13 Aug Emerging Voices: Is Dissemination Sufficient to Promote Compliance with International Humanitarian Law?
[Elizabeth Stubbins Bates is a PhD candidate in Law at SOAS, University of London.]
States must disseminate international humanitarian law (IHL) as widely as possible, and integrate it into programmes of military instruction. These obligations exist in international and non-international armed conflict (with differences between treaty and customary international law for the latter) and are among the few IHL duties on states in peace-time. International humanitarian law typically applies only during armed conflict or belligerent occupation.
This post tackles the assumption that simply disseminating or teaching IHL is sufficient to promote compliance with the law; and explores the distinction between the obligation merely to disseminate IHL (including to the civilian population) and the obligation to train troops in that law. This distinction has stark relevance for the US’ reliance on civilian CIA drone operators, whose knowledge of IHL has not been openly assessed, and whose training programmes in IHL (if any) have not been disclosed. When official statements on the IHL applicable to drone strikes contain elisions, it is US policy rather than IHL which is disseminated to the civilian population. While it is appropriate to be sceptical that dissemination is sufficient to promote compliance with IHL, confused dissemination of IHL may promote non-compliance.
Dissemination and training are assumed to promote compliance and prevent violations. The ICRC Commentary finds a link between dissemination and training on the one hand, and states’ broader obligation to ‘respect and ensure respect’ for IHL ‘in all circumstances’ on the other. Training as a mechanism to prevent violations (in effect assuming that more knowledge of law equals fewer violations of that law) also appears outside IHL: in Art 10 of the Convention against Torture, and as a guarantee of non-repetition in the Basic Principles and Guidelines on the Right to a Remedy and Reparation. As violations in armed conflict may be caused by sheer disregard of known law, by revenge, desensitisation, ‘othering’, an absence of empathy, or unlawful orders, it is appropriate to be sceptical that dissemination and training in IHL is sufficient to promote compliance.
While the necessity of disseminating IHL and training troops in the law is rarely questioned, its sufficiency is under-explored. Treaty texts give little guidance on how states should disseminate IHL and integrate it into military training, so state practice is apt to vary, with no guarantees that the dissemination and training will promote compliance. Scholarship on IHL dissemination and training is less developed than equivalent research on military ethics and psychology, and the analogous field (outside the military context) of human rights education (HRE). The literature suggests that ethics training should be an integral part of military instruction (Lovell); IHL training requires attitudinal change to be effective (Save the Children Sweden), so that the norms are internalised as ‘second nature’ (South Africa’s Law of Armed Conflict Manual); and barracks culture may influence or impede training (Lloyd Roberts). Flexibility is considered important: as to the moral/political background of ‘the individual to be convinced’ (Sassòli), to their rank, and to the deployment situations they are likely to face (Kuper). The interpretation of IHL norms, the educational background of soldiers and officers, and operational realities (such as the fluidity between armed conflict and law enforcement situations in Krulak’s ‘three-block war’) might all influence military training in IHL, and each of these should be theoretically and empirically studied.
Over the past two decades, the ICRC has gradually shifted its IHL assistance to armed forces and armed groups, from dissemination of the law (known internally as PREDIS) to an emphasis on ‘integration’ (PREIMP). In the ICRC’s theory, integration is a ‘continuous process’, in which IHL becomes relevant to ‘doctrine, training, education, equipment and sanctions’ (ICRC, Violence and the Use of Force, 2011). Integration requires the prior interpretation of the law, an understanding of its operational consequences, and the adoption of ‘concrete measures…to permit for compliance during operations.’ Integration recognises that the mere dissemination of IHL to armed forces and armed groups is insufficient for compliance, and the ICRC acknowledges explicitly that ‘the mere teaching of legal norms will not result, in itself, in a change in attitude or behaviour’. Conscious reflection is needed on how training in IHL can be embedded in a broader barracks culture of military ethics, leadership and the social psychology of armed conflict, to take account of the knowledge in these areas and allow that knowledge to improve the delivery of IHL training.
Whatever the promise of the ICRC’s ‘integration’ approach and its transition from simple dissemination of IHL to a more comprehensive model of military training, there is a difference in application and extent between the obligation to ‘disseminate’ IHL ‘including to the civilian population’, and the obligation to train troops in that law. This distinction is most troubling in the context of CIA civilian drone operators. Civilians, including government legal advisers and drone operators, are not required by treaty to receive formal instruction in IHL. Civilians receive (at most) society-wide dissemination of IHL, often assisted by National Red Cross and Red Crescent Societies. The obligation on states is to disseminate IHL ‘as widely as possible’, not to check the effectiveness of their dissemination programmes. While good faith efforts to disseminate IHL are made worldwide, a Gallup survey in 2008 revealed that one-third of an international sample of civilian respondents had not even heard of the Four Geneva Conventions of 1949.
There have been no disclosures as to the content, duration, or frequency of IHL instruction received by civilian drone operators. NGO testimony to the Senate Judiciary Committee on the Constitution, Civil Rights and Human Rights called for details of training to be given. In the absence of such disclosure, questions shift to the IHL norms and US policies that govern CIA drone operations, and which might be disseminated to civilian drone operators.
Statements on international law and US drone strikes by President Obama, Secretary of State Kerry and former State Department Legal Adviser Harold Koh give assurances as to a policy to minimise civilian casualties, but also reveal elisions or paraphrases as to applicable law. If civilian drone operators are trained in IHL, then how might their understanding be influenced by this lack of clarity?
After Hamdan, it is accepted that Common Article 3 of the Four Geneva Conventions 1949 applies to those detained or hors de combat in the US’ counter-terrorism actions. This does not cover targeting law, which is fully developed in Additional Protocol I (applicable in international armed conflicts, so not applicable to transborder drone strikes on non-state actors) and to a lesser extent in Additional Protocol II (applicable to non-international armed conflicts, given certain prerequisites). The US is not a state party to these Protocols. The former Department of State Legal Adviser Harold Koh stated on the record that the US ‘supports’ much of Additional Protocol I, which the Obama Administration forwarded to the Senate for approval and eventual ratification. Yet this ‘support’ does not amount to opinio juris, or an acceptance that the US thinks the targeting norms in Additional Protocol I binding as customary international law. In the same event, Harold Koh reiterated US’ opinio juris that Article 75 of Additional Protocol I is considered customary IHL by the US. As this relates to guarantees for those detained in an international armed conflict, it gives no guidance on the precise targeting norms considered binding by the US, on which CIA drone operators might receive training. No statements were made as to whether Additional Protocol II’s targeting norms are considered customary. Where only Common Article 3 and Article 75 of Additional Protocol I are specified, there is a gap in the US’ statements as to the law applicable to drone operations. This gap is filled not by legal literacy as to IHL provisions, but by policy statements.
Scholars have addressed state practice on drone strikes from the perspective of the international law on the use of force, IHL and international criminal law. One recent article by Kevin Jon Heller has particular relevance for IHL dissemination and training. Heller argues that a drone operator might honestly but mistakenly believe that it is lawful to target a ‘”military aged male in an area of known terrorist activity”’: one alleged targeting standard for signature strikes. A mistake of this nature could be what Heller terms ‘a mistake of legal element’, potentially exculpatory even before the International Criminal Court. Yet other mistakes of law or of targeting would not excuse a civilian drone operator from individual criminal responsibility, jurisdictional questions notwithstanding.
Where official statements on drone strikes fail clearly to set out applicable targeting law, the state fails in its duty to disseminate international humanitarian law. While it is appropriate to be sceptical that dissemination of IHL promotes compliance with the law, confused dissemination of IHL could promote non-compliance.