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“No ceasefire for women!” Resisting violence against women in conflict and in “peace”: The role of The Circle of Concerned African Women Theologians

October 22, 2020

Nontando Hadebe is the current chair of The Circle of Concerned African Women Theologians in South Africa where she resides.

A ceasefire is an agreement between warring groups to stop fighting “while a way is found to end the fighting permanently” (Oxford Dictionary). In the case of women there is an unofficial war waged against them through multiple forms of violence including physical, sexual, mental, emotional, psychological, economic, political and social that they experience in both the private and public spheres. While one can argue that not all women experience all these forms of violence and similarly that not all men are perpetrators of violence, the reality is that the impact is widespread and has not left any corner of the globe untouched. According to the World Health Organization violence against women has become a “global health problem of epidemic proportions.” Even in the midst of Covid-19 pandemic – or precisely now – there has been a rise globally in cases of violence against women: 

Gender-based violence (GBV) increases during every type of emergency – whether economic crises, conflict or disease outbreaks. Pre-existing toxic social norms and gender inequalities, economic and social stress caused by the COVID-19 pandemic, coupled with restricted movement and social isolation measures, have led to an exponential increase in GBV (UNDP).

Although GBV includes all forms of violence, this article will limit its focus to violence against women. The increase of GBV in crisis situations, as the above UNDP citation highlights, is as a result of pre-existing “toxic social norms and gender inequalities” – it is patriarchy, which drives the war against women before and during armed conflicts and other emergency situations.  Two stories of violence against women from two different countries one in a state of conflict (Democratic Republic of Congo) and one in a state of non-conflict (South Africa) serve to illustrate further that the war against women continues irrespective of the presence or absence of conflict.  The first quotation is from Nobel Prize Laureate Dr Denis Mukwege famous for his reconstructive surgery on women’s bodies brutalized by soldiers: 

The conflict in DR Congo is not between groups of religious fanatics. Nor is it a conflict between states. This is a conflict caused by economic interests – and it is being waged by destroying Congolese women.

The second is a story about the brutal murder of a 19 year old university female student by a post office official in Cape Town, South Africa.

Murdered UCT student Uyinene Mrwetyana, 19, was raped twice, her body hid inside the safe of the post office, and then later dumped and doused with an accelerant before being set alight.

The contrast between the two contexts where women were brutalized namely the war zone (DRC) and a post-office (non-war zone South Africa) is terrifyingly startling. It effectively erases the boundary between two states that would ordinarily be viewed as opposites, that is war and peace. Post offices are not war zones populated by soldiers but public spaces that deliver a service. That women experience the same brutalization confirms that the war against women is pervasive and unrelenting. The “weapons of mass destruction” in the war against women are not in military warehouses or possessed by individual men but in the everyday language and practices that normalize gender inequality, subordination of women and male supremacy. These beliefs and practices are ideologies built overtime that become so ingrained in culture and society that they appear natural and “God-ordained”. Litonjua describes ideologies as: 

system of ideas and beliefs that justifies and rationalizes the injustice, the cultural and religious symbols used to legitimate the structural injustice. Because of the ideology, the structural injustice and violence are considered the natural and normal state of things, even the moral order of things (2013:305). 

Culture and religion are formidable forces of legitimation and naturalization of gender inequality which is why despite human rights progressive constitutions that protect and promote gender equality, patriarchy and gender inequality remain intact at the everyday level of life where they operate with power and impunity making it difficult if not impossible to dislodge patriarchy. 

Despite the odds stacked against them, African women have risen up to be their own liberators. They have used everything to act for themselves as agents of change and transformation of culture, society and religion. At community level women continue to organize and implement multiple projects in all spheres whether urban or rural, literate or illiterate, old or young, poor or rich. In all these spheres women are continuing to erode patriarchy, challenge gender norms and carve out for themselves creative alternatives. 

Here I shall like to  focus on the role of women theologians in taking the struggle against patriarchy and GBV in the cultural and religious sphere. African women theologians under the leadership of Mercy Amba Oduyoye formed The Circle of Concerned African Women Theologians, in Accra, Ghana in 1989. One of the aims was to name, confront and dismantle patriarchy in religion and culture through research. Kanyoro explains the link between theology and gender as follows: “Theological engagement with gender issues seeks to expose harm and injustices that are in society and are extended to Scripture and the teachings and practices of the Church through culture” (2002:17). With respect to culture Kanyoro argues that culture “silences many women in Africa and makes it impossible for them to experience the liberating promises of God which bible speaks of” (2002:15).  Similarly Oduyoye implicates patriarchy in culture as the root problem: “the real disease in human relationship is rooted in the perverse patriarchalization of life” (1994:177).

