In this summary, we will explore the possibilities for the enforcement of international humanitarian law. We will consider criminal enforcement through war crimes law as well as a variety of non-criminal alternatives, including the International Humanitarian Fact-Finding Committee, Protecting Power...
Seminar 9 – Enforcement of International Humanitarian Law
S Vonecky, ‘Implementation and Enforcement of International Humanitarian Law’ in D Fleck ed., The Handbook
of Humanitarian Law in Armed Conflicts (Oxford: OUP, 2013) 647-700
The law does not require there to be counteraction in order to show that the violation of a certain
humanitarian rule is a violation of the law. It is a peculiarity of international law that legal rules are
not implemented and enforced through a central body. This is a fundamental difference from national
law
Does not mean there is not enforcement however. In particular, international courts and tribunals have
been set up to rule in some areas. Apart from this, enforcement lies with individuals members of the
international community, which have recourse to different enforcement methods
This system has its advantages. It makes enforcement more flexible for example. There are however
difficulties as well. Because international law often overlaps, this system can often lead to hierarchical
ambiguity in terms of norms. Also leads to issues in enforcing the means and methods of warfare.
General
Violations of International Humanitarian Law (IHL) are committed by almost all parties to armed
conflicts. However, published reports and internal findings show that the protective provisions of IHL
have prevented a great deal of suffering in many cases.
The realization of legal obligations is to a great extent dependent of the effectiveness of law
enforcement and implementation. This requires that parties know what the law is, and the
consequences any breach could lead to.
Rule 139 of Customary International Humanitarian Law (CIHL), and Common Article (CA1) 1 to the
GC’s (Geneva Conventions) requires each party to the conflict to respect, and ensure respect for IHL
by its armed forces, or those under its direction. This is regardless of whether or not the other side
respects IHL. Also part of CA3 in relation to NIAC’s (Non-International Armed Conflicts), and those
groups that are not ‘high contracting parties’.
States also have an obligation to assist and co-operate in the bringing to justice those responsible for
certain serious violations of IHL – Article 89, AP (Additional Protocol) 1. Not clear if this obligation also
encompassed in CA1.
In situations where Stares are in a coalition, the fact that one State may be have ratified higher
obligations than another is also a potential issue. E.g. particularly in NIAC’s, if one State is only bound
by CA3, and the other has ratified AP2. In such cases, the state bound by less norms cannot request
the state bound by more norms to do anything that might contradict the latter’s obligations under IHL.
This can be derived from general rules of international treating law, such as the obligation of a state
not to act in a way inconsistent with a treaty.
Ways of Inducing Parties to Comply with IHL
1) Public Opinion – Role public opinion is playing in the enforcement of IHL is growing. States want to
act in a way which is seen as lawful in the eyes of their citizens. However, technology such as the
internet, whilst making state practice more easily known, can also lead to misinformation – e.g. in
Syria, difficult to distinguish between fact and propaganda
2) Reciprocal Interests of the Parties – Reciprocity in IHL also important. Likely if one side does not
respect the laws of armed conflict, the other might not either. This makes it more likely in state v
state conflict that IHL will be observed, but less likely in state v group conflicts (e.g. the War on
Terror) that such rules will be maintained
3) Fear of Reprisals – Breach of IHL can be countered by an act normally contrary to IHL in
punishment (a reprisal). Come from the principle of reciprocity. However against ideas of modern IHL,
that the rules apply in all circumstances
4) Penal and Disciplinary Measures – Fear of disciplinary action or of criminal punishment also useful.
