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That the effectiveness of international humanitarian law (IHL) and international human rights law (IHRL) faces challenges from different quarters is not news. It is, rather, an observation that has been made by scholars and practitioners alike – to the point of tritness. Whilst we deeply acknowledge the importance of discussing the manifold challenges to humanitarian norms in times of armed conflict – not least because tailored strategies must be designed to address them – this Symposium also serves another purpose: to inspire thought and possible innovative action. Hosted jointly by the Opinio Juris and Armed Groups and International Law blogs, the contributions to the Symposium seek to reframe problems and unearth potentialities. As such, we hope that readers will join us this week in a process of reflection and reflexivity aimed at generating compliance with humanitarian norms in novel and more effective ways.
Alas, we start with the manifold challenges
Systemic challenges to IHL and IHRL compliance include the unwillingness of States to acknowledge that a situation of violence amounts to an armed conflict (at 20), which therefore triggers the application of IHL. A related problem is the rejection of international law by non-State armed groups (NSAGs) because they were not involved in the international law-making process (at 256) or because they ‘perceive the international legal system as biased and privileging States’ (at 25). Similarly, NSAGs may conceive some humanitarian norms as prohibiting actions that often serve their strategic interests, ‘the sort of actions that may, at times, give them a competitive advantage over military forces’ (at 6). Whilst important scholarly advances have been made in clarifying that IHRL binds NSAGs, the precise circumstances when this occurs remain disputed (see here, here and here). Finally, despite the proliferation of international criminal tribunals and commissions of inquiry, IHL relies on relatively weak enforcement mechanisms, which may fail to induce the parties’ compliance with the applicable legal framework.
Institutional challenges affecting States and NSAGs’ respect for IHL and IHRL stem from the lack of appropriate organizational structures and resources allowing these entities to acknowledge, understand, and implement their humanitarian obligations. This can be observed in those conflicts occurring in areas where the State has limited control over territory and the rule of law system is fragile. The increasing fragmentation of NSAGs, which has contributed to conflicts that are ‘more violent, longer lasting and harder to resolve’, reflects acute institutional challenges. Not least one must acknowledge that oftentimes, non-State entities may not be aware of their international obligations (at 113).
Compliance-generation strategies: the tried and tested & the novel and promising
The humanitarian sector has traditionally relied on direct humanitarian engagement with the parties to armed conflicts, be they States or NSAGs, in an attempt to positively influence their behavior and to induce greater compliance with international law. In the last few years, there has also been increasing intervention by UN various bodies on issues related to compliance with IHL and even IHRL in conflict settings. Broadly, these approaches have prioritized the incorporation of humanitarian norms in the parties’ internal rules, training and accountability mechanisms. Whilst we would certainly not advocate that humanitarians abandon this tried and tested approach, the above-noted systemic and institutional challenges disclose realities that require reflection on what works, how to recalibrate what doesn’t and indeed what novel strategies to design and pursue.
It is at this juncture that the Symposium’s contributions take shape. Over the next few days, IHL and IHRL practitioners and scholars from across disciplines will reflect on how to improve compliance with international law in times of armed conflict. Some of the contributions are depictions of institutional practices, addressing the specifc roles played by of the UN Special Representative of the Secretary-General for Children and Armed Conflict, the UN Office of the High Commissioner for Human Rights, and the International Committee of the Red Cross (ICRC) in Muslim contexts. Others explore the changing understanding of the relationship between the applicable legal frameworks and NSAGs. A third group deals with what could be termed less-conventional approaches, examining how emotions affect individuals’ respect for the law, the practices of civilian communities in their self-protection, the action of African women’s theologians in dismantling patriarchal structures in war and peace times, and the role of religious leaders in influencing States and NSAGs’ behaviours.
From a methodological standpoint, these interventions do not aim at exhausting the avenues available – yet, the contributions, we believe, embody some of the most important actors and innovative practices currently active in humanitarian norms compliance-generation. Of course, we openly acknowledge that these deserve a much deeper academic and practical exploration, one that goes beyond the confines of this Symposium. Thus, while each post includes topical discussions reflecting on how to improve compliance in armed conflict, there are undoubtedly some other perspectives that have been left out or that may be underdeveloped. As such, we hope that this forum serves as a catalyst for further conversations in scholarship and action in humanitarian practice.