 Accordingly, Isabel Phiri defines African women theologies as follows: 

African women’s theologies are a critical, academic study of the causes of women oppression; particularly a struggle against societal, cultural and religious patriarchy.  They are committed to the eradication of all forms of oppression against women through a critique of the social and religious dimensions both in African culture and Christianity. African women’s theologies take women’s experiences as its starting point, focusing on the oppressive areas of life caused by injustices such as patriarchy, colonialism, neo-colonialism, racism, capitalism, globalisation and sexism.  It sees a need to include the voices of all women, not just theologians, because it acknowledges that the majority of African women are engaging in oral theology (2004:156).

The pillars of the theologies of The Circle are stated as: study and resistance against all forms of oppression against women in African culture and in Christianity based on the concrete-lived experiences of women. The emphasis on  the stories of women as the sources of theology promotes what Phiri and Nadar describe as “narrative activism” that is the use of narratives to critique “oppressive practices in African religion-culture” (2006:7).  Circle theologians need to be be bilingual “speaking the language of academy and that of their communities not just linguistically, but culturally and socially” (2006:6). In this way the liberating theologies produced by The Circle systematically dismantle patriarchy and empower women to be their own liberators. 

As a pan-African, ecumenical and inter-religious organization, The Circle is potentially able to extend their reach and influence into different countries, religions, cultures as a force of liberation that addresses the underlying causes of GBVe namely toxic social norms and gender inequalities. One of the many achievements of The Circle was pioneering mainstreaming of gender in theological responses to HIV/AIDS that confronted and disrupted legitimizing theologies of gender inequality and patriarchy both of which are implicated in GBV, a key driver of the higher prevalence rate of infection among women. These and other interventions by The Circle challenge the many expressions of gender inequality sanctioned by culture and religion and thereby addresses the pre-existing conditions for GBV in both conflict and peaceful states. In this way they contribute to a ceasefire on the war against women that will put an end to patriarchy and gender inequality as the first step in lasting peace for women. 

Compliance Symposium: “Faith for Rights” in Armed Conflict

October 22, 2020

Up at Opinio Juris, you can find the latest post by Ibrahim Salama and Michael Wiener “Compliance Symposium: ‘Faith for Rights’ in Armed Conflict” in our co-hosted symposium on Compliance in Armed Conflict. Check it out here!

Religious leaders as brokers of humanitarian norm-compliance: Insights from the cases of Colombia, Libya, Mali and Myanmar

October 21, 2020

*The authors of this article are researchers on the project Generating Respect for Humanitarian Norms: The Influence of Religious Leaders on Parties to Armed Conflict. We gratefully acknowledge the support of the Economic and Social Research Council (UK).

The humanitarian sector engages State and non-State parties to armed conflicts in an effort to positively influence their behavior and to generate greater compliance with international humanitarian law (IHL) and international human rights law (IHRL). As noted in the introduction to this Symposium, whilst this direct humanitarian engagement remains an important compliance-generation strategy, novel approaches to strengthen respect for humanitarian norms are needed. 

Religious leaders’ potential to influence parties to armed conflict

Recent research suggests that parties to conflict may better internalise humanitarian norms when they are underpinned by local norms and propounded by local influencers, such as religious leaders. Religious leaders can be considered ‘brokers’ that negotiate and adapt humanitarian norms to specific cultural settings and therefore act towards the symbolic validation (or, indeed, invalidation) of the rules. Although such findings disclose the potential of humanitarian engagement with religious leaders to influence parties’ behaviour in conflict, little systematic research has been carried out towards getting answers to key questions such as: What makes religious leaders influential? And, what precise factors maximize their influence on parties to armed conflicts?

The Generating Respect Project investigates these and other questions, seeking to portray the role of religious leaders in influencing (positively and negatively) parties to armed conflict in respect of their compliance with core humanitarian norms. After undertaking a mapping of armed conflicts and the activities and messages of religious leaders in four case studies countries (Colombia, Libya, Mali and Myanmar), additional data is being obtained through in-depth interviews with key informants and stakeholders. Although still at an early stage, this project is already starting to identify both similarities and differences in the way religious leaders generate and wield their influence over armed State and non-State actors within and between case study countries. It is confirming and refining some of the factors of religious influences on parties to conflict described by Cismas and Heffes here, and identifying new aspects of note.  

Charisma and special legitimacy 

A common finding in all four case study countries is that the charisma of religious leaders plays an important role in their influence over armed actors . As already noted by Cismas (2014: 55-8) armed actors may “follow a specific religious command or rule not primarily because it has been derived in a legal-rational way and is fair, but because religious leaders are perceived to have legitimate authority by virtue of tradition or charisma to issue the command”. In this sense, most of the interviewees in the four case study countries agreed that those religious leaders who had influenced armed actors to respect IHL were charismatic, or put another way, enjoyed a “special legitimacy”. This they have obtained by consistently demonstrating their “moral authority” (according to Dr. Bréma Ely Dicko, referring to the Imam Mahmoud Dicko in Mali) or through “their readiness to sacrifice their lives in the cause of peace and to protect their communities” (in the case of Mali and in Colombia, according to data from an interview with Carlos Velandia). In sum, often the  “eloquence” in the writing and speech of religious leaders, “their personality, spiritual maturity and religiosity” (according to academic Ashley South referring to some religious leaders in Myanmar), and “their  commitment and solidarity to the communities affected” (according to the Colombian expert on armed conflicts Álvaro Villarraga and an anonymous interviewee from Mali) allows religious leaders to influence armed actors to comply with IHL norms. 

