* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
What are the dangers of calling on international humanitarian law to protect civilians during war?
A somewhat unexpected global trend has emerged over recent years. Never before have so many people from different walks of life, so consistently and with such conviction, invoked the language of international law in the context of war.
This is no longer the exclusive domain of the military law expert. Politicians, journalists, activists, even my 82 year old mother and her friends resort to law’s vernacular when confronted by war.
Each, in their own way, engage in exchanges over the content of the law of armed conflict, more popularly known as international humanitarian law (IHL). The use of cluster munitions, the bombing of a school, the rape of women, the destruction of ancient artefacts are condemned, not only for the suffering and destruction inflicted but, as violations of IHL constituting war crimes.
Simply put, the globalisation of international law has “juridified” our world view, adding another layer through which we now see war.
There is much to celebrate with this turn to law and the insistence that the rule of law be upheld, even in armed conflict. That is because in the process of learning to see war through the prism of law, we are reminded of our common humanity.
After all, the rules that comprise IHL represent the agreed ethical boundaries within which war is conducted; they are a compromise between military necessity and the principle of humanity.
IHL’s purpose is twofold: i) to protect those who do not (or no longer) take a part in the conflict, most notably, civilians; and ii) to limit how the belligerents may fight. The rules are founded on a handful of basic principles including, the distinction between civilians and combatants; proportionality in attack; humane treatment of all persons; and the prohibition on inflicting unnecessary suffering on enemy belligerents.
But before we applaud the growing insistence on war by law, a moment of reflection is warranted in three respects:
1. Understand the limits of the law: full compliance doesn’t always result in humanitarian outcomes
It is often overlooked that, as the outcome of treaty negotiations, IHL’s rules are worded with precision to enable states to wage war lawfully. Thus, many of the rules are conditional and limited in scope.
Take for example, the protection of civilians and civilian objects. Attacks on civilians may be prohibited but that rule is contingent on the civilian not taking a part in the hostilities. If they do, they may be lawfully killed. And even if they don’t, what the rule essentially prohibits is the deliberate targeting of civilians and not ‘incidental’ harm, unless excessive.
The same logic applies to civilian objects like hospitals and schools. If the enemy uses such sites as bases from which to launch attacks, those buildings are no longer entitled to protection from attack.
Although prior to mounting an attack against such buildings a belligerent must consider whether the civilian casualties “expected” would be “excessive” in relation to the military advantage “anticipated” and to take all “feasible” precautions to limit such casualties, the language of the rules have been carefully crafted and are obviously pliable.
2. Beware of what you demand
Decisions involving attacks are governed not only by law but also by policy considerations that may require the armed forces to operate at a higher standard than required by the letter of the law.
Adopting a zero civilian casualty approach, as NATO did in its 2011 military operation in Libya, is one such example.
Notwithstanding the humanitarian appeal of such approaches, the downside is that distinguishing between law and policy becomes difficult. Increasingly, conduct that is law-compliant but which fails to correspond with public beliefs as to what the law demands can leave belligerents in lose-lose situations.
This raises a real risk that law compliance will lose its traction. After all, why bother with the rules if public condemnation follows in any case?
3. It’s conflict prevention that matters
Many reach to international law in the belief that it will help to frame the otherwise inexplicable and confront the unbearable by holding accountable those who are responsible for the carnage caused in the course of warfare.
But despite its humanitarian ambitions, IHL is likely to disappoint since it is not concerned with preventing war. IHL merely seeks to limit violence in war.
Indeed, by stipulating the rules according to which the warring parties are required to fight, the paradox is that IHL effectively facilitates warfare.
If law generally exists to prevent violence by offering a means of negotiating and resolving disputes, invoking IHL signifies state failure on a catastrophic scale. For in failing to resolve a dispute – internal or external – states have abandoned a peaceful settlement in favour of force.
Louise Arimatsu is visiting senior fellow with the Centre for Women, Peace and Security at the London School of Economics
