How can compliance with the law of armed conflict be improved?
In a recently published article in the Yearbook of International Humanitarian Law, Jann Kleffner takes the 70th anniversary of the Geneva Conventions as the starting point to examine one of the central questions of the law of armed conflict, namely compliance with it.
In 2019 it was 70 years since the four Geneva Conventions were adopted. The conventions form the centre piece of the law of armed conflict regulating the treatment of the wounded, sick and shipwrecked, prisoners of war and civilians in times of armed conflict.
"In the article, I look into some of the challenges in relation to compliance with the law of armed conflict", says Jann Kleffner, professor of international law at the Swedish Defence University.
The article takes a meta-perspective on compliance and explores its current state through normative analysis.
The article begins by outlining the various existing compliance mechanisms and expresses a plea for an honest, inter-disciplinary stocktaking of their efficacy.
"I argue that we should ask ourselves how efficient these mechanisms really are. How effective is the way in which we teach armed forces the law, for instance? It´s an invitation to look broader than just the law and consider if we are doing the right things. In so doing, we need to take into account the factors that induce compliance and non-compliance and engage with other disciplines, such as sociology and psychology."
This is followed by another plea, that calls for contextualizing compliance and compliance mechanisms and for moderating the expectations as to what they can achieve as counterweights to the myriad of factors that are prevalent in armed conflicts, and that cause violations of the law of armed conflict.
"We have to manage expectations and not promise too much", says Jann Kleffner.
Against the background of better understanding the factors that induce compliance and non-compliance and of managing expectations, he identifies three broader areas that pose specific challenges in relation to compliance: the prevalence of non-international armed conflicts; that the current discourse about compliance is dominated by a culture of repression rather than prevention; and that compliance is increasingly individualized at the expense of addressing the collective nature of the violence inherent in armed conflict as the context in which violations occur.
"Non-international armed conflicts that involve one or more non-state organized armed groups are the dominant type of armed conflict today. Yet, the majority of compliance mechanisms reflect a state-centric paradigm that dominates international law generally and the Geneva Conventions more specifically. We need to strengthen and develop compliance mechanisms that address non-state organized armed groups."
"Furthermore, there is a noticeable trend over the past 30 years to lose sight of the collective dimensions that are inherent in armed conflicts. Instead of talking about the responsibility of armed groups as collective entities we are talking about the responsibility of individuals", says Jann Kleffner.
"Yet, we need to talk about both, as much as about the responsibility of other collective entities, not the least states and international organizations."
Individualisation of victimhood
Another dimension is the individualisation of victimhood.
"We neglect the fact that very often it is not only the individual that is the victim, but there is a group of victims, such as women, children, a religious minority, or an ethnic or racial group. The gap in compliance mechanisms that address this collective dimension of victimization needs to be filled."
Also, far too little attention has been paid to how these violations can be prevented, he argues:
"There is an imbalance between on the one hand resources and efforts laid on punishing individual perpetrators, and on the other hand, trying to prevent these violations in the first place."
The conclusion is that the research agenda has to be adjusted in some respects in order to tackle contemporary challenges in relation to compliance with the law of armed conflict.
"We need a better understanding of the driving forces for compliance and non-compliance, and let them inform our thinking about what the law can bring to the table. That requires us to look beyond the law and consider insights from other relevant disciplines. Against that background, we need to calibrate our efforts to develop compliance mechanisms that better address the idiosyncrasies of non-international armed conflicts, take into account the collective dimension of perpetrating, and falling victim to, violations, and improve preventive mechanisms."
“A Bird’s-eye view on compliance with the law of armed conflict 70 years after the adoption of the Geneva Conventions”, the Yearbook of International Humanitarian Law.