International Humanitarian Law Transparency

Abstract

This article identifies the demand for public transparency as a new frontier in International Humanitarian Law (IHL). Armed conflicts have long required governments to balance secrecy and transparency. To take a few examples, they must decide whether and how to acknowledge: the existence of an armed conflict, the applicable legal rules, the evidence of possible violations, and the number of combatant and civilian casualties. But the long war on terror has heightened global civil society’s concerns about expansive government secrecy. Demands for enhanced public transparency span the range of IHL activities: the classification of conflicts, the sorting of combatants and civilians, the numbers of civilian casualties, the deployment of unlawful weapons, conditions of detention, the use of coercive interrogation, its facilitation via extraordinary rendition, and punishment for unlawful activities. While revelations about drone strikes and national surveillance programs have spurred a domestic transparency debate, more attention needs to be paid to the role of international transparency. Many other countries also engage in the war on terror and several face their own internal armed conflicts. They too must decide how to manage information disclosure in light of their participation in armed conflicts. Thus, this article looks abroad to map out various mechanisms for IHL related transparency and discusses the role of IHL itself in mandating public transparency.Part I begins by broadly contextualizing some of the most frequently deployed mechanisms of public transparency. First, democratic governments sometimes acknowledge voluntary disclosure of information regarding armed conflicts or authorize the unacknowledged release of information. In addition, unauthorized leakers or other third parties actors may reveal information regarding IHL that the government prefers to keep secret or differs from official government accounts. Domestic law itself may compel public disclosure of some information. While each state has its own variants, this section describes some relevant sources such as open access laws and judicial rulings during litigation. Relatedly, international law may also contain public transparency provisions that remain applicable during armed conflicts. While all of these mechanisms may enhance public access to information, the increasing demands for information outstrip their current application. Part II uses a 2010 German ordered air strike in Kunduz, Afghanistan to investigate the role of various transparency mechanisms in the current IHL climate. As this operation ignited a political firestorm in Germany, it provides a nice case study of transparency in action. The strike raised such questions as whether an armed conflict existed, what rules of IHL applied, what the facts on the ground were concerning civilian casualties, and whether government actors had lied or engaged in a cover up. This section concludes by briefly describing the ecosystem in which existing transparency mechanisms dynamically interacted and noting why civil society might find them inadequate.Part III turns to the substantive content of IHL itself to survey existing and possible future transparency requirements. While legal scholars have exhaustively discussed domestic information forcing statutes, they have written much less about how IHL itself can be used as a tool to compel disclosure. While such requirements would still require domestic implementation, they affect transparency on a global scale. This section identifies the limited public transparency requirements and notes reform efforts calling for new interpretations or new rules to facilitate public access to information. This paper concludes by noting the contours of this new IHL frontier. What normative priors inform this frontier? What questions demand further research? What sort of reforms need to be assessed? This paper opens this conversation in hopes that as other IHL reforms are proposed and debated, the need for quality IHL information is recognized as an essential part of any of those other frontiers.