Exploring the Role of Religious Actors in Generating Respect for the Laws of War: A Common Article 1 Perspective

Abstract

In addition to religious personnel, who are directly involved in armed conflict, religious actors, as key actors in our community, have a significant role in respecting and ensuring respect for the laws of war. They are, both in and outside conflict, powerful agents for promoting international humanitarian law awareness and compliance, and ultimately, they can contribute to conditions that ensure greater respect for international humanitarian law. By virtue of their positions, they may have a direct opportunity to influence the positive or negative behaviour of members of the armed forces in their compliance of IHL; communicate directly with those affected by conflict; or be present within the diaspora of a community who are directly affected by the conflict. Other religious actors, spatially and temporally removed from the conflict, will have a role in the broader community conversation around ensuring respect for the law in armed conflict, without having specific linkages to any particular conflict. Through these different roles, religious actors have great leverage to use their influence for humanitarian ends. This role must be both encouraged by, and facilitated by, the State. In this way religious personnel, and religious actors more broadly, can contribute to reducing the humanitarian impacts of the global crisis of armed conflict.

1. Introduction

In the last decade, attention has refocused on the first provision of the Geneva Conventions of 1949, in part because of the International Committee of the Red Cross’s project to update the Commentaries to the 1949 Conventions (ICRC 2016a) . This provision is commonly known as Common Article 1. It is the obligation to respect and to ensure respect, in all circumstances for international humanitarian law (IHL). While the provision has been the subject of some contention over the years, particularly due to interpretive ambiguity and a lack of detail about its practical application (see Massingham and McConnachie 2020a), it is starting to live up to the more supportive descriptions of it, including, that it has evolved from a ‘tiny seed’ into a ‘ripening fruit’ (Kalshoven 1999: 3).¹ Certainly, Common Article 1 is an obligation agreed to by States and directed specifically at States. It is therefore, quite clearly, an obligation of States Parties. That is, they are the actors responsible for its realization. However, as Higgins observed in 1910:

[t]he apostles of the propaganda of International Law must of necessity be statesmen [sic] and lawyers, but all classes of the community in every nation, journalists, clergy, merchants and artisans, must co-operate, for there is need for a fuller knowledge of the existing rules of law so that their value may be better appreciated (1910: 41).

Unsurprisingly, there has been growing commentary on the role of various actors in meeting the obligation under Common Article 1. Key actors in our community have a role to play in raising awareness of IHL, promoting IHL compliance and ultimately contributing to conditions that ensure greater respect for IHL. This article aims to examine what the Common Article 1 obligation looks like in practice by examining States vis-a-vis religious personnel² and religious actors³ and their role in respecting and ensuring respect for IHL. As influencers in conflict, either promoting peace or inciting violence, Sandal argues that religious actors cannot be treated as ‘ordinary members of civil society’ (Sandal 2017: 2). This article explores the different influences that these actors have in various parts of society and how they can take IHL into account.

There are opposing arguments regarding the historically strong links between religion and international law, and its modern significance. One argument states that ‘religious origins of international law should be acknowledged’, whereas the other argues there is a ‘necessity for international law to remain secular, as its crystallization into a separate discipline resulted in its emancipation from religion’ (Cismas 2014: 18). Inherent in both arguments is the acknowledgement ‘that for the most part religious actors—not religion as a diffuse term—are active in international fora and they have a certain influence on international law’ (Cismas 2014: 49). Even in areas where the separation between religious institutions and the State is clear, it does not in any way equate to the derogation of religion or a religious leader’s influence in the way individuals live their life. It is those religious actors and their active role in the international community that are the subject of this work.

The principal argument in this article is that there is a significant and under-utilized role that religious actors (including religious personnel) can play in respecting and ensuring respect for IHL. Their role is ultimately linked to Common Article 1 as it is one that must be both encouraged and facilitated by the State. In this way religious actors can contribute to reducing the humanitarian impacts of the global crisis of armed conflict. Indirectly imposing the obligation on religious actors is not an easy task but that cannot be the excuse for failing to develop a more positive narrative around how ensuring respect for IHL can be achieved. Ultimately States and all actors must work together to build this narrative.

This article begins by outlining who are religious personnel and religious actors and what are the protections afforded to them under the Geneva Conventions. It then discusses the meaning of Common Article 1 and what giving effect to it might mean in times of armed conflict. The analysis then explores the steps States can take to realize their obligation to ensure respect for IHL by engaging religious personnel, and religious actors more broadly, and consequently the approach the latter two groups can adopt.

