6. Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance

Krieger 2015, p 1.

International Committee of the Red Cross 2003, p 20; Clapham 2006, p 12.

Krieger 2015, pp 4–5 (affirming that “[a]ctual decisions to obey a legal norm result from a complex mixture of diverse motivations. Power relations as well as historical, political, social and anthropological conditions determine these motivations so that compliance is context-dependent”).

Bangerter 2011; International Committee of the Red Cross 2003, pp 20–21; Heffes 2018.

States acknowledged this weakness during the 31st International Conference of the Red Cross and Red Crescent, emphasizing in a resolution “the importance of exploring ways of enhancing and ensuring the effectiveness of mechanisms of compliance with IHL, with a view to strengthening legal protection for all victims of armed conflict”. International Committee of the Red Cross 2011, p 2.

Geneva Academy of International Humanitarian Law and Human Rights 2014, p 22 (affirming that in the context of a study in which the reaction to international norms of more than thirty groups were explored, some NSAGs “were not aware of the prohibition of child recruitment and their potential exposure to prosecution by the International Criminal Court and other tribunals”).

As Weinstein has correctly identified when dealing with NSAGs, international criminal tribunals, as mechanisms of deterrence of IHL violations, depend “on the fact that individuals care about the future”. Weinstein 2007, p 350. For discussions related to the deterrent effect of international criminal justice, see Cryer 2015; Jenks and Acquaviva 2014.

Krieger 2015, p 1. See also Chinkin and Kaldor 2017, p 11 (noting that while “[o]ld wars were fought by regular armed forces wearing uniforms and those recruited by the state through conscription or payment […] the participants in the new wars are often loose and fluid networks of state and non-state actors that cross borders”).

This was explicitly confirmed by the UN Special Representative of the Secretary General for Children in Armed Conflict in 2018 who noted that despite “[d]irect engagement with both government forces and armed groups has brought significant commitment and results to better protect conflict affected children”, grave violations against them continue “in every conflict situation—from the Central African Republic to Iraq, Somalia and Yemen”. UN Office of the Special Representative of the Secretary General for Children and Armed Conflict 2018.

International Committee of the Red Cross 2018.

Ibid., p 9.

Ibid.

Jo 2017, p 65.

The ICRC has defined compliance as the observance and implementation of IHL. International Committee of the Red Cross 2015a. This, of course, does not deny in any way the application of IHRL in times of armed conflict, which has been recognized by the International Court of Justice (ICJ) on several occasions. See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep 226; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] ICJ Rep 136. The ICJ also confirmed that IHRL is applicable in situations of armed conflict in a case concerning armed activities in the territory of the Congo. ICJ, Case concerning Armed Activities on the territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, 19 December 2005, [2005] ICJ Rep 168. The application of IHRL to NSAGs has also gained a momentum in the last few years. See in this sense Clapham 2006; Murray 2016; Fortin 2017; Rodenhäuser 2018.

Gross 2015, p 74 for this analysis with respect to NSAGs.

Different explanations have been provided by NSAGs for their refusal to uphold the prohibition of recruiting and using child soldiers: children may be seen as an important resource for NSAGs’ survival; the fact that international standards do not match with local custom and norms about adulthood; and that children are seen as easily influenced and recruited. Other explanations are related to NSAGs’ lack of capacity to actually determine when an individual is a child or an adult, at least according to international law, and the lack of socio-economic alternatives for children. Furthermore, international law includes different standards for this prohibition. While IHL refers to 15 years old as the minimum age for recruitment, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict affirms that “[a]rmed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years”.

This was clearly seen during the peace negotiations between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC-EP), when the latter agreed to release children from its ranks at the final stage of the conflict. Casey N (2016) Colombia and FARC Rebels Reach a Deal to Free Child Soldiers. https://​www.​nytimes.​com/​2016/​05/​16/​world/​americas/​colombia-and-farc-rebels-reach-a-deal-to-free-child-soldiers.​html. Accessed 23 September 2019.

Falk 1964, p 5. See also Chayes and Chayes 1995, p 17.

Falk 1964, p 5.

Fazal 2018, p 59.

International Committee of the Red Cross 2003, pp 20–21.

Jo 2015, p 256. See also Heffes and Kotlik 2014, p 1202 (arguing that “[f]rom a practical point of view, it seems unlikely that [NSAGs] will accept any set of rules merely by the fact that it has been previously agreed upon by States, be it customary or treaty law”); Henckaerts 2003.

Geneva Call 2016, p 25.

Jo 2015, p 6. For further reasons, see Bangerter 2011; Jo 2017.

Cismas and Heffes 2017.

Krieger 2015.

Blakke et al. 2015.

Bangerter 2015, p 113.

Heffes 2019, p 234.

Geneva Call 2016, p 14.

