20 Oct Compliance Symposium: A Participation Revolution–Time for More Bottom-Up Approaches in the Compliance Toolbox?
[Katharine Fortin is an Assistant Professor at Utrecht University where she teaches international humanitarian law and international human rights. Katharine has written widely about the legal framework in non-international armed conflicts and she is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017)]
Most of the literature studying what makes actors comply with international humanitarian law (IHL) has had a ‘top-down’ perspective, in that it takes the duty-bearers (i.e. parties to the armed conflict) as its starting point. The focus of much of this literature has been on how external interlocutors can persuade armed groups and States to comply with IHL. The purpose of this post is to share some preliminary research on ‘bottom up’ approaches to the legal framework. It explores the possibility of civilian communities playing a role in efforts to ensure that parties to an armed conflict comply with the applicable framework.
Civilian agency as a concept
In recent years, there has been increased attention to the notion of ‘civilian agency’ in scholarship relating to armed conflict in political and social sciences, in particular in studies dealing with the micro-politics of armed conflict (e.g. here, here, here for examples. Literature in this field has attempted to adjust the portrayal of the civilian as ‘helpless’ and ‘victim’ to a more complex representation that captures their vulnerability as well as their agency. The notion of civilian agency refers to the fact that civilians continue to exercise a degree of self-determination over their lives. They make decisions that are designed to allow them to live their everyday lives in the best circumstances possible, given the precarious environment in which they live. Thus civilians, far from being passive victims, take steps to secure their own protection vis-à-vis armed actors in multiple ways. They are in daily contact with armed actors, negotiating safe spaces for themselves in a variety of different ways, assuming leadership positions within their communities and learning to survive in ways that allow them to achieve protection for themselves (e.g. here, here and here).
Civilian agency in humanitarian programming
At the same time, humanitarian policy documents are actively encouraging the greater involvement of civilian communities in directing humanitarian programming. The 5-point Agenda for Humanity that was drafted in 2018 urges inclusive decision making and the reinforcement of and investment in local capacities. In 2016, the Grand Bargain, aid organization and donors committed to increasing investment in the institutional capacities of local and national responders, noting that these are often the first to respond to crisis and remain in the communities they serve before, after and during emergencies. It calls for a ‘participation revolution’ in which people receiving aid are included in decision making processes that affect their lives. So far there has been little analysis of civilian agency in legal literature, and this is one of the gaps that I am hoping to fill in my new research project ‘Dangerous Liaisons: armed groups, civilian agency and international law’. I am looking at whether and how the framework of law that applies to armed conflict involving armed groups can/does encompass the image of an active civilian, without compromising the fundamental protection offered to them.
Civilian agency and compliance initiatives
As part of this project, I look at the ability of civilians to exercise agency within the legal framework itself, as enforcers and developers of IHL. My focus on this aspect was motivated by the observation that the very large body of literature on compliance in recent years has been characterised by top-down approaches, that determine how parties to an armed conflict can be persuaded to comply with the norms that are binding upon them. It has sought to identify the internal drivers that make parties to an armed conflict comply with international law or violate international law (e.g. here). Studies focusing specifically on armed groups ask the following questions: When do armed groups use law? (e.g. here) What causes armed groups to adhere to law? (e.g. here) How can carrots and sticks can be used to leverage maximum compliance? (e.g. here) How can we ensure that armed groups take more ownership of the law (e.g. here and here)? The compliance toolbox that corresponds with these questions contains a myriad of options, that can be used alternately or in combination: deeds of commitments, action plans, the identification of local or religious values that are meaningful for the armed group members and correspond with the values found in international humanitarian law and coercive threats such as sanctions or prosecution. In most instances, compliance tools are utilised by outside parties acting as interlocutors with the fighting parties, who use these arguments to persuade parties to an armed conflict to adhere to the armed conflict. Outsiders can pursue engagement efforts with some hope of safety because they are able to assert their impartiality and neutrality, they are trained in engaging with fighting parties, knowledgeable of the legal framework and they have the institutional backing needed to provide them with the support necessary when working in dangerous environments.
