Assessing the Laws of War

At their core, the laws of war seek to preserve humanity in the most difficult conditions. As Dr. Cordula Droege, the chief legal officer and head of the legal division of the International Committee of the Red Cross (or ICRC) recently wrote for Just Security, “Understood in simplest terms, the law of armed conflict acknowledges that both sides will inevitably kill, injure, detain, and destroy, but it prohibits them from dehumanizing their adversary.” 

She notes that “Altogether, IHL contains hundreds of rules that protect life, health, and human dignity. It is modest and imperfect – it seeks only to guarantee a modicum of humanity in situations where our humanity has already been largely compromised.” 

But across the world – from Gaza to Myanmar to Ukraine to Sudan – IHL is facing a moment of profound strain. Civilians are targeted. Cities are leveled. And, as Droege writes, “All too often today, the protective purpose of IHL is set aside and the rules are literally turned on their head: instead of being interpreted to protect civilians, the absence of clear violations are invoked to justify a level of death, injury and destruction that is precisely what IHL intended to avoid.” 

Are the laws of war inadequate? Why are some States choosing not to comply? What exactly is the problem with IHL? 

Dr. Droege join the show to discuss her article, “War and What We Make of the Law” with Just Security’s Co-Editor-in-Chief, Tess Bridgeman, and Just Security Legal Editor and Podcast Host and Executive Producer, Paras Shah. 

Show Notes:  

• Cordula Droege (@CDroegeICRC) 
• Tess Bridgeman (@bridgewriter)
• Paras Shah (@pshah518)
• Cordula’s Just Security article “War and What We Make of the Law”
• Mary Wareham’s Just Security article “Lithuania Leaving Cluster Munition Ban Undermines Agreement, Threatens Crucial Norms” 
• Just Security’s International Humanitarian Law coverage
• Music: “Broken” by David Bullard from Uppbeat: https://uppbeat.io/t/david-bullard/broken (License code: OSC7K3LCPSGXISVI)

Transcript

Tess Bridgeman: At their core, the laws of war seek to preserve humanity in the most difficult conditions. As Dr. Cordula Droege, the chief legal officer and head of the legal division of the International Committee of the Red Cross (or ICRC) recently wrote for Just Security, “Understood in simplest terms, the law of armed conflict acknowledges that both sides will inevitably kill, injure, detain, and destroy, but it prohibits them from dehumanizing their adversary.” 

She notes that “Altogether, IHL contains hundreds of rules that protect life, health, and human dignity. It is modest and imperfect – it seeks only to guarantee a modicum of humanity in situations where our humanity has already been largely compromised.” 

But across the world – from Gaza to Myanmar to Ukraine to Sudan – IHL is facing a moment of profound strain. Civilians are targeted. Cities are leveled. And, as Droege writes, “All too often today, the protective purpose of IHL is set aside and the rules are literally turned on their head: instead of being interpreted to protect civilians, the absence of clear violations are invoked to justify a level of death, injury and destruction that is precisely what IHL intended to avoid.” 

Are the laws of war inadequate? Why are some States choosing not to comply? What exactly is the problem with IHL? 

This is the Just Security Podcast. I’m Just Security’s Co-Editor-in-Chief, Tess Bridgeman.

Today we’re honored to have Dr. Droege join the show to discuss her article, “War and What We Make of the Law” with me and Just Security Legal Editor and Podcast Host and Executive Producer Paras Shah. 

Tess: So Cordula, thank you so much for joining us today, I want to start with what may seem like a very elementary question. But even for those of us and our listeners who are quite steeped in IHL, it can be really helpful to take a step back, go back to basics, and ensure that our understanding of the law as a framework, and what it seeks to accomplish is more to the object and purpose of the rules themselves, which is, of course at the heart of your recent article for Just Security. And so, I was hoping we could start today with you laying out for us what is IHL as a body of law, what does it do as a framework, what is it intended to accomplish, what are the purposes it serves? 

Cordula Droege: Yes, at its most basic international humanitarian law is the part of international law that seeks to protect the victims of armed conflicts once conflicts have broken out. So, it is separate from the UN Charter in that it doesn't take a position on whether the conflict is legitimate or not, and what side you're fighting on. It takes the position that in any armed conflict, there will be people who will be at risk, in particular from acts of the enemy, but not only, and that every human being deserves to be protected against those risks. And so, it does, if you will, very simply three things. Firstly, it limits the way that states and non-state armed groups can carry out military operations. So, they have to distinguish between civilians and military and so forth. Secondly, it protects all people who have fallen in the power of the adverse party, so for instance, if they're in occupied territory, are in particular if they're in detention. And thirdly, it prohibits or limits certain weapons, for instance, because they are deemed by states to be indiscriminate or to cause indiscriminate harm, such as anti-personnel landmines, or chemical weapons, or because they are deemed to cause what is called superfluous injury and unnecessary suffering, again, such as chemical weapons or biological weapons or blinding lasers or weapons. 