Schneckener and Hofmann 2015; Quintin and Tougas 2020. In the last few years, there has also been an increasing intervention of UN bodies on issues related to compliance for IHL and IHRL. For instance, through its child protection framework, States and NSAGs can engage with UN agencies and sign ‘action plans’, which could lead to delisting them from the UN Secretary-General’s list of actors that commit one or more of the five grave violations of children’s rights. For more information, see UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict (https://​childrenandarmed​conflict.​un.​org/​) and Kotlik 2020. For the reference to both IHL and IHRL, see UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict 2013, p 10.

International Committee of the Red Cross 2004. Recently, the ICRC has begun a process of reflection indicating a greater openness to less formal mechanisms of influence. Following the 2004 study Roots of Behaviour in War, the ICRC asserted that “legal arguments were more durable than moral arguments when seeking to convince combatants to respect humanitarian norms during warfare”. In contrast, the 2018 Roots of Restraint in War study explores the formal and informal sources of influence on the development of norms of restraint in State armed forces and NSAGs. Terry and McQuinn 2018.

Quintin and Tougas 2020, p 371. Interestingly, this is seen with caution by the authors, who explain that engaging other societal actors “may also mean opening a Pandora’s box of sensitive issues for a neutral organization […]. [L]ooking at sources of influence will include examining not only the role played by local communities and cultural or religious leaders, but also the role played by donors, economic partners, political powers, etc.”. Quintin and Tougas 2020, pp 370–371.

International Committee of the Red Cross 2015a. See also International Committee of the Red Cross 2019b (stating that “[t]he crucial role of religious leaders and faith-based organisations and in times of conflict and humanitarian crisis is now increasingly appreciated, and the ICRC has striven over recent years to engage influential religious circles more systematically”).

Quintin and Tougas 2020, p 370.

Ibid.

UN Population Fund 2009; UN Aids 2009; UN Development Programme 2014; UN High Commissioner for Refugees 2014; UN Environment Programme 2018.

UN Development Programme 2014, p 5.

Wiener 2012, p 37.

See UN Development Programme 2014, pp 3, 6, 12. See also a discussion in Wiener 2012.

UN Office on Genocide Prevention and the Responsibility to Protect 2017.

See, generally, UN Office of the High Commissioner for Human Rights 2017.

Cismas 2014, pp 50–55.

Cismas argued that the intergovernmental Organization of Islamic Cooperation falls within the analytical category of religious actors. Cismas 2014, pp 239–304.

Ibid., p 52.

Ibid.

For an example of women exercising religious leadership collectively through a church group in an effort to mediate between the parties to the Solomon Islands conflict, see discussion in Cismas 2017, pp 317–318; Snyder 2009. Note that the ‘Generating Respect for Humanitarian Norms’ project seeks to explore a larger spectrum of religious leadership (individual, collective, institutionalized) informed by the realities of our case study countries: Colombia, Libya, Mali, Myanmar. For more information about the project, see https://​gtr.​ukri.​org/​projects?​ref=​ES%2FT000376%2F1.

Henckaerts and Doswald-Beck 2005, p 90, Rule 27.

The role of religious leaders as interpreters of humanitarian values should not be seen to exclude other potential roles that these individuals may have in conflict settings. For instance, they have been related to faith-based diplomacy and the full panoply of transitional justice mechanisms. See Brudholm and Cushman 2009; Vinjamuri and Boesnecker 2008; Cismas 2017. Furthermore, while in the Central African Republic, priests, imams and missionaries worked to reduce tensions between armed actors, sheltered people fleeing violence in their compounds, and aided, in Myanmar they created ‘zones of tranquility’ and gave protection for their followers. Fast 2018, pp 9–10.

Edrei 2006, p 255.

Cohen 2007, p 19.

Levy 2014, pp 277–279. See also Kornalian and Zaim 2011, pp 9–13.

Cohen 1999, p 389.

Ibid.

Levy 2014.

Specifically, Levy describes the refusal of some religious soldiers, supported or encouraged by religious institutions to carry out orders to evacuate illegal settlements in the West Bank. Ibid., pp 285–286.

Fonbuena C (2017) MILF commits to implement fatwa versus radical extremism. https://​www.​rappler.​com/​nation/​174775-milf-support-fatwa-radical-extremism. Accessed 18 January 2020.

Ibid.

International Crisis Group 2019, pp 15–16.

Pangco Panares J (2015) Muslim leaders unite for Pope, seek blessing. https://​manilastandard.​net/​news/​-main-stories/​168243/​muslim-leaders-unite-for-pope-seek-blessing.​html. Accessed 17 January 2019.

On the international crimes committed by ISIS against Yazidis girls and women, see UN Human Rights Council (2016) International Independent Commission of Inquiry on the Syrian Arab Republic: “They Came to Destroy”: ISIS Crimes Against the Yazidis, UN Doc. A/HRC/32/CRP.2. See also Cetorelli and Ashraph 2019.

Ali 2016, p 6.

IS Research and Fatwa Department, ‘Questions and Answers on Taking Captives and Slaves’, cited in Roth 2015. See also Chertoff 2017, p 1062.

