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Beyond Law, Beyond Reason: The Role of Emotions in Generating Compliance with International Humanitarian Law

October 19, 2020

Emiliano Buis (BA in Law and Classics, MA, LLM, PhD) holds the chair of Public International Law at the University of Buenos Aires (UBA) Law School and at the Central University of the Province (UNICEN) in Azul. He is also a Permanent Researcher at the National Scientific and Technical Research Council (CONICET) in Argentina. His work focuses largely on the application of interdisciplinary approaches to international law.

The Limits of a Law-Focused Approach

There seems to be a general perception that International Humanitarian Law (IHL) is widely violated in contemporary situations of armed conflict. This traditional focus on non-compliance has spread so extensively that some years ago the International Committee of the Red Cross (ICRC) convened a panel of experts to discuss new ways of talking about IHL based on the promotion of instances of respect. In September 2017 an online platform was launched with the aim of compiling real life instances of compliance with the law. 

In spite of these efforts, it is undeniable that the lack of respect still remains at the very forefront of IHL debates. Nevertheless, contrary to many legal scholars who embrace the advantages of positivism, I contend that the problem of compliance cannot be explained only by the weak nature of conventional and customary provisions or by the deficiencies of legal enforcement in international law. The issues at stake when assessing compliance should also give room to extra-legal considerations. Respect depends on a number of factors which exceed the borders of law. 

Since victims are never the same and combatants are never the same, the normativity provided by IHL therefore depends on a number of features that vary according to each context of violence and to the specificities of each actor participating in an armed conflict at a certain moment in time. Concerning armed groups for instance, Geneva Call has proven that non-state actors do not violate or respect international law at large; rather, they may follow certain rules while disregarding others (see here). A case-by-case study reveals that non-state actors often modify their behavior throughout the conflict, depending on their purpose, and this implies an increase or decrease in their level of commitment and compliance with humanitarian rules.

Adding to the fact that groups behave differently, an ICRC report has recently shown that an armed group’s organisational structure may determine its behavior. Unlike its previous study from 2004, it is now clear that, in order to convince some armed groups to comply with IHL, disseminating the knowledge of the applicable rules is not enough. This legal strategy, important as it is, needs to be complemented by a social perception of the existing spectrum of different types of organisations, since armed groups react differently and should be approached under different strategies.

Despite this growing focus on extra-legal considerations, there is still a tendency here to rationalise the attitudes of the parties to a conflict. Following a rational line of thought, States and armed groups are frequently analysed as weighing the costs versus the benefits of complying with international law. At the same time, tagging and classifying their behavioral variations according to their objective level of organisation and internal dynamics also relies on a similar point of view. These ideas reveal a complex set of misconceptions in IHL, which stems from the acknowledgment that, in order to ensure compliance, we must understand the rational and logical considerations promoting the actors’ decisions. 

It is clear to me that the mainstream “legalistic” approach to the problem of compliance is insufficient and that we need interdisciplinary tools and strategies to understand the reasons behind respect and violations. But this should not necessarily lead us to endorse a rationalisation of extra-legal factors. 

In my opinion, emotions play a significant role in this regard, though they are rarely highlighted. My interest lies in analysing the importance of the role of emotions in enhancing our understanding of IHL in action. The discussion of specific case studies related to compliance in the field can show that taking into account the affective dimension paves the way for interesting reflections. In this sense, examining emotional in-group and out-group experiences and cultural awareness becomes an efficient way to promote adherence to existing norms.

As already shown, IHL has been successful in deactivating emotions, considering that the passions of war can only be overcome by the reason entrenched in legal restraint. It is true, of course, that to some degree IHL brings a stop to the overflowing emotions of war. But, as I will try to demonstrate by explaining the theoretical framework of my ongoing research, this does not imply that its content should be rationalised. IHL is emotional, and this is important when discussing the challenges posed to its compliance.      

