IHL as a secular Western institution?

Despite this legacy, IHL is a secular body of law. Having shed the religious trappings
of the just war tradition, and having secularized religious norms now embodied in
hard-fought IHL treaties, there is understandable apprehension about re-engaging
with religion. This is particularly the case where some religious teachings are not in
conformity with IHL, or are regarded as non-rational or otherwise problematic.
But IHL implementation is not secured by retreating from the field of debate
or shying away from other cultures. Given that law, religion and culture still
interpenetrate in all but the most secular contexts, IHL frequently requires some
degree of religious or cultural validation if it is to gain real traction in societies at
large, and across religious and cultural divides. Interchange and debate are crucial
for the development and propagation of the law, and while religions can sometimes
pose challenges to IHL, they also offer a wealth of opportunities to support and
promote it. Neglecting to take advantage of this religious inheritance, and the fact
that the essence of IHL was pioneered by religious leaders and scholars in all
cultures, cuts IHL off from the religious and ethical ideas from which it was
distilled, and which might continue to nourish and feed it. Decontextualized
universalism can be bland and self-defeating, and is a missed opportunity to
enhance the legitimacy of IHL with many groups.34
However universal its content, IHL is nonetheless, by design, an essentially
Western institution, and engagement with non-Western traditions can help counter
perceptions among some that it is “Western rules” or an outside imposition.35
Religious resources and institutions can help to situate IHL with respect to local
normative systems, thereby making it morally relevant to the context and enhancing
rather than compromising its universal appeal. While care has to be taken that IHL
does not give legitimacy to harmful practices, the consequences of failing to engage
with religious circles, potentially sidelining IHL or making it irrelevant, should also
be considered. Ignoring important religious stakeholders can sometimes show a
lack of respect for the culture, and this can translate into indifference or opposition to
IHL.
Secularism also has many meanings, encompassing world views whose
impartiality can be challenged. “Soft” pluralist forms of secularism are generally
tolerant of religion, embodying equal treatment for all regardless of belief and
facilitating open debate between diverse religious, philosophical and scientific
perspectives.36 “Harder” forms of secularism are closer to atheism and can be
antagonistic towards any expression of religion at all.37 Indeed, some regard
secularism as an anti-religious Western ideology, while others believe that it
nevertheless bears the imprint of the Christian culture from which it emerged. 38
Secularism is not therefore necessarily unbiased, or perceived as such, and IHL must
be amenable to both religious and non-religious perspectives.
While in recent years humanitarians have shown renewed appreciation for
the importance of engaging with religious circles, the functional secularism of some
organizations has tended to marginalize religion, often in the mistaken belief that
neutrality necessitates keeping a distance from religious stakeholders. Indeed, the
idea of “neutrality” is associated with passivity or detachment 1 in a way that
“impartiality” is not, and can sometimes foster an aloofness which is inconducive to
effective humanitarian action.
Of course, there are questions as to the degree to which the domains of law
and religion can be compared at all, and how they are demarcated or defined.
Comparing IHL with such an all-encompassing phenomenon as “religion” therefore
risks overgeneralization, and is not to compare like with like. Accordingly, this
article can only highlight a few intersections of particular relevance. In some
respects, even the term “religion” itself is a modern Western construct, since it
defines religion as something separate from the rest of human life, when historically,
and still in many contexts, the two are deeply intertwined. Concepts of religion, law
and culture are often still inseparable, and care must be taken not to view them
A Bartles‐Smith

through a distorting Western lens. In some cultures, for example, there is not even
a word for religion, since there is nothing to define it against.
Some religions are also more legalistic in nature than others. While
Abrahamic religions, for example, tend to prioritize the laying down of rules to
be obeyed, Buddhism is primarily an ethical system concerned with addressing
the psychological roots of behaviour.44 Each religion therefore has its own take on
IHL and the regulation of armed conflict, revealing how IHL might be variously
received and interpreted in different contexts. Indeed, it is this religious and cultural
diversity that makes comparison with IHL so enriching.

IHL as a universal moral code?

At one level, law and religion express a moral consensus about what is right and
wrong within a society, and are influenced by the particular environments and
cultures in which they develop. But while there are important differences between
the Judeo-Christian, Islamic, Indian, Chinese, African and Meso-American
traditions, for example, laws of war that limit violence nevertheless exhibit striking
similarities across religions and cultures.45 Modern IHL therefore represents an
unusual degree of cross-cultural consensus, embodying many rules that are close to
being axiomatic universal norms. IHL rules are remarkably accommodating to other
cultures, and the rich legacy of restraint in many non- Western traditions is
increasingly being explored.46
Though there has certainly been some degree of cross-pollination, and
common structural factors in all wars naturally lead to similar solutions, these
similarities are also a function of our shared moral psychology and the biological
bases of our thoughts and emotions.47 Recent findings in psychology and
neuroscience suggest that the laws of war, particularly those concerning the
protection of non-combatants, mirror universal moral sentiments. 48 Indeed, the core
assumption of natural law theory is that we share a moral conscience that transcends
cultures and informs the content of international law.49 Research confirms, moreover,
that morals are more powerful than law in influencing behaviour, and that people are
more motivated to adhere to the law if it resonates with their identities and moral
values.50 Religion deeply informs both of these, and has powerful means to
improve compliance with IHL and equivalent religious norms.51
IHL’s natural and customary law dimensions still preserve much of this
religious legacy and arguably confer on it the character of a moral system in
some respects – a “law of humanity” which can mitigate the power of States.52
Customary IHL extends the reach of core IHL principles beyond the lacunae of treaty
law and embodies peremptory jus cogens norms that are somewhat akin to a moral
code.53 Concepts of chivalry and humanism are therefore integral to IHL, whose
norms can be applied as both moral and legal requirements.54 The Martens Clause,
which first appeared in the preamble to the 1899 Hague Convention II, states:
Until a more complete code of the laws of war is issued …, populations and
belligerents remain under the protection and empire of the principles of
international law, as they result from the usages established between civilized
2 nations, from the laws of humanity and the requirements of the public
conscience.55
The Martens Clause thus provides a thin but crucially important thread linking the
positive norms of IHL to natural law, and to the morals and inner life of
belligerents.56 While the law is necessary, it is not always sufficient for changing
behaviour on the battlefield, and there seems to be little reason to underplay the
moral force of IHL provisions if belligerents will be more likely to comply with
them. This powerful moral quality also appeals to religious actors.57
Some IHL rules, particularly those related to proportionality, are open to
subjective interpretation, and also therefore entail a degree of moral deliberation.58
Interpretations of IHL that are overly permissive or restrictive with regard to the use
of force have sometimes tended to undermine it, and the role that religion can
play in interrogating the conscience of decision-makers is clearly relevant, and
overlaps with the field of military ethics.59 Walzer argues with
regard to just war theory, for example, that simply not to intend the death of civilians
is insufficient, and that collateral damage (the principle of double effect) is justified
only when there is a double intention not just to accept the likelihood or possibility
of collateral damage but to actively minimize it as far as possible: 60 “What we look
for in such cases is some sign of a positive commitment to save civilian lives. Not
merely to apply the proportionality rule and kill no more civilians than is militarily
necessary.”61

Religion in war: Problem or solution?

