Beyond Compliance Symposium – Why and How to Go “Beyond the Law” to Address Negative Lived Experiences of Armed Conflict

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 from September 2024 onwards. The extended symposium invites reflection on the conceptualisation of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies, including compliance and restraint, that can effectively address harm and need. The posts draw on expertise across the Beyond Compliance Consortium (BCC) partners, friends, and stakeholders providing a conceptual foundation for the research programme on Building Evidence on Promoting Restraint by Armed Actors. The BCC programme is funded by UK International Development from the UK government; the views expressed do not necessarily reflect the UK government’s official policies.

2024 holds significant relevance for the protection of civilians in armed conflict. This year marks the twenty-fifth anniversary of this theme as an item on the UN Security Council’s agenda and the seventy-fifth anniversary of the 1949 Geneva Conventions. The year is also notable due to the severe suffering endured by record numbers of civilians in over 120 armed conflicts fought across the world. As a result, rather than hold a space for celebrating, 2024 demands that we reflect on “what it means to protect civilians in contemporary and future armed conflict” (para. 5) as well as on the best avenues to do so.

The Beyond Compliance Symposium, hosted jointly by Armed Groups and International Law and Articles of War, aims to provide such a space for reflection and reflexivity across disciplines and fields of practice. The series has invited contributions from experts affiliated with the Beyond Compliance Consortium—a co-productive, academic-practitioner research partnership funded by UK International Development—and other stakeholders across academia, humanitarian and human rights organisations, and the military. In this introductory post, we outline the motivation behind the Consortium’s research approach to “go beyond the law” and explain how, over the coming months, contributors to this symposium will engage critically with key terms in an effort to accurately describe and effectively address negative everyday lived experiences of armed conflict.

Why Go “Beyond the Law”?

In his Annual Report on the Protection of Civilians in Armed Conflict, the UN Secretary-General noted that although conflict in the Democratic Republic of the Congo (DRC), Mali, Mozambique, Myanmar, Nigeria, the Occupied Palestinian Territory and Israel, Somalia, South Sudan, Sudan, and Ukraine existed “with varying degrees of intensity,” these hostilities all demonstrated a “consistent pattern of grave and lasting civilian harm” (paras. 6-7). The report claims that “[c]ivilian harm would be reduced if parties complied with their obligations under international humanitarian law and human rights law and if third States took the necessary steps to ensure respect for international humanitarian law by parties to conflict as required by that law” (para. 49).

At the same time, the report concedes that although a central strategy for the protection of civilians, compliance with international humanitarian law (IHL) and international human rights law (IHRL) is often not enough. A prime point of reflection for this symposium is that a compliance approach “must be complemented with a focus on the harm that civilians experience in conflict … as the basis for identifying effective responses to address it.” This is so because “even when parties claim to be in compliance with the law,” individuals still experience serious harm (para. 5).

Leaving aside the veracity of the parties’ claims and the difficulties in testing them in accountability fora, an array of serious harms and needs experienced by populations facing war remain unregulated by or invisible to (specific) legal frameworks. For example, one study notes that the IHL rules that address violence (i.e., conduct of hostilities rules) struggle to deal with the full measure of “reverberating effects” and also fail to address the “cumulative effect” of high intensity individual attacks (p. 12, 22).

As a further illustration, an analysis of needs in Syria has repeatedly identified legal documentation as a core protection need. In October 2015—a time when fighting in the Syrian conflict was intense—91 percent of surveyed households ranked lack and loss of “civil documentation” as a top-three protection issue (p. 3). Framed solely against the IHL framework, which does not feature prominent provisions on the subject, this issue would not have been seen. This legal blind spot shows that while a more faithful understanding of the nature, patterns, and types of negative everyday lived experiences of conflict is needed, it cannot be remedied if the primary lens through which we identify harm and need is a strictly legal one.

How to Go “Beyond”?

Significant progress has been made in recent years to advance legal understandings of civilian harm. Taking account of the direct and indirect effects of conflict on civilians and civilian objects that can be reasonably foreseen forms part of the planning of military operations. A key example of progress in this regard is the U.S. Department of Defense Civilian Harm Mitigation and Response Action Plan and the later release of the Civilian Harm Mitigation and Response. The latter provides a definition of “civilian harm” and clarifies the policies, responsibilities, and procedures regarding its assessment and investigation. Further examples can be found in the important definitions of and work on civilian harm by non-governmental organisations like the Center for Civilians in Conflict (see here and here) and PAX (see for example here).

