring that a legitimate target may not be attacked if the collateral civilian casualties would

be disproportionate to the specific military gain. However the absence of what constitutes

excessive or disproportionate force is not defined, as well as what constitutes an adequate

military gain. This results in a permissive environment to injure civilians, so long as it can be

justified on some military grounds. As Noll suggests anticipated military advantage can be

projected onto an object, which may then be lawfully attacked regardless of civilian casualties,

as long as the latter remain within a limit determined by the value of military advantage

anticipated (Noll, 2010:7). The inclusion of the phrase may be expected to also introduces a

subjective element which is very hard to prove and involves a mental process of pondering

dissimilar considerations which is not an exact science (McCClintock, 1993:658). Again,

quantifying civilian loss or adequate military gain would be an almost impossible task and there

doesnt exist any serious alternative to this formulation but the high threshold of proportionality

means that civilians simply do not receive adequate protection.

Legitimizing effect of law

World leaders have an interest in maintaining a legal framework that regulates how and when

nations can go to war. War can be a very destructive process for all involved, and engaging in

such conduct in an increasingly democratized world is unpopular and therefore difficult even if

there is a legitimate need to resort to war. Jochnick and Norman argue that this is why nations

have not only maintained IHL but they have actively supported its growth. By conforming to a

loose set of rules regulating military conduct nations receive a powerful rhetorical tool to


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protect their controversial conduct from humanitarian challenges (Jochnick and Norman,

1994:58). However Jochnick and Norman may have overemphasised the use of IHL as a

rhetorical tool, especially in light of the 2003 invasion of Iraq. Gallop polls taken between

August of 2002 to the invasion in March 2003 show that the total U.S. public support for the war

hovered around the high fifties culminating in 64% supporting war in March 2003 (Gallop,

2003). This support gradually increased despite clear indications that proceeding with war would

not be legal as a security council resolution had not been granted, nor was the self-defence

threshold satisfied. World leaders may very well justify war on legal grounds when it is suited to

them, but as we have seen in Iraq IHL is not an awfully persuasive doctrine in the eyes of the

public. IHL does appear to be have a somewhat legitimizing affect but ultimately it is the

permissive nature of IHL that prolongs conflict rather than the public support it creates.

Are laws necessary at all?

Carl von Clausewitz once famously wrote that war is the extension of politics by other means

and that the smaller the sacrifice we demand from our adversary, the slighter we may expect his

efforts to refuse it to us (Pictet, 1985:31). IHL does not operate in a vacuum. Economic,

political and pragmatic considerations are all important factors when a nation commits itself to

war and decides how that war is to be conducted. Economic considerations for example has

become much more relevant in recent times as it has become increasingly evident to academics

and policymakers that wars and other conflicts have high costs that can severely impede

economic development (Skaperdas, 2010:1). Wars cost money and even the threat of war or

instability can discourage foreign investment and severely impede economic growth. The

development of legal principles did not introduce restraint or humanity into war war has long

been limited largely by factors independent of the law (Jochnick and Norman, 1994:54). It is

arguable that the introduction of a legal framework in large part was to express that which was

implied and by doing so lent itself to manipulation by drafters. In a conflict scenario, it is in the

best interest of commanders to refrain from excessive violence in light of powerful economic

and political reasons, as a legal framework can merely serve to legitimize what may be unethical

and ultimately self-defeating conduct.

Westernisation of IHL

Furthermore IHL in many ways represents a western obsession with regulation and legal

intervention. The development of IHL has been predominantly driven by western nations and

indeed the treaties themselves bare the names of the European cities they were drafted in. With

this strong western bias there has been a tendency for the relevance of legal principles to apply


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predominantly to the western sphere. This is especially true in regards to weapons technologies.

The high threshold required in the Hague laws of War as well as the Geneva Conventions creates

a disincentive for less advanced nations to adhere to IHL and can encourage a dismissive attitude

of IHL altogether. Article 51(4)(a) and (b) of Protocol I of the Geneva Conventions prohibits

attacks that employ a method or means of combat which cannot be directed at a specific

military objective and employ a method or means of combat the effects of which cannot be

limited as required by this Protocol. Precision strikes require more than accurate weapon

systems Schmitt (2005:446) explains and such weapons technologies are simply out of the

reach of most nations. Robust command, control, communications, computers, intelligence,

surveillance, and reconnaissance, for instance, can be as determinative of success as the weapon

employed (Schmitt, 2005:447). Western forces regularly deploy technologies that are extremely

accurate, combined with complex intelligence and command systems it is easy to see why theWest may expect inaccurate weapon systems to be illegal by IHL standards. This high threshold

merely reinforces IHL as a brainchild of the West and discourages any attempt to adhere with

the laws of war elsewhere.

Monitoring and enforcement systems

However there are other powerful reasons why IHL has at times been so ineffectual. The

absence of adequate monitoring and enforcement systems for violations of the law is a severe

impediment for this body of law. And in recent times, it is difficult to argue that IHL is

predominately manipulated by states to serve their national interests as IHL has essentially been

hijacked by academics, independent judicial bodies and non-government organisations alike.

