The Challenge of International Humanitarian Law in Middle Eastern Armed Conflict

Over the years, the Middle East region has been a victim of numerous armed conflicts that have violated international human rights and humanitarian law with violence stemming from the rise of non-state armed groups, proxy conflicts, authoritarian leaders and asymmetric warfare. The challenge is to relay and receive acknowledgement from states and parties that they are bound by the International Humanitarian Law during armed conflict. The International Committee of the Red Cross (ICRC) and other humanitarian organizations work within the region to advocate the International Humanitarian Law and Islamic law which in fact share similarities in aspects such as protecting civilians, aid workers, wounded combatants and journalist while providing aid due to the consequences of armed conflicts to the victims such as refugees, displaced persons, detainee, host communities and prisoners of war.

The International Law of Armed Conflict which is also known as the International Humanitarian Law (IHL) are established and agreed rules to limit the ramifications of armed conflict on all humanitarian bases. It is in fact a branch of international law that oversees and regulates the conduct of armed conflict globally. The key rationale for this enforcement of the IHL is to protect persons who are innocent civilians and persons who are not participating in hostilities to contain the conflict and violent forces away from civilians and critical infrastructure. The International Court of Justice (ICJ) have been adamant that the IHL does not cease regardless of the scale of warfare that occurs and is the lex specialis to human rights law.

With ongoing crisis in Syria, Yemen, Iraq, Sudan or Palestine, the severity of the violence throughout the Middle East armed conflicts is colossal which shines the spotlight onto the respect for adhering to international humanitarian law rules. Yet we see these rules not adhered to and the effect of such violent conflict crossing over to civilian territories, hospitals, schools, and living compounds.

Violations of the Humanitarian Law

The Middle East armed conflict is an ongoing crisis that has seen the ignorance of states, armed groups and combatants on the adherence of the international law of armed conflict. Armed conflict continues to ravage the population of millions in the Middle East region where civilians become victims to indiscriminate attacks, forced displacement, attacks on vital infrastructure and abusive ruling from armed groups, security forces and unaccountable militias. As with other regions, we can observe governments continuation of draconian methods to suppress and or repress the freedom of expression, association and peaceful assembly.

Despite the constant and protracted incompliance of the IHL in the region, Marco Sassòli, Professor of International Law at the University of Geneva has stated that the framework of IHL is competent for the contemporary armed conflicts found in the Middle East, adding that the main excuse that States imply to overtake the implementation of IHL rules is to deny the existence of an armed conflict all together.

The surge in the number of IDPs in the Middle East and North Africa region from 2011 to 2015 and onwards due to conflict and violence within the region caused mass internal movements and displacements of civilians. More than 90% of IDPs caused by conflict and violence are solely from the Middle East region with three countries highly prone being Syria (6.6 million), Yemen (3.6 million) and Iraq (1.2 million). This alarming numbers of IDPs from Middle Eastern countries by conflict and violence indicates that the international law of armed conflict in the region is not being utilized as effectively as possible. The worrying numbers also indicate that the IHL principle of protecting civilians and civilian infrastructure is not being adhered towards within the region.

Islamic Law and Humanitarian Law in the Region

With the Islam being the predominant bedrock in the roots of law making in the region, Islamic law have a huge influence in all aspects in the region including the role in preventing violations of humanitarian provisions. According to Professor Ahmed Al-Dawoody, Legal Adviser for Islamic Law and Jurisprudence at the ICRC, IHL and Islamic laws have very similar outlook and rules. When we see the violations on IHL we also see violations on Islamic law. Flawed application and research of modern Muslim scholars on Islamic laws, as well as the “state in the Muslim world no longer built on the judicial legacy of ancient Muslim Scholars but rather on the grounds of a Western legal system. This has created an academic vacuum that has allowed many individuals and extremists who are not experts on Islamic laws to use their own interpretations of Islam as the truth”.

Marco Sassoli, Professor of International Law University of Geneva states that “States generally do not favor the implementation of IHL based compliance mechanisms, with states from North Africa and Middle East in particular to be very reluctant.” He adds that most governments and some of the population in the Middle East are very firm with their state sovereignty which is driven by the constant threat from armed groups. Their obsession with sovereignty provides a challenge in supporting through humanitarian aid and assistance and gaining respect for the benefit of the population who live under the armed groups.

Under the 1949 Geneva Convention Common Article 1 proclaiming the international legal obligation of States to honor their treaty agreement in particular in respecting and ensuring respect for the present Convention in all circumstances. This provides an opportunity for individual states to lever their political will to enforce the IHL, especially if they are pressured by public opinion and civil society. Professor Sassoli adds “selectivity is the biggest cancer to the law”. Actions and support from international support and outside powers must avoid selectivity on which violations they choose to address due to political motives.

Moving Forward

In terms of the improving our understanding of the relationship between Islamic Law and IHL in the setting of armed conflict, Professor Al-Dawoody mentions the need to conduct more research on the topic of IHL and Islamic Law. Qualified scholars need to look into the humanitarian provisions of Islamic Law as created by early Muslim jurists to the wartime context in their era and translate into the contemporary armed conflict. Moving forward, there are key strategies to better promote the adherence towards IHL. Increasing humanitarian diplomacy with key stakeholders in multiple conflicts in the region, improvement in humanitarian efforts capacity to “shape the debate” in the humanitarian and political landscape, applying a multi- faceted approach and global network without compromising operational priority and gaining access to persons trapped in conflict and violence are some of the ways any party can utilize to gain a more holistic approach towards IHL.

But when we look into applying IHL into the realistic scenario, usually the real settings are not fit for the perfect implementation of IHL in warfare. This is a debate on the IHL expectations and requirements versus the reality of warfare. In the Middle East, as mentioned earlier, the conflict can be religious driven with multiple parties ranging from military to armed groups to counterterrorism groups. There is also deep seeded history between states and faction groups that have shaped the region for generations, meaning that the armed conflicts are complex with multiple factors tangled in between. The challenge will be to navigate through the entanglement without selectivity of IHL principles and the wide dissemination of the benefits of complying to IHL for the region.

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