2. The Geneva Conventions afford specific status and consequently rights and obligations to religious personnel

Religious personnel are a category of persons who are specifically referred to, and protected, in times of armed conflict. Indeed, as Cismas observes, IHL ‘deals with the manifestation of religion in a rich and detailed manner [responding] to the continued importance that individuals and communities attach to religion in times of war’ (2014: 40). In the earliest of the Geneva Conventions, Article 2 of the 1864 Convention spoke of the ‘benefit’ of ‘neutrality’ being afforded to ‘chaplains, when on duty’ and consequently, in Article 1, they are to be ‘recognized as neutral, and as such, protected and respected by the belligerents’. This wording morphed into ‘be respected and protected under all circumstances’ in the subsequent iterations of the Conventions (for example the first Geneva Convention (First GC: Article 9).

However, this protected status has always been articulated essentially as an add-on to the protections for medical personnel included in the Conventions. In particular, religious personnel are mentioned in many of the same provisions as medical personnel—and, as the ICRC observes, ‘State practice generally indicates that religious personnel enjoy the same privileges as permanent medical personnel’ (CIHL Rules: rule 27). For example, Article 24 of the First Geneva Convention provides that ‘chaplains attached to the armed forces’ are to be ‘respected and protected in all circumstances’. The use of the language ‘chaplains’ has been acknowledged as ‘dated’, being ‘but one example of religious personnel’ (ICRC 2016b: [1967]). The phrase refers to ‘all religious personnel attached to the armed forces’, that is religious personnel exclusively assigned to religious duties during an armed conflict (ICRC 2016b: [1967]; CIHL Rules: rule 27). Pursuant to Article 28 of the first Geneva Convention, they can only be retained to attend to the ‘spiritual needs’ of prisoners of war and are not deemed to be prisoners of war themselves (although they shall at least benefit from the provisions applicable to prisoners of war). Religious personnel can lose their protection under IHL if they are found to have committed acts deemed harmful to the enemy, and those acts are ‘outside their humanitarian function’ (CIHL Rules: rule 27). By way of example of the incorporation of this loss of protection into domestic structures, the Australian Defence Forces’ Law of Armed Conflict Manual states that ‘religious personnel who participate directly in combat operations lose their protected status’ (Australian Defence Force 2006: section 5.24). They will not lose their protection however if they have been equipped by the armed forces of their State with light individual weapons, and if they use the weapon in their own self-defence or in the defence of the captured, wounded, sick or shipwrecked who are in their care (CIHL Rules, rule 25).

The Geneva Conventions do not provide any criteria in determining who is characterized or qualifies as ‘religious personnel’. The High Contracting Party has discretion to designate personnel under the category as it sees fit. Meaning the term ‘religious’ does not automatically presuppose the generally universal understanding of the word, instead a Party can appoint ‘humanist, non-confessional counsellors’ as ‘religious personnel’ enjoying the protection under Article 24 of the First Convention. The protections afforded to religious personnel in armed conflict are therefore broad. Further, the status of religious personnel is not limited to religious personnel of State armed forces in times of international armed conflict. In times of non-international armed conflicts, religious personnel are also protected in the same way (CIHL Rules: rule 27). This could include religious personnel of a non-State actor. Both enjoy protections under IHL therefore both ought to be actively operating and influencing their followers in their respect of IHL during an armed conflict.

Where religious actors are mentioned not in conjunction with medical personnel, they have the status of civilians. The focus is principally on specific obligations of the Occupying Power. These obligations concern the protection of the status quo in the society under occupation. That is, ministers of religions are to be permitted by an Occupying Power to give ‘spiritual assistance to the members of their religious communities’ (Fourth GC: Article 58). Also, ‘[m]inisters of religion who are interned shall be allowed to minister freely to the members of their community’ (Fourth GC: Article 93). Further, such ministers have additional rights in relation to correspondence and to visiting internees in hospitals and other internment facilities (Fourth GC: Article 93). Subject to security exemptions, detaining powers are required to afford ‘representatives of religious organisations … all facilities for visiting the protected persons, for distributing relief supplies and material from any sources, intended for educational, recreational, or religious purposes’ (Fourth GC: Article 142).

Although not pertaining to the individual religious personnel themselves, the protection of religion by the legal framework is also noteworthy. The protection more broadly of the notion of freedom of religion is embedded in the Conventions with non-discrimination on the bases of religion as a key principle of the Conventions (GCs 1949: Common Article 3). Additionally, places of worship are afforded special protections by the laws of war (Additional Protocol I, Article 53; CIHL Rules, rule 40). Even prior to the establishment of the Geneva Conventions, religious leaders and establishments were enjoying comparable protections. For example, as noted by Lunze, the ‘first caliph Abu Bakr is said to have told his army that they would encounter pious people who lived in monasteries to serve God in seclusion and would have given orders to leave them in peace, not to kill them and not to destroy their monasteries’ (Lunze 2004: 73).

The status, protection, rights, and obligations that are given to religious personnel in these laws make them a worthy group for consideration when it comes to asking the following question: how can we better respect and ensure respect for the laws of war? This is of particular importance as religious leaders are already providing commentary and interpretations of the laws of war which have had a bearing on compliance and on humanitarian norms generally (Cismas and Heffes 2019: 137).

