About the author(s):
Rebecca Sutton is a Senior Lecturer in International Law at the University of Glasgow, where she convenes graduate courses on International Humanitarian Law (IHL), International Human Rights Law, and International Law and Security. Previously, Sutton held a Leverhulme Trust Early Career Fellowship at the University of Edinburgh, post-doctoral fellowships at the European University Institute and McGill University, and visiting fellowships at Melbourne Law School and the Oxford Institute for Ethics, Law and Armed Conflict. She holds a PhD in Law from the London School of Economics, a JD from the University of Toronto, and an MSc in Violence, Conflict and Development from SOAS, University of London.
Sutton’s scholarship on “everyday” IHL, law and emotions, humanitarianism, legal pedagogy, children and youth appears in International Review of the Red Cross, Leiden Journal of International Law, Journal of Intervention and Statebuilding, African Affairs, Citizenship Studies, and Criminal Law Quarterly. Her book, The Humanitarian Civilian: How the Idea of Distinction Circulates Within and Beyond IHL, was published by Oxford University Press in 2021.
Sutton has worked for humanitarian and human rights organizations and conducted research in Darfur, Sudan; South Sudan; South Africa; Central African Republic; Ghana; and Northern India. She continues to engage with practitioners as a Trainer and Facilitator on law, peacebuilding, and leadership topics. From 2024-2027 she is a Co-Investigator of the Beyond Compliance Consortium, an academic-practitioner collaboration funded by the UK Foreign, Commonwealth and Development Office (FCDO).
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
Editors’ note: This post forms part of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, featured across Articles of War and Armed Groups and International Law. The introductory post can be found here. The symposium invites reflection on the conceptualisation of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address harm and need.
The Beyond Compliance Consortium: Building Evidence on Promoting Restraint by Armed Actors centres on local communities’ everyday lived experiences of armed conflict and aims to contribute to the effective prevention and reduction of (humanitarian) need and (civilian) harm, and the facilitation of a broader protective environment in war.
In this post, we explain the Consortium’s novel approach to the study of harm and need in armed conflict, articulating the logic of employing a combined ‘harm + need’ framework. We further outline the challenges that arise in applying the qualifiers ‘civilian’ (harm) and ‘humanitarian’ (need), and explain why we must look beyond the law as we seek to understand: the drivers of harm and need; the lived experiences of civilians and other vulnerable groups in armed conflict; and the potential of different actors, including civilian communities, not only to compliance but also to restraint, both of which are understood to include protection aspects.
Definitions matter
In Naz Modirzadeh’s brilliant article ‘Cut These Words: Passion and International Law of War Scholarship’, she warned of the strange soullessness of international humanitarian law (IHL) scholarship which is discussing nothing short of a calamity. In a recent article ‘Mapping Calamities’, one of the authors of this piece has developed Modirzadeh’s arguments by highlighting that some of this tendency in IHL scholarship comes from international humanitarian law itself, whose esoteric acronyms (DPH, NSAG, NIAC, IAC), categories (combatant, fighter, civilian) and technical legal definitions can seem very removed from the lived experience of war. The same can be said of other words that are in usage in the IHL orbit, such as collateral damage, civilian harm and mass casualty incident.
Of course there are good reasons for IHL simplifying and depersonalising – and some would say that simplifying is what law does – but it is also important to be aware that the “specialised language that international lawyers speak” has a constitutive effect on the way others see and understand the world (Reynolds, 2019, p. 158 and169; Said, 1996, pp. 85–86). IHL– as authors like Kinsella point out – not only has an effect on protecting civilisation, but also plays a role in shaping civilisation (for Kinsella, see here p195 and for further work on civilisation and IHL, see here). The idea that IHL “lives” is one that Sutton has developed at length in her monograph on The Humanitarian Civilian: How the Idea of Distinction Circulates Within and Beyond IHL (OUP).
