Compliance with and Enforcement of IHL

Provisions under the Geneva Conventions and Additional Protocols

Protecting Powers: The Geneva Conventions introduced the system of appointing Protecting Powers in order to ensure that protected persons are treated in accordance with the Conventions (common Art 8). This system has not been effective, however, and has rarely been implemented. The Geneva Conventions also provide for the ICRC to take the place of the Protecting Powers, if none are appointed, and make provision for the ICRC to visit prisoners of war and detained civilians (common Art 10) (Pfanner, 2009). The ICRC today declines to act as protecting power instead of acting on its own behalf.

Fact-Finding Commission: Additional Protocol I introduced the International Humanitarian Fact-Finding Commission, with the role of inquiring into any allegations of serious violations of the Geneva Conventions or API (Art 90). The Commission has rarely been relied upon, however, probably in large part due to the requirement that inquiries can only be initiated by state parties into other state parties, rather than allowing for initiation by individuals claiming breaches of IHL (Pfanner, 2009). (UN Fact-finding missions will be discussed later in this section).

Penal Measures: Another method of enforcement envisaged by the Geneva Conventions and AP I is the obligation by state parties to investigate persons accused of carrying out or ordering the most serious war crimes, known as grave breaches (wilful killing, torture or inhuman treatment, biological experiments, wilfully causing great suffering, causing serious injury to body or heath, unlawful and wanton extensive destruction and appropriation of property not justified by military necessity). Grave breaches are liable to punishment and prosecution (GCI, Art 49, GCII, Art 50, GC III, Art 129, GCIV, Art 146). While many states have incorporated clauses in their national penal systems, providing for sanctions for grave violations of IHL, it is up to them to decide how and by whom such measures should be taken (Philippe, 2008).

Reparations: Should parties to a conflict be held responsible for breaches in IHL in international armed conflict, there is an obligation to pay compensation (AP1, Art 91). It remains disputed, however, whether an individual right to reparations is recognised under IHL (Pfanner, 2009).

Military counsel and sanctions

Uniformed military lawyers comprise the compliance unit within the military. They work to ensure that commanders and troops obey the rules of engagement, which operationalise IHL. A study of military lawyers in the US Army Judge Advocates General’s Corps (JAG) found that they help to devise the rules of engagement and train troops in these rules, prior to deployment and on the battlefield. In order to promote salience and compliance, these rules are framed in a way that demonstrates their contribution to military effectiveness (Dickinson, 2010).

Soldiers who use excessive force are also subject to disciplinary action, often resulting in criminal or administrative penalties. Disciplinary sanctions can be used to repress not only grave breaches but also other violations of IHL. Depending on the scope of military disciplinary law provided for in a state, the impact on compliance with IHL can be significant. Sanctions have a dual aim: education, which involves encouraging soldiers to discharge their responsibilities better and to respect the rules; and dissuasion, which serves as a warning to all personnel under the authority imposing the sanction. In order for national military disciplinary sanctions to promote compliance with IHL, they must be based on rules that are themselves inspired by IHL (Renault, 2008).

Fact-finding

Fact-finding can be defined as a method of determining facts through the ‘evaluation and compilation of various information sources’ (Boutruche, 2011, p. 2). While fact-finding missions, such as those conducted or supported by the UN Office of the High Commissioner for Human Rights and the UN Human Rights Council (UNHRC) have focused on human rights violations in peacetime and during armed conflict, they have more recently expanded to include coverage of IHL – for example, the UNHRC sponsored fact-finding on the Gaza conflict (2008-9) and on the ‘Israeli attacks on the flotilla of ships carrying humanitarian assistance’ (2010). Other examples of fact-finding by the UN on IHL issues including the Kalshoven Commission in Yugoslavia (1992) and the International Inquiry on Darfur (1995), both of which were authorised by the UN Security Council.

Fact-finding has also extended to cover non-state actors, such as the Darfur rebels and the Palestinian authorities (Yihdego, 2012). There have also been fact-finding visits of the UN special rapporteur on violence against women to various conflict areas, such as Darfur, the DRC and Palestine.

By ascertaining facts and interpreting and applying general IHL rules, fact-finding can play an integral role in the implementation of IHL. Fact-finding can also facilitate determinations of individual criminal liability. Some UN fact-finding reports (e.g. Yugoslavia and Darfur) have led to criminal indictments (Boutruche, 2011).

There are various challenges to fact-finding on international human rights and humanitarian law violations. These include:

• Separating fact-finding and legal evaluation.
• Lack of information, making it difficult to reach definite conclusions and to satisfy robust standards of proof.
• Establishing facts dependent on complex aspects of armed conflict, such as command structures, legitimate military targets, and principles of proportionality.
• Securing cooperation from the parties to the conflict in order to access relevant areas to obtain and verify information. There are currently no legal consequences to non-compliance with UNHCR and UN General Assembly fact-finding. In contrast, the UN Security Council can refer fact-finding to the ICC or to a special criminal tribunal (such as in the case of Yugoslavia) (Boutruche, 2011).
• Lack of witness protection mechanisms to protect those who come forward to give information
• Addressing the dilemma faced by humanitarian actors, whose participation in fact-finding and other accountability mechanisms may undermine their access to populations in need (see also International criminal law below).
• The interplay of human rights and IHL in inquiries; facts in question can vary depending on whether they are assessed under IHL or under human rights. Legal conclusions will also vary according to the body of law applied. Boutruche (2011) notes that Commissions of inquiry tend to affirm the complementary nature of human rights and IHL, highlighting in addition the principle of lex specialis.
• Communicating the importance of fact-finding to local communities that have been affected by violent conflict and the links to accountability and protection.