IS Research and Fatwa Department, ‘Questions and Answers on Taking Captives and Slaves’, cited in Roth 2015.

Callimachi 2015.

For an overview of all signatories, see http://​www.​lettertobaghdadi​.​com/​new-signatories/​.

Letter to Baghdadi 2015.

Ibid., pp 1 and 12. For a comparative analysis of the IS publications and the Open Letter focusing on their respective interpretation of history and the relevance of notions of authority, see Ali 2016.

Letter to Baghdadi 2015, p 12.

See ICTR, Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Judgment and Sentence, 21 February 2003, Case Nos. ICTR-96-10, ICTR-96-17-T; ICTR, Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, Judgment, 13 December 2004, Case Nos. ICTR-96-10-A, ICTR-96-17-A; ICTR, Prosecutor v Athanase Seromba, Judgment, 12 March 2008, Case No. ICTR-2001-66-A; ICTR, Prosecutor v Athanase Seromba, Judgment, 13 December 2006, Case No. ICTR-2001-66-I. See also Fast 2018, p 11; Cismas 2017, pp 314–316.

Ali 2016, p 12.

On the issue of foreign fighters, see Borum and Fein 2016.

Holy See 2017.

Ibid.

Ibid.

Zaragoza 2020.

ForumLibertas (2007) Rehenes de las FARC: la Iglesia, único intermediario válido para el Gobierno colombian [Hostages of FARC: the Church, the only valid intermediary for the Colombian Government]. https://​www.​forumlibertas.​com/​hemeroteca/​rehenes-de-las-farc-la-iglesia-unico-intermediario-valido-para-el-gobierno-colombiano/​. Accessed 23 September 2019. See also Patterson 2013; Zaragoza 2020.

El Universal (2013) Desde 1984 han sido asesinados 83 sacerdotes en Colombia [Since 1984, 83 priests have been murdered in Colombia]. https://​www.​eluniversal.​com.​co/​mundo/​desde-1984-han-sido-asesinados-83-sacerdotes-en-colombia-107440-MYEU193690. Accessed 23 September 2019.

A number of works engage in-depth with the study of religion(s) and IHL, and how substantive interpretations of the former can reinforce, or on the contrary frustrate, the latter. For an important recent study, see Al-Dawoody 2011. See also Evans 2006; Cockayne 2002.

Cismas 2014, p 55.

Matheson 1987, 200.

Ibid.

Dogan 2004, p 114.

Franck 1990, Chapter 3.

Dogan 2004, p 117.

Spencer 1970, p 126.

Dogan 2004, pp 116–117.

Jo 2015, p 27.

Krieger 2015, pp 4–5.

Cismas 2014, p 57.

Ibid.

International Committee of the Red Cross 2015b. See also Aly 2014a (arguing that “aid and advocacy agencies have increasingly tried to understand Islamic law in order to use its humanitarian provisions as tools of negotiation with armed groups in the Muslim world”).

International Committee of the Red Cross 2016, p 36. Interestingly, the ICRC institutionalized this by creating in 2004 a specific unit tasked with developing its relations with, and understanding of, the Muslim world. Its work has focused on “forging links and interactions with Muslim scholars and on initiating a dialogue with them on the commonalities between IHL and the relevant rules of Islamic law and jurisprudence”. Quintin and Tougas 2020, pp 372–373.

International Committee of the Red Cross 2019a.

Aly 2014b.

Ibid.

International Committee of the Red Cross 2016, p 36.

International Committee of the Red Cross 2019c, p 76 (The ICRC was asked to “[i]ncrease cooperation and coordination with influential religious scholars/leaders during armed conflict”, to include “front-line negotiators and influential religious leaders” in IHL discussions, and to “[u]se all the forums academics and religious leaders have to communicate pertinent messages to the general public”).

International Committee of the Red Cross 2019b.

International Committee of the Red Cross 2019d.

Other recent examples include Iran, where in 2016 the ICRC gathered 500 Islamic scholars, representatives of other faiths, and IHL experts from over 20 countries to discuss “humanitarian values common to world religions; the protection due to civilians, including patients and medical workers; the plight of missing persons and their families; proper human remains management; and environmental conservation and management”. International Committee of the Red Cross 2017, p 466. For similar examples in Mali, p 160; in Niger, p 173; in Uganda, p 209; in Burkina Faso, p 214; in Tunisia, p 248; in Afghanistan, p 317; in Bangladesh, p 323; in Pakistan, p 340; in Indonesia, p 357; in Jordan, p 485.

Geneva Call 2014.

Ibid.

Ibid.

Geneva Call 2019.

Ibid.

Ibid.

Tyler 2006.

Chayes and Chayes 1995.

Franck 1988.

Koh 1997; Goodman and Jinks 2013.

Franck 1988.

Ibid.

Merry 2006.

Koh 1997; Goodman and Jinks 2013.

International Committee of the Red Cross 2018.

Cismas 2017.