Developing empirical methodologies to study law of war violations
Victor M. Hansen
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Willamette journal of international law and dispute resolution, Vol. 16, no. 2, 2008, p. 342-385
As part of the commemoration of the 50th anniversary of the modern Geneva Conventions, the ICRC commissioned a study examining the behavior of combatants in wartime. This effort represents one of the most useful modern empirical studies on law of war issues. From this study, the ICRC made a number of insightful findings regarding the respect or lack of respect for IHL among war fighters. In exploring why combatants violate IHL principles, the report found that combatants are subject to depersonalization, loss of independence and the dilution of individual responsibility. The paper begins by briefly exploring the military commander's legal responsibility for ensuring law of war compliance by the forces under his command. I looks at some battlefield actions that have often been viewed as high risk activities with respect to IHL obligations and poses the question whether the commander has any special legal responsibilities in connection with these high risk activities. Next, the paper looks in some detail at challenges that may impede or prevent the constructing of a comprehensive study of IHL violations. These obstacles include the practical difficulties and limitations of constructing and conducting a study of battlefield conduct which takes place in the fog of war. Beyond these battlefield challenges, this section will also look at the difficulties that an outsider faces in attempting to gain access to relevant information. This section will also discuss the importance of gathering accurate information and the problems created when legal obligations are imposed that are detached from practical realities. The final section of the paper examines some approaches that could be useful to get military leaders to "buy in" to an exploration of these issues such that they may be willing to reduce or eliminate some of the obstacles that may currently be in place. This final section also notes the importance of gathering information from multiple sources to get a more complete picture of these issues.