It is difficult to write a short reflection on legal compliance in armed conflict without acknowledging the obvious: parties, be they States or non-State armed groups (NSAGs), violate some rules of international humanitarian law (IHL) during war. Some of them are indeed responsible for deliberately attacking schools and hospitals, torturing detainees, preventing humanitarian relief reaching the civilian population, and recruiting and using children in hostilities. Cases have been documented in Afghanistan, the Democratic Republic of Congo, Syria, Yemen, and in the Ukraine-Russia conflict, among others. These examples have fueled discussions related to accountability and “what to do” with those responsible for violations, on the role of the UN Security Council, the International Criminal Court, and other mechanisms such as the various UN Commissions of Inquiry and Panels of Experts. Because much of the attention has focused on attributing violations to the parties and individuals in question, little has been paid to the fact that States and NSAGs also tend to show a degree of compliance with certain IHL rules in conflict settings. Of course, this can vary from conflict to conflict, but the notion that wars are ruled exclusively by chaos and disorder hardly reflects today’s empirical reality.
This essay aims to offer some nuance on what often remains beyond the scope of legal assessments: how States and NSAGs actually behave on the battlefield and why they abide by certain courses of conduct (or more precisely, under what conditions does their compliance with IHL change). In the balance of this essay, I argue that although violations of certain rules of IHL occur, situations of respect for the legal regime also exist, and that all these situations can be explained by a combination of both rational and emotional reasons. Understanding these empirical patterns serves various purposes, including (i) identifying factors and actors of influence that may lead to behavioral change; (ii) predicting future IHL violations and situations of restraint; and (iii) designing and implementing context-based strategies aimed at improving respect for the law. In a world in which IHL is challenged as an effective legal regime on a daily basis, the value of acknowledging that there is more than meets the (public) eye is more important than ever.
Understanding Compliance With IHL: Behavioral Variations in Armed Conflict
Generally, compliance can be defined as “behavioral conformity with existing norms and regulations” (at 65). This translates into a match between the behavior of States and NSAGs in armed conflicts and their IHL obligations. When examining how these entities operate, it can be observed that they do not violate or respect IHL without exception. Instead, States and NSAGs may follow certain rules while disregarding others. For instance, a NSAG may decide to explicitly prohibit hostage taking in its code of conduct, in line with Common Article 3 to the 1949 Geneva Conventions and customary IHL, but recruit and use children in hostilities. Similarly, a State may use certain weapons prohibited under international law when conducting military operations but respect the wellbeing of detainees. Analogous observations can be made with respect to other IHL rules. At the same time, some IHL rules may not necessarily be applied in practice by the respective actors. When examining IHL compliance, or lack thereof, the first step is to recognize that States and NSAGs may have different attitudes with respect to specific thematic areas. This is particularly important as the root causes of violations and compliance will vary depending on the rule(s) in question. To put it differently, the motives behind a party’s attitudes on the use and recruitment of children will differ from those related to the treatment of detainees, and the way in which the international community responds should take into account those distinctions.
What’s more, States and NSAGs often modify their behavior throughout the conflict, often resulting in an increase or decrease in their level of IHL compliance. This is particularly evident during ceasefire or peace processes, when parties may seek political recognition before local constituencies or international audiences, while a different scenario can be observed when they are actively engaged in hostilities, a moment in which they may attempt to show their military strength. Parties to armed conflict are indeed dynamic and evolving actors: it was not the same Fuerzas Armadas Revolucionarias de Colombia–Ejército del Pueblo (FARC-EP) fighting in the 60s’ and 70s’ that concluded the 2016 peace agreement with the Colombian Government, as it was not the same Colombian Government either. To illustrate this, the ICRC has explicitly noted that the FARC-EP ceased kidnapping civilians “once peace negotiations had begun” (at p. 41). It has also been demonstrated that attacks on civilians by the Lord’s Resistance Army (LRA) declined during peace negotiations with the Ugandan government, only to increase immediately after the government would refuse to make concessions (at p. 265). Focusing on NSAGs, Wood has identified that civilian victimization is “anticipated during moments in which the viability of [an armed group] is threatened or when it faces significant military setbacks” (at p. 15). These cases indicate, at least at those specific moments in time, that an effective command and control structure existed. That is, decisions adopted by an NSAG’s leaders on whether to comply with an IHL rule would, indeed, be carried out by their members.
Presidents and prime ministers change, as do the commanders of NSAGs. Societies and their demands also evolve. It is indeed misleading to conceive States and NSAGs as unchanging actors perpetually operating in a certain way. These fluctuating dynamics allow us to conclude that IHL compliance should be examined along a spectrum, rather than in a binary way, and the parties’ behaviors are better conceptualized as “a matter of degree varying with the circumstances of the case” (at p. 5).
Going Beyond and Above: IHL Compliance in Light of Rational and Emotional Factors
Identifying these dynamics remains a somewhat superficial analysis. In any given society, including ones with internal stability and relative peace, respect for the law can be linked to a number of factors. Armed conflicts are not so different, and two broad categories can be suggested. Of course, not all the explanations here included apply to every conflict and party, and they should be seen as rather general categories. They should also not be seen as exhaustive either.
