Françoise Bouchet Saulnier, Legal Director of Médecins sans Frontières, once commented that “law is always late for war”; epitomised by a constant struggle to impose rules on warfare after atrocities and massacres are committed. Under International Humanitarian Law (IHL), citizens are entitled to protected status during times of crisis. But still, the number of civilian casualties during a conflict is higher than those of combatants.
Known as the law of armed conflict, IHL is a body of rules developed and consolidated through a series of treaties and agreements including the 1899 and 1907 Hague Conventions, the four 1949 Geneva Conventions and 1977 Additional Protocols relating to the protection of victims of armed conflict. These rules are also considered to be customary international law, where all states and non-state armed groups, whether signatories to these treaties or not, are bound by its provisions.
Together these agreements aim to exercise a balance between military necessity and humanitarian concerns. IHL is based predominantly on the principle of distinction, which provides protection by differentiating between combatants and those who are not or no longer directly participating in the conflict, as well as civilian objects such as schools and hospitals. It is also prohibited to carry out deliberate or indiscriminate attacks which might have a disproportionately negative humanitarian impact, such as attacks and sieges on civilian populated areas, as seen in Syria.
Undoubtedly, this principle of distinction is floundering. While this might be more clearly applicable to international armed conflicts between two or more states, the traditional idea of uniformed armed forces lining up on the battlefield is archaic and no longer relevant. More commonly, armed conflicts take place internally between governmental forces and armed groups. In these cases, the fighting is often more drawn out and incredibly violent, displacing, injuring and killing millions of ‘protected’ citizens, violating IHL.
In many cases, armed conflicts involve low intensity fighting between proliferated armed groups with differing levels of knowledge, equipment, training, organisation and understanding of IHL. Civilian participation has increased, and with even children finding themselves at the centre of a conflict through forced conscription, the line of distinction between those who are and are not ‘directly participating’ has become overwhelmingly blurred, as has the ‘battlefield’, often deliberately positioned in populated areas.
In these contexts, civilians are routinely and deliberately attacked, examples ranging from the use of sexual violence as a weapon of war, recruitment of child soldiers to carry out atrocities and attacks against humanitarian aid workers. This lack of distinction makes it extremely problematic in applying IHL to instances of seemingly obvious violations.
In recent years, international lawyers, NGOs and activists have raised concerns that civilian protection under IHL has become ineffective. Some go so far as to say that the very concept of a law of armed conflict is fundamentally flawed as war inevitably negates the very premise of law. Others seek to remedy this by instead applying International Human Rights Law (IHRL) to armed conflict. Indeed, IHRL protects individuals from the shocking abuses in the scenarios described above, regardless of whether they are ‘directly participating’ in the conflict or not.
However, this proposed solution presents another potential challenge. Parties can actually exempt themselves from specific human rights obligations, specifically those included in the International Covenant on Civil and Political Rights, during a “time of public emergency”. This could legitimately include situations such as armed conflict. Conversely, no exemptions are permitted under IHL - it is a body of law conceived for emergency situations and therefore, in theory, should be absolute.
In light of this, whether late or not, it should be emphasised that the rules of IHL are hugely important – when they are respected, they can safeguard people from the worst crimes and can still play a part in today’s conflicts. Implementing a body of law during times of extreme violence will always be incredibly difficult, especially when the lines between civilian and combatant are almost non-existent. However, if the law of armed conflict can adapt to the challenges of 21st Century warfare, it will be better late than never.
Stephanie Siddall is currently volunteering as a Peace & Security Intern at UNA-UK.