Religion is commonly regarded as a driver or exacerbator of, rather than a solution

to, armed conflict, and has often been instrumentalized to that effect. Most major
religious traditions include ideas of sacrifice and cosmic war of good against evil that
can be used to justify acts of real war, and history is replete with holy wars, whether
in the service of States or to overthrow them.62 Some religious texts can be
interpreted to discriminate against people on religious grounds, and to reinforce
group identities to the exclusion of others. Non-believers have been stripped of
religious protections and subjected to unlimited violence, and religion has frequently
incentivized victimization rather than restraint. 63 In recent years religious extremism
has been associated with terrorist violence, and it has long endorsed interpretations of
religion in which messianic or apocalyptic ideas justify mass murder.64 Richard
Dawkins remarks of religion, “What a weapon! Religious faith deserves a chapter for
itself in the annals of war technology”, and Samuel Huntington argued presciently
in his Clash of Civilizations thesis that with the demise of communism, wars
would again be fought primarily along the fault lines of religious and cultural
identity.65 Indeed, the few mentions of religion in the Geneva Conventions refer to
how their provisions should be applied without “any adverse distinction based [on]
religion”, among other criteria.66
But religion is just one of many contributing factors to armed conflict, and
while it is frequently an organizing principle, it is less often the dominant impelling
force.67 Statistically speaking, factors such as corruption, political terror, gender
relations, economic inequality and political instability play a greater role in
contributing to conflict, and religion has only limited explanatory power in this
respect.68 Many contemporary studies tend to fixate upon only a few religious
indicators – often religious identity – as a cause of war, rather than studying how the
full panoply of religious practice and experience affects war’s conduct.69 Indeed,
religion has long played a key role in reducing and regulating armed conflict,
disseminating and institutionalizing the humanitarian norms upon which the
instruments of international law are built. While religion is prone to
instrumentalization and has often been used to facilitate conflict, or as a vehicle for
the exclusion or oppression of other groups, its inclusive aspects have promulgated
the universal humanitarian principles that have sought to prevent war and minimize
the suffering that it causes.70 Most religions are pluralistic, contain a spectrum of
3
opinion, and are a ferment of dialogue and debate with which the humanitarian
community should engage.
Whether expressed in religious, ethnic, nationalist or indeed scientific
registers, the root causes of conflict are functions of our individual and group
psychology, and religion can both inhibit and provoke violence depending on the
situation.71
Though attention often focuses on IHL violations carried out in the name of
religion, the good that it can do during armed conflict is frequently underplayed.
While the term “humanitarian” as it is now commonly understood emerged only in
the nineteenth century, the altruism it describes has a long religious lineage. 72 Charity
is a core component of the world’s major religions, and humanitarian values
A Bartles‐Smith

genuinely matter in religious circles, which have been engaged in charitable and
humanitarian action for hundreds, if not thousands, of years.73 In all significant
respects, religious actors invented humanitarian action, and they have contributed to
the establishment of secular organizations like the ICRC.
Faith-based organizations often still outstrip other humanitarian actors in the
sheer scope and volume of their activities, whether at international or grassroots
level. They are among the first and most effective organizations to deploy to conflict
and emergency situations, and new religious charities are emerging all the time,
many at the forefront of humanitarian innovation and entrepreneurship. In this
respect they represent both the past and future of humanitarian action, as well as
being among the most important custodians of the humanitarian spirit and principles
upon which humanitarian law and action have been built. While the proselytizing
work of some faith-based organizations can do damage to other cultures, many are
more respectful of local communities than organizations that have a secular agenda
or believe that the “humanitarian imperative” gives them license to override local
sensitivities.74

Religion and the psychology of armed conflict

A propensity towards supernatural and religious thinking appears to be

psychologically – indeed, biologically – hardwired. Humans are predisposed, for
example, to perceive mind–body dualism and supernatural agency, as well as to
believe in a just world.75 Some cognitive scientists regard religion as a highly
effective evolutionary adaptation, enabling large-scale cooperation in complex
societies, not least to engage in war.76
Psychological research indicates that most violence is morally motivated to
regulate social relationships, and deep-seated motivations for unity, status, equality
and proportionality underlie most moral behaviour.77 These predispose people to
form groups on the slightest pretext, and to favour the in-group, due to intuitive zero-
sum rivalries for resources with other groups.78 People fight, if necessary, to achieve
belonging and status, both within their group and with respect to other groups.79
Though the motivations of belligerents are of course complex, and many might be
driven, for example, by more mercenary or monetary incentives, at a psychological
level most armed conflicts can largely be attributed to the desire to belong to a
group, and to moralistic sensitivity to the group’s status and to perceived injustice
or offence.80
According to the virtuous violence theory of Alan Page Fiske and Tage
Shakti Rai, “[w]hatever its origin, group conflict does not produce violence without
a consensus among the in-group, or at least its leaders, that another group has done
something wrong and harmful, something dangerous”, leading to moral outrage.81
One particularly strong moral motivator is the desire for vengeance, to “put the other
group in its place” or “teach it a lesson”.82 Atrocities such as genocide and ethnic
cleansing are committed where in-group and out-group identities are so
circumscribed that the out-group is seen as a threat to the purity of the in-group, and
is dehumanized and regarded as a “filthy infestation”.83 Therefore, far from killing
because of a disintegration of morals, groups kill because it feels morally right, when
4 the out-group is deemed guilty of a moral transgression.84 Indeed, the very concept of
just war is predicated on the need to redress injustice.
Religion has traditionally provided the moral framework that binds large
groups or moral communities together, enabling them to cooperate with one another
beyond the ties of kinship.85 Religion also deeply informs ethnicity and nationalism,
which perform a similar role. 86 Durkheim described religion as a “unified system of
beliefs and practices relative to sacred things … which unite into one single moral
community … all who adhere to them”.87 Jonathan Haidt’s definition of a moral
system gives a fuller idea of religion’s scope and relevance: “interlocking sets of
values, virtues, norms, practices, identities, institutions, technologies, and evolved
psychological mechanisms that work together to suppress or regulate self-interest
and make cooperative societies possible”.88
Religions both express and modify human groupism and morally motivated
violence. Many religions have pioneered the expansion of in-groups or moral
communities beyond the confines of ethnicity, or have rejected groups to embrace
universalism, sometimes beyond the confines of humanity itself. 89 Since religions
regulate the moral conduct of the group, they have also prevented, channelled and
controlled expressions of morally motivated group violence, thereby regulating the
conduct of war.
Traditionally, both religion and law have connected moral judgement to
moral rules, assuming that so far as rules are mentally recalled and thought to apply
to a particular situation, they will have a causal effect on moral or legal judgement
and behaviour.90 In recent years, this idea has been challenged in particular by
Haidt’s social intuitionist model, which suggests that most moral judgement is
unconscious and intuitive, and that conscious moral reasoning is largely employed
post hoc to justify judgements already made.91 The important role that emotions play
in cognition and moral judgment has also become clear.92

