The hostilities pit the armed forces of Sudan, led by Sudanese President General Abdel Fattah al-Burhan, head of the country’s transitional governing Sovereign Council, against the Rapid Support Forces (RSF), a paramilitary formation led by Vice-President General Mohamed Hamdan Dagalo, also known as Hemedti, who is deputy head of the Council. Their personal and political history is complicated (as explained here). Suffice it to say that the RSF, created in 2013 by deposed former President Omar Hassan al-Bashir (who is sought by the International Criminal Court for genocide and other crimes), derives from the pro-government Janjaweed militia that wreaked havoc in Darfur in the early 2000s. Both generals were part of the military echelons who removed al-Bashir in 2019 and also worked to bring down a civilian-military government in 2021. Their uneasy relationship, of long-standing, has now erupted into a struggle for who will control Sudan. The immediate cause seems to have been disagreement about the schedule of integration of the RSF into the Sudanese armed forces and, unsurprisingly, which one of these commanders would be hierarchically superior. The clashes are taking place against the backdrop of a hoped-for return to civilian rule, which is inevitably receding.

The Unfolding Fighting is a Non-International Armed Conflict

The current fighting unfolding in Khartoum and, as reported, in other parts of the country, can be characterized as a non-international armed conflict (NIAC) under international humanitarian law (IHL or LOAC, the law of armed conflict). According to well accepted interpretations initially developed by the International Criminal Tribunal for the former Yugoslavia, two criteria must be met for a situation of violence to be classified as such: (1) a certain level of intensity of the violence; and (2) the existence of two parties to the conflict, meaning that any non-State armed group, in this case the RSF, must be sufficiently organized.

It would appear based on footage and news reporting coming from the country that both criteria are fulfilled. The violence between the factions is of a high intensity (with shelling, aerial bombardments and, civilian casualties reported) and has reached the level of hostilities. There likewise seems no doubt given its command structure and other requisite elements attesting to organization that the RSF constitutes a party to a NIAC as required by IHL.

What IHL Rules Apply?

Sudan is a party to the main IHL treaties, i.e. the four Geneva Conventions of 1949, each of which contains Common Article 3 dealing with NIACs in their text, and the 1977 Additional Protocol II to the Conventions (AP II), which “develops and supplements” Common Article 3 (AP II, art. 1, para. 1). Additional Protocol II has not achieved universal ratification like the Geneva Conventions, and must be ratified by a State involved in a NIAC in order to be binding as treaty law on the parties involved.

Additional Protocol II also has a higher threshold of application than Common Article 3.  Whereas Common Article 3 applies to any armed conflict “not of an international character occurring in the territory of one of the High Contracting Parties,” Additional Protocol II covers only non-international armed conflicts that involve the armed forces of the territorial State, on one side, and “dissident armed forces” or other armed groups that meet specified criteria, on the other. Specifically, the Protocol covers armed conflicts

“which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups [italics added] which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (AP II, art. 1, para. 1).

One interesting factual question, then, is whether the RSF may be said to constitute a “dissident armed force” within the meaning of AP II. There is no IHL definition of “dissident armed forces” and the emergence of this type of party to a NIAC has been fairly rare in practice. In simple, descriptive terms dissident armed forces are part of a State’s armed forces that have turned – rebelled – against the government (AP II ICRC commentary, 1987, para 4460).

Based on available information, and despite the uneasy relationship between the Sudanese army and the RSF, and especially their commanders, it may be argued that the RSF is a dissident force. As already mentioned, Generals al-Burhan and Dagalo are, respectively, head and deputy head of the Sovereign Council, and are thus institutionally the holders of the two highest positions in the government. RSF integration into the Sudanese armed forces was contemplated, and even if it did not progress, the RSF had, for lack of a better term, been horizontally “pooled” with the regular armed forces of which Gen al-Burhan is the military commander. While not necessarily dispositive for a legal reading, al-Burhan has in fact characterized the situation as “an attempted coup and a rebellion against the state.” According to al-Burhan, the “RSF leader Dagalo had ‘mutinied’ against the state, and if captured, would be tried in a court of law.”

As regards the other elements of the AP II threshold of application (responsible command; control over part of the territory; the sustained character of military operations), they would also appear to be fulfilled based on reports on the ground. It should be noted that the last element is the ability to implement the Protocol. Based on the RSF’s organization and command structure this should be the case. The existence of political will to follow the law is all too often, tragically, another matter, in this context, as in others.

Even if it were argued that the RSF are not a dissident armed force, the applicable law would not change, as AP II also applies to “other organized armed groups” fulfilling the requisite criteria. Together with customary IHL, AP II provides a solid, if basic framework for the conduct of warring parties. It prohibits making the civilian population as well as individual civilians the object of attack, and proscribes acts or threats of violence primarily aimed at terrorizing the civilian population (AP II, art. 13, para. 2). The Protocol has fairly robust rules on, among other things, the treatment of persons detained or interned, on children, the wounded and sick, on the protection of medical and religious personnel, units and transports, on objects indispensable to the survival of the civilian population, forced movement of civilians, and protection of cultural objects.

It is well accepted that other IHL rules on the conduct of hostilities such as the obligation to distinguish between civilians and combatants/fighters, and civilian objects and military objectives, the prohibitions of indiscriminate or disproportionate attacks and the duty to take precautions in attacks apply in any type of NIAC as a matter of customary law. Last but not least, AP II and customary law regulate the activities of humanitarian organizations in a NIAC.

It should be noted that, apart from AP II and customary IHL, other relevant international law applicable to the current fighting in Sudan includes international weapons’ treaties to which Sudan may be a party that apply in situations of NIAC, as well as international human rights law.

IMAGE: Heavy smoke billows above buildings in the vicinity of the Khartoum airport on April 15, 2023, amid clashes in the Sudanese capital. (AFP via Getty Images)

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Q. Tragically, there have been myriad reports of international humanitarian law (IHL) violations in Russia’s war in Ukraine, including widespread reports of attacks directed against civilians and civilian objects, torture, and mistreatment of prisoners of war. What issues of IHL application or interpretation do you think have been most important thus far in the full-scale conflict?

A. The ongoing hostilities are an international armed conflict (IAC) to which the full range of relevant IHL treaties apply, as both Russia and Ukraine are parties to the four Geneva Conventions of 1949 and of their Additional Protocol I of 1977. The latter provides well-established rules on targeting aimed at sparing civilians and civilian objects from the effects of hostilities to the extent possible. These include the obligation of distinction (between civilians and combatants and civilian objects and military objectives), the prohibition of indiscriminate and/ or disproportionate attacks, and the duty to take precautions in attack.

While violations of IHL, especially those serious enough to be classified as war crimes, cannot be ascertained without a proper investigation on the ground, it appears from the effects of Russian operations — i.e., the number of civilian deaths and the extensive damage to or destruction of residential buildings, medical facilities (including maternity hospitals), cultural monuments, among other examples — that the basic tenets of the conduct of hostilities have in many cases not been observed. There seem to have also been deliberate and extensive attacks on what is popularly called “critical” civilian infrastructure such as electrical grids and water processing plants aimed at breaking civilian morale, which would be unlawful. Patterns of abuse have also been reported in relation to the treatment of persons in enemy hands: the execution of civilians, mistreatment in places of detention, deportations of children, and so on.

The vast majority of violations have occurred against civilians and civilian objects in Ukraine, because hostilities are for the most part taking place in its territory. It may be asked whether disregard of the rules by the Russian armed forces and their “affiliates” is purely deliberate or could also be due to insufficient knowledge of and proper training in IHL up and down the chain of command. It may be all of the above, which in any case is no excuse. The important thing to note is that, as in other armed conflicts, proper application of existing law is lacking and not the law as such.

Being an IAC – and not, for example, the so-called “war on terror,” parts of which can be classified as discrete non-international armed conflicts – fighting in Ukraine has not, in my view, thrown up completely unheard of legal and practical issues (on cyber operations – see below). Hostilities in some eastern parts of the country have actually resembled World War I trench warfare despite modern technology. The dizzying array of weapons being used and those being mentioned for potential use should also not cloud our judgment. The employment of any means or method of warfare must conform to IHL, and in the case of new weapons, States are obliged to check for possible prohibitions.

The war has, not surprisingly, highlighted some specific already known gaps. Among them, but not limited to, are uncertainty about the exact protection due to civilians in the invasion phase of an IAC, the weakness of the definition of mercenaries, the utility of the notion of a levée en masse, queries as to the application of the nationality criterion in case of dual or multiple nationals with regard to POW status, the war crime of forced conscription of civilians, and the lack of a universally accepted prohibition on certain types of weapons, such as cluster munitions.

​​Q. Are there particular IHL issues that have been overlooked or merit deeper analysis as the conflict continues?

A. I would perhaps note two. The first is the contribution of cyber operations, including attacks, to the conduct of the war by both sides. As is well-known, views on some aspects of IHL applicability and application to cyber operations are still being developed by experts. This is enhanced by the opacity of facts, as the belligerents and third States continue to closely guard the extent to and ways in which cyber means are being employed. There is little doubt that the current conflict will be mined for practical and legal lessons learned in the future. However, a discrete question that may be said to have emerged already is the protection of civilians digitally involved in the conflict by transmittal of tactical targeting information to their armed forces via laptops or cell phones (e.g. the Ukrainian IT “army” or individual “hacktivists”). Are they directly participating in hostilities such that they may be attacked and killed by the adversary? Is there an obligation of the relevant authorities to warn them of this and other possible consequences? It is submitted that the answer is yes on both counts, but there is as yet insufficient analysis and public explanation given by practitioners or experts, especially from States.

