Lawfare Daily: The State of IHL

[Intro]

Stuart Casey-Maslen: We are seeing a huge increase in the use of armed drones by states, but also by non-state actors. And again, these weapons give the party to the conflict, the possibility to be precise, to actually target, to minimize civilian arm. Instead, what are we seeing? We're seeing their use by the Russians in Kherson province to deliberately target civilians.

Loren Voss: It is the Lawfare Podcast. I'm Loren Voss, public service fellow at Lawfare with Stuart Casey-Maslen, the head of the IHL in Focus Project at the Geneva Academy of International Humanitarian Law and Human Rights, and a visiting professor at the University of Johannesburg.

Stuart Casey-Maslen: It's still okay to drop gravity ordinance from 45,000 feet, it's still okay to fire custom missions by artillery from 50 kilometers away into a populated area.

That cannot be right.

So looking at that picture, I think we need to look at the rules, or particularly the types of weapons that are permissible in a populated area.

Loren Voss: Today we're talking about the status of international humanitarian law. The rules based in international order and international law in general appear to be under attack from multiple fronts.

IHL, on the other hand, has arguably been under attack for years, with significant violations occurring with relative impunity. So what's the current status of IHL? Well, most may use one or two conflicts as an example.

The Geneva Academy has created a massive report covering July 2024 to the end of 2025 and covers the major armed conflicts around the world. Stuart, the head of the project is here today to talk to us about what they found and what it means for the status of IHL.

[Main Episode]

So, Stuart, let's jump right in. Can you start by just explaining to us why the Geneva Academy puts out this report?

Stuart Casey-Maslen: I mean, I think the answer is very simply because nobody else was doing it, and it's a huge gap in terms of compliance.

Obviously, the International Committee of the Red Cross, the ICRC, has a lot of information on violations, but they're bound by their rules of confidentiality and they couldn't possibly put out a report of this nature and identify the perpetrators.

Likewise, the UN does some important work in particular conflicts through its commissions of inquiry through the Secretary General's best offices and so on, but they are also subject to pressures from governments.

I guess the advantage that we have as an academic institution is that where we have the evidence, we're able to say it, even though that might be uncomfortable reading for certain governments.

Loren Voss: Yeah, that's really helpful. I mean, I feel like this fills a gap that no one else is able to do right now.

So one of the big conclusions coming out of this most recent report is that there's a threat to IHL that is not yet existential, but close to breaking point. That sounds very scary. So can you tell us what that means?

I mean, is this threat worse than it's been in previous years?

Stuart Casey-Maslen: I mean, I think the first thing to say is there was never a golden age. There was never a point where IHL was perfectly respected and we will be naive and disingenuous to suggest that there was, but I think there is something different, and I think we look back over the last 20 or so years and we see this degeneration, we see violations, serious violations almost becoming accepted, almost being identified as the new normal.

Of course, over the last 18 months, we've had two particular horrors: one being Gaza, the other being Sudan, without understating the problem in other conflicts. But I think the level of civilian harm in those two conflicts in particular has shown us that we are on a very dangerous path.

And if we move elsewhere, we look at the situation in the Sahel, you have a variety of Islamist groups who are deliberately targeting civilians with a whole range of horrors. Again, not entirely new, but the extent to which this is occurring, I think that is extremely worrying.

Loren Voss: Yeah. It's interesting that you say, you know, over the last 20 years we've seen this degradation, but it seems like it's accelerated as of recent.

So when you looked at all of these different conflicts, and I know there's been more than one of this report, can you talk to me about some of the trends you've seen across conflicts?

You know, what really stuck out at you? Was anything surprising?

Stuart Casey-Maslen: I'm not sure surprising, shocking for certain, and shocking because technology has advanced to the extent that if we so wished we could make attacks far more precise than in the past. In fact, the number of violations that—the civilian harm should be plunging because we have the ability to deliver munitions onto their targets in a way we simply didn't have during the Vietnam War, for example, or during the war in Chechnya, even.