Human rights bodies

International humanitarian law focuses on ‘the parties to the conflict’. In contrast, international human rights law is formulated as individual entitlements and provides for a right to remedy, through lodging individual complaints against alleged violations. Such a right does not exist in IHL. As such, human rights bodies – human rights treaty monitoring bodies and the Human Rights Council – have increasingly been called upon to scrutinise the application of human rights law in situations of armed conflict. While their competence is generally confined to determination of violations under human rights law, this does not preclude them from taking into consideration provisions of IHL in order to interpret such norms. The involvement of human rights bodies in situations of armed conflict can be beneficial in terms of using human rights law to supplement and assist in interpreting state obligations under IHL (Byron, 2006-7).

Some scholars have argued, however, that the consideration of IHL by human rights bodies can be problematic. Human rights bodies often lack expertise in IHL and may reach conclusions contrary to humanitarian law experts (Meron, cited in Byron, 2006-7). Should human rights bodies continue to deal with cases involving armed conflict, it is important that an effort is made to employ more members with IHL expertise. Another criticism is that human rights law is not enforceable against non-state groups. As such, the findings of a human rights body addressing a case involving a non-international armed conflict may appear one-sided since it cannot hear applications against or demand reports from non-state entities (Byron, 2006-7).

Courts, tribunals and international criminal law

The International Court of Justice

The International Court of Justice, the main judicial organ of the United Nations, applies all bodies of international law. It contributes to the implementation of humanitarian law through its jurisprudence and its advisory opinions. It can be called upon to settle a dispute between states on the application of IHL so long as both states have consented to the Court’s jurisdiction. The ICJ’s interpretations of IHL, judgments and opinions are influential and widely respected. (See, for example: the case of Nicaragua vs. the US, concerning the provision of aid to the Contras in Nicaragua in this guide’s section on Humanitarian Principles and Humanitarian Assistance; and the Legality of Nuclear Weapons and Construction of a Wall in the Occupied Palestinian Territories opinions in the section on Overlapping Areas of Law.) However, judgments may not necessarily be implemented. The US has yet to pay war reparations to Nicaragua, as ordered by the Court; and the opinions are inherently non-binding (Pfanner, 2009).

International Criminal Law

International criminal law prohibits certain categories of conduct viewed as serious atrocities (primarily war crimes, crimes against humanity and genocide) and seeks to hold accountable individual perpetrators of such conduct (individual criminal responsibility). Grave breaches of IHL rules, as specified in the Geneva Conventions (see Provisions under the Geneva Conventions and Additional Protocols above), constitute war crimes for which individuals can be held directly accountable. It is the primary responsibility of states to prosecute these crimes. If a state is unable or unwilling, then the crimes can be tried by international criminal tribunals established by treaty or by a binding decision of the UN Security Council (Posse, 2006).

International ad hoc tribunals (e.g. ICTY and ICTR), mixed tribunals (e.g. the Special Court for Sierra Leone), and the permanent International Criminal Court have been set up to enforce individual criminal responsibility for violations of IHL, crimes against humanity and genocide. Responsibility is incurred not only by acting, but also by failing to act where there is an obligation to act. This includes military leaders and their superiors who fail to take necessary and reasonable measures to prevent or suppress the commission of unlawful acts by subordinates, over whom they have effective control (Posse, 2006). This form of liability, termed ‘command responsibility’ has been established by the ICTY and ICTR.

Court decisions are not simply declaratory of the law, but courts themselves are important actors in their development. The ICTY and ICTR interpreted their mandate as extending to non-international armed conflict, whereas the Geneva Conventions and Additional Protocols only specified the application of individual criminal responsibility in international armed conflict situations. This extended jurisdiction was subsequently incorporated into the Rome Statute of the International Criminal Court. The ICC also specifies two categories of crimes over which they have jurisdiction. The first concerns grave breaches of the Geneva Conventions in international armed conflict and serious violations of Article 3 in the case of non-international armed conflict. The second concerns other serious violations of the laws and customs applicable in international and non-international armed conflicts. This includes ‘intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance [mission]’ as long as they are entitled to civilian protection under IHL (Rome Statute, Articles 2(b)(iii) and 2(e)(iii)). In addition to war crimes, the ICC and the other international (and mixed) tribunals have jurisdiction over crimes against humanity, genocide and the crime of aggression.

Humanitarian organisations operating in conflict areas are often witness to violations that can be used as evidence in international criminal proceedings. However, their participation in such proceedings could undermine their access to populations in need. If parties to the conflict that are facilitating the delivery of assistance are at risk of criminal investigation and prosecution, they may deny humanitarian actors access to affected areas and withdraw from humanitarian dialogue. Humanitarian organisations need to develop a strategy to address this dilemma; and international criminal tribunals need to be aware of these risks. Both sides should work together to minimise potential adverse impacts on the provision of humanitarian assistance (La Rosa, 2006).