Introduction
In civilian legal circles and in introductory texts on international humanitarian law (IHL, also known as the law of armed conflict or LOAC), improving IHL compliance is often presented primarily as a matter of refining its implementation, dissemination and enforcement.Footnote 1 This is neither a surprising nor inappropriate position given that many IHL practitioners – especially civilian practitioners – are lawyers who may regard the topic of IHL compliance as primarily a legal or policy exercise. Moreover, within the International Red Cross and Red Crescent Movement (the Movement), this perspective has developed at least in part because the adoption of the original Geneva Convention of 1864 is such an important event in the origin story of the Movement.
Indeed, such legal and policy measures are necessary and vital, but they are likely insufficient to effect long-term behavioural change within State armed forces if the right culture is not already in place (or if it has not been properly maintained).Footnote 2 There may be one law, but the reasons for adhering to it are multifaceted. They can include legal sanctions and instrumental strategic reasons, but also ethical and moral considerations. Therefore, it is also important to relate the law to the special ethics of the profession of arms and to cultural, ideological or religious touchstones which exist in the wider society from which troops are drawn. This point was expressed succinctly in one of the key findings of the groundbreaking 2018 report on The Roots of Restraint in War carried out by the International Committee of the Red Cross (ICRC): “Norms of restraint are more likely to hold if they are internalized as part of a soldier’s identity – beyond ‘it is against the law’ to ‘it is not who we are’.”Footnote 3
Prior to the Roots of Restraint study, the ICRC’s 2004 study on The Roots of Behaviour in War provided the empirical underpinning to the organization’s approach to the implementation, integration and dissemination of IHL for the following decade. Although the Roots of Behaviour study helpfully viewed the topic of IHL compliance through the psychological and sociological lenses, one of its findings has since come under particular scrutiny:
We [the ICRC] need to treat IHL as a legal and political matter rather than as a moral one, and to focus communication activities more on the norms than on their underlying values because the idea that the bearer of weapons is morally autonomous is inappropriate.Footnote 4
This recommendation, intended to ward against relativistic applications of IHL, diverged from the earlier writings of scholars, such as Françoise Hampson, who had emphasized the importance of the individual conscience in inhibiting unlawful conduct on the battlefield.Footnote 5 In his 2014 review of the Roots of Behaviour study, Dale Stephens critiqued the implication that the ICRC should promote a clinical application of the law, devoid of reference to ethics or morality, especially as so many provisions of IHL are legally indeterminate and therefore reliant on the personal ethical orientation of decision-makers:
Normative law can create an unlimited vocabulary of meaning that can generate its own kind of internal rationality, one that acts to anesthetize authentic experience. Hence, despite the recommendations made by the authors of the [Roots of Behaviour in War] Study, the resort to values and deeper registers of meaning can and should be applied to condition the application of force under the law.Footnote 6
Consequently, when Roots of Restraint was released, Stephens welcomed its inconsistency with the findings of the earlier Roots of Behaviour study as they related to combatants’ moral autonomy and internalized values.Footnote 7
The ICRC and other humanitarian organizations have since put the Roots of Restraint study to practical use, incorporating its findings into updated trainings and ways of working during operations.Footnote 8 Moreover, in its public positioning, the ICRC now appears to have embraced the need to promote humanitarian values alongside the law as a way to discourage battlefield conduct that is “awful but lawful”.Footnote 9 In addition to the Roots of Restraint study, there has been a slew of research in the last decade within the social sciences on how service personnel come to internalize IHL normsFootnote 10 and some of the barriers to the uptake of those norms.Footnote 11 There seems to be a growing consensus that more should be done to connect the principles and rules of IHL with other deeply held beliefs, traditions and sources of identity. In this regard, Jody Prescott’s 2021 Empirical Assessment of IHL Education and Training presents a useful meta-study of the state of the art in this field. In particular, Prescott welcomes the emphasis that the Roots of Restraint study places on social factors of compliance, and argues that IHL education should
promote meaningful engagement with soldiers on positive military values rather than just legal norms. The goal should be the building of moral reasoning skills in all officers and soldiers from a systemic perspective of resilience, so that regardless of how tired, how hungry, or how angry soldiers might be over injuries or deaths sustained by their comrades, there is always a base setting of moral reasoning that will help keep them compliant with IHL.Footnote 12
These recommendations accord with the academic literature on military ethics. For example, in his thesis on the erosion of ethics in special operations forces (SOF), Seth Buckley notes a possible disconnect between IHL and the moral reality that many SOF personnel inhabit, and asserts that this disconnect needs to be bridged in order to internalize the norms which underpin the law:
SOF operate in the potential grey zone of ethical dilemmas. The moral high ground may change dramatically depending on the situation operators find themselves in. In part to help mitigate these uncertainties, we have international laws and rules of engagement to better define what is and what is not acceptable in war. These laws establish the acceptable norms of war for society but do little in developing moral judgment of individuals at the root level. Simply telling people what they can or cannot do may make them obedient, but not virtuous. Individuals gain virtue when they not only understand why they cannot or should not do certain acts, but place value in those reasons and act on those right reasons – that is, they have the moral motivation to do what they determine is right through moral deliberation.Footnote 13
In trying to understand such moral motivations, Buckley notes that culture and ethics are intrinsically linked to them.Footnote 14
Moreover, for practitioners within Red Cross or Red Crescent organizations, the preamble of the resolution on “Bringing IHL Home” from the 33rd International Conference of the Red Cross and Red Crescent (International Conference) provides an important statutory touchstone for explaining why it is useful for the Movement to consider the cultural and ethical roots of restraint during armed conflict – i.e., “to connect the law with the lore”.Footnote 15 In the resolution, the International Conference emphasizes
the basic value of respect for human dignity in times of armed conflict, which is not only enshrined in IHL but also in the rules and principles of different faiths and traditions, as well as military ethics, and recogniz[es] the importance of dialogue among relevant actors and ongoing efforts in this respect.Footnote 16
Consequently, it seems that the overarching findings of the Roots of Restraint study are beginning to affect the approach not just of the ICRC, but of the Movement more widely.
To be sure, there are debates within both civilian and military circles on the value of invoking extra-legal concepts to reinforce IHL – and I aim to engage with these below. Nevertheless, members of the armed forces cannot be expected to uphold IHL “in the same way a business executive follows the tax code”.Footnote 17 In armed conflict, the stakes for failure are much higher,Footnote 18 there is often less time to collect information and make decisions,Footnote 19 and despite many advances, enforcement ex post remains a challenge.Footnote 20 Therefore, it is important to consider the ways in which military perspectives on IHL are formed or reinforced by factors that are outside the scope of the law. Civilian IHL practitioners (in particular, those who may have come to IHL from other areas of law) may come to have an appreciation for these perspectives by exploring the rich and rapidly growing literature in the social sciences on (military) culture, religion – and IHL. Moreover, though not without risk, by taking these other normative frameworks into account in their work, military and civilian practitioners may help to contribute to a culture that allows compliance with IHL to take root more successfully.