First, there are ways of understanding legal compliance based on rational behavior. Accordingly, it is expected that respect for IHL (or lack thereof) can be determined by the following factors:
(i) knowledge and internalization of the law: a higher degree of respect is achieved when States and NSAGs know their obligations, adopt internal rules to behave accordingly and apply sanctions in the event of violations;
(ii) an alignment of IHL with traditional norms and religious values: identifying commonalities between these normative frameworks and disseminating these among weapons bearers upon that basis may lead to an increase in adherence to IHL as they will not see this international legal regime as strange or foreign;
(iii) the parties’ participation in law-making processes: a better respect for IHL can be obtained if there is greater involvement of States and NSAGs in formal and informal law-making processes, as this would allow the law to be realistic (or pragmatically attuned) and therefore more easily implemented by the parties; and
(iv) the capacity factor: States and NSAGs may lack the capacity to implement some of their humanitarian obligations, and enhancing such capacity may also lead to an increase in respect for IHL.
These factors are based on the understanding of IHL compliance as a collective endeavor; that is, it is a party to a conflict’s attitude and not necessarily or simply those of individual fighters. Humanitarian organizations have historically relied on some of these factors, understanding that the first step to ensure compliance with IHL is to directly engage with States and NSAGs on their legal obligations. This approach has prioritized the incorporation of IHL norms into the parties’ internal rules, and in their training and accountability mechanisms (at p. 130). In the last two decades, the humanitarian sector has also engaged other societal actors, such as religious and community leaders, third States and other key stakeholders, to influence States and NSAGs compliance with international law. Positive results have been achieved and, in the context of these humanitarian engagements, parties to armed conflict have released children from their ranks, destroyed their stockpile of antipersonnel mines, accepted that humanitarian aid must reach the civilian population affected by the conflict, conducted internal investigations for IHL violations, and adopted laws and other regulations to ensure that this legal framework is better respected.
The second category of factors goes beyond rationality, focusing instead on emotions. Here, attention is placed at the individual level. Indeed, it can be said that the behaviors of States and NSAG fighters are based on past experiences and learning processes. A rational perspective would argue that repeated IHL training should lead to better results on the ground (at p. 74). Yet, as Buis has correctly pointed out, “[r]espect depends on a number of factors which exceed the borders of law.” State and non-State fighters are indeed human beings, which makes it difficult to exclude an emotional component when assessing their respect for any legal regime, including IHL. Emotions that have been linked to violence against civilians include shame, disgust, resentment, and anger (at p. 58). Grievances of those who were affected by IHL violations, either in the present or in the past, if not addressed correctly, may also help perpetuate cycles of violence. In contrast, dealing with them properly may prevent such cycles, or at least reduce their effects. As a result, compliance with IHL can also be examined through the lens of the following emotional factors:
(i) the construction of categories: although IHL refers to ‘parties,’ ‘State Parties,’ ‘civilians,’ ‘humanitarian body,’ and ‘combatants,’ an emotional turn serves to actually identify how State and NSAG fighters may construct who should be attacked (‘enemies,’ ‘terrorists,’ ‘oppressors,’ etc.) and who should not (‘friends,’ ‘allies’) — concepts that are often not conceived in a rational manner and may be grounded on preconceived ethnic, religious or ideological elements;
(ii) the legitimacy of the law and the authority enforcing it: State and NSAG fighters may follow a given normative framework, that may include IHL, but also local, customary and religious norms, because they see the rule in question as legitimate or because the relationship with the authority enforcing it is one of command-obedience, in which the authority is a power-holder and the followers are power-subjects;
(iii) the reputational element: as certain State and non-State fighters try to gain support from certain constituencies (e.g. local communities), they may try to respect IHL as a way of improving their own reputation. At the same time, they may deliberately commit IHL violations against specific groups (e.g. religious, ethnic ones) in an attempt to garner support or even to intimidate the opposing party or the civilian population;
(iv) the past experiences factor: State and non-State fighters may be more willing to respect IHL when they have gone through IHL-compliant situations (e.g. a clear example can be found in individuals detained and well-treated by the opposing party replicating the same behavior when detaining someone). IHL violations can also be explained in such a way (e.g. a NSAG’s fighter who was recruited when he or she was a child may perpetuate this by recruiting other children);
(v) the existence of incentives in the form of punishments and rewards: IHL attitudes can also be explained as a result of fear of punishment, that may include disciplinary administrative measures, criminal law proceedings, and religious sanctions, and interest in rewards, whether social (e.g. being promoted to higher ranks), material (e.g. goods, money, etc.) or religious (e.g. the promise of heaven).
Bringing Other Social Sciences to the Debate
To conclude, two points need to be highlighted.
First, although violations of certain rules of IHL take place across the globe and there is a temptation to focus exclusively on them, actually engaging with States and NSAGs on international legal issues has led to increased protective outcomes. These engagements obviously need to be supported. Their importance has been recognized, among others, by the UN Security Council (at 4) and the UN Secretary General in the most recent Protection of Civilians Report (e.g. para 65). Second, assessing compliance with any legal regime, whether during times of peace or in armed conflict, requires an understanding of both rational (and collective) and emotional (and individual) drivers. Although the latter’s importance has been widely recognized in the field of transitional justice, it has often been excluded from the strategies designed to increase IHL respect in conflict-affected zones. To solve this deficiency, one tool could be to include specialists from other disciplines in discussions about legal issues, such as social psychology and organizational sociology, which are among the most well-developed fields dealing with group identity and intergroup conflict. Such specialists could be valuable to individuals and institutions trying to understand behavioral patterns in conflict settings. Merely identifying violations and naming and shaming perpetrators may be relevant in specific scenarios, but not everywhere and not for every party. A more thorough understanding of how States and NSAGs operate and interact with other social actors and factors can lead to better strategies to increase IHL compliance.