IHL’s Era of Application?

by Duncan Hollis

Today marks the 150th Anniversary of the signing of the first Geneva Convention — the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.  12 States signed it on August 22, 1864, and the treaty went on to have 57 parties before being replaced by later Geneva Conventions in 1906, 1929 and 1949.  The ICRC is using the occasion to make a call for more action on international humanitarian law and to spread knowledge about that law more generally (including a 4 minute video on the Rules of War in a Nutshell).  

It’s interesting to think about the full arc of IHL that this anniversary represents. It seems we’ve gone from decades of iteration — where States and others worked to hammer out what rules actually exist — to what is now much more an era of application.  Today’s IHL debates (many of which we’ve hosted here in recent weeks) regularly revolve around where, when and how specific rules apply to particular cases.  Or, they debate which rules exist only in treaty form versus those that have the status of customary international law.  Even in areas of new technology, the prevailing effort is to explain how existing rules govern by analogy (see, e.g., the Tallinn Manual).  These are all important and even laudatory causes.  But it does leave me with a question:  Is the corpus of IHL now largely complete, or should we expect another round of law generation akin to the Geneva Convention projects of 150 and 75 years ago?  Simply put, is there any new IHL to be made, and, if so, what should it be?   


One Response

  1. Duncan,

    I think IHL is still being made in some respects, particularly in its field of application. It seems we have reached somewhat of a stalemate regarding substantive IHL norms, though their proper interpretation and the status/privileges/immunities to be afforded non-state fighters is still contested. I expect substantive changes in the future to be incremental, and would include the current autonomous weapons debates as potential incremental change regarding the necessary human involvement in initiating armed attacks. Field of application has always been a very dynamic area of IHL.

    IHL developments in the 19th, 20th and the early 21st Centuries did not only occur in the substance of IHL rules but also in the rules regulating their field of application. The law of war was one of “civilized” nations, applicable between only those who observed it. The 1899 and 1907 Hague Conventions continued this theme in that they had general participation clauses stating that the treaties and their regulations did not technically apply unless all parties to the conflict were parties to the treaties. Regarding non-international armed conflict, by custom or at least common understanding, the law of war also applied only to belligerencies, not insurgencies. States were loathe to actually recognize many non-state actors as belligerents, the U.S. Civil War being one of a few exceptions.

    The Geneva Conventions of 1949 allowed for application between parties thereto even if other parties to the conflict were not parties to the GCs. They encouraged “respect” for the conventions “in all other circumstances” and adopted a bare bones mini-convention for “armed conflicts not of an international character” in the form of Common Article 3. Protocol I of the 1977 protocols to the GCs of 1949 attempted to include certain species or forms of non-international armed conflict in the category of international armed conflicts governed by the entire 1949 GCs (as opposed to only Common Article 3 of those conventions). By comparison, Protocol II was very limited not only in its scope of application but also in the number of substantive rules states would agree to adopt.

    Tadic marked somewhat of a turning point in the “unification” of the substantive rules of international and non-international armed conflict by finding that the rules were substantially similar. The Rome Statute of the International Criminal Court (adopted 1998) included a host of punishable IHL violations in non-international armed conflict that, thereto-for, had no basis is any treaty and only what one might call a conflicted-at-best basis in custom. It was almost a return to the early law of war era, where the same law applied to international and certain non-international armed conflicts. The extent to which the belligerency/insurgency distinction mattered was and still is unclear, having been replaced by organization, intensity and duration criteria for non-international armed conflict. The ICRC has, through its customary IHL study, endorsed the view that the substantive rules governing both international and non-international armed conflicts are nearly identical.

    Post-9/11 the debate was whether there needed to be a new IHL for “transnational armed conflict.” The Bush administration claimed that transnational armed conflict was outside the scope of any conventional or customary IHL (or at least any that restrained its discretion). The Supreme Court found that the conflict with Al-Qaeda in Afghanistan was a non-international armed conflict. The debate seems to have been only somewhat resolved. When transnational violence between state and non-state armed groups meets the organization, intensity and duration criteria, most agree that the bulk of IHL applies.

    Disagreement remains, however, regarding exactly WHERE it applies, and WHAT body of law governs actual and impending transnational violence by non-state actors BEFORE the organization, intensity and duration criteria are met. That, to me, seems to be most dynamic area of IHL going forward (and the largest issue surrounding the Tallinn Manual). U.S. policy statements endorse the view that IHL governs acts of national self-defense against extraterritorial non-state actors who pose an “imminent” and “continuing” threat. Others claim human rights law governs even though the U.S. claims it doesn’t apply extraterritorially. How that difference of opinion is ultimately resolved has tremendous practical consequences for states and non-state actors alike.

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