In this article, I examine a few recent well-publicized IHL violations, the general mental states which may have given rise to such violations, and the sort of pernicious cultural factors which could have been in play. I then consider the modern-day value of martial codes of conduct, military ethics and notions of honour within the armed forces. Afterwards, I explore the recent work that has been done to (re)connect the underlying norms of IHL with various religious and traditional value systems. I then discuss some important caveats which should be kept in mind when undertaking work which compares morality, ethics and law, before finally presenting some practical implications for those involved in IHL implementation, integration and dissemination activities.
The relationship between IHL violations and lapses in general ethical or professional standards in the armed forces
Before exploring the ways in which certain extra-legal norms influence behaviour on the battlefield, it may be helpful to review two recent cases in order to illustrate a rough typology of states of mind with which combatants commit violations of IHL. Firstly, in what I refer to as “intent-type” violations, combatants choose to commit an IHL violation wilfully, with malice or out of expediency, and with the knowledge that the conduct is likely proscribed in some way. Secondly, in what I refer to as “negligence-type” violations, combatants do not intend to commit an IHL violation but nevertheless fail to take a reasonable amount of care in the course of their duties to prevent a violation from occurring.
In my descriptions of the case studies that follow, I should mention that these states of mind do not necessarily correspond to formal mens rea for any crimes – I use the words “intent” and “negligence” according to their ordinary meanings, rather than in any legal sense. My purpose here is to describe the social and psychological processes associated with each state of mind (and, by extension, to determine the sort of IHL integration/dissemination activities that might help to remedy them), not to offer judgement on the likely guilt or innocence of those involved. Moreover, while my two example cases are taken from relatively recent and well-documented events involving the armed forces of Australia and the United States, my choice of cases and countries reflects my own familiarity with them and should not be read as suggesting that the armed forces of these States are more predisposed to battlefield misconduct than others (if anything, these States should be commended for their transparency in this regard). Although I have chosen to cover lapses in IHL compliance by State agents, my analysis may have some relevance for the behaviour of non-state armed groups (NSAGs), particularly centralized NSAGs. In addition, I have intentionally avoided covering “top-down” IHL violations (i.e., those ordered at the behest of State officials), and I have assumed that the State is seeking to comply with its IHL obligations in good faith. As W. Hays Parks has correctly noted, unit discipline and training in the law of war are unlikely to have much influence if a country’s leaders are bent on doing whatever it takes to win.Footnote 21
Intent-type violation: The Brereton Inquiry
Intent-type violations would include those that tend to take place on the ground in physically close interactions between combatants and persons who are on the opposing side or who are part of the civilian population – for example, the killing of an enemy who is already out of action (hors de combat). In such contexts, a combatant’s personality and character (informed by training), and the pressures of the situation, including unit culture, can all inform how one will act in the field.Footnote 22 As an example case, the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (Brereton Report), which examined allegations of serious misconduct committed by Australia’s Special Operations Task Group in Afghanistan between 2005 and 2016, found credible evidence of
23 incidents in which one or more non-combatants or persons hors-de-combat were unlawfully killed by or at the direction of members of the Special Operations Task Group … and a further two incidents in which a non-combatant or person hors-de-combat was mistreated.Footnote 23
Of particular note, the Brereton Inquiry described how problems within a unit’s culture can increase the probability that there will be lapses in discipline, including the commission of IHL violations. As in similar investigations of other incidents in Iraq and Afghanistan,Footnote 24 the Brereton Report noted a general deterioration in unit discipline which preceded the more egregious offences. For example, after engaging those who they thought were the enemy, some members of the Task Group planted objects at the scene in order to manipulate after-action photography:
The Inquiry also found that there is credible information that some members of the Special Operations Task Group carried “throwdowns” – foreign weapons or equipment, typically though not invariably easily concealable such as pistols, small hand held radios …, weapon magazines and grenades – to be placed with the bodies of “enemy killed in action” for the purposes of site exploitation photography, in order to portray that the person killed had been carrying the weapon or other military equipment when engaged and was a legitimate target. This practice probably originated for the less egregious though still dishonest purpose of avoiding scrutiny where a person who was legitimately engaged turned out not to be armed. But it evolved to be used for the purpose of concealing deliberate unlawful killings. Footnote 25
In the incidents covered in the Brereton Report, a lack of knowledge of the law was not considered to be a major contributing factor to the violations – in many cases, the alleged conduct could be considered malum in se and therefore should not require special training to prevent.Footnote 26 Indeed, the Inquiry found that “[t]here is no suggestion anywhere in the extant accounts that anyone, including the perpetrators, claimed that what they were doing was not clearly and unambiguously illegal”.Footnote 27 Rather, those involved expressly prioritized mission success and force protection over adherence to IHL. Notably, this view does not seem to have originated with one rogue commander, but instead pervaded the culture of the Task Group:
There were a series of rules applied to [SOF] personnel [that], in their view, made their missions more challenging and put their personal and collective safety at risk. Rules of engagement and rules regarding detainee handling and processing are both frequently mentioned as being either wrong in design, or wrong in application. The cultural responses to such “wrong rules” was [sic] to find ways to subvert and break them.Footnote 28
Although a healthy unit culture or properly internalized norms do not provide complete protection against the states of mind which give rise to battlefield abuses, the reverse does seem to be the case – excessive relaxation of standards,Footnote 29 or indeed deviant cohesion, seems to increase the risk that such abuses will occur. Deviant cohesion describes a situation in which a smaller unit engages in what the larger armed forces would consider to be misconduct because it believes that such misconduct is necessary to achieve the unit’s objectives.Footnote 30 Similarly, as David Lloyd Roberts has identified and Elizabeth Stubbins Bates has reaffirmed, elements of informal “barracks culture” can sometimes work counter to any formal programmes to improve acceptance of IHL norms.Footnote 31 For example, Stubbins Bates notes:
The IHL training literature emphasizes attitudinal change and the internalization of norms, while considering that a barracks culture which is antagonistic to IHL compliance is a risk for that norm internalization. If military ethics training is improvised, or if the command chain is opposed to the independent thought that military ethics training might encourage, … the barracks culture is less likely to support the internalization of IHL norms. Those researching IHL training would benefit from a thorough synthesis of the literature on military ethics, while recognizing that flexible principles can never replace norm internalization in IHL.Footnote 32
To be sure, it has been observed that some amount of flexibility in enforcing military rules can help (particularly lower-ranking) leaders to maintain control of a unit.Footnote 33 However, it is important not to sacrifice core values (such as following IHL) for the sake of unit cohesion. Rather, core values should be regarded as essential in both formal and informal norms and not subject to negotiation.
