Statement: War and Law

1787

Between 27 June and 2 July, the South African National Defence Force and the International Committee of the Red Cross (ICRC) co-hosted senior operational officers from 60 countries across the globe to discuss the legal framework governing modern military operations.

So why is this so significant? Why are the laws of war and international human rights law so important, when in armed conflicts and other situations of violence around the world they are so often flagrantly violated, and often with impunity?

There have always been customary practices in war, but only in the past 150 years have States created international rules to limit the effects of armed conflict for humanitarian reasons. The core messages are straightforward: fight only enemy combatants and destroy only military objectives; collect and care for the wounded, whether friend or foe; do not kill, torture or abuse prisoners of war; treat all civilians humanely.

Every country in the world today has ratified the four Geneva Conventions, and the vast majority have signed on to the most important treaties governing warfare. These documents are presumed evidence of a universal political will to mitigate the worst effects of warfare for those who are not or no longer participating in the fighting. So where does the problem lie? Why is ensuring compliance with international law such an abiding challenge?

Political will aside, a central barrier to legal compliance is the complexity of the modern battlefield. For example, the law requires that armed forces avoid damage to civilian persons and objects when they plan and execute their operations; but in the post-9/11 world, with fighting forces often intermingling themselves with the civilian population, civilians including private contractors taking part in operations, and armed groups failing to distinguish themselves on the battlefield, how will the soldier know who he can and cannot target? In 2009 the ICRC authored a guidance document on the legal concept of direct participation in hostilities aimed at answering that question. But a clean divide between combatant and civilian is an historical relic.

Furthermore, the soldier no longer finds himself solely on the traditional battlefield. Today he or she is engaged in complex peace support operations, law enforcement, and counterinsurgency – a sliding scale of violence to which the laws of war are only applicable at the most violent end, and for which a nuanced understanding of another body of law – international human rights law – is required.

Another central issue is the difficulty of translating the Geneva Conventions and other international legal obligations into military practice. In 2004, the ICRC commissioned a study on the psychological roots of behaviour in war. It concluded that well-intentioned civilians and military lawyers may, if adequately persuasive, convince soldiers of the importance of international humanitarian law. However, such a change in attitude will have little effect on their behaviour on the battlefield in the face of orders that oblige them to violate the law.

Indeed, soldiers are creatures of discipline, and almost every aspect of their professional lives is governed by orders. For the man in uniform, failure to abide by orders has consequences ranging from losing weekend leave to being stripped of rank in front of his peers. Just as the ties that bind soldiers can be stronger than the union of marriage, the orders they receive from their superiors will often outweigh even morality as a driver of behaviour.

International law must therefore form an integral part of the sources of military orders – doctrine, classroom education, field training, standard operating procedures, rules of engagement – if armed forces and their political masters wish to give meaning to their obligations. Since discipline is the trademark of a professional armed force, humanitarian law must be inextricably linked to discipline.

Improving compliance with international rules governing military operations demands a huge, concerted international effort. A wide range of actors – including States, non-state actors, military forces, legislators and humanitarian organisations such as the ICRC – all have an important role to play.

By ensuring that the law becomes an integral part of the operational practice of military officers in 60 countries around the world, the workshop in Saldanha aims to contribute one essential part to that effort.



Andrew Carswell is Director of the fifth Senior Workshop on International Rules governing Military Operations, which will take place from 27 June to 2 July at the South African Military Academy in Saldanha, Western Cape Province. For more information on the International Committee of the Red Cross, see www.icrc.org.