But in recent years, there has been increased note taken of the fact that often civilian communities engage directly with armed actors on issues relating to their protection. The ICRC’s Roots on Restraint in War report refers to the ‘role of communities in influencing armed group behaviour’ as a ‘relatively recent area of study of interest to humanitarian organisations facing particularly protracted conflicts’ (p41). When providing examples of communities as a source of restraint, the report provides examples from inter alia a separate study conducted by one of the field researchers who worked on the report, focusing on Colombia. This study provides support for the idea that civilians can sometimes positively influence armed actors and limit violence – particularly if the community is cohesive and well-organised. It indicates that civilian communities can employ several tactics to do this: (i) they can promote a culture of active neutrality and demarcate safe zones, in an effort to prevent their members being recruited or turned into informants (ii) they can implement local conflict resolution processes, preventing civilians from needing external entities to address local disputes and (iii) they can establish local investigatory institutions to clarify accusations made by armed groups against suspected enemy collaborators (p42). Although authors take care to emphasise that the relationship between civilian communities and armed actors will be different in every context, aspects of these findings have been broadly mirrored in several other studies examining similar dynamics (see e.g. here, here, here and here).
Civilians as rights-holders?
It is interesting to consider why the idea that civilians could play a role in influencing the behaviour of armed groups or States has been relatively little explored in legal literature. It may partly lie in the debate about whether IHL confers rights or only contains prohibitions on the fighting parties (see here and here introduction to this debate). If it was universally accepted that this framework confers rights, then it would provide a better basis for ‘bottom-up’ approaches to the legal framework where obligations and rights are highlighted in equal measures to both their civilian constituencies (i.e. rights holders) and parties to the armed conflict (i.e. duty holders). But there is still a lack of consensus on this point. The idea that IHL does not confer rights of course feeds into the idea of civilians being passive and powerless. It makes them reliant on the parties of the armed conflict to secure protection on their behalf. They do not have a handhold on the legal norms that are relevant to them in a way that allows them also to take ownership of humanitarian norms in any meaningful sense.
Civilians as IHL experts?
Another answer may lie in a lack of knowledge of the legal framework on the part of civilian communities that would make engagement on the norms realistic. It is well known that the Geneva Conventions contain obligations of dissemination in times of peace and war (see here). High Contracting Parties are urged to include the study of IHL in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population. The most recent commentary to this provision indicates that familiarizing the entire population with IHL contributes to an environment conducive to respect for the law, in which the principles and rules underlying and forming this legal regime are accepted, supported and defended, and should the need arise, applied to address humanitarian issues specific to each context. But are civilian populations aware of the law to an extent that they could ever address humanitarian issues with armed actors, using it as one of their tools? A study carried out in 2015 in conflict areas conveyed the disturbing results that although observers might assume that civilians are aware of when they have crossed the line into ‘taking a direct part in hostilities’ and thus forfeiting their legal immunity from direct attack, in fact many civilians do not know the existence of such a line, let alone when they have crossed it. This clearly needs to change.
A final consideration refers to safety concerns for the civilian population and the view that civilians shouldnot be encouraged to engage in behaviour that they are not specifically trained and which may endanger them. Undoubtedly, this concern should be taken very seriously. As the Roots of Restraint in War report states, humanitarian organisations need to be mindful of the potential ramifications of such efforts (p66). It notes that intervention by outsiders can change and possibly undermine community dynamics. From a legal perspective, it should also be noted that some States take a concerningly wide view of the notion of membership, that may put people interacting with armed groups at risk of being seen as a ‘member’ of that group (see here). Armed groups have also been known to target civilian leaders who are advocating for causes within their communities, if they consider those causes not to be in their interest (see here 13-4, 18-9).
But when considering the feasibility of these kinds of approaches, it is important to note that some NGOs have already been running these kinds of programmes for some time, building the capacity of civilians to engage on protection issues in different ways with both armed groups and government forces (see here, here, here and here). As part of CIVIC’s programming in Afghanistan, representatives from local communities have been trained in inter alia IHL so that they can facilitate a community-based approach to protection issues, by monitoring, collating and sharing data and engaging in dialogue with both parties. These projects are designed to respond to the reality that civilian communities are already interacting with and negotiating with armed actors to a large extent and often living outside the reach of humanitarian organisations.
Clearly this is an issue that needs to be handled with care but as research in other disciplines uncovers the varied roles that civilians are assuming to keep keeping their own communities safe in times of armed conflict, this post suggests that it is important to investigate the varied roles that civilians (can) play on compliance issues. At the very least, more steps should be taken to ensure that civilian communities know the legal framework so that they can keep themselves safe. More knowledge of the law will also mean that in (the not so rare) situations when civilians are engaging with armed actors in their daily interactions, they are able to see the legal framework as another potential tool in their toolbox, alongside the other arguments and strategies that they traditionally deploy in order to protect themselves and their communities.
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