Regaining Perspective on the Law of Armed Conflict

As I noted in my “2024 Year Ahead” post, I am worried that the law of armed conflict (LOAC) faces an array of threats to its application on the battlefield and beyond. The post set out five that I find especially corrosive.

To begin with, I am worried about an eroding commitment to LOAC by some States and non-State actors whose cost-benefit analysis has led them to conclude that non-compliance makes sense, especially when the violator is not ostracized for having crossed the line (or ostracized enough). Such attitudes can prove contagious. Second, I am concerned about what I label LOAC “attention deficit disorder,” a propensity over time to lose focus on an armed conflict and repeated LOAC violations in it. In part, this occurs because of “outrage fatigue,” as LOAC violations become so pervasive that we become numb to them. It can also be the product of “bright shiny object syndrome,” as newer conflicts emerge to detract our attention.

The third threat I see is the misapplication of LOAC. In some instances, this manifests in the threshold for compliance being inappropriately moved up, while in others, the interpretation of existing rules reflects a lowering of thresholds. This is typically the product of a skewing of the military necessity – humanitarian considerations balance that undergirds LOAC rules. Fourth, I am distressed about a growing propensity to characterize incidents as unlawful before the facts and context necessary to reach such a conclusion are available, a tendency I label “ready, shoot, aim.” Finally, many of those in the international law community are picking sides, either consciously or unconsciously, in contemporary conflicts. Once they do so, the phenomenon of “confirmation bias” kicks in, by which they tend to see the actions of the “good guys” as lawful (or avert their attention) and those of their opponents as unlawful.

The common thread in these five threats (there are others) is that they derive from how we “think” about armed conflict and the law governing it. In other words, these threats are about attitudes towards and perspectives concerning the application and interpretation of the rules, not the rules themselves. My experience teaches me that LOAC rules are pretty resilient. For example, I recall great concern during the 1980s and early 1990s over beyond-visual-range (BVR) engagements and over-the-horizon (OTH) strikes. How could an attack be executed in compliance with the LOAC rule of distinction if the attacker, located many miles away, cannot see the target or surrounding area?

Yet today, such attacks are commonplace, for military legal advisers and operators have developed a sophisticated evaluative and procedural framework for assessing them using the very LOAC rules in force at the time the concern arose. More recently, we are finding LOAC generally (not entirely) fit for purpose when applied to cyber operations, at least so long as there is interpretive sensitivity to the changed context in which they are conducted.

So, if I am correct that the risk faced by LOAC in contemporary conflicts is primarily about how the international law community approaches its LOAC rules and their application, the partial remedy lies in regaining perspective on that body of law and adjusting attitudes toward its application. Accordingly, in this post, I offer five maxims regarding how the law of armed conflict is meant to be approached. None is new, but I fear their centrality to our understanding and application of LOAC is slipping. Therefore, I offer them in the hope that a reminder of them in this, the 75th year since the 1949 Geneva Conventions were adopted, will help get us back on course.

Maxim 1: Seek Balance

Over a decade ago, concerned about assertions by some of my fellow participants in the International Committee of the Red Cross (ICRC) project on direct participation, I examined the LOAC notion of military necessity. In concluding that military necessity and humanity were foundational principles underlying LOAC’s operational rules, I observed,

Military necessity and humanity exist in fragile equipoise in international humanitarian law. On the one hand, war cannot be conducted without restriction, for states are responsible for the well-being of their populations (including combatants) and must therefore agree with potential enemies on limitations that safeguard their interests. … Yet, if humanitarianism reigned supreme, war would not exist. Since the tragic reality is that war does, states must be reasonably free to conduct their military operations effectively.

In other words, LOAC reflects a delicate balancing by States of their military and humanitarian interests, which can conflict with each other on the battlefield. The paradigmatic example is the rule of proportionality. On the one hand, it sometimes countenances the incidental, but certain, killing of civilians and destruction of civilian objects (collateral damage) when the attack that causes it is anticipated to yield a significant enough “concrete and direct military advantage.” But on the other hand, it prohibits such an attack despite the anticipated military advantage when the expected collateral damage is “excessive.” This sort of balancing appears in many other LOAC rules, such as the requirement to take “feasible” (not all) precautions to minimize civilian harm during an attack and the rule relieving an attacker of the obligation to warn the civilian population of an attack that may affect it “when circumstances do not permit.”

