Introduction
Tina Turner's “What's Love Got to Do with It?” is playing. You turn up the volume and listen to the chorus. In your mind, Tina sings “law” instead of “love” and “heart”.
What's law got to do, got to do with it? What's law but a sweet old-fashioned notion? … Who needs a law when a law can be broken?
The questions that have been asked time and time again about international humanitarian law (IHL) never sounded so good.Footnote 1 Hence, you decide to look at the issue from another angle. The International Committee of the Red Cross (ICRC), as “Guardian of International Humanitarian Law”,Footnote 2 should have something to say about it. Its YouTube channel has a lot to choose from. For instance, a video entitled “Rules of War (in a Nutshell)” seems like a good starting point. Here is what “Wes the Hunter” had to say about it in the comments section: “There is f***ing rules of war…. Stupidest s**t I have heard ever.”Footnote 3
Even when shown in touching animated film, the basic ideas of IHL are met with a certain scepticism by the broader public (granted, outside the anonymity of online comment sections, that scepticism will usually be expressed in more measured terms). This is nothing new.Footnote 4 War inevitably conjures up images of chaos and destruction, and the thought of those who wage war coming up with rules and then actually sticking to them goes against intuition. Doubts about the impact of IHL run deep and have been present since it was conceived in its modern form. To this day, the anxiety over essential issues is constitutive of the way people think about it.Footnote 5 There is a tendency for clearly demarcated positions that either completely share the scepticism or fully reject it on moral grounds. For every new armed conflict that engages public opinion, the basic questions are asked and answered again in a blanket way.
However, continued doubts have also lead to a critical review of long-held positions. Recent scholarship from historians, political scientists, economists and lawyers promises a more nuanced look at the role and effectiveness of IHL. It challenges well-established narratives held dear by sceptics and proponents alike.
This article aims to make accessible these points of view that have yet to become part of wider discussions in the legal field. It will first describe the perspectives that have traditionally shaped our understanding of the effects of legal norms applying to armed conflict. It will then give a cursory overview of new approaches to these issues. On the one hand, this includes efforts to empirically analyse the effect of IHL on States’ behaviour. On the other, it involves scholarship that tries to make explicit the power relationships which shape IHL. Finally, the potential implications that these new approaches can have for current understandings of the role of IHL in today's armed conflicts will be discussed.
Realism versus idealism
The stated goal of IHL is to regulate the behaviour of armed forces and limit the effects of armed conflict.Footnote 6 Why would States which see themselves as potential actors in armed conflict come up with rules that limit their strategic options? Why would they choose to restrict themselves in their choice of weapons and in the decision of who to target with them? The usual answers to these questions can be placed on a spectrum between pragmatism and ethical necessity.Footnote 7
On the pragmatist side, it is argued that States commit to these rules because they have a solid interest in doing so. When States face each other in armed conflict, the threat of reciprocal retaliation is the force that can limit certain excesses. The classic example concerns the treatment of prisoners of war, where the threat of retaliation is particularly tangible and can lead to mutual respect of prisoners’ lives.Footnote 8 This can then translate into codified rules that States view as valuable on utilitarian grounds. From this perspective, though, compliance with the rules can be sustained only if each State credibly threatens to retaliate in response to violations.Footnote 9
This view mirrors how one strand of political science has looked at international law in general and how it sees legal norms playing a role in influencing how States act. In this so-called realist view, law is virtually irrelevant in determining State behaviour. States are seen to act on a basis of rationally assessed and pursued self-interest. Since international law usually lacks strict enforcement, it is without independent pull towards compliance.Footnote 10 High rates of compliance with international law commitments are seen as no more than selection effects, meaning that States only sign treaties that codify norms by which they would abide even in the absence of treaties.Footnote 11 One hundred and fifty years ago, humanitarian icon Florence Nightingale already voiced what political scientists have put in more technical terms in recent days when describing international law as epiphenomenal, claiming that it solely follows the consequences of power and interests.Footnote 12 Considering the early efforts to codify IHL in 1864, Nightingale stated: “But it's like vows. People who keep a vow would do the thing without the vow. And if people will not do without the vow, they will not do with it.”Footnote 13
On the other side of the spectrum, the focus is put on ethical reasons behind the existence and normative force of IHL. Its rules are seen as a product of ethical necessity.Footnote 14 This is what the instruments of IHL sometimes explicitly state themselves. In the preamble of the Hague Convention of 1907, for example, it is claimed that the Convention is “animated by the desire to serve … the interests of humanity and the ever progressive needs of civilization”.Footnote 15 This insistence on the moral grounding of the norms is part of how many humanitarian lawyers conceive the foundations of the field. After the atrocities of World War II, disillusionment with IHL was at its height.Footnote 16 Nevertheless, the eminent international lawyer Hersch Lauterpacht retained his conviction about the law's importance and what lies at its base:
We shall utterly fail to understand the true character of the law of war unless we realize that its purpose is almost entirely humanitarian in the literal sense of the word, namely, to prevent or mitigate suffering and, in some cases, to rescue life from the savagery of battle and passion. This, and not the regulation and direction of hostilities, is its essential purpose.Footnote 17
Idealist versus realist: those are the stereotypical points of reference when framing the debate about the role of IHL from the point of view of international lawyers and political scientists. Clearly there is a lot of potential for controversy between these positions, yet they are seldom brought into direct opposition. The critical views of political scientists and lawyers who analyze international law from an economic perspective rarely find their way into the discourse of IHL. Within this field, the main image drawn is that of a struggle between principled humanitarian lawyers pushing for maximum protection of the innocent and pragmatic military lawyers who argue for rules that take into account the tough choices faced by soldiers in armed conflict. Usually, neither of these sides enters into the debate about if and how IHL works.
