Unbridled Horrors: A Long Way From Solferino

Instances of arbitrary use of force by states stir profound sentiments of disappointment and a palpable sense of injustice among affected communities or societies, reflecting the deep impact on those directly or indirectly subjected to aggression. These instances can foster a perception of double standards within the collective security system.

However, acts undermining the fundamental principles of humanity strike at the heart of human tragedy. Outrages on human life, limb, and dignity evoke not only shock and condemnation but an overwhelming, visceral rage. As was underscored in Part I of this series of articles, such atrocities against Armenian military personnel and civilians by Azerbaijani forces have dealt a devastating blow to what little trust the concept of international law had managed to garner in Armenian society.

While nothing can ever justify these horrors, this article strives to illuminate the true nature of International Humanitarian Law (IHL), underscoring its modest aspirations. It seeks to convey that the law of armed conflicts has never set out to eradicate all human suffering during conflicts. Instead, the article argues that violations, heinous as they are, do not render the law null and void.

Law of Armed Conflict

International Humanitarian Law (IHL), also referred to as the Law of Armed Conflict or jus in bello, constitutes a critical set of rules with the purpose of mitigating the humanitarian impact of armed conflicts. Its core mission is to curtail the methods and means of warfare that parties involved in a conflict may employ, all while ensuring the protection and humane treatment of individuals. This means that considerations of humanity refine military necessity. IHL rules are non-reciprocal, which means that one party’s compliance is not dependent on the behavior of the adversary. In a contemporary context, regardless of how horrendous Hamas’ actions are, that is no pretext for Israel to violate IHL. 

These rules do not concern themselves with the legality of the use of force, who fired the first shot, or who is right or wrong. They come into effect from the very onset of hostilities and are binding to all parties involved, at all times.

The intricate IHL rules originate from treaties, customary international law, and general legal principles. 

1. Treaties: IHL is embodied in universal multilateral treaties, with the Geneva Conventions (and their Additional Protocols) serving as the foundation. The Hague Regulations, initially treaty-based, have evolved into customary law. Specific agreements like the Additional Protocols are binding on their State signatories.
2. Customary International Law: IHL also relies on customary law, formed through accepted state practices (usus) and recognized as binding norms (opinio juris). 
3. General Legal Principles: IHL incorporates fundamental principles intrinsic to the concept of law. It also draws from general principles of international law, underpinning the broader realm of international jurisprudence.

Article 3, common to all Geneva Conventions, often regarded as a universal standard binding in all armed conflicts, underscores one of the most fundamental principles of IHL: the requirement to provide humane treatment to all individuals under enemy control, without discrimination based on factors like race, religion, gender, or wealth. This principle extends to those who are not actively participating in hostilities, including members of armed forces who have disarmed or individuals who are incapacitated due to sickness, injuries, detention, or other causes.

• The IHL principle of distinction mandates that in armed conflicts, the parties must always differentiate between civilians and combatants, as well as between civilian and military targets. Their actions should solely target military objectives.
• When collateral harm to civilians or civilian property is unavoidable, the principle of proportionality dictates the operation must be halted if the expected civilian harm outweighs the military advantage. 
• Even when targeting a lawful military objective and respecting proportionality, the attacking party should take all possible precautions during the attack to minimize harm to civilians and civilian objects.
• IHL also forbids or regulates weapons and tactics that cause unnecessary suffering or superfluous injury.

At this point, IHL may be criticized as resembling a mere handbook for inflicting harm, rather than serving as a mechanism to address the root of suffering inherent in war. The relevance of these principles might seem inconsequential when faced with the imperatives of military necessity. Ultimately, it is unlikely that those who have suffered amid the chaos of conflict would derive any solace from such principles.

Yet again, international law does not bear responsibility for the existence of war itself – legal doctrine cannot answer why people wage wars. This article will continue to argue that imperfect as it may be, IHL mitigates the immense human suffering caused by armed conflicts.

Violations of social norms, including those reflected in IHL rules, have deep roots in human nature. When conflict flares up, people often get trapped in a never-ending cycle of violence. In any given conflict, everyone at some point breaks these rules, and yes, Armenians are no exception. 

The surge in IHL violations by the Azerbaijani side is, to a great extent, a byproduct of systematic, ideological hostility, nurtured and inflamed by their central government for several decades.

Dehumanization tactics that downplay the humanity of the adversary make it disturbingly easier to engage in violence against fellow humans. Azerbaijan has actively practiced the systematic and widespread dehumanization of Armenians, while, to a lesser degree, “under-humanization” and underestimation of the military capabilities of the adversary have been commonplace in Armenia. 