3. Common Article 1 to the Geneva Conventions requires States to take actions to respect and ensure respect for international humanitarian law

Article 1 Common to the Four Geneva Conventions of August 1949, and Additional Protocols I and III thereto, articulates the obligation to ensure respect for IHL. These universally accepted Conventions, and the widely accepted Protocol I (ICRC 2020), set out the rules applicable during times of armed conflict. The rules seek to minimize suffering, rather than eliminate it. They reflect an understanding of the inevitability of warfare and the realities of it. The provisions protect those who are not or who are no longer taking part in the hostilities from attack, and afford them medical treatment and respect for their dignity.

Significantly for this discussion, Common Article 1 requires that ‘[t]he High Contracting Parties undertake to respect and ensure respect’ ‘in all circumstances’. Customary international law further establishes that States have an obligation to respect and ensure respect for IHL in both international and non-international armed conflicts, regardless of the status of their signature and/or ratification of particular treaties (CIHL Rules: rule 139).

The meaning of this legal obligation has been the subject of particular attention in recent years within the context of the 2016 publication of the International Committee of the Red Cross’s updated Commentary to the First Geneva Convention. The Commentary has been the catalyst for discussion and debate (Boutruche and Sassòli 2016; Massingham and McConnachie 2020b). The legal provision has been described as ‘being beset by uncertainty’ (Dormann and Serralvo 2014: 709) and ‘highly problematic’ (Focarelli 2010: 171); as representing ‘the nucleus for a system of collective responsibility’ (Boisson de Chazournes and Condorelli 2000: 68), as well as either ‘redundant’ or having ‘introduced a new concept into international law’ (Focarelli 2010: 132).

The Geneva Conventions themselves mention a number of measures that go to the obligation to respect the Conventions and their Additional Protocols and which States Parties are required to implement.⁴ Additionally, there are obligations for States that specifically go beyond their sovereign territory, to ensure that their armed forces comply with IHL when abroad (Prosecutor v. Dusko Tadic) and that legal advisors of the armed forces are available to commanders in the field (Additional Protocol I: Article 82; Prosecutor v. Dusko Tadic (Judgment) 1999). The obligation under Common Article 1 also includes that States influence those under its control (which would include religious personnel attached to its armed forces) to respect IHL at all times during an armed conflict.

That a State is required to respect IHL itself, and to ensure that those within its jurisdiction also do so, is relatively uncontroversial. This obligation is applicable to all States, irrespective of whether they are involved directly in an armed conflict or not. The Common Article 1 obligation applies equally in times of peace as well as in times of war. Although States agree that they must respect IHL and ensure that those within its jurisdictions do so as well (Boutruche and Sassòli 2016: 6; ICRC 2016b: [120], [150–52]; Massingham and McConnachie 2020b: 2), what exactly this looks like in any given situation is not something which can be articulated unequivocally or illustrated in a practical ‘to do’ list. This consequently is what fuels some of the controversy.

There is also debate as to whether the ‘respect and ensure respect’ obligation includes an external-facing element obliging the State to influence the IHL compliance of third States who have a relationship with a party involved in the armed conflict. Specifically, that the third party actively takes steps to encourage IHL compliance of the State party to the conflict (Massingham and McConnachie 2020a; Pictet 1952: 26). In this debate, the United States is on record as not supporting what they describe as an ‘expansive interpretation of Common Article 1’ (Egan 2016: 12; Massingham and McConnachie 2020b: 6), which would include the third State component. The provision has also been interpreted as requiring States to take steps to ensure respect for IHL by non-State actors (Dormann and Serralvo 2014: 723; ICRC 2016b: [119]; Sassòli 2002: 421). This dimension of the obligation is particularly relevant for the purpose of this discussion regarding the role of States within their own jurisdiction and whether the Common Article 1 obligation extends to the State encouraging religious non-State actors (particularly) to actively influence their community in respecting and ensuring respect for IHL.

As noted earlier, it is not possible to make a comprehensive list of what giving effect to the obligation to respect and ensure respect for IHL would look like in every context and in respect to the range of actors involved. This article’s exploration of the role of religious actors within the Common Article 1 obligation is just one example of the context-specificity required by an analysis. As Durham noted, meeting the obligation to respect and ensure respect is

a process that requires involvement from a range of areas within government and society including town planners, educational institutions, hospitals, the press, civil society, Red Cross and Red Crescent societies, weapons manufacturers, civil defence, shipping and aircraft authorities and environmental advisors (Durham 2009: 180).

Further, McCosker notes that implementing the steps to be taken by a State to give effect to Common Article 1 obligations ‘would require careful design, to facilitate good coordination between legal, policy and diplomacy experts’ (McCosker 2020: 36), as well as a government being ‘willing and able to dedicate more of its time and resources to promoting respect for [IHL]’ (McCosker 2020: 37).