New approaches to assess the purpose and effect of IHL
The questions surrounding the purpose and effect of IHL have existed since its inception. However, in their current form they are also part of a bigger trend of critical approaches to international law in general. Whether and why States comply with their international legal commitments has been an important topic of inquiry for scholars of international relations and international law over the last decade.Footnote 18 Some lawyers tend to think of international law as a separate entity, as something that resists outside perspective and is best understood from within. In the words of David Kennedy, “we lack the conceptual and social scientific tools to assess ‘what happened’ in a way which could disentangle the legal from everything else”.Footnote 19 That has not stopped economists, political scientists, historians and legal scholars from applying different methods and drawing their conclusions. A selection of these efforts will be discussed in what follows. First, empirical analyses of the impact of IHL on States’ behaviour will be looked at. The focus then turns to economic, game theoretical and constructivist perspectives on the same issue that provide a more nuanced picture of how IHL can influence decisions in armed conflict. Finally, recent scholarship that actively questions some of the most basic assumptions about IHL will be reviewed, turning the attention to the power relations that underlie the law and to the question of the purpose of IHL beyond its stated goals.
Empirical studies
Despite long-standing and intense debates over the effects of IHL, quantitative empirical analysis of States’ compliance with its rules has long been absent. The first observational studies trying to examine the influence of IHL were those by Valentino, Huth and Croco in 2006Footnote 20 and by Morrow in 2007.Footnote 21 Both studies examined compliance with international norms in international armed conflicts from the start of the twentieth century.
Valentino, Huth and Croco reached a harsh verdict. The study found “no evidence that signatories of international treaties on the laws of war are significantly less likely to kill civilians in war than are non-signatories”.Footnote 22 The results of their empirical analyses “indicate that the laws of war do not provide strong protection for civilians in times of war. None of the variables representing international treaty commitments produced significant results in our equations.”Footnote 23
Morrow, on the other hand, found that States’ compliance with IHL is influenced by the ratification of the relevant agreements, at least for democracies. According to his analysis, States at war have been more likely to comply when both sides have ratified the treaties in question. Moreover, he found that reciprocal enforcement has played an important role in ensuring compliance and that legal obligations favour but do not substitute such responses in kind.Footnote 24
Apart from their conflicting results, these early efforts put a focus on the dynamic nature of States’ compliance with IHL. Whether or not States abide by their legal commitments varies depending on the nature, duration and intensity of the armed conflicts they are involved in and is influenced by the nature of the States themselves.Footnote 25 Compliance equally varies across particular issues such as the use of chemical weapons, aerial bombardment or the treatment of civilians.Footnote 26 When the question was traditionally asked, it was simply “Does it work or not?” Now, however, the questions looked at are “What parts of it work and why?”, or “Under which circumstances and in what way does IHL influence the behaviour of actors in armed conflict?”Footnote 27
With the lessons these early studies provided, they acted as a stepping stone for more refined approaches. Morrow greatly enhanced his work on the topic and published a book-length study in 2014 that presents the most comprehensive empirical analysis of IHL so far.Footnote 28 In the study, he points out that IHL has an effect on States’ behaviour by clarifying what acts are violations, thereby inducing restraint in actors that would otherwise engage in such behaviour.Footnote 29 Further, Prorok and Appel recently published a paper that empirically examines compliance with IHL, specifically focusing on the role of third-party States in enforcement.Footnote 30 Using the same data set as Valentino, Huth and Croco, they come to the conclusion that, with regard to the targeting of civilians, ratification of the relevant treaties does matter under particular circumstances.Footnote 31
Recent observational studies have brought to light the methodological problems and limitations of analyzing the impact of IHL empirically.Footnote 32 So far, studies have focused on compliance with IHL in international armed conflict.Footnote 33 A main limitation in this respect is the small sample size of conflicts to study since the specific rules of IHL were developed.Footnote 34 Another shortcoming is that there is no longer meaningful variation in the applicability – through treaty or customary law – of the central rules that govern international armed conflict.Footnote 35 Further, the data sets analyzed are not beyond dispute.Footnote 36 Crucially, Chilton points out that “even using sophisticated statistical techniques, it is extremely hard to tell whether States change their behaviour as a result of ratifying IHL treaties, or whether States ratify IHL treaties because they are likely to already comply with the norms the treaties codify”.Footnote 37