In fact, it appears that both rules and moral intuitions are important, and that
quick (intuitive) and slow (reasoned or rational) moral judgements work together in a
dual process of conscious and unconscious moral behaviour.93 As this process
becomes overburdened or exhausted, however, subconscious moral intuitions tend to
take over.94 Such is the case during the extreme circumstances of armed conflict,
when fatigue, high stress and strong emotions can impair or overload the cognitive
and affective faculties, and instincts can tend to override reason.95 Rules therefore
remain important, but belligerents’ ability to adhere to them can be compromised.96
Religions have long probed deeply into the underlying emotions and
motivations of those involved in armed conflict, and modern psychological and
neuroscience research validates many of their insights. Indeed, both religion and
psychology share a healthy appreciation for the limits of our human faculties, and of
the assumption that we are always rational actors. Their awareness of the cognitive
and emotional impairment caused by stress and trauma, and the solutions they have
found to cope with them, are highly relevant to the conduct of war, and can bolster
the resilience, moral fortitude and performance of combatants, better enabling them
to act with precision and restraint.

Religious underpinnings of international law

Comparing religion with law interrogates the very nature of law itself and its
relationship to the State and the individual, which can be understood and
approached in different ways. Whereas legal positivism regards the existence and
content of the law as dependent on social facts, and not necessarily on the law’s
merits or demerits, other philosophies and religions regard law as law only so far as
it maps onto ethics and morality, or some conception of natural or divine law.97 Law
and religion have long been deeply interconnected, and the underpinnings of
most modern legal systems can be traced back to religious and transcendental
ideas – specifically, in the case of Western law, to those of the Roman Empire
5
and Catholic Church.98 Indeed, Christianity was used as an
explicit justification and basis for Western law until recently. 99

The relationship between religion and law in the West, and in much of the
rest of the world, has nevertheless been characterized by increasing separation and
secularization, as nation-States have curtailed the power of religion and accrued
power to themselves. This process accelerated in Europe in the wake of the
Reformation and the Peace of Westphalia, before Western law was propagated
around the world as an adjunct to colonialism, Western hegemony, and latterly
globalization.100
But though the framing of the law has been secularized, religious concepts
and principles remain, translated into the language of rationality and universalism.101
A Bartles‐Smith

Natural law – variously considered to be conferred by God, nature or reason – was

central to this transition.102 Like religion, it continues to provide a source of
overriding moral authority independent of the State, and is therefore a vital bridge
between religion and international law. Where State authority is strong, as in some
authoritarian regimes, natural and religious law resources might sometimes present
the only significant challenge to it. Where State authority is absent, weak or
disputed, as in the relatively anarchic realms of international relations and armed
conflict, natural and religious law resources become even more important, due to
the limited effectiveness of positive (State) law enforcement.
To whatever degree conceptions of divine or natural law are considered to
apply universally in theory, or to an ever-wider circle of human beings in practice,
they have been the impetus behind the pretensions to universality of international law
and many of the world’s major religions. Both have provided a degree of supra-State
authority to regulate inter-State relations, not least with regard to the conduct of war.
It is for this reason that they have frequently been the foundation and driving force
for the development of IHL in particular.
Even in Western-style legal systems, much of the paraphernalia of religion
survives.103 Religion is still called upon to secure oaths and affirmations in court, just as it
has long played an important role in sanctifying treaties. 104 Locke did not believe that
society could function without religion, since “[p]romises, covenants, and oaths,
which are the bonds of human society, can have no hold upon an atheist”.105 Indeed,
religious injunctions to abide by treaties are still an important factor in persuading
religiously motivated armed groups to respect IHL treaties to this day.106
Like other laws, most laws of war were not invented wholesale but rather
were created to codify established ideas and practice, and were religious rules and
customs long before they were put into writing.107 While a number of religious
legal systems, including Islamic law, Hindu law and the canon law of the Catholic
Church, are still extant, much of this inheritance is enshrined in customary IHL,
which preserves the legacy of religiously motivated restraint in war across diverse
cultures. For all the importance of statutory or treaty law, customary law is often
equally binding, and while some cultures might not have a legal system in the
modern Western sense, it would be wrong to assume that customary laws are
necessarily weak or are not complied with.108
So far as customary IHL incorporates universal principles or cross-cultural
convergence over particular practices, it also establishes common principles to which
all parties to conflict should adhere. The Roman concept of ius gentium (“law of
nations”), based according to Marcus Tullius Cicero (106–43 BCE) on “the
customs of our ancestors” and “common consent of men”, was of fundamental
importance in this regard. It inspired the law of nations as it re- emerged in
seventeenth-century Europe, embodying international customary norms against the
unlawful use of force, genocide and slavery that have since achieved peremptory
norm status.109

