Year Ahead – Compliance Continues to be the Most Under-Addressed Challenge

As 2022 has ended, it is appropriate and necessary to take stock of the law of armed conflict (LOAC) and speculate on its efficacy in 2023 and beyond. 2022 saw many armed conflicts of both international and non-international natures. Conservatively, there were at least twenty-seven major armed conflicts. However, accounting for major and minor armed conflicts raises the total to about 110. There is a high probability that the number of armed conflicts will remain the same or increase in 2023.

2022 also marked the 73rd anniversary of the Geneva Conventions (GCs) 1949 and the 45th anniversary of the adoption of the two Additional Protocols (APs) relating to the Protection of Victims of International and Non- International Armed Conflicts, of 8 June 1977. Accordingly, while there were several very violent and brutal armed conflicts, the LOAC was very much alive and applicable.

In reviewing the conduct of hostilities in these armed conflicts, the question arises whether the applicable LOAC is effective and still, in the words of former ICRC President Peter Mauer, “fit for purpose”? In other words, after hundreds of years of existence and evolution, is the LOAC good enough for today’s armed conflicts? The answer depends on what continues to be the most under-addressed and pressing challenge in today’s LOAC—namely, noncompliance by State and non-state actors (NSAs).

Examining the conflicts of 2022, for example in Ukraine, Syria, Yemen, Iraq, Afghanistan, Democratic Republic of Congo, Somalia, and South Sudan, the sheer number of gross violations of the LOAC and human rights, particularly against civilian populations, is shocking and atrocious. While it is often difficult to obtain the “ground truth” in such conflicts, there have been comprehensive efforts to document facts and assess compliance with the LOAC.

For example, there are currently six UN-mandated investigations involving alleged violations in international or non-international armed conflicts, Organization for Security and Cooperation in Europe investigations of violations in the Ukraine/Russia conflict and LOAC expert analyses of violations in the same conflict. All of these deep dives into violations have established that while the LOAC provides a legitimate, practical, and humanitarian legal framework, lack of compliance, primarily by the parties to the conflict, has resulted in a trend of widespread, arbitrary, and brutal violence against those, especially innocent civilians, affected by the hostilities.

So as 2022 has ended, and the world looks to 2023, is there hope for reversing the growing trend of noncompliance with the LOAC? Yes, but it is a slim hope. Deeds, not words are needed. States and NSAs must truly commit to actions that always adhere to the LOAC. If compliance is improved, then the LOAC is indeed “fit for purpose.” If noncompliance prevails, then the LOAC is ineffective and risks being nothing more than a thin veil of legitimacy for the conduct of hostilities and humanitarianism.

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Blaise Cathcart QC served as the Judge Advocate General (JAG) of the Canadian Armed Forces (CAF) from 2010-2017.