The challenge is that many who comment on, interpret, and apply LOAC skew the balance in one direction or the other. This is unsurprising, for in life and law, what one sees can depend on where one stands. As a general matter, military personnel tend to weigh military considerations more heavily than others, while the humanitarian community understandably emphasizes humanitarian considerations. Indeed, LOAC’s patois reflects this, with the side that tends to emphasize military considerations often labeling it the “law of war” and those who emphasize the humanitarian prong calling it “international humanitarian law” (which explains my recent shift to use of the more neutral term “law of armed conflict”).

This skewing has been aggravated by the emotive environment of contemporary conflict, in which there are perceived “good guys” and “bad guys.” Again, as a general matter, the former tends to be accorded greater leeway vis-à-vis assessments of military necessity, while the latter is often subjected to more demanding humanitarian standards (and vice versa). The fact that members of the international law community (and those who apply LOAC on the battlefield) often differ over which side is “in the right” complicates matters. In actual fact, armed conflicts usually do have good and bad sides. But this is a matter for the jus ad bellum. By the principle of equal application, such characterizations play no role in LOAC and must not affect the balancing of military and humanitarian interests.

Accordingly, those who interpret this body of law—whether as a government lawyer, a representative of a non-governmental organization (NGO), a military legal adviser, or an academic—must do so with great sensitivity to its intended equilibrium between military necessity and humanitarian considerations. They should be reminded that doing so makes great sense. An interpretation that leans too far in the humanitarian direction will alienate States that have a legitimate need to resort to force (especially in self-defense), thereby undercutting the law’s impact on the battlefield. Leaning too far in the military necessity direction risks the loss of the domestic and international support that is essential to maintaining an ability to conduct military operations over time and then recover from the conflict.

Achieving sensitivity to the balance is hardest on the battlefield, especially for those experiencing the reality of warfare first-hand. A particular challenge comes when interpreting and applying vague LOAC rules. For instance, at what point does the degree of doubt as to the status of a target as a military objective render the attack indiscriminate? When is the expected collateral damage of an attack excessive relative to the anticipated concrete and direct military advantage, thereby violating the proportionality rule?

Those facing such questions must resist the urge to interpret the rules in a manner that either maximizes military operations or justifies their condemnation. The goal is not to get to “yes” or “no.” Instead, the optimal approach is to acknowledge that because no bright line test is available to apply the rule, its interpretation must account for both military and humanitarian considerations. This is no easy task, but the effort must be made, for it will produce the most appropriate legal interpretation of the rule, one that is consistent with the overall aims of LOAC and best accommodates a party’s tactical, operational, and strategic level interests.

Maxim 2: We are Not Adversaries

As explained, it is common for those dealing with LOAC to incline toward either military necessity or humanity. This leads to a sense that the dynamic of LOAC interpretation and application is adversarial in nature. If this is the case, the goal must be to move the “other side” in one’s direction.

Many in our field seem to be falling into this trap (I am certainly not immune). At one level, this relates to favoring one party in a conflict. They criticize only the other side even though every conflict tragically includes LOAC violations by every side; it is just a question of degree. They also offer tortured legal defenses of actions by the party they favor in the face of allegations against them. But these practices distort the law, for they are driven by a search for justification or condemnation rather than the pursuit of balance.

At another level, the competition occurs with respect to the military-humanitarian considerations balance itself. When an interpretation that appears to favor military necessity begins to gain traction, those who emphasize humanitarian factors quickly mobilize to counter it, and vice versa. We even see this at the level of organizations, where the military and States that fight often see themselves as responsible for holding the military necessity line, with the ICRC and various NGOs doing the same for humanitarian considerations. In other words, we are increasingly becoming tribal.

However, LOAC is not an adversarial system like the common law, where a battle between opposing sides will reveal the truth. Moreover, LOAC development, interpretation, and application are not zero-sum games in which every victory for one side is a loss for the other. This mindset does little more than create echo chambers that allow us to hear what we want and show contempt for that which we do not.

In fact, both interests, military and humanitarian, are valid and beneficial across the board. Accordingly, instead of pushing hard against the “other camp,” we need to try to understand its perspective so we may better achieve balance. My background is decidedly military, but I have seldom failed to benefit from hearing the perspective of those approaching LOAC from a humanitarian angle. I hope the same is true for them. So, I urge members of the international law community to embrace those who have different views, not because “one should keep friends close and enemies closer,” but because when dealing with a body of law based on the balancing of interests, you need the other side to “keep you honest.”