These problems have prompted different approaches. On the one hand, there has been a turn to more qualitative empirical analyses.Footnote 38 On the other, experimental methods have been chosen. Chilton has conducted a survey experiment that tested whether changes in public opinion create pressure on States to comply with IHL. His results suggest that democracies are likelier to comply with the laws of war when there is an expectation of reciprocity.Footnote 39 The idea behind this experimental approach is to look at mechanisms hypothesized to drive compliance with international law – changes in public opinion, in Chilton's example – using methods developed in behavioural studies. This approach comes with its own limitations and is in its infancy in this field,Footnote 40 but the hope is that it could help to explore the question of why States are more or less likely to comply with their international obligations, adding another facet to the broader discussion of the role and impact of IHL.Footnote 41
Moving beyond a rational choice approach to IHL: Questioning rationality assumptions and examining interests
The discussions regarding the role of law in armed conflict from the political science perspective have been triggered largely by the apparent divide between the extensive IHL normative framework and the perceived lack of compliance with it in actual armed conflict. Consequently, IHL first became an easy target for voices critical of international law's effects in general. The issue was looked at mainly using the tools of economic analysis, relying on standard assumptions of perfect rationality of States and decision-makers.Footnote 42 This rational choice approach to international law has found wide acceptance in legal scholarship and international relations theory of international law.Footnote 43 It strongly supported the traditional doubts about the effects of international law in general and those about IHL in particular.
While the rational choice paradigm as used in economics has been thoroughly challenged in its own field and in international relations since the 1970s, it has taken longer for the economic analysis of the law to react to the impulses described by behavioural economics.Footnote 44 Rational choice approaches to international law usually assume that the State is a unitary actor and that it acts rationally.Footnote 45 Drawing on the findings of cognitive psychology, behavioural economics complements and corrects these views. It points out that human rationality is bounded, characterized by systematic failures, shortcuts, and susceptibility to seemingly irrational traits such as fairness.Footnote 46 Recent efforts to operationalize these insights for the analysis of international law in general have come from van Aaken and Broude.Footnote 47 As van Aaken puts it: “Law, including international law, is never neutral: it sets reference points, produces endowments … and sets points for perceived fairness. How, exactly, the law achieves those ends is a promising research field.”Footnote 48 IHL, with its rules regarding decisions on matters of life and death, seems particularly ripe for research into collective decision-making, the cognitive psychology of individuals and the influence of legal standards.Footnote 49
In the political science debate on the effects of international law on the behaviour of States in general, the so-called constructivists have also tried to expand on the rigid rational choice argument. They acknowledge that international law lacks enforcement by a higher authority. The constructivists then take a closer look at how the interests that are said to dominate States’ calculations in such an environment are formed. Brunnée and Toope note:
The key claim is that interests are not simply given and then rationally pursued, but that social construction of actors’ identities is a major factor in interest formation. … Constructivists show how, through interaction and communication, actors generate shared knowledge and shared understandings that become the background for subsequent interactions. In the process, social norms may emerge that help shape how actors see themselves, their world and, most importantly for us, their interests.Footnote 50
Constructivist views have played an important role in the discussion of international law in general from a political science point of view all along. The application of constructivist concepts to IHL in particular is more recent. International relations scholar Janina Dill has provided a comprehensive effort in her study on the legitimacy of targeting under IHL.Footnote 51 She argues that there is no contradiction between tangible interests and normative beliefs that are usually brought in opposition when analyzing the law's effects.Footnote 52 Taking the constructivist perspective, Dill sees interests as being constructed in the same way as normative beliefs – i.e., subject to perceptions.Footnote 53 The factors that influence the behaviour of actors are located on a continuum between immediate interests and more abstract normative considerations. Actors tend to be motivated by multiple considerations along that continuum at the same time, taking into account both immediate utility and normative appropriateness.Footnote 54
Dill then argues that IHL can be behaviourally relevant by mediating between actors’ immediate interests and more general normative beliefs. The law provides a “ready compromise between instrumental and principled courses of action”,Footnote 55 and in doing so, it has an influence in two main ways. First, it provides action guidance by prescribing behaviour that already encompasses a compromise solution.Footnote 56 Second, it provides a tool that enables assessment of behaviour, be it by self-assessment, public scrutiny or institutionalized review. In this way it can change an actor's perception of potential courses of action and therefore their evaluation of strategic options.Footnote 57
Traditionally, it has been argued that IHL does not provide a separate cause for compliance beyond prior interests or normative beliefs.Footnote 58 Dill moves beyond this position based on the way she sees IHL influencing behaviour as described above. She acknowledges that enforcement and sanctions, which are usually seen as law's independent pull towards compliance, are mostly lacking.Footnote 59 However, in her view IHL has an effect that is not reducible to calculations of interest and normative compliance that would take place in absence of legal guidelines. She describes this effect as being distinguishable from pure considerations of utility or appropriateness without being independent of them or possible on its own.Footnote 60