We have the ability to be far more precise in our targeting, but we choose not to do it.

In terms of trends, I guess there are two that stick out. One is the extent of sexual violence. Again, not a new phenomenon, I'm not suggesting it is, but the situation in Sudan in particular, gang rapes in the street, even seasoned watchers of the horrors in Sudan, going back to the 2005 genocide, have said this is something new. That means that we are failing in our duty to protect these people.

And the second issue I would say is drones. We are seeing, ever since the Armenia-Azerbaijan conflict, and of course very much in Ukraine, we are seeing a huge increase in the use of armed drones by states, but also by non-state actors.

And again, these weapons give the party to the conflict, the possibility to be precise, to actually target, to minimize civilian arm. Instead, what are we seeing? We're seeing their use by the Russians in Kherson province to deliberately target civilians.

So a means of warfare that should be preserving civilian life is being dedicated to its destruction.

Loren Voss: Yeah, I, this is, yeah, really depressing to talk about, but I feel like it's important for us to talk about it, especially when you say that, you know, we're failing in our duty to protect people.

One of the other things that you just mentioned was the technology piece, and specifically the use of drones, and so, I'm wondering if you can talk about, you know, the proliferation of drones and this other advanced technology specifically to non-state actors. You know, is that changing what we're seeing on the ground in compliance with IHL?

Stuart Casey-Maslen: It's certainly changing what we're seeing on the ground. And there I would say the picture's a little bit more mixed.

You've got use by certain actors, whether it's Islamic State in Somalia, whether it's the drug cartels in Colombia. You are using it sometimes to target civilians and sometimes, in compliance with IHL, to target the enemy military forces. So there it's a bit more of a mixed bag. I guess the problem is, the broader that this technology propagates, the bigger the risks overall for civilians.

And a few years ago, the idea that a non-state actor would have an armed drone was very much the exception. It is swiftly becoming the rule. It's cheap, it's easy for them. They attach a munition to a cheap quadcopter and so on, and it can be effective. Whether that's used for lawful purposes or to violate, IHL is obviously down to the individual perpetrator, but for sure this technology is going to be used more and more.

The next step will be full autonomy, because you can still interrupt the signal from the operator to the drone, which is what they've done to a variegate extent in Ukraine, both by the Ukrainian forces and by the Russian forces.

So where does that inexorably lead? That leads to fully autonomous weapons, and anyone who believes that we are suddenly gonna ban fully autonomous weapons, I'm afraid is not living in the real world.

Loren Voss: Yeah. So if I can follow up with that with the ability to hack or affect the data link of these drones, making them fully autonomous—

From an IHL perspective, you know, what issues does that raise? Does that raise additional concerns?

Stuart Casey-Maslen: It certainly raises additional concerns. It does not mean that per se they will be unlawful, but of course when you are leaving it to the algorithm can't take a surrender.

The algorithm can't decide whether a civilian is directly participating in hostilities or not. They just don't have that ability. That's a human decision. So it is instinctively dangerous. Whether it will lead to greater civilian casualties, we will, hopefully not, sadly, but we will find out.

Loren Voss: Yeah. It just makes it so critical that you think about like the development of these new weapon systems, especially autonomous ones.

You know, what the development rules will be, what will be the oversight? How will you track usage?

Stuart Casey-Maslen: That's a really important point, because again, this is our decision. We, humans, are the ones that are setting the algorithm, are programming these weapons. We could program them to be even more protective of human life, of civilian life than IHL requires. That is a decision that we could take.

The risk, of course, is that we give them free reign, and when they're over an area, a populated area, anyone they see they're entitled to attack. And that, of course is going to lead to a massive increase in serious violations against civilians.

Loren Voss: Yeah, I imagine what you're seeing right now is probably somewhere in the middle, but without access to the algorithms, we, you know, we may not even know what the rules are for these drones.

