Crisis in the laws of war? Beyond compliance and effectiveness
| Author | Ian Clark,Christian Reus-Smit,Emily Tannock,Sebastian Kaempf |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1177/1354066117714528 |
research-article2017
EJ R
I
Article
European Journal of
International Relations
Crisis in the laws of war?
2018, Vol. 24(2) 319 –343
© The Author(s) 2017
Beyond compliance and
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
https://doi.org/10.1177/1354066117714528
DOI: 10.1177/1354066117714528
effectiveness
journals.sagepub.com/home/ejt
Ian Clark
University of Queensland, Australia
Sebastian Kaempf
University of Queensland, Australia
Christian Reus-Smit
University of Queensland, Australia
Emily Tannock
University of Queensland, Australia
Abstract
How can we tell what state the laws of war are in today, and whether they face exceptional
pressures? Standard accounts of the condition of this body of law focus on problems
of compliance and effectiveness. In particular, there is a dominant international legal
diagnosis that most non-compliance is accounted for by the prevalence of non-state
belligerents in irregular or asymmetric conflicts. We propose that any such diagnosis
is partial at best. A focus on compliance and effectiveness tells us nothing about the
reasons for actor behaviour, or about its impact on the regime. We advance a different
conceptual framework, exploring the complex connections between compliance,
effectiveness and legitimacy. We propose an alternative diagnostic model that places
legitimacy at the heart of the analysis, treating it as causal, not simply symptomatic.
This highlights when violations result in legitimacy costs for the individual actor, as
opposed to reaching a tipping point when violations cumulatively impose legitimacy
costs on the regime itself. We argue for the need to move beyond discussions framed
by compliance and effectiveness, and towards the forms, reasons and reception of non-
Corresponding author:
Ian Clark, University of Queensland, St Lucia, 4072, Brisbane, Queensland 4072, Australia.
Email: i.clark1@uq.edu.au
320
European Journal of International Relations 24(2)
compliant behaviour, as this provides a truly social measure of the state of the law. In
order to illustrate this, we examine three distinct types of challengers — Islamic State of
Iraq and the Levant, the US and Russia — and present them as, respectively, revisionist,
rejectionist and denialist threats to the regime. Unusually, the laws of war today face
challenges on all three fronts simultaneously.
Keywords
Compliance, Geneva Conventions, International Committee of the Red Cross, Islamic
State of Iraq and the Levant, laws of war, legitimacy
Introduction
Recently, the world has been starkly confronted by any number of gross violations of the
laws of war.1 So serious has this become that Robert Tickner, former chief executive
officer (CEO) of Australian Red Cross, is adamant that ‘the laws of war as we know them
are being challenged like no other time in history’ (Red Cross, 2015). Likewise,
International Committee of the Red Cross (ICRC) President Peter Maurer worries openly
about a ‘shattering of the system of the Geneva Conventions’ (BBC, 2015). So, just how
robust are the laws of war today, or to how much exceptional pressure are they now
exposed? More to the point, precisely how can we tell? Are things now worse than 20
years ago when Adam Roberts (1995: 13–14) voiced his concern that ‘the laws of war
have lost meaningful contact’ with some armed forces? This article proposes the theoreti-
cal underpinnings needed to frame answers to these questions. This is essential to any
initiative either to confront violations of the laws of war, or bolster the regime for the
future. In the absence of any agreed benchmarks for assessing the state of play, there is
simply no convincing way of determining whether pessimism about the state of the laws
of war is warranted or not, much less how we ought to respond.
Of direct relevance to our argument is Hedley Bull’s claim that there can be various
kinds of violations that do not necessarily undermine the ‘efficacy’ of international law.