The second topic relates to the precise rules governing “screening” operations for security reasons in armed conflicts, both international, as in this case, and non-international. In the Russia-Ukraine conflict, thousands of Ukrainian civilians have reportedly been subject to screening (“filtration”) operations characterized by various forms of ill-treatment and extremely poor conditions of detention, the duration of which could range from several hours to several weeks. IHL rules and procedural safeguards on internment may kick in depending on the context, but it would appear that screening processes need to be the subject of more detailed legal and practical examination. Screening presupposes the collection and evaluation of personal data. Some questions that should be addressed are: what are the lawful purposes of screening? How long can it last? Who can lawfully carry it out and under what material and procedural conditions? What about the protection of the civilian data collected? These and other queries need responses if the necessary civilian protection is to be ensured.

A final, abiding issue which must be mentioned, but cannot be elaborated on here, is why compliance with IHL by all States and other actors is not better on the ground and how to improve it. An extraordinary amount of energy by eminent international experts, scholars and diplomats has in the past year been devoted to examining and debating where the Russian President and his associates could be tried, including after the International Criminal Court’s announcement in March of an arrest warrant for Russian President Vladimir Putin. Accountability for atrocities is indispensable, of course. But it happens largely after the fact, and IHL needs to be respected in the heat of battle. How to achieve that goal – and reduce civilian suffering during hostilities instead of counting the dead in a courtroom – should in my view become an urgent focus of international attention in the future.

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Q. On the issue of the Wagner Group and whether Russia bears State responsibility for its actions, the ICRC and the International Criminal Court both support the “overall control” test, rather than the “effective control” test, for attributing the acts of a non-State group to a State. So, if you accept for the sake of analysis that the lower-threshold “overall control” test is the correct one, would the acts of the Wagner Group be attributable to Russia? 

Jenny Maddocks: The Wagner Group, has played a critical role throughout Russia’s operations in Ukraine. First appearing in Crimea in 2014, the private military company (PMC) later participated in the 2015 Debaltseve offensive and acted as Moscow’s enforcers in the Donbas. More recently, the group’s members have taken a leading role in the battle for Bakhmut, using waves of Russian prisoners as “cannon fodder.”

Russia’s use of the Wagner Group to promote its aims in Ukraine raises questions of accountability. It is alleged that like Russia’s conventional forces, members of the PMC have committed numerous violations of the law of armed conflict (LOAC). For example, reporting indicates that Wagner Group fighters played a key role in the massacres at Bucha, caused the deadly attack on a building housing Ukrainian prisoners of war, and brutally executed a former fighter. It is important to consider whether these actions are attributable to Russia, thereby leading to Russia’s State responsibility.

I have considered this issue in previous posts for Articles of War. In those posts, I addressed various grounds on which the Wagner Group’s conduct could be attributed to Russia, including attribution based on the factual relationship between Russia and the PMC. If the fighters responsible for the LOAC violations acted under Russia’s instructions, direction, or control at the relevant time, their conduct is attributable to the State (Article 8 of the International Law Commission’s Draft Articles on State Responsibility (ASR), widely considered to reflect customary international law). Given the enduring relationship between the Russian government and the PMC, the key question is whether Wagner Group fighters acted under Russia’s control. However, the appropriate threshold of control for these purposes has been the subject of considerable debate.

The Appropriate Threshold of Control

When thinking about Russia’s relationship with the Wagner Group, the notion of “control” has various potential meanings. It could apply at the strategic level, meaning that it is necessary to prove only that the Wagner Group conducted missions in furtherance of Russia’s strategic interests. In this scenario, the State’s influence over the PMC’s operations might extend only to high-level planning, with State officials exerting no control over the group’s means and methods of warfare or how individual fighters act on the battlefield.

At the opposite end of the spectrum, Russia might exercise tactical control over the Wagner Group, meaning that State officials have the authority to direct the way in which individual fighters behave during specific operations. If this is the appropriate control threshold for the purposes of attribution, evidence would be required that Russian officials acted in command of Wagner Group fighters at the time they committed the specific acts that potentially violate LOAC.

These different interpretations of control are apparent in the judgments of the International Court of Justice (ICJ) and the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICJ concluded that a narrow test of “effective control” should apply for the purpose of attribution, meaning that evidence is required of the State’s detailed or tactical control over the acts that violate international law (para 396-406). In contrast, when addressing the degree of control a State must exercise over a non-State actor in order to internationalize a conflict, the ICTY advocated for a wider “overall control” test (para 116-145). This is a looser threshold, which considers the broader relationship between the State and the non-State actor.

Although the ICTY was competent to rule only on matters of individual criminal responsibility, not State responsibility, it asserted that the lower threshold of “overall control” should also apply for the purposes of attribution. The International Committee of the Red Cross (ICRC) supports this approach, arguing that the test used to classify a conflict under LOAC should be the same as the test used to attribute private conduct to a state under the law of State responsibility (para 298-306). The International Criminal Court additionally approved the test, but only for the purposes of conflict classification (para 541).

These differing views on the appropriate control threshold for attribution highlight the delicate balance that must be struck when attributing private conduct to a State. In conflict situations, humanitarian concerns call for a less stringent control threshold to ensure that States are held to account when the non-State actors they support violate LOAC. But counter to this is the principle that States should bear responsibility only for conduct that can be truly categorized as their own. Holding States accountable for a wide range of private conduct, with which they might be only marginally involved, could extend States’ responsibility too far. This is a particular concern when considering the conduct of actors such as the Wagner Group, which act with considerable autonomy.

Applying the more authoritative “effective control” test formulated by the ICJ, I have previously concluded that attributing the Wagner Group’s conduct to Russia presents a challenge. This is principally due to a lack of evidence to prove that Russia’s control extended to tactical-level decisions on the battlefield. However, it is pertinent to consider whether the outcome would be different if, instead, the “overall control” standard is the appropriate test. 

Did Members of the Wagner Group Act Under Russia’s Overall Control?

As an initial observation, it is worthy of note that the test formulated by the ICTY applies only to organized and hierarchically structured groups (para 120). As the Wagner Group is a military formation that operates under a military command structure, it clearly meets this requirement.

Under the ICTY’s test, conduct on the part of a hierarchically structured group is attributable to a State if that State wields “overall control” over the group, not only through the provision of equipment and financing but also by coordinating or assisting in the planning of its military activity. These factors are assessed in respect of the wider relationship between the entity and the State, rather than by focusing on the specific operations in which the relevant violations occur.

Importantly, there is no requirement for the State to plan or direct the particular private conduct that violates international law. It is sufficient if those acts form part of broader activity on the part of the non-State actor over which the State exerts control. The threshold might therefore be met if a private entity is not strictly subordinated to the State’s authority but, instead, has “autonomous choices of means or tactics” in the conduct of its operations (para 47).

In a recent judgment related to the downing of Flight MH17, the Hague District Court considered whether Russia exercised “overall control” over rebels in the Donbas. Concluding that the test was satisfied, the Court pointed to the close connections between rebel leaders and the Russian intelligence service, the material and operational support Russia provided to the rebels, and evidence that Russia provided instructions to the rebels regarding their military operations. In addition, the court found that Russia and the rebel groups conducted “mutually coordinated military operations.”

It is likely that similar evidence is available regarding Russia’s relationship with the Wagner Group. For instance, close links exist between Wagner’s leader, the oligarch Yevgeny Prigozhin, and senior officials in Moscow, including President Putin. Wagner works closely with Russia’s military intelligence service, the GRU, as illustrated by their shared basing in Molkino and the GRU-issued passports used by Wagner’s members. In addition, the PMC relies on Russia for military equipment, including aviation and artillery assets. And reporting indicates that the Wagner Group sometimes coordinates its military operations with Russia’s conventional forces, such as in the Battle of Severodonetsk.

Regarding Wagner’s operations in Ukraine, it is also relevant that “the controlling State in question [Russia] is an adjacent State with territorial ambitions on the State where the conflict is taking place [Ukraine], and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls” (para 140). This geographical proximity leads to an enhanced ability on Russia’s part to influence the Wagner Group’s actions and, according to the ICTY, means that the “overall control” threshold may be easier to satisfy.

Taking these factors into account, it appears likely that a court considering the matter would conclude that Wagner forces in Ukraine operate under Russia’s “overall control.” Therefore, if this is the appropriate test for the purposes of attribution, all the Wagner Group’s conduct in Ukraine is potentially attributable to Russia. Depending on the available evidence, it is possible that the same conclusion might also be reached regarding Wagner’s operations elsewhere.

Is Overall Control the Appropriate Test?

As noted above, the ICTY formulated the “overall control” test in order to determine whether the conflict at issue was international in character. Thus, the primary purpose of the test relates not to attribution but rather to assessing whether a non-international armed conflict is internationalized via State support to a non-State party to the conflict. Nonetheless, in its judgment, the ICTY criticized the “effective control” test formulated by the ICJ and asserted that the looser threshold of “overall control” should apply for the purposes both of conflict classification and attribution.

Some legal scholars and the ICRC welcomed the ICTY’s judgment, viewing the “overall control” test as a much more effective means of determining when private conduct should be attributable to a State. Yet, in seeking to satisfy humanitarian concerns, the test is potentially over-inclusive. This is because the test’s focus on the wider relationship between the entity and the State is replicated in the effects of attribution. Therefore, if a State exercises “overall control” over a private entity, all the entity’s actions performed under that control are attributable to the State, even if the State has no knowledge of, or influence over, the particular conduct that violates international law. This might mean, for example, that Russia bears international responsibility for the Wagner Group’s conduct in attacking the building housing Ukrainian prisoners of war even if the attack was conducted without the knowledge or involvement of Russian officials.

Such a conclusion might be acceptable in the context of Russia and the Wagner Group because of the way in which Moscow uses the group to perform combat functions on its behalf, without seeming to exercise any control over the manner in which it operates. But the law of State responsibility does not apply exclusively to situations such as this. It governs States’ responsibility for all violations of international law, including those outside of conflict situations. Moreover, private actors frequently operate with considerable autonomy. Therefore, attributing all their conduct to a supporting State based upon a relatively loose threshold of State control might be a step too far, and one that proves unacceptable to States.