As much as it is clear that the legal obligation provided for in Common Article 1 is an obligation on States and requires States to take certain actions, States are merely one of the actors in the international community. While they are the principal subjects of the international community since the Peace of Westphalia (Croxton 1999: 569), States are not the only actors. And certainly not the only actors with influence within the international community. In recent years, legal instruments, normative commentary, and scholarly work have advanced this understanding of the international system. In many cases, particularly with respect to religious personnel, and as discussed in this article, the influence of the actions of persons involved in an armed conflict (State and non-State Armed Groups (NSAG)), specifically with respect to the Common Article 1 obligation, often comes from leaders/persons outside the immediate State apparatus.

The relatively recent African Union Convention for the Protection and Assistance of Internally Displaced Persons (IDPs), which was concluded in Kampala, Uganda, in 2009 (the Kampala Convention) provides an example where the significance of non-State actors is clearly recognized. In outlining the first ever (Dieng 2017: 263–82) specific framework for legal protection for IDPs, the Kampala Convention is a pioneer in other respects: it includes provisions directed to a range of actors, beyond States. Although the latter bear the bulk of the obligations (see, for example, Articles 3, 4 and 5 in particular), international organizations and humanitarian agencies in Article 6, the African Union in Article 8, and members of armed groups in Article 7(4), are specifically addressed by the law.

Furthermore, that private actors also have a role to play in shaping compliance with international law is increasingly apparent. This is equally alluded to in the Kampala Convention with respect to development projects. While Article 10(2) places an obligation on States to ‘ensure that the stakeholders concerned will explore feasible alternatives’, the provision implies that companies need to have regard to international legal frameworks and the impact of their actions within and across different jurisdictions.

We note that similar discussions have happened in the context of international human rights law, including in times of armed conflict, which is discussed elsewhere in this special issue. Lessons can be taken from this progress specifically in the respect, protection and compliance dimensions of human rights treaties and the potential relationship or application to the respect and ensure respect obligation of Common Article 1. We acknowledge, however, that while undeniably informative, the legal framework and practical implementation of IHL are different, particularly with respect to the role of private actors and their role in IHL compliance. In the context of the relationship between private actors operating in times of, or in connection with armed conflict, Drummond observed that ‘there is a growing interest in better defining what responsibilities companies have’ (Drummond 2020: 63). Her work provides an excellent overview of what giving effect to Common Article 1 entails for States and private actors. Drummond proposes that a scoping exercise be conducted by States whereby they first ask ‘what activities are likely to give rise to a serious risk of interferences with or violation of IHL and … what general measures can be adopted to mitigate those risks’, and second, make relevant inquiries into the actors themselves (Drummond 2020: 69, 73).

Some actions that a State could take may have relevance for a range of private actors, whereas others will need to be specific for the industry, or even the actor itself (Drummond 2020: 71). Alternatively, some State measures may be general enough to be indirectly applicable to organizations or individuals within the State’s jurisdiction, for example weapons legislation, including restrictions on the illicit trade of weapons or regulating the lawful trade of weapons, or thresholds for ‘serious risk’ of violating IHL being lowered particularly with respect to certain industries or actions (Drummond 2020: 71). These and other factors raise the question: what does a State need to do to prevent a private actor from violating IHL (Massingham 2021)? Though, when dealing with religious actors, for reasons which are discussed below, perhaps the question is best rephrased as follows: what does a State need to do to support religious actors in the exercise of their duties in a way that ensures respect for IHL? This acknowledges the link between Common Article 1’s legal obligation on States and the reality that State actors are not the only players in the international community. Actors, particularly religious ones, are a ‘class of the community’ who have a significant influencing role in a society and ought to be encouraged and supported by the State in exercising that influence in compliance with international obligations.

4. The State has a specific role in ensuring respect for IHL vis à vis religious actors

Irrespective of jurisdictions, attempts to separate religion from the State have not generally been conclusive, in that there remains an ongoing link in some capacity between religion and the law in modern societies around the globe—albeit if they manifest themselves at different levels (formal/informal; State-wide/region-specific) and with different intensity. This separation may be unsuccessful due to legal and political systems being unable to provide a clear distinction between the role of the State and the influence of religion, or simply because the two are inherently interlinked societally. The International Institute for Democracy and Electoral Assistance observes that some States ‘give religious laws or institutions a privileged place in the legal–political system. Others declare the secularity of the State or seek to protect the neutrality of the State from any religious affiliation’ (Ahmed 2017: 3). Even in those jurisdictions where there is a clear separation between religion and State, this certainly does not mean there is no avenue for regulatory approaches of religious actors’ action.

