Beyond Compliance Symposium – Compliance + Restraint Towards Full(er) Protection in War

Editors’ note: This post forms part of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, featured across Articles of War and Armed Groups and International Law. The introductory post can be found here. The symposium invites reflection on the conceptualisation of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address harm and need. 

Behind the 120 wars currently being waged around the world are human stories. How we understand these stories, and therefore how we build protection frameworks to respond to them, will depend on our own positionality. For local communities, a conflict’s story will be one of (civilian) harm and (humanitarian) need affecting everyday life and livelihood. Equally, theirs is a reality of (self-) protection strategies employed to avoid or mitigate attacks, or to safely navigate daily interactions with weapon bearers. For international lawyers, a conflict’s narrative is concerned with legal frameworks that govern interactions between fighting parties, protect civilians, and provide avenues for redress. From their vantage point, war is often a story of (non-)compliance with the law and of efforts to secure accountability for legal breaches. Political scientists, in turn, focus on the causes and dynamics of conflict, seeking to explain variation across time and space in violent behavior, and conversely restraint from violence and abuse.

Recognizing that professional identities, disciplinary lenses, and lived experiences shape our narratives of conflict, this post evaluates two dominant protection frames: compliance with international humanitarian law (IHL) and international human rights law (IHRL); and restraint from violence and abuse. In emphasizing the frames’ respective limitations and potential, the post demonstrates that the concurrent application of “compliance + restraint,” alongside other approaches in the humanitarian-development-peace nexus, might go some way towards achieving a full(er) protection framework that centers a harm and need approach in conflict.

Compliance with IHL as the Guiding Strategy

International humanitarian lawyers, military lawyers, and humanitarian practitioners focus primarily on the behavior of State and non-State armed actors and those that can exert an influence on them. Their goal is to foster compliance with IHL so as to mitigate the impact of armed conflict on affected populations. This is a compliance sub-frame with obvious advantages.

First, compliance and non-compliance, understood as respect for and violations of IHL norms, respectively, are observable and able to be monitored. IHL standards are the minimum benchmarks against which State and non-State actors’ behaviors are assessed. They hold significant normative legitimacy (albeit, challenged as “facilitative” of violence). Second, in literal terms, the concept of compliance, in contrast to restraint, denotes that adherence to IHL obligations requires parties to an armed conflict to refrain from certain behaviors and to carry out certain actions. Common Article 3 to the 1949 Geneva Conventions prohibits certain acts “at any time and in any place,” such as “murder of all kinds, mutilation, cruel treatment and torture” while also requiring positive action, such as the collection and care for the “wounded and sick.”

A third advantage is that the IHL framework provides a natural entry point for humanitarian engagement. The International Committee of the Red Cross (ICRC) and many other non-, inter-, and governmental actors engage in a multitude of top-down and more grassroots initiatives designed to secure compliance. Yet as is increasingly acknowledged, while compliance with IHL is a fundamental strategy in the humanitarian protection toolbox, “it may sometimes be the case that IHL is simply not enough” (p. 10).

Compliance with IHL is Not Enough

An aspect that complicates the use of compliance with IHL as the guiding strategy for the prevention and reduction of harm + need in armed conflict is the complex reality of contemporary conflict coupled with the inherent limitations of the law. In another post in this symposium, Professors Fortin and Sutton demonstrate that elements of the material, personal, temporal, and spatial scope of harm + need remain insufficiently or entirely unregulated by IHL.

Due to its macro level focus on the fighting parties, IHL is not designed to capture the granular reality of everyday life, especially in more protracted, long-lasting armed conflicts, or where non-State armed groups (NSAGs) control territory and exercise governmental power over populations. Because IHL interacts much less with national law, it also leaves a whole layer of private actors that cause harm + need unaddressed. As Professor Ni Aolain observed for women, the silence of IHL in addressing many of the harms they experience in the private sphere is particularly loud (see also here).