Game theoretical approaches
Armed conflict is one of the main issues to which game theory has traditionally been applied.Footnote 61 It is not surprising, then, that the role of IHL in armed conflict has also been looked at from this point of view. This has usually happened in connection with rational choice approaches to support the conclusion that compliance with the law is solely based on calculations of interest.Footnote 62 The general argument is that States are best understood as mere participants in “prisoner's dilemma” settings, seeking to achieve self-interested outcomes. Compliance with international law can then be explained neatly within that framework. Most prominently, this view has been forwarded by Posner:
States create international law for the sake of reciprocal gains, and they comply with international law so that those gains are not lost. The logic of reciprocity can be understood using simple game theory models, which show that it is the key to self-enforcement in the repeated bilateral prisoner's dilemma.Footnote 63
While alluring in its simplicity, this view seems to put aside some of game theory's finer points. As Ohlin observes critically, “Recent accounts have harnessed game theory's alleged lessons in service of a new brand of ‘realism’ about international law. … Such claims are not just vastly exaggerated; they represent a profound misunderstanding about the significance of game theory.”Footnote 64 In his empirical study regarding States’ compliance with IHL, Morrow develops a more differentiated game theoretical framework for analyzing IHL as an international institution. He goes further in analyzing reciprocityFootnote 65 and additionally focuses on the importance of shared understandings, echoing constructivist views.Footnote 66 “What the actors think one another will do is as central to their own calculations as their preferences over outcomes.”Footnote 67 In games representing social settings, multiple equilibria exist – i.e., multiple sets of strategies can be stable. Which set of strategies is chosen depends on shared understandings of the situation.Footnote 68
International law helps to create such shared understandings. Shared understandings alone, however, are insufficient to ensure that parties will comply.Footnote 69 Morrow uses game theory to expand on the traditional opposition between realist and idealist views:
States have created international law to help them realize benefits from cooperation, but law helps to address some of the issues that make that cooperation difficult. … The realists correctly see that states select into legal agreements because they believe they will benefit from them, but fail to see that the resulting cooperation may require the mechanisms induced by those agreements. The idealists see that legal agreements structure international relations, but they fail to see the myriad problems that can impede cooperation …Footnote 70
This game theoretical perspective highlights how IHL can help to restrain violence by fostering expectations that influence behaviour, but does not guarantee that everyone will follow its rules.Footnote 71 The effect that IHL can have cannot be separated from the strategic incentives that States face.Footnote 72 In Morrow's words: “The laws of war shape but do not determine how States fight.”Footnote 73
Thinking within and against the traditional narrative on IHL
Recent legal and historical scholarship has tried to actively question some of the basic assumptions about IHL and the manner in which it has commonly been analyzed. One of the assumptions questioned is the focus on States as the unique protagonists of IHL. The role and importance of non-State actors in armed conflict has become an important focus of recent legal and political science scholarship.Footnote 74 At the same time, the State as a homogenous unit of analysis has been put into question. Traditionally, States are seen as actors having interests and taking decisions according to these interests much in the way individual persons would decide and act. The metaphorical quality of personal characteristics attributed to States is easily put aside. This manner of looking at States and political and social outcomes has come under intense scrutiny in political science and history over the last half-century.Footnote 75 Discussions about IHL in legal circles, however, have rarely dealt with this issue explicitly.
The current interest of legal scholars in “prying open the black box of the state”Footnote 76 has drawn on methods of institutional analysis developed in political science and behavioural economics-based approaches.Footnote 77 As Benvenisti and Cohen put it, the basic observation is “that states engaged in armed conflict are not unitary actors but rather complex institutions that include internal chains of command within the echelons of power, accountable to a civilian government and ultimately to the public”.Footnote 78 Recent game theoretical approaches draw attention to the same issue when they point out different levels of interrelated strategic problems within States and their armed forces.Footnote 79 Kennedy equally questions the concept of the State as a homogenous unit, both internally and in comparison to other States:
States … differ dramatically in powers, resources, and independence. There is something audacious – and terribly misleading – about calling them all states …. Even in the most powerful and well-integrated states, moreover, power today lies in the capillaries of social and economic life.Footnote 80
Looking closer at States’ internal dynamics does not seem radical in light of the ideas that have been advanced in political science for some time. However, it breaks with a nation-State-based narrative that lies at the heart of the classic conception of IHL and still dominates a large part of discussions in this field today.Footnote 81 This shift in perspective permits a more nuanced look at the purposes and effects of IHL.