So perhaps, what it is characterized by is that it applies to all parties to conflict. So, it applies to states parties to conflicts as well as to non-state armed groups. And it applies regardless of whether your adversary applies the rules or not and respects the rules and we can maybe come back to that. And perhaps the last thing to say is that you can say that rules that limit what parties can do in armed conflict situations have existed for all times and in all cultures around the world. So, they're very deeply rooted universally everywhere in the world, but their modern codification as we see, it now starts in the late 19th century, first by protecting soldiers, and then later prisoners of war, later civilians after the Second World War. So that's what the 1949 for Geneva conventions that came about after the Second World War, and then later, in the wake of the wars of liberation and decolonization, the 1977 protocols which, you know, enhance, again, the protection of civilians, in particular against military operations.

Tess: Thank you, that's a really helpful baseline. And something that you lay out really clearly in your article, is the balance that IHL walks between understanding military necessity and the imperative of protecting civilians and the core humanitarian purpose you just described on the other, not only protecting civilians, but also wounded soldiers, those in the hands of the enemy, detained soldiers, etc. How is that balance achieved in IHL? And if you can give us perhaps an example or two of where IHL does permit, death, destruction, injury as you write, but nevertheless sets an outer boundary on that? How does how does the law achieve that balance?

Cordula: Yes, and in a way the balance is based on the fact that international humanitarian law, as we just said, just takes armed conflict as a fact; it neither legitimizes armed conflict, nor does it prohibit armed conflict. And so, when in particular states came together to codify what the rules are, they have in mind that there are conflicts, they will be fought, and they want to preserve their capacity to win those wars. And on the other hand, you have the consideration of humanity of human dignity, the prohibition of torture, the protection, as we said, of the wounded and sick, those who don't pose a military threat anymore and who have to be protected. 

So, it balances these two things, and this balance, in a way, goes through all the rules. And it goes from very absolute rules, which are particularly about people who are detained in the hands of the enemy or wounded and sick because they pose no threat. And so, they are entitled to protection, the dead as well. There are many rules on the dead, and the protection of the dead in international humanitarian law. So, you have the prohibition of torture, the prohibition of sexual violence, the obligation to provide detainees with basic food, shelter, water, etc. And then on the other hand, you have these rules about carrying out military operations where you, if you are entitled to carry out military operations, it means that there will be death, there will be injury. And there will also be incidental death and injury of civilians. 

So why you're only allowed to target the military and military objects, and you are not allowed to directly target civilians, because they do not pose a military threat. It is acknowledged and in a way accepted that there will be a certain amount of civilian harm. And what international humanitarian law tries to do is to limit that harm, while at the same time allowing states to pursue their security interests and their military advantage.

Tess: So, a very balanced set of rules is the aim and is of course, what states agreed to right when they got together after World War Two, as you said, and wrote out the very detailed rules in the genie for conventions. And of course, there are other treaties, customary international law plays as well. But this kind of dense fabric is a creation of states, right, that states universally, in terms of at least the Geneva Conventions, support. 

Yet as you write, we are seeing a period of IHL fraying being under immense strain, where it looks like there's a whole series of problems that that I'd love for you to unpack for our listeners that are making it difficult to see where IHL holds, how IHL still serves an important purpose in today's conflicts, and what we can do to ensure that it does going forward. So, I've introduced a lot of different concepts there. So, let's just start with the first one, this mismatch between the universality of ratification of the Geneva Conventions, for example, and the very spotty record of compliance with them. Can you talk a little bit about how you see that mismatch, why it might exist right now? And maybe some examples of where you see that playing out.

Cordula: You want to put it very aptly, it is a whole series of problems. And you talk about the mismatch. And I think, indeed, the mismatch between the normative framework that exists, and we talked about the conventions, but there's also, of course, the whole body of customary international humanitarian law that exists. So, we have a very comprehensive body of law, but we have a lot of violations that we still see in armed conflicts all around the world. The lack of compliance remains, in the experience of the International Committee of the Red Cross for which I work, certainly the biggest threat to international humanitarian law. And you see violations of this body of law in almost all conflicts and by almost all parties. On the other hand, I also want to say that that's not the whole story. And we don't talk enough about the fact that international humanitarian law has, over all these decades, saved many, many lives. And perhaps to give you a couple of examples of how that works, even in the midst of armed conflicts that cause a lot of harm and suffering. 