Negligence-type violation: The 2014 Kunduz hospital air strike
Negligence can give rise to violations in situations where it is important for troops to maintain situational awareness or to follow complex procedures in order to decide whether or how to apply lethal force. The part of IHL which deals with the conduct of hostilities forbids the direct targeting of civilians and other protected persons.Footnote 34 However, it also accounts for the proverbial fog of war: combatants are not omniscient and therefore are susceptible to making errors in decision-making even when trying to apply the law in good faith. Consequently, the law requires them to take certain precautions in setting up and carrying out attacks in order to spare non-combatants from the effects of hostilities to the greatest extent feasible.Footnote 35
That said, in a recent study by Oona Hathaway and Azmat Khan, it is made clear that in many cases, targeting “mistakes” can be understood as having arisen from a reckless attitude on the part of those selecting or attacking the target – or as institutional failures to learn from previous mistakes.Footnote 36 As an example of how a violation can take place when proper precautions are not taken, it may be useful to consider the 2014 Kunduz hospital air strike, in which a US aircrew fired upon a trauma centre in Kunduz, Afghanistan, run by Médecins Sans Frontières, under the mistaken view that they were targeting a different building which they were told had been taken over by insurgents (and consequently could be considered a lawful military objective). By the time US forces had realized the error, the aircrew had destroyed the main hospital building and killed thirty non-combatants.Footnote 37 Those tasked with investigating the incident for the US Department of Defense (DoD) found that, among other things, “[t]he aircrew’s failure to exercise judgement when their observations did not correspond with the GFC’s [Ground Force Commander’s] description, intent, and ROE [rules of engagement] led to a LOAC violation”.Footnote 38 Although there does not seem to have been any wilful intent involved in this incident, it nevertheless involved a series of departures from standards on the part of multiple individuals in the targeting process which the DoD found to be unreasonable, even after taking into account the stresses of the operating environment.Footnote 39 Given the high stakes involved with the application of air power in a populated area, the DoD report suggests that the aircrew and the troops on the ground should have taken greater care when setting up the attack and should have noticed the warning signs that their target was incorrect.
Although the DoD report did show that US troops in the area were sometimes confused about the specific application of the law to the environment in which they were working,Footnote 40 greater knowledge of the law would not necessarily have helped to prevent the Kunduz strike. Rather, the report’s most significant finding with regard to training was that the aircrew’s headquarters allowed them to take on a mission which was seemingly beyond their competence, given their lack of experience and known difficulties during general training.Footnote 41 In this case, equipment malfunction and a lack of adherence to standards seemed to be the main contributing factors – not malice. Consequently, when considering training interventions aimed at preventing similar precautionary failures, it may be useful to reinforce the duty for members of the armed forces to show attention to detail in their work as part of a general professional ethos.
Implications for designing effective interventions to improve adherence to IHL
The armed forces are not a monolith, and in some countries the active and reserve components could total over a million people. Some troops may be receptive to a briefing which stresses the legal dimensions of IHL compliance, or they may be deferent to orders that are based on IHL. Others may be motivated to comply with the law’s underlying norms because they are part of the professional ethics of the military or of a particular service (e.g. “Good sailors/soldiers/aviators/marines/gendarmes, etc., do not commit atrocities, and we do not apply our craft in a sloppy manner”). Still further, others may be swayed by appeals to an underlying cultural or religious ethos – shared with wider society – that values upholding IHL norms (e.g. “My religion/culture expects combatants to behave a certain way, and has done so for a very long time”). Consequently, when considering ways to encourage the armed forces to internalize IHL norms, it is important to offer military audiences a variety of possible sources of legitimacy with which they can engage to undergird their personal motivation for upholding the law.
Military ethics, martial codes of conduct and the principle of honour
The need for certain professions to uphold special ethics is not a new phenomenon. Those working in the liberal professions, such as medicine and law, have long held to their own codes of ethics in order that they may be trusted by wider society.Footnote 42 As a separate community within society (and one with a capacity for great violence), it is particularly important for society to have faith in the military’s ability to uphold its professional ethics. It is an immense responsibility to be able to take a life without facing legal or (within one’s in-group) social repercussions for doing so, and it is therefore understandable why combatants worldwide and throughout history have developed similar professional ethics or codes – so that wider society can trust that when they resort to violence, it is justified and constrained to what is necessary. A combatant’s honour is inexorably tied to their ability to follow their code.
Martial codes of conduct
To be sure, martial codes of conduct can be flawed, but it may be helpful to first examine their utility before considering their darker aspects. Shannon French, a leading scholar on “warrior codes”, claims that they may be written or unwritten, proclaimed or embedded in tales of great heroes. Further, while not always mapping onto modern IHL completely, the content of such codes seems to have consistently covered similar rules for behaviour in armed conflict:
The code restrains the warrior. It sets boundaries on his behavior. It distinguishes honorable acts from shameful acts. Achilles must seek vengeance for the death of his friend Patroclus, yet when his rage drives him to desecrate the corpse of his arch nemesis, he angers the gods. Under the codes of chivalry, a medieval knight has to offer mercy to any knight who yields to him in battle. In feudal Japan, samurai are not permitted to approach their opponents using stealth, but rather are required to declare themselves openly before engaging [in] combat. Muslim warriors engaged in offensive jihad cannot employ certain weapons, such as fire, unless and until their enemies use them first.Footnote 43
French argues that warrior codes provide the profession of arms with vital protection against moral injury and the associated psychological ills that come from being asked to do things that the individual service member or wider society would otherwise believe to be unjust or immoral.Footnote 44 Moreover, as Christopher Coker has argued, following a long-standing code gives members of the armed forces a sense of connection both horizontally, with others in one’s own generation who also keep to the code, and vertically, with earlier generations of service personnelFootnote 45 (or indeed, sometimes even with ancient warriors from one’s own culture).
Historically, warrior codes not only provided injunctions against committing atrocious behaviour but also set standards for discipline and the level of attention or care that ought to be given to military tasks. For example, French notes that
[i]n many cases this code of honor seems to hold the warrior to a higher ethical standard than that required for an ordinary citizen within the general population of the society the warrior serves. The code is not imposed from the outside. The warriors themselves police strict adherence to these standards; with violators being shamed, ostracized, or even killed by their peers. One historical example comes from the Roman legions, where if a man fell asleep while he was supposed to be on watch in time of war he could expect to be stoned to death by the members of his own cohort.Footnote 46
Indeed, carelessness can have serious consequences for the protection of civilians, for completing a mission, or for force protection. As the Kunduz hospital air strike illustrated, mishaps in setting up or carrying out an attack can cause civilians to be wrongly targeted. They can also lead to incidents of fratricide (friendly fire).Footnote 47 Definitions of martial prowess that emphasize the importance of attention to detail can have a protective effect, so armed forces from antiquity to today have needed to demand competence from their troops. Consequently, martial prowess has been associated with traits such as having strength, speed, cunning and bravery – but also with self-control.Footnote 48 As the character of warfare has evolved, I would argue that this facet of martial codes of conduct would today also include paying attention during briefings, following standard operating procedures, remaining alert throughout the mission, and scrutinizing the situation more carefully if one becomes aware of equipment malfunctions or other deviations from standard ways of working.