Marco Sassòli opines that people accustomed to peace as “the primary international legal and social regime” will not necessarily respect laws of warfare when the primary legal regime has failed (see here, p.71).

A Silver Lining?

The silver lining lies in the mundane and unreported realm of “non-events”. There’s a chasm between how we see things and how they really are, and this divide often stems from our habit of making judgments influenced by emotions and primary impressions. On a biological level, we are wired to pay more attention to potential threats. Media outlets tend to spotlight sensational IHL violations, thrusting them into the public eye, following the tried-and-true principle: “If it bleeds, it leads.” 

We rarely report on countless instances of compliance with traffic rules, do we? If you don’t cross the street at a red light, you won’t make the news. The same applies to the perception of IHL, where scenes of carnage tend to dominate the narrative, overshadowing the instances of compliance. As Steven Pinker observes, no matter how small the overall percentage of violence may be, there will always be room for it in the evening news. This concentration on breaches has created a distorted and potentially harmful view that IHL is systematically disregarded.

Violations are treated as headline-grabbing scandals while adherence to IHL, if noticed at all, is often seen as mundane, and not as newsworthy. Furthermore, belligerents frequently exploit claims of systematic IHL violations for propaganda purposes, regardless of their shaky foundations in reality. Truth be told, reporting IHL compliance is not an easy task. Compliance (precautionary measures during an attack, orders to halt a planned offensive, penalties for breaching IHL) is often overlooked because it normally remains below the public spotlight. Non-violation is an absence of events, a “non-event”, making it challenging to report.

On the flip side, state media often undermines compliance with its propagandistic stories of valiant servicemen delivering first aid, food, and water to civilians and prisoners of war as if they are doing a favor when this is merely the minimum standard of conduct under international law. In this regard, the reports from the International Committee of the Red Cross (ICRC), documenting compliance with IHL, stand out as some of the few trustworthy sources to consider. 

Spin on Tactics and Weapons

Media often confuse the picture regarding the legality of using certain tactics and weapons.

Take the reporting on cluster munitions, for example. Media outlets often throw around the idea that these are universally banned. However, it is a bit more nuanced than that. Only the states party to the Convention on Cluster Munitions have outlawed its use. As of this writing, that is 112 states – and neither Azerbaijan nor Armenia are on that list. The existence of a customary ban on these munitions is much weaker than in the case of anti-personnel mines. The tale is similar to the infamous “white phosphorus,” which is not banned as such under international law.

So, what does the law say? Under the principle of distinction, weapons, including cluster munitions, can only target military objectives, not civilians. The principle of proportionality mandates that any collateral civilian harm should not be excessive compared to the direct military advantage sought. Thus, it is not about what kind of weapons are used, but rather how they are used. Any weapon, regardless of its type, used indiscriminately, or in a way that disproportionately harms civilians, is a violation.

The takeaway? This is not about handing out free passes to weapons that have caused undeniable suffering. However, media outlets and so-called “experts” should take the time to get the facts straight. IHL admittedly does not do everything it promised, but it absolutely cannot do what it has never promised. Misinformation only erodes the already fragile standing of the law in the eyes of the public. Borrowing Sassòli’s words, the reality of IHL is bleak, but the perception of this reality is even bleaker.

Implementation of the Law

The mere presence of humanitarian rules does not act as a deterrent to, or alleviation of, the profound suffering induced by armed conflicts, nor does it guarantee acceptable conduct by belligerents.

Enforcement of international law primarily rests on the shoulders of the states themselves. Common Article 1 of the Geneva Conventions requires that State parties must “respect and ensure respect for the present Convention in all circumstances.” This principle aligns with the legal obligation of states to uphold their treaty commitments, as encapsulated in the maxim pacta sunt servanda. 

Belligerents are obligated to uphold their humanitarian commitments even in the face of violations by their adversaries. Article 60(5) of the Vienna Convention on the Law of Treaties clarifies that the non-respect of humanitarian treaty obligations by one party does not provide justification for any other party to suspend or terminate the treaty. 

The ICJ affirmed that the duty to respect and ensure respect constitutes a general principle of International Humanitarian Law (IHL), applicable in all armed conflicts and irrespective of specific treaty obligations (see here, para. 220). This underscores that the obligation for all states to “respect” and ensure such respect for the Geneva Conventions in all circumstances does not solely derive from the Conventions themselves but finds its legal foundation in overarching principles of humanitarian law.

