24 November 2020 Written by  Debora Belachew and Yehualashet Tamiru

Snapshot Review of Imperative Necessity and challenges for Implementation IHL: Part Two

 

 

1. Problems of Implementation in International Humanitarian Law

 

Failure to implement IHL is conceived as a central problem in contemporary armed conflict laws in general and Ethiopia in particular. However, it must be noted that difficulties regarding securing compliance is not something that is unique to the law of armed conflict, but also an issue in international law. This problem by large is related to the lack of a central enforceable organ that looks after the implementation of those laws.

Although lack of central enforceable organ is one of the central problems with the implementation of international law in general and IHL in particular, there are other inimitable reasons which are typically credited for the failure of IHL being observed. These are the very nature of armed conflict, the inapplicability, and inefficiency of the international mechanism of implementation. These typical features will be explained in the following pages to come.  

 

A. The Nature of Armed Conflict

 

As Cicero expressed while litigating in the courtroom, “silent erimleges inter arma” meaning laws are silent amidst the clash of arms. For most, if not all, governing the war through law is not possible, because from the beginning war is violent in nature.

When we see the trend regarding armed conflict, nowadays, there is no war between two sovereign states. The most widespread form that has a bitter nature is non-international armed conflict. Members of rebel groups are treated or observed as one who committed treason or as a terrorist and the government aims at crushing the rebellion once and for all.

 At times like this the rule of law, the constitutional rights of citizens, and all other laws that were previously guaranteed in the ‘law and order’ of that State will be as if they never existed. In that patriotic feeling or feeling of hatred they are filled with, the armies will not think of all the articles that were stated about the right to life or the right to not be harmed. But through the law of war we can try to minimize the effect by regulating the conditions of war and by controlling the conduct of the warring parties. Because, unlike other laws that does not preside over such violent circumstances, IHL will be applicable in a situation where emotion prevails over reason. As a result, it makes the implementation difficult.

 

B. Inapplicability of Enforcement Mechanisms in International law to IHL

 

To signify this issue, it is customary in this regard to quote Sir Harsh Lauterpecht’s statement. “If international law is in some ways at the vanishing point of law, the law is perhaps even more conspicuously at the vanishing point of international law.”

The traditional means of implementing international law is not as equally important for IHL. One of such means is the settlement of dispute through amicable dispute settlement. However, it is very difficult to imagine such a scenario for IHL given that from the beginning the two sides are engaged in armed conflict due to their inability of settling their dispute peacefully. If this is not possible, the other mechanism to endure the observance of an international rule is through the use of a combination of “preventive and reactive influence”.

Needless to say, it is hardly applied because there is only limited circumstance to use force through collective security. Under Chapter VII of the UN Charter the Security Council, a collective measure is taken if the act will lead to disturbing peace and security of the world or international community. However, as we discussed earlier on most armed conflicts that are non-international, unless an overstretched interpretation is employed it does not affect the peace and security of the world. Therefore, to use force in order to ensure observance of IHL is very rare and difficult.

The other means used in international law and IHL is the involvement of third-party states. This is provided under Article 1 of the Four Geneva Conventions and Additional Protocol I which reads as follows:

“The high contracting parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

Therefore, third party states are obligated to ensure the observance of the rule enshrined in the convention. They can involve, but as to how that contracting party is involved to ensure the observance of the rule is not dealt with in this law. This is again not as effective because third party states may be reluctant to take action because of political considerations.

 

2. The Inefficiency of Complementing Mechanisms at the International Level

 

In general the implementation mechanisms for international law are almost next to zero to apply in the case of IHL. The drafter of the rules on IHL considered this and came up with various mechanisms to accommodate the special and unique nature of IHL. The international measure of ensuring compliance with humanitarian law is basically through the instrumentality of the International Humanitarian Fact-Finding Commission, the Institute of Protecting Power, and the role of the International Red Cross Committee. This is also incorporated under Article 90 and Article 5 of Additional Protocol I. Each will be discussed briefly.

 

I. The International Fact-Finding Commission

 

As an old saying goes “in war, truth is the first casualty.” In a hostile environment, there is always a tension of claim and counter-claim portraying the other party as evil. In recognition of this, the 1977 additional protocol established the International Humanitarian Fact-Finding Commission.

As the very name indicates the commission is engaged in the fact-finding process. The close look of Article 90 (2) (c) (i) of Additional Protocol I shows that there are two areas in which this commission will engage. These are issues that are related to allegations of “grave breach” and “serious violation” of the 1949 Geneva Conventions. This being an important mandate, however, there is a very serious limitation in the Commission, that is jurisdiction.

As provided under Article 90 (2) (a) of Additional protocol I the jurisdiction is optional, meaning it is only when the party agrees to accept the mandate of the fact-finding process to this organ. Even though there are 168 State Parties to Additional Protocol 1, only 70 of them have made the declaration to accept the competence of the Commission. Therefore, it lacks compulsory jurisdiction.

It is not a point of disagreement that if a country believes that it has committed a ‘grave and serious’ crime while waging war, then it is unlikely to submit its consent to this organ. In fact, this is a big bar for the well-functioning of the Commission.