So, for instance, last year in 2023, the ICRC visited 16,000 detainees related to armed conflict. So, these are POWs, civilian internees, and security detainees. And these 16,000 are only those that we register and for whom we do an individual follow up. When we go into prisons, of course, a lot more than that a lot more people than that benefit from humanitarian relief, we might bring rehabilitation works that we might do. And so, what that means is that the parties to those conflicts chose to allow the ICRC to carry out this work and chose to allow the ICRC to have a dialogue with them to ameliorate the condition of these detainees. It doesn't mean to say they treat them perfectly in all situations, far from it. But still, I think that just shows really international humanitarian law at work. Also compare some conflicts which have a terrible and almost systematic record of sexual violence, to conflicts which don't have that. It just, I think, illustrates that parties also choose to comply with international humanitarian law, and they can do so when they want to. You have, as well, a lot of parties that both allow as well as even facilitate humanitarian action. 

Now, I don't like to use that example all that much, because usually when you have a need for humanitarian action, is that because already you might have had lack of compliance with international humanitarian law, which makes it necessary. But not only and again, this is an obligation that parties have to allow and facilitate humanitarian action, and many, many of them do. So, you have all these instances of really lifesaving activities, behavior, that parties choose to comply with.

Tess: So, can I draw you out on that? What are some of the incentives that would lead to parties choosing to comply, as you say, and maybe choosing to comply with some rules, but not others? So sexual violence is a good example, right? There are some conflicts where we don't see sexual violence, but we do see mistreatment of detainees. Or we do see sexual violence, but we don't see some of the other things that you mentioned, perhaps intentional targeting of civilians in urban areas or some of the other things that you mentioned. What is it that that leads a party to decide, yes, this is a body of law that I'm going to comply with, in general, or this is a body of law that I'm going to instruct our combatants to comply with, except for right, gloves off when it comes to X or Y rule. What are the things that might motivate that?

Cordula: Yeah, and I think that's such an important question and perhaps the most important question that we have to ask ourselves when we are present in these public situations. And, in fact, I think there are many different kinds of incentives, and they vary from conflict to conflict, from party to party. So, you can have very basic incentives like reciprocity, if you respect my detainees, I will respect yours. That exists as an accent incentive, and sometimes it works. You also have values or various cultural laws, religious laws, values that might be important for certain parties, — in fact, very often are much more important than international humanitarian law as an international body of law — but they will abide by certain cultural imperatives, religious imperatives, legal imperatives, and abide by those. And so, if you can have a dialogue about those imperatives as well, that can be something that can be very helpful. So just to give you an example, you find in almost all cultures the protection of the dead in armed conflict situations. And that's something that you can use as an incentive to have a dialogue on those things. 

You also have an incentive that we see very often, particularly in non-international armed conflicts and with non-state armed groups, which is that they rely very much, in many situations, on the communities where they are present or from, within which they actually fight, or which gives them support, political support or moral support. And so, the acceptance of the community is also something that can be a very strong incentive for certain groups, to respect the people in those communities. You also, of course, have the incentive of recognition or legitimacy. You know, that's also something, of course, and it's something that's very much used, as you know, in this mechanism about protecting children from being recruited or being used as by non-state armed groups and the listing of that, and that's something that has had an effect because, of course, it stigmatizes a group or a state when they are seen as not respecting the rights of children in armed conflicts. You also have, I think — that's very true for many states — to be recognized as part of the international community to be recognized as a law abiding state. And of course, you have a lot of states that go out of their way to justify what they are doing under the law, because it's very important for them to be seen as being law abiding, which now of course, also then creates these downstream problems that that we talked about, which is how far can you stretch the law to then appear to be legitimate and law abiding. And then perhaps more at an individual level, the level of the soldier or the fighter or member of the non-state armed group, definitely one of the things that has been proven to work is training, training, training, it has to be combined, of course, with the right the right value system, disciplinary system, probably also the right political signals and not be undermined by a discourse that might be dehumanizing and basically undermines planning that you might have had. 

Also, the values of a group in which the individual find themselves so, not the legal norms, but the sort of group norms that the person is finds themselves in, in and want to be part of. And then of course, punishment and sanction can be a disincentive for violations. It depends on the reliability ,of course, pf the sanction systems and all sorts of factors as well. So, you have a whole lot of incentives, many of which can be basis for dialogue and for engaging with people in order to achieve that compliance. 

