31 May The Disrespect Is Real Around Here: Review of Eve Massingham and Annabel McConnachie’s edited volume, Ensuring Respect for International Humanitarian Law
[Ata R. Hindi is Research Fellow in International Law, Institute of Law at Birzeit University. Twitter: @atarhindi]
Eve Massingham and Annabel McConnachie’s edited volume, Ensuring Respect for International Humanitarian Law, is a meticulous and necessary contribution to the study and practice of international humanitarian law (IHL). The volume focuses on Common Article 1 (CA1) to the four Geneva Conventions (GCs), which obligates States to “respect and ensure respect” for the GCs. As the volume explains, CA1 has an internal dimension to “respect” and an external dimension to “ensure respect,” to prevent and respond to IHL violations. This volume engages the latter, external “ensuring respect.” Notwithstanding the progress made, IHL still suffers in compliance and enforcement. CA1 offers a means towards greater compliance and enforcement and, as such, is at the very heart of this volume. While IHL violations are apparent and the knowledge surrounding the internal respecting is abundant, the same cannot be said for CA1’s external ensuring respect. This is why Massingham and McConnachie’s volume is so important.
For IHL law and policy, the question is simple: what can we do with CA1? In the Arab World, for example, IHL violations are abundant (in Palestine, Syria, Yemen, and other States). So, then, what are the bounds and limitations of CA1 and how can we operationalize it to prevent and respond to IHL violations? If a State isn’t doing the internal respecting, how can we tell third States to do the external ensuring respect? In her foreword, Helen Durham states that “the collection is an innovative contribution to the contemporary debate on the meaning of ‘ensuring respect’.” Over the past few years, the literature has grown considerably; for example, the expert opinion of Boutruche and Sassoli, the updated ICRC commentaries, the academic commentaries by Clapham, Gaeta, and Sassoli, and other academic contributions. As an IHLer whose work has focused on third State and Party responsibility in armed conflicts, not only does the volume contribute to filling a gap in the existing literature on CA1 and its external dimension, but it provides practitioners a tool to understand the bounds of CA1 and operationalize its use towards greater IHL compliance and enforcement in situations of armed conflict.
The second chapter by Jonathon Crowe is, as always, a well-needed breakdown of the GCs, their Additional Protocols, and their history – a crucial introduction to any sort of undertaking. Crowe further covers other important aspects of international law applicable in armed conflict, such as international human rights law (IHRL), while also delving into the rules of State responsibility as well as individual criminal responsibility vis-à-vis the grave breaches regime and the Rome Statute of the International Criminal Court. This history is an important reminder that when dealing with armed conflict, we are not applying just the ihl/law of armed conflict, but really the international law applicable to the situation of armed conflict (i.e. all applicable areas of international law). In contexts such as Palestine, the situation cannot ignore the application of international human rights law, law of self-determination, and other legal issues.
In the third chapter, Sarah McCosker looks into the role of third States in IHL diplomacy. McCosker explains that “one of the most frequently violated IHL obligations is [CA1],” citing Boutruche and Sassoli. Of course, that depends on who you ask. As McCosker explains, States’ public views on the external dimension of CA1 are scarce. Moreover, the examples pulled by the ICRC in its updated commentaries to CA1 may show the extent of actions that a third State may take, but it is not necessarily evident of CA1 actions, never mind a uniform practice. Soft measures like dialogue, seem to be an easy go-to. McCosker explains that “Most States would therefore prioritise their humanitarian law diplomacy, to focus on a more limited range of conflicts and intergovernmental relationships.” She adds that “This is likely to be largely based on pragmatic considerations about allocation of resources, strategic priorities and risk management.” However, I would submit that taking measures and the difference between taking weak or strong measures is politically calculated. The legal interpretation of CA1 is made on a case-by-case basis, depending on that political calculation. The assumption is that the stronger the relationship and proximity between the third State and the IHL-violating State, the higher the due diligence standard. However, it can play out in reverse. While working in Palestine, securing a “public statement” or “denunciation” was a battle (no pun intended). Overall, McCosker offers a number of informative examples that can be operational in IHL research, writing, analysis, and advocacy in situations of armed conflict. While third States might exercise restraint, many were at least willing to listen and read. The chapter should also invite discussion on the stronger measures that States can take, some of which are discussed later in the text (like arms trade) and in the ICRC’s updated commentaries to CA1.