 

II. Institution of Protecting Power

 

As provided under Article 2 (1) of Additional Protocol I the institution of protecting power is envisaged as one mechanism for the implementation of IHL. From a close look at the definition provided in the aforementioned Article, the protective power may be either ‘neutral or other state’. However, that state should not be a party to the conflict. Does a state which has an interest in the outcome possibly be a protective power? The answer is affirmative because the phrase ‘other states’ separated from the neutral state, gives us a clue that what is prohibited is those states directly engaged in conflict. This point of interpretation becomes more tenable because after all the ‘envisaged protective power’ must get the approval of the states in conflict.

In the two world wars, the ‘protective power’ was mainly done by Switzerland. This nowadays cannot be effectively used for one reason. Almost all states are party to the UN. One of the obligations imposed on the member of the states is to assist to achieve the goal and purpose of the charter, more specifically the mission of keeping peace and security by the Security Council. However, nowadays what we witness is more of ‘collective security’ in which no member state of the UN can participate effectively in providing protection as protecting power.

Taking this difficulty in mind, Article 10 of the first Geneva Conventionenvisages the possibility to entrust an organization that takes care of all power which is the mandate of protective power. However the phrase ‘may’ indicates that it’s optional and it’s up to the high contracting parties to do so. The absence of mandatory obligation is taken as difficulty in relying on these provisions as a means to implement IHL.

 

III. The International Committee of Red Cross (ICRC)

 

The role of ICRC is clearly stipulated under Article 9 of the first Geneva Convention. This organ is one of the most important and crucial for the implementation of IHL. However, there is one major constraint as far as the legal aspect is concerned.

 As we discussed most of the armed conflicts currently are non-international. As per Article 18 of Additional Protocol II the intervention of ICRC is severely limited and left to the discretion of the parties to the conflict.

 

3. Retreating from the Rome Statute

 

The United Nations has considered the idea of establishing a permanent international criminal court various times since the end of the Second World War. In 1993 and 1994, it set up two ad hoc tribunals to punish the serious violation of IHL committed, in the former Yugoslavia and Rwanda respectively. However, this process culminates after the establishment of the International Court of justice.

Preceding the Roman statute, which established the International Criminal Court (ICC), the rules of IHL existed. The responsibility to enact legislation and to provide for effective penal sanction is the individual state parties’ i.e. high contracting parties. Those IHL treaties require state parties to repress grave breach of IHL, which are considered as war crimes according to their respective provisions. High contracting parties are under the obligation to search and punish the offender, irrespective of the nationality of the offender.

ICC is established by the Rome statutes of 1998, which entered in to force in 2002. The International Criminal Court is established to investigate and prosecute individuals who committed the most serious crimes of international concern namely genocide, crimes against humanity, and war crimes. Article 8(2) defines four different categories of war crimes, with the first two applying to international armed conflict and the last two to internal conflicts. In so doing the statutes mention the distinction between the two types of situations.

It is evidently clear that the presence of ICC as a permanent international judicial institution helps the implementation of IHL rules by punishing the offender. As the convention and punishment are the most fundamental factor for the existence and proper functioning of any law, the ICC by complimenting national criminal courts will yield to IHL as one option for punishing war criminals. Thus it will reduce the possibility of violation of IHL that goes unpunished.

Despite the importance of the ICC, various grounds make it difficult to rely on for the implementation of IHL. The following are the major reasons:

  1. The primary duty to prosecute the offender is the state party’s concern and ICC comes into the scene and assumes jurisdiction only if the state is unable or unwilling to prosecute the person.
  2. The superpowers like the USA, Russia, and Japan are not members of this treaty. In addition, great power calls upon the member states to withdraw from it. And currently, in Africa the state expresses their grievance as to ICC focuses by and large on Africa. Hence it becomes too ineffective to implement. Therefore, because of this and other reasons, ICC is not as reliable as one means of implementing IHL.

 

4. Conclusion remarks

 

Despite the fact that IHL was found as early as 3000 B.C the modern systematic development comes into scene after the battle of Solferino. The first convention came into picture only with 10 provisions. After that, we got the four Geneva conventions adopted since 1949 and two additional protocols. Nevertheless, the mere presence of comprehensive law does not guarantee enforcement. We have witnessed the violation of many IHL rules. The main reason for this is the lack of enforcement mechanisms.

As a law is designed with a specific objective in mind that later has to be communicated and clear to the ones involved in implementation and to the citizens. For the good of everyone, to reduce the harm that comes with armed conflict it is important to understand and respect IHL. It is also important to ensure that it is respected by those who are involved in the conflict. 

IHL, properly implemented can reduce damage and human suffering that is often seen after the end of a war. It will hold responsible those who are acting against the agreement. Both the state parties and any other individuals that are responsible for the violation of the law. Which would not have been possible without the coming into picture of IHL, as war makes people unable to think in their right mind and go for total destruction it would have been hard to control wars with laws but what IHL does is bring principles as to how the armed conflict has to go like. The do’s and don’ts that is later taught to soldiers in their camp by these people that includes not harming people who are not involved, people who are sick, people who are detained … etc, 

The implementation mechanism for international law is not fit for IHL owing to its special nature. On the other hand, the means envisaged to accommodate the special nature of armed conflict rule by coming up with a special arrangement is not free from defect and constraint. Hence, it is possible to conclude that the mechanisms currently employed by international law in general and IHL in particular towards ensuring observance and implementation of IHL is ineffective.

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