Tess: So, this is a rich framework of incentives, reciprocity values, cultural rules, group norms, recognition, legitimacy, the effectiveness of training, potentially accountability, sanction and punishments, although I noticed that was last on your list. And there's a lot I think we could say about that. But what then explains the situation today in Ukraine and Sudan and Myanmar, in Tigray, and so many of the other conflicts we're seeing right now, where noncompliance seems to be the rule, and where you have not only impunity, but it's it would seem that it's a signal being sent from above, to go ahead and disregard some fairly core elements of these rules. What are the incentives that are pulling us in the other direction? Is it just the geopolitical moment in which, perhaps, because of the evolution of the jus ad bellum, the law of the resort to force, where one side or the other must be the aggressor? You know, the stakes are seen to be higher. 

Is it the types of conflicts that we are in are pitting groups against each other that are actually seeking to dehumanize the other as opposed to say vying for territory where you're not controlling populations? What do you think explains this moment that we are seeing where so many states seem to be choosing noncompliance as the norm? Or has it actually always been that way, and now we just see more powerful states engaging this kind of behavior, and so it's really gripping the world's attention?  

Cordula: I mean, I think you've, you've given a lot of the answers yourself, perhaps. Your last question was, Is it worse now than it was before? And I think we, I'm always careful about trends or, or, you know, pronouncing myself on when was it as at its worst. I do think that armed conflicts have throughout history been characterized by, you know, dehumanization, and, and a lack of compliance with whichever exists, rules existed at that particular time, and that's also the case today. 

And I think you mentioned, a lot of the reasons. I do think that the dehumanization of the enemy, at the highest level of groups or states, is something that sends an absolutely wrong signal to the fighting forces. And then I also think there is a spiral of violence or a spiral of reciprocal violations that can lead to more and more violations as you see violations committed by your adversary, you will commit them yourself, and that's something that actually can get worse over time rather than better in terms of the behavior of the parties. So, you have all these disincentives, as it were, that we have to then work against every day to go back to the humanization of the enemy, to go back to trying to — short of being able to enforce international humanitarian law — at least to have the right pronunciations of international humanitarian law and then achieve political will of the parties to abide by it. 

And similarly, again, to rather than having, you know, reciprocal spirals of violence, try to have agreements amongst the parties about humanitarian actions or small humanitarian spaces that they can find, such as liberating detainees, exchanging dead bodies, finding humanitarian space to allow humanitarian relief to reach people, in order to actually go back to a path where you can where you can find a bit of humanity. 

Tess: So, there's so much to unpack with what you said there. And I'll just ask one or two more questions along this line before turning it over to Paras on what states can do to step into the breach, as you put it, but your point that our interpretations of the law and the choice not to skirt the laws limits, but rather to proactively find those moments of noncompliance and as an international community condemned them right away so that the spiral that you mentioned, doesn't initiate. That is something we struggle with, that is something that is partly, of course, a product of the geopolitical fissures of the moment. But it is partly a product of actual disagreement about some of the interpretations of the law that really matter in these contexts.

 And it is partly, I think, write a function of something that this is not what states do when it comes to their allies and partners. They don't like to sit in judgment from the podium as it were. So can you talk a little bit about this point that you illustrate, in your article, on interpretation divorced from purpose and what its effects are. What do you mean when you say interpretation divorced from purpose? And how does that play into this dynamic that we've been discussing?

Cordula: And it comes back to what we were talking about at the beginning, this balance between military necessity, and humanity. Now, again, international humanitarian law is a pragmatic body of law, it doesn't require zero civilian casualties. It accepts a certain amount of death and injury. It accepts that families will be separated, tries to limit that as much as possible. And so, it contains a lot of rules that have this balance that we talked about at the beginning. Now, all rules, all law, national, international, international humanitarian law, has to be interpreted. And of course, lawyers will disagree or have different opinions about interpretations. But what we have to be mindful of is that in these interpretations, we still take this balance seriously. It can't be just one way. And considering that, you know, the basic state of affairs of conflict is already a state of affairs where there's very little humanity and a lot of violence. So, you really have to take very serious leave that the purpose of international humanitarian law is to bring this humanity back. And so, it starts, for instance, by acknowledging that everyone is protected by the law. 