Maxim 3: Distinguish Interpretation from Advocacy

LOAC is often unavoidably vague. Indeed, ambiguity is built into some rules. After all, ambiguity may be required during negotiations to achieve the consensus that makes possible widespread acceptance of new rules of law by States facing different risks and having different interests. As a result, LOAC rules often require interpretation, which, as discussed, should be based on sensitivity to the military necessity – humanitarian considerations balance.

But sometimes, what is masked as interpretation is actually advocacy designed to push the law beyond its natural confines. To illustrate, recall the debates that arose during and after the ICRC’s direct participation project mentioned above. For instance, although all participants agreed that a civilian who directly participates in hostilities may only be attacked “for such time” as they are doing so, disagreement existed over the scope of that window. This is an issue of interpretation, one that continues to benefit from dialogue among those with differing perspectives.

However, the ICRC proposed a “continuous combat function” condition for attacking members of organized armed groups during the project. This proposal crossed the line into advocacy, although it was pitched as an interpretation. The approach may have made sense from an ethical or even practical perspective (reasonable people differ on this point), but there was no basis for the standard in the law itself, even via liberal interpretation. It creates an imbalance in the law by providing non-fighting members of insurgent groups greater protection from attack than their counterparts in the armed forces.

Numerous States called foul, and correctly so. The proposal was especially unfortunate because the adverse reaction to it (and a few other points) led many experts and key States to reject the work of the project altogether when, in my view, there were many positive aspects, not the least of which was the three-pronged definition (the constitutive elements) of direct participation. The critics’ reaction should have been more discriminating. Still, greater fidelity to the distinction between lex lata (the law as it is) and lex ferenda (the law as the proponent would wish it to be) by those proposing the continuous combat function might have avoided the debate in the first place, thereby increasing the chance that today the many positive aspects of the project would enjoy greater support. Indeed, had continuous combat function been proposed as one critical factor in determining whether an individual is a member of an organized armed group and, therefore, attackable, I suspect it would have garnered substantial support.

I am not suggesting that law does not shift through interpretation. It does, and it should. If LOAC is to continue to be respected by those who apply it, it must reflect the changing nature of warfare and the evolving values of the international community. This is done through interpretation that remains true to the object and purpose of the underlying rule. In other words, the nexus between the rule and its interpretation must be close; interpretation should represent adaptation, not creation.

Nor am I suggesting that advocacy has no role in the LOAC dialogue. On the contrary, the progressive development of LOAC to reflect the changed values of the international community it serves is a good thing. Indeed, we are celebrating the 75th anniversary of one such progressive development this year, the 1949 Geneva Conventions. However, the ICRC, scholars, and other actors in the field need to be precise about whether they are engaged in interpreting existing law that lacks clarity or advocacy of a position that is aspirational or hortatory. Failure to do so can skew the military necessity – humanitarian conditions balance and exacerbate the tendency to see both LOAC interpretation and development as an adversarial process.

Maxim 4: Understand Context

As noted, there is a tendency to render conclusions about the lawfulness of particular actions before the facts are in. This tendency is aggravated when a conflict is highly emotive or when those offering the conclusion have taken sides.

The problem is that LOAC assessments are highly contextual as a matter of law. Yes, some cases are clear-cut. For instance, there is no conceivable justification in law or fact for taking hostages. However, unambiguous cases are often the exception. The rule of proportionality again illustrates the point. It prohibits an attack expected to cause harm to civilians and civilian objects that is excessive relative to the anticipated concrete and direct military advantage that will result. As the rule makes clear, this is an ex ante determination that looks to what the attacker reasonably believed when the attack was planned, approved, and executed, not to the collateral damage caused and military advantage realized. By the rule properly applied, an attack can sometimes be lawful when the resulting collateral damage unexpectedly turns out to be clearly excessive to the military advantage that the attack gained. Understanding the attendant facts is required to determine whether a violation has occurred.

The requirement to take precautions in attack also illustrates the point. Compliance with the rule depends on an assessment of options that were feasible in the circumstances. Consider the case of a fleeting target, that is, one that must be struck immediately lest the opportunity to attack it be lost. In such a case, weapon choice may depend on those systems immediately available to engage the target. The fact that there may be other weapons or platforms that would cause less collateral damage is irrelevant if it is not feasible to bring them to bear before the target escapes. But if the target can be monitored until the other systems become available or until the likelihood of collateral damage is lower, those measures become feasible and, therefore, required by law. Again, assessing compliance depends on understanding the context surrounding the attack.

The point is that hasty conclusions rendered without sensitivity to context can undercut respect for the law by the side wrongly accused of violations. Indeed, there is a risk that, at a certain point, that side may begin to ask itself what the point of compliance is if it is going to be blamed in any event. There is equally a “crying wolf” risk in the sense that regular claims of violation made in the absence of facts and context can weaken the effectiveness of subsequent justified condemnation.