To illustrate, consider a State’s support to a non-State actor that conducts detention operations against a terrorist group. If the State’s wider relationship with the private entity satisfies the “overall control” threshold, and that test applies for the purposes of attribution, all the non-State actor’s conduct falling within the scope of the State’s control is attributable to the State. Therefore, if the non-State actor tortures detainees, the State might bear international responsibility for that conduct, irrespective of its officials’ knowledge of or influence over the mistreatment.

From a humanitarian perspective, this outcome could be viewed as beneficial, by acting as an incentive to States to exert greater control over the non-State actors they support. However, the State concerned would bear international responsibility for conduct with which it was not involved, and which cannot properly be categorized as its own. Fear of such a result could cause the State to disassociate itself from the operations – even though it might otherwise enable better conditions for those detained – to avoid incurring responsibility should the non-State actor engage in unlawful conduct. In short, the use of the “overall control” test in this context upsets the delicate balance that must be struck when attributing private conduct to a State and leads to a result that States, as the principal architects of international law, would be unlikely to accept. 

Concluding Thoughts

Attributing the Wagner Group’s conduct to Russia via the “overall control” test is appealing due to the lower threshold it sets and the likely outcome that under this test, Russia would bear international responsibility for the PMC’s many LOAC violations. However, when considering the test’s application to other factual scenarios, there is some merit to the ICJ’s concern that this “stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility” (para 406).

Rather than extending the notion of control for these purposes, there might be a better basis on which to attribute the Wagner Group’s conduct to Russia. Attribution based on a State’s instructions, direction or control is just one out of a number of possible grounds on which private conduct may be attributed to a State. Regarding the Wagner Group, it is notable that Russia has authorized the PMC to perform combat functions on its behalf, which are clearly governmental in character. There is another basis of attribution that addresses exactly this situation and does not include any requirement for State control over the entity when it performs public functions pursuant to the State’s authorization (Article 5 ASR).

As I have argued elsewhere, this latter rule of attribution should be interpreted so as to encompass conduct on the part of private entities like the Wagner Group that act as an alternative fighting force for States, whether or not the entity is authorized to act in a manner that accords with the State’s domestic law. This is a more appropriate basis of attribution when thinking about Russia and the Wagner Group, which avoids over-extending the notion of control.

IMAGE: Ukrainian servicemen with a T64 tanks move towards Bakhmut direction, in Donetsk Oblast region, on March 20, 2023. The head of Russia’s Wagner mercenary group said on March 20, 2023 that his forces control more than half of the embattled eastern Ukraine town of Bakhmut. (Photo by ARIS MESSINIS/AFP via Getty Images)

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Q: Concerning the outer space dimension of the conflict, how are the principles of IHL applicable to changing technology during armed conflict and what are the future legal challenges?

Sqn Ldr Tara Brown: International law is robust and can be applied to new situations, but sometimes the emergence of new technologies creates reservations as to how existing rules will be applied. Take for example the discussion surrounding the development of increasingly sophisticated artificial intelligence weapons systems (AWS) and the emergence of a “campaign to stop killer robots” – in reality, as summed up by Professor Kraska, “commanders are accountable for ensuring that methods and means at their disposal and under their command, including AWS, comply with the principles of [the law of armed conflict, or] LOAC.” Put simply, if commanders cannot ensure compliance with the laws of armed conflict, then they must not employ the system. Moreover, states are obligated to conduct weapons reviews to ensure that “weapons, means, or methods of warfare comply with legal obligations.” At bottom, the question of whether a weapon is capable of being employed in a manner that is consistent with a state’s obligations is a technical issue, not an issue with the law.

Turning to outer space during times of armed conflict – traditional protections, obligations, and prohibitions, as captured in international law, apply to activities in, to, or through outer space, as reflected in Article III of the Outer Space Treaty (OST). A few features of space activity make LOAC requirements regarding proportionality in attack and the duty to exercise constant care during military operations particularly prominent: the scale of commercial actors in space; reliance by militaries on commercial services that will often also serve civilian functions; and an inability to separate a dual-use satellite into military and civilian components for targeting purposes.

At the outset of Russia’s full-scale invasion of Ukraine in 2022, Russia conducted a distributed denial of service (DDoS) attack against the Viasat satellite communications network, which had a dual impact on civilian and military systems within Ukraine and in Europe more widely. SpaceX CEO Elon Musk subsequently provided Ukraine with SpaceX Starlink services, which have transpired to be a key part of the Ukrainian military’s ability to defend itself. When Russia failed in its attempts to jam Starlink, a question arose as to whether Russia could lawfully target Starlink through kinetic means. The short answer is no.

Satellite constellation systems comprise multiple satellites that operate together to perform the same function. As of March 2023, Starlink’s network of 3803 satellites in low earth orbit facilitate its provision of a low-latency (the time taken for data transfer from the satellite to the end user) global internet service. To sum up my Articles of War post, a kinetic attack against a single satellite within the  constellation would be “unlikely to cause anything more than a negligible or de minimus disruption to the system.” Because of the resilience offered by a constellation of satellites, Russia could not establish the military advantage of striking a single one, such that it would not be possible to determine the lone satellite is a valid military objective (defined as an object that by its nature, location, purpose or use, makes an effective contribution to military action, and “whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”). Even if there were a means of simultaneously kinetically targeting multiple satellites within the constellation, I would still conclude this would be unlawful for various reasons, not least of which is the volume of uncontrollable debris that would result from such a large-scale attack, the effects of which cannot be limited in violation of the prohibition against indiscriminate attacks (Article 51(4)(c) of Additional Protocol I).

Conversely, a target set in the terrestrial domain that may yield a similar military advantage, such as a fleet of warships, would likely produce a different conclusion as to its lawfulness, which illustrates that international humanitarian law can be applied flexibly. However, that is not to say that emerging technology may not present legal challenges in the space domain.

One such example is the interpretation of Article IV of the OST, which obliges States not to place in orbit around the Earth any objects carrying nuclear weapons or other weapons of mass destruction. The OST does not define “weapons of mass destruction” but the drafters would have been familiar with the 1948 definition by the UN Commission of Conventional Armaments, “atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above.”

The Article IV prohibition requires a full orbit around the Earth (see for example the U.S. interpretation in the DoD Law of War Manual, at 14.10.3.1). Last year China tested fractional orbital bombardment systems. These systems are launched into space before returning to Earth and are capable of being loaded with any weapon type, including those that would fall within the category of weapons of mass destruction, and travel at hypersonic speeds that would avoid their detection by missile defense systems in sufficient time to respond. As these systems only partially orbit the Earth they fall outside the scope of Article IV.

Other existing laws could nevertheless regulate this activity. No States possessing nuclear weapons have signed the Treaty on the Prohibition of Nuclear Weapons, but a nuclear explosion that causes radioactive debris outside the territory of the State conducting the explosion would run afoul of the Partial Nuclear Test Ban Treaty for those States party to the Treaty. Additionally, other treaties place relevant restrictions and prohibitions on the employment of chemical, biological, and radiological weapons, some of which are considered to have customary international law status. While these other sources of law may offer some protection in the alternative, this “changing technology” would not be captured specifically by Article IV of the OST. On the one hand, this presents a challenge. On the other, it offers States flexibility in the operation of their deterrents.

That issue aside, with space being a domain upon which we are so reliant, and noting its fragility, I think the real challenge is avoiding escalation in the first instance. To that end, the work of the Open Ended Working Group (OEWG) on reducing space threats, the unilateral commitments against the testing of direct-ascent anti-satellite (DA-ASAT) missiles, the development of transparency and confidence building measures, the ICRC recommendations relating to threats to space systems, and the upcoming Woomera and MILAMOS space law manuals, all serve to increase dialogue, reduce the risk of miscalculations or misunderstandings, increase transparency, and, ultimately, reduce the risk of escalation in outer space.

IMAGE: Missile defense system (via Getty Images)

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The thousands of people experiencing debilitating effects of cholera and diarrhoea in Libya, Syria, Somalia, Ukraine and so many other places know this reality all too well.

But Resolution 2573’s impact hinges on how it is implemented, and those efforts will benefit from a better understanding of the links between damaged infrastructure and public health.

Our recent analysis of the reverberating effects of attacks begins that process. Summarizing part of the analysis, here, we detail how and under what conditions damage to water and sanitation services are likely to lead to water-related infectious disease. Our aim is to start a conversation about the extent to which the growing evidence base on the reverberating effects of attacks on the transmission of disease may inform Resolution 2573’s ability to protect civilians.

Examining evidence from Yemen, Gaza, and Iraq, we argue that the spread of water-related disease may be expected when an attack risks the crossing of drinking water and sewage lines, and that our confidence in this association increases as the conflict protracts. The findings thus extend the calls for limiting incidental harm, through greater compliance with the rules of International Humanitarian Law (IHL) and better transparency, accountability or use of technology. We conclude with some thoughts on how to strengthen Resolution 2573’s impact and minimize civilian harm.

The Risk of Infectious Diseases Is Foreseeable

Public health engineers, often working for humanitarian organizations all over the globe, observe a pattern as routine as it is toxic: Explosions impair electricity services, which can knock-out sewage services; raw sewage contaminates drinking water supplies; existing strains of cholera rip through society.

There are of course other reasons why cholera may develop and spread. International Committee of the Red Cross (ICRC) studies of the impact of explosive weapons show that they can cause direct and indirect impact on the people (such as operators and repair crews), hardware (such as infrastructure and spare parts), and consumables (such as water-treatment chemicals) that make up any urban sanitation service. Furthermore, the services are highly interconnected: if an electrical power plant is hit, the pumps of the water treatment plant that it supplies will no longer function (assumingadequate backup sources are not in place), and once the wastewater pumps fail, the sewage backs up into the streets or can seep into leaky drinking water pipelines.