Access, Proximity, Closeness 

Another important factor complementing religious leaders’ charisma refers to their access, proximity and closeness to affected communities and to armed actors themselves. Local religious leaders have access to members of armed actors, meeting them in mosques, churches or temples. For example, members of armed groups meet the local imam when they come to the closest mosque to pray (in the case of Mali and Libya). Moreover, in some regions of Mali, some local religious leaders and members of the armed groups have studied together or “were raised together and used to be friends” (anonymous interviewee). Their proximity to affected communities, means that “religious leaders suffer the same consequences of violence as the communities where they live” which makes them more aware, involved and committed to protect these communities (according to an interview with a Colombian humanitarian practitioner). In Myanmar, priests who have stayed with communities may be driven by a Catholic tradition of the witnessing of, and suffering with, those in peril (Ashley South). 

According to interviews with the Malian researcher Mohamed Ahmad El Ansari and the Colombian social worker Dorís Marcela Hernández, proximity allows religious leaders to have continuous access to, contact and interaction with the armed actors present in the area, which in turn presents more opportunities to influence their members. In Myanmar, Catholic priests living in villages affected by conflict were on occasion able to negotiate the evacuation of civilians with parties. However, geographical proximity is not always a necessary factor for influence, as the case of Libya suggests, where religious leaders have succeeded in influencing armed actors, despite being based abroad. 

Shared values and religious affinity 

A third multidimensional factor in assessing influence refers to the existence of certain shared values and ideology, and religious affinity or alignment between the armed actors and religious leaders. For example, in Colombia, the shared values and similar ideology between the ELN and certain religious leaders (on issues such as poverty and social justice) often create a certain affinity and relation of respect between the armed group and Catholic religious leaders acting as mediators or facilitators in negotiations to release hostages (for example, see the work of the Archbishop Darío Monsalve). In Myanmar, the influential Kachin Baptist Church and the Kachin Independence Army (KIA) have in common that they have both been at the forefront of the promotion of Kachin identity. In the case of Mali, religious alignment could be considered a necessary condition of influence, since an armed actor, whose members belong predominantly to one particular Muslim school, would likely not accept or respect a religious leader from a diffrent religious school. Similarly in Libya, one armed actor that is seemingly influenced by conservative imams, carries out work which reflects Islamic values and principles, including the ‘promotion of virtue and prevention of vice’, through, for example, cracking down on what it deems to be ‘un-Islamic’ activities, such as drug trafficking and the alcohol trade. 

Partiality v impartiality 

Through the mappings and interviews carried out so far, we have also evidenced that some factors of influence may differ from one country context to another, between the armed conflicts within the same country, or between the various armed actors. 

Our findings suggest that neutrality and impartiality are not always a necessary requirement for successful interventions by religious leaders in influencing parties’ compliance with humanitarian norms – quite the opposite may be true in some contexts. Whilst the neutrality of religious leaders is a necessary condition in Colombia (as stressed by Prof. Luis Andrés Fajardo, Constitutional Court Auxiliary Judge in Colombia), in Mali partiality is required to influence parties in intra-communitarian armed conflicts (as affirmed by University Professor Mohamed Ag Chérif). Meanwhile, the Catholic and Baptist Churches in Myanmar have taken different approaches to neutrality/impartiality even in relation to the same (Kachin) conflict. In the Libyan conflict, two prominent religious figures have evolved from  generally being politically neutral, to openly supporting the particular parties they are seeking to influence. 

Channels of influence 

Context seems to also be determinative of the most effective means of accessing parties and the preferred channels of seeking to influence them. While some religious leaders in Colombia and Mali cannot meet in person with armed groups due to security reasons, and therefore they contact them using telephones (according to an expert working for the humanitarian NGO Amapros in Mali), in Myanmar the leaders of the Kachin Baptist Church travel from Government-controlled areas to a KIA-controlled area for meetings on humanitarian issues. Interviewees in Colombia and Mali also referred to in-person meetings, where local religious leaders travelled by motorbike to proactively engage with the armed groups (Interviews with Álvaro Villarraga, Mohamed Ag Chérif, and other anonymous interviewees).

Other methods that religious leaders use to access and influence parties include, fatwas issued in a personal capacity or through religious institutions or bodies in Libya; audio and video messages which aim to influence their followers in the cases of Libya and Colombia; messages on social media, such as the letters exchanged as tweets between Archbishop Darío Monsalve and ELN leaders in Colombia; and, through local preachers in mosques, as mentioned previously, in Mali and Libya.