Religion to compensate for lack of State will and capacity

6 International law is largely reliant on the will and capacity of States, and consensus
between them, for its implementation and enforcement. In situations of armed
conflict, even this limited State capacity and propensity to uphold the law is
eroded.110 Wars often cause government to break down entirely, or take place in
deprived or relatively ungoverned peripheries, leaving the population to the mercy
of militaries and non-State armed groups that can act with impunity. Often the
State might be a relatively new colonial or post-colonial construction whose borders
have been arbitrarily drawn across ethno-religious lines, the very reason for conflict
in the first place. The stakes in war are very high for States – as Sun Tzu puts it,
“the province of life and death; the road to survival or ruin”– and depending on
the character of the conflict, there might be few incentives to follow the rules
during such existential crises.111 Though IHL is often implemented and complied
 with, it is frequently therefore thwarted in precisely the armed conflict situations
where it is supposed to apply, when States and non-State armed groups are either
unwilling or unable to abide by its provisions.112
While IHL applies, to some degree, to all parties to armed conflict, it is
predominantly by and for the States that are party to its treaties, and non-State actors
have been largely excluded from its formulation.113 Though most contemporary
armed conflicts are non-international in character, IHL is far more developed with
regard to the regulation of international armed conflict between nation-States than it
is to internal armed conflicts within them, when States have little incentive to grant
rebel or opposition groups any legitimacy.114
Rules applicable to non-international armed conflict are relatively thin, the
most important of them being encapsulated in a single article, Article 3 common to
the four Geneva Conventions, and Additional Protocol II, which has not been
universally ratified.115 While these instruments enshrine basic protections for the
lives and dignity of non-combatants, non-State armed group members do not enjoy
the same protections as State armed forces personnel, despite the fact that non-State
groups make up more than half of all parties to armed conflict. 116 This
understandable State bias exacerbates the asymmetric nature of most internal armed
conflicts (in which advanced State militaries are often pitted against poorly resourced
guerrillas), potentially undermining reciprocal respect for IHL.117
Customary IHL and the Martens Clause compensate for the lack of
provisions for non-international armed conflicts and non-State armed groups in treaty
law.118 In doing so they often draw upon the “laws of humanity”, including the
legacy of religious and just war principles with wider applicability than the treaty
law that States have actually agreed to.119
Where the State is weak or lacks reach, or law enforcement mechanisms
break down, religious institutions upon which communities and parties to conflict
depend are often still functioning, and vast networks of churches, mosques, temples,
schools, hospitals and charitable institutions extend even into the remotest, most war-
torn peripheries. Indeed, religions still dominate in many societies affected by armed
conflict, and are crucial to maintaining some vestige of moral and social order.
Failure to engage with them in such contexts is impractical, and can hamstring
efforts to reassert common humanitarian norms.
Religious courts and village councils often remain functioning when higher-
maintenance law courts become unviable. While there are question marks with
regard to the quality of justice that some informal mechanisms provide – which can
be undermined by lack of procedural rigour, susceptibility to corruption and
patriarchal discrimination against women, for example – there is often no practicable
alternative in the absence of strong State authority. 120 Many traditional institutions
are also better adapted to the particular context, and include restorative justice
mechanisms which can be implemented when retributive justice is unattainable.121
Attempts to superimpose outside legal

114 Ibid.
115 N. Melzer, above note 25, p. 53.
116 M. Sassòli, above note 3, p. 48.
117 Ibid.
118 Ibid., pp. 49–50; N. Melzer, above note 25, pp. 24–25. 7
119 However, if there is State practice and opinio juris which contradicts “the legacy of religious and just war
principles”, the relevant customary norm is what the former say, rather than the latter. States are still in the
driver’s seat. Customary law is not a tool for non-State entities to legislate without State consent.
120 Michael Newman, Transitional Justice: Contending with the Past, Polity Press, Cambridge, 2019 (Kindle ed.).
121 Ibid.

enforcement mechanisms in such an environment can be clumsy or may be resisted

altogether, and more traction can sometimes be gained by collaborating with
religious and other non-State institutions that have greater influence over parties to
conflict and their communities. Where religious institutions are more powerful than
State bodies, or are aligned with them, debate on correspondences between religion
and IHL might more intelligently focus on bolstering religious laws of armed
A Bartles‐Smith

conflict by comparison with IHL, rather than the other way around, so long as
those norms uphold or exceed IHL rules.
The proximity of religious institutions to affected communities, and the fact
that they are among the world’s most prominent non-State actors, means that they are
also well positioned to influence non-State armed groups.122 This is particularly the
case when non-State armed groups and their followers identify or align themselves
with a religion, and are therefore bound at least to some degree by its norms. For
some groups of an ethno-nationalist persuasion, commitment to abide by IHL can
help them to achieve popularity and a degree of international legitimacy, marking
them out for membership of the community of nation- States.123 For those groups and
communities of a more religious character, however, whether nationalists or
adherents of more global religious ideologies, the correspondence of IHL with their
religious teachings is a sine qua non for their acceptance of it, and engagement with
religious leaders and teachings is therefore essential. Religious rules and sanctions
mechanisms are often incorporated into their doctrines and codes of conduct.124
Indeed, religion is often one of the core motivations of non-State armed groups,
informing both how they fight and what they are fighting for.

Religion to Improve IHL Enforcement and Compliance

Improving the regulation of armed conflict therefore requires reinforcing legal debate
on the content of IHL with a closer examination of factors other than State
power that might improve compliance with it.125 Compliance with the law is
generally approached from two perspectives: instrumental and normative.
Instrumental means are concerned with immediate incentives of punishment and
reward, such that law enforcement has a deterrent effect. Normative means are
concerned with what people regard as moral or “the right thing to do”, and focus
on generating voluntary compliance by socializing norms so that they become
internalized and part of the population’s moral identity.

122 Ioana Cismas and Ezequiel Heffes, “Not the Usual Suspects: Religious Leaders as Influencers of
International Humanitarian Law Compliance”, Yearbook of International Humanitarian Law, Vol. 22,
2019.
123 This is often expressed by signing Geneva Call’s Deeds of Commitment, for example.
124 See, for example, Muhammad Munir, “The Layha for the Mujahideen: An Analysis of the Code of Conduct
for the Taliban Fighters under Islamic Law”, International Review of the Red Cross, Vol. 93, No. 881,
2011.
125 D. Johnson, above note 18; M. Sassòli, above note 3.

A combination of these approaches is required for maximum effectiveness.

The ICRC’s 2018 Roots of Restraint in War study confirmed that while instrumental
means remain important, humanitarian norms are better complied with the more they
are internalized by combatants and resonate with their identities and moral values;
this replicated the results of similar research in other fields of law. 126 The study
highlighted, furthermore, the importance of informal means of socialization such as
peer pressure and religious or community influence, particularly for less structured
8 armed groups which are more embedded in the community. Whereas the ICRC
understandably prioritizes military or armed group hierarchies and the integration of
IHL into training, doctrine and sanctions mechanisms, the Roots of Restraint study
went some way towards validating a more expansive and informal approach. This
includes the ICRC’s burgeoning engagement with religious circles, the effectiveness
of which has been empirically manifest for many years.127
Though religions often tend to get bracketed with normative means to
promote compliance, they also frequently possess instrumental means to enforce
religious law, sometimes meting out exemplary punishment. Religious and
customary laws are often incorporated into State legal systems, and autonomous
religious legal systems are often still binding on religious adherents and the groups
they control or are associated with. Though following rules might sometimes consist
only in instrumental cost-benefit calculations, religious rules often carry greater
weight for religious adherents, who are strongly motivated to comply. Worldly
enforcement of religious rules is backed up, moreover, by the threat of divine or
supra-human punishment in this world or the next, whether by gods, supernatural
entities or the workings of the cosmic or natural order.128 For many religious
adherents, divine monitoring and enforcement of rules is therefore omnipresent and
inescapable, and many combatants continue to be haunted by the crimes they have
committed in war long after the fighting has stopped.129
Religious institutions also play a major role in education and the
socialization of religious rules and principles from an early age, including those of
relevance to the regulation of war. IHL can be integrated or attached to many of these
educational programmes.130 Insofar as religious actors and educational institutions
also participate in interpreting IHL or researching correspondences between IHL and
religious teachings, as is the case with a number of ICRC projects, this helps to
better embed and acculturate IHL by situating it in relation to religious normative
systems with which most people are more familiar.131 Religious organizations run
many educational institutions relevant for teaching

