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The unilateralization of international humanitarian law

Published online by Cambridge University Press:  07 September 2022

Jann K. Kleffner
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Abstract

Traditionally, international humanitarian law (IHL) is conceptualized as a body of mutually binding, horizontal international legal rules that are agreed upon by States and that govern the relationships between parties to armed conflicts. Yet, there is discernible evidence that contemporary IHL – and the broader normative environment that pertains to the regulation of armed conflicts in which it is situated – is incorporating elements of unilateralization, manifested in legal and non-legal norms that regulate armed conflicts taking the form of commitments whose validity is not dependent on being reciprocated. This article examines some of the systemic implications of unilateralization of IHL and considers its pitfalls and potential.

Keywords

development of international humanitarian lawunilateral normsreciprocitybelligerent equality
Type
Research Article
Information
International Review of the Red Cross , Volume 104 , Issue 920-921: How International Humanitarian Law Develops , August 2022 , pp. 2153 - 2169
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC.

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References

1 See, generally, Kleffner, Jann K., “Sources of the Law of Armed Conflict”, in Liivoja, Rain and McCormack, Tim (eds), Routledge Handbook of the Law of Armed Conflict, Routledge, Abingdon, 2016Google Scholar.

2 See generally, International Law Commission, “Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations”, text adopted by the International Law Commission at its Fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission's report covering the work of that session (A/61/10). Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 267, at para. 43.

3 See, for example, International Committee of the Red Cross (ICRC), Commentary on the First Geneva Convention, Geneva, December 2016, p. 288, at Section 857; Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, pp. 109–10Google Scholar and 118–24, noting that “each commitment will have to be assessed on its own terms” while suggesting that “[m]any such declarations should also be considered binding as a matter of law”.

4 For further discussion of the distinction between legal and non-legal norms, see Bothe, Michael, “Legal and Non-Legal Norms – A Meaningful Distinction in International Relations?”, Netherlands Yearbook of International Law, Vol. 11, 1980CrossRefGoogle Scholar; Dijk, Pieter van, “Normative Force and Effectiveness of International Norms”, German Yearbook of International Law, Vol. 30, 1987Google Scholar.

5 See, for example, S. Sivakumaran, above note 3, pp. 113–14.

6 Ibid.

7 Ibid.

8 Ibid., pp. 118–22.

9 See, generally, Geneva Call, available at: www.genevacall.org (all internet references were accessed in August 2022).

10 ICRC, above note 3, p. 288, at Section 857.

11 ICRC, above note 3, p. 180, at Section 507. For a discussion, see Kleffner, Jann K., “The Applicability of International Humanitarian Law to Organized Armed Groups”, International Review of the Red Cross, Vol. 93, No. 882, 2011CrossRefGoogle Scholar.

12 S. Sivakumaran, above note 3, pp. 113–14 and 109–10.

13 US DoD, Law of War Manual, Washington, DC, June 2015 (updated December 2016), available at: https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190.

14 Administration of Barack Obama, “Executive Order 13732 – United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force”, Federal Register, Vol. 81, 1 July 2016, available at: www.govinfo.gov/content/pkg/DCPD-201600443/pdf/DCPD-201600443.pdf.

15 See DoD Directive 2311.01E, DoD Law of War Program (May 9, 2006, Certified Current as of Feb. 22, 2011); DoD Directive 5100.77, DoD Program for the Implementation of the Law of War (Nov. 5, 1974).

16 See US DoD, Law of War Manual, above note 13, pp. 337–9, at Section 6.2.

17 See ibid., references on p. 171, at Section 4.24.

18 Ibid., pp. 33–4.

19 Ibid., pp. 36 and 70–1.

20 For example, as far as the treatment of unprivileged belligerents is concerned, ibid., p. 161; and as far as restrictive and protective standards in the conduct of hostilities are concerned, p. 186.

21 At times, some of these instruments also play a role in ensuring coalition coherence, where one coalition partner makes a non-legal unilateral normative commitment that aligns with the legal obligations of another coalition partner. See Dale Stephens and Eve Massingham, “Military Partners and the Obligation to ‘Ensure Respect’ for IHL”, Articles of War, 18 November 2021, available at: https://lieber.westpoint.edu/military-partners-obligation-ensure-respect/?ct=t(EMAIL_CAMPAIGN_Biometrics_10_21_2020_COPY_01).

22 As alluded to, the US DoD Law of War Manual, above note 13, is a notable exception.

23 See, for example, UK Ministry of Defence, The Joint Service Manual of The Law of Armed Conflict, Joint Service Publication 383, 2004, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/27874/JSP3832004Edition.pdf. Explaining the nature of rules of engagement at p. 53, at Section 5.2:

The law of armed conflict must not be confused with rules of engagement (ROE). The latter are “directions for operational commands that set out the circumstances and limitations under which armed force may be applied by United Kingdom forces to achieve military objectives for the furtherance of United Kingdom government policy”.

