08 Oct Training Armed Forces in IHL: Just a Matter of Law?
[Altea Rossi is Programme Officer with the Security and Law Programme at the Geneva Centre for Security Policy (GCSP) and serves as Deputy Member to the European Commission for Democracy through Law (Venice Commission).]
As a matter of treaty and customary law, international humanitarian law (IHL) requires states to instruct their armed forces on the norms applicable to armed conflicts. To adhere to this obligation, states have established mechanisms to integrate IHL into their military training. Despite its inherently legal nature, should effective IHL training be all about the law?
Not quite. Dissemination of IHL within armed forces should rely on the common values and principles that lay at the basis of its rules. Getting to the heart of these legal provisions can ensure that the limits to violence contained within permeate armed forces’ military culture, and eventually become entrenched as part of such culture. With a value-based training, rules more easily become the ground on which individual members build their own perception of what is right and wrong during armed conflict. The practical consequence would be turning formal law into effective operational constraints, and ultimately generating compliant behaviour.
The obligation in context
IHL mandates states and parties to the conflict to instruct their armed forces on IHL, both in times of war and peace. The requirement amounts to a customary law obligation applicable in international and non-international armed conflicts. In addition, by ratifying the four 1949 Geneva Conventions, all states undertook to disseminate IHL “as widely as possible” also under treaty law, notably to include the study thereof in their programmes of military instruction (art. 47 GC I; art. 48 GC II; art. 127 GC III; art. 144 GC IV). For states which are party thereto, Additional Protocol I to the Geneva Conventions reaffirms the obligation to disseminate IHL, while Additional Protocol II extends it to non-international armed conflicts (art. 83 AP I; art. 19 AP II). IHL dissemination within armed forces is also foreseen in subject-specific international instruments applicable to armed conflicts.
This obligation has a functional nature. Dissemination is conceived of as a preventative mechanism against IHL violations. It stems from the general IHL obligation according to which states must ensure that their organs respect the obligations under the international agreements they have ratified—a reflection of the international law principle of pacta sunt servanda. Beyond legal impositions, conducting training in IHL is in states’ best interest. As violations of IHL may entail state responsibility at the international level, preventing them through training armed forces reduces the possibility for such responsibility to arise. In addition, training in the law applicable to armed conflicts allows commanders to exert control over their troops. Thus, it is not a case if the obligation to disseminate IHL has met with states’ consensus since the 1906 Geneva Convention and still enjoys broad implementation.
The obligation’s preventative function also informs its content. IHL dissemination shall entail, at the very least, making the law known to the armed forces (at 2), for knowledge of the rules is a logical precondition for compliance. Yet, if the aim of disseminating IHL is to “creat[e] an environment conducive to lawful behaviour” (at 5016) one may argue that mere knowledge of the rules—though necessary—remains insufficient. Members of the armed forces in fact need to be trained on how to operationalize IHL in practice and, most importantly, be able to uphold its rules amid the fighting.
Defining an effective dissemination approach
One may start from the observation that IHL is a simultaneously simple and complex body of international norms. On the one hand, it sets forth general principles defining its foundations. These norms reflect basic tenets of humanity, but also take in due consideration military necessity. The principle of distinction is one such example. On the other hand, IHL is also composed of administrative provisions that embody specific standards fixed at the drafting stage or developed through state practice. Although they serve to operationalize the fundamental principles, they remain detailed, technical provisions.
With respect to the latter, increased awareness of the rules would play an essential role—and may suffice—in ensuring an acceptable level of compliance (see A. Clapham et al., The 1949 Geneva Conventions: A Commentary, at 614). It would be difficult to guess the specific treatment prisoners of war (POWs) are entitled to—and comply with such standards—without studying the respective IHL rules, for instance. Furthermore, as these rules reflect technical parameters, they tend to meet less resistance in terms of their implementation.
Regarding the basic principles and rules of IHL, however, the logic is reversed. Not killing civilians, not attacking the wounded and sick, not raping or shooting “babies out of mothers’ arms”, or treating prisoners humanely, are well-known, almost obvious rules (W. R. Peers, The My Lai Inquiry, at 230). Arguably, soldiers would not need to be taught about them. Such principles have been deemed to be “fully consistent with human nature”. Hence, most individuals under normal circumstances would perceive them as the right thing to do, even without previous knowledge of IHL. More pragmatically, they are intuitive also because they reflect basic military logic. According to the principle of military necessity, contradicting behaviours would bring no effective contribution to the party’s military endeavour. However, it is exactly these fundamental principles that are regularly violated on the battlefield. The relationship between knowledge and compliance is indeed not one of direct causation. Even when soldiers know exactly what is legally expected of them, complex behavioural dynamics and external factors may influence their willingness or ability to comply with legal provisions. Most notably, fear, fatigue, frustration, anger, hunger and stress are common factors in war capable of overriding humanitarian inclinations and rational thinking.