126 Fiona Terry and Brian McQuinn, The Roots of Restraint in War, ICRC, Geneva, 2018; see also Oliver
Kaplan, “Nudging Armed Groups: How Civilians Transmit Norms of Protection”, Stability: International
Journal of Security and Development, Vol. 2, No. 3, 2013.
127 See the ICRC’s Religion and Humanitarian Principles Blog, above note 46.
128 D. Johnson, above note 18.
129 Ibid.
130 See the ICRC’s Religion and Humanitarian Principles Blog, above note 46.
131 Harold Hongju Koh, “Internalization through Socialization”, Duke Law Journal, Vol. 54, No. 4, 2005.

and research, including schools, universities, madrassas, monasteries and think

tanks, and secular universities contain departments of both law and religious studies.
Religious or cultural norms relevant to the regulation of armed conflict are generally
therefore more deeply internalized and rooted in the individual’s religious and
personal convictions than corresponding IHL rules, and can enhance their
legitimacy and moral force, such that combatants become more self-regulating.132
This self-regulation is proven to be most powerful when it comes about as a
result of precisely the kind of religious or moral self-reflection that religion
encourages, such that moral behaviour becomes part of the adherent’s self-
identity.133 Religion influences, furthermore, the interconnected reasons why people
fight and how they conduct themselves against the enemy, and might also therefore
have greater leverage in terms of changing behaviour. This internalization of rules
and capacity for ethical thinking are particularly important when IHL rules must
be interpreted and applied in highly complex armed conflict scenarios, all while
coping with the raw emotions and mentally
debilitating stress and fatigue engendered by war.134
The internalization of good conduct is at the core of many religions, which
teach that the intention behind an action is at least as important as the action itself.
The conscience and inner life of individuals are therefore of central importance, as
illustrated by introspective practices such as meditation, prayer and confession. For
St Augustine, it was the intention behind killing in war, and 9 whether or not it is
motivated by love or charity in defence of the innocent, which determined whether
it was sinful or not.135 Similarly, Aquinas made right intention one of the key
criteria of just war.136 He assumed that if the intention of belligerents was correct,
then good conduct would automatically follow, but if their intention was wrong, then
no rules would adequately restrain their conduct.137 This explains the lack of
detailed rules on the conduct of hostilities (jus in bello) in his just war theory, since
he regarded intention as the prime determinant of moral behaviour. A similar
emphasis on intention rather than explicit rules of conduct can be found in many
other religious and philosophical traditions, and is a central concern of ethics.138
As a secular legal regime, IHL has inevitably gone the other way, developing
A Bartles‐Smith

detailed rules on the conduct of hostilities while underplaying the intention behind
them. In the absence of reliable enforcement mechanisms, however, intention has
even greater bearing on whether or not IHL rules are followed, suggesting that re-
engagement of IHL with its religious origins might facilitate its implementation.
Consideration of intent (mens rea) is not entirely absent from IHL, since it has a

132 Margaret Levi, Audrey Sacks and Tom Tyler, “Conceptualizing Legitimacy, Measuring Legitimating
Beliefs”, American Behavioral Scientist, Vol. 53, No. 3, 2009.
133 Ted van Baarda, “The Ethical Challenges of a Complex Security Environment”, in D. Whetham (ed.),
above note 9, p. 164.
134 R. E. Hassner, above note 12.
135 D. Whetham, above note 9, p. 71.
136 Ibid., p. 72.
137 Ibid.
138 For example, cetanāin Buddhism and niyyah in Islam.

direct bearing on whether belligerents choose to follow IHL’s rules, and must be
proven after the fact to prosecute perpetrators of war crimes. Moreover, while IHL
does not necessarily comment on how intention supports compliance, this does not
mean that there is a vacuum, since military ethics brings intention back into play.

Religion and Military ethics

Military discipline is undoubtedly paramount in order to ensure as far as possible that

fighters follow IHL rules in the extreme circumstances of war, and the importance of
integrating IHL into military doctrine, training and sanctions mechanisms has long
been recognized. Care must be taken, however, that discipline does not promote an
unthinking obedience and conformity that curtails the capacity for ethical
reflection.139 Even when IHL is clear in theory, it is quite another thing to apply it
in practice to particular armed conflict situations. Indeed, war confronts soldiers
with severe ethical dilemmas not generally confronted in peacetime, not least
whether or not to kill some innocents in order to save others. Training that fails to
factor in such ethical dilemmas and battlefield constraints will be of limited
effectiveness.140
Despite the moral precariousness of war, the teaching of military ethics
today is often underdeveloped even in advanced militaries, and many have little or
no capacity to teach it at all. 141 Moreover, higher-ranking officers generally receive
disproportionately more training in ethics than lower-ranking personnel, even though
the latter are more commonly on the front line of military engagements, and often
face the severest ethical challenges. 142 Most militaries employ a mixed bag of
approaches to military ethics, so that it is not always clear what they are trying to
achieve, and some ethics training is more of a box-ticking exercise than a means to
inspire.143
A functional, rules-based approach predominates, the purpose of which is
ultimately to improve military efficiency within the bounds of the law. 144 This
generally involves the inculcation of IHL rules and military virtues, such as the
“Values and Standards” of the British military, with the emphasis on promoting
10 professional behaviour rather than ethics per se.145 Aspirational military ethics
training to develop combatants’ capacity for moral autonomy and deliberation,
making them better people as well as better combatants, is less frequent and usually
the preserve of the officer class.146 Most combatants are not therefore encouraged to
consider the ethical rationale behind military virtues, or to properly rehearse, in
advance of hostilities, how to put those values into practice, though strides are
increasingly being made in this direction.147
There is therefore a pressing need to strengthen or reinvigorate cultures of
military ethics that embody the highest humanitarian and chivalric ideals and put the
dignity and protection of non-combatants over force protection, particularly in
unconventional wars fought among the people. 148 While IHL tells belligerents
 whether or not an action is legally permitted, ethics engage the intention and
conscience or inner life of combatants, and are often influenced by religious
ideas. Military ethics have historically been deeply informed by religion, including
highly aspirational just war, holy war, pacifist and warrior traditions. Christianity
informed both the theory and practice of medieval chivalry, for example, just as
Buddhism contributed to the development of the martial arts.149
Many religious and military virtues overlap.150 While courage, loyalty and
discipline – also admired religious qualities – remain important, modern armed
forces are increasingly conscious of the fact that these traditional military virtues are
not necessarily well adapted to contemporary wars, particularly to unconventional
armed conflicts in which the crucial battle is over hearts and minds. Military
effectiveness in such contexts depends upon being a sympathetic person as much as
an effective fighter, and some militaries have therefore expanded the list to include
virtues such as compassion, wisdom, patience, temperance and humility.151
Aside from the Christian influence on codes of chivalry and the just war
tradition, Western military ethics is heavily influenced by ancient Greek precedents.
The Aristotelean emphasis on character formation and the cultivation of individual
virtue in the sense of functional excellence is regarded as particularly suited to
military life.152 Otherwise, the rich legacy of restraint in many non-Western
traditions has yet to be fully explored, and can provide fresh perspectives on what is
expected of combatants.
Buddhist-inspired martial arts traditions are a case in point. Both a
meditation technique and a means to protect, they enabled practitioners to control
their emotions, using only as much force as was absolutely necessary to overcome an
opponent.153 The conduct of war was thus intimately tied up with the practice of
religion, and given the centrality of non-harming to Buddhism, the use of force was
meant to be restrained to the maximum degree, with an emphasis on extreme self-
sacrifice in the service of others. The Shaolin monastery, for example, became a
centre of military training and innovation, while Zen Buddhism in Japan came to be
known as the “religion of the warrior”.154 In Buddhism, ethics are inseparable
from its psychological insights and mindfulness technologies, since it understands
that without proper training to enhance both psychological and physical self-
control, practitioners will be under-equipped to act with restraint. This is highly
relevant, of course, to military training, and martial arts have also been proven, for
example, to reduce aggression in the young.155 Though the degree to which
Buddhist combatants actually put these martial arts ideas into practice during armed
conflict is questionable, much can still surely be learned from this rich legacy.
Religion also therefore serves an important functional purpose in military
ethics, and introspective religious resources such as prayer and meditation have long
been utilized to enhance restraint and self-control in combatants. Indeed, mastering
one’s base impulses is a central feature of many religions, and is of critical
importance to military conduct.
The degree to which religion can be integrated into military ethics training
depends, of course, on the context. In pluralistic societies, soldiers from different
backgrounds must converge on secularized virtues to which they can all commit, just
as the doctrine of religious restraint constrains religious arguments in the legislative
sphere.156 But this does not preclude military personnel from11being motivated by
their personal religious beliefs. Rather than purging religion from the military
curriculum, military personnel are perhaps best exposed to a variety of religiously
inspired military traditions, thereby promoting understanding and respect for other
cultures, including the value systems of potential adversaries.
In mono-religious militaries and non-State armed groups, the teachings of
the fighters’ religion in relation to the conduct of war are even more important, and
can be integrated where appropriate into military and IHL training. Indeed, many
armed groups include religious scholars among their leaders and combatants, some
of whom also play a crucial role in drafting their codes of conduct.157
A Bartles‐Smith