And one of the concerns that one of the main concerns, I would say, in terms of interpreting the law and disagreements that we see is that time and again, you see that parties to conflict try to interpret the law in such a way that entire categories of people are actually not at all protected; they just fall outside of the scope of international humanitarian law. You see this a lot in non-international armed conflicts because in non-international armed conflicts, you have non state armed groups almost, or perhaps all non-state armed groups or almost all non-state armed groups are designated as terrorists, either by state or regional organizations or internationally — I mean by the UN system. And so very easily you go from that these terrorists to these are not protected. You know, these people are not protected by international humanitarian law, we're not fighting a conflict with fighting terrorism, international humanitarian law doesn't apply; or, yes, we are in a conflict, but they are terrorists, and therefore they're not protected. Which of course, is the wrong interpretation. When you look at Common Article Three, the most basic rule says that anyone, any person, who is not or no longer fighting is has to be protected. Similarly, when you look at international armed conflict, you have, unfortunately, the same phenomenon. So, you have an international armed conflict, the Third Geneva Convention that protects prisoners of war and the Fourth Geneva Convention that protects civilians, which is perhaps the unfortunate title of the convention. 

Now, POWs defined in the Third Geneva conventions as enemy armed forces or members of armed forces or groups of units that belong to them, or certain civilians that typically accompany the armed forces. These fall under GC three. But of course, in international armed conflicts, you also have a lot of people who are fighting, so who are not peaceful, but who do not fall under these categories of POWs, which is why they then fall under the convention four, which clearly states that everyone who falls into the hands of the enemy is protected by the Fourth Geneva Convention. But because people are not necessarily peaceful civilians, they are then defined out of the convention, completely contrary to the actual wording of the Convention, which talks very clearly about the fact that people who have been taking part in hostilities — for instance, that's what article five of the convention mentions — can be detained and certain of their rights can be limited etc. So very clearly the Fourth Geneva Conventions has a whole host of rules to detain people who have been taken part in hostilities, or otherwise threaten the security of the adversary. So, in any case, those who don't fall under GC three, fall under GC four, but what we see is that people, you know, parties are trying to define people out of these conventions and out of the protections of the conventions. So that's just one example, and of course, you have a lot of rules on what we call the conduct of hostilities. So, the way states and parties to armed conflicts have to fight military operations, which also contain this balance of humanity and military necessity. And so, you have a lot of rules that contain the concept of security, military necessity, security measures, imperative military necessity, imperative military reasons. And so, you have to interpret them in order to know, okay, so how do they apply in a specific case? So, to give you another example, and that's perhaps the example that you often see in the media, that's on everyone's mind, which is the famous principle of proportionality, the party cannot cause excessive civilian harm, so excessive death or injury to civilians, or destruction of civilian objects, as compared to the direct and concrete military advantage that they are pursuing. 

And so, you can already see that in that role of proportionality, you have a lot of concepts to interpret, to unpack. First of all, you have to differentiate between who is the military, and well, who is a competent or a fighter and who's a civilian. Now, if you have a very broad concept on who is a fighter, then of course, you reduce the scope of those people who are actually protected from harm. And so, one of the discussions that exists there is that civilians are not protected when they are directly participating in hostilities. Now, if you have a very broad interpretation of who directly participating in hostilities, and some states have interpretations that are not very direct, in terms of direct participation in hostilities, but actually quite indirect, so if you finance, you know, provide indirect support to the military operations, you already use your protection as a civilian, so you're out of the protection of the proportionality. Then what is a what is the civilian object as compared to a military object? Now, military objects are those that provide a direct concrete military advantage to the adverse party. And there again, you have a lot of civilian objects that states have defined as not being civilian anymore because they provide very indirect advantages to their adversary. And one of the rules there, or one of the controversies there is about so called war-sustaining objects, which are basically any type of infrastructure or economy that provides economic financial support to the war economy of your adversary. Now, if all of those, if all that civilian industry infrastructure, is already defined out of the protection of the proportionality war, there's basically not many civilians left who are protected, and not many civilian objects left who are protected. So, there even more concept in here in this proportionality of all that you have to look at very, very carefully. But what we have observed at the ICRC, is really a risk, that civilian part of that equation is very narrowly defined, and the military part of that equation is very broadly defined. 

And then on top of it, you have the balancing between the civilian harm and the military advantage. And the civilian harm, according to the rule, is all foreseeable civilian harm. So, it's not just the immediate the people who die immediately under the bomb. It's all the foreseeable civilian harm that can be anticipated by the military commander. So that means also reverberating effects, right. If you know that, well, giving an example, if you destroy one hospital, the indirect harm might not be so great if you still have another 50 hospitals that are working. If you've destroyed 40 of those hospitals, then the destruction of the last 10 hospitals will have very important civilian harm. That needs to be taken into account. But that's not necessarily acknowledged by everyone, and it is certainly not necessarily done in practice. And on the other hand, the military advantage has to be concrete and direct. Now, what you then see is arguments that, well, you have to look at the operation more broadly — which is true, you can't just take one specific tiny little operation, you have to look at the whole operation as a whole. But it sometimes extends to the war as a whole. And we have seen that as the ICRC. And if that's what it is, then there's no more proportionality.