The fear of shame that comes with breaking martial codes can sometimes be even more motivating than legal sanctions. Moreover, as Mark Osiel argues, shame can help to encourage restraint in situations where the perpetrator’s battlefield behaviour is awful but not manifestly illegal.Footnote 49 When an internalized code has been broken, the offender brings shame not only to themselves but to their unit, their service or the armed forces as a whole. This shame is difficult to shed and, in many cases, can lead the offender to be ostracized (even in the absence of formal indictment or punishment). To illustrate this point, French recalls the following account:
This man, whom I will call “Dan,” told me that he had been a fighter pilot in World War II in the Pacific Theater. Near the end of the war, he was commanding a squadron over Tokyo. They flew a mission near a crowded train station, where hundreds of people were desperately pushing to climb aboard trains that could take them away from the besieged city. Acting against direct orders, one member of the squadron broke formation, flew down and strafed some of the helpless Japanese civilians. When they returned from this mission, no one in the squadron would speak to the pilot who had murdered the noncombatants. Tears filled Dan’s eyes as he told me the conclusion of this sixty-year-old story: “We were all so ashamed of what he had done. He had shamed the entire squadron. He was killed in an engagement two days later. And, God help us, we were glad.”Footnote 50
Such sentiment is not simply an artefact of a bygone era. After returning from a deployment to fight the so-called Islamic State group in 2017, members of a US SEAL team were so ashamed and horrified by the battlefield atrocities alleged to have been committed by their chief, Edward Gallagher, that they risked their careers and reputations to turn him in to Naval investigators.Footnote 51
However, not every norm which makes its way into a martial code is entirely helpful for promoting humanitarian values. There are certainly elements from historic codes which today we would consider to be odious (such as stoning to death a soldier who falls asleep during guard duty). Moreover, warrior codes have not always contained norms that would prevent combatants from wielding the sword against non-combatants or enemies who are hors de combat. For instance, while some versions of the ancient Japanese code of bushido emphasized compassion towards those less powerful,Footnote 52 samurai often did not protect non-combatants who happened to be near a place of battle.Footnote 53 Rather, their treatment was contingent on the particular circumstances of the individual samurai and the exigencies of the situation (for example, if harming the non-combatants would give an enemy cause for retribution, then the samurai might exercise restraint; otherwise, the non-combatants would be at risk of being killed along with the combatants). Off the battlefield, samurai had the right to kill lower-ranking non-combatants in response to insults or sleights to their honour.Footnote 54 Moreover, during the Second World War, the proponents of Japanese militarism used bushido to justify atrocity, rather than restraint.Footnote 55
In more recent times, the Brereton Report identified a tendency for personnel within the Special Air Service Regiment (SASR) to construct a combatant identity for themselves, based on qualities they associated with the ideal “warrior”. Leaders could have prioritized the development of a combatant identity for the SASR that includes adherence to standards and to the law, but in the absence of such direction, it appears a more toxic culture took root:
A substantial indirect responsibility falls upon those in [the] Special Air Service Regiment who embraced or fostered the “warrior culture” and the clique of non-commissioned officers who propagated it. Special Forces operators should pride themselves on being model professional soldiers, not on being “warrior heroes”. Some domestic commanders of [the] Special Air Service Regiment bear significant responsibility for contributing to the environment in which war crimes were committed, most notably those who embraced or fostered the “warrior culture” and empowered, or did not restrain, the clique of non-commissioned officers who propagated it. That responsibility is to some extent shared by those who, in misconceived loyalty to their Regiment, or their mates, have not been prepared to “call out” criminal conduct or, even to this day, decline to accept that it occurred in the face of incontrovertible evidence, or seek to offer obscure and unconvincing justifications and mitigations for it.Footnote 56
While the Brereton Report did not specify the content of this “warrior culture”, scholarship on the darker aspects of the warrior culture at the US Air Force Academy has identified several characteristics which might help to flesh out the concept.Footnote 57 As a matter of policy, the Academy includes in its definition of the warrior ethos traits such as “tough mindedness, tireless motivation, unceasing vigilance, willingness to sacrifice one’s life for the country, and commitment”.Footnote 58 On first impression, these are admirable qualities and indeed would seem to help to provide a bulwark against negligent-type IHL violations. However, in addition to this formal definition, scholars such as Jarrod Pendlebury, James Do and Steven Samuels suggest that, through training and informal enculturation, cadets at the Academy also learn to incorporate a hyper-masculine ideal into their image of the exemplar (usually male) hero-warrior.Footnote 59 Part of this warrior identity includes traits such as athleticism, competitiveness and manliness. On the one hand, such traits may be helpful for developing a mindset that pushes a service member to overcome the enemy under difficult circumstances; on the other hand, that same warrior mindset, if left unchecked, can provoke disdain for civilians (who are not able to live up to the rigours of military life)Footnote 60 or even serve to exclude the service member’s comrades (especially women service personnel) as being insufficient or deviant if they are bested in tests of physical strength or endurance.Footnote 61
If such a mindset can so easily erase the worth and dignity of members of one’s own team for perceived insufficiencies, it is not a great conceptual leap to see how an unchecked warrior culture could encourage mistreatment of civilians encountered on operations and fighters who are hors de combat.Footnote 62 Moreover, the warrior-hero ideal can be highly individualistic and can encourage troops to resist challenge from institutional discipline or higher headquarters,Footnote 63 making it difficult to change from the top down.Footnote 64 Another unfortunate facet of some modern warrior codes is the unwritten norm that comrades should not turn in one of their own for battlefield excesses or alleged IHL violations. This code of silence was noted in the Brereton InquiryFootnote 65 and in a New York Times report on the Gallagher investigation.Footnote 66
Older martial codes of conduct and conceptions about the qualities of the ideal warrior continue to hold some sway over the way that combatants construct their identity in the modern age. For instance, despite its flaws, bushido remains an important cultural touchstone in Japan and scholars have attempted to rehabilitate the code for use in the modern era – both for pacifist and nationalist ends.Footnote 67 Indeed, it is important to understand which interests may try to co-opt a martial code, and to what ends. In some cases, it may be better to engage with and rehabilitate – or to categorically refute – a problematic code than to allow it to persist as a parallel normative framework that operates outside the formal structures of the armed forces.
