Non-binding norms in the law of armed conflict

In the aftermath of the US invasion of Afghanistan, Bush administration appointees criticized the Geneva Conventions as being, among other things, obsolete and out of date. Indeed, one of the constant criticisms of the Law of Armed Conflict (LAC) has been its historic (perhaps even historic) inability to effectively foresee new developments and to proactively craft laws to deal with new practices and developments. A review almost as old as the LOAC itself is that it is still fighting the last war.

There is some truth in that; DCA treaties have, for the most part, been reactive, responding to the conduct of the most recent conflict, rather than predicting the conduct to come. However, recent years have seen a tendency to reverse, or at least temper, this responsive quality. States, civil society organizations and experts, usually acting in small groups, have drafted and published instruction manuals on new and emerging means and methods of warfare that are either completely unregulated or significantly under-regulated under applicable law. Rather than waiting for the international community to adopt new treaties, these small groups of interested stakeholders have instead engaged in the development of standards, in the form of non-binding instruments. These non-binding instruments were designed either as “best practice” guidelines or as (re)statements of applicable law. They are not treaties and they are not intended to be binding.

Non-binding instruments

This evolution of DCA is not new to international law, or even to DCA itself. Soft-law instruments have been part of DCA law-making for decades, with states and even non-state actors adopting soft-law instruments, in the form of codes of conduct, instruction manuals or other draft laws. instruments or not binding. For example, in 1880, the Institute of International Law published his Handbook on the Laws of War on Land. As its preamble makes clear, the Oxford Handbook, as it came to be called, was not intended as “an international treaty, which may be premature or at least very difficult to obtain”. The Institute produced it nevertheless to fulfill “a duty to offer governments a ‘Manual’ suitable as a basis for the national legislation of each State, and in accordance with the progress of legal science and the needs of civilized armies” .

Non-binding provisions have even been included in hard law DCA treaties. For example, common Article 3 of the 1949 Geneva Conventions includes a provision that encourages parties to a non-international armed conflict “to make every effort to bring into force, by means of special agreements, all or part of the other provisions of this Convention”. .” Additional Protocol II of 1977 to the Geneva Conventions of 1949 includes another statement of best practice in Article 6 which encourages the extension of amnesty to non-State participants in non-international armed conflicts.

There are now a considerable number of non-binding instruments that form part of the DCA landscape, from the highly respected and widely adopted 1994 San Remo Naval Manualto more recent instruments such as the Leuven Handbook on International Law Applicable to Peace Operations. In many ways, these instruments are beneficial to those engaging in DCA – they are (usually) measured, thoughtful, and well-researched statements of the law as it applies to new and complex situations.

By drawing on the expertise of a small group of contributors, these instruments can be debated and drafted in a timely manner, arguably faster than if these issues were left to the international community of 196 states to resolve. Moreover, since these instruments are not the subject of debate at an international conference of states, the provisions are not subject to the usual revisions, reservations and dilutions that accompany the attempt to reach a consensus. between many states. Non-binding instruments have the potential to be dynamic, rapid and reactive measures to solve pressing problems in situations of armed conflict.

Concerns about non-binding instruments

Nevertheless, these non-binding instruments raise certain questions regarding their substance and procedure. Concerns about legitimacy are obvious; these documents are often debated and drafted by relatively few experts, sometimes as few as thirty. Limiting the number of experts to the expert panel can make the drafting process more manageable, but it can also mean that only a limited number of viewpoints are represented, particularly if the experts only represent points. selected legal, geographical, socio-cultural or political points of view. backgrounds.

In practice, the experts involved in the creation of one instrument have often been involved in the drafting of other instruments. While it is obviously useful to have recourse to the wealth of expertise offered by these people, it can also mean that only certain doctrinal or theoretical positions are reinforced and perpetuated. And while attempts are clearly made to ensure that the final instrument reflects lex latasome instruments have been closer to lex ferenda (as with the ICRC expert advice on direct participation in hostilities).

Added to concerns about the legitimacy of these instruments are questions about their legality. Are these instruments treated as legal documents in any way, and if so, what are the implications? Do they have any authority to claim to be instructive, or to hope to influence behavior? Do they deserve deference or respect as (semi)authorized statements despite their non-binding status?

Finally, it is useful to examine whether these instruments are effective. How have they been received by States and other participants in armed conflicts? Do they shape or influence practice in conflicts? If these instruments are efficient, and are followed in practice, questions about their legitimacy and legality become even more pressing.

New search

I explore these questions in detail in my new monograph, Soft Norms in International Humanitarian Law: Effectiveness, Legitimacy and Legality (Oxford University Press 2021). While the role of soft law and soft law in international law has been the subject of considerable debate for some years now, insufficient attention is given to the growing centrality of soft law in the DCA. The result of several years of research on the subject, the book explores whether these instruments are used in practice and what the use of the non-binding form in the DCA tells us about legislation in international law, and more specifically in the DCA. Research demonstrates that non-binding standards can be beneficial additions to DCA theory and practice, but to be most effective they need to be mindful of who is involved in their creation and how they approach their subject matter.

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Emily Crawford is an associate professor at the University of Sydney Law School and co-editor of the Journal of International Humanitarian Studies.