A century of epidemiological research further informs us that drinking water laced with sewage is directly linked to the outbreak and spread of infectious diseases, especially to the killer forms of diarrhoea, cholera and typhoid (see examples of this research here, here, and here). For example, children living in conflict under 5 years of age are 20 times more likely to die from diarrhoea linked to unsafe water and sanitation than to violence in conflict.

In fact, the “faeces-to-faces” route by which the pathogens spread is so well-known that separating drinking water and sewage pipelines is a fundamental part of emergency preparedness plans to protect critical infrastructure (see examples from the United States here, the European Union here, and Canada here). It follows that a higher risk of an outbreak and or spread of infectious disease can be expected if the effects of an attack during armed conflict may lead to cross-contamination of water and sewage lines.

The Impact of Infectious Disease – and Our Knowledge of It – Increases with Time      

This pattern played out prior to the cholera outbreaks – which affected over one hundred thousand people – in Basrah, Iraq, in 2007 and 2015 (see here, here and here), and over two million throughout Yemen in 2017 (see here, here, and here). Similar conditions existed in Gaza in 2014, where the incidence of watery diarrhoea spiked to nearly 60 cases per 100,000 people following repeated air strikes, and dropped soon after the services were restored.

But gauging the real impact of attacks is tricky and requires also considering the quality of the services before the attack, as seen in the descending path of Figure 1. This “baseline resilience” of services is important, because some systems can bounce back from an attack, while others will fail. Just as a jab to a boxer in the twelfth round of a fight is likely to cause more damage than a jab in the first, the effects of an attack on a water supply system that has experienced years of neglect will reverberate much stronger and longer than on one that has been well-maintained.

Caption to Figure 1: The trends between the baseline resilience of water and wastewater services, the risk of cross-contamination of water and wastewater, and the associated consequences in terms of infectious disease – and their foreseeability. Based on evidence from Yemen, Gaza, Basrah.

The take-away trend of Figure 1 is that the duration of the armed conflict matters. Notably, the more protracted the armed conflict, the greater the risk of water and sewage cross contamination. This is because direct physical damage accumulates and “baseline resilience” decreases. Just as significantly, the more that time passes, the more information about the condition of the infrastructure and the status of service delivery becomes available. This is particularly the case when intelligence, surveillance, and reconnaissance (ISR) is being carried out to inform military planning and the decision-making process regarding targeting. Using remote sensing technologies, open source information, and readily-available expertise (for instance engineers and public health experts), parties to the conflict can assess the location and status of critical civilian infrastructure and develop a nuanced understanding of these systems to inform estimates of the impacts of an attack. The more that reverberating effects are foreseeable, the more they are preventable.

Better Implementation of Resolution 2573

The growing base of evidence and knowledge feeds into the increasing efforts to improve the protection of civilians during armed conflict. The ICRC and other organizations have long advocated for States and parties to armed conflict to enhance their understanding of the cumulative impact of armed conflict and use of explosive weapons with a wide impact area on essential services. The Geneva Principles for the Protection of Water Infrastructure assert and ICRC considers it a legal obligation that reasonably foreseeable reverberating effects of attacks be considered when assessing incidental harm for the purposes of proportionality and precautions in attack.

Security Council Resolution 2573 bolsters this case, particularly in light of the very broad political support it received. The Resolution’s unanimous co-sponsoring and adoption by the Council meant it achieved the status of “presidential text,” which behoves the international community to strengthen and implement legal and policy frameworks to ensure continued access to essential services during armed conflict, and mitigate civilian harm, along the way.

But the real value of this political support will be gauged by the willingness of States to implement 2573 (Operative Paragraphs 1- 6) and facilitate a more apt response in situations where essential services are disrupted (Operative Paragraphs 7 – 10). Mechanisms and actions to implement the Resolution start first and foremost with Operative Paragraph 12, which requests the United Nations Secretary-General to include the issue of protection of objects indispensable to the survival of the civilian population as a sub-item in the (annual) reports on the protection of civilians. National data collection systems on attacks against civilian objects, when they exist, can add to the evidence base by collecting and providing timely, objective, accurate, and reliable information. Even given their limitations, these systems can contribute to enhancing protection of civilian objects, and in so doing prevent or mitigate further civilian harm. Improving the reliability of national and other sources of data also requires unfettered and unrestricted humanitarian access, which enables data collection which can inform prevention and response actions, States shouldintegrate Resolution 2573 into military doctrine, planning, training, and conduct of operations.

We expect the conversation about the evidence base of reverberating effects of attacks on the transmission of disease to continue, and to better inform Resolution 2573’s ability to protect civilians. Ultimately, protecting civilians from reverberating effects requires the political will and resources for combatants to roll up their sleeves and undertake the data collection and analysis to identify critical infrastructure, define how those critical infrastructure are interconnected, and estimate the potential impact of an attack. On the other hand, humanitarian and development organizations require the resources to provide a more holistic response at scale, while further supporting the development of a manual of best practices on strengthening the resilience of the interconnected essential services. It may be a tall order, but the civilians caught up in the wake of fighting deserve no less.

IMAGE: The United Nations Security Council holds a meeting at U.N. Headquarters on Feb. 21, 2023 in New York City. (Photo by John Lamparski via Getty Images)

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Q:  Are Methods of Naval Warfare at Risk Under “Qualified” Neutrality?  

Major W. Casey Biggerstaff:  In the wake of Russia’s renewed invasion of Ukraine, several States have provided Ukraine with a remarkable amount of military aid and assistance not seen since World War II. Among the several international legal issues raised by this support is the decades-old debate over whether it violates the law of neutrality. The dispute generally revolves around whether neutral obligations in the classic sense should or should not apply in the post-U.N. Charter era. The issue is critical since breaches of international law (or “internationally wrongful acts”) would open the door to Russian countermeasures (see Draft Articles of State Responsibility, arts. 2, 22, and 31) or in a narrow set of circumstances under traditional neutrality law, the use of force by Russia to prevent further neutrality violations, including those occurring on neutral territory (see U.S. DoD’s Law of War Manual, § 15.4.2; the current availability of which is contested, see Bothe ¶ 28; Davis).

While much of the debate has centered on the various legal bases set forth in defense of neutrality’s variants, evaluating their practical implications is also critical. In private discussions with fellow international law practitioners, for instance, some have questioned whether any reluctance to embrace so-called “qualified” neutrality, which justifies the provision of military aid under certain conditions, is due to concern that its second-order effects could limit conventional methods of war that indirectly affect neutral States. Specifically, as the vast majority of material aid (and global commerce generally) travels by sea, they question whether the belligerent rights of blockade and “visit and search” would continue to remain available to belligerents labeled as aggressors by other States under a qualified neutrality regime. A blockade is an operation that restricts enemy and neutral ships or aircraft from entering or exiting specified areas (e.g., enemy ports, airfields, etc.) (Commander’s Handbook on the Law of Naval Operations, 7.7.1). Visit and search refers to the method by which a belligerent verifies the character of merchant ships (enemy or neutral) and their cargo (contraband or noncontraband) encountered outside neutral territory (7.6). To understand what’s at stake, however, it is necessary to summarize the debate’s various positions first.

Proponents of adhering strictly to classic (or “absolute”) neutrality rules, such as those outlined in the 1907 Hague Conventions V and XIII Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land and in Naval War, argue that certain types of support violates neutral States’ legal obligations of abstention (or non-participation) and impartiality and thereby constitute a breach of international law.

For instance, with respect to the $32.2 billion in security assistance the United States has provided Ukraine since February 24, 2022, Hague Convention XIII unequivocally states “the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden” (art. 6). By this approach, it is legally irrelevant, at least for purposes of assessing neutral duties, that Ukraine is the victim of Russian aggression. Of course, the same would be true of Iran’s and other States’ provision of weapons to Russia, which violates other international legal obligations as well given Russia is clearly the aggressor.

On the other side of the debate, advocates of various forms of qualified (or “benevolent”) neutrality claim (e.g., here, here, and here) that the traditional treaty and customary rules referenced above have been displaced, albeit to varying degrees, by the 1928 General Treaty for Renunciation of War As an Instrument of National Policy (or Kellogg-Briand Pact) and the collective security regime established by the 1945 U.N. Charter, if they aren’t obsolete altogether (see generally H. Lauterpacht, 650-51).

Under this view, States supporting Russia with military aid are still violating neutrality law. By contrast, those States supporting Ukraine as the undeniable victim of Russia’s unprovoked aggression are not because the instruments cited above “destroyed the historical and juridical foundations of the doctrine of neutrality conceived as an attitude of absolute impartiality in relation to aggressive wars” (U.S. Att’y Gen. Jackson, Speech to IABA, Mar. 27, 1941). Thus, while nuanced variations of the argument exist, they generally share a common understanding that classic neutrality rules do not apply to State aid and assistance provided to a victim-State such as Ukraine.

While the debate over the legal basis for qualified neutrality is far from settled, what is less clear is what effect, if any, it would have on how a belligerent State can interact with neutral States supporting the former’s adversaries. In other words, if qualified neutrality is indeed correct as a matter of law, may belligerent States still execute blockades or exercise their right of visit and search if they are the aggressor in the conflict? If not, that consequence would have severe implications for the law of naval warfare.

Shortly after the Kellogg-Briand Pact entered into force, the International Law Association proposed in its 1934 Budapest Articles of Interpretation that, in the event an aggressor State violates the Pact, other States should, inter alia, “Refuse to admit the exercise by the State violating the Pact of belligerent rights, such as visit and search, blockade, etc.” (here at n. 4). This could account for some suspicion that naval methods of warfare may be at risk under qualified neutrality. However, the Articles met with initial criticism before World War II’s outbreak, including by a leading advocate of qualified neutrality, and even those States that ultimately adopted a policy of qualified neutrality during the war do not appear to have embraced the cited proposal in their practice.