In sum, the Generating Respect Project has so far been able to demonstrate two interesting aspects. First, religious leaders do have influence on armed actors’ general behaviours and they are and can be influencers of conflict parties’ compliance as well as non-compliance with humanitarian norms. Second, although there are differences between contexts, armed conflicts, and armed actors, the project is already elucidating common factors in how religious leaders (can) generate greater respect for humanitarian norms. Both aspects confirm the potential of religious actors to be allies in the quest for compliance-generation in times of armed conflict and the need to promote effective engagement with them by the humanitarian sector towards this end.   

Compliance Symposium: Generating Respect for Humanitarian Norms: Research and Practice in Muslim Contexts

October 21, 2020

Up at Opinio Juris, you can find the latest post by Ahmed Al-Dawoody and Fiona Terry “Compliance Symposium: Generating Respect for Humanitarian Norms: Research and Practice in Muslim Contexts” in our co-hosted symposium on Compliance in Armed Conflict. Check it out here!

Innovative Engagement: Engaging Non-State Armed Groups Diversely, Effectively, and Adaptively

October 20, 2020

Hyeran Jo is Associate Professor of Political Science at Texas A&M University in U.S.A. She is the author of Compliant Rebels. She is also a recent recipient of the Humboldt research fellowship, which supported the idea of this article. 

Direct contacts with non-state armed groups (NSAG) with the purpose of advancing humanitarian goals have been gaining ground. The primary goals of these engagement efforts have been, inter alia, the reduction of  child soldiering, of the use of anti-personnel mines or the protection of civilians. International and local humanitarian actors working for international organizations, non-governmental organizations, state and local agencies have been at the center of these efforts to engage with non-state armed actors. The United Nations has engaged about a dozen NSAGs since 2000 to reduce child soldiering. Geneva Call has engaged about 60 non-state armed actors to sign the Deed of Commitment to reduce the use of anti-personnel mines. The International Committee of the Red Cross (ICRC) has long engaged NSAGs in various ways at detention centers and via training and education. 

Engaging NSAGs for humanitarian purposes is HARD. There are many security and political constraints associated with the direct contacts. When conflict intensifies, humanitarians might simply lose access and means for engagement. Not all armed groups can be engaged. Some armed groups will not welcome outsiders unconditionally. Jihadist groups often reject access or engagement. To pile on the challenges, often national governments of states where armed groups are based will block, evade, or manipulate outside access to what effectively are their own enemies. Humanitarians are also well aware of the material support law which bans assisting prohibited groups. The classifications of who could be legitimately engaged and who should not can be murky given the proliferation of armed groups around the world. Given these challenges, assessing the current humanitarian engagement efforts and thinking ways forward is important especially in this day and age of retrenchment and receding international liberal order

In this blog post, I will develop the notion of innovative engagement in the context of engaging NSAGs for humanitarian purposes. Specifically, I put forward an argument about the diversity, effectiveness and adaptiveness as the triad requirements for innovative NSAGs humanitarian engagement. More often than not, innovation does not come out of a vacuum but the combinatorial of existing practices and contexts, often spurred by decentralized efforts (for a reflection on the concept see here). In the field of humanitarian engagement with NSAGs, this “changing into something new” might mean improving established practices and not necessarily involving totally new agendas. The change might come by way of shedding a novel light on the broad operational and political contexts, as well as evolving situations. Some humanitarian actors are already doing innovations in various contexts. My claims will be more of a synthesis at the level of analysis, based on the recent findings about humanitarian engagement practices and policies and overlaid with the observations about the patterns and trends in evolving situations of conflict zones around the world.

First, the innovative engagement can be diverse in two major ways, in the consideration of choice sets and alternatives among policy options, and in terms of structure/levels from below and from above among involved actors and stakeholders. In terms of the diversity in choice sets, the initial choice of engagement can be cast in the broader policymaking context. Such choice would be ideal if the humanitarian engagement is the right strategy among the menu of available policy options. If the purpose is to attain humanitarian goals, there might be other ways to achieve the goal without engagement – such as mediation or peacekeeping. Sometimes sanctions might be a better tool for the job of curbing violence – unless armed groups move like Hydra changing their resources reactively to sanctions regulations. Other times, decentralized non-direct punishment efforts might be more suitable. The operation of mobile gender courts in the Democratic Republic of Congo demonstrated sexual violence can be dealt with through civil society activism. Empowering civilians with information about escape routes might be more important in yielding immediate benefits than contacting and negotiating armed groups directly. When armed groups have local political networks where traditional leaders (local, tribal or religious leaders) have a lot of sway, engaging those leaders, rather than engaging armed groups directly, might yield more humanitarian benefits. All this assumes that we understand the armed groups’ patronage networks, their resource base, and their mode of operation. All this, also, assumes efficient coordination among humanitarian actors that are not necessarily uniform – with all options on the table and careful discussions about what might reduce human suffering. This will not be easy given the vastly diverse map of the humanitarian field with state, international and local agencies operating each with their own mandates. Such coordination also requires that host governments be on board. Yet, some governments have military goals that go against humanitarian goals, often co-opting NSAGs. As such, the capacity to act as an “international community” can be quite limited at times.