146 A. Bartles-Smith et al., above note 29; Peter. A. Lorge, Chinese Martial Arts: From Antiquity to the Twenty-
First Century, Cambridge University Press, Cambridge, 2012.
147 Ibid.
148 Anna Harwood, Michal Lavidor and Yuri Rassovsky “Reducing Aggression with Martial Arts: A Meta-
Analysis of Child and Youth Studies”, Aggression and Violent Behavior, Vol. 34, 2017.
149 Christopher J. Eberle and Rick Rubel, “Religious Conviction in the Profession of Arms”, Journal of
Military Ethics, Vol. 11, No. 3, 2012.
150 For example, the Bangsamoro Islamic Armed Forces, the armed wing of the Moro Islamic Liberation Front
in the Philippines, has an Islamic Call and Guidance department which oversees religious leaders in its
ranks in order to provide Islamic guidance to all of its commands. See United Nations and Moro Islamic
Liberation Front, Children in Armed Conflict: Philippines: Action Plan on the Recruitment and Use of
Children in Armed Conflict, 2017, pp. 3–4.

Military religiosity and the warrior ethos

Military training also has an hortatory quality to galvanize combatants to uphold the
highest military and patriotic ideals, and even secular militaries promote forms of
religiosity that tap into the motivations of combatants at a deeper level than rational
analysis.158 In many militaries these revolve around a warrior ethos that binds
combatants into a sacred covenant to fight and die for one another, and for the
country or cause for which they serve, and that must necessarily inspire them to
override their natural instinct for self-preservation.159 The US Army has distilled the
essence of its own warrior ethos into the following succinct formulation, which
includes the famous injunction never to leave a comrade behind. All soldiers must
internalize this during their basic training:160
I will always place the mission first. I
will never accept defeat.
I will never quit.
I will never leave a fallen comrade.161
Military recruits take oaths upon enlistment, often containing appeals to divine
authority.162 Basic training (boot camp) and further specialized training puts them
through intense rites of passage – appropriately called “Hell Week” for the US Navy
SEALs – which deconstruct their civilian identities and re-socialize them into the
very different values of military life. 163 This includes, of course, the capacity to kill
when required, and the subordination of their will to strict military discipline.
Parallel to professional rules and standards, recruits are indoctrinated by
more informal means. Most military services and units have their own subcultures,
elements of which might have a greater hold on combatants than more formal
rules.164 These often incorporate initiation rites and other rituals intended to foster
conformity and an intense sense of belonging to the unit, and sometimes feature
brutal and humiliating hazing rituals which might be informally tolerated by the
hierarchy even when officially banned.165

151 M. L. Cook and H. Syse, above note 140, p. 121.

152 Herbert Raymond McMaster, “Preserving the Warrior Ethos”, Hudson Institute, 1 November 2021,
available at: www.hudson.org/research/17361-preserving-the-warrior-ethos.
153 Ibid.
154 US Army, “Warrior Ethos”, available at: www.army.mil/values/warrior.html. This website also includes
12 pages on the US Army’s Values and the creeds, songs and oaths of its various services.
155 Such is the case even in some secular countries; in the US and British militaries, for example. See US Army,
“Oath of Enlistment”, available at: www.army.mil/values/oath.html; British Army, “Oath of Allegiance –
Christian Version”, available at: https://tinyurl.com/ytp2bjrs.
156 See, for example, “Hell Week”, Navyseals.com, available at: https://navyseals.com/nsw/hell-week-0/.
157 Scott A Fischer, Army and Air Force Subcultures Effects on Joint Operations. Army War College, Carlisle
Barracks, Pennsylvania, PA, 2006.
158 Jonathan S. Landay, “Hazing Rituals in Military Are Common – and Abusive”, Christian Science Monitor, 11
February 1997, available at: www.csmonitor.com/1997/0211/021197.us.us.4.html; Kirsten M. Keller et al.,
Hazing in the US Armed Forces: Recommendations for Hazing Prevention Policy and Practice, RAND
Corporation, 2015.