Tess: That's so helpful in such an important way to think about what the kind of stack of problems are; you have interpretations that intend to create loopholes in coverage of the law at all, right, that read out entire categories of people. And I'm going to pick on powerful states here, like my own, we saw that in the aftermath of 9/11, within the United States executive branch. And there was a bit of a self-correction within the executive branch over time, which even greater as more time passed, but it was ultimately the judiciary as well, right, that stepped in and said, no Common Article Three at a minimum applies, in at least one of the most important cases that reached the court, the Hamdan case. And then in terms of conduct of hostilities, I think you can pick on really any of the, of the major powers in terms of various aspects of this set of interpretive questions that you raise. But certainly, I think it's hard to watch what's going on in Gaza right now, without thinking there's a problem with the application of proportionality. Which of these it is, that's it's not clear. 

It could be many of them. But it's, it's hard to watch what's going on right now, without saying there's a problem there. Of course, the other side of the armed conflict is a party that seems to not choose to adhere to any of IHL, or at least the most important aspects regarding targeting of civilians, sexual violence as a weapon of war, hostage taking, etc. So, you know, the state of affairs is pretty grim, when you look at these very intentional moves right on the part of some states some parties to armed conflict, notwithstanding, I think, you're very important and valid point that the existence of IHL, even in conflicts like these is saving lives, is making a difference. But there seems to be kind of a moment of elevation of the military necessity side of the equation, which I will say the devil's advocate point here, of course, is that if we devalue the military necessity side, we will see militaries even less able to comply with the entire framework, right. So that's something else that will hear in response to what you just laid out. But regardless of whether or not that is the case, the effect in several of the conflicts that we see going on today, at least seems to be a creation of loopholes and a lowering of standards that overall makes the body of law less protective of civilians than the object and purpose would seem to require.

So, with that kind of note of a downer by way of summation and my own editorializing on top of what you just said, I'm going to turn it over to Paras to see if you can help us think through what might be done to get us out of this situation, or at least improve upon it. 

Paras Shah: Yeah, the final section of your Just Security article discusses proactive ways that states can “step into the breach”. And you remind us, that IHL is created by states, that it's implemented by states, that ultimately it must be preserved by states if it's going to endure. What are some of the things that states are doing or that they could do to strengthen IHL?

Cordula: Yes, thank you. And I mean, I won't pronounce myself on any specific conflict or running any parties to the conflict and whether they abide by international humanitarian law or not. And I think, again, it's it starts with preparation and prevention. This goes back to a very, perhaps, you know, the very first idea of Henri Dunant, you know the Swiss founder of the Red Cross, and also the person who proposed the first Geneva Convention of 1864. And his idea was, you need rules before the conflict breakout, once conflicts breakout, it's too late. So, you need rules, you need to have agreement on the rules before the conflict breaks out, you do need to set into place the structures. In his case, it was the National Red Cross and Red Crescent societies in order to support to support the efforts to protect the wounded and sick and rescue them in the armies in the field. But today, I think that it still remains a fundamental tenet of international humanitarian law is that you have to implement it into your national systems before war breaks out. So, you know, adherence to the rules, national legislation to have, for example, the possibility to prosecute and punish violations of international humanitarian law. 

And there are many, many gaps still in national legislations about this, the training of your military, even the conventions and protocols for see the dissemination of international humanitarian law rules amongst your populations. And I think that's very important, because again, as conflict breaks out, the enemy gets dehumanized. And you really need to have anchored these very fundamental rules in society, and then of course, in the armed forces in order to have a hope that they will be adhered to when things really break down and get extremely violent. So, the preparation and the prevention is, I think, key, and we have examples, but we need to study even more how that work and what are good and effective prevention strategies. But we have seen that when the tension is prepared, for instance, when you prepare for detention before the conflict, when you map military targets, before the conflict, etcetera, etcetera, when you foresee how you will prevent the separation of family, the protection of children and so forth, you already have at least the system in place in order to abide by the conventions. 