To meet its obligations under Common Article 1 concerning religious actors, States have a number of regulatory controls at their disposal, of which three will be reviewed here: (i) legislative and administrative measures (specifically on registration, taxation, and sanctions), (ii) criminal law and enforcement measures, and (iii) policy and private/public dialogue initiatives. The Australian legal and political landscape has been used to demonstrate regulatory controls due to the authors undertanding of the system. In Australia, section 116 of the Australian Constitution provides that the Commonwealth must not legislate on religious matters. However, because of the federal nature of the Australian system, the effect of section 116 has been that while ‘governments are naturally reluctant to intervene in the internal affairs of the major denominations … there are areas where the interests of church and State overlap—and State regulation affecting religious organisations is quite common’ (Hogan 1981: 217). Further, although religious groups are clearly not treated in the same way as individuals and corporations, they are not above the law. This finds expression, for example, in specific registration requirements for religious organizations, including that they must be a registered charity within the Australian Charities and Not-for profits Commission; that they must prove they are ‘advancing religion’ as part of their principal operation; that they must participate in the Australian National Redress Scheme and so on (Australian Charities and Not-for-profits Commission 2021). It is not necessarily possible to say that the State must do any particular activities in relation to ensuring respect for IHL by religious groups, or that religious groups must therefore do any particular activities in order to give effect to this. However, it is clear that States can legislate in ways that have an impact on the conduct of religious groups. As discussed by Cismas in the context of international human rights law, the principle of religious autonomy, which derives from the ‘right of individuals to collectively manifest religion’ has been relied upon to diminish the effect of State intervention. However, jurisprudence has established that this principle has limitations (Cismas 2014: 86). Indeed, the European Court of Human Rights case law makes it clear that States may have positive obligations (or obligations to protect and fulfil) that require them to limit religious autonomy so as to ensure the rights of others, public safety, order, health, or to uphold morals. This could be extended to the obligation to ensure compliance with IHL by the State and all members within its jurisdiction.

Religious organizations receive considerable benefits from the State which flow from their status as both religious and charitable organizations. Exemptions from taxations are a key example. Under Australian law, the Charities Act 2013 (Cth), religious organizations can register with the Australian Charities and Not-for-profits Commission (ACNC) under the subtype ‘advancing religion’ and claim a range of taxation concessions (Australian Taxation Office 2022a, 2022b). In order to get these taxation benefits, there are regulatory requirements that need to be met. Of relevance to a discussion about IHL it is noted that, under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act) sections 25–5 (Entitlement to registration), in the ACNC registration process there is a requirement that a charity declares that it is not ‘engaging in, or supporting, terrorist or other criminal activities’. This includes, for instance, sending funds outside Australia which could be framed as ‘contributing to terrorist, or other criminal, activities’ (ACNC Act: 50–5). There are also cases in other jurisdictions that may be of relevance for this study. For example, IHL was cited as justifying concerns raised in conjunction with United States taxation exemptions which were given to charities found to be funding Israeli organizations involved in Israeli settlements in East Jerusalem. In July 2001, seven members of the Congress of the United States House of Representatives wrote to the Secretary of Treasury concerned not only about the US charitable law implications but the ‘violation of the United States government’s international law obligations to not explicitly or implicitly recognize violations of international humanitarian law or peremptory norms’ (Tlaib et al. 2021). While the charitable organization in question, The Central Fund of Israel, is not a religious organization, the role of the State in respecting IHL through closely monitoring its taxation exemptions is clear and can be applied to religious organizations. Similarly, the question of support for the Canadian Zionist Cultural Association, a Toronto based registered charity, for the Israeli military, came up in 2021 (Engler 2021).

Additionally, policy approaches can serve the respect for IHL objectives. Australian Red Cross and RMIT University developed a project looking at corporate best practice in IHL (Australian Red Cross and RMIT University. 2021). While not all of the indicators they identify would translate directly into the religious sector, the core ideas such as a ‘public commitment to’ and ‘positive action to promote’ IHL do. This project has been presented at ‘international business and human rights forums, academic symposia and private industry workshops facilitated by the Australian Government’ (RMIT 2022). This best practice approach is seen in other instruments, such as the Montreux Document concerning private military and security companies (ICRC 2009a). The Faith for Rights Framework has also embraced the opportunity to leverage ‘the spiritual and moral weight of religions and belief’ to reinforce the importance of universal human rights (OHCHR 2020). Particularly working with religious leaders to develop preventative strategies that can be applied in a local context. In this area, the OHCHR recognizes that religious actors are ‘powerful agents’ in effecting the rules during conflict situations (OHCHR 2020).