I would caution that sensitivity to context can be overdone. One does not always need all the facts to reasonably allege a violation. If this were the case, allegations would lose much of their deterrent and corrective effect. But as a general matter, facts are essential in a body of law so dependent on understanding the context surrounding a particular action.

Maxim 5: Know Your Role and Everyone Else’s

As the law currently stands, States and States alone make international law through treaties or the State practice and opinio juris that is necessary for the crystallization of a customary rule of law. Accordingly, they also enjoy the greatest authority when interpreting LOAC rules. Making and authoritatively interpreting law are their roles.

The problem is that, as Sean Watts and I have explained, they move very slowly and cautiously (p. 198). In the face of State silence, courts, the ICRC, NGOs, scholars, and others who lack the authority of States will move in to fill the void. States can hardly bemoan this reality when they sit on their hands. So, States must improve their interpretive game if they want to retain ownership of the law.

In light of this inaction, great attention is often paid to the interpretive work of international courts. However, their role is often exaggerated, at least as a matter of law. International courts conduct trials of individuals who violate international criminal law, settle disputes between the parties before it, and offer their views on the law, as in the case of advisory opinions. However, an international court’s interpretation of LOAC rules has no binding effect beyond the court. Article 59 of the Statute of the International Court of Justice (ICJ) makes this point expressly: “The decision of the Court has no binding force except between the parties and in respect of that particular case.” Other court statutes impliedly do so. For instance, Article 21(2) of the Rome Statute of the International Criminal Court provides, “the Court may apply principles and rules of law as interpreted in its previous decisions.” This wording makes it clear that it is not obligated to apply those interpretations.

Of course, international court decisions enjoy persuasive authority, a role acknowledged in Article 38(d) of the ICJ Statute, which labels them “subsidiary means for the determination of rules of law.” However, treating the findings of international courts regarding the applicability or interpretation of LOAC rules as legally definitive is mistaken. That is not their role.

The same is true about the work of scholars. It, too, qualifies as a subsidiary means for determining rules of law so long as the scholar in question qualifies, in the words of Article 38, as a “most highly qualified publicist.” Yet, such work must be taken with a grain of salt. Scholars distinguish themselves through innovation and creativity. Indeed, doctrinal work is sadly looked down upon in much of academia. And scholars are notorious for not openly signaling when their analysis reflects lex ferenda instead of lex lata. This does not mean scholarly work is not valuable; on the contrary, it is essential to the progressive development of the law. However, it is not law, and the role of scholars is not to formally render authoritative interpretations.

Additionally, certain NGOs and the ICRC are highly influential in interpreting LOAC. Concerning the former, it must be remembered that they are advocacy organizations. Their work is invaluable, especially in highlighting the humanitarian considerations that underlie LOAC. But it is sometimes forgotten by those in and out of such organizations that the raison d’être of most NGOs dealing with conflict situations is to optimize humanitarian considerations and push the law in that direction. This fact understandably can color their interpretation of how LOAC rules apply.

Finally, and perhaps most importantly, the ICRC has been instrumental in the progressive development of this body of law and is a central player in LOAC dissemination globally. Its work in conflict zones is very often nothing short of heroic.

However, the organization sometimes slips into advocacy, even treating dialogue with States and some scholars as adversarial. This is unfortunate because doing so can alienate States, especially those engaged in or likely to be engaged in armed conflict. The ICRC is most effective when it facilitates dialogue among States and other key actors. It can also provide the material that will foster the development of the law by States, a prime example being its superb Customary International Humanitarian Law practice database. I do not want to overstate this concern, but, in my estimation, the organization needs to be sensitive to the fact that sometimes, less is more.

Concluding Thoughts

I am concerned about the state of LOAC, as I know many Articles of War readers are. But I do not believe the negative trends I identified in my earlier post are irreversible. Nor do I believe they merit major shifts in the content or nature of the law.

On the contrary, what is needed is a return to the maxims that have served States and others affected by armed conflict so well in the past. We must understand that achieving balance between military necessity and humanitarian considerations, which must be our shared objective, is not advanced by treating those with whom we may disagree as adversaries. Doing so only exacerbates this situation. Instead, as a community, we need to recommit ourselves to the premise that collaboration, not competition, is the best remedy for the threats the law of armed conflict is facing.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

 

 

 

 

Photo credit: U.S. Army photo by Cpl. David Poleski