The Creeping Normality of LOAC Noncompliance
Taking stock of the state of the Law of Armed Conflict (LOAC) may be one of the most important tasks facing international law today. In that vein, it is well worth asking whether the Law of Armed Conflict is still “fit for purpose”?
As the current conflict in Ukraine illustrates all too well, the answer is not an optimistic one. LOAC increasingly faces an existential challenge. Namely, growing lack of compliance by States and non-State actors (NSAs) threatens its entire legitimacy. Failure of States and NSAs to openly and consistently apply, affirm, and legitimize the fundamental underlying principles of LOAC in today’s armed conflicts will put LOAC into serious disuse. It will profoundly threaten the rule of law and humanity.
However, States and NSAs can reverse this disturbing trend through smarter, bolder, and consistent compliance with LOAC. This post offers proposals in this respect. Some of the proposals are controversial and will take vision, courage, and compromise to embrace and to implement. Nonetheless, better compliance will further increase legitimacy and confidence in LOAC to the benefit of combatants and civilians alike.
The Complexity of Conflict
Armed conflict today is massively complex and challenging for States, NSAs, and civil society. The operating environment is multi-domain, hyper-violent, ambiguous, and often blurred. Conflicts are increasingly described as “new wars,” “grey zone wars,” and “hybrid wars.” They are more frequent, more protracted, more influenced by NSAs, more violent, and exponentially more dangerous and deadly for civilian populations. However, from the perspective of LOAC, it appears that these “new wars” or “grey zone wars” present many of the same challenges, albeit more of them, as “old wars” or “black and white zone wars.”
A review of contemporary armed conflicts since the end of the Second World War leads to a somewhat pessimistic view of the effectiveness, credibility, and legitimacy of LOAC. Examining today’s conflicts in Ukraine, Syria, Yemen, Iraq, Afghanistan, Democratic Republic of Congo, Somalia, and South Sudan, and past conflicts in the former Yugoslavia, Chechnya, Rwanda, Columbia, Nicaragua, and Vietnam, the sheer number of gross LOAC breaches and human rights violations, particularly against civilian populations, is shocking and abhorrent. Whether such conflicts are considered international armed conflicts (IACs), non-international armed conflicts (NIACs), or a mix of both, LOAC applies. Every State is a Party to the four Geneva Conventions (GCs) and they are considered reflective of customary international law (CIL) binding on all States.
Yet, in virtually every contemporary conflict, these basic rules—many of which are universally accepted and fundamental rules of humanity—are consistently breached by States and NSAs. The International Committee of the Red Cross (ICRC), along with most States, have acknowledged that noncompliance with LOAC remains an “intractable problem.” To my mind, this problem is the greatest current challenge to the continued credibility of LOAC and there is an “imperative need” to improve compliance.
Accounting for Noncompliance
How do we account for this prevailing lack of compliance with LOAC? Two significant possibilities are apparent.
First, the underlying long-established conception of LOAC, in which States accept humanitarian restraints on their conduct of hostilities in exchange for the legalization and legitimization of such conduct appears no longer valid or practical for most participants in today’s armed conflicts. This State-centric vision of war is intended to defeat the enemy, using overwhelming combat power, while voluntarily complying with LOAC. Yet the majority of today’s wars are NIACs fought by NSAs who do not share this historical State-centric conception of total victory in armed conflict. Indeed, they find that concept and LOAC antithetical to their aims which are largely based on anti-State and anti-Western ideology, laws, and ethics. Similarly, there is a growing number of States, including major powers like Russia and China, that seems to also reject the established conception of total victory as being the aim of armed conflict. Indeed, these States appear to believe that in many cases (though not all) actions short of armed conflict will better achieve their strategic goals. In this context, compliance with LOAC is irrelevant and/or an obstacle to the attainment of their aims.
For example, it is not difficult to contemplate a border clash between States, such as China and India, that becomes an IAC. Other major powers may also participate as allies. For example, Pakistan could join with China while Russia joins with India. These powers have vast military resources, including significant cyber, space, and nuclear capabilities. Their current demonstrated propensity to deny their participation or involvement in hostilities or to engage in ambiguous legal doublespeak to justify their military operations, such as a “special military operation,” suggests that these major powers would not likely comply, or even try to comply, with LOAC while in an IAC. As we see today in Ukraine, such massive failures of LOAC compliance are disastrous in humanitarian terms and completely eviscerate the purpose and legitimacy of LOAC.
Second, the imbalance of military capabilities of the parties in most of today’s conflicts creates serious doubt about the legitimacy of LOAC. When parties (usually States) who have a clear advantage in military capability over the opposing parties fight (usually non-state organized armed groups (OAGs) or States with less capability), the latter often resort to asymmetric means and methods of fighting to counteract the disparity. Such asymmetric means and methods frequently breach the LOAC, for example, by not complying with the principles of distinction both in attack and in defence. From an asymmetric fighting perspective, LOAC is viewed as being applied unequally and unfairly by States against weaker opponents. It legitimizes powerful States’ means and methods of warfare but outlaws the largely asymmetric tactics of less capable forces. In this context, complying with LOAC can appear inconceivable and adverse to interests of less capable parties.