It is because the (legal) epistemologies of war (for this phrase see Gould et al, on file with author) have an effect on lived experiences that we find it crucial for those working to reduce suffering in area of armed conflict to be cognisant of the analytical blinkers that accompany terms like ‘civilian harm’ and ‘humanitarian need’ that may shape and guide the programming and operations of humanitarian organisations, NGOs, militaries, and the research conducted by scholars. While the Consortium understands the value of law, its particular concern is the way in which terminology sometimes risks stripping out the richness and depth of everyday life and individual loss from the analysis – or overlooks issues that are important to people on the ground entirely.
We have deliberately decided to centre the Beyond Compliance Consortium’s work not on ‘civilian harm’ and ‘humanitarian need’, but to look beyond these qualifiers – to analyse ‘harm’ and ‘need’ (first separately, and then together ‘harm+need’). This comes out of a preliminary apprehension (that will be tested during the lifetime of the programme) that the addition of ‘civilian’ and ‘humanitarian’ carries the potential to exclude, invisibilise and (de-)prioritise certain human experiences. We explain this decision further below.
Beyond the ‘civilian’ frame: a focus on (civilian) harm
Although many practitioners or scholars working in this area have engaged in debate regarding the definition of ‘civilian harm’, we are also aware that there is little empirical research that tracks which experiences of armed conflict are caught by the term (even at its widest definition). There is also little empirical evidence of what ‘harm’ looks like from the vantage point of civilian communities themselves, a perspective that would permit us a better understanding of what experiences are left out and overlooked. Our decision to go beyond the ‘civilian’ frame reflects the fact that we find it important to investigate harms that involve other vulnerable groups e.g. harm to combatants who are hors de combat and the harm done to or suffered by child soldiers.
Because IHL cannot capture every human experience in armed conflict, we look beyond the IHL frame, both in terms of understanding how harm and need are experienced and also in identifying tools to reduce and mitigate it. Although we believe very firmly in the fundamental importance of IHL, we also understand that there are limits to the extent that it can centre the human experience. This was one of the main points of van Dijk’s book on the drafting of the Geneva Conventions – ‘Preparing for War: the Drafting of the 1949 Geneva Conventions ’ (OUP, 2022). He shows that rather than embracing a golden moment of humanitarianism, the drafters of the GCs were ‘armed to the teeth’ and protecting themselves for and against future war-making. The same was true of the Additional Protocols: Mantilla’s masterful study of the 1974-1977 Diplomatic Conferences shows that States constantly gave with one hand, while taking the same or more with the other (see here).
The tightrope that IHL walks between military necessity and humanity at least partly explains its limited personal, material and temporal scope. It explains why its scope of protection may (inadvertently) lead to the exclusion of particular actors (e.g. the fighting parties versus other entities), experiences (e.g. emotional, structures, policies, time-frames) and spaces (e.g. the private sphere, governance).
Sutton has developed a theory of emotions in IHL showing how in IHL the affective dimension is overlooked (see here and here). Ammar Azzouz powerfully demonstrates this point in his recent work on Domicide: Architecture, War and the Destruction of Home in Syria (Bloomsbury, 2023) in which he interviews hundreds of Syrians who lost their homes and neighbourhoods in the fighting. Their answers repeatedly demonstrate that ‘the home’ is so much more than bricks and mortar captured by the term ‘civilian object’ – but is a centre of family life and safety. The walls create a living space that not only holds meaning in the present, but also in the future, and the past e.g. memories of childhood, parenting and the life of previous generations. As a result, the loss of a home is not only a material loss but an emotional loss. It is also a loss of the past and the future.
In sharing this research, Azzouz questions whether the legal framework on cultural property – and the protections that it offers – is appropriate. He also questions whether the law is capable of capturing these personal, non-material losses and asks whether we are paying enough attention to it. He illustrates his argument on LinkedIn* by responding to a graph showing physical destruction in Ukraine with the following post:
Azzouz emphasises a point that has been made by Merry in her work on quantification: “counting things requires us to make them comparable, which means that they are inevitability stripped of their context, history and meaning” (see Gregory for this discussion of Merry in relation to civilian casualties).