Stuart Casey-Maslen: That's true. And the ultimate—it's so stupid if you just take it from a military perspective.

Just targeting civilians is not gonna win you the conflict. You want to eliminate the enemy. That's what your aim is. So focus on the enemy. Make sure that you are not harming civilians, that you are not laying yourself open to a charge of a war crime.

Unfortunately, we have seen in a number of conflicts and the obvious one being Russia's behavior in Ukraine, a party to a conflict that does not believe in the preservation of human life.

Loren Voss: It just makes me think of the conversations that have been going on. The U.S. would call it civilian harm mitigation, NATO and Europe tended to focus on the broader, like protection of civilians—but the fact that it's not just about legal compliance, but from a strategic perspective, being more protective of civilians is actually a better outcome for your conflict.

And it seems like this is one of those places where, you know, you would hope you would see that with the development of this new technology, but it doesn't seem like we're seeing that in cases of all actors. And we see some actors, particularly using this new technology, to potentially be more accurate and precise at targeting civilians.

Stuart Casey-Maslen: That's absolutely right and if we can obviously reinforce many of the horrors that we describe in the report, but we also give credit where credit is due and the Ukrainians have not responded in kind. There have been some violations that we detail in the report, but they pale into insignificance when you compare to the Russian conduct and their violations of the fundamental rules of IHL.

So we can see it is perfectly possible to fight a war and comply with IHL. Indeed, it is to your advantage to do so, even though the evidence in practice might tend to suggest the contrary.

Loren Voss: Yeah. So I'd like to ask you a bit more about Ukraine. You know, one of the things your report found was a significant increase in civilian casualties in Ukraine from previous years.

So what has changed on the ground in tactics, why that huge increase?

Stuart Casey-Maslen: So the Russians have been using, in particular, missile attacks. On the one hand, as everyone knows, they have been focusing on the energy infrastructure. Those are either civilian objects or the impact is disproportionate, but they have also been deliberately targeting civilian areas.

I presume, in the hope that somehow this will force Ukraine to give in, to sue for peace, there is no evidence that works. We tried that in the Second World War, the bombing of German cities. The Germans tried it against us. That doesn't work. All it does is reinforce the fact that you need to fight on, because that's the kind of fate that awaits you.

And the Ukrainians know what would happen if they were to surrender to the Russian forces. They know what fate awaits them. So it's a very shortsighted, unfortunately, it's a shortsighted policy that is counted in blood.

Loren Voss: That makes me wonder at a bigger picture then, not just about Ukraine, but worldwide with these conflicts you've been researching—

What's your biggest concerns about IHL enforcement and accountability? What is your worries going forward as we see all of these violations occurring?

Stuart Casey-Maslen: If ever we needed international criminal law to support the compliance and respect of international humanitarian law, it's now, and this is the very time that funding is under pressure, that there are even sanctions imposed by the U.S. against the judges at the International Criminal Court.

That is not how we increase compliance with IHL. We need funding. We need political support for the human rights mechanisms. We are here in Geneva, just down the road, you have the Human Rights Council, which sets up important accountability mechanisms. These are critical for the long-term. They don't transform the situation in, you know, it doesn't make it all right, but taking them away, undermining them most certainly makes the situation worse.

Loren Voss: Yeah I feel like there has been quite a lot of news recently about some of those attacks on the International Criminal Court and other enforcement mechanisms.

So one thing that your report also does though, is it recommends that there should be new treaty rules, right? Stating that these new treaty rules are necessary to deal with specific types of new weapons.

And so I'm curious, as we talk about, you know, enforcement and accountability of IHL. You know, why did you find that the current treaty rules are not sufficient to deal with the conflicts of today?

Stuart Casey-Maslen: I think there are a couple of issues. Firstly, it's important to say that the fundamental rules governing the conduct of hostilities, the fighting, the use of weapons were drafted in the 1970s.