Following World War II and the adoption of the U.N. Charter, relatively few armed conflicts between States (neutrality law does not apply to non-international armed conflicts) have arisen, making it challenging to assess current international consensus. The issue is further clouded by the fact that some analysts—wrongly, in my view—have increasingly called into question the military effectiveness of, in their opinion, outdated naval warfare methods such as blockades. For instance,

Naysayers argue that the world has changed in several critical ways since World War II, making a return to that form of commerce warfare highly unlikely. They point to globalization, the volume of mercantile traffic, the relatively small size of modern navies, the complexity of [the] modern commercial shipping business, and the increase in alternative trade infrastructure that is relatively immune to maritime trade warfare (Squires at 4).

Nevertheless, if customary international law has indeed evolved into qualified neutrality, in my assessment, there is little empirical evidence that the use (by aggressors) of blockades or visit and search as lawful methods of naval warfare have been adversely impacted, at least not in the limited number of international armed conflicts that have included a significant maritime component. For example, at the war’s outset, Russia declared “restricted zones” in the Black Sea and Sea of Azov. While critics have branded the de facto blockade as illegal, they did so because Russia’s actions failed to satisfy all the requirements for imposing a lawful blockade (authority, notification, effectiveness, impartiality, limited scope; see Commander’s Handbook, 7.7.2), not because the operation was unavailable to Russia as a matter of law as an aggressor-State (see Kraska at 553-54; Fink). Similar criticism has befallen Russia’s indiscriminate attacks on neutral merchant vessels inside the restricted zone, which have been condemned not because of Russia’s loss of legal rights, but because “there [was] no indication that any of these vessels were engaged in activities that would render them subject to capture or attack by either of the belligerents” (Pedrozo, 32).

Moreover, in my view, qualified neutrality would not disturb longstanding methods of waging war at sea because qualified neutrality, at least in its original formulation, is not inherently incompatible with absolute neutrality; qualified neutrality is a neutral State’s option, not its duty (H. Lauterpacht, 651; Jackson, 9-10). As the current conflict demonstrates, even if some States discriminate against a perceived aggressor, that does not mean all States must do so. This coexistence counsels against the conclusion that methods of warfare would be affected by how individual States react to the conflict.

Further, even if qualified neutrality was exclusively applicable, I am not persuaded, at least not as a matter of law, that an aggressor should not be able to interdict and capture arms or other commerce susceptible to the enemy’s use in warfare (contraband) just because qualified neutrality precludes the wrongfulness of a neutral State supplying them. At its core, qualified neutrality is premised upon the fact that war as an instrument of national policy is now generally illegal (Jackson, 15). But in the decades since the Pact and Charter were adopted, the question of when States may resort to force has had little, if any, bearing on how they may do so. In other words, qualified neutrality alters the duties owed to an aggressor, not the nature of the support provided to the victim. In my view, absent a clear indication in State practice to the contrary, it should not effectively transform what would otherwise be contraband into “free goods” immune from capture. I don’t believe the law has developed that far. Thus, there is no reason to suspect, at least not under the current state of affairs, that qualified neutrality would proscribe methods of naval warfare that have existed for centuries.

IMAGE: Russia’s navy ships and helicopters take part in a military exercise called Kavkaz (the Caucasus) 2016 at the coast of the Black Sea in Crimea on September 9, 2016.  (Photo by VASILY MAXIMOV/AFP via Getty Images)

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Written by Prussian immigrant and political scientist Francis Lieber, the 1863 military field manual was formally adopted by the U.S. Army that same year under orders from President Abraham Lincoln. Since then, the name Lieber has become synonymous with U.S. interpretations of the laws of armed conflict. The American Society for International Law has its “Lieber Society on the Law of Armed Conflict.” The United States Military Academy at West Point has its Lieber Institute for Law & Warfare, named after both Lieber and his son, Guido Norman Lieber, who served as professor of law at West Point and later as Judge Advocate General of the U.S. Army. The literature on the Liebers and their legacy is substantial, stretching back at least as far as the historical writing of Elihu Root, who served as secretary of state from 1905 to 1909, and continuing through late-twentieth-century giants in the field like Theodor Meron. The Department of Defense’s Law of War Manual cites Lieber’s text as a crucial forerunner.

Writing about Lieber has continued apace in the twenty-first century. Recent literature on the Lieber Code, including my 2012 book, redescribes the code as arising out of the felt imperatives of Emancipation and the arming of Black soldiers. In this view, Lieber and the U.S. Army’s leaders designed the Code not to promote humanitarian restraint, but to empower righteous force on behalf of the Union and the antislavery cause.

Kinsella’s compelling article, by contrast, draws on the critical insights of the fast-growing literature on settler colonialism to argue that the Code and its author aimed to legitimize the exterminatory project of Native genocide. The Code was an “artifact of Native wars,” she contends, adding that it was “not a decisive or humanitarian break from the past,” but rather a continuation of the campaign of “Native dispossession and extermination” that had characterized U.S. history since the War of Independence and settler-colonial history for a century and more before that (p. 2).

In crucial respects, Kinsella’s article is right about each of these claims. Lieber helped establish the modern humanitarian law tradition. But he also believed that white settlers would replace Native peoples and that such replacement would represent moral progress for humanity. His famous 1863 Code carried forward long-standing ideas about combatant status and retaliation rooted in efforts to remove and kill Native people. The Code advanced fundamental distinctions in European international law between so-called “civilized” nations, on one hand, and “savages,” on the other, while presupposing that Native nations were not worthy of recognition in international law. To the contrary, Lieber thought of Native ways of war as the paradigmatic form of lawless, irrational combat, which it was the mission of international law to eradicate.

Lieber’s interpretation of the laws of war were heavily influenced by scientific racism—the pseudoscientific late nineteenth century view that biological evidence justified racist beliefs. He was a deep and abiding believer in a hierarchy of races, where “Teutonic” peoples presided over other races, a view shared by many European international lawyers and scientific racists at the time. In this sense, Lieber’s Code reflected and reproduced a virulent thread in the law of nations that preceded him by centuries and continues today.

In recent decades, the scholarly literature has rightly focused on the role of empire and racism in the history of international law. Kinsella admirably connects this literature with the crucial 1863 moment in the laws of war.

To be sure, versions of that connection already exist in the literature on the Lieber Code, though perhaps without Kinsella’s critical emphasis. Kinsella contends that my book, for example, “ignores the widespread practice of irregular war against native peoples” (p. 7), and that I miss the way the Lieber Code “criminalized Native warfare” and “facilitated the immunity of soldiers and often private citizens” when they killed Native people (p. 8). I am not so sure. The book contains chapters dedicated to both these subjects. My book described Lieber’s work as designed to empower strong states in armed conflict, which for the United States often meant Indian wars. As James Childress contended nearly a half-century ago, and as I, too, tried to emphasize, Lieber was a critic (not a supporter) of the humanitarian project of making war gentler. Moreover, the prevailing view on the Lieber text now presupposes (or should presuppose) that the laws of war in the European world were built expressly to promote and legitimize the violence of imperial states. The promotion of empire was a general background condition for the laws of armed conflict, shaping its structure and organizing its most foundational principles. The point is now inescapable in the scholarly literature.

At the heart of Kinsella’s article is a quandary for historical explanation in international law and the law more generally. What is the right frame for understanding the watershed moment of 1863 in the laws of war? Is it settler colonialism or Emancipation?

Kinsella is dismissive of my claim that Emancipation was the “quintessential event for the laws of war in American history” (p. 11). And she is right that to make sense of Lincoln’s General Orders No. 100, we can hardly overlook settler colonialism and the violent extermination of Native peoples, both of which (as Kinsella rightly points out) were “a condition of emergence” for the Lieber Code, in no small part because they were central to the entire law of nations project (p. 2). Kinsella’s intervention is a powerful reminder of this fact, though the prior literature can hardly be said to “wholly efface” the point.

At the same time, the displacement and extermination of Native peoples – what would amount to genocide by today’s standards – long preceded Lincoln’s 1863 order and continued for decades beyond it. Warfare between the United States and Native peoples required no formal remaking of the laws of war either before, during, or after the war, in large part because the existing regime so effectively supported the settler colonial project. Lincoln could and did (as Kinsella points out) order the 1862 execution of 38 Dakota men convicted in a military commission of massacring white settlers without remaking the law of armed conflict (pp. 7-8). Massacres were committed at Sand Creek—where the U.S. Army deliberately attacked non-combatants in Cheyenne and Arapaho encampments in 1864 – and elsewhere without prompting any formal changes to the law.

By contrast, Emancipation and the arming of 200,000 Black soldiers gave Lincoln and his administration powerful reasons to formally transform the laws of war. Emancipation produced a distinctive crisis for the United States’ theretofore long-standing pro-slavery approach to the laws of war. Emancipation also yielded a series of practical controversies around the combatant privileges of Black soldiers, the legal status Black prisoners of war, and the prospect of Black uprisings behind Confederate lines.

Ultimately, histories of the Lieber Code and of the laws of war in American history need not choose between Emancipation and settler colonialism. Kinsella need not diminish the distinctive significance of the Emancipation moment to make her valuable point that Native warfare shaped the terms of Lieber’s text in much the same way it had conditioned the laws of war in the Americas (and elsewhere) for centuries. Such conflicts can hardly explain why the United States produced the Code when and how it did. But Kinsella is surely right that Native conflicts powerfully influenced the Code and the culture from which it came.

Interestingly, Kinsella’s scholarship does not yet seem to take a position on an emerging debate on what might be described as the paradox of inclusion and exclusion in the laws of armed conflict. In the early nineteenth century, the Euro-American laws of war largely excluded Native peoples from their ambit. U.S. soldiers in the age of Andrew Jackson scorned the idea that the laws of war applied to Native nations and combatants. Military men like Jackson behaved accordingly, often with brutal violence. The Lieber text, by contrast, reflected and advanced an ambitious expansion of the formal terms of the rules of war to include Native wars. Yet that expansion did not constrain violence against Native peoples so much as facilitate and legitimize it, as I have observed elsewhere (see Lincoln’s Code at pp. 332-35 especially).