When the effectiveness of IHL is discussed, what is usually referred to is the impact the law can have in preventing violence against persons who do not participate in hostilities. IHL is measured against the goals that have been explicitly set by the States drawing up its main body of law: serving the interests of humanity and protecting the victims of armed conflict.Footnote 82 As discussed, the traditional counter-position has been to point out the raw State interests that lie below the thin veneer of humanitarian terminology. In this view, the soberer question to ask with regard to the impact of the law is if and how it affects inter-State relations. Looking closer at the dynamics within States, however, opens a different range of questions. What function and effect does IHL have within States? Beyond its stated goals and the interests of States taken as a whole, are there other purposes the law serves?
It has proven fruitful to look at the historical development of IHL and to take into account the different actors with competing interests that constitute the State. Recent work highlights functions of the law that are not made explicit by the law itself or by those who apply and shape it.Footnote 83 Benvenisti and Cohen argue that a main function and driver of IHL development is the control function it serves within State structures:
[C]ontrolling the armed forces, especially during war, is one of the most acute challenges for any government. In democracies, one of the “most basic of political questions” is how “to … reconcile a military strong enough to do anything the civilians ask, with a military subordinate enough to do only what civilians authorize.” … There is conflict not only between the high command of the armed forces and the civilian government that seeks to control it. Resorting to force creates conflicts between civil society and elected officials, between elected officials and military commanders, and between those commanders and combat soldiers. IHL is an external tool designed to address many of these internal conflicts.Footnote 84
They conclude that IHL often reflects governments’ or commanders’ attempts to create an effective means of monitoring their troops rather than an international effort to regulate conduct between States.Footnote 85
Kennedy makes a similar point when describing international law as an instrument through which force is disciplined and rendered effective.Footnote 86 He goes further, however, in describing law also “as a tactical ally, … a strategic asset, an instrument of war” that legitimizes and therefore enables military campaigns.Footnote 87 In a narrower sense, a legitimizing role of the law can be seen in the relationship between governments and their soldiers. It has been argued that Augustine's efforts in the fifth century to theorize the just war were made to absolve Christians from murder and allow them to participate in war.Footnote 88 IHL can be seen to play a similar role today in absolving soldiers from moral responsibility for their participation in armed violence.Footnote 89
Gaining awareness of the forces that shape IHL
Gender perspectives, third-world approaches, postcolonial looks: these are the headings for a range of recent scholarship that tries to make explicit the other power relationships that have shaped and continue to shape IHL.Footnote 90 They offer different lenses through which to analyze the law's content and the way it is thought and talked about. Looking at IHL in this way comes as part of a bigger trend of current critical approaches to international lawFootnote 91 which have their roots in schools of thought such as critical legal studies and feminist legal theory that started in the 1970s. In this tradition, international law is taken not as a neutral body of law but rather as an institution inseparable from politics and power structures.
Early on, feminist critique pointed to the fact that IHL is based on a view of armed conflict which envisages men and women playing particular roles: men as fighters and women as victims of war.Footnote 92 Gender-conscious perspectives aimed at further unmasking such assumptions and exposing their inherently discriminatory dimension,Footnote 93 and have worked towards a better understanding of the different experiences of gendered actors in armed conflict.Footnote 94 A large part of these early efforts became focused on the pressing issue of sexual violence in armed conflict. In the emerging field of international criminal law, there was a concerted and successful push for the criminalization and punishment of sexual violence against women.Footnote 95 Broader debates about IHL's gendered assumptions, however, were somewhat sidelined by this focus on sexual violence.Footnote 96 Recent efforts in a range of fields give a more nuanced picture of women's experiences in armed conflict and the question of how IHL in many ways fails to respond to this reality.Footnote 97 Beyond the attention to the role of women, a more comprehensive gender-conscious approach is in the making.Footnote 98
Legal scholarship identifying as third-world and postcolonial approaches to international law is re-examining the historical foundations of international law.Footnote 99 These efforts place emphasis on legal history particularly in terms of imperial power dynamics, recognizing the colonial legacy as in some ways constitutive for international law.Footnote 100 In this way, they try to provide under-represented and alternative knowledge about the subject.Footnote 101 With regard to IHL in particular, important areas of re-evaluation are the dominance of European or Western points of view and the ensuing exclusions from the realm of IHL based on race, religion and purported levels of civilization.Footnote 102 These exclusions have taken the shape of a restrictive application of IHL to conflicts involving non-European people, namely the non-application of the norms to colonial wars.Footnote 103 But they have also manifested as practices of exclusion of alternative points of view from past and current debates. Further points of discussion in the postcolonial perspective on IHL concern the unacknowledged contributions to the law from non-Western backgroundsFootnote 104 and the effects of the structure of the law on postcolonial States today.Footnote 105 Additionally, recent scholarship has challenged the overwhelmingly progressist narrative of IHL, the complacency of the international law discourse in treating the colonial legacy as a dead letter that has been overcome by the process of decolonization.Footnote 106