Second, the innovative engagement can entail effectiveness in terms of access, mode of operation and communication, and the utilization of the resource-base. Being effective often requires hard work on the part of humanitarian actors in terms of getting access. Just entering the conflict zone and opening communication channels with non-state armed actors is difficult, given all the constraints and boundary conditions outlined above. Having clear interlocutors might help through the understanding of who’s who and by navigating the command and control structure as well as the political wing of those armed groups, but of course these are no guarantees for access. In some situations, negotiation breakthroughs do occur when the timing and circumstances are right. It is near the peace negotiations stage that some armed groups open up, and when governments are willing to invite international engagement. Beyond access comes acceptance. Engaging persons in non-state armed ranks also entails building rapport and trust over time. This is more challenging when the NSAGs’ leadership changes all-too-frequently and where fractionalization is the norm. Humanitarian actors also harness existing resources. Here, the resources refer not only to monetary funds but also attending existing networks. For instance, the United Nations action plans have been more likely to occur when the Office of the Special Representative of Secretary General for Children and Armed Conflict (SRSG/CAAC) has the backing of the UNICEF regional headquarters and UN Peacekeeping, compared to the situations without such institutional collaborations. The effective engagement method may involve persuasion tools where engagement changes the tasks gradually, as the relative success of the MILF’s action plan case shows. All this could benefit from favorable and enabling background conditions. Identifying the set of armed groups ripe for engagement will be stemming from understanding their motivations, trajectories, goals, and ideologies. Timing will also play an important role as the peace negotiations provide a good window of opportunity for NSAG engagement.

Third, the innovative engagement can be adaptive, tailoring the move to local situations and the changing nature of warfare. For example, humanitarians have learned over time that speaking ‘law’ might not be the most effective humanitarian tool. Rather, speaking the local language and appealing to local norms that are consistent with global humanitarian norms might be the way forward. Looking into the bridges that can be built at local and international levels can be another way to tailor adaptive strategies . It is also useful to recognize that humanitarian engagement can be self-generative. It is quite possible that the legal commitment by non-state armed actors changes the behavior of government actors’ respect for the international humanitarian law. For instance, pursuant to Darfuri groups’ signing the Deed of the Commitment to reduce the anti-personnel mines use in 2013, the Sudanese government ratified the Ottawa Convention in 2014 and allowed international actors to conduct de-mining operations. Adapting ways and means to the changing nature of war demands our recalibration of how NSAG engagement is done. Urban warfare presents new challenges as new weapons develop and military actors’ proportionality calculations change. Urban and criminal gangs feature as prominent aspects of warfare, and learning from previous responses and examples can help addressing these. 

The three suggestions – re-visiting the diverse options available to humanitarians, re-thinking effective responses, and re-calibrating adaptive learning – are one of the many ways to achieve such innovation for better humanitarian outcomes. As they have done so in the past, humanitarians will in the future produce many other innovations that are diverse, effective, and adaptive. 

Compliance Symposium: A Participation Revolution–Time for More Bottom-Up Approaches in the Compliance Toolbox?

October 20, 2020

Up at Opinio Juris, you can find the latest post by Katharine Fortin “Compliance Symposium: A Participation Revolution – Time for More Bottom-Up Approach in the Compliance Toolbox? in our co-hosted symposium on Compliance in Armed Conflict. Check it out here!

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.

Symposium on Compliance in Armed Conflict: New Avenues to Generate Respect for Humanitarian Norms

October 19, 2020

Ezequiel Heffes is a Thematic Legal Adviser at Geneva Call. He is a PhD Candidate at the Grotius Centre for International Legal Studies, University of Leiden. Ezequiel holds an LL.M. from the Geneva Academy and a Law Degree from the University of Buenos Aires School of Law. Dr Ioana Cismas is a Reader at York Law School and the Centre for Applied Human Rights at the University of York. She leads the ESRC-funded project Generating Respect for Humanitarian Norms: The Influence of Religious Leaders on Parties to Armed Conflict.

That the effectiveness of international humanitarian law (IHL) and international human rights law (IHRL) faces challenges from different quarters is not news. It is, rather, an observation that has been made by scholars and practitioners alike – to the point of tritness. Whilst we deeply acknowledge the importance of discussing the manifold challenges to humanitarian norms in times of armed conflict – not least because tailored strategies must be designed to address them – this Symposium also serves another purpose: to inspire thought and possible innovative action. Hosted jointly by the Opinio Juris and Armed Groups and International Law blogs, the contributions to the Symposium seek to reframe problems and unearth potentialities. As such, we hope that readers will join us this week in a process of reflection and reflexivity aimed at generating compliance with humanitarian norms in novel and more effective ways. 