Then I think the political will is key and makes all the difference. Now, I was talking to a colleague the other day, who told me no, but political will isn't a sine qua non because he was talking to me about soldiers who in a conflict which was very violent and where the political authorities had a very dehumanizing discourse — you would still encounter a lot of soldiers who would abide by the conventions because they had been trained to do so. But still, you know, I think the signal at the highest level that these conventions are important and have to be respected at all times, is very important, because otherwise, again, that signal to the soldiers is just completely wrong. And then what can third states do? Third states, it depends, but when you have influence over another state, over a party to the conflict, because you are either politically supporting them, or because you're supporting them financially, or, of course, because you are providing military equipment or weapons to them, then you have a lot of leverage to have a dialogue about compliance with international humanitarian law. 

And I'm not saying that necessarily always has to be done out in the open, it can be very efficient if it's done through diplomatic channels, supply channels. And I think we probably see that at work in some situations, but far too little. And when you look at weapons transfers today and the rules that exist on weapon transfers, and at the same time, the fact that there are all these violations in conflicts committed by those weapons that have been transferred to these parties clearly. And to use your word test at the beginning of the of this podcast, there is a mismatch between the rules and what happens in reality. So, there is a lot of scope for improvement, to do better.

Paras: Thanks so much for that. That's such a helpful answer. And really, there are many things that states can do both publicly and privately through diplomatic channels. Your article is so powerful on the issue of IHL being undermined through implementation creep, and it's worth reading one passage in full. IHL is being undermined through self-serving interpretations that are intended to allow for permissive military operation s in the moment, but over the long term, if the expedient application of IHL continues to proliferate, we'll watch helplessly as the laws delicate balance tips away from saving lives and it becomes simply another tool in the service of military might. 

And in reading that quote, I wonder if there are particular concrete examples that come to mind for you, what can be done to rein in these interpretations given this one way ratchet that you discuss in your piece? 

Cordula: Yes, we have to remind ourselves again, that international humanitarian law tries to be realistic, it's relatively modest. And as we said before, it acknowledges that there will be death and injury and suffering. And it tries to only limit that, to the extent that states have accepted already in the conventions that they've signed, that they will be agreeing to have these limits imposed on them. And what we see now is that through interpretation, the limits seem to be expanded, they seem to be very elastic. And we have to try to be a bit more disciplined taking this balance a bit more seriously. And one of the things that I'm also worried about is today as states are looking at new threats, some states — the great majority of conflicts or still non international armed conflicts raging in all parts of the world, particularly in Africa but also in Asia — that states are also looking at conflict between states, again, as we see between Ukraine and Russia. And in a way, they are also preparing for more state to state conflict, or what is sometimes called large scale confrontations or combat operations or conflicts. And there's a risk there, that hard fought rules that were made for exactly those conflicts. 

Again, we were talking about 1949, the Geneva Conventions, had large scale conflicts, you know, as their model, that now we have a discourse to say, well, we were abiding by the rules when we were, you know, fighting against non-state armed groups. But if we are, you know, if we are having major military confrontations, again, we might have to have looser interpretations. And you don't need to have looser interpretation, because, in fact, international humanitarian law already has the possibility to apply case by case, it incorporates the fact that you will apply case by case and of course the principle of proportionality, for instance, will not apply in the same way in every single military operation. Nonetheless, it does apply. And similarly, I think one of the really disastrous signals we have seen, you know — we're not talking here about a violation of international humanitarian law — but it's the decision of the Lithuanian parliament to withdraw from the cluster munitions convention. And the reasoning of the Lithuanian parliament was that the cluster munitions conventions was fine as long as a state like Lithuania wasn't facing the formidable threat, as they see it, from the much bigger neighbor, Russia. 

Now, again, international humanitarian law is made for the worst of times. And the decision to ban certain weapons is because states came together and said, these weapons, regardless of the kind of conflict are indiscriminate, and therefore they shouldn't be banned. And to withdraw from an international humanitarian disarmament treaty, because you think you might have to apply it in a conflict situation is just completely misunderstanding the very nature of international humanitarian, which is made for those situations.  

Tess: That’s it. That is a really helpful example. And you've given us, I think, a very robust list of things that states and non-state actor parties during conflicts, but really most of this does fall to states can and should be doing to strengthen this framework, including when we are not at war, right. When a state is not actively engaged in hostilities, it may be a moment to stop with clear eyes and to think about interpretations that have been taken, perhaps in the context of past conflicts, in order to try to adapt to some of those circumstances and say, is that really where we should be on this rule? Is that did we land in the right place based on all the experience we've had? And I think you'll see some attempts to reevaluate in the current moment, we would be remiss not to note that there have been some very helpful, in my view, updates to the US Department of Defense's law of war manual taking account of some interpretations in the past or perhaps just the way that those were being read and say there's a clearer way we could put this that removes some of the doubt about what the humanitarian purposes here. But it's a moment, as you say, when there's a countervailing view being expressed that perhaps if there are large scale combat operations on the horizon, states need to be doing the opposite. 