The inability of IHL to do it all has also been demonstrated by Sutton & Gillard in a short study that – along with several other studies (see here and here) – has been foundational for our project, entitled ‘Beyond Compliance: International Humanitarian Law, Humanitarian Need and Civilian Harm in Armed Conflict’. Sutton & Gillard point out that there are numerous issues on which IHL compliance is not enough to ensure civilian survival and a meaningful quality of life in war (p10). For example, they point out that the rules on conduct of hostilities and in particular the proportionality rule do not take into account loss that is not death or injury to civilians or damage to civilian property. They do not take into account other effects of attacks such as displacement, loss of livelihoods or access to education for children. They also point out that the IHL rules overlook the manner in which civilians access goods and services in any detail. The argument that IHL cannot do it all when the goal is to safeguard everyday life and livelihoods in protracted armed conflict has also been made in studies on life under armed group control, where it has been pointed out that IHL often cannot deal with all the issues affecting people’s everyday lives e.g. life cycle documentation, freedom of movement, protest (see here and here).
Acknowledging that IHL cannot ‘do it all’ does not mean giving this body of law any less priority, but understanding that it very often needs to be used alongside other frameworks if full(er) protection is the goal. In certain instances international human rights law (IHRL) may fill some of the gaps as it has a different and wider scope and can more easily centre the human experience. Local, customary or religious laws may also be relevant in some contexts. In some instances it may be that the issue simply falls outside (international) law or the law is not a helpful tool in stopping the harm or quantifying it. Moffett makes this point in a recent blog post on Ukraine. He shows that the adoption of a violation/crime frame based on whether a war crime has been committed will exclude many victims of harm from reparations, in a manner that is completely arbitrary from a human perspective. He also argues that a harm-based approach (rather than a violations or crimes approach) would prevent victims waiting years or decades for compensation.
Beyond the ‘humanitarian’ frame: (humanitarian) need
In a similar vein, we will not only be looking at ‘humanitarian need’, but seeking to analyse ‘need’ beyond the gaze of strict humanitarian programming. This enables us to take a distance from debates regarding what should fall within the scope of ‘humanitarianism’ or whether ‘needs’ should refer to ‘basic needs’, ‘survival needs’ or the protection of lives and livelihoods. Examining the literature, we find numerous examples of how (i) framings of need combined with (ii) definitions of ‘humanitarian’ and (iii) the particularities of the mandates the actors using them, can end up creating a conceptual lens that marginalises, deprioritises or diminishes particular experiences. We also find examples of the principle of neutrality being used to explain and justify an exclusion of considerations of IHRL or a reliance on international humanitarian actors, rather than local ones.
We also find different definitions of ‘humanitarian need’ struggling to cope with the reality that many of today’s armed conflicts are characterised by “longevity, intractability and mutability” (the IRRC devoted a special issue to this theme). To some scholars and practitioners, this is a reason to pursue the narrowest ‘survival’ frame of humanitarian need i.e. life-saving rather than life making (see here). To others this justifies designing humanitarian responses so that they encapsulate longer more sustainable solutions, akin to those typically associated with development programming (seehere for a discussion).
It is due to these uncertainties and contestation that we choose to conduct field research over nine case study countries to examine the way communities experience need in armed conflict, rather than how they experience ‘humanitarian need’.
Re-framing harm + need
In our attempt to reframe and investigate harm+need, we start by identifying its main drivers. We identify and label these as (i) conduct and theatre of hostilities (ii) goods and services & governance and (iii) the humanitarian landscape. In each of these areas, we study how the direct and indirect drivers of harm and need, the types of harm and need that ensue, the actors causing the harm+need, the actors experiencing it and whether and how it is regulated by international law. We recognize that in some instances addressing this harm+need might entail traditional compliance work – in the sense of engagement with armed actors on IHL or IHRL – but in other instances, full(er) protection will only be achieved by understanding the limits of the law, both in terms of its ability to secure and define protection and shape interventions designed to achieve it. It is this delicate balance that the programme seeks to investigate.
*The LinkedIn post is no longer online, but Ammar Azzouz and Olexiy Pedosenko have given us permission to share their quotes here.