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…