Evolution of international Criminal Law (ICL), and the establishment of post conflict courts and the
International Criminal Court (ICC), makes it more likely that crimes will be punished, particularly
when states reluctant to prosecute themselves. Not sufficient in itself however, superiors must make it
known to combatants the rules of IHL, so that they can comply
5) Liability for Compensation – International Law recognises that in some situations states may be
able to claim compensation for breaches of the law. For International Armed Conflicts (IAC’s), this is
recognised by Article 3 to Hague Convention (HC) IV, and Article 91 API – compensation may have to
be paid for violations of IHL by States, carried out by their forces. Has not been implemented many
times however. Requires breaches to be detected, to be sufficiently serious, and subsequently for the
state to recognise this, and be willing to pay up,
, Seminar 9
6) The Role of Protecting Powers – e.g. Article 5 AP1 – reaffirms the duty of parties to IAC’s to
secure supervision and implementation of GC’s and AP1 by the application of the system of protecting
powers – has not be implemented often however
7) The International Committee of the Red Cross (ICRC) – Provides protection and assistance to
victims of armed conflicts, and acts as a guardian to IHL. Important in situations of both IAC’s and
NIAC’s in looking after protected persons.
8) The United Nations – Plays an important role in advocating for, and strengthening IHL. For example,
the Security Council (SC) is granted powers under Chapter VII of the UN Charter to employ coercive
measures against a threat to or breach of the peace, or against acts of aggression (Article 39). As
every armed conflict falls under Article 39, Chapter VII is an enforcement mechanisms that can, if
invoked, be used. E.g. in the conflict in Libya, the SC passed a resolution to prohibit military flights
above the country (a no-fly zone). Can also pass cases to the ICC. Chapter VII grants the SC of the
UN with a great amount of power therefore.
9) Third States – Can intervene against grave breaches of IHL.
10) NGO’s – In addition to the ICRC, NGO’s have increased their activities in helping the victims of
conflicts. Some have also been able to influence politics and public opinion.
Public Opinion
Pubic reports of violations of IHL can help enforce compliance with international law. When offences
become known, this will likely influence the morale of fighting forces, and the civilian population.
Public opinion also how the powerful ability to influence law making, and governments. The internet
can spread information of breaches faster, though does give rise to the great risk of propaganda
Reciprocal Interests of the Parties to the Conflict
Soldiers must treat their opponents in the same manner that they wish to be treated. Although IHL
protection is not subject to the requirement that the other side also protect IHL, the acts of the
opposing party will still likely influence compliance.
Maintenance of Discipline
Ordering, or tolerating acts of IHL can lead to subordinates doubting the justification of their own
side’s activities. Can also undermine the authority of a military leader, and could lead to a break down
in discipline.
Superior who acts in contrary to IHL could damage his own authority
Reprisals
Can lead to parties that are breaching IHL to cease their violations. Reprisals are permissible only in
exceptional cases, and for the purpose of enforcing compliance with international law. They require a
decision at the highest possible political level
Only permitted if they are aimed at stopping ongoing unlawful conduct, they are necessary and
proportionate with regards to the ongoing unlawful conduct, and that they end when the unlawful
conduct of the other side ends. The reprisal also cannot breach a jus cogens
Since WW2, reprisals have been banned against protected persons (E.g. POW’s – see Article 13(3)
GC3, and Civilians – See Article 33(3) of GC4, and AP1 Article 51(6)). No justifications for attacks on
protected persons or objects.
In cases where reprisals are resorted to, only senior politicians, and not military leaders, can decide
when resort to them shall be made. Measures that amount to grave breaches of IHL may be
punishable.
Command Responsibility
Also relevant to criminal and disciplinary procedures. Commanders are responsible for the actions of
their units and subordinates. Their behaviour can also invoke state responsibility, as well as individual
responsibility.
Penal and Disciplinary Measures
Each member of the armed forces who violates IHL can be prosecuted for their breach. This includes
grave breaches, which may constitute a war crime. The development of ICL has been important for
this purpose. Has evolved alongside IHL, but has often lagged behind it somewhat.
Following WW1, the punishment of those that had breached CIL or treaty rules of warfare was
considered at the Paris Peace Conference. The meeting established a Commission, whose task was to
investigate responsibility for the outbreak of the war. Commission also responsible for determining
offences against the rules of warfare committed by Germany and its, and could establish a court to
prosecute these offences. The German Reich however refused to hand over those who were sought for
committing offences, and instead punished in their Supreme Court war criminals themselves.
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