‘In any armed conflict, the right of the parties to the conflict to choose methods or means of warfare is not unlimited’ (Protocol I to the Geneva Conventions of 1949). You would be hard pressed to find someone to disagree with this statement. But why are some ways of waging war morally acceptable where others are not? And what can be done to maintain these limits?
A time-honoured ideal...
The need to bring humanity to the inhumanity of war can be traced back centuries. Around 500 BCE Sun Tzu wrote in The Art of War, "[t]herefore, those who are not thoroughly aware of the disadvantages in the use of arms cannot be thoroughly aware of the advantages in the use of arms".
But the development of modern international humanitarian law (IHL) began in earnest in the mid-19th century. Today, the core principles of IHL can be found in multiple treaties, case law and customary international law. These dictate which methods of waging war are morally acceptable and which are not (jus in bello).
But these principles are under threat. In modern armed conflicts, civilians disproportionately bear the burden of harm. Globally, more than 65 million people have been forcibly displaced by armed conflict, the highest number ever. Civilians are routinely targeted and harmed in indiscriminate attacks, sexual violence is rife, livelihoods and basic necessities are destroyed.
In 2016, the organisation Action on Armed Violence (AOAV) recorded 45,624 deaths and injuries from the use of explosive weapons. Of those harmed, 70% were civilians. When explosive weapons were used in populated areas, 92% of victims were civilians. This was the highest number of civilian deaths AOAV had recorded since it began its monitor in 2011.
So, what can be done to protect these people?
A case study: cluster munitions
One way to protect civilians is to create specific legal and social norms prohibiting the use of certain weapons in war. Examples of successful weapons’ norms include the bans on chemical weapons, landmines and, as will be considered here, cluster munitions.
Cluster munitions are particularly deadly. During armed conflict, the bombs are fired from rockets or aircraft and scatter large numbers of explosive submunitions over vast areas, with little accuracy. This causes significant civilian casualties, especially in populated areas. Furthermore, many of the submunitions do not explode on impact, leaving behind de-facto landmines that maim and kill civilians long after the end of the conflict.
These weapons are contrary to the principles of IHL, which require ‘parties to a conflict to distinguish at all times between civilians and combatants, to direct operations only against military objectives and to take constant care to spare civilians and civilian objects’. However, despite some attempts to create a legal norm, states have continued to use these weapons in conflicts such as the Vietnam War, Kosovo, Afghanistan and Iraq.
In 2006, over a period of five weeks, Israel blanketed south Lebanon with four million submunitions, leaving about one million duds. At the time, Under Secretary-General for Humanitarian Affairs Jan Egeland said, "[w]hat’s shocking and I would say to me, completely immoral, is that 90 per cent of the cluster bomb strikes occurred in the last 72 hours of the conflict when we knew there would be a resolution".
The power of transnational advocacy groups
This proved to be the catalyst for international action. Led by Norway, a collection of states, international organisations and non-governmental organisations (NGOs) formed the Cluster Munition Coalition. By 2008, they succeeded in negotiating the Convention on Cluster Munitions. This requires states never to use, develop, produce, acquire, stockpile, retain or transfer the weapons. In 15 months, this transnational advocacy network achieved what others had failed to do in 30 years.
While the legal norm has been codified, the battle has not been won. China, Russia and the United States have not signed onto the Treaty. There has been ongoing use of the weapons in Syria, Yemen and now potentially in Egypt. As per Human Rights Watch, "stronger effort is required to deter use in countries that have not joined the international treaty to ban these weapons".
But there has been progress. To date, 120 states have joined the Convention (103 parties and 17 signatories). Among the signatories, there have been no new reports or allegations of use since the Convention was adopted. Perhaps even more hopeful is evidence of progress towards a social norm, with the capacity to bind even those who are not signatories to the Convention. In 2017, 142 states, including non-signatories, voted in favour of UNGA Resolution 72/54 urging states to eradicate cluster munitions by signing onto the Convention. This is cause for celebration.
A fight for social norms
It is unlikely that we will see the end of armed conflicts any time soon. But transnational advocacy campaigns, states, organisations and people have the power to create legal and social norms to preserve some humanity in times of the upmost cruelty. As Dominik Stillhart from the International Committee for the Red Cross has said "[e]ven wars have limits, and those waging them must resolve to protect civilians".
Rebekkah Markey-Towler is the International Security Fellow for Young Australians in International Affairs.