Consequently, it may be helpful to recall French’s argument that, when invoking older warrior codes, “the key is to select for preservation only what is consistent with the values cherished by contemporary warrior cultures”.Footnote 68 In light of this, French suggests that the values and behaviours which become part of warrior codes adopted by US service personnel ought to be compatible with other (legal) frames of reference, such as the US Constitution. As an international standard, compatibility with IHL and applicable human rights norms certainly ought to be a benchmark as to what content makes its way into the codes for members of the armed forces worldwide and – importantly – what ought to be categorically excluded from such codes. Similarly, Osiel claims that “[w]hen the internal norms of soldiers give out, civilians will need to step in, imposing more universalistic and humanitarian ideals of justice”.Footnote 69 This has also been raised by IHL scholar and practitioner Michael Bothe in his observations on the concept of a “reasonable military commander”:
In democratic systems, the values pursued by the military and those by society at large cannot be far apart. The value system on the basis of which the military is operating has to conform to that of the civil society, not vice versa. What is necessary in this respect is the dialogue between civil society and the military, which then has to be reflected in military decision-making.Footnote 70
The norms of an institution such as the armed forces are notoriously difficult to influence,Footnote 71 and reasonable minds may disagree as to whether change is best effected by reference to troops’ identity as warfighters or to their identity as professionals – or indeed by trying to bridge these two concepts.Footnote 72 Regardless of which approach is taken, if civil society is to have an effect on norms within the armed forces, it is worthwhile to engage with the ways in which members of armed forces construct their individual identities as moral agents and how they connect with previous generations of troops – in the modern era, throughout the history of the nation, and even in (mythologized) ages past.
To that end, IHL practitioners may find it helpful to learn more about the ethics and martial codes of the cultural context in which they are working. For example, the Western just war tradition is featured in ethics training for the military in NATO’s Partnership for Peace Consortium.Footnote 73 There is also a growing body of literature on historic codes of conduct and military ethics from cultures worldwide – the recent Laws of Yesterday’s Wars series, edited by Samuel White, is particularly noteworthy in this regard.Footnote 74 In addition, traditions of restraint can be found in ancient writings on military strategy which are still popular today, such as those of Sun TsuFootnote 75 and even Thucydides.Footnote 76 Although there is value in identifying the correspondences between traditional codes and modern IHL, however, it is also important to consider the points of difference, as such codes often are (or were) complete normative frameworks in their own right, with their own historical development and logic.
In response to the recommendations found in the Roots of Restraint study, ethicist George R. Wilkes and psychologist Magnus Lindén conducted a pilot survey of twenty-five IHL instructors and thirty-two military ethics instructors across ten countries to gauge their attitudes towards teaching IHL and military ethics together, and they indeed found substantial support from both camps for integrating the teaching of their respective subjects in a deliberate way.Footnote 77 It is important to note that this initial research also showed that, compared with ethics instructors, IHL instructors were significantly more likely to regard the content of the two disciplines as conceptually different.Footnote 78 This suggests that it would be helpful for ethicists who become involved in joint training sessions with lawyers to familiarize themselves with the ways in which the law diverges from their philosophical tradition in order to avoid conflating similar – but distinct – concepts from each discipline. To be sure, Wilkes and Lindén stress that the sample size for this pilot study was small, and it is therefore difficult to determine how well the cohort represents the wider IHL and military ethics communities.Footnote 79 Nevertheless, the study provides empirical support to show that some IHL instructors are already open to including extra-legal considerations into IHL training – so long as it is done in a careful and deliberate way.
The contemporary relevance of military conceptions of honour
In addition to the codes themselves, it can be useful for civilian IHL practitioners to engage with the way that militaries understand honour. Ideals of honour have long been used to maintain martial codes of conduct.Footnote 80 Consequently, it is unsurprising that honour and the related European notion of “chivalry” have featured heavily in the codification of IHL, particularly early on, through express mention or as a general organizing principle. As Terry Gill writes:
Clearly, not all of what is (or perhaps more accurately was) regarded as chivalry or martial honour has been codified into law, but there is no doubt that significant elements have found their way into treaty and customary law and as such represent binding legal obligations. Other elements remain more a question of military tradition or ethics than positive legal obligations, but nevertheless exert some degree of influence.Footnote 81
Although honour has traditionally been considered a principle of IHL,Footnote 82 its status today is more unsettled. In the ICRC publication International Humanitarian Law: A Comprehensive Introduction, a section on the history of IHL mentions briefly that codes of honour were important sources of restraint in past times, but the concept does not feature in the text as a principle in its own right.Footnote 83
Until recently, references to honour as a principle had largely fallen out of use in military manuals.Footnote 84 In 2015, the principle was revived in the DoD’s Law of War Manual:
Honor demands a certain amount of fairness in offense and defense and a certain mutual respect between opposing military forces. … Honor has been vital to the development of the law of war, which was preceded by warriors’ codes of ethical behavior. U.S. military canons of personal conduct continue to emphasize the importance of honor as a core value. Honor as a core value and other ethical norms continue to be vital as a medium for the implementation of the law of war.Footnote 85
This addition has been met with surprise and some critique amongst practitioners and scholars. Some commentators, such as William Boothby, Wolff Heintschel von Heinegg and Sean Watts, regard the resurrection of the principle as lacking in parsimony since the rules which are purportedly covered by the principle are few and there is no need to invoke honour for them to function as good law.Footnote 86 While it may be debatable whether honour constitutes a formal legal principle under IHL any more, Jody Prescott argues that (particularly in the US context) honour does form part of the military’s general conceptualization of leadership and professionalism – and it can be invoked with good effect to encourage troops to uphold IHL.Footnote 87
Regardless of whether it is conceived of as a formal legal principle of IHL or as a general professional ethic which can inspire adherence to the law, it is important to acknowledge and respond to criticisms relating to the use of honour in the modern age. For instance, by over-emphasizing the degree to which IHL is based on chivalric notions of reciprocity and fair play, service personnel might (rightly) become cynical and lose faith in IHL when faced with enemies who do not uphold their own honour. Though he is a (qualified) proponent of honour as a formal legal principle, Terry Gill acknowledges this challenge succinctly:
Put simply, many would question why one should fight in accordance with notions of chivalry and honour, or even in accordance with the laws of war[,] against a foe which has no regard for them and routinely violates the law of war, [and] indeed sometimes uses it as a means of gaining a military or propaganda advantage.Footnote 88
While chivalric notions of reciprocity or fair play may have influenced the development of the norms that later became part of IHL, if they no longer motivate troops today, then perhaps it is time to embrace a broader concept of martial honour that does not rely on the enemy’s behaviour, and which can therefore resonate with militaries in the twenty-first century. For instance, Aaron Jackson and Kristine Kuenzli argue that martial honour could be reframed as a virtue that is tied to troops’ willingness to continue to respect the human rights and dignity of others even in the face of the inhumanity of the enemy, rather than a concept that is based on a sense of fair play between equals.Footnote 89 Prescott is also sanguine about the effectiveness of appealing to martial honour today as a way to encourage the internalization of IHL among members of the armed forces, even when the enemy fail to comply with their own obligations.Footnote 90
Is it even possible invoke chivalric honour in the modern day without inadvertently endorsing its more toxic elements? Rachel VanLandingham argues that chivalry is an outdated concept which even during its heyday had an inconsistent track record of promoting humanitarian outcomes and includes values and behavioural norms which are out of step with modern professional armed forces:
Chivalry, per an honest reading of the history books, connotes chauvinism, elitism, and the inhumanity of the Crusades. Feudal knights used the chivalric code to maintain their control of arms, keeping the peasants in their place. Bows and arrows, for example, were banned under the chivalric code not because they caused greater pain, but because they allowed commoners to threaten the privileged knights. Furthermore, such one-sided “codes of honor” only applied when the knights were fighting non-Christians, thereby signaling the assumed white, western, Christian superiority of the day – a far cry from the essential humanity that today’s jus in bello is built on.Footnote 91
Indeed, the word “chivalry” may be too conceptually tainted at this point to be successfully rehabilitated. However, recalling French’s recommendation only to select for preservation those parts of historic codes which resonate with contemporary norms, it may nevertheless be possible to promote a modern form of martial honour that pays homage to its forerunners without simultaneously promoting the toxic elements that are better consigned to the dustbin of history. Indeed, in the United States, “Honor” appears as one part of a set of core values for the DoD and some of the individual services.Footnote 92 Other values, such as the Army’s value of “Respect”, could help to inform how one is meant to interpret honour for the modern age. When understood as part of a service member’s general ethics and professional identity and when expressly linked to upholding more universal concepts such as respect for human dignity, appeals to honour may yet provide a way to motivate adherence to IHL in situations where the threat of legal consequences proves to be an insufficient check on combatant behaviour.