24 See US DoD, Law of War Manual, above note 13, pp. 401–2, at Sections 6.12.13 and 6.12.14.

25 Ibid., p. 71, at Section 3.1.1.1: “Reasons for Acting Consistent With a Treaty Rule, Even Though the Treaty Does Not Apply”.

26 See US DoD, Law of War Manual, above note 13, p. 402, at Section 6.12.14: “prohibitions do not reflect customary international law”.

27 US DoD, Law of War Manual, above note 13, p. 71, at Section 3.1.1.1: “Reasons for Acting Consistent With a Treaty Rule, Even Though the Treaty Does Not Apply”. In the second paragraph of this section:

In addition, it may be important to act consistently with the terms of the treaty because the treaty represents “modern international public opinion” as to how military operations should be conducted. Other policy considerations, including efficacious training standards or close relations with coalition partners, may lead to a policy decision that DoD practice should be consistent with a particular law of war treaty rule, even if that rule does not apply to U.S. forces as a matter of law.

28 UK Ministry of Defence, above note 23, Section 7.30.

29 In the field of IHL, the fate of the IHL Compliance mechanism proposed by the ICRC and Switzerland is illustrative in that regard; see Yvette Zegenhagen and Michael Meyer, “Improving Compliance with IHL: A Long-Term Enterprise”, Articles of War, 22 November 2021, available at: https://lieber.westpoint.edu/improving-compliance-ihl-long-term-enterprise/?ct=t(EMAIL_CAMPAIGN_Biometrics_10_21_2020_COPY_01); Helen Durham, “Strengthening Compliance with IHL: Disappointment and Hope”, ICRC Humanitarian Law & Policy Blog, 14 December 2018, available at: https://blogs.icrc.org/law-and-policy/2018/12/14/strengthening-compliance-with-ihl-disappointment-and-hope/.

30 Lauterpacht, H., “The Limits of the Operation of the Law of War”, British Year Book of International Law, Vol. 30, 1953, p. 212Google Scholar.

31 See Bruno Simma, “Reciprocity”, in Anne Peters (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, 2008, paras 3–6.

32 Ibid., para. 6.

33 See also the discussion of unilateralization's context of delegalization above.

34 See, for example, US DoD, Law of War Manual, above note 13, Section 18.7.2.3 which notes, in the context of unilateral commitments that set higher standards as a matter of policy than what IHL requires, that failures to adhere to such more restrictive standards may be punishable under the Uniform Code of Military Justice, but “would not necessarily be violations of the law of war”.

35 See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 140, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

36 ICRC, The Roots of Behaviour in War: Understanding and Preventing IHL Violations, Geneva, 2004, pp. 9 and 13.

37 For a discussion of belligerent equality in the specific context of NIACs, see the debate between Marco Sassòli, Yuval Shany and René Provost on whether or not the dogma should be abandoned or modified. Sassòli, Marco and Shany, Yuval, “Should the Obligations of States and Armed Groups Under International Humanitarian Law Really be Equal?”, International Review of the Red Cross, Vol. 93, No. 882, 2011CrossRefGoogle Scholar; Sassòli, Marco, “Introducing a Sliding-Scale of Obligations to Address the Fundamental Inequality Between Armed Groups and States?”, International Review of the Red Cross, Vol. 93, No. 882, 2011Google Scholar; Shany, Yuval, “A Rebuttal to Marco Sassòli”, International Review of the Red Cross, Vol. 93, No. 882, 2011Google Scholar; Provost, René, “The Move to Substantive Equality in International Humanitarian Law: A Rejoinder to Marco Sassòli and Yuval Shany”, International Review of the Red Cross, Vol. 93, No. 882, 2011Google Scholar.

38 On such cases of overlapping unilateral commitments, see René Provost, “Asymmetrical Reciprocity and Compliance with the Laws of War”, in Benjamin Perrin (ed.), Modern Warfare: Armed Groups, Private Militaries, Humanitarian Organizations, and the Law, UBC Press, Vancouver, 2012, p. 35.

39 In this vein, see also, R. Provost, ibid.

40 Hyeron Jo, Compliant Rebels: Rebel Groups and International Law in World Politics, Cambridge University Press, Cambridge, 2015, pp. 60–3 and 65–70.

41 Dale Stephens, “Behaviour in War: The Place of Law, Moral Inquiry and Self-Identity”, International Review of the Red Cross, Vol. 96, No. 895/896, 2015.

42 Geoffrey S. Corn, “Contemplating the True Nature of the Notion of ‘Responsibility’ in Responsible Command”, International Review of the Red Cross, Vol. 96, No. 895/896, 2015.