In December 2021, the Australian government passed the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021 (Cth), which allows for sanctions against perpetrators of ‘serious violations of international humanitarian law’ (Autonomous Sanctions Act 2011 (Cth): section 4(F); see further Australian Red Cross. 2021; ICRC 2021). While a number of other countries have similar laws, often known as Magnitsky laws (Groch and Galloway 2020),⁵ the Russia Sanctions Act 2022 (New Zealand) made headlines when passed in March 2022 (Corlett 2022). The Act, which specifically concerns ‘military actions’, allows New Zealand to sanction ‘individuals or entities that are responsible for, associated with, or involved in’ the illegal invasion of Ukraine and the ongoing violations of international law by the Russian Federation (Russia Sanctions Bill 2022 (NZ); New Zealand Foreign Affairs and Trade. 2019). The legislation was necessary because, while New Zealand law allowed for the imposition of sanctions included in UN Security Council resolutions, in the case of the Russian invasion of Ukraine no such UN Security Council resolution was passed. While none of these developments are related to religious actors specifically, they are examples of government actions to ensure respect for IHL vis à vis private actors. The United Kingdom has recently placed sanctions on the head of the Russian Orthodox Church, inter alia, due to his ‘prominent support of Russian military aggression in Ukraine’ (Foreign, Commonwealth and Development Office 2022).

Another obvious point of regulatory influence that States have in relation to all actors (not just religious ones) and ensuring respect for IHL is through their criminal law enforcement systems. States have obligations to investigate and, where appropriate, prosecute violations of IHL (First GC: Article 49; Second GC: Article 50; Third GC: Article 129; Fourth GC: Article 146; Additional Protocol I: Article 86). Although this obligation has been widely included within domestic legal frameworks, this has certainly not been universally implemented. Increasingly, States are taking a counter-terrorism domestic regulatory approach to deal with some of these crimes, and this would certainly satisfy at least part of the obligation. As Saul’s work notes, there are a number of reasons why States have used a counter-terrorism approach over the international criminal law approach when seeking to prosecute crimes that are within the scope of both—including the potential relative ease of prosecution and sentencing differences (Saul 2021: 159-166). Irrespective of which approach is taken, actions which violate IHL must be punished as part of the States’ obligation to respect and ensure respect for IHL, including where those actions are those of religious non-State actors. There has also been a move towards States pursuing initiatives beyond international criminal law enforcement actions in an effort to ensure that respect for IHL violations has gained momentum in the last few years.

We note that the examples given in this section—that States, through sanction regimes and policy initiatives, their registration of religious organizations, taxation systems, criminal law provisions and enforcement, must and can respect and ensure respect for IHL—are from common law and Anglo-American legal systems. In furthering the discussion about the role and contribution of States in respecting and ensuring respect for IHL in relation to private actors, and specifically religious non-State actors, it is important for scholars to reflect on what this obligation may look like in other legal systems and other jurisdictions. There will be, no doubt, many differences across the various legal systems, shaped by historical, societal, and political factors; yet the underlying idea that States can better respect and ensure respect for IHL by thinking about their relationship with religious actors is likely to be apparent. As Evan’s observes there is ‘good reason to develop a better understanding of the power of religion if humanitarian law is to prosper in many cultural contexts’ (Evans 2005: 1). Moreover, religious leaders often resemble other political elites in the way they act strategically, and according to several scholars, ‘religious leaders make use of extreme [political] rhetoric as a tool for ideologically outbidding opponents’ (Blaydes and Linzer 2012; Breslawski and Ives 2019).

5. Religious actors must also play a role in respecting and ensuring respect for IHL

Massingham has argued that while it is the State that bears the obligation to respect and ensure respect for IHL, private actors would be well advised to heed State efforts to influence actors within its sphere, and to implement specific measures or risk legal repercussions or commercial downturn (Massingham 2021). In the context of religious non-State actors specifically, this argument takes a slightly different shape.

What is evident from their status alongside medical personnel, in a number of provisions of the Geneva Conventions, is that religious personnel have a specific role in militaries and as part of non-State armed groups. Religious personnel who are serving in the State armed forces will be regarded as State actors playing a direct part in the conflict, whether in active combat or a support role. They therefore have a direct obligation to respect and ensure respect in both their actions and in the actions of others under their influence. Other religious actors who communicate directly with persons affected by a conflict will also have a close link. Religious actors outside the context of an armed conflict may still have direct links where they serve a diaspora of a community who is directly affected by the conflict, whereas others will have a role in the broader community conversation around ensuring respect in armed conflict, without having notably specific linkages to any particular conflict. Finally, as Freedman argued ‘[e]ven if religious leaders do not [directly] initiate the conflict, they may still play an important role during conflict and contribute to the likelihood of future conflicts’ (Freedman 2019: 2268).

The role of religious actors as influencers in times of armed conflict is one that has been discussed elsewhere. Cismas and Heffes have observed:

[n]ot only have they had an effect on the parties’ (non-)compliance with these same rules, but religious leaders’ roles have been publicly recognized in the internal decision-making processes of States and NSAGs (Cismas and Heffes 2019: 137).

