Below are extracts from a piece by the GCSP’s Altea Rossi entitled “Training Armed Forces in IHL: Just a Matter of Law?” that was published by Opinio Juris on 8 October 2020. The full piece is available at: http://opiniojuris.org/2020/10/08/training-armed-forces-in-ihl-just-a-matter-of-law/.

“As a matter of treaty and customary law, international humanitarian law (IHL) requires states to instruct their armed forces on the norms applicable to armed conflicts. To adhere to this obligation, states have established mechanisms to integrate IHL into their military training. Despite its inherently legal nature, should effective IHL training be all about the law?”

“IHL mandates states and parties to the conflict to instruct their armed forces on IHL, both in times of war and peace. The requirement amounts to a customary law obligation applicable in international and non-international armed conflicts.”

“This obligation has a functional nature. Dissemination is conceived of as a preventative mechanism against IHL violations. It stems from the general IHL obligation according to which states must ensure that their organs respect the obligations under the international agreements they have ratified – a reflection of the international law principle of pacta sunt servanda.”

“IHL dissemination shall entail, at the very least, making the law known to the armed forces (at 2), for knowledge of the rules is a logical precondition for compliance. Yet, if the aim of disseminating IHL is to ’creat[e] an environment conducive to lawful behaviour’ (at 5016) one may argue that mere knowledge of the rules – though necessary – remains insufficient. Members of the armed forces in fact need to be trained on how to operationalize IHL in practice and, most importantly, be able to uphold its rules amid the fighting.”

“Regarding the basic principles and rules of IHL … soldiers would not need to be taught about them. Such principles have been deemed to be ’fully consistent with human nature’. Hence, most individuals under normal circumstances would perceive them as the right thing to do, even without previous knowledge of IHL. … However, it is exactly these fundamental principles that are regularly violated on the battlefield.”  

“As recent findings put it, effective military training should aim at the internalization of norms rather than the mere provision of information .... Per its definition, such [a] process would allow combatants to absorb the norms so that they become part of their character. Only in such a manner may lawful behaviours follow as automatic responses to battlefield circumstances.”

“Concretely, this requires that instructors disseminate the rules by stressing the common moral and ethical values underlying them instead of focusing on their formal legal nature. Instructors may also resort to policy considerations to support compliance with IHL if this would help soldiers to adhere to its rules on the battlefield.”

“Indeed, the aim of effective IHL training is not to provide armed forces with the skills needed to analyse or justify military action from a legal perspective. It must enable them to fully identify what IHL prescribes as the ‘right thing to do’ – and to do it.”

 

Altea Rossi is a Programme Officer with the Security and Law Programme at the Geneva Centre for Security Policy and serves as Deputy Member to the European Commission for Democracy through Law (Venice Commission).

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