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Published online by Cambridge University Press: 12 September 2022
Military strategists have begun pivoting from a focus on counterterrorism, counter-insurgency and stability operations to potential peer and near-peer conflict. This shift has profound operational and tactical implications for how future wars will be fought, but equally, it will have a significant impact on how international humanitarian law (IHL) is understood and applied. This article considers the process by which the normative evolution of IHL will occur in response to a battlespace that looks different than it has for decades. To do so, the article introduces two concepts: “normative architecture” and “applied IHL”. It argues that only by understanding the difference between these two concepts, and their relationship to each other, can States and others concerned with how IHL is developing in the face of future conflict positively affect that process.
1 Charles Pede and Peter Hayden, “The Eighteenth Gap: Preserving the Commander's Legal Maneuver Space on ‘Battlefield Next’”, Military Review, March–April 2021.
2 The rule requires comparing two dissimilar values – harm to civilians and civilian objects and military advantage – that are themselves difficult to evaluate.
3 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1 (all internet references were accessed in August 2022).
4 Reisman, W. Michael, “Covert Action”, Yale Journal of International Law, Vol. 20, 1995, p. 420Google Scholar. This leads Reisman to famously distinguish between what he calls the “myth system” and the “operational code”: Reisman, W. Michael, Jurisprudence: Understanding and Shaping Law, New Haven Press, New Haven, CT, 1987, pp. 23–35Google Scholar. For Reisman, the myth system is the law that purportedly applies, in a sense, the law on paper. By contrast, while the operational code refers to the norms that govern in practice, it may depart, sometimes significantly, from the myth system.
5 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, Arts 31–32.
6 International Law Commission, Draft Conclusions on Identification of Customary International Law, 2018, available at: https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_13_2018.pdf.
7 Schmitt, Michael N., “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law, Vol. 50, No. 4, 2010Google Scholar.
8 US Department of Defense, Law of War Manual, revised ed., Office of the General Counsel, December 2016, Chap. V.
9 The Five Eyes countries are Australia, Canada, New Zealand, the United States and the United Kingdom.
10 “Combined operations” include the armed forces of multiple countries. The term “joint operations” refers to those that involve multiple services.
11 For instance, in a coalition operation, US operations could raise issues of coalition partner responsibility based on breach of obligations of the latter.
12 Johnson, Douglas A., Mora, Alberto and Schmidt, Averell, “The Strategic Costs of Torture: How ‘Enhanced Interrogation’ Hurt America”, Foreign Affairs, Vol. 95, No. 5, 2016, pp. 125–129Google Scholar.
13 See discussion in Marko Milanovic, “Intelligence Sharing in Multinational Military Operations and Complicity under International Law”, International Law Studies, Vol. 97, 2021.
14 Schauss, Michael and Schmitt, Michael N., “Uncertainty in the Law of Targeting: Towards a Cognitive Framework”, Harvard National Security Journal, Vol. 10, 2019, pp. 153–166Google Scholar.
15 Ibid., p. 163.
16 Ibid., p. 167.
17 These and other IHL treaties, as well as the statutes of international criminal tribunals, are available on the ICRC's comprehensive database at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByDate.xsp.
18 Schmitt, Michael N., “Wired Warfare 3.0: Protecting the Civilian Population during Cyber Operations”, International Review of the Red Cross, Vol. 101, No. 901, 2019CrossRefGoogle Scholar.
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23 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009.
24 ICTY, The Prosecutor v. Duško Tadić, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.
25 See documents at United Nations Office of Disarmament Affairs, “Convention on Certain Conventional Weapons – Group of Governmental Experts on Lethal Autonomous Weapons Systems”, available at: https://meetings.unoda.org/meeting/ccw-gge-2020/.
26 Ops law handbook.
27 IDF, “International Law Department”, available at: www.idf.il/en/minisites/military-advocate-generals-corps/ild/.