Religious leaders have ‘in the past decades put forward interpretations of religion that advance respect for IHL, or, on the contrary, that come in direct conflict with IHL rules’ (Cismas and Heffes 2017). The role of religious leaders in this regard and their interaction with IHL and IHRL is discussed in more detail in Cismas’s article in this special issue. As Brudholm and Cushman put it: ‘[r]eligious communities, and institutions have been central to societies’ attempts to respond to massive and heinous violations of human rights’ (Brudholm and Cushman 2009: 7). Rush et al. note the value of religious leaders as ‘brokers’ in adapting ‘humanitarian norms to specific cultural settings’ with the result of providing ‘symbolic validation’ of the rules (Rush et al. 2020). Significant attention has also been placed on whether religion can help provide answers for humanitarian action. Those working in this space are exploring links between religion and the rules of armed conflict from a range of perspectives, in order to strengthen humanitarian actions under international law (Bello 1984; ICRC 2009b: 285; Cockayne 2002: 847; Aly 2014; and see ICRC 2021). The Generating Respect Project is built on the understanding that religious leaders are both ‘interpreters of religion’ and ‘influencers of parties’ compliance with, and conversely violation of, humanitarian norms in armed conflict’ (The Generating Respect Project. 2021). Cingranelli and Kalmick put it very clearly when they note that

[r]eligious leaders authoritatively interpret texts to influence the attitudes, values, beliefs, and behavior of followers. They establish rules determining who belongs to the organization and who does not, and they demand conformity to those rules. Through formal communications with members and through informal communications among members, organized religions transmit a wide variety of human rights-relevant messages to their followers including what behaviors are acceptable, how severely people should be punished when they engage in prohibited behavior, and how collective decisions should be made (Cingranelli and Kalmick 2019: 730).

Clearly there are a number of roles that religious actors/personnel play in communities, and the role of faith-based organizations as service providers is also an important one for many (Cismas and Heffes 2019: 131). Further, the linkage between the rules of war and religion is something that is important for members of non-State armed groups too. The letter to Human Rights Watch from Huthi Rebel forces, which Bangerter shares, specifically mentions IHL in communicating the rebel groups’ pledge to protect civilians and in their emphasis that ‘there is no conflict between IHL principles and their religion’ (Bangerter 2011: 360).

In exploring the notion of ensuring respect for IHL by States, Massingham and McConnachie identified that three common themes were recurring: (i) having one’s own house in order, (ii) building respect through legal and normative frameworks, and (iii) taking direct actions to ensure respect (Massingham and McConnachie 2020a: 267). It seems the way in which religious actors might approach IHL—from a civic duty perspective as well as, where applicable, a legal one—could be fairly similar to how a State should. Religious actors could (i) ensure they have their own house in order by looking to their own actions, engagement, and communications within the communities they serve; (ii) build respect through a supportive normative framework, by promoting IHL-sensitive messages (including in respect to humanitarian actors) to their group in their sermons, teachings, and the work they conduct in the broader community; and (iii) take direct action such as providing material and spiritual support and assistance for affected populations. Before concluding, three overarching points should be made about the role of religious actors and the laws of war. First, the use of language has a very important role here. Specifically, the words that religious leaders use in their engagement with their communities are important. Cismas observes, from considering narratives around the development of international law and the history of religion, that ‘religion does play a certain role in international law, and this is so, foremost, through interpretations put forward by religious actors’ (Cismas 2014: 25). This role in the narrative is particularly recognized in concerns about incitement of violence. For example, under the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes, released in 2017 by the UN Office on Genocide Prevention and the Responsibility to Protect, specific actions to prevent and counter incitement to violence are set out for religious leaders and actors. These include a range of actions directed at reacting to incitement, monitoring for incitement, and disseminating in such a way as to demonstrate support for those with different faiths (UN GP 2017: 7–17). As part of these actions, religious leaders can include IHL education and dissemination within their faith and community to encourage compliance by those persons involved in armed conflict or seeking to enter into an armed conflict, particularly in the name of their faith.