One subject that has received renewed scrutiny from legal scholars and political scientists alike is the principle of distinction between civilians and combatants, a concept central to IHL. These analyses provide an example of recent efforts that explicitly take into account power structures in terms of gender and the colonial and postcolonial background, as well as non-Western experiences.Footnote 107 How the Geneva Conventions and their Additional Protocols were elaborated with regard to the principle of distinction gives a good idea of why IHL is also referred to as a “strategic expression of morals”.Footnote 108 A closer look at the principle of distinction shows a blind spot, because the principle
presumes that we know what a combatant is. Of course, combatants do not exist in nature, any more than war exists as a natural condition waiting to be “regulated” by the laws of war. What is and what is not a combatant is an elaborate normative and social construct.Footnote 109
Kinsella shows from a historical perspective just how the terms “civilian” and “combatant” are neither neutral nor inevitable identities but have rather been defined and redefined, and continue to be adapted, with clear strategic goals in mind.Footnote 110
The range of efforts discussed feeds into a growing awareness of the implicit and explicit biases of IHL. They provide a further dimension to the basic questions about IHL: in addition to asking where the law fails or succeeds, they put in question what it has excluded and obscured.Footnote 111 They lead to an increased consciousness of how the discourse on IHL is shaped by power relations and how that needs to be taken into account when envisaging future developments of the law and applying it for the benefit of those affected by armed conflict.
Discursive threads resulting from the new perspectives on IHL
The new perspectives on IHL look at the issues raised from different angles, making observations based on premises that vary greatly. In this way, they do not form a unified picture but in combination allow for more depth in our perception of certain questions. There are common discursive threads that emerge, some of which will be discussed below.
Disaggregation
Invariably, looking at the impact of IHL from a range of perspectives not only provides answers but also leads to new and more specific questions. In this respect, the analysis of the law follows in the footsteps of conflict research that has been going through a similar process. For this field, Kalyvas notes:
Empirical and theoretical disaggregation has led us to a point where we are able to ask more clearly defined questions about the dynamics of conflict and to use more appropriate techniques to address them. For example, we have moved away from largely sterile debates about the primordial versus constructed nature of ethnic identities, or the greedy versus aggrieved motivations of rebel actors. Instead, we are moving toward formulating research questions that investigate the precise ways in which ethnicity is configured as political action and explore how exactly motivations interact with context.Footnote 112
Ways of further investigating the extremely complex phenomenon that is armed conflict are seen in disaggregating it with regards to space, sequencing, and actors involved in the process, and in questioning the dichotomy between violence and non-violence.Footnote 113 In looking closer at IHL and its effects, all of these forms of refined analysis equally promise to expand on our current understanding.Footnote 114
As discussed, examining the actors of armed conflict is part of several current approaches. The game theoretical and institutional analysis of IHL point to the importance of different levels of strategic competition and differing strategic interests within States.Footnote 115 Recent discussions of the law also highlight the importance of actors other than States. Engaging non-State actors has been called “the new frontier for international humanitarian law”.Footnote 116 There is a tendency to “conceptualize non-state political factions involved in armed conflict as monolithic actors akin to States writ small”.Footnote 117 However, adopting a less State-centred view has made discussions more likely to take into account issues regarding the particular structure and dynamics of non-State groups, as pointed out by recent conflict research in this area.
Another important area of disaggregation lies in the dynamics of behaviour in armed conflict over time. Kalyvas calls war a transformative phenomenon and points out that “[c]ollective and individual preferences, strategies, values, and identities are continuously shaped and reshaped in the course of a war”.Footnote 118 Recent empirical work confirms this with regard to the killing of civilians in international armed conflict.Footnote 119 Compliance with the law is not a static phenomenon. This insight is not new, but it is surprising how little it has informed discussions about the impact of IHL so far.
These considerations tie in with practical approaches to IHL. The ICRC is currently updating its study on “The Roots of Behaviour in War”, which looks at what leads combatants to comply or not to comply with legal norms.Footnote 120 The study and its update highlight the importance of taking a differentiated look at the issue if the aim is to draw lessons for putting the norms of IHL to use. The wealth of experience that the ICRC has gathered in interacting with armed actors during conflict makes it hard to uphold blanket assumptions about their behaviour.Footnote 121 Instead, the current efforts towards more effective work with regard to compliance with IHL seem to focus on the law's impact on a local level, within different organizational structures and taking into account the transformative nature of armed conflict.Footnote 122
Great expectations
What questions are asked about IHL, and the way in which they are asked, is influenced by what the law is expected to do. Given IHL's stated aim to “prevent or mitigate suffering and, in some cases, to rescue life from the savagery of battle”,Footnote 123 these expectations tend to be considerable. Also, they tend to neglect the specific nature of international law and IHL in particular. In the middle of the last century, Hersch Lauterpacht famously described international law as being at the vanishing point of the law, and the law of war as being at the vanishing point of international law.Footnote 124 Notwithstanding the development of international law and its institutions since, this description is still relevant today.