Perhaps one of the more fascinating contributions – based on my own personal bias – is Drummond’s analysis of CA1 vis-à-vis private actors. As Drummond rightly declares, these “issues of scope and application [are] largely overlooked in other doctrinal literature.” Drummond explains that “the onus on States to regulate such actors through legislative and enforcement measures is more important than ever.” This is precisely because, as Drummond explains, “legal persons, such as companies, are not bound by IHL at all” (with the exception of its criminalized provisions). In taking the example of businesses operating in proximity with the Israeli settlement enterprise, I would say that “bright lines” can be drawn. Through a robust reading of CA1, “home” States of businesses (as we refer to them) have an obligation to prevent their businesses from contributing to the settlement enterprise, amongst other IHL violations in situations of armed conflict. I felt the same about Eve Massingham’s contribution on weapons with the scope of CA1 in Chapter 8, which has been at the very heart of CA1 advocacy, particularly from civil society, in situations of armed conflict. Fittingly, Massingham highlights several recommendations that States can take vis-a-vis CA1, such as advocating for legal weapons reviews and having stringent export and import controls. Massingham’s contribution demonstrates that this particular course of action is of paramount importance, particularly when considering when weapons are used to violate core IHL principles such as distinction.
In Chapter 6, Kenneth Wyne Mutuma takes the discussion further, providing a brilliant case study of CA1’s external dimension by explaining how Kenya and Uganda can take action in South Sudan. In particular, Mutuma looks at how exercising due diligence can, in turn, lead to actions like preventing and punishing war crimes and preventing trade in arms. Mutuma’s call is one that should apply in all armed conflict contexts: “The violations witnessed in the conflict in South Sudan, as in the case of many conflicts around the world, are not an indication of the absence of law…but rather a failing when it comes to respect for those laws and the capacity to enforce compliance.” Mutuma articulately explains that “While it may be debatable whether the above actions would achieve their desired result, it is important to reiterate that the measure towards discharging the obligation under CA1 is not outcome-based but revolves around demonstrating the willingness to adopt measures to promote respect for the law in line with a given sphere of influence.” If ever there was a standard, that is it. Due diligence should not be about predicting whether a course of action may/may not work.
In Chapter 16, Parisa Zangeneh discusses CA1’s external dimension and the creation of international criminal tribunals. I agree with Zanganeh’s contention that after the establishment of international criminal tribunals for the former Yugoslavia and Rwanda, “the formation of international and hybrid criminal tribunals became more commonly accepted as [IHL enforcement mechanisms].” Zangeneh’s analysis is sound; she demonstrates how collective actions towards ensuring respect can be drawn from CA1. While collective action may be difficult to achieve, the international criminal tribunals are a prime example of how CA1, coupled with an obligation to investigate and prosecute grave breaches (and other serious IHL violations), can be materialized. However, I would add that another important aspect – with scattered mention – is that States need not only consider collective action, but individual action, to invoke CA1 in order to exercise universal jurisdiction over grave breaches (and possibly other serious IHL violations).
I draw from my own personal experiences in working in the Arab World, especially in Palestine. The predicament was that if a State failed to do the internal respecting, then how can we see that third States would to the external ensuring respect. One can push for compliance and enforcement through the external dimension of CA1 (the very heart of this volume), as well as through the rules on State responsibility. As for CA1, advocates were provided tools that could work with, such as the Norwegian Refugee Council-commissioned Boutrouche/Sassoli expert opinion and the other above-mentioned examples. As such, Massingham and McConnachie’s volume is a considerable addition for IHLers working not only in Palestine, but in all other situations of armed conflict facing this predicament.