Having reviewed some of the ways in which the military creates and reinforces an identity and ethics for itself, it may be useful next to consider some of the ways in which cultural forces in larger society influence combatants’ attitudes towards IHL.
Religion and other world-views
In addition to martial codes of conduct and military honour, morality based on religion has historically been an important source of cultural norms which encourage combatants to exercise restraint in times of armed conflict. In the modern age, some elements of ideology may perform a similar function.
Religion
Some IHL practitioners are understandably hesitant to suggest that the law has religious roots since the formal ratification of IHL’s secularized rules was hard-won; moreover, practitioners within the Red Cross and Red Crescent Movement may be particularly wary of running afoul of the Fundamental Principle of neutrality, which (among other things) requires the Movement not to engage in religious controversies. Indeed, in some cases, religious teachings might not line up with IHL, or they may be otherwise problematic.Footnote 93
Of course, there are risks in undertaking comparative studies of IHL and different religions – and in engaging with religious actors to promote adherence to IHL norms. For example, humanitarians may fear inadvertently legitimizing actors within communities who have, at one point or another, used religion to undermine IHL norms (e.g. by condoning violations committed by adherents to one’s own faith or by excluding certain people from IHL protections).Footnote 94 A recent socio-legal study by Ioana Cismas et al. provides a nuanced view of when it might be appropriate for humanitarian actors to engage with faith actors and, crucially, how to do so in a manner that is likely to successfully promote compliance with IHL norms without inadvertently legitimizing exclusionary views (e.g. against people of different faiths, women, LGBTIQA+ individuals, and ethnic minorities).Footnote 95 In particular, the study provides a useful mapping template to help humanitarian actors – to the extent that their mandates, priorities and capacities allow – to carefully analyze which religious leaders might hold sway in a particular conflict situation and their level of interest in humanitarian matters in order to determine what type and level of engagement might be most appropriate in that context.Footnote 96
Having engaged religious leaders and scholars to explore the convergences between religion and IHL, the ICRC’s former lead for its Religion and Humanitarian Principles project,Footnote 97 Andrew Bartles-Smith, convincingly argues that religion plays an important role in shaping the identity and moral reasoning of many combatants and that it can be harnessed to promote IHL more effectively.Footnote 98 Religious institutions are often still functioning even in parts of a country where the power of the State is weak or lacks reach,Footnote 99 thereby providing an important possible source of regulation even in the absence of formal power. Religions often encourage adherents to internalize norms into their personal morality which are, in turn, enforced by omniscient divinity – or earthly disapproval or punishment from co-believers (or all of the above). This internalized morality can provide an important check against the malicious-type violations mentioned earlier, independent of the law or legal enforcement mechanisms.Footnote 100 Religions can also help their adherents to prevent negligent-type violations by helping them to build up their psychological resources with tools such as meditation, which have been shown to focus the mind, allowing for greater discernment in times of stress.Footnote 101
On balance, given the scepticism that many around the world may have towards norms perceived to have been developed in the global North, expressly linking the law to religion and similar cultural practices in this way can help IHL to become accepted on the basis that the norms which underpin it are, in many cases, home-grown and not foreign imports.Footnote 102 Although there are important differences between religions, when it comes to the norms of restraint in the conduct of armed conflict, there are many convergences between different religions and IHL – both in terms of general principles and sometimes even with regard to specific rules.Footnote 103 As for the substance of these connections, much has been written on the influence of the Christian just war tradition on international law which I shall not repeat here.Footnote 104 In addition, there has been a great deal of work done over nearly three decades on the subject of Islam and IHL.Footnote 105 Of particular note are the contributions of ICRC legal adviser Ahmed Al-Dawoody, whose writings compare historic and modern interpretations of the jus in bello in Islamic law and jurisprudence with IHLFootnote 106 – and who has convened meetings of expert scholars on the subject.Footnote 107 Moreover, since 2020, the ICRC has begun collecting and publishing contributions from scholars and practitioners on its Religion and Humanitarian Principles Blog, which has uncovered a great deal of overlap between IHL and norms found within religions such as Christianity, Islam, Hinduism, Buddhism and Judaism, along with other traditional practices worldwide.Footnote 108
Ideology, politics and similar world-views
Like more traditional sources of regulation, such as religion and martial codes of conduct, some facets of ideology can also support restraint in armed conflict. For example, Francisco Sanín and Elisabeth Wood suggest that NSAGs whose ideological commitments require them to show that they can govern better than the State will socialize their fighters to behave with restraint towards civilians.Footnote 109 Later work by Amelia Hoover Green provides convincing empirical support for the claim that political education plays an important role in the effective socialization of norms of restraint, particularly for NSAGs.Footnote 110 Moreover, in a 2022 study, Andrew Bell and colleagues found political affiliation to be a good predictor of whether US officer cadets would support measures to improve the protection of civilians in armed conflict – even when controlling for the moderating effects of their training.Footnote 111 Also, Parks, despite his viewing with scepticism the use of appeals to religion, chivalry or universality as a basis for explaining the value of the law of war to troops, has nevertheless couched IHL compliance in terms of support for an ideological position:
In lectures, I do not “lead with my chin” by rationalizing the law of war through such statements [about religion, chivalry or universality]. If asked, I argue that we follow the law of war because (a) we are a nation that believes in the rule of law, (b) … adherence to the rule of law is what our respective nations and our citizens expect of us, even if our enemies engage in flagrant violations, and (c) the law of war when properly understood is consistent with military efficiency and professionalism.Footnote 112
Ideologies which place stock in respect for the rule of law, such as liberalismFootnote 113 and constitutionalism,Footnote 114 historically have formed a core part of the United States’ political and rhetorical traditions shared by the major political partiesFootnote 115 (and, I would suggest, other liberal democracies as well). Consequently, by invoking the rule of law in such contexts, practitioners can rally support for IHL, even by members of the armed forces who otherwise might hold different political affiliations or views. It should be noted, however, that liberalism and constitutionalism are not the only ideologies which rely on the rule of law to construct regime legitimacyFootnote 116 – indeed, it is possible that the concept can be used with good effect to promote adherence to IHL in other ideological contexts as well.