The Beyond Compliance Consortium recognises the value in this progress. Equally, it endorses the message that there is value in looking beyond legal frameworks when seeking to develop a fuller understanding of the personal, material, temporal, and spatial scope of negative lived experiences of war. Importantly, looking beyond the law does not mean attributing any less value to the legal framework; it means recognising that if research and policy work starts with and is channelled entirely through law there is a risk that profoundly impacting experiences of conflict will not be given due attention by the range of actors working in this field, whether humanitarian, human rights, academic, or military.

How to go beyond the law has been a central preoccupation of the BCC’s early conceptualisation work. In answering the overarching research question “What strategies have the most potential to generate compliance and restraint by armed actors—and more broadly, to facilitate a full(er) protection—in order to prevent, reduce, and respond to harm and need arising in armed conflict?,” the BCC opts for a bottom-up, socio-legal approach. It starts by examining individuals’ and communities’ manifold lived experiences of conflict through qualitative research in nine case study countries and quantitative analysis. From there it moves to examine how best to address this empirical reality, including legal compliance-generation strategies. It also considers community-centred, political, economic, development, or accountability avenues to promote restraint from violence and abuse by armed actors.

This approach allows for a fuller understanding of harm and need in war that captures experiences that do not directly result from military operations or are not regulated by IHL. Examples include harm caused by private actors, emotional loss, lack of documentation, or food insecurity. The approach also permits a better grasp of how differently situated civilian groups, vulnerable groups within armed actors (e.g., child soldiers or female fighters), persons hors de combat, and protected groups such as humanitarian and medical personnel, experience harm and need. These experiences might result not from specific incidents of violence but rather from particular policies (e.g., arbitrary denial of humanitarian relief operations) or underlying structural dynamics (e.g., pre-existing gender discrimination).

These factors, while not involving violence in the traditional sense, often have a (more) pervasive and generalised impact on communities experiencing war that can both precede and follow conflict. Taking account of such factors will enrich the range and type of strategies used to address negative lived experiences of conflict across a range of parameters: the actors that are targeted (e.g., fighting parties as well as influential societal actors, third States, private actors, and individuals); those that (can) pursue them (e.g., humanitarians versus local communities); and the experiences (e.g., psychological, emotional), policies, structures, time-frames and spaces to be considered (e.g. discriminatory patterns pre-dating conflict, domestic versus public spaces).

Conclusion

Animated by the ambitious goal to better capture and address negative lived experiences of conflict and guided by the “beyond legal frameworks” approach, contributors to this symposium will analyse and re-frame concepts, present empirical data, and provide reflective contributions on their practice and research. They will offer comments on a range of topics related to civilian harm and humanitarian need such as the systemic impacts of war in protracted conflicts, civilian mental harm, and the need and harm caused by explosive weapons. Authors will also address issues related to community self-protection, the ambiguous boundaries between actors in non-international armed conflicts, and common Article 3 and the limits of compliance by non-State armed groups. In addition, the symposium will include some conflict-specific contributions regarding Afghanistan, Colombia, the DRC, Myanmar, Somalia, South Sudan, Syria, and Ukraine among others. We hope that readers will enjoy the posts within the symposium and benefit from the different perspectives, beyond legal frameworks, that these provide.

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Katharine Fortin is Associate Professor at the Netherlands Institute of Human Rights, Utrecht University and a researcher at the Montaigne Centre for the Rule of Law and Administration of Justice. She is an editor of the Armed Groups and International Law blog and Co-Investigator of the Beyond Compliance Consortium.

Ezequiel Heffes is the Director of Watchlist on Children and Armed Conflict in New York. He is an editor of the Armed Groups and International Law blog and Co-Investigator of the Beyond Compliance Consortium.

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.

Jennifer Maddocks is an Assistant Professor in the Department of Law and Philosophy at the United States Military Academy, West Point and the Managing Editor for Articles of War.

Photo credit: Nicolás Braguinsky Cascini/Generating Respect Project