Beschouwing
The obligation to disseminate IHL, and what article 47 GC I entails for the armed forces1
By Brigadier General (ret’d) J.P. Spijk2
Introduction
Since this Conference on the 2016 Commentary for the First Geneva Convention takes place in The Hague, it is useful to remind ourselves of the 1907 Hague Convention No. IV. Article 1 of that Convention, which still applies, states: “the contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land, annexed to the present Convention”.
The focus of today, Article 47 of the First Geneva Convention of 12 August 1949 and identical articles in the three other Geneva Conventions3, goes somewhat further. It stipulates that the States Parties will “undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and in particular, to include study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may be known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains”
As former ICRC President Jakob Kellenberger stated in 2002: “(T)here is no doubt that responsibility for instructing and training the armed forces in the law of armed conflict lies with the States and their respective commanders in chief. It is in peacetime that armed forces have the time to carry out this training. Good training and the setting of high standards and sound examples in peacetime have a good chance to be followed through in battle.” 4
This contribution intends to discuss the content and the scope of the obligation as formulated in article 47 GC I with regard to the armed forces.
First, a brief historical background and analysis of Article 47 will be provided, relying substantively on the 2016 Commentary. Subsequently, observations on the present-day role of the obligation will be made and finally, a perspective on its implementation within the Netherlands’ Armed Forces will be given.
Since we are in The Hague, Article 1 of the Hague Convention IV of 1907 was referred to, but honesty compels me to admit that Article 26 of the 1906 Geneva Convention already stated: “The signatory governments shall take the necessary steps to acquaint their troops, and particularly the protected personnel, with the provisions of this convention and to make them known to the people at large”. Two decades later, article 27 of the 1929 Geneva Convention on the Wounded and the Sick would use the slightly stronger wording “instruct their troops in the provisions of the present Convention”.
In 1949 this phrase was replaced, as noted above, by the wording: “the High Contracting Parties undertake … to include study of the Convention in the programmes of the military, so that the principles thereof may be known to the entire population, in particular to the armed fighting forces”.
The inclusion of this legal obligation to disseminate was based on the drafters’ conviction that knowledge of the law is an essential condition for its effective application.5 At the time of drafting the 1949 text, there was agreement ‘that the 1929 Geneva Convention on the Wounded and Sick was not sufficiently well known, and that knowledge of this document should form part of the instruction of all members of the armed forces’, hence the obligation to make the text of the Convention known both in peacetime and in time of war.
The obligation to disseminate: a closer look at the text
The term ‘undertake’ in Article 47 underlines the commitment of States to embrace the legal obligation to disseminate the text of the First Convention, which is a corollary of the wider commitment made by States to respect and ensure respect for the Geneva Conventions as stipulated in Article 1.6
If a State is to comply with this obligation it obviously must assign the implementation thereof to one of its organs, in particular the Ministry of Defence, which should organize the establishment of education and training structures within the armed forces. As just discussed, this should be done in peacetime, to allow the armed forces to become acquainted with international humanitarian law over extended periods, which contributes to building knowledge of the law and internalizing its principles over time.
The obligation to disseminate the text ‘as widely as possible in their respective countries’ leaves States a certain margin of discretion with respect to the measures to be taken, depending, for example, on the means available. Nevertheless, a State is obliged to reach out ‘as widely as possible’ according to its capacity and means.7
Based on extensive State practice one may certainly assume that the formulation ‘disseminate … so that the principles thereof may be known’ has a wider meaning than ‘publish the text’ or ‘make it available’8. Dissemination aims at making the spirit of the Geneva Conventions understood and to have their content internalized rather than their text simply publicized.9
Fulfilling the obligation to disseminate: what does it entail in practice?
Since the text of the Convention speaks about ‘programmes of military instruction’ it is of course tempting to now delve into details of training manuals, but I submit that any successful implementation of the obligation to disseminate IHL begins with acceptance – or better: internalization - of the IHL-principles at governmental level, as a necessary sequel to the ratification of the convention.
This internalization should manifest itself in the integration of IHL-principles in defence policy and doctrine.10One can probably suggest that the same would have to apply to foreign policy, since in most, if not all, States the armed forces are an important instrument in the conduct of foreign policy. This is particularly evident in situations where nations commit themselves to participation in UN (mandated) missions or operations based on self-defence which entailed participation as a party to an armed conflict .
Therefore, defining and promulgating “Defence policy”, will be a matter of broader government policy, implying not only the military command structure but also other institutions – e.g. the political and policy levels of the Ministries of Foreign Affairs and Defence.