From the age of Ulysses S. Grant to the era of Theodore Roosevelt, the U.S. military leaned on the laws of war to accomplish many of the same destructive ends it sought to achieve a century earlier without the formal application of the laws of war. I have argued (and others agree) that this represented a violent inclusionary turn in the American laws of war, one that General Orders No. 100 inaugurated. Inclusion in this sense was not premised on humanitarian concern – and it was not good news from the Native perspective. If the 1863 Code aimed to win the Civil War, the expansion of the laws of war to encompass Native conflicts aimed to support the United States in its late-nineteenth-century Indian conflicts. Critics of this view disagree, observing no significant late nineteenth-century turn toward Native inclusion as a strategy of empire.

Either way, the most exciting feature of Kinsella’s article is the foundational puzzle it raises for legal historical interpretation. What counts as an adequate historical explanation when the regime under study is pervasively conditioned by empire? On the one hand, empire’s ubiquity powerfully conditioned the Lieber Code, as it did virtually every development in the nineteenth-century laws of war. On the other hand, the very fact of empire’s pervasiveness limits its capacity to explain the distinctive features of something like the Lieber Code. Neither the Code’s special vices, nor its particular virtues, stand out in Kinsella’s account. And that is a loss – for it undoubtedly had plenty of both.

IMAGE: Soldiers lining up (via Getty Images)

The post Lieber at Sand Creek: A New Critical Reinterpretation of the Laws of War appeared first on Just Security.

According to the Netherlands, the quala that was bombed, “quala 4131,” was a lawful military objective because it was used by the Taliban to attack NATO forces. However, the plaintiffs – surviving residents of quala 4131 and next-of-kin of deceased residents – denied that it was used by the Taliban and argued that it was a civilian object, occupied by civilians. Attacking the quala was therefore a violation of IHL’s principle of distinction, the plaintiffs submitted. The principle of distinction provides that those involved in armed conflict need to distinguish between civilians and military objectives. 

The court did not conclude that the quala could not have been a lawful military target. But it concluded that the Dutch state, 15 years later, could insufficiently substantiate why the military determined this quala as a military objective. The state had argued that the quala had a strategic position in the Chora Valley, that there was enemy fire on the day of the bombing from the direction of the quala, and that there must have been additional intelligence on the basis of which the quala was identified as a military target. However, concrete intelligence could not or no longer be discovered. According to the court, it may well have been a military target, but it is the duty of the state to substantiate that, which the state insufficiently did. Accordingly, the case was decided in favor of the plaintiffs. 

This case therefore turned on how much information the military has to record and keep stored so that it can substantiate why “a reasonable commander” could determine a location as a military target, which the court also noted must be retained for the duration of the statute of limitations. In the Netherlands, this is five years. Because (most of) the plaintiffs had communicated to the court within that time limit, the case eventually made it to a judgment 15 years later. 

The Battle of Chora

This case arises out of events during the mid-June 2007 battle of Chora, Afghanistan. After 9/11, U.N. Security Council Resolution 1386 (Dec. 10, 2001) authorized the establishment of the International Security Assistance Force (ISAF) and the use of “all necessary means” to assist the Afghan authorities to maintain security, in particular in relation to al-Qaeda and the Taliban. ISAF came under NATO command in August 2003. 

In its judgment, the court relied on the following facts related to the battle of Chora. Between Aug. 1, 2006, and Aug. 1, 2010, the Netherlands was the “lead nation” in the southern Afghan region of Uruzgan. The Dutch supreme commander of the armed forces maintained so called “full control” over all Dutch military units. The locally stationed Dutch contingent commander was the “red card holder,” meaning that he was authorized to prevent the deployment of Dutch military when such would not be in accordance with the conditions the Dutch government had provided. 

The command center of Task Force Uruzgan (TFU) and Camp Holland were located in Tarin Kowt, close to the strategically placed Chora Valley on a crossroads of routes to the Gizab area in the north, Khaz Uruzgan in the east, Deh Rasnan in the south, and the Baluchi valley and Tarin Kowt in the west. From April 2007 onwards, two to three platoons (of 20-30 troops each) were permanently stationed in Chora pursuant to intelligence about an upcoming attack by the Taliban to overtake the valley. Indeed, early June saw an increase in Taliban fighters in the area, and in the early morning of June 16, groups of Taliban attacked the Chora Valley from the east and west and reportedly committed atrocities against civilians. 

After a day of heavy fighting, the police posts in the west were lost to the Taliban, and around 6:30 pm, the intensity of the fighting decreased. ISAF units were pushed back to an area of around 4 square kilometers around the strategically positioned “White Compound,” which the TFU commander assessed as “very threatening”: the TFU needed to either retreat from the Chora Valley or stand and fight. At 8 pm, the TFU commander took the stand-and-fight decision, requiring “all necessary means,” partially to protect Afghan civilians against being killed by the Taliban as reprisal, but also for ISAF’s credibility and Chora’s militarily strategic position. 

Directly after the stand-and-fight decision, the TFU commander requested ISAF’s Regional Command South (RC(S)) provide air assets to attack Taliban targets that were identified earlier, including targets that could no longer be directly observed. This was supported by fire from a TFU Pantserhouwitser. 

The Targeted Quala: Civilian Objective or Military Target?

In the evening of June 16 and the following night, F-16s shot 28 guided bombs, of which 18 were dropped on six or seven qualas in the residential area of Chora, including quala 4131. During the bombing, quala 4131 was completely destroyed, including the quala’s mosque, and 18 people from four families lost their lives, several others were wounded, and 30 animals were also reported to have been killed. 

The TFU Chief Joint Fires led the aerial support. According to his report, at 3:10, 3:32 and 3:43 am (on June 17), quala 4131 was bombed as an enemy firing position, after positive identification of the target by the F-16 pilot as the previously identified quala 4131, and signing off by JTAC. JTAC is the Joint Terminal Attack Controller responsible for authorizing an attack after positive identification of a target. Their report includes a statement that the target had been previously determined as a military target by their “own troops in front.” Prior to the F-16 bombings, several Afghan local authorities were given advance warning that civilians had to leave a so-called “engagement area.” A local authority confirmed prior to the bombings that the civilians had left the designated area. 

Twenty hours prior to the bombing, at 6:58 am on June 16, quala 4131 had been identified as containing enemy units. Around noon, 15 hours prior to the bombings, there was more enemy firing coming “more or less from the direction of quala 4131,” which was reported to the command post but not documented in a log. Around 5 pm, the platoon was again fired at, but this time from approximately 800 meters west of quala 4131. Shortly thereafter, at 5:30 pm, (suspected) hostile units were spotted at approximately 400 meters east from quala 4131 and were fired at from the air by ISAF. This contact was not documented in a log. 

According to the court, these last two instances were insufficiently related to quala 4131 to qualify as circumstances on the basis of which quala 4131 could be determined as military target. From the earlier instances, it was not clear that fire actually came from quala 4131, rather than as part of Taliban movement that passed quala 4131. Moreover, the court concluded that these circumstances were insufficiently recent to justify the bombardment many hours later in the middle of the night, particularly because the court found no evidence that the assumption that quala 4131 was used by the Taliban was verified. 

During the proceedings, the Dutch state acknowledged that the information now available in and of itself would be insufficient to justify the bombing, and that more recent information on the status of quala 4131 would have been required. The state thereby argued that it can be assumed that intelligence was available that one or more identified Taliban fighters were in quala 4131, but that not all communication was recorded and stored. 

The court rejected this argument as insufficiently concrete. The court thereby emphasized that the state did not argue that the intelligence had really existed but was no longer traceable, or that the substance of certain intelligence could not be shared for security reasons, but that the intelligence must be assumed to have been available. Yet, the court was not convinced that this intelligence really was available, since the target report had said that the identification had been conducted “by own troops in front,” which the court interpreted as “own ground forces in the area.” There was no guarantee this would have been sufficient intelligence for a determination that the quala was a legitimate target, because the JTAC positive identification was no more than a verification that the earlier determined target was indeed the target in range of the F-16, rather than a verification of the military use of the residential complex. 

Violation of International Humanitarian Law’s Principle of Distinction

The battle of Chora has been subject to investigation by the Dutch Ministry of Defense, the U.N. Assistance Mission in Afghanistan (UNAMA), the Afghan Independent Human Rights Commission (AIHRC), and NATO. While the NATO-ISAF commander’s investigation raised concerns that it may not have been sufficiently possible to distinguish between military targets and civilian objects without direct observation of the targets, this was overruled by the NATO Supreme Allied Commander Europe and the NATO Secretary General, who concluded that TFU acted in accordance with IHL. The Dutch state, UNAMA, and AIHRC reached the same determination. On that basis, the Dutch Public Prosecutor’s Office concluded it was unnecessary to investigate further whether war crimes would have been committed.  

However, in a civil litigation brought by the surviving quala residents and next-of-kin against the Dutch state, the District Court of The Hague (a domestic court within the Dutch legal system) agreed with the plaintiffs that IHL’s principle of distinction was violated. While this is a torts case before a court that does not usually deal with IHL, torts law assesses whether an unlawful act was committed by violating a plaintiff’s rights. The court explained that it applied IHL because the facts occurred during an armed conflict and that IHL then governs the norms of what the Dutch military were allowed to target. The court applied Articles 48, 52, and 57 of Additional Protocol I to the Geneva Conventions as reflections of customary international law. 

Article 48 provides that parties to a conflict need to distinguish between civilians and combatants and between civilian objects and military objectives, and direct their operations only against military objectives. Article 52 provides that with regard to otherwise civilian objects such as a house, military objectives are only those that make an effective contribution to military action, and that in case of doubt, it shall be presumed that it is not used to make an effective contribution to military action. Article 57 concerns the obligation to take precautionary measures more than the principle of distinction but also provides that everything feasible needs to be done to verify that objectives that are to be attacked are not civilian. Article 57 for instance provides for the obligation to give effective advance warning of attacks that may affect the civilian population, which, according to the judgment, the Dutch military at least seems to have tried to do and that they had received confirmation that civilians had evacuated from the area through a local Afghan authority. The court did not address this point further, and it remains unclear how reliable that confirmation was, whether the entire area was evacuated, whether all civilians had been evacuated, for how long it remained evacuated, and whether the military tried to verify that the area was evacuated.  