That was a different world in 1977 when the Additional Protocol I was adopted. Since then, we have precision guided munitions, but IHL still does not require at least overpopulated areas, that we use precision guided munitions. It is still okay to drop gravity ordinance from 45,000 feet. It's still okay to fire cluster missions by artillery from 50 kilometers away into a populated area.

That cannot be right.

So looking at that picture, I think we need to look at the rules, or particularly, the types of weapons that are permissible in a populated area. We also, I would say some of it's not new, some of it's old.

We had the problem of white phosphorus being used. We have the problem of incendiary weapons, that's napalm and thermite and whatever, that are still not outlawed by customary law. Those kind of things, states could agree to relegate to the dust bin of history, if I can use a bit of a cliché, and then focus on the weapons that are lawful and use them in a discriminate manner, it is perfectly possible to do that.

Loren Voss: If I can ask on that, I mean, there was a political declaration on explosive weapons in populated areas, that a number of countries signed a couple years ago. Do you find political declarations insufficient to meet the need that you're talking about here?

Stuart Casey-Maslen: I mean something like a soft law instrument like the explosive weapons declaration, I think is a helpful start. I guess my concern is there is no specific weapon that is mentioned.

For example, multiple barrel rocket launches are known for being, notorious for being inaccurate when fired from dozens of kilometers away. Why are they not mentioned in the declaration? Why are states not saying you cannot use those into a populated area? That would be a very simple statement and that would save lives.

We also have weakness around—we obviously have the treaty banning anti-personnel mines. Sadly, a few European states, as you know, have withdrawn from that, most recently Poland last Friday. So there's that issue.

But what about anti-vehicle mines? Because they don't discriminate between a school bus or a tank. Can we not increase, I'm not suggesting ban, but can we not increase the regulation so that there are least deactivation mechanisms?—Which means that these things are not killing people decades or years after they were laid.

Loren Voss: How feasible do you think it is to develop new treaty rules? Or do you think, you know, it might be more feasible if it's narrow to specific weapons or weapon classes? Or do you think this is just an uphill battle in the current environment?

Stuart Casey-Maslen: I mean, I know people are pessimistic because the world is in a pretty bad state in terms of armed conflict and observance with IHL.

But if we look back in history, we see occasions where the world came very close to annihilation. The Cuban Missile Crisis, for example, was followed by the Partial Test Ban Treaty and then the Nuclear Non-Proliferation Treaty. In our darkest hour when we almost eliminated humankind, we came up with new treaty rules. And that was at the height of the Cold War.

So yes, we have huge problems, but the only way we find out is if we try, and if we say, oh, well, it's not a good time—

It's never a good time, but it is always a good time to try.

Loren Voss: I like that optimistic note.

Stuart Casey-Maslen: We are now doing this, these reports on an annual calendar year basis, but we don't wait for the end of the year.

So we have our website called War Watch, as the name suggests, WarWatch.ch, which is updated on an ongoing basis. And we recently uploaded the report on Venezuela. We reported on Haiti late last year, and we're starting to work on Mexico at the moment.

Loren Voss: That's great. I'm happy to hear that this is continuing on and that we'll be able to continue to use this as a reference.

I mean, I've seen a number of news stories where people who are interviewed that are leaders on this topic reference the report and what came out of it. So I think it'll be a very incredibly useful resource going forward.

Stuart Casey-Maslen: And we want people to use this report, to read this report, and to comment on this report and hope that we can contribute to at least steadying the ship.

I won't suggest back to a golden age.

Loren Voss: The golden age that never existed, according to you.

Stuart Casey-Maslen: The golden age that never existed. Yeah, I don't—I'd settle for bronze, frankly, and we're a long way from that.

Loren Voss: Okay. Well, I'm happy that there's people like you working on these issues, though that I think helps us have some optimism for the future.

So we'll leave it there today. Thank you, Stuart, for joining the Lawfare Podcast today.

Stuart Casey-Maslen: Thanks very much for having me.

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