The Use of Soft Law in Regulating Armed Conflict
From Jus in Bello to ‘Soft Law in Bello*?
Peter Vedel Kessing
Historically, soft law has not played a major role in regulating situations of armed conflict. Armed conflict has—contrary to the human rights field—almost exclusively been regulated by hard law instruments. However, this has changed within the last two decades, with new standards targeting situations of armed conflict increasingly being elaborated in soft law instruments.
This chapter explores and discusses the new trend of regulating armed conflict with soft law instruments and more specifically assesses whether international human rights norms are reflected in recent soft law instruments.
The existing hard law regulating armed conflict, particularly non-international armed conflict, is outdated and in many respects inadequate. It basically consists of: the four Geneva Conventions (GC) from 1949; the two Additional Protocols (AP) from 1977; the Hague Conventions I—XIII on Means and Methods of Warfare from 1907; and the more recent weapon conventions.1
Even though there is a great need for new rules to regulate present-day armed conflicts, particularly non-international armed conflicts, states have been cautious in adopting new international binding rules. When states negotiated and adopted the two Additional Protocols to the Geneva Conventions in 1977, there were major disagreements between states on the need for new international rules and on the scope, content, and precise formulation of the rules. Finally, a compromise was reached leading to the two APs, which in a certain (small) number of areas clarify and to some extent broaden the existing rules in the four GCs. This outcome has
1 1972 Biological Weapons Convention; the 1980 Convention on Conventional Weapons; the 1993 Convention on Chemical Weapons; the 1997 Ottawa Convention on Anti-Personnel Mines; the 2003 CCW Protocol (V) on Explosive Remnants of War; and the 2008 Convention on Cluster Munitions.
Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.
been described by many commentators as disappointing, or even a failure. As one commentator has noted:
Not counting the ICRC preparatory conferences of experts and the UN debates, the 1974 Diplomatic Conference consumed approximately 7,000 pounds of paper and produced some 4.5 million pages of reports, amendments, summary records, and the like. From all of this, there was little progress on specific legal issues. The future is particularly murky for this exercise of reaffirmation and development of the law of armed conflict. 1974 may have been a bad time to have tried to develop this law. Then again, when has there ever been a good time?
In any event, it is a fact that a number of states often involved in or affected by armed conflict have refrained from ratifying the APs, including the United States, Israel, Iran, Pakistan, India, and Turkey. Based on this experience, the International Committee of the Red Cross (ICRC) and a number of states have been reluctant to initiate new diplomatic processes to negotiate international humanitarian law (IHL).
Instead, other legal sources and norms—most pertinently customary international humanitarian law (CIHL) and international human rights law (IHRL)— have played an increasingly important role in regulating armed conflict and thereby to some extent filling the norm gap in IHL hard law.
This development has led to legal as well as operational challenges for the military at large and the ordinary soldier in particular. In relation to CIHL there is no general international consensus on which IHL norms have crystallized into customary international law. The vast majority of hard law rules in the Geneva and Hague Conventions, particularly those governing the conduct of hostilities, are only applicable in international armed conflict and it is strongly debated whether some or all of these rules are applicable in non-international armed conflict as CIHL.
In relation to IHRL, however, the challenges are much more overwhelming and fundamental since there are crucial differences between the legal standards in IHL and in IHRL. IHL is developed for armed conflict and IHRL basically for peacetime situations. Thus, all IHL norms express a delicate balance between military necessity and humanity. On the contrary, military necessity is not reflected in IHRL norms. As a consequence, IHRL norms are more restrictive than IHL in allowing states to use force, often leading to a stronger legal protection of the individual, for instance in relation to the right to life, the right to liberty, and the right to freedom from torture.
In parallel with this development and the increasing influence of alternative hard law norms in the form of CIHL and IHRL, a number of soft law instruments regulating certain aspects of international armed conflict and non-international armed conflict have been elaborated by various stakeholders within the last twenty years, for example concerning sea warfare, air and missile warfare, and cyber warfare. These soft law instruments often draw on and reflect CIHL and IHRL norms.
While it is uncontroversial that CIHL is applicable to and regulates situations of armed conflict, the question of whether IHLR is applicable in armed conflict is much more contentious. CIHL is a very old and well-established legal source in armed conflict pre-dating treaty law, that is, the Hague and Geneva Conventions. However, whether and to what extent IHRL norms are applicable in situations of armed conflict is a much more recent and contemporary question.
Therefore, this chapter first explores, in section 2, the extent to which IHRL is applicable in times of armed conflict, and how different and sometimes conflicting norms in IHL and IHRL interrelate.
Section 3 provides a brief overview of the most important jus in bello soft law instruments that have been adopted over the last twenty years. For each instrument, it will discuss who has been responsible for elaborating and adopting the instrument; the purported legal status of the instrument; and whether IHRL norms have been incorporated or reflected in the instrument.
Section 4 discusses some of the consequences of the new trend of regulating armed conflict through soft law. Finally, section 5 contains some concluding observations.
-  D. P. Forsythe, ‘The 1974 Diplomatic Conference on Humanitarian Law: Some Observations’,American Journal of International Law vol. 69 (Jan. 1975): 77—91.
-  One exception could be the pending ICRC initiative on establishing new hard law norms on detention in NIAC. See the ICRC, Background Document, ‘Strengthening International HumanitarianLaw Protecting Persons Deprived of Their Liberty’ (Apr. 2015). However, the ultimate outcome ofthis process will apparently be ‘just’ a non-legally binding soft law document, see para. 8 in the resolution on ‘Strengthening international humanitarian law—protecting persons deprived of their liberty’,adopted at the 32nd International Conference of the Red Cross 8—10 Dec. 2015.
-  For a thorough discussion of the two competing ways (CIHL and IHRL) of filling the norm gapin IHL in NIAC: W. Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Courtof Human Rights in Chechnya’, European Journal of International Law vol. 16 (2005): 741—67.