However, the court’s main reason to conclude that IHL was violated was because, when a plaintiff claims that a location is civilian, the state needs to be able to show on what basis a “reasonable commander” could determine that the civilian location has become a military target. The court further concluded that the state had an obligation to verify that this was still the case after a significant time lapse between identifying a location as military object and bombing it, given that the target may not still be used for military purposes.

Aftermath

In the Feb. 3 announcement that the Netherlands would not appeal the judgment, the Minister of Defense wrote that – 15 years after the events in Chora – the state is unable to provide further information to substantiate the decision to qualify the quala as military objective. She thereby emphasized that the court explicitly said that the judgment does not mean that the Dutch armed forces committed a war crime, nor that the court concluded that the quala that was bombed could not indeed have been a lawful military target. 

So what is the takeaway? According to this Dutch civil court, the military should have documented their decisions better and/or stored that information for at least the duration of plaintiffs’ right to go to court. While it may appear as a lot to ask from the military to not only distinguish between military objectives and civilians but also to document and preserve related decision-making in ongoing combat, only then can victims exercise their right to a remedy if mistakes were made. The military cannot just be assumed to have followed the laws of armed conflict: they need to be able to explain that they did. The Netherlands accepts the decision.

Yet, in the Dutch media, the decision was criticized by some military personnel who believe that these courts don’t appreciate the complex and time-pressured circumstances and judge from hindsight. This was also a widely aired response when the Hague District Court previously also found the state (partially) responsible for a due diligence violation related to the Srebrenica genocide. Marten Zwanenburg raises that the court imposes a heavy burden on the state to record and preserve relevant information during armed conflict. 

Courts are often seen as an outsider that unfairly mix themselves in military situations that they have no expertise on. However, while courts should be careful and have a realistic appreciation of those complex circumstances, the exercise of power requires checks and balances. Rather than an unwelcome outside interferer, the judiciary is there not only to help victims seek justice, but also to help the military improve their procedures where they insufficiently prevent unnecessary casualties. This is not only in the interest of victims, but also of the military that already too often return from conflict traumatized. 

Whether or not the Ministry of Defense may have shared some of the concerns, their response has been to accept the judgment and not appeal, to focus on (further) improving their procedures and to pay compensation to the plaintiffs. In her Feb. 3 letter to parliament, the Minister of Defense wrote that the military is working on improvements in information-driven action and mission-archiving and that military operatives require better support in doing so in future missions. 

Ideally, a judgment like that in the Chora case can provide, in addition to justice for the plaintiffs, a constructive effect towards a better functioning of the military consistent with the principles of IHL, which, when properly implemented, benefit both the military and civilians.

IMAGE: In this January 21, 2010 photograph, Dutch battle group platoon commander Lieutenant Rik (L) speaks with an Afghan village elder during a patrol in Chora valley in Afghanistan’s southern Uruzgan province. (DESHAKALYAN CHOWDHURY/AFP via Getty Images)

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Q. As characterized by the New York Times, “Russian proxy officials in four regions — Donetsk and Luhansk in the east, which are collectively known as Donbas, and Kherson and Zaporizhzhia in the south — announced plans to hold referendums over several days beginning on Friday.” Reporting suggests that “Russia’s military control over the regions it has occupied is shaky,” and of course, two of these areas of eastern Ukraine (Donetsk and Luhansk) that had been under at least partial control of Russian-backed forces since 2014 declared themselves to be independent just prior to Russia’s full-scale invasion in February. Given these murky facts, as a starting point, can you explain what the international law of occupation is and when it governs in the midst of an ongoing armed conflict?  

A. The international law of occupation is a branch of international humanitarian law that regulates situations in which states (and possibly other international actors) gain effective control over foreign territory during armed conflict (without, of course, the consent of the territorial state). The key question is of course what constitutes effective control. Whether Russia exercises such control over this or that territory in Ukraine is a question that should be answered through a separate analysis. As a point of departure, it seems to me that if Russia is capable of administering so-called referendums in a given territory, then that territory must be under its control. 

Once an occupation exists, the occupant acquires positive duties to ensure public order in the territory, and gains some security powers. However, it must respect the status quo ante in the territory and in general cannot make dramatic changes. Of course, an occupant cannot in any case annex occupied territories: the basic idea is that occupation does not grant sovereignty or title in the territory, but rather that it is held in trusteeship until the lawful sovereign returns. 

I discuss the issue of the so-called “independence” of the breakaway territories of Donetsk and Luhansk, and its relation to the law of occupation, in my next answer.  

Q. In areas where the law of occupation does apply, what does that body of law have to say about this type of “referendum” during a period of occupation? Does it matter whether the authorities involved are Russian officials or Russian proxies? 

A. Since the occupant does not gain sovereignty in the territory, it of course cannot hold referendums in occupied territories, not least when the question is whether the territories should be annexed. At least regarding Donbas, Russia denies that these are occupied territories, as it argues that Donetsk and Luhansk are independent states. As Russia argues, since it has been “invited” by these “states” in collective self-defense, it cannot be an occupant. However, even if it was true that Donetsk and Luhansk had any independent agency, separate from Russia (which is not really the case – they seem to be operating as proxies), Donbas would still be considered occupied. This is because owing to the principle of territorial integrity, international law does not generally recognize the right of unilateral secession. Regions cannot simply breakaway and invite foreign forces to “defend” them.    

Q. Some have predicted that regardless of whether authorities in these four occupied regions are capable of implementing a referendum in the midst of war, the outcomes are preordained: Russia and Russia-linked media will announce that overwhelming majorities in each region voted to join Russia. In short, it seems clear Putin is using these so-called referendums to lay the groundwork for purported annexation of these regions, as he did in Crimea in 2014. What recourse does Ukraine, and the international community in support of Ukraine’s sovereignty and independence, have if Putin follows what the White House has called an “annexation playbook” in these four regions?

A. First of all, it is crucial to emphasize that even if these referendums were perfectly genuine and free (which they are of course not) there is simply no legal route through which a referendum can take place unilaterally without the consent of the territorial state. In international law, the principle of territorial integrity overrides the wishes of particular regions within states, the rationale being to maintain international stability and to prevent the fragmentation of states. 

In terms of legal recourse, Ukraine can of course continue to resort to force in self-defense, notwithstanding such referendums. Beyond that, the most immediate international response in such cases is non-recognition: i.e., third parties refrain from recognizing the annexed territories as part of the occupant’s state. This move is not only expressive, but might have implications over international agreements such as trade treaties. 

The international law on state responsibility also imposes obligations not to render assistance to the continuation of the situation, as well as an obligation to cooperate through lawful means to bring the situation to an end. Of course, these obligations are quite “liquid” and the key question is what are the moves that would actually be taken by states within this framework. Last, it should be added that “annexation by the use of force of the territory of another State” is itself an act of aggression. 

In realistic terms, I think that Russia is building on political and legal attrition. The plan is probably to present the international community with a fait accompli and hope that as time passes, the international community would gradually lose interest. Unfortunately, until Russia’s renewed invasion earlier this year, it seemed to have achieved some success with this type of strategy in Crimea. It is not surprising that they would try to repeat this in Donbas and in other areas.

Q. Russian President Vladimir Putin has from the outset of his invasion tried to cast Ukraine as the aggressor, even manufacturing claims of Ukrainian genocidal intent against Russia and prompting the so-called declarations of independence in Donetsk and Luhansk in February – in short, using the language of international law to break international law. Given Putin’s renewed threats of a nuclear response should Russian “territory” be attacked, could he be seeking to use the legal veneer of purported annexations as a way to end, or freeze in place, the conflict with control over a vast swath of Ukrainian territory using nuclear blackmail if Ukraine tries to liberate these areas? 

Many have noted the extent to which Russia has used the language of international law in its justification of the war, although it advances interpretations that almost no other state shares. This is not new and entirely consistent with the practice of Russia (and the USSR) in the past. Frankly, I doubt that Russia really thinks that it can convince anyone with these arguments. It seems to me that one key reason why these legal arguments are deployed is to mimic and discredit the West for making what Russia views as essentially similar arguments in the past, for example, in Kosovo.  

There are many reasons why Russia would seek to annex occupied territories in Ukraine at this time. It may very well be that this is a desperate attempt to present to the international community and to its own domestic constituency an “image of victory,” in order to counter Ukraine’s military achievements in the last few weeks. It also can be, as the question suggests, that by presenting the annexed territories as “Russian,” Russia hopes to deter any attacks in these territories. Israel, for example, treats any threat against its forces in the annexed Golan Heights as threats to its own sovereign territory, and this tactic has arguably worked in deterring third parties from attacking there. Whether a Russian threat to deploy nuclear weapons in response to Ukrainian attacks in Donbas would in fact be a credible and deterring threat, is a question for international relations specialists to answer. 

For more of Just Security’s coverage, please visit our Russia-Ukraine war Archives.

IMAGE: People attend a rally and a concert in support of annexation referendums in Russian-held regions of Ukraine, in Saint Petersburg on September 23, 2022. Voting on whether Russia should annex Kremlin-controlled regions of Ukraine opened Friday as the West denounced the referendum that has dramatically raised the stakes of Moscow’s seven-month invasion. (Photo by OLGA MALTSEVA/AFP via Getty Images)

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This essay aims to offer some nuance on what often remains beyond the scope of legal assessments: how States and NSAGs actually behave on the battlefield and why they abide by certain courses of conduct (or more precisely, under what conditions does their compliance with IHL change). In the balance of this essay, I argue that although violations of certain rules of IHL occur, situations of respect for the legal regime also exist, and that all these situations can be explained by a combination of both rational and emotional reasons. Understanding these empirical patterns serves various purposes, including (i) identifying factors and actors of influence that may lead to behavioral change; (ii) predicting future IHL violations and situations of restraint; and (iii) designing and implementing context-based strategies aimed at improving respect for the law. In a world in which IHL is challenged as an effective legal regime on a daily basis, the value of acknowledging that there is more than meets the (public) eye is more important than ever.