However, as with religion, IHL practitioners – particularly those within the Movement – should take great care before expressly tying ideological concepts (even commonly held ones) to IHL, in order to avoid inadvertently placing IHL at the centre of a political or ideological controversy or allowing one political faction to claim ownership over this body of law. In this vein, the Commonwealth Parliamentary Association’s IHL handbook helpfully encourages parliamentarians to
contribute to more informed and less-politicised discourse on IHL issues, thereby upholding and reinforcing the neutral character of IHL as a body of law. By working across parties and approaching IHL issues on an all-party basis, Parliamentarians can support a united approach to IHL.Footnote 117
As with religion, the norms of IHL may indeed appear in political and ideological traditions worldwide, but it would be unwise to suggest that they only appear in one particular ideology or that one ideology has a greater claim to be aligned with IHL than another.
Limitations and important points to keep in mind
While it is indeed a worthwhile endeavour to find correspondences between IHL and similar norms in ethics and codes for the armed forces, cultural practices, religion and certain world-views – and then to incorporate them into IHL dissemination activities, as appropriate, according to the local context – it is vital that practitioners are honest and effectively communicate the limitations of such work. This includes engaging with Park’s critique, shared by other military legal advisers such as R. Scott Adams, that such extra-legal reasons for following the law are best left out of lessons on IHL.Footnote 118 In this regard, there are several related points which practitioners should heed if they do wish to widen IHL dissemination to include these norms.
Firstly, it should be recalled that there is no one motivation for following the law that will resonate with everyone. The point of raising martial codes of conduct, ethics, religion or ideology is not necessarily to say that such factors should be the main reason for following the law. Rather, it is to help answer the question: where does the law come from, and how does it align with the audience’s existing values? In any given local context, what might work in an IHL dissemination programme for the general public (e.g. an appeal to religion) might not be as appropriate or effective for the armed forces (compared to, say, an appeal to a martial code of conduct) or vice versa – it is important know your audience and what is relevant to them.Footnote 119 Moreover, ideally, the practitioner would emphasize the universality of the main IHL principles before raising any analogues found in codes for the armed forces, cultural practices, religion, etc.
Secondly, IHL practitioners should consider whether they are the best messengers when it comes to relaying IHL norms in extra-legal terms. For example, without a deep understanding of a particular religion or culture, an instructor may soon find themselves out of their depth if trainees wish to have a lengthy discussion about such matters. Moreover, IHL practitioners in the Movement may risk breaching the Fundamental Principles if they do not take care in their approach. Consequently, in some cases it may be to better engage with others who do have such expertise, such as religious leaders, influential veterans or ethics instructors, to determine whether they are able to contribute their knowledge and authority in order to encourage greater adherence to IHL norms.
Thirdly, it is important to be honest about historical accounts (or as honest as one is able to be given the available evidence). Mythologized accounts of historical events can provide very engaging case studies for how members of the armed forces ought to fight, but it is important to be upfront with audiences (especially military audiences) about what was actually practiced in the past. This is not to say that mythologiesFootnote 120 or mythologized histories should not be used to help teach IHL – indeed, they can widen the appeal of IHL lessons and make otherwise controversial topics easier to explore than case studies based on recent events. Rather, I mean to say that, unless it is obvious, the practitioner should clarify when an account is – or is not – historically accurate. To do otherwise could invite cynical rebuke. Real humans should not be held to superhuman standards. Moreover, as VanLandingham has rightly pointed out, historic ways of warfare were not always very restrained. Therefore, one must not let nostalgia cloud one’s judgement in such matters.
Fourthly, there can be a tendency when engaging in this sort of interdisciplinary work to conflate norms which are rooted in religion, culture or ethics with IHL. This should be resisted since IHL is a functioning body of law with its own history, logic, sources of legitimacy, legislative processes and means of adjudication. Cultural and other concepts may help to inform the reasons why a person may be inclined to follow the law, but one should never confuse such concepts for what the law actually says.Footnote 121 Consequently, it is particularly important for professionals – whether soldiers, lawyers, ethicists or religious figures – to be clear about when they are referring to religion, culture, ethics, etc. versus when they are referring to the law. Doing so should allow for more pluralistic understandings of the value of IHL’s underlying norms without undermining the legal-positivist approach that allows the law to be effectively adjudicated in international and domestic legal systems. A combatant may be denounced for breaking a martial code of conduct, but they are imprisoned based on a positivist/doctrinal understanding of a well-defined war crime.
Fifthly, while they may be similar, it is important to keep in mind that certain norms of restraint may vary from one culture to another. For example, imagine that there are two nations – each has cultural practices which require captured fighters to be treated humanely, and both cultures agree that torture is prohibited. However, one nation has an ancient code that allowed for prisoners of war to be forced to serve in the captor’s army, and the other does not. Relying solely on cultural practices without reference back to IHL could lead to a conceptual slide towards moral relativism – in this case, absent a fixed frame of reference, it becomes more difficult to articulate why it is wrong to make detainees serve in the captor’s army. Only by referring back to IHL can a common standard be re-established. Consequently, in practice, it is important to promote only those norms which meet or exceed the standard of IHL.Footnote 122
Sixthly, it is also important to try as far as possible to maintain a common vocabulary within the community of LOAC/IHL practitioners (both military and civilian). This is to encourage dialogue and a common understanding of standards across militaries and across disciplines. It is a challenge at the best of times to limit ambiguity in IHL texts, especially those which have multiple authoritative languages. On the one hand, IHL could benefit from basing its claim to universality on pluralistic understandings of its underlying norms, allowing for some variations in interpretation.Footnote 123 However, such pluralism must not provide fertile soil for relativism or nihilism to take root.
Finally, as Prescott has astutely pointed out, if service personnel do successfully internalize IHL norms and behave accordingly, but the chain of command fails to support them, the negative psychological impact (and resulting cynicism) could be very pronounced indeed.Footnote 124 In some national contexts, having support from senior commanders may be sufficient to inculcate a receptiveness to IHL instruction down the entire chain. However, as Bell and Terry reveal, in other contexts, buy-in by non-commissioned officers (or a lack thereof) may prove to be more influential in determining support for IHL among the rank and file.Footnote 125 Consequently, it is important to understand where in the command structure there might be resistance to IHL and to consider interventions that might appeal to the unique characteristics of that part of the hierarchy.