So, I think it's very important to take this moment as a clear eyed moment to say, no, we need to be reinforcing those interpretations in a way that is true to the object and purpose. Training, training training, I think that's been very clear in your comments is incredibly important. And then avoiding the race to the bottom in terms of creating interpretive loopholes and lowering the protections that the rules provide through loose interpretations, avoiding that race to the bottom by calling out violations whenever we see them and by holding ourselves and our partners accountable more often. I think that is the hardest one. And I think that is one where the international community is still struggling with the lack of a universal compliance mechanism. Right, with again, the moment we find ourselves in where we see conflicts between autocratic and democratic states, and of course, between non state actors vying for control of states. 

That's one where I think we could use some clearer thinking on how to make that more permissible, how states could feel like they have a freer hand to do that, would it help to have a standard compliance mechanism? Is there such thing as a neutral party that can speak publicly on those things, recognizing, of course, that that an ICRC needs to maintain confidentiality and neutrality? Is that what the UN system, of course, is intended to do? And has it failed in doing so? I'd be grateful for any last reflections you might have on how to make progress on that last piece of the puzzle.

Cordula: Yes, well in I mean, in a way, I think states have actually created many mechanisms that at least pronounce themselves on international humanitarian law and hold states to account — even though that might not be enforceable. But while we don't have you know, an international humanitarian law court, we have so many mechanisms, international mechanisms that are seized of international humanitarian law. You have, of course, the International Court of Justice that has been seized of international humanitarian law questions for a long time. I mean, think of the Nicaragua case, in many, many cases in its wake. And, of course, nowadays has a lot of activity, the International Court of Justice. You have the International Criminal Court before that you had the ICTY, which was absolutely critical in advancing international humanitarian law as well, including customary law, the rule of non-international armed conflict. You have a myriad of Commissions of Inquiry in the UN system, in fact, I think most conflict situations when you think about Myanmar, Syria, Sudan, South Sudan, Afghanistan, they all have Commissions of Inquiry, and all these Commissions of Inquiries talk about international humanitarian law compliance. You have, of course, the regional courts, the Inter American Court of Human Rights has been seized of IHL questions since the late 80s. 

The European Court of Human Rights has a lot of jurisprudence that also concerns armed conflict situations. And what I find very interesting when you look at all these is that the convergence of these international mechanisms composed of people of very diverse nationalities and backgrounds — I mean, when you think about the European Court of Human Rights, which has the 49 judges of the member states of the Council of Europe, the Inter American court or the Commissions of Inquiry — come to gather and have an understanding of international humanitarian law that has a lot of convergence. I mean, you will find very little fundamental divergences in these interpretations of where the boundaries, where the limits of international humanitarian law are, for instance, about when you when can you detain someone legitimately or not. And so, it's quite interesting because states will have certain interpretations, and it's perhaps it is normal, and it's in the nature of things that states will try to leave themselves quite a big margin of maneuver. But when they fall under international scrutiny, of course, the limits are there. They exist, they're real, and they reinforce each other in that they are repeated over the decades. And I think that creates an expectation towards states that we have to hold on to. 

And now the big challenge is, again, how do we then bring it back into the national systems, into the domestic systems and that requires — of course absent an enforcement mechanism, absent a policeman — political will of states. And that's what we need to create. 

Tess: I think that is an excellent summation to end on. And it is, of course, a daunting challenge, but one that all who are concerned with IHL and its implementation would agree is an urgent and necessary one. And creating that political will, I think, is the task for all of us in the various roles that we play. I think the ICRC has an incredibly important role in that through its confidential dialogues, through its training, through its ability to gain access to those who are most vulnerable in armed conflict and really show the world what is at stake. So, I want to thank you for your work and of course, appreciate your talking us through all of these very thorny issues today and sharing your insights. We really appreciate it. And thank you again for joining us.

Cordula: Thank you so much Paras and Tess, it was really great to talk to you. Thank you.

Paras: Yeah, thank you so much. We'll be tracking all of these issues at Just Security, thanks again.

This episode was co-hosted and produced by me, Paras Shah, and Tess Bridgeman with help from Harrison Blank.

Special thanks to Cordula Droege. 

You can read all of Just Security’s coverage of International Humanitarian Law,, including Cordula’s recent analysis, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.