Quasi-religious warrior codes or “creeds” are an integral part of US military

identity, for example, and are memorized and chanted by unit members. 166 Though
they vary across the different services, and include the famous Ranger and
Rifleman’s Creeds, all stress the virtues of bravery, honour, esprit de corps, loyalty
and self-sacrifice, thereby reinforcing military comradeship and cohesion.
These creeds contain powerful and inspiring language likely to have a
stronger impact on combatants’ behaviour than many more formal rules. The iconic
Rifleman’s Creed, for example, which has guided US Marine Corps weapons training
for over seventy years, anthropomorphizes the Marine’s rifle to striking
psychological and practical effect:167
My rifle is human, even as I, because it is my life. Thus, I will learn it as a
brother. I will learn its weaknesses, its strength, its parts, its accessories, its
sights and its barrel. I will ever guard it … as I will ever guard my legs, my arms,
my eyes and my heart against damage. … We will become part of each other.
We will.
Before God, I swear this creed. My rifle and myself are the defenders of my
country. We are the masters of our enemy. We are the saviors of my life.168
Interestingly, none of these creeds contain any explicit reference to rules of restraint.
The accompanying US Army Soldier’s Code and US Army Values do refer to the
need to treat others with dignity and respect, to act honourably, and to do what is
right legally and morally, but protection of civilians, for example, is not explicitly
mentioned.169 IHL provisions are, of course, incorporated into the US Army’s ten
Soldier’s Rules, the US military’s Code of Conduct and many other aspects of US
military training.170
Nevertheless, in many militaries there does sometimes appear to be a tension
or disconnect between aspects of training which inculcate a warrior mentality, and
those which teach IHL rules.171 Though the power of warrior

159 I use the US military as an example because its rules and values are so transparent and accessible. See US
Army, “The Army Values”, available at: www.army.mil/values/index.html. See also Association of the
United States Army, “The Code of Conduct”, available at: www.ausa.org/code-conduct; Mick Howard, “A
Military Tradition Institutionalized: Rhetorical Personification and Anthropomorphism in ‘The Rifleman’s
Creed’”, Journal of Military Experience, Vol. 3, No. 2, 2013, pp. 121–122.
160 M. Howard, above note 166; see also “The Rifleman’s Creed”, YouTube, available at: www.youtube.com/
watch?v=M11XkE6KBro.
161 “Setting the Tone for Each Service: Learning the Military Creeds”, Military.com, available at: www.
military.com/join-armed-forces/military-creeds.html.
162 See the US Army, above note 166. For the US Army Soldier’s Code, see: www.uvu.edu/rotc/resources/
soldiers-creed.html.
163 Chris Jenks, “The Efficacy of the U.S. Army’s Law of War Training Program”, Articles of War, 14 October 2020,
available at: https://lieber.westpoint.edu/efficacy-u-s-armys-law-of-war-training-program/. Note that the
“Soldier’s Rules” are less visible than the US Army Values and various creeds on the Internet. Interestingly,
the US Military’s Code of Conduct invokes IHL provisions (specifically Article 17 of Geneva Convention
III) for the benefit of US military personnel should they become prisoners of war, but not necessarily for
anyone else: “Should I become a prisoner of war, I am required to give name, rank, service number, and
date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or
written statements disloyal to my country and its allies.” See Association of the United States Army, above
note 166.
164 Ibid. See also above note 166.

codes to motivate combatants lies in their simplicity, they have often traditionally
been informed by religious teachings that emphasize restraint. There would therefore
appear to be scope to incorporate more explicit IHL norms into 13warrior codes, and to
translate them into language that is more motivational. The Round Table Oath from
Thomas Malory’s 1485 Morte d’Arthur, for example, explicitly states that knights
should be merciful, “and always to do ladies, damosels, and gentlewomen and
widows succour [and] strengthen them in their rights”.172 Admittedly, this appears in
a work of fiction, and was not necessarily reflective of contemporary practice.173
Nevertheless, given the prevalence of conflict-related sexual violence and rape
culture (of which men and boys can also be victims) in some militaries, the
integration of similarly explicit prohibitions into their warrior ethos would perhaps
not be amiss.174
Warrior codes are supplemented by regimental mottos, songs, war cries and
A Bartles‐Smith

insignia which often have religious symbolism or content. 175 Weapons systems are
still often named using religious terminology, and war cries of various regiments in
the Indian military, for example, include exhortations to various Hindu gods, just as
the Islamic Takbir – “Allāhu ’akbar”, meaning “God is the greatest”– is commonly
employed by Muslim fighters.176 Religious symbolism among armed forces is on the rise
in many contexts, as the consecration of the new Russian Orthodox Cathedral of
the Armed Forces in 2020 illustrates.177
Most militaries also encourage the honouring of former heroes or exemplars.
Future officers at Westpoint Military Academy in the United States are enjoined
to remember the “Long Gray Line” of former cadets, including great US generals of
the past, while British Marines treasure the memory of those who have received the
prestigious Victoria Cross, often when laying down their lives for their comrades.178
Of course, this is problematic when war criminals are heroized, as is still the case for
figures such as Ratko Mladić in the former Yugoslavia.179 Religiously inspired war
epics such as the Indian Mahābhārata

165 Felicia Ackerman French, “Never to Do Outrageousity nor Murder…”: The Code of the Warrior in the
World of Malory’s Morte d’Arthur”, in S. E. French, above note 150, p. 120.
166 Malory was himself a warrior, but he wrote Le Morte d’Arthur in prison and was hardly a model of good
behaviour. Indeed, according to Shippey, he must be “the least politically correct author still commonly
read”. Malory was himself charged with rape, though the details of the case are unclear. See Catherine Batt,
“Malory and Rape”, Arthuriana, Vol. 7, No. 3, 1997, p. 79.
167 Contemporary warrior codes should also be vetted so as not to perpetuate unhelpful gender stereotypes.
Women, Peace, and Security and feminist scholars have also critiqued aspects of IHL in this respect. See,
for example, Orly Maya Stern, Gender, Conflict and International Humanitarian Law: A Critique of the
“Principle of Distinction”, 1st ed., Routledge, Abingdon, 2018.
168 R. E. Hassner, above note 12.
169 Walter A. Dorn and Richard Rose, “Hindu References in the Indian Military: Weapons, War Cries and
Insignia (Tables for Primary and Preliminary Research)”, unpublished draft for ICRC, 1 December 2021.
170 Shaun Walker, “Angels and Artillery: A Cathedral to Russia’s New National Identity”, The Guardian, 20
October 2020, available at: www.theguardian.com/world/2020/oct/20/orthodox-cathedral-of-the-armed-
force-russian-national-identity-military-disneyland.
171 S. E. French, above note 150, p. 19.
172 Bruno Waterfield, “War Criminals Are Heroes in Balkans, Says UN Prosecutor”, The Times, 6 June 2021,
available at: www.thetimes.co.uk/article/war-criminals-are-treated-as-heroes-by-genocide-deniers-in-the-
balkans-zkd5sjdpz.