Implications for IHL integration and dissemination
With the above points in mind, there are several ways that IHL practitioners can usefully incorporate other normative frameworks into their integration and dissemination programmes. Civilian lawyers who are new to the field of IHL do not necessarily need to spend time with the armed forces in order to appreciate military perspectives on IHL. However, at a minimum, it can be useful for such professionals to dedicate some time as part of their continuing education to study or engage with the literature on norms of restraint rooted in military ethics, culture, religion and ideology.Footnote 126 Indeed, in a similar way, civilian mental health professionals are finding it useful to understand the ways in which members of the armed forces create meaning and a shared sense of identity – not necessarily to refute or reinforce those ideas, but to better understand where their clients are coming from.Footnote 127 Similarly, IHL professionals may choose to steer clear of religion, “warrior” codes, military ethics or ideology, but it is nevertheless important to understand the logic of such frameworks in order to better engage those for whom they are the main motivation for upholding IHL.
For those who would find it useful and worthwhile to engage with such subjects in the spirit of “bringing IHL home”,Footnote 128 one can seek out the different normative frameworks which support IHL from within one’s own cultural, religious and martial traditions and then incorporate them in an appropriate way into relevant IHL documents at the national level. This can include military manuals,Footnote 129 voluntary reports on IHL implementationFootnote 130 and doctrine, among others. The foreword can often provide an appropriate place within the text to show how such norms support IHL without incurring the risk that readers may conflate specific IHL rules with concepts they might come across in ethics or morality.
Prescott rightly cautions that “[m]erely linking IHL principles with official military values in doctrinal documents is not sufficient to create the education and training products and programs necessary to effectively instruct soldiers in either”.Footnote 131 Nevertheless, updating doctrine can provide a useful first step, as such documentation often provides a touchstone for the further development of educational materials for the armed forces. For instance, in order to prevent recurrences of the abuses detailed within its pages, the Brereton Report recommends that “[e]ducating personnel about the causes of war crimes, so that they understand how such crimes can come to be seen as almost required and therefore justified, is vital, as is providing them with the moral and ethical framework to resist”.Footnote 132 To that end, the Australian Defence Force published a new doctrine on military ethics in 2021.Footnote 133 This doctrine is an accessible introduction to the field of military ethics for all ranks, and it helpfully distinguishes between ethical norms and legal requirements in order to avoid conflation of the two. However, while it understandably warns service members against subjectivism and relativism,Footnote 134 the new doctrine treats the Western just war tradition as axiomatic, and perhaps could benefit from a section that refers to the existence of other martial codes of conduct or ethical frameworks (such as Aboriginal customs or Islamic laws of war), if only to acknowledge how other cultures have wrestled with the subject. In addition to this overarching ethics doctrine, its associated doctrine on “character in the profession of arms” encourages the development of the sort of virtues that might guard against negligence-type violations: for example, “staying on task”, “focused attention” and “avoiding distractions” as elements of “self-control”.Footnote 135
As another straightforward step – while bearing in mind the caveats mentioned above – IHL practitioners could seek out opportunities to connect IHL with its ethical and cultural roots in dissemination materials and lesson plans. For example, to mark the 75th anniversary of the 1949 Geneva Conventions, the ICRC collated some new and existing resources which highlight how IHL is reflected in different codes and practices worldwide for its online casebook, How Does Law Protect in War? Footnote 136 These may be readily incorporated into existing dissemination materials for National Red Cross and Red Crescent Societies and others outside the Movement, and doing so may not only help to engender an appreciation for IHL by the armed forces but may also help to improve understanding and acceptance of IHL by the public at large.
As an additional step, IHL practitioners, whether military or civilian, may find it helpful to establish contacts with relevant individuals and institutions to propose joint events, research projects or exchange days. These could include the ethics or “character and leadership” departments of military academies and staff colleges (in close consultation with their respective law departments or judge-advocates). During such joint events, projects or informal discussions, IHL practitioners can create space for ethicists to draw connections between warrior codes or military ethics and IHL while stepping in as needed to maintain the boundary between ethics and law in order to avoid conflation between the two normative frameworks. Moreover, joint briefing (or debriefing) of military exercises by both IHL and military ethics instructors could provide another avenue for further engagement.
Finally, an often overlooked but potentially helpful ally in promoting IHL within the armed forces is the chaplaincy (or other similar units for religious personnel). Article 47 of Geneva Convention I and Article 48 of Geneva Convention II cover how States must disseminate the contents of these respective treaties. These articles expressly mention chaplains as a key audience for such instruction. Ostensibly, chaplains were singled out in this way so that they might understand their own protections and responsibilities under each convention;Footnote 137 consequently, chaplains should already have a baseline level of knowledge of IHL at least as it relates to wounded, sick and shipwrecked members of the armed forces and those who care for them. As Bartles-Smith raises in this issue of the Review, wider engagement between IHL practitioners and military chaplains (and similar spiritual leaders in NSAGs) could help to improve acceptance of IHL writ large. This is because, among other things, chaplains are embedded with the military (but crucially are not part of the chain of command), they are trusted and valued for the pastoral care they provide, and they are credible because they deploy with the armed forces, sometimes all the way to the front lines. Moreover, they are often knowledgeable about the way in which their religion understands and frames issues of morality and ethics in armed conflict.Footnote 138 For their part, IHL practitioners can engage with the chaplaincy to further chaplains’ knowledge of the law through trainings and events. Another practical way that IHL practitioners can involve chaplains is by reviewing materials developed by the chaplaincy for members of the armed forces to see if there are any convergences with IHL that could be usefully highlighted (or inserted, where appropriate).Footnote 139
In this way, while always being clear about what the law says, IHL practitioners can reinforce the law by working with other experts who may know more about how members of the armed forces see themselves and make sense of their moral universe.
Conclusions
There may be one law, but the reasons for adhering to it are multifaceted. It is my hope that the present contribution, when read in conjunction with the ICRC’s Roots of Restraint in War study,Footnote 140 helps to outline the contours of the ways in which certain extra-legal norms underpin the motivations for members of the armed forces to uphold IHL, and offers some modest but practical ways for IHL practitioners to incorporate these norms into their work. The law rightly establishes the floor for conduct that is acceptable in armed conflict, but by relying on existing sources and ways of making meaning, including in martial codes of conduct and modern notions of honour, military ethics, and other cultural, religious and ideological foundations of morality in war, IHL practitioners can ensure that the law resonates both with the armed forces as a whole and with troops at an individual level, in order to prevent both intent-type and negligent-type IHL violations. There are some important caveats which should be kept in mind when undertaking this work, however, and IHL training and integration activities that do take into account these other normative frameworks are not silver bullets which guarantee that one’s audience will internalize IHL. Nevertheless, by finding and using such points of connection, IHL practitioners can make their dissemination and integration interventions more resilient and increase the likelihood that service personnel will view upholding IHL as being part of who they are.
Open access