Second, there are many circumstances where religious leaders and humanitarian organizations are working together to understand and apply IHL as interpreted through a religious perspective. This is particularly true of groups who may reject IHL as a purely Western construct. Aly discusses the opportunity to ensure respect for IHL by engaging with similar rules that already exist within a religion (Aly 2014). The ICRC, for example, is working with religious scholars to highlight the linkages and similarities between IHL and Islamic law, stating already in 2006 that the organization’s aim is to ‘dispel existing misconceptions and find common ground for protecting human dignity in armed conflict’ (Aly 2014). The ICRC had recognized that religious leaders have the capacity to ignite tensions, and therefore sought to implement ways of cooperating with them in neutralising conflict. In 2007, Human Rights Watch started to use Islamic principles in framing its humanitarian law advocacy in an attempt to connect with followers of the Islamic faith (Human Rights Watch 2010). Finding commonalities in IHL and the religious or customary beliefs of the religious group, in order to influence or communicate, is not something new, but it is not applied as much as it should be in the dissemination of IHL. Seeking similarities in the law or actions of the religious group must be part of the presentation of IHL if we are looking to religious leaders to ensure respect for and compliance with IHL. This is not to say that IHL, as a set of rules, should change. Instead, this means that the interpretation of how the law applies could be better respected if it is understood through the lens of a particular religion. Cismas argued that religious leaders as interpreters often speak about IHL, their interpretation of the law ‘draws on a “special” legitimacy which demands obedience from their followers and may influence the parties’ compliance—or lack thereof—with IHL’ (Cismas et al. 2019: 5). The opportunity for States to work closely with religious leaders to interpret IHL is not simply a Western concept; it may serve to internalize IHL norms within local, religious, and cultural settings. The ICRC has advocated for this approach in ensuring respect for IHL by emphasizing the shared principles between IHL and Islamic Law, and other religions and other traditions of warfare. This is a particularly important strategy for engaging with State and non-State fighters in an armed conflict. As recently as 2020, the ICRC Project on Buddhism and IHL investigates the ability of Buddhist teachings and interpretations of the law, ‘on their own terms’, to regulate hostilities and reduce suffering during an armed conflict. Bruderlein had previously argued in this context that

[u]nderstanding the social and cultural nature of armed groups is undoubtedly the most important asset of protection strategies. If they are to persuade armed groups to recognise their obligations under international law, humanitarian organisations and the international community in general, must be in a position to appreciate their social and cultural environments. (Bruderlein 2000: 13).

Third, although the obligations of Common Article 1 are obligations held by the State, it is clear that it cannot act alone and in a vacuum, without the contributions of private actors. In particular, in rebutting any idea that it would be inappropriate to attribute any obligations in international law to individuals—when such obligations are primarily held by States, it is noted that individuals can be the subjects of the international legal system (McCorquodale 2003: 282). Indeed, individual criminal law specifically acknowledges this. That the individual plays a key role in international law is an idea that has been explored by Clapham (2010: 25–30). He asks,

is it not time to admit that, not only do individuals have international rights and criminal law obligations, but perhaps they also have civil law international obligations? This is admittedly a progressive idea. The International Law Commission, implicated in both stagnation through codification and progressively developing international law, has been quite cryptic about this idea but has left the door open for its promotion. To be clear I am suggesting that individuals may have a role to play with regard to respect for international law which goes beyond their international criminal law obligations. This could involve obligations which have not been criminalized, or simply mean that an act could give rise to simultaneous criminal and civil violations of international law (Clapham 2010: 30).

Clapham’s objective in putting this idea forward is to ‘help to build an international community which properly recognizes the role of the individual in international law’ (2010: 30). In any event, even without a specific legal obligation, perhaps the role of the religious actor in respecting and ensuring respect for IHL is one example where the individual in international law can be particularly powerful - drawing on the specific status with which the legal framework holds these actors in the Geneva Conventions, and the capacity for influence that they have.

6. Conclusion

As Durham rightly observes, implementing the Geneva Conventions requires significant expertise, resources, and commitment from the implementing State, and may involve assistance from the international community (Durham 2009: 180), including that which is rendered under Common Article 1. Religious personnel are key actors in our communities and therefore their role in providing support in the form of expertise, resources and assistance to States and the broader international community, should not be overlooked. Because of their special role in society, religious leaders, whether as individuals or institutions, can help build acceptance for IHL among their followers and within their communities. State religious personnel have clear obligations pursuant to IHL. As argued here, so to do all religious actors, even if only as part of the 'community' identified by Higgins back in 1910 (1910: 41). Religious actors have a significant role to play in ensuring respect for IHL by taking a range of actions grounded in the influence they have within our societies. Starting with ensuring they have their own house in order, by providing support through normative frameworks and, where applicable, taking direct actions to disseminate and encourage compliance of IHL within their faith, these actors can make a difference.. Exactly what this looks like in any given situation needs further exploration. It may indeed look different for different religious actors, in different contexts and given their differing levels of influence. This article provides just a few examples specific to a few contexts to begin this conversation.

Both State and non-State religious actors need to be encouraged, by the State, to use their capacities for influence towards ensuring respect for IHL. In this way, religious leaders can contribute greatly to reducing humanitarian impacts associated with armed conflict globally. This is not an easy task, but that is certainly no excuse for limiting the effort to develop a more positive narrative around how ensuring respect for IHL can be achieved. States and all actors must work together to build this narrative. Making that difference in support of respect for the laws of armed conflict is a worthy contribution and one that religious actors should understake and States have obligations to support.

Conflict of interests

None declared.

References

Footnotes