Understanding Compliance With IHL: Behavioral Variations in Armed Conflict

Generally, compliance can be defined as “behavioral conformity with existing norms and regulations” (at 65). This translates into a match between the behavior of States and NSAGs in armed conflicts and their IHL obligations. When examining how these entities operate, it can be observed that they do not violate or respect IHL without exception. Instead, States and NSAGs may follow certain rules while disregarding others. For instance, a NSAG may decide to explicitly prohibit hostage taking in its code of conduct, in line with Common Article 3 to the 1949 Geneva Conventions and customary IHL, but recruit and use children in hostilities. Similarly, a State may use certain weapons prohibited under international law when conducting military operations but respect the wellbeing of detainees. Analogous observations can be made with respect to other IHL rules. At the same time, some IHL rules may not necessarily be applied in practice by the respective actors. When examining IHL compliance, or lack thereof, the first step is to recognize that States and NSAGs may have different attitudes with respect to specific thematic areas. This is particularly important as the root causes of violations and compliance will vary depending on the rule(s) in question. To put it differently, the motives behind a party’s attitudes on the use and recruitment of children will differ from those related to the treatment of detainees, and the way in which the international community responds should take into account those distinctions.

What’s more, States and NSAGs often modify their behavior throughout the conflict, often resulting in an increase or decrease in their level of IHL compliance. This is particularly evident during ceasefire or peace processes, when parties may seek political recognition before local constituencies or international audiences, while a different scenario can be observed when they are actively engaged in hostilities, a moment in which they may attempt to show their military strength. Parties to armed conflict are indeed dynamic and evolving actors: it was not the same Fuerzas Armadas Revolucionarias de Colombia–Ejército del Pueblo (FARC-EP) fighting in the 60s’ and 70s’ that concluded the 2016 peace agreement with the Colombian Government, as it was not the same Colombian Government either. To illustrate this, the ICRC has explicitly noted that the FARC-EP ceased kidnapping civilians “once peace negotiations had begun” (at p. 41). It has also been demonstrated that attacks on civilians by the Lord’s Resistance Army (LRA) declined during peace negotiations with the Ugandan government, only to increase immediately after the government would refuse to make concessions (at p. 265). Focusing on NSAGs, Wood has identified that civilian victimization is “anticipated during moments in which the viability of [an armed group] is threatened or when it faces significant military setbacks” (at p. 15). These cases indicate, at least at those specific moments in time, that an effective command and control structure existed. That is, decisions adopted by an NSAG’s leaders on whether to comply with an IHL rule would, indeed, be carried out by their members.

Presidents and prime ministers change, as do the commanders of NSAGs. Societies and their demands also evolve. It is indeed misleading to conceive States and NSAGs as unchanging actors perpetually operating in a certain way. These fluctuating dynamics allow us to conclude that IHL compliance should be examined along a spectrum, rather than in a binary way, and the parties’ behaviors are better conceptualized as “a matter of degree varying with the circumstances of the case” (at p. 5).

Going Beyond and Above: IHL Compliance in Light of Rational and Emotional Factors

Identifying these dynamics remains a somewhat superficial analysis. In any given society, including ones with internal stability and relative peace, respect for the law can be linked to a number of factors. Armed conflicts are not so different, and two broad categories can be suggested. Of course, not all the explanations here included apply to every conflict and party, and they should be seen as rather general categories. They should also not be seen as exhaustive either.

First, there are ways of understanding legal compliance based on rational behavior. Accordingly, it is expected that respect for IHL (or lack thereof) can be determined by the following factors:

(i) knowledge and internalization of the law: a higher degree of respect is achieved when States and NSAGs know their obligations, adopt internal rules to behave accordingly and apply sanctions in the event of violations;

(ii) an alignment of IHL with traditional norms and religious values: identifying commonalities between these normative frameworks and disseminating these among weapons bearers upon that basis may lead to an increase in adherence to IHL as they will not see this international legal regime as strange or foreign;

(iii) the parties’ participation in law-making processes: a better respect for IHL can be obtained if there is greater involvement of States and NSAGs in formal and informal law-making processes, as this would allow the law to be realistic (or pragmatically attuned) and therefore more easily implemented by the parties; and

(iv) the capacity factor: States and NSAGs may lack the capacity to implement some of their humanitarian obligations, and enhancing such capacity may also lead to an increase in respect for IHL.

These factors are based on the understanding of IHL compliance as a collective endeavor; that is, it is a party to a conflict’s attitude and not necessarily or simply those of individual fighters. Humanitarian organizations have historically relied on some of these factors, understanding that the first step to ensure compliance with IHL is to directly engage with States and NSAGs on their legal obligations. This approach has prioritized the incorporation of IHL norms into the parties’ internal rules, and in their training and accountability mechanisms (at p. 130). In the last two decades, the humanitarian sector has also engaged other societal actors, such as religious and community leaders, third States and other key stakeholders, to influence States and NSAGs compliance with international law. Positive results have been achieved and, in the context of these humanitarian engagements, parties to armed conflict have released children from their ranks, destroyed their stockpile of antipersonnel mines, accepted that humanitarian aid must reach the civilian population affected by the conflict, conducted internal investigations for IHL violations, and adopted laws and other regulations to ensure that this legal framework is better respected.

The second category of factors goes beyond rationality, focusing instead on emotions. Here, attention is placed at the individual level. Indeed, it can be said that the behaviors of States and NSAG fighters are based on past experiences and learning processes. A rational perspective would argue that repeated IHL training should lead to better results on the ground (at p. 74). Yet, as Buis has correctly pointed out, “[r]espect depends on a number of factors which exceed the borders of law.” State and non-State fighters are indeed human beings, which makes it difficult to exclude an emotional component when assessing their respect for any legal regime, including IHL. Emotions that have been linked to violence against civilians include shame, disgust, resentment, and anger (at p. 58). Grievances of those who were affected by IHL violations, either in the present or in the past, if not addressed correctly, may also help perpetuate cycles of violence. In contrast, dealing with them properly may prevent such cycles, or at least reduce their effects. As a result, compliance with IHL can also be examined through the lens of the following emotional factors:

(i) the construction of categories: although IHL refers to ‘parties,’ ‘State Parties,’ ‘civilians,’ ‘humanitarian body,’ and ‘combatants,’ an emotional turn serves to actually identify how State and NSAG fighters may construct who should be attacked (‘enemies,’ ‘terrorists,’ ‘oppressors,’ etc.) and who should not (‘friends,’ ‘allies’) — concepts that are often not conceived in a rational manner and may be grounded on preconceived ethnic, religious or ideological elements;

(ii) the legitimacy of the law and the authority enforcing it: State and NSAG fighters may follow a given normative framework, that may include IHL, but also local, customary and religious norms, because they see the rule in question as legitimate or because the relationship with the authority enforcing it is one of command-obedience, in which the authority is a power-holder and the followers are power-subjects;

(iii) the reputational element: as certain State and non-State fighters try to gain support from certain constituencies (e.g. local communities), they may try to respect IHL as a way of improving their own reputation. At the same time, they may deliberately commit IHL violations against specific groups (e.g. religious, ethnic ones) in an attempt to garner support or even to intimidate the opposing party or the civilian population;

(iv) the past experiences factor: State and non-State fighters may be more willing to respect IHL when they have gone through IHL-compliant situations (e.g. a clear example can be found in individuals detained and well-treated by the opposing party replicating the same behavior when detaining someone). IHL violations can also be explained in such a way (e.g. a NSAG’s fighter who was recruited when he or she was a child may perpetuate this by recruiting other children);

(v) the existence of incentives in the form of punishments and rewards: IHL attitudes can also be explained as a result of fear of punishment, that may include disciplinary administrative measures, criminal law proceedings, and religious sanctions, and interest in rewards, whether social (e.g. being promoted to higher ranks), material (e.g. goods, money, etc.) or religious (e.g. the promise of heaven).

Bringing Other Social Sciences to the Debate

To conclude, two points need to be highlighted.

First, although violations of certain rules of IHL take place across the globe and there is a temptation to focus exclusively on them, actually engaging with States and NSAGs on international legal issues has led to increased protective outcomes. These engagements obviously need to be supported. Their importance has been recognized, among others, by the UN Security Council (at 4) and the UN Secretary General in the most recent Protection of Civilians Report (e.g. para 65). Second, assessing compliance with any legal regime, whether during times of peace or in armed conflict, requires an understanding of both rational (and collective) and emotional (and individual) drivers. Although the latter’s importance has been widely recognized in the field of transitional justice, it has often been excluded from the strategies designed to increase IHL respect in conflict-affected zones. To solve this deficiency, one tool could be to include specialists from other disciplines in discussions about legal issues, such as social psychology and organizational sociology, which are among the most well-developed fields dealing with group identity and intergroup conflict. Such specialists could be valuable to individuals and institutions trying to understand behavioral patterns in conflict settings. Merely identifying violations and naming and shaming perpetrators may be relevant in specific scenarios, but not everywhere and not for every party. A more thorough understanding of how States and NSAGs operate and interact with other social actors and factors can lead to better strategies to increase IHL compliance.

Photo image: Dr. Omar Abdulle Alasow, the AMISOM Senior International Humanitarian Law and Human Rights Advisor hands over copies of the code of conduct for combatants to Maj. Gen. Abdiweli Jama Gorod, Somalia’s Chief of Defence Forces (CDF), at Gen. Gordon Military Training Academy in Mogadishu, Somalia, on 13 August 2018. AMISOM Photo / Omar Abdisalan

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