For effective implementation, IHL must be incorporated into national legislation. IHL treaties can be directly binding as a matter of national law. (see, for example, Article 6 of the Constitution of Armenia, and Article 148(II) of the Constitution of Azerbaijan). Where international treaties do not apply directly (this is the case, for instance, in Canada, Australia, and the United Kingdom), states are obligated to pass legislation incorporating IHL provisions into their national legal frameworks. Furthermore, states and belligerent parties are obligated to instruct military commanders to prevent and, if required, halt IHL violations. Not only commanders but all members of the armed forces must receive thorough training in the application of IHL.

States bear responsibility for the actions of individuals or entities acting on their behalf, with their authorization or endorsement. This includes members of the armed forces, police or intelligence agencies, and private military and security contractors, as long as these agents were acting in their official capacity (See Articles 4, 5, and 7 of the ILC Draft Articles on State Responsibility). Lastly, in instances of IHL violations, the responsible State is legally obligated to provide reparation, irrespective of any specific treaty obligations (see here, here, and here).

Universal Legal Interest 

IHL is not a “mind-your-own-business” kind of law. With its erga omnes (to the international community as a whole) obligations, it requires every state to step up and call out violators. Not only the injured states but any state can and should demand accountability, insisting on both a halt to the violation and reparation for those harmed. 

Each party to the Geneva Conventions must actively seek out individuals responsible for grave breaches, like attacks on civilians or indiscriminate attacks, and either prosecute them or extradite them for prosecution. This is a form of compulsory universal jurisdiction.

Under customary international law, every state is required to investigate and prosecute its nationals or members of its armed forces for war crimes. However, successful prosecution and political will to punish these crimes can be complex issues, and Azerbaijan does not readily come to mind when we think of such political will.

Violations of IHL that also breach human rights law can be addressed through individual complaints procedures outlined in the respective human rights treaties. The European Court of Human Rights (ECtHR) has dealt with a slew of cases, spanning from occupied territories to combat operations. This becomes especially pertinent against the backdrop of Azerbaijan’s IHL violations on Armenian soil in September 2022. 

Individual Criminal Responsibility

The evolution of international criminal law, which directly holds individuals accountable, is a relatively recent development. Broadly speaking, the offenses over which international courts or tribunals have gained jurisdiction in general international law encompass the so-called “core” crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

The jurisprudence from the post-World War II International Military Tribunals at Nuremberg and Tokyo to the ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), has played a crucial role in solidifying both the substantive and procedural dimensions of International Criminal Law. The Rome Statute of 1998 established the International Criminal Court (ICC), which is the sole permanent international judicial institution prosecuting violations of IHL. The Court’s jurisdiction comes into play in three scenarios: when the accused is a national of a State party to the Rome Statute, when the alleged crime transpired on the territory of a State Party, or when a case is referred to the Court by the UN Security Council. Importantly, the Court’s jurisdiction is complementary and secondary to that of national courts and can be invoked only when national courts are unwilling or unable to fulfill their primary responsibility to investigate and prosecute these crimes.  

Finally, Article 75 of the Rome Statute recognizes the right of victims to claim reparation from individual perpetrators, providing a legal framework for seeking restitution for harm caused by international crimes.

Defying Barbarity: Why These Rules Matter Now More Than Ever

While global attention is currently consumed by Israel’s operations in Gaza, and only a few refraining from picking sides, Armenians could well be thinking that their situation is not “horrible enough” for the international community to get seriously involved. This breeds a credibility crisis that further erodes compliance with IHL, as trust in its effectiveness diminishes, and the affected party may be reluctant to adhere if it perceives itself as the sole compliant side.

Breaking free from this crisis requires substantial effort, moving beyond the continuous frustrations, and embarking on an objective exploration of the law. 

Indeed, Articles 47, 48, 127, and 144 of the Geneva Conventions I, II, III, and IV, respectively, as reiterated in Article 83 of the Additional Protocol I and Article 19 of the Additional Protocol II to the Conventions, outline the fundamental requirement for states to distribute IHL texts and regulations to their armed forces and the general public. While this is no easy task, the alternative is to remain trapped in an endless cycle of misinformation and reliance on the talking heads in the media.

Amid the current wave of widespread barbarity, and the devastating toll on human lives, there is a reassuring response to those who claim that establishing rules for warfare is a lost cause: These rules are more crucial today than ever before.

Part I

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