An Cosantóir

www.military.ie THE DEFENCE FORCES MAGAZINE | 17 The reality is that armies are now fighting in a battle space that is everywhere and "tradi- tional conceptions of a distinct 'battlefield' of- ten seem rather obsolete in this constellation". In terms of territorial span, the spillover of conflicts into neighbouring countries, their geographical expanse, and their regionalisa- tion also appear to have become a distinctive feature of contemporary armed conflicts, as seen in the Middle East and West Africa. In the Sahel region, where Irish peacekeepers deploy, elusive, highly mobile armed groups fight each other as well as a number of govern- ments, affecting vulnerable populations. The ICRC has further recognised that on the non-state side, a myriad of fluid, multiplying and fragmenting armed groups poses a num- ber of risks to the civilian population. Adapting conventional targeting consis- tent with Geneva Conventions and protocols has not been without challenge, particularly against non-state actors in Afghanistan and Iraq. The principle of 'distinction' is relatively simple when it comes to obvious military assets, such as a weapon system, munitions factory, or barracks, but applying these rules becomes more fraught with respect to what some have deemed to be 'dual-use objects', such as transportation systems or energy sources (like oil fields). This is particularly so when fighting an organised groups like ISIL, who could gener- ate between $1million and $1.5million a day from illegal oil sales generated by a production system that rivalled many state- owned oil companies. This requires nuanced and informed assessments by com- manders. In Afghanistan in 2009, ISAF commander, General David McKiernan (US), declined to follow SACEUR's guidance to directly attack drug producers and facilities throughout Afghan- istan, holding that such actions would "seriously undermine the commitment ISAF has made to the Afghan people and the international community to restrain our use of force and avoid civilian casualties to the greatest degree practicable". The broadening of targeting rules in primarily urban conflicts such as Iraq and Syria, presents another significant challenge. The comments of Maj Gen Rupert Jones (deputy commander of the international coalition against ISIL) to a critical Amnesty re- port, are reflective of this challenge, stating that "it was naïve to think a city of Mosul, with a population of 1.75million, could be liberated without any civilian casualties while fighting an enemy that lacks all humanity". Notwithstand- ing, the onus remains on the commander to ensure that all feasible precautions are taken in attack under Additional Protocol 1; a challenging prospect recognised in the 2017 ICRC debate on war in the cit- ies, at which it was noted that often an enemy will hide and fight in populated areas and endanger the civilian popula- tion. The anonymity of big urban areas supports the unfortunate strategy of hu- man shields, which is often at the origin of a vicious cycle of behaviour leading to disrespect of the law. The multiplicity of roles individuals can take – from daylight civilian to night-time fighter and back – adds to the complexity of a battlefield in which civilian and military areas are increasingly intertwined. Within all of this if course, the question of reciprocity and precedent arises, as some scholars observe, "These attacks can be precedent setting even against terrorists". If it is legal and reasonable to target oil refineries and banks because they generate revenue for a non-state actor where is the line drawn? The theoretical, worst-case scenario is a dynamic of negative reciprocity, that is, a spiral down effect that could ultimately culminate in mutual disregard for the rules of IHL. Conclusion The president of the ICRC emphasises that the "law is in line with our humanity; it is our shield against barbarity," offering guidance on "dilemmas of humanity and military necessity; allowing armies to exercise common decency, to keep their hon- our clean." Certainly, IHL affords these practical considerations, and can have positive impacts when it is respected, when the principles of proportionality and distinction are applied. More importantly, however, the law provides a basis to win the peace and set the foundation for community acceptance. Within the rubric of the past 70 years it is arguable that the 'shared language' of the law has allowed warring parties to find common ground or mutual advantage such as the treaty on anti-personnel mines, negotiating prisoner exchanges, or ensur- ing safe passage for civilians out of besieged cities. As the ICRC has iterated, IHL is a living body of law. It was developed with militaries for application in the battlefield, to balance military objectives with humanitarian imperatives. It's not about dusty legal books, but for the law to provide guidance on the gritty realities of war. Today, the collective challenge remains to find ways to ensure greater respect for the law within the changing dynam- ics of armed conflict, and IHL must strive to rationally balance humanitarian concerns with military necessity. While, as recent conflicts show, this balancing may shift with developments in the nature of warfare, it must remain at the heart of IHL. Defeating ISIL or such armed groups should be a priority for any state, but it cannot serve as a basis for setting difficult precedents. Fundamental principles such as 'distinction' must remain, in the words of the International Court of Justice, 'in- transgressible', otherwise we will risk sending the law "hurtling down the slippery slope of collateral calamity." The signing of the Geneva Convention 1949

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