43 See United States Memorandum from President George W. Bush regarding humane treatment of Taliban and al Qaeda detainees of 7 February 2002, in ICRC, “United States of America, Practice Relating to Rule 87. Humane Treatment”, National Legislation section, para. 3, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v2_cou_us_rule87:

Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

44 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, paras 90–101, available at: www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf.

45 See, for an account of Israel's position and criticism among others, Ardi Imseis, “On the Fourth Geneva Convention and the Occupied Palestinian Territory”, Harvard International Law Journal, Vol. 44, 2003, pp. 92–100.

46 See US DoD, Law of War Manual, above note 13, Section 5.2.3.

47 Ibid., Section 5.2.3.1.

48 See ibid., Section 5.2.3.2; and see ICRC Customary Law Study, p. 54, with references to relevant State practice; Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2010, p. 139; William H. Boothby, The Law of Targeting, Oxford University Press, Oxford, 2012, pp. 121–2.

49 US DoD, Law of War Manual, above note 13, Section 5.2.3.3: “The Taking of Precautions and Law, Policy, and Practice” (emphasis added).

50 Ibid.

51 See, for example, the US response to the ICRC Customary Law Study: John B. Bellinger, III and William J. Haynes, II, “A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law”, International Review of the Red Cross, Vol. 89, No. 866, 2007.

52 For such a call, see Michael N. Schmitt and Sean Watts, “State Opinio Juris and International Humanitarian Law Pluralism”, International Law Studies, Vol. 91, 2015.

53 For discussion, see J. K. Kleffner, above note 11.

54 For the Deed of Commitment reaffirming the absolute prohibition of crimes of sexual violence, launched in 2012, see Geneva Call, “Deed of Commitment under Geneva Call for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender Discrimination”, available at: www.genevacall.org/wp-content/uploads/2020/09/DoC-Prohibiting-sexual-violence-and-gender-discrimination.pdf.

55 S. Sivakumaran, above note 3, pp. 243–6 (more onerous obligations accepted by non-State organized armed groups in Deeds of Commitments on anti-personnel mines in cases where the States against which they are fighting are not party to the Ottawa Convention).

56 Marco Sassòli, “Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law”, Journal of International Humanitarian Legal Studies, Vol. 1, No. 1, 2010.

57 See, amongst others, Kress, Claus, “Towards Further Developing the Law of Non-International Armed Conflict: A Proposal for a Jus in Bello Interno and a New Jus Contra Bellum Internum”, International Review of the Red Cross, Vol. 96, No. 893, 2014Google Scholar, with further references to other suggestions along similar lines at footnotes 36–8; see also Geoffrey S. Corn, “Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-State Actors?”, Stanford Law & Policy Review, Vol. 22, No. 1, 2011, available at: https://law.stanford.edu/wp-content/uploads/2018/03/corn.pdf.

58 See, for example, Frédéric Mégret, “Response to Claus Kreß: Leveraging the Privilege of Belligerency in Non-International Armed Conflict Towards Respect for the Jus in Bello”, International Review of the Red Cross, Vol. 96, 2014.

59 For such scepticism and nuance, see, for example, Adam Roberts, “The Principle of Equal Application of the Laws of War”, in David Rodin and Henry Shue (eds), Just and Unjust Soldiers: The Legal and Moral Status of Soldiers and Civilians in War, Oxford University Press, Oxford, 2007, p. 229. Sassòli refers to the concept of belligerent equality in NIACs as a “fiction”: Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, Cheltenham, 2019, p. 51, at Section 4.44. In his view, it should be abandoned. See Marco Sassòli, above note 37.

60 M. Sassòli, above note 37.

61 R. Provost, above note 37, pp. 440–1; R. Provost, above note 38.

62 R. Provost, above note 37, p. 441.

63 Y. Shany, above note 37, p. 433.

64 Y. Shany, ibid. See, on that pull, or lack thereof, and the need to contextualize it, the above section “Reciprocity and belligerent equality”.

65 On some of these responses, see other contributions in this issue of the Review, for example, Shereshevsky, Yahli, “International Humanitarian Law-Making and New Military Technologies”, International Review of the Red Cross, Vol. 104, 2022Google Scholar; Lijnzaad, Liesbeth, “Going for a Test Drive? Some Observations on Expert Manuals in the Laws of Armed Conflict”, International Review of the Red Cross, Vol. 104, 2022Google Scholar; and Pauline Charlotte Janssens and Jan Wouters, “Informal International Law-Making: A Way Around the Deadlock of International Humanitarian Law?”, International Review of the Red Cross, Vol. 104, 2022. Also see “‘Political Declaration’ Regarding Explosive Weapons in Densely Populated Areas: Interview with Eirini Giorgiou”, International Review of the Red Cross, Vol. 104, 2022.