Alas, we start with the manifold challenges 

Systemic challenges to IHL and IHRL compliance include the unwillingness of States to acknowledge that a situation of violence amounts to an armed conflict (at 20), which therefore triggers the application of IHL. A related problem is the rejection of international law by non-State armed groups (NSAGs) because they were not involved in the international law-making process (at 256) or because they ‘perceive the international legal system as biased and privileging States’ (at 25). Similarly, NSAGs may conceive some humanitarian norms as prohibiting actions that often serve their strategic interests, ‘the sort of actions that may, at times, give them a competitive advantage over military forces’ (at 6). Whilst important scholarly advances have been made in clarifying that IHRL binds NSAGs, the precise circumstances when this occurs remain disputed (see here, here and here). Finally, despite the proliferation of international criminal tribunals and commissions of inquiry, IHL relies on relatively weak enforcement mechanisms, which may fail to induce the parties’ compliance with the applicable legal framework.

Institutional challenges affecting States and NSAGs’ respect for IHL and IHRL stem from the lack of appropriate organizational structures and resources allowing these entities to acknowledge, understand, and implement their humanitarian obligations. This can be observed in those conflicts occurring in areas where the State has limited control over territory and the rule of law system is fragile. The increasing fragmentation of NSAGs, which has contributed to conflicts that are ‘more violent, longer lasting and harder to resolve’, reflects acute institutional challenges. Not least one must acknowledge that oftentimes, non-State entities may not be aware of their international obligations (at 113).

Compliance-generation strategies: the tried and tested & the novel and promising 

The humanitarian sector has traditionally relied on direct humanitarian engagement with the parties to armed conflicts, be they States or NSAGs, in an attempt to positively influence their behavior and to induce greater compliance with international law. In the last few years, there has also been increasing intervention by UN various bodies on issues related to compliance with IHL and even IHRL in conflict settings. Broadly, these approaches have prioritized the incorporation of humanitarian norms in the parties’ internal rules, training and accountability mechanisms. Whilst we would certainly not advocate that humanitarians abandon this tried and tested approach, the above-noted systemic and institutional challenges disclose realities that require reflection on what works, how to recalibrate what doesn’t and indeed what novel strategies to design and pursue.

It is at this juncture that the Symposium’s contributions take shape. Over the next few days, IHL and IHRL practitioners and scholars from across disciplines will reflect on how to improve compliance with international law in times of armed conflict.  Some of the contributions are depictions of institutional practices, addressing the specifc roles played by of the UN Special Representative of the Secretary-General for Children and Armed Conflict, the UN Office of the High Commissioner for Human Rights, and the International Committee of the Red Cross (ICRC) in Muslim contexts. Others explore the changing understanding of the relationship between the applicable legal frameworks and NSAGs. A third group deals with what could be termed  less-conventional approaches, examining how emotions affect individuals’ respect for the law, the practices of civilian communities in their self-protection, the action of African women’s theologians in dismantling patriarchal structures in war and peace times, and the role of religious leaders in influencing States and NSAGs’ behaviours. 

From a methodological standpoint, these interventions do not aim at exhausting the avenues available – yet, the contributions,  we believe, embody some of the most important actors and innovative practices currently active in humanitarian norms compliance-generation. Of course, we openly acknowledge that these deserve a much deeper academic and practical exploration, one that goes beyond the confines of this Symposium. Thus, while each post includes topical discussions reflecting on how to improve compliance in armed conflict, there are undoubtedly some other perspectives that have been left out or that may be underdeveloped. As such, we hope that this forum serves as a catalyst for further  conversations in scholarship and action in humanitarian practice. 

Armed Groups and International Law and Opinio Juris Joint Symposium on Compliance in Armed Conflict

October 16, 2020
©Geneva Call

Over the coming week, along with Opinio Juris, we are happy to co-host a symposium on Compliance in Armed Conflict: New Avenues to Generate Respect for Humanitarian Norms, co-organized by Ioana Cismas and I.

We will have the honor to read about innovative compliance generation strategies from a list of renowned scholars and practitioners, including : Emiliano Buis, Katharine Fortin, Hyeran Jo, Fiona Terry, Ahmed Al-Dawoody, Jonathan Zaragoza, Yolvi Padilla, Chris Rush, Mohamed Assaleh, Louise Sloan, Ibrahim Salama, Michael Wiener, Nontando Hadebe, Annyssa Bellal, Pascal Bongard, Melina Fidelis-Tzourou, Anki Sjöberg and Anne Schintgen. Ioana and I will also contribute with an Introductory piece on Monday (19/10).

As this is a co-hosted symposium, half of the contributions will be found here at Armed Groups and International Law and the other half at Opinio Juris. We will try to cross-link, but keep an eye on both websites to follow along. We look forward to the exchange!