The subsequent step is incorporation of IHL principles in military doctrine, which can be defined as: “the fundamentals, principles and preconditions for military operations at the various levels of military action, and is thus the unifying element that guarantees unambiguous definitions and ensures that the same approach is used by all commanders in the planning and execution of military operations.”11
Integrating the law into doctrine is not achieved through the mere inclusion or quotation of rules and principles of applicable law in codes, manuals and procedures. The relevant principles of the law, together with the means and mechanisms to ensure respect for specially protected persons and objects, must become a natural and integral part of every component of doctrine.12
Modern military doctrine will not only need to address traditional military operations in the context of safeguarding the territorial integrity of the State et cetera, but will need to address a complete spectrum of military operations with specific roles and responsibilities and different characteristics in terms of military posture and deployments. Given the rapid changes in modern warfare, doctrinal development should be a continuous process, taking developments in IHL into account.
In most countries the next step would be the development of an IHL/LOAC or operational law manual, in which the specific IHL legal requirements for operations of the armed forces are described and explained on an operational and tactical level. The manuals are normally addressed to mid-level to senior military commanders and the legal advisors of the armed forces
Education and Training
As mentioned earlier, Article 47 prescribes “to include study [of the text of the present Convention] in their programmes of military […] instruction”, but leaves open the ‘how’”.13
Obviously, it is important not only to provide theoretical instruction, but also practical training in an appealing way, making use of clear examples and the incorporation of theory in practical exercises, training modules et cetera. Obviously, theory and training should emphasize that the members of the armed forces , by virtue of their service, are likely to come into situations in which they will be required to apply IHL rules and principles in targeting lawful military objectives and in the treatment of persons entitled to protection , as well as benefiting from the protection of international humanitarian law, for example when they are wounded or sick. Knowledge of the provisions of international humanitarian law protecting them may help prevent violations of the obligations imposed them.14 It is obvious that knowledge of the relevant rules and principles is fundamental to meeting the obligations laid down in the conventions. Instruction and training should be ‘tailored’ to the audience of officers, NCO’s and soldiers, respectively.
Theoretical instruction and training are important for the so-called initial instruction for recruits, but should be repeated on at least an annual basis. Compliance with the rules of international humanitarian law should become a reflex.15 This repetitive process should also feature in so-called career-courses, as the career of the military individual progresses.
Modern information technology and the Internet provide many opportunities to teach the law in an interesting and interactive way. Many Armed Forces have developed software programs, which allow individual soldiers to learn the principles in quite challenging scenarios, which resemble modern “gaming”. Nowadays the ICRC successfully cooperates with software developers for dissemination purposes, since “everybody prefers to watch a video, than to read a 3 pages long written case study.”16
For the training aspect it is important to include practical training for the different unit-levels, like the group, platoon, company, battalion and the equivalent Navy and Air Force units. Some aspects – like procedures for taking and treating prisoners of war – lend themselves for lower-echelon training and exercises. Others – like training and exercising targeting planning – are more appropriate for staff levels. Training IHL requirements need not necessarily be identified as such. It is actually a preferred situation when military doctrines and ‘standing operating procedures’ have fully incorporated the relevant principles of IHL.17
I wish to underline the importance of IHL-relevant education and training for Commanding Officers – battalion and up - and Flag and General Officers, because of their specific responsibilities in planning and executing operations. It is therefore essential that specific IHL training be incorporated in both the Higher and General Staff courses.
Mission specific education and training
Speaking of current military missions, of particular importance is the so-called mission-specific education and training, in addition to the general instruction and training programs as discussed above. Applying the general principles of IHL to a specific mission requires careful analysis. Missions vary greatly in character, not only in terms of a naval, land or air-emphasis, but also with regard to the presence of e.g. civilians, refugees, specific civilian objects and/or cultural property in the mission area – aspects which definitely influence the way military operations – and particularly targeting military objectives – should be conducted. Of fundamental importance is determining from the outset whether IHL is applicable as a matter of law to the mission and what type of armed conflict is relevant.
Therefore, in the preparation for a mission, commanders and subordinated personnel will need to be briefed on the specific IHL requirements or particularities for that specific mission. In this context the so-called mission-specific Rules of Engagement will also be discussed. ROE are mission rules for commanders of military operations and contain the official parameters in respect of the nature and intensity of the use of force. The ROE will – that is at least in the Dutch and NATO perspective – always be in accordance with international humanitarian law.18
Based on my own experience I submit that this mission-specific training should also be provided to diplomats and other civilian officials who are involved in the planning, preparation or execution of missions of the Armed Forces.
Before briefly addressing the implementation of IHL in the Netherlands’ Armed Forces, it is necessary to pay attention to two remaining aspects: implementing IHL in wartime and sanctions.
As we have seen, Article 47 obliges States to continue their efforts to promote and spread knowledge about the Conventions and underlying principles after an armed conflict has broken out.19 In a prolonged war-type situation reserves may be called up and instruction must be part of their training, obviously. While planning and conducting operations during armed conflict, it is most important that the IHL principles have been incorporated in the standing procedures, as discussed above.