If mere knowledge of central IHL norms might bear no effective impact on ultimate compliance, how can the mandate of IHL dissemination be fulfilled? As recent findings put it, effective military training should aim at the internalization of norms rather than the mere provision of information (see alsohere, at 805). Per its definition, such process would allow combatants to absorb the norms so that they become part of their character. Only in such a manner may lawful behaviours follow as automatic responses to battlefield circumstances. The impact on effective compliance is clear: the more the rules are truly internalized, the more the risk of interference from external deviating factors is reduced.
This cannot be achieved through a legalistic approach to training, however. While legal norms are the direct object of IHL training, a method focused on formal rules would hardly make lawful responses second nature to members of armed forces. Experience has shown that formal mechanisms of compliance, such as the threat of punishment for breaches of the law, embeds only a superficial reception of the law. As external impositions, rules and penalties attached thereto would most likely fall short of inducing compliance under the pressure of the battlefield. Already in 1994, Major Mark Martins pointed out that “methods of imparting [Rules of Engagement] relied too heavily on a legislative model of controlling behaviour. As a result, the present method suffers from a series of defects culminating in a failure to account for the cognitive limits of humans under stress” (at 2).
How to ensure the internalization of norms in practice remains an open question. In my view, the nature of the fundamental IHL principles may provide a relevant entry point. Some have argued that there exists a common heritage behind the fundamental norms of IHL, made of moral intuitions that underwrite the norms of war (at 560; see also here and here). These moral values would precede formal rules that embed them, rather than being created ex novo by such rules (here, at 578). If the aim of training should be imparting IHL principles as the right behaviour to uphold in war rather than as formal requirements, its methodology should be conceived accordingly. Concretely, this requires that instructors disseminate the rules by stressing the common moral and ethical values underlying them instead of focusing on their formal legal nature. Instructors may also resort to policy considerations to support compliance with IHL if this would help soldiers to adhere to its rules on the battlefield.
This position is corroborated by empirical research showing how informal factors may influence and restrain soldiers’ behaviours in war. Notably, these include values, assumptions and beliefs defining a “group culture”. Although informal restraints may sometimes undermine formal rules, focusing on the moral values underlying these norms may instead strengthen their legal force. The difference lies in the relationship between such informal constraints and formal norms. On one hand, group values may create friction with what formal rules prescribe, leading to non-compliant behaviours. “Mateship”, for example, may prompt responses focused on “protecting one another from the system” when a member of the group has committed unlawful acts (at 30). Instead, relying on moral and ethical values underpinning the rules would strengthen their legal nature by providing a “frame of meaning” (at 6). Notably, such methodology contributes to integrating fundamental IHL rules within the organizational military culture and identity at the group level, and imprinting such principles in soldiers’ minds and conscience at the individual one (at 7; see also here, at 5044, here and here).
This approach also reflects a military way of reasoning whereby substantive values take precedence over formal provisions. War crimes committed in Abu Ghraib prison in Iraq in 2003, for instance, were addressed as “violations of standards of discipline and Army Values” rather than violations of well-known and widely accepted legal norms as the prohibition of torture (at 3). Additionally, within the British IHL training system, IHL used to be merged with “Values and Standards” (Military Annual Training Test Module – MATT 6). Even now that IHL has its own dedicated module (MATT 7), non-legalistic justifications still underpin the training on formal legal obligations. The civilian population shall be treated humanely in the view to “winning the battle for hearts and minds”, for instance (at 14).
This sheds light on a last point. Adopting such an approach would also represent a legal training methodology that fits its audience. For norms to be truly understood and internalized, training needs to be tailored to match the specificities of the audience. As the addressees of IHL training are principally non-lawyers, relying on universal values rather than on legal prescriptions would entail a reasoning which is more familiar, thus serving as a more effective communication strategy.
IHL training is one of the few universally accepted mechanisms through which military action can be shaped according to IHL’s legal requirements. Although it does not represent a panacea against all violations of the law committed in armed conflicts, it still has the potential to influence the behaviour of members of armed forces. To do so, however, IHL training requires methods that go beyond legal positivism, namely, focusing on universal moral values underlying the law and corresponding ethical principles. This approach upholds the internalization of IHL norms by individual servicemembers and the integration of these norms as part of the respective group’s military culture. Indeed, the aim of effective IHL training is not to provide armed forces with the skills needed to analyse or justify military action from a legal perspective. It must enable them to fully identify what IHL prescribes as the “right thing to do” – and to do it.