The framework is comprised of three major elements:

Engagement with IHL cannot and should not follow a universally applicable template but requires a context-specific approach. Therefore, an assessment of the context should be the first step of a potential intervention to assess if IHL applies, what type of conflict is taking place, and which major state and non-state actors are involved.

Any such assessment needs to be regularly updated as conflicts can evolve: they can, for example, simply end (and hence end the applicability of IHL), develop from a non-international armed conflict (NIAC) to an international armed conflict (IAC), or involve new actors.

This process should also include an assessment of the attitude of the relevant armed actors towards IHL – for example if they accept the applicability of IHL. Knowing where they stand will help determine whether IHL is an effective tool for an intervention. It is important to note that, even if the application of IHL is disputed, international human rights law remains applicable.

This assessment should also explore if engagement with IHL is sensitive and assess why. It is important to be aware of the fact that attitudes within a state can differ. For example, the military, the judiciary, and various government ministries may view engagement with IHL differently.

An assessment of the landscape in step one helps to shape an intervention. The second step is to determine whether IHL is the most effective tool to address a specific protection issue. The value of IHL can be assessed through an analysis of two elements:

A) Evaluating a specific legal provision and its overarching rationale itself – thus whether it is restrictive, permissive, or neutral: Knowing how permissive or restrictive a legal provision is, can influence significantly how useful it may be to promote a humanitarian outcome. For example, if an act is strictly prohibited, an armed actor will not be able to present a justification for certain behaviour. Many rules of IHL, however, prohibit specific acts but allow deviation under certain circumstances. To assess the validity of and counter potential justifications of an armed actor, a clear understanding of the provision is necessary. For example, in advocacy activities with an armed actor on the issue of attacks on medical facilities, it is important to know that a medical facility can lose its protection from attack in exceptional situations.

B) Assessing if referencing the provision could potentially persuade an armed actor – thus if IHL is the most effective tool: Humanitarians sometimes assume that public and private advocacy towards armed actors should by default be framed with reference to IHL, particularly when IHL sets out a very high standard of protection.

Such an approach assumes that the armed actor is concerned about the reputational and legal consequences of possible violations. However, particularly when working on prevention it is important to understand what factors or interests are likely to have the most persuading power and the greatest influence on the behaviour of an armed actor.

For example, if an armed actor intends to order the displacement of thousands of people, and those that remain will be considered non-civilians in potential violation of IHL, the actor might not be persuaded by the argument that his plans are likely illegal. Instead, a more strategic argument could be to highlight the risk of triggering a health crisis or causing a backlash from local communities. While these arguments do not make explicit reference to or mention IHL, they could still be more convincing and make the armed actor respect the law.

The final element to consider is the availability of facts about a possible IHL violation. A lack of detailed information should not discourage an intervention or prevent a sensitive issue being raised. However, when the facts are not clear, a more nuanced language may be required. Strong statements about violations of IHL should be made with caution, especially in the immediate aftermath of an event when not all facts may be known. As a reference point, Commissions of Inquiries are often able to authoritatively make such assessments and provide guidance. Often, however, even these Commissions are careful and either speak of “alleged violations” or do not identify individual perpetrators.