Challenges of a responsibility regime for armed groups and how to move forward – a reply to the book symposium

October 16, 2020

I would like to thank again the three commentators, Ezequiel Heffes, Emanuela-Chiara Gillard and Katharine Fortin for their thorough analysis of my book and for raising so many interesting points that are definitely key to the study of armed groups’ responsibility in international law. I am also grateful to ALMA and Ido Rosenzweig for organising the book launch that led to this symposium. My book Towards a Regime of Responsibility of Armed Groups in International Law has aimed at bringing clarity into certain unsolved and controversial questions regarding armed groups but acknowledging that further research is required to answer all these challenging issues. In this final post, I will try to respond and engage with the main comments and questions raised in the previous posts (here, here and here).

A need for rules or just clarification?

In the second post of the book symposium, Emanuela-Chiara Gillard poses the question as to ‘what is currently missing in the analysis and practice relating to the responsibility of OAGs [organised armed groups]’. She indicates that the fact that certain bodies such as the International Law Commission (ILC) or UN fact-finding bodies did not focus their attention on the responsibility of armed groups collectively does not prove itself the inexistence of rules applicable to them. However, I believe that the indirect or implicit recognition that armed groups are responsible under international law because they are clearly bound by IHL is not sufficient. The rule of law in international law requires legal certainty and transparency in the process of monitoring and assessing violations of international law. Although I agree that the narrow focus of commissions of inquiry and fact-finding missions could be due to the mandates given to them, these and similar bodies should be more consistent in the task of establishing a clear link between the alleged violations committed and the group to whom these violations are attributed. More importantly, there seems to be a current disconnect between their main findings, on the one hand, and the conclusions and recommendations section, on the other hand. This is in part due to their mandates, but it is also due to the lack of clarity as to what legal framework of responsibility is applicable to armed groups. And here is where I argue that certain guidelines or rules should be provided.

Membership, civilian wings and attribution of conduct

In the previous posts, both Emanuela and Katharine Fortin addressed different issues related to membership and attribution of conduct to armed groups. Before going into their comments and critiques, I would like to point that attribution of conduct to armed groups for the purpose of establishing their international responsibility has received scare attention by the scholarship and the practice, and I might not have full answers in this respect but potential proposals. Katharine has raised the question of how to conceptualise armed groups for the purposes of attribution and whether the civilian wings could also be included as part of this notion. In fact, one of the main difficulties in this study was the own definition of armed group, and in particular whether we should only consider the military wing or whether we consider both the military and the political wing. It might be noted that I follow a narrow approach because I stick to the definition of armed group of the ICRC in How Does Law Protect in Law? according to which ‘the term organised armed group refers exclusively to the armed or military wing of a non-state party to a non-international armed conflict’. However, I do acknowledge that the different roles within an armed group are not always easy to distinguish and that often one member can be performing both military and political or administrative functions at the same time. For example, in the case of the Sudan People’s Liberation Movement/Army (SPLM/A), the Commander in Chief was in charge of the determination of the political and military objectives and the officers of the SPLA were also acting as civil and military administrators. As regards the FARC-EP, every military unit was also considered a political cell and every commander had both political and military responsibilities. In practice, it is sometimes very difficult to make a clear distinction between both branches and the line seems to be blurred. As Katharine mentioned in the book launch, rebel governance studies could be insightful in providing information about the different roles played within an armed group.

In the book, I propose to apply three potential rules of attribution by analogy with the common rules of attribution of states and international organisations (Chapter 4 of the book). The first one is the attribution based on the conduct of ‘organs’ or ‘agents’ of armed groups. In the process of studying the possible organs or agents of armed groups I enquired whether the definition of membership could have any relevance for my research. Accordingly, I examined the notion of membership in the ICRC DPH study but concluded that this definition of membership was too narrow to reflect the full spectrum of members of armed groups. I particularly observe that other supportive roles such as logistics, providers of services, training, or planning activities at the highest level of the organisation could also be considered as acting on behalf of the armed group if this was done on a regular and permanent basis because this was clearly contributing to the armed struggle even if it was in an indirect way. Therefore, as Emanuela also mentions, the notion of membership does not have to be the same for the purpose of determining the legitimate military targets (as this was the aim of the ICRC DPH study) than for attributing international responsibility. However, one common element would be the necessity that the alleged member performs a function on a permanent basis.

The second proposed rule is the attribution based on the conduct of other individuals or groups that are under the direction and control of the armed group. This rule could be potentially applied to those civilians who do not belong to the military structures of the armed group and do not perform their regular functions but take part in the conflict in specific moments on behalf of the armed group. This rule should also consider the organisational structure of the armed group because this could mean a different standard of direction and control, specifically for decentralised groups. A third possible rule of attribution could be the acknowledgment of the conduct as its own by the group as long as the acknowledgement is clear and unequivocal.