The idea is also weakened by the fact that states ignore and often directly violate the laws of war

anyway. A recent ICRC study found that legal rules that have been expressly supported by

states are widely violated and compliance systems to coordinate adherence to the laws of war

are often non-existent (Fleck, 2006:179). Arguably, the absence of monitoring and

enforcement systems is a key contributor towards the failings of IHL rather than the inherent

structure of the law (Noll, 2010:2). Recent decisions of the International Court of Justice upheld

this view. The court inLegal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory I.C.J. Reports 2004, at paragraph 155 indicated that all states have a legal

interest in ensuring the respect of fundamental obligations under international humanitarian law

but stopped short of asserting it as an obligation. But to what extent can third parties monitor and

encourage IHL compliance in conflict? Although a state cannot use force in the absence of a

Security Council mandate, states can lawfully undertake monitoring activities, diplomatic


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measures and provide assistance to victims to encourage compliance, but the reality is that this

doesnt usually happen (Fleck, 2006:182).

In the absence of action by third parties, nations engaging lawfully in military conduct should

themselves adopt adequate implementation programs so as to ensure IHL is respected. This was

highlighted by a recent German civil case regarding the liability of German forces in adhering to

the laws of war. The case centred around the Kosovo conflict in 1999 regarding a misdirected

NATO airstrike that allegedly contravened the laws of war (Qunivet, 2004). The individual

seeking compensation for the damage caused by the airstrike relied on Article 1 of the Geneva

Conventions, that state parties must undertake to respect and to ensure respect for the present

Convention in all circumstances. The German court ultimately rejected the argument,

concluding that the conventions established protections but not actionable rights. This caseepitomizes the general unwillingness of state parties to properly implement international law

standards on a domestic level. Armed forces are increasingly involved in zero casualty warfare

(such as the American intervention in Iraq or NATO in Kosovo) and as a result the civilian

populations suffer from this no risk approach (Qunivet, 2004:184). Once civilian populations

are affected by unjust action their only recourse is on a national level and this is severely out-

dated (Qunivet, 2004:184). It is difficult to argue that IHL prolongs conflict when it rarely

appears to play a role on the international stage, proper systems of monitoring, implementing

and enforcing IHL need to be implemented.

Harm Minimisation

The primary goal of IHL is harm minimisation. Its primary purpose is not to stop war. As

Kalshoven & Zegveld suggest (2001:202) success means that a prisoner will not have been

tortured or put to death, a hand-grenade not blindly lobbed into a crowd, a village not bombed

into oblivion. IHL is not a comprehensive solution to the violent tendencies of human kind.

Indeed IHL in its modern form has only existed for a brief time to make a more meaningful

impact. The international humanitarian law of armed conflict, rather than being an end in itself,

constitutes a means to an end: the preservation of humanity in the face of the reality of war

(Kalshoven & Zegveld, 2001:203). IHL almost represents a deal with the devil where evil is

allowed to happen but only on specific terms. There is no doubt that IHL represents a real

engagement with the community to come to terms with the utility of war and its consequences.

But until there is a solid attempt to regulate aggression and stop wars in the first place IHL will

be denigrated to the position of compromise of the lesser of two evils; either war unrestrained or

war restrained.


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Playing catch up

Another rebuttal to the argument that IHL is not complicit in prolonging conflicts is the extended

time it takes for legal frameworks to catch up to new weapons technologies and tactics. By the

time international parties are convened and effective agreements are made regarding what should

be banned, the advancement of military technology usually makes those laws obsolete. For this

reason, academics point to the often cumbersome nature of creating new IHL norms frameworks

rather than inherent flaws in the law that is to blame (Noll, 2010:2). However in many ways this

assertion merely reinforces the idea that IHL prolongs conflicts rather than rebutting it. By

holding a significant influence over IHL nation states are able to not only control how the law is

formulated, but what is included. The reluctance and feet dragging of the internationalcommunity is yet another way in which IHL has been manipulated and has effectively created a

legal system that is irrelevant. The carpet bombing tactics of World War II provides a telling

example of this. Bombing cities and towns was a tactic heavily used by both the allies and axis

powers in World War II with the intent of breaking civilian morale. Ultimately it was found that

such bombing was totally ineffective and only strengthened the populations resolve to resist

incoming forces. This practice of indiscriminate bombing was eventually banned under Protocol

1, Article 51(4) of the Geneva Conventions and ultimately the driving force behind this ban was

the ineffectiveness of this strategy rather than some moral impetus that had the effect of

changing the way nations engaged in combat (Dinstein, 2004:116). This attitude has effectively

turned the law into a set of political statements rather than a substantive set of effective guiding

rules that would limit the brutalities of war.

Conclusion

IHL instructs nations to do as little violence as possible but also as much violence so as not to

cause the protraction of suffering, it allows for too much discretion and fails to provide proper

protection of civilians with legal concepts like proportionality. This confusing and often

contradicting nature of IHL can prolong international conflict. However these problems must be

understood in the context of poor monitoring and enforcement systems which makes any legal

framework difficult to enforce to say the least. Regardless the present framework of IHL is

disjointed as many nations approach IHL from the perspective of a state rather then seeing what

is best for the international community. International Humanitarian Law essentially represents an

attempt to create the perfect war. But ultimately the perfect war is no war at all.

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International humanitarian law prolongs international conflict