In addition to doctrine, education and training, sanctions are also in key factor in influencing behavior.20 The more visible they are and the more predictable their application, the more dissuasive they will be. In this context, it is important to have effective reporting and oversight procedures in place to ensure that potential violations of IHL alongside other applicable law are brought to the attention of the designated authorities and are prosecuted when they occur.
Most countries have penalized the so-called grave breaches of the 1949 Conventions and other serious violations of the laws and customs applicable in an international or a non-international armed conflict, within the established framework of international law.21 Many of them have updated their criminal law after becoming a party to the Rome Statute of the ICC, including my own country. It should be clear – also from the practice in the State - that violations will be prosecuted.
Situation in the Netherlands
In the appreciation of the situation in the Netherlands it seems appropriate to note that the Dutch Constitution states, in Article 97, the rationales for the existence of the Armed Forces, i.e.: the defence and the protection of the interests of the Kingdom, and, with special relevance here: in order to maintain and promote the international legal order.
The travaux preparatoires of the Dutch constitution show that the expression “maintaining and promoting the international legal order” was intended to have a direct relationship with articles 39 and 42 of the UN Charter. 22 In other words, with the UN collective security system. But the undertaking in the constitution goes beyond that: it refers to all measures that serve the international legal order. Given the fact that the Conventions are without any doubt part of the international legal order, since they are ratified by all nations, this therefore also includes support to the dissemination of IHL in other countries, as we will discuss below.23
Following the general approach used above I note that the 2013 Netherlands’ Defence Doctrine incorporates the principle that the Dutch Armed Forces will always operate within the constraints of International Humanitarian Law, regardless whether an operation takes place in the context of a “war” or an “armed conflict”.24 This same principle is, e.g., also incorporated in the doctrine for Land Forces 2014.25
A specific IHL Handbook for Commanders and Legal Advisors is available. The current Head of the Military Legal Service has recently initiated a complete update and that process is on its way, as we speak.
As to instruction and training, a set of so-called ‘learning objectives’ has been developed some years ago, which defines the precise knowledge levels that soldiers, NCO’s and officers should acquire during their so-called initial and career courses. Based on this set of objectives, instruction and training is modelled in an ongoing process, both at the Netherlands’ Defence Academy and in the different services. Let me add here that the Netherlands, as a member of NATO, also uses the Standardization Agreements 2449 and 2597, which describe the parameters for instruction in Law of Armed Conflict and Rules of Engagement.
All operational missions by the Dutch Armed Forces are always preceded by a mission-specific training, in which the specific IHL aspects are incorporated. Also during missions, the application of IHL principles is continuously stressed. The required penal sanctions are incorporated in the Wet Internationale Misdrijven, the International Crimes Act.
In order to provide a realistic picture, let me add here that although everyone of course recognises the relevance of IHL instruction and training, the Dutch Armed Forces are tasked heavily these days and it is therefore a challenge to meet all the requirements at the right moment. But this is accomplished, thanks also to the approximately 130 highly dedicated military and civilian legal advisors, posted widely both in the MoD and in the services, in accordance with article 82 of Additional Protocol I to the Geneva Conventions.
To use a modern expression, IHL is a trending topic in the Netherlands’ Defence organization. The Military Legal Service organises a course in Military Operational Law for military commanders twice a year, which is always filled to capacity. Under the supervision of the Director of Legal Affairs in the MoD the bimonthly Military Law Review is published, now fully online, which often features articles on the subject. The Netherlands’ Defence Academy participates on a regular basis in the annual Professor Frits Kalshoven academic competition in IHL, with its fascinating Moot Court Finale, organised by the Dutch Red Cross. And also in an international perspective: together with British and Belgian colleagues the Dutch Military Legal Service runs a training program for African military legal advisors in the Great Lakes Region, supported by the University of Amsterdam. A Dutch legal advisor is permanently posted at the renowned International Institute for Humanitarian Law in San Remo, a world-class institute that provides high quality courses in IHL in an international setting in all major languages. And finally, Dutch legal advisors are very active in international fora, promoting the interest of IHL, such as the International Society for Military Law and the Law of War.
In closing this presentation the importance of international cooperation in military operations in general and in disseminating and implementing IHL in particular should be stressed. Nowadays all relevant military missions are of an international character. Based on the experience of the ISAF-mission Afghanistan I can assure you that it is essential, not only for the military but also for civilians who operate in this context, to be prepared to operate in such an international context. Training commanders, diplomats and legal advisors to acquire an international perspective is a must, in order to broaden their horizon and to be prepared for a correct and joint application of the principles and rules of International Humanitarian Law, before we meet each other in theatre.