Compliance with IHRL as a Complementary Strategy

Compliance with IHRL is a complementary strategy that can respond to (some of) the experiences of differently situated groups in complex conflict spaces where, in addition to the fighting parties, a panoply of other actors creates everyday harm + need. There is wide recognition that IHRL applies in war (most recently restated by the International Court of Justice here, paras. 98-99). It can provide complementary protection alongside IHL (e.g., Joint Statement by independent UN human rights experts on human rights responsibilities of armed non-State actors; UN Secretary General Report on Protection of Civilians in Armed Conflict). In addition to human rights organizations, humanitarian actors increasingly rely on arguments for compliance with IHRL in both international and non-international armed conflicts, albeit in different ways (e.g., ICRC’s pragmatic position (p.53); War Child Alliance’s child rights approach).

As a compliance sub-frame, compliance with IHRL offers two other important advantages. First, it opens access to an international and regional institutional machinery and a procedural “infrastructure” (p. 316) created to ensure accountability. Those systems have been increasingly applied to violations occurring in armed conflict. Beyond individual criminal responsibility for IHL violations, this legal regime lacks systemic institutional responses. As such, individuals and States have used IHRL’s monitoring and (quasi-)judicial bodies to demand a measure of redress for conflict-related harms “from the masters of war.” Both the trend itself and the outcomes make for heated debate across disciplines.

Second, an IHRL compliance sub-frame focuses on participation and empowerment of and accountability to people experiencing harm + need as rights-holders. This is in contrast to perceiving such people as beneficiaries of protection initiatives or recipients of humanitarian aid. Thus, at the very least, the frame should recognize their relational and networked agency, their often-intense activity in individual and collective (self-)protection efforts, and the need to acknowledge these efforts in humanitarian responses as well as military planning and conduct. Yet compliance with IHRL, like compliance with IHL, is not a fail-safe strategy and is often not enough.

Compliance Is Not a Fail-Safe Solution

A limitation that both the IHRL and IHL compliance frames share is that parties to the conflict sometimes have different legal interpretations of specific norms, which result in “different understandings of what compliance looks like” (para. 58). States, NSAGs, and other actors practice hybridization, selective application, and even rejection of both IHRL and IHL norms (see here, p. 30-38). For example, many NSAGs “disagree with IHL in their interpretation of who ‘takes a direct part in hostilities’, and thus fall[s] into the category of targetable military objectives” (p. 17). In a similar vein, the ICRC’s sixth report on IHL and the challenges of contemporary armed conflicts poignantly emphasizes that States have, over several decades, put forward “expedient interpretations of IHL – often proposed at the height of armed conflict in order to preserve [their] leeway to kill and detain,” which “have compounded to undermine its protective force” (p. 6).

Another aspect to highlight is that armed actors’ behavior may happen to align with IHRL, and indeed IHL, even though the actors in question are not aware of the relevant legal rules or are not intentionally acting in accordance with them. Instead, they may be adhering to an important local custom, a traditional belief, or acting in accordance with a religious interpretation. Identifying and understanding the extra-legal motivations behind these behaviors and utilizing them as respect-generating or restraint-inducing strategies is increasingly important to address the limitations of a narrow compliance approach, as well as the systemic and institutional challenges that both IHL and IHRL face. As such, what drives restraint in war has received increased attention in recent years.

Restraint and Its Meanings

The ICRC’s The Roots of Restraint in War was ground-breaking among initiatives that make a broader appeal to values and norms, including of a moral, ethical, religious, and spiritual nature to increase protection. What made the report’s openness to extra-legal anchors of restraint possible was the underlying research’s embrace of social science methodology, and of theories developed within political science scholarship.

Yet, the Roots’ conceptual understanding of restraint remained tied to IHL (p. 18), as in “restraint from IHL violations,” as opposed to the wider notion of “restraint from violence.” By circumscribing restraint to IHL, this restraint sub-frame tracks the same bright lines as the IHL compliance sub-frame (except it is limited to the prohibitions, rather than the positive obligations). It also internalizes this framework’s existing shortcomings.

A broader sub-frame of “restraint from violence and abuse” can be evinced from civil war and rebel governance literatures. In turn, this wider framing of restraint can function as a discursive device with equal appeal to armed actors, local communities, and humanitarian practitioners while also being able to entertain a complementary relationship with compliance approaches.

