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Outdated Rules of War Need Major Overhaul: Experts

While the World Humanitarian Summit has vowed to strengthen the ‘rules of war,’ conflict remains the main factor in displacement – and the flight of civilians across borders will not subside until there are major reforms in the current system.

Written by Alessandria Masi Published on Read time Approx. 5 minutes
Civilians walk through a street in an opposition-held neighborhood of Aleppo on Feb. 11, 2016. Alexander Kots/Komsomolskaya Pravda via AP

The Syrian conflict has made it clear that the so-called rules of war need a major overhaul, according to experts, diplomats and aid workers at this week’s World Humanitarian Summit. Syria has seen armies and militias use barrel bombs and cluster munitions, target hospitals, behead journalists and aid workers and obstruct humanitarian aid, all with relative impunity.

The rules of war are designed to limit the effects of armed conflict, especially on civilians, and are contained within International Humanitarian Law (IHL). Violations of these rules are on the rise globally, not just in Syria, and without an overhaul, the international community’s ability to rein in state and non-state actors involved in violent conflicts will steadily slip away.

“Flouting the most basic rules governing the conduct of war has become contagious, creating further risks that their application will be reinterpreted and blurred,” U.N. Secretary-General Ban Ki-moon said in a document aimed at guiding the agenda of the summit, which took place on May 23–24 in Istanbul. “When states disrespect or undermine international humanitarian and human rights law, including through expansive interpretations, other states and non-state actors regard it as an invitation to do the same.”

Putting a stop to these violations was a central focus of this week’s landmark summit. Sponsored by the United Nations, it called on world leaders to “systematically condemn” IHL violations and to “take concrete steps to ensure accountability of perpetrators” – steps the majority of participants should have already been taking. But war looks different on the battlefield than it does in the boardroom.

Today, states that break the rules of war often gain the upper hand in battle, non-state actors are not held accountable for violations, and the consequences for even the most blatant IHL abuses are mostly empty threats. And without fixes to IHL’s major flaws, civilians will continue to bear the brunt of modern warfare.

These rules, conceived in the aftermath of World War II, are designed to set limits to armed conflict by codifying protections for people who are not or are no longer participating in hostilities and by restricting the means and methods of warfare. But a sampling of today’s conflicts shows that the rules of war are being completely ignored. The reach of global violence has never been greater. Roughly 80 percent of the world’s aid budget is allocated to conflicts across the globe, which, in the past year alone, have displaced some 8.6 million people. Roughly half of the world’s poor live in conflict areas or fragile states, a number that is expected to rise to 80 percent in less than a decade, according to global charity Concern Worldwide.

But with “antiquated and over-politicized” rules of war, according to the charity, the international structures aimed at limiting the effects of conflict are doing little to safeguard the most vulnerable.

As it stands, IHL can be effective only if all parties involved in a conflict adhere to it, driven either by their own moral compasses or by fear of retribution. But seven decades on, we can no longer expect the entire international community to continue to abide by IHL for these arbitrary reasons. State and armed non-state actors alike have proved just as guilty when it comes to respecting the rules of war.

Commitment With(out) Borders

Dozens of delegates took part in a high-level World Humanitarian Summit (WHS) leaders’ roundtable on Tuesday titled, “Uphold the Norms that Safeguard Humanity,” where Peter Maurer, president of the International Committee of the Red Cross (ICRC), urged participants to use their “power to ensure that war has limits.” And some 15 side events focused on the rules of war, which included subjects such as engaging with non-state actors for humanitarian purposes, the use of explosive weapons in civilian areas, and retooling IHL to make it work for women and girls.

But missing from the summit was the presence of some of the most guilty violators. In the Syrian conflict, for example, nearly every armed party involved has been accused of breaking anywhere between one and a dozen rules of war, but not a single group, faction or state was in attendance.

The rules of war in Syria are almost entirely absent. Last year, the government killed no fewer than 57 media activists, 82 medics and 1,546 detainees who died under torture, according to the Syrian Network for Human Rights (SNHR). The monitoring organization also claimed the government used barrel bombs, cluster munitions and poisonous gases in civilian areas. Since militarily intervening in October 2015, Russia – Syria’s main aerial ally – has been accused of “indiscriminate shelling” and targeting crowded marketplaces, makeshift hospitals and at least two schools.

But the government and its allies are not the only parties in Syria’s conflict to have broken the rules of war over the past five years. According to SNHR’s 2015 report, Kurdish forces arbitrarily arrested some 800 people, including 42 children; the Islamic State group (ISIS) arrested around 245 children, killed medical and media professionals, and allegedly used poisonous gas; al-Qaida’s Jabhat al-Nusra arrested nearly 300 children and shelled civilian areas; and armed opposition groups arrested at least 11 children and a dentist and killed no fewer than nine detainees under torture.

The protection of children and civilians during armed conflict was the U.S. delegation’s first priority at WHS, Jeremy Konyndyk, director of the U.S. Agency for International Development’s Office of U.S. Foreign Disaster Assistance, told Syria Deeply. But the U.S. is not innocent when it comes to IHL violations. SNHR claimed that U.S.-led coalition airstrikes targeting ISIS in Syria killed at least 271 civilians, including 87 children, last year.

When asked what the American delegation hoped to achieve at the summit with regard to civilians in Syria without these key players (including its own head of state), Konyndyk said it would do all it could to “reinforce global support for the norm. If countries don’t respect that, then the question of why [they don’t] is better posed to them.”

Militant Engagement

The problem with Konyndyk’s suggestion is that posing this question to many of the key players in today’s violent conflicts would break counterterrorism laws.

The international community has been reluctant to engage with armed non-state actors, even for humanitarian purposes. The reasons for this are varied: These groups are potentially dangerous; providing aid in their areas could constitute giving material support to terrorism; and negotiating with militants would level the power playing field and give them legitimacy.

However, in today’s conflicts, militant groups and non-state actors have created their own legitimacy through their ability to control territory, establish their own rule of law, govern civilian populations and deny access to humanitarian organizations when and as they choose. Some would say that if these groups want to act like a state, they should be held to the same welfare standards as official countries.

“Non-state armed groups are key actors in today’s armed conflicts. They have a direct impact on millions of civilians and have responsibilities under international law,” Hichem Khadhraoui, head of operations at Geneva Call, an organization that engages armed non-state actors on civilian protection, said at the summit on Tuesday.

But without new policies that allow for engagement with non-state actors on a humanitarian level, or infrastructure to hold these groups accountable for violations of the rules of war, they have no incentive to abide by them.

Crime Without Punishment

The International Criminal Court (ICC) is responsible for investigating and trying individuals charged with major violations of international law, including genocide, war crimes and crimes against humanity. However, its jurisdiction is usually restricted to individuals acting on behalf of a state that has signed the Rome Statute – it is possible, but very rare, to prosecute non-state actors.

But there’s another catch: Individuals accused of major violations must be referred to the ICC by their own government – an unlikely scenario when states themselves are accused of breaking the rules of war.

As Salil Shetty, Amnesty International’s secretary-general put it, without reforms to the current rules of war, parties to the world’s conflicts will become increasingly emboldened, and “there will be no stopping the downward spiral.”

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