There is still a general tendency “to look at international society through the prism of domestic legal systems and to find international law under-developed or wanting”.Footnote 125 With specific regard to IHL, Kennedy notes:
Discussions about international law and war usually unfold as if the participants were imagining an international law which would be able to substitute itself for sovereign power in a top-down fashion, first to distinguish legal from illegal violence and then, perhaps not today but eventually, or perhaps not directly but indirectly, to bring that distinction to bear in the life of sovereigns, extinguishing sovereign authority for war at the point it crosses a legal limit.Footnote 126
The automatic association of national law enforcement mechanisms with the terms “law” and “crimes” can be problematic at the international level. While individuals can be prosecuted for violations of IHL domestically and in some cases internationally, the same does not go for States. To put it simply, one cannot call the police on States that violate IHL rules. The expectation that this should be possible inevitably leads to frustration in the current environment.Footnote 127
The hollowness of imagining a monopoly of force to create and enforce rules in relation to armed conflict has been widely discussed.Footnote 128 In theory, the differences from domestic law are well understood and acknowledged.Footnote 129 Practically, though, the thinking in domestic legal concepts and the expectations that go with it are commonplace.
On 3 October 2015, a US aircraft opened fire on the Médecins Sans Frontières (MSF) trauma hospital in Kunduz, Afghanistan. According to the US Department of Defense, the airplane mistook the hospital for the intended target and fired its heavy guns on the medical facility, despite frantic calls from MSF to military commanders.Footnote 130 The attack killed forty-two people, including patients and medical personnel, and wounded dozens more.Footnote 131 In the aftermath of the events, the United States launched an internal investigation that resulted in administrative sanctions for sixteen military personnel. MSF, understandably dissatisfied with this outcome, demanded a separate investigation by the International Humanitarian Fact Finding Commission. Given the Commission's jurisdiction, this demand will most likely remain unanswered.Footnote 132 However, it illustrates the yearning for an independent body that distinguishes legal from illegal behaviour and metes out justice accordingly.Footnote 133 It shows how much the expectations towards IHL and its effects are modelled on what is expected from a functioning domestic legal order.
Moving images
In the opening scene of American Sniper, a film directed by Clint Eastwood and based on a soldier's account of his experience in Iraq until 2009, a US sharpshooter is faced with a difficult decision. Through the gunsight of his rifle he sees a woman and a child carrying explosives, approaching a US patrol. While he is considering firing at the woman and child, another soldier present at the scene bluntly tells him, “They'll fry you if you are wrong”, referring to the US military prosecutors. Without mistaking the movie for the reality on the ground, it is telling that the potential for criminal prosecution for breaches of IHLFootnote 134 is portrayed in a Hollywood film as part of the heavy burden the hero has to bear.
For one, it points to the impact of the law through implementation in procedures and training. In a number of armed forces, “IHL has been transformed from an ‘external’ constraint on military action to an intrinsic facet of the military's own operational code”.Footnote 135 Practitioners themselves have noted the substantial recent increase in the role of IHL in US target decision-making processes.Footnote 136 Legal advisers embedded in front-line units and who are involved in operational decisions are now common in the US, British, other NATO and Israeli armed forces.Footnote 137 More generally speaking, for armed forces of this type the “institutional pathways by which war is made have been carved in law”.Footnote 138 Given the current technological possibilities, soldiers and commanders must reckon with the knowledge that their battlefield decisions are subject to painstaking re-evaluation by their chain of command, by their opponents, by their families and also by themselves.Footnote 139
The American Sniper example also shows the enormous development IHL has gone through and the impact it has on how armed conflict is thought and talked about. “War is cruelty and you cannot refine it”, wrote William T. Sherman, general for the Union Army during the American Civil War. With this statement he was justifying his decision to adopt scorched-earth tactics, to evict the inhabitants of Atlanta and burn a large part of the city after it was captured.Footnote 140 Imagine how Sherman would have to frame such a justification in today's context. Compare it to the language used by US generals after the recent incident in Kunduz.Footnote 141
IHL not only stipulates a set of norms but also provides terminology with which to discuss armed conflict. The use of the concept of distinction between combatants and civilians by both the United States and the Taliban in recent years offers an example of how actors on opposite ends of the spectrum disagree in a shared jargon.Footnote 142 Kennedy notes that “even enemies who stigmatize one another as not sharing in civilization nevertheless find themselves using a common vocabulary to dispute the appropriateness of military ends and means”.Footnote 143 In this sense, IHL plays a role as a communication tool.Footnote 144 Kennedy goes on to argue: “We should come to see law … not as the articulation of rights or restraints, but as a more subtle and dispersed practice through which people struggle with one another through articulation and action.”Footnote 145