The Limits of a Reason-Focused Approach

Some recent texts have tried to show that international legal actors respond to emotional attitudes and choices (on the long-dated exclusion of sentiments in international law see here and here). Diplomats frequently engage their own emotions, and that of the others, in order to convey implicit messages and react to proposals through affective performances (see here, here and here). Emma Hutchison and Andrew Ross have dealt with the affective experience of civilians during war, putting a spotlight on the emotional side of trauma emerging after armed conflicts. The politics of criminal international tribunals are also determined by the emotions of judges when deciding on specific cases, as shown by  Kamari Clarke when analyzing the ICC in a recent book which has been the subject of an Opinio Iuris symposium earlier this year (see also here for a more traditional position, and my comments on the importance of emotions in the performance of international criminal procedures here).

In what sense can emotions improve our understanding of compliance with IHL? Taking into account the perspectives provided by the “affective turn” in social sciences and cognitive psychology (see here for a general approach to its complexities), the study of emotions as cultural constructions that inform judgments and elicit values may shed light on attitudes and behaviors in times of armed conflict. IHL may benefit greatly from the study of emotions fostered by cultural anthropology: the exploration of collective emotions becomes useful to understand the reality of armed conflicts and the attitudes of all those involved, since it supports the need to focus on the study of specific beliefs and practices, as well as the collective organisation of particular human groups, such as combatants, civilians, humanitarian actors, among others. 

Group belonging, for example, shapes the way individuals engage with IHL. In the case of combatants, it has been shown that in-group and out-group identities become particularly relevant during hostilities (especially on the cultural construction of common values which are shared in the military); they have a deep influence on the decisions taken to respect or violate IHL (see here). Concerning humanitarian actors, everyday distinction impacts their relationships with others; in some local realities victims of war are emotionally depicted by these actors as a group which could be the object of mistrust, fear, and potential danger (perceivers of aid or beneficiaries): despite the binarism of the applicable rules, an emotion-based study reveals that there might be different gradations of ‘civilianness’ when examining specific situations (see here). 

Analysing the specific in-context perception of actors involved in hostilities allows us to identify more nuanced understandings of how law works. The social and moral construction of victimhood, for example, which the Geneva Conventions (CG) and their Additional Protocols (AP) blur under the general identification of “non-combatants” who deserve protection, is heavily dependent on shared standards which are embedded in emotionality; depending on the cultural construction of values related to honor or shame, for instance, those who are affected by hostilities may be granted a more positive or negative moral status (see here). 

These examples hint at the importance of collective emotional experiences to assess how groups perceive rules, rights and obligations. In short, I have argued that understanding the role and efficiency of IHL in practice can take profit from the inclusion of culturally-determined perceptions. To endorse universal rules, as promoted in the CG and their AP, we should make them relevant in local contexts for specific group cultures. Far from a universal one-size-fit-all methodology, a bottom-up approach to IHL would require taking into consideration local in-group and out-group emotional identities as a way of complementing and strengthening more traditional views.

A Sentimental Education, or How to De-Rationalise IHL

The final question is how to promote this sort of affective awareness among IHL experts to allow them to understand the emotional experiences of combatants, humanitarian actors and civilians affected by armed conflict. Maybe a suitable path to achieve this end could involve emotional training, as it is the case with IHL role-playing activities. The example of the Jean Pictet competition, where students play different roles and become aware of different perspectives, deserves special attention. Each year participants are faced with challenges that make them reflect on new approaches and initiatives to reaffirm the relevance and usefulness of IHL and improve respect for it. By interacting in fictional scenarios, they get prepared to make sense of the emotions and perceptions of the individuals who are expected to enact or comply with IHL provisions. The creation of these inter-cultural environments, in my opinion, helps to facilitate the identification of extra-legal considerations and to tackle the importance of affective interaction in specific situations. But, of course, these training experiences are only the beginning: new ideas should be developed to promote strategies aimed at developing emotional sensitivities among IHL practitioners and scholars.

Working in hostile environments or addressing their consequences means engaging with the human constituent, approaching them and generating trust and mutual respect. As a conclusion to this introductory study on the role of emotions in IHL, I claim that an anthropological perspective focused on the underestimated importance of in-group and out-group affective performances can become a useful tool to explain the practical relevance of IHL provisions. In order to promote compliance and respect, paying attention to emotions can help to develop more sustained and better rooted commitments with humanitarian norms and principles.

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