Interdisciplinary Insights on Restraint

Civil war studies adopt an encompassing view of restraint as deliberate attempts to limit violence against civilians and situate restraint as a positive choice within a broad range of armed actors’ activities, including governance of civilian populations under their control. A key feature in this literature is looking inside NSAGs, or inside “rebel groups.” This inward gaze identifies characteristics that explain why some NSAGs attack civilians whereas others exercise restraint, what forms of violence against civilians are used, and under what conditions.

Early findings suggest that access to material resources which do not stem from civilians, such as those that derive from external support, characterize groups that perpetrate indiscriminate violence. These groups attract low-commitment recruits who seek short-term gains and are difficult to discipline and control. In contrast, groups that rely on civilian support to survive recruit committed members from within communities who use violence selectively.

Organizational underpinnings of rebel groups thus matter when seeking to understand what drives restraint. Yet, material resources may not be its central driver. Findings also show that nonmaterial characteristics, particularly ideology, differentiate groups that engage in certain forms of violence, such as sexual violence. It follows that rebel commanders’ ability to control the timing, target, and form of violence depends on a political education that socializes fighters into restrained violence. Indeed, rebel groups with strong political education institutions commit low levels of violence in general and minimal sexual violence in particular. Where such institutions do not exist, NSAGs use sexual violence to create bonds among recruits or it constitutes a practice that commanders neither authorize nor prohibit.

Nevertheless, how NSAG leaders structure their organizations to control their members’ violent behavior, and the role of ideology in this process, is only part of the story. NSAGs’ interactions with other actors also affect restraint from violence. Strategic calculations of these groups in relation to governments and their domestic and international constituencies shape their decisions to use violence or exercise restraint. This involves assessing potential loss of support and damage to the opponent’s support in response to violence. Such considerations are particularly relevant for rebel groups that rely on domestic and international support and establish political wings to seek legitimacy, including in the territories they control. Here, rebel groups engage in a host of rebel governance behaviors that push our understanding of restraint from violence to abuse of power. This can manifest through the imposition of discriminatory norms, taxation of civilians, and co-optation of humanitarian aid intended for local communities, highlighting the importance of going beyond an IHL frame.

These relationships do not emerge in a vacuum but are part of the broader evolution of conflict. Territorial control is one aspect of the conflict environment that affects belligerents’ use of violence as they compete for control. Where either incumbents or insurgents fully control the territory, they should not have incentives to commit violence against civilians. Where control is contested, that is, either incumbents or insurgents have hegemonic but not total control, they might seek information from civilians to eliminate supposed enemy collaborators using selective violence. Indiscriminate violence may occur in this context when there are insufficient resources and information to direct violence more selectively.

Beyond the conflict parties’ territorial contestation, armed conflicts involve a range of actors whose changing relationships have implications for violence restraint. Multiple NSAGs, State armed forces, rival militias and paramilitaries, political bodies, civilian communities and actors within them, including traditional and religious leaders, international organizations, humanitarian agencies and other NGOs, foreign States, and private donors all contribute to the evolution of conflict. These actors are enmeshed in “systems of relationships” and affect each other’s activities, including violent behavior, based on their diverse interests, identities, and goals. Their interpretations of restraint vary and change over time based on their different norms, cultural settings, and understandings of restraint, including knowledge of relevant bodies of international law.

Concluding Thoughts on Full(er) Protection

This complex reality of armed conflict suggests that the two dominant frames of compliance (with IHL and with IHRL) and restraint (from IHL violations and violence and abuse in the broader sense) do not function in isolation from one another. Armed actors are unlikely to neatly categorize these framings in their engagement with civilians or with humanitarian practitioners, or to do so uniformly. Factors that affect behavior associated with one frame are also likely to shape behavior associated with the other framings. The Beyond Compliance Consortium therefore focuses on the concurrent application of compliance + restraint to advance an understanding of full(er) protection in conflict that centers on a harm + need approach.

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Ioana Cismas is a Professor at the York Law School and Co-Director of the Centre for Applied Human Rights at the University of York. She is the Principal Investigator of the Beyond Compliance Consortium.

Anastasia Shesterinina is Chair in Comparative Politics and Founding Director of the Centre for the Comparative Study of Civil War at the University of York. She leads the Civil War Paths project and is the Senior Qualitative Methods Expert of the Beyond Compliance Consortium.

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