The relevance of armed groups’ practice

Another aspect tackled in the book deals with the perspectives of armed groups on attribution and reparations and how to evaluate this practice. In his post, Ezequiel Heffes wonders about the practical consequences that this may have when dealing with international responsibility. In particular, he asks whether ‘the “non-practice” (i.e. failure to act in a certain way) could also be a relevant factor to consider’ and whether not including a type of reparation ‘may suggest that these entities do not generally have the capacity (either knowledge or resources) or interest to actually adopt it’. In the book, I highlighted the importance of taking the views of armed groups into consideration as the counterparties in a non-international armed conflict. In fact, other scholars have also pointed out the relevance of armed groups’ practice in order to analyse their practical capabilities for complying with international humanitarian law obligations. For instance, Marco Sassòli has claimed that ‘If we want to revise IHL in a certain area, we have to discuss with the actors, which, in the area of non-international armed conflicts, include the armed groups’ (p. 18). Or more recently, Annyssa Bellal has discussed the views of armed non-state actors on the conduct of hostilities in urban settings. However, I agree with Ezequiel that one must be careful in assessing armed groups’ practice.

I have actually pointed out some of these concerns in the book. Firstly, when assessing the practice of armed groups regarding reparations, I explained that it was too early to conclude the existence of a solid and ‘general practice’ (p. 192). In particular, I have analysed this practice for the purpose of assessing any possible contribution to customary international law (if we consider any potential role of non-state armed groups in this process). Accordingly, to be regarded as ‘general practice’, the book argues that a substantive amount of practice and opinio juris of armed groups which represents at the same time different organisational structures of armed groups and different geographical regions is required. Secondly, I indicated that at least there seemed to be stronger evidence of the acceptance of the duty of armed groups to restitute assets and properties which was derived from a number of peace agreements between states and armed groups and from certain codes of conduct. In the end, what the book was trying to prove is that, in practice, armed groups do have the ability to provide certain forms of reparations. Nevertheless, the consistency of such practice is something that deserves further research. Moreover, by analogy with the analysis of the capabilities of armed groups to comply with IHL, a similar understanding can be applied for addressing their capabilities in the provision of reparations.

Reparations and armed groups

As for the question of reparations and the duties of armed groups, Emanuela refers to the multiple challenges that exist. She rightly points that this is a main concern not only for armed groups’ responsibility but also for states since ‘instances of reparations actually being made to individual victims of violations of IHL remain regrettably extremely rare’. In fact, I also mentioned in the book that in relation to violations of IHL, there is no institutionalised mechanism through which victims can claim their rights, not even for violations committed by states. But probably we could make use of transitional justice mechanisms to cover this gap and consider both responsibilities, that of states and armed groups. Emanuela also suggests taking inspiration from creative approaches that are being developed in relation to the sanctions imposed to certain armed groups, such as tracing or freezing assets. Likewise, I have referred to similar approaches, namely the recovery of illegal assets. This was the case of Peru which devoted a portion of assets recovered from corruption; the Philippines with monies recovered from the Marcos estate; or Colombia with assets held by the paramilitaries. Other possibilities could include the financial contribution of armed groups to specific compensation funds or even the Trust Fund of the ICC.

The main proposal of the book focuses on considering a broad definition of reparations by not only looking at financial compensation but also moral reparations and guarantees of non-repetition (Chapter 5 of the book). The importance of moral reparations and the possible contribution by non-state armed groups has already been addressed by Ron Dudai, Luke Moffett and Nicolás Carrillo Santarelli. In this sense, the book suggests that armed groups could play a crucial role in the provision of symbolic or moral reparations, including the acknowledgment of facts, the offering of public apologies, and other memorials and official ceremonies (p. 187 – 189). However, moral reparations should be considered complementary to other forms of reparations. In addition, guarantees of non-repetition could be an essential part of reparations in the form of preventive measures to avoid the commission of future violations of IHL. These commitments would need to be accompanied by a monitoring system in place that could be similar to the one provided by Geneva Call.

Humanitarian engagement and responsibility

Lastly, another issue raised by Ezequiel was the potential relationship between compliance and responsibility. He wonders whether there are ‘some correlations between the practice of those groups that are open to engage on humanitarian norms and those that have both claimed responsibility for violations of IHL and implemented measures of reparations’. Although I have not analysed this particular question in the book, I do believe there might be certain correlation and that those armed groups which have already engaged in humanitarian dialogues would be more willing to accept their responsibility and repair the harm done. In particular, in the book I examined the armed groups that engaged in peace agreements with the corresponding state, which in most cases were related to armed groups that wanted to transition into some form of political party (p. 183 – 187). Another issue linked to this question is the fact that centralised types of armed groups are more likely to engage in successful peace agreements than decentralised armed groups because the leadership have the ability to enforce the necessary rules on their ranks. Therefore, this is also something to bear in mind if we want to engage them in reparation provisions or similar commitments.