(c. 400 BCE–300 CE) are at the core of many religions and cultures, and their heroes
provide military role models that are more real for many of today’s combatants than
their own flesh-and-blood contemporaries.180 Historical accounts also contain
inspiring religious role models; the fact, for example, that the Prophet Muhammad
successfully commanded armies is of central importance to the Muslim conduct of
war.
Many military experts, such General H. R. McMaster of the United States,
maintain that a warrior ethos is “foundational to norms involving professional ethics,
discipline, and discrimination in the use of force, [and is] essential to making war
less inhumane”.181 Others regard it as a dangerous relic, or expression of toxic
masculinity, which does more to undermine discipline and morale than reinforce
it.182 Research shows that military personnel fight mainly for their comrades and to
preserve their honour and that of their unit183 – but this close-knit comradeship is
14 often inconducive to empathy for outsiders, and consequently to restraint in the use
of force against them. A downside to more informal cohesion dynamics is that they
can degenerate into deviant behaviour, including complicity in IHL violations and in
covering them up.184 Combatants brutalized or degraded during training by hazing
rituals that verge on torture are more likely to treat adversaries and civilian
populations in a similar way.185 Just as powerful religious resources can be
channelled to either promote or override restraint, a warrior ethos can have both a
positive and negative impact on adherence to IHL depending on its content and
application.
Military ethics and warrior codes that emphasize restraint can help give
nobility to a profession that would otherwise degenerate into senseless slaughter,
acting, in the words of Shannon French, as “moral and psychological armor that
protects the warrior from becoming a monster in his or her own eyes”.186 The obverse
of honour is of course shame, which is often a far more powerful deterrent to
immoral acts than any sanctions mechanism since it impinges on the

173 S. E. French, above note 150, p. 254.

181 H. R. McMaster, above note 159.
182 Ryan Noordally, “On the Toxicity of the ‘Warrior’ Ethos”, Wavell Room, 28 April 2020, available at:
https://wavellroom.com/2020/04/28/on-the-toxicity-of-the-warrior-ethos/; Gilbert Holleufer, “Heroic
Memory and Contemporary War”, International Review of the Red Cross, Vol. 101, No. 910, 2019.
183 Christopher Hamner, “Why Do Soldiers Fight?”, Historically Speaking, Vol. 13, No. 1, 2012;
H. R. McMaster, above note 159.
184 The Inspector-General of the Australian Defence Force Afghanistan Inquiry Report into unlawful conduct by
Australian Special Forces in Afghanistan graphically illustrates these dynamics, and the dangers of units
operating in an environment detached from proper military oversight and societal norms. Part 3 (p. 325
onwards) on “Strategic, Operational, Organisational and Cultural Issues” is particularly relevant. See
Inspector-General of the Australian Defence Force Afghanistan Inquiry Report, 2020 (Brereton Report),
available at: https://afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/IGADF-Afghanistan-
Inquiry-Public-Release-Version.pdf.
185 Such was the case in the German and Imperial Japanese Armies during World War II. The brutality of the
Russian military in Syria and Ukraine has also been partly attributed to the prevalence of dedovshchina, or
hazing, in its ranks. See Bret Devereaux, “What Makes Armies Commit Atrocities?”, Foreign Policy, 6
April 2022, available at: https://foreignpolicy.com/2022/04/06/russia-ukraine-atrocities-war-crimes/; “Russia
Leaves a Trail of Atrocities in Ukraine”, Financial Times, 5 April 2022, available at: https://
tinyurl.com/4fmh97py.
186 S. E. French, above note 150, pp. 8, 12.

combatants’ sense of moral self-worth, and is often alluded to in various military

Comparing IHL and religious resources

However, the power of religion is not fully exerted if it is engaged only to promote
IHL or otherwise facilitate the agendas of humanitarian organizations. Moreover, if
religious organizations perceive themselves to be instrumentalized, then enthusiasm
will be low and engagement might also backfire. Advocates of IHL must therefore
have a sincere desire to learn about religion in order to properly enlist their
support. This works both ways, of course, since religious leaders must have an
interest in learning about IHL to achieve mutual dialogue built on trust.
One of the best ways to disseminate IHL is by comparing it with the
religious normative systems that inform most peoples’ lives and are far older, more
extensive and more deeply entrenched across the world. Insofar as IHL and religious
teachings or practices converge or otherwise endorse one another, the legitimacy of
IHL and the relevance of corresponding religious teachings will be reinforced,
helping to regenerate rather than displace traditional cultures. Exploration of
religious resources can furnish insights on how to develop or better implement IHL
rules, while IHL can demonstrate how religious resources might be repurposed to
regulate contemporary armed conflicts.
Such two-way debate is more effective at embedding key concepts and ideas
than decontextualized IHL training and promotion, or cherry-picking from religious
texts in order to obtain endorsement for IHL. Research has demonstrated that
individuals are more likely to converge upon impartial norms when they are able to
15moral reasoning and
empathize with the perspectives of others and engage in explicit
argument in support of their respective positions, ideally by meeting face to face.215
Whether common sense or something approximating to Habermasian practical
discourse, such fora help to dissolve mutual misconceptions and develop significant
convergence around common norms, without alienating and drowning out divergent
voices.216 Multi-sectoral debate on correspondences between IHL and religious
principles is particularly fruitful, bringing together religious leaders, military or
armed group personnel,

211 David Traven, “Moral Cognition and the Law and Ethics of Armed Conflict”, International Studies
A Bartles‐Smith

Review, Vol. 17, No. 4, 2015.

212 Ibid.

legal experts, academics and humanitarians who might otherwise confine themselves
to their respective spheres, and whose thinking might therefore be rather one-
dimensional.217 This helps not just to build consensus around common
humanitarian norms, but also to develop collaboration on how to put them into
practice.
While convergence on some core principles, such as protecting civilians, is
clearly important, the differences between IHL and various aspects of religion are as
enlightening as the similarities, generating mutually beneficial dialogue which is far
more effective at promoting genuine ethical reflection than superficial consensus in
which difficult issues are not even raised. Discussion of more intractable problems
undoubtedly benefits from the injection of diverse religious, philosophical and
cultural perspectives, not least on how IHL might be enhanced. Indeed, debate is the
goal as much as the means of this process, since IHL and religious ideas must be
challenged and critiqued in order to be properly understood, and to bring contentious
or unexplored issues out into the open. Where the resources within religions to
regulate armed conflict have not been highlighted or explored, comparison with
IHL helps moreover to revivify them and bring them to the fore. Comparative
work on religion and IHL has highlighted some religious teachings that were not
common knowledge before and has contributed to the excavation of otherwise
neglected texts, thereby reinvigorating the study of religious regulation of war.218
Expectations on both sides must of course be managed, since this is a long process.
Religious leaders should not feel pressured to make changes based on
recommendations from IHL scholars or practitioners, just as religious leaders should
not expect IHL experts to promote their particular interpretations in international
fora.

213

16