These two critical bases for LOAC noncompliance arise, in large part, from the inconsistent application and interpretation of LOAC by States. The most significant and chronically recurring areas of inconsistency and interpretation by States are:
1. Disparities in ratification/accession to and interpretation of LOAC treaties, especially Additional Protocols I and II to the Geneva Conventions, 1977;
2. Fraught interactions and views concerning the interface and applicability of LOAC and international human rights law (IHRL); and
3. Obstructionist determinations concerning the legitimacy of parties to conflicts.
A prominent example of the compliance challenges created by these recurring sources of inconsistent application and interpretation is the issue of combatant immunity. Combatant immunity guarantees that fighters who are considered lawful combatants in IACs have the right to participate directly in hostilities. They can kill other combatants without being held liable for murder and must be considered prisoners of war (POWs) upon capture. Strictly speaking, the concept of combatant immunity does not apply in NIACs. However, many States, in addition to authorizing State militaries under national laws to participate in NIACs, have claimed their forces are lawful combatants by analogy with the LOAC of IACs. States have used the same application-by-analogy technique to incorporate the targeting provisions of IAC LOAC to NIACs. This harmonization of the LOAC of IAC and NIAC makes much common and operational sense, but it is not yet widely accepted.
The challenge for States is that the LOAC is founded upon equal application to all parties to the conflict. In NIACs, States often refuse to apply the same LOAC provisions to non-State OAGs and refuse to recognize that such OAGs can comply with, or apply, LOAC themselves. This refusal is most often based on the view that the OAGs are terrorists or common criminals who cannot be legitimated by LOAC, even if they fully comply with it. Non-State OAGs have rejected LOAC for many invalid reasons, usually irrational ideological ones. Yet, there is some merit to questioning LOAC, or at least States’ interpretation of it, if it delegitimizes actions that de facto comply with the law. There is a clear difference between OAGs that blatantly refuse to comply with the LOAC and those that will comply if afforded the opportunity. Those that do comply should benefit in equal ways such as having combatant immunity. What incentive is there for non-state OAGs to respect and comply with the LOAC if they are never permitted to benefit from it?
A Path Toward Compliance
States, and NSAs alike, have played a major role in the weakening of LOAC through a growing lack of compliance. Recent reports of UN Human Rights Council-mandated Commissions of Inquiry for Syria and Libya and the Group of Eminent International and Regional Experts for Yemen, reveal wide-scale, deliberate, and appalling LOAC violations by all parties, State and non-State, to the conflicts. It is highly likely the Commission of Inquiry for Ukraine will find the same. States can, and must, achieve greater compliance with LOAC by striving to achieve a strong foundation of unifying legal bases and consistent interpretations. While there is a variety of ways to do this, it is proposed that the most smart, effective, and legitimate include the following.
First, States could ensure the symmetric application of the LOAC, particularly to non-State OAGs in NIACs. This could be achieved by agreeing to consistently apply-by-analogy the LOAC of IAC to NIACs. More boldly, States could formally acknowledge the harmonization of the LOAC of IAC and NIAC such that, in practice, there is only one LOAC, no matter the type of conflict. For example, States could agree to apply a harmonized legal framework to a NIAC by formally registering a unilateral declaration of intent with an appropriate authority, possibly the Swiss Federal Council (the depository for ratifications of the Geneva Conventions). Such a declaration could be permanent (applying to any conflict) or made on a conflict-by-conflict basis. The resulting harmonized framework would be legally binding on States as a matter of international law. This would require States to make substantial compromises in applying the LOAC, particularly in accepting that non-State OAGs, that comply with the LOAC, will benefit from it (e.g., combatant immunity).
Second, States could ratify or accede to LOAC treaties to which they are not yet Party, in particular APs I and II. It is most likely that major military powers like the United States, India, Pakistan, Turkey, and Iran, that have long refused to ratify APs I and II, will continue to refuse to do so. With or without ratification, States must, nevertheless, more frequently and publicly reinforce State practice and opinio juris, confirming which provisions of the LOAC reflect CIL. States could, for example, issue joint legal strategic objectives, joint legal doctrine, and joint public statements confirming an agreed view of the LOAC and CIL.
Third, States could further harmonize their interpretation of LOAC treaty and CIL provisions that they acknowledge as binding. The focus must be on key concepts and terminology which directly impact deprivation of life and liberty, such as “military objectives,” “attack,” “precautions in attack,” and taking “a direct part in hostilities.”
Fourth, and related to the previous, States could resolve LOAC and IHRL interaction debate by agreeing upon one controlling legal framework in both IACs and NIACs. Specifically, they could agree to the lex specialis of the LOAC as the governing international legal framework for armed conflict.
Fifth, NSAs could acknowledge the application of LOAC when they participate in armed conflicts. In particular, NSAs could make unilateral declarations to apply LOAC. Such affirmations can be modelled on the declarations under Article 96(3) AP I or a “Deed of Commitment” as proposed by the humanitarian organization, Geneva Call (here and here).
The LOAC has, over centuries, proved to be a resilient, practical, adaptable, and humane legal framework for armed conflict. However, this is not enough. It must also be complied with and respected by all parties to be effective, credible, and legitimate. Sadly, today’s growing trend is toward parties, State and NSAs, either not complying at all or complying only in fragmented, ambiguous, and self-serving ways. This trend must be taken seriously and reversed. Failure to do so will render LOAC a defunct façade. The rule of law, international order, and humanity require better.
Blaise Cathcart QC served as the Judge Advocate General (JAG) of the Canadian Armed Forces (CAF) from 2010-2017.
Photo credit: U.S. Army Staff Sgt. Jose H. Rodriguez