However, he contrasted these with more subversive conditions:
What is a clearer sign of the inefficacy of a set of rules is the case where there is not merely a lack
of conformity as between actual and prescribed behaviour, but a failure to accept the validity or
binding quality of the obligations themselves — as indicated by a reasoned appeal to different and
conflicting principles, or by an unreasoning disregard of the rules. (Bull, 1977: 133)
What Bull’s argument highlights is that ‘efficacy’ depends on more than the degree of
compliance alone as it also depends on exactly how the reasons for any non-compliant
behaviour are expressed, understood and socially received. In short, legitimacy is central
— non-compliance, as Bull argues, is more likely to be subversive if based on non-
acceptance of the binding nature of the rules, or if accompanied by appeal to conflicting
principles.
This insight has had surprisingly little effect, though, on existing approaches to the
health of the laws of war. As the first section shows, despite the widespread perception
Clark et al.
321
that these laws are in crisis, and despite the laws having faced multiple challenges over
their history, there remain no agreed criteria for assessing their health. The second sec-
tion examines the three criteria commonly invoked: compliance, effectiveness and legiti-
macy. Not only is each of these riddled with analytical problems, but insufficient attention
has been paid to their complex interrelationship. On probing this relationship, we reverse
the standard order of priority that privileges compliance and effectiveness over legiti-
macy. Legitimacy, we contend, is central in two respects: it determines the social costs
that accrue to non-compliant actors; and, most importantly, it is critical to the binding
quality of the laws of war as an institution. Yet, as the third section shows, the dominant
diagnosis of the state of these laws privileges compliance and effectiveness, and writers
who take legitimacy seriously in explaining the condition of the laws of war are very
much in the minority (Dill, 2015a; Gershel, 2013; Stein, 2014).
The fourth section sets out our alternative approach: institutions — domestic and
international — struggle with non-compliance all the time, and even those with healthy
levels of compliance can be ineffective in meeting their purposes. Institutions fall into
crisis, though, when their legitimacy collapses, when the binding quality of their rules is
questioned, even rejected. A key factor determining their legitimacy is not their effec-
tiveness, which may also be important, but the robustness of the original social bargain
that undergirds them — how is the governance domain defined, who are the legitimate
actors and how are rights and responsibilities distributed. When these bargains fray, often
accompanied by heightened levels of non-compliance, institutions are vulnerable to cri-
sis. More specifically, the weakening of the underlying bargain brings an institution to a
tipping point, where costs of non-compliance shift from violators to the regime itself.
The laws of war are a case in point. Underlying them is a grand bargain in which
states, working with a common conception of war, accept humanitarian constraints in
return for the legalization of war as a practice and the legitimation of all non-prohibited
means. The legitimacy of the regime ultimately depends on the health of this bargain,
and this is what ought to concern today’s commentators. As the first section shows, the
laws of war have faced repeated challenges, but the challenges now are qualitatively dif-
ferent. In the past, the underlying bargain was sufficiently robust that states could meet
challenges by augmenting the law. Today, however, the underlying bargain is fraying,
reducing the costs of non-compliance for violators and shifting them to the regime. As
we show in the fourth section, informed by very different conceptions of war, and differ-
ent understandings of the bounds of legitimate violence, key actors (Islamic State of Iraq
and the Levant (ISIL), Russia and the US) are undermining the bargain, eroding the
normative basis on which to critique their actions. More than this, their practices are
mutually reinforcing, bringing the regime dangerously close to a crisis of legitimacy.
Although specifically about the condition of the laws of war, the article raises wider
issues for International Relations (IR) about law, legitimacy and the social construction of
compliance in the context of highly contested conceptualizations of types of violence. It
asks fundamental questions about the rule of international law, and whether we need to
identify different kinds of challenges to that rule: some failures to comply with the law
may potentially be more serious than others. In particular, we are interested in the role of
legitimacy in sustaining a legal regime, and in how much subversion of the regime is
tolerable before its legitimacy becomes undermined. In this context, we explore the
322
European Journal of International Relations 24(2)
significance of ‘tipping points’, where cumulative failures of compliance erode the legiti-
macy of the regime as a whole, rather than simply diminishing the legitimacy of the indi-
vidual actors who violate it.
Permanent challenge or novel crisis?
There is an obvious sense in which, historically, the laws of war have...
To continue reading
Request your trial