The gaps and challenges of IHL are many, especially with respect to compliance and enforcement. Generally, I find no issue with Sassoli’s belief that “the perception of the number of violations is greater than the real situation in the field” (here, where he also explains that “States do not want an efficient implementation mechanism for [IHL]”). Nevertheless, “the disrespect is real around here.” Of course, the negative and positive dimensions of the internal dimension are a necessary means. Yet, the very reason we have upped the ante on CA1’s external dimension is because, as the late great Kobe Bryant said, we need “more.” Don’t take my word for it, take Peter Maurer’s. As IHLers, we cannot ignore the significant role of the ICRC, NGOs, academics, and others. However, there are States deviating from the very essence of the rules, even trying to rethink them, as Alonso Gurmendi eloquently explained. As the editors note in their final piece on “emerging themes,” “ripening” the CA1 “fruit” (as Kalshoven put it), is not a welcome endeavor for some States.
International lawyers operate as if the law comes right out of the textbook (see my brief foray into this opinion here). Yet, as many working in armed conflict know, carrying around our ICRC-issued Geneva Conventions and Additional Protocols can sometimes feel decorative, more than anything else. This is especially felt for those IHLers where “home” and “work” are the same place like me, once a Palestinian IHLer working in Palestine. We know the rules. The problem is conveying to the parties to an armed conflict the extent of their punishment if they break the rules. I say all this because IHL is a “primitive” law. It borrows from the idea that international law was at a time viewed as primitive (e.g., by likes of Kelsen, Lauterpacht; see here and here). While the times they are a-changin’, IHL does not benefit from the compliance and enforcement frameworks that may be available in other areas of international law. This is why CA1 is so important. It is something that we can work with, and cultivate, for greater compliance and enforcement; and this is exactly what the contributors to the volume set out to do.
I offer two considerations. First, as this volume does, we must strengthen the extent of CA1’s external dimension. No matter the successes, we need “more” compliance and enforcement. CA1 offers a critical means towards that end. Whereas, at times, I found clear ideas on what States can do (Drummond for example), at other times I did not. States should be told what they should do by advocates. Second, as I argue in my own research, we must consider that certain IHL rules may rise to the level of peremptory norms. This topic is not new and I would have loved to see it addressed in the text. In Nuclear Weapons, the ICJ chose restraint, stating that “these fundamental [IHL] rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (para. 83). Several authors have touched on some variation of topic, including Sassoli. International Law Commission member/rapporteur Dire Tladi identified “basic rules of IHL” as peremptory international law norms which, in turn, create erga omnes obligations. Yet any two IHLers would disagree on what the “basic rules” are. In my research, I submit that IHL rules that are both conventional and customary should meet the definition and criteria of peremptory norms as provided by the Vienna Convention on the Law of Treaties. As such, they should meet the preferred “treaty-plus-custom” test and the “double consent” tests, where those rules rise to the level of peremptory norms. My contention is that the rules on State responsibility, in conjunction with CA1, allow for even stronger, more stringent measures, in dealing with IHL violations, particularly when IHL rules are considered to have peremptory norm status. By identifying IHL rules as peremptory norms, third States are obligated towards non-aid/assistance, non-recognition, and international cooperation to bring to an end such breaches.
All in all, I share the authors’ quest for “further scholarship as to the nature and scope of this important obligation.” The contributions to the volume are many, and it would be difficult to provide a meaningful review for each contribution within the constraints of this post (my apologies to the many superb contributions). The volume is a testament to how much more knowledge-sharing and production is needed on CA1’s external dimension. It does just this by tackling various topics related to CA1’s external dimension of ensuring respect such as, amongst others, the peacekeeping context, artificial intelligence, and detention in armed conflict. Still, we are only scratching the surface. Nevertheless, the volume not only contributes to the academic literature, but to the operationalization of CA1 towards greater compliance and enforcement. While there is certainly respect for IHL, the disrespect is still real around here.