More often than not, the law is referred to in quests for legitimacy rather than for legal measures.Footnote 146 This is not a new phenomenon. The tactic of complying with IHL and communicating this strategically to gain legitimacy was used by postcolonial movements, for example.Footnote 147 As early as 1914, the British military manual observed that “it is in the interest of a belligerent to prevent his opponent having any justifiable occasion for complaint, because no Power, and especially no Power engaged in a national war, can afford to be wholly regardless of the public opinion of the world”.Footnote 148 The importance of IHL as a tool of strategic communication has become crucial, however, with the advent of today's communication technologies. They provide the stakeholders of armed conflict with the dramatic ability to reach global audiences in near real time and with minimal effort.Footnote 149
Blind spots
The different perspectives on IHL allow for an awareness of blind spots, of biases in the way it is usually perceived. One of these blind spots concerns the selective public perception of violations of the law versus its preventive impact. As Helen Durham of the ICRC notes:
The media and humanitarian agencies often only publicise breaches of the law, not the many instances in which it is respected and applied: every time a child is vaccinated in a conflict area, an army stops an attack because of the potential for civilian casualties, or a detainee is protected from torture.Footnote 150
Similarly, weapons treaties such as the Chemical Weapons ConventionFootnote 151 and the Ottawa Treaty banning landminesFootnote 152 have had a significant impact on the use of these weapons. What draws attention, however, are instances in which these treaties are not respected. What drives this selective perception? As a start, the preventive impact of IHL is difficult to ascertain.Footnote 153 How do you go about determining what violations would have taken place in the absence of the law?Footnote 154 More importantly, compliance with the law lacks the shock value of videos showing wounded children after an indiscriminate attack. Someone stuck to the rules? That is not exactly front page material. Publicizing alleged violations is a powerful tool as part of political campaigns that serve strategic interests; again, communicating the absence of violations will be more difficult and likely less effective in achieving such goals. Additionally, even humanitarian actors will often have an interest in painting a sombre picture to attract attention and funding to their cause. The sheer flood of imagery of blood and gore with which we are confronted on all channels makes it tempting to dismiss the impact of IHL from the outset.
A blind spot of a different nature concerns those who deal with the law from an institutional point of view. The discourse on IHL is dominated by people who have the privilege of sophisticated university education and of living in contexts of relative peace and security. For the most part, those who publish texts like the present one live in societies in which armed violence is a rare exception. In this environment, a functioning monopoly of force provides levels of security that make people perceive armed violence as an anomaly. Baberowski argues that this “belief that violence is deviant behaviour helps people in peaceful societies to imagine their reality as a space in which the argument triumphs over the fist”.Footnote 155 This is a comforting idea, especially for lawyers, but it makes it hard to imagine violence as the powerful resource, the viable option for pursuing one's goals, that it becomes under different circumstances.Footnote 156 It makes it hard to imagine situations in which armed violence is the dominating factor in people's lives – a force that affects everyone and that fundamentally alters all social relations.Footnote 157
This divide affects how IHL is approached. Kennedy notes that it is easy to mistake our ability to articulate the law for an actual capability to restrain the power and violence of war.Footnote 158 To roughly paraphrase Saul Bellow's “Herzog”: people who spend their lives in humane studies imagine that once cruelty is described in books, it is ended.Footnote 159 This is a caricature, of course, but it points towards the tendency to confound formal representation of law with successful law-making and effective engagement.Footnote 160
Conclusion
In the end, what has law got to do with it? Given the complexity of the subject, it comes as no surprise that blanket answers do not satisfy those looking for more than simply to confirm their initial ideological leanings. The new approaches described in this article allow us to ask more pertinent questions that might allow for a wider and more detailed understanding of IHL's central issues. These questions are far from answered and will remain so along with the changing nature of armed conflict. Questions regarding the purpose, effects and limits of IHL need to be asked continuously, especially if we are looking at the law with the aim of putting it to use for the protection of civilians. Any answers that come in the form of simple declarations should be met with the suspicion they deserve.
Tina Turner's “What's Love Got to Do with It?” betrays the anger of someone whose heart has been broken, and likewise, some who ask the tough questions about IHL might be those who are in it with their heart. They might be the ones who feel strongly about the suffering of people affected by armed conflict and are frustrated by how little is achieved in trying to stop it. In this sense, dropping the rose-tinted glasses and acknowledging that IHL might at the same time be more and less than we want it to be is an important first step. Taking a good hard look at one's own imperfections would not hurt, either. Then the pain needs to be turned into forward movement instead of bitterness. That is the Tina Turner thing to do.
