INTERNATIONAL IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW

Complexity and diversity are the hallmarks of the armed conflicts taking place throughout the world today. They reflect an international situation which is shifting between two poles. The first of these is a new world order, a more structured world which is better suited to deal with the universal dimension of such major problems of our time as underdevelopment, uncontrolled demographic growth, unemployment, mass migration, drugs, weapons transfers, international crime and the environment. The second is the weakening of States or even the  disintegration of political entities as a result of the current questioning of the validity of borders and social groupings which were artificially created during the colonial era and the Cold War.

International Implementation of International Humanitarian Law

  1. The Establishment of International Fact-Finding Commission.
  2. Enquiry Procedure under the Geneva Conventions.
  3. Role of International Criminal Tribunals to Implemnt International Humanitarian Law.
  4. a) The Hague Tribunal
  5. b) The Arusha Tribunal
  6. c) International Criminal Tribunals and Obligations of States
  7. d) The International Criminal Tribunals and the ICRC.
  8. The Establishment of International Criminal Court and its Role in Implementing Humanitarian Law.
  9. a) The International Criminal Court and the ICRC.
  10. Meeting of the High Contracting Parties to Consider General Problems Concerning the Application of the Conventions and of the Protocol
  11. The Obligation of States to Transmit Official Translations, Laws and Implementing Regulations.
  12. Mutual Assistance of States in Criminal Matters.
  13. Systems for Reporting on the Application of Certain Conventions.
  14. Information transmitted within International Organizations.
  15. a) United Nations
  16. b) Regional Organizations.
  17. Cooperation with the United Nations.
  18. Measures to Exert Diplomatic Pressure.
  19. The Establishment of International Fact-Finding Commission
  • In an effort to seeure the guarantees accorded to the victims of armed conflict, Article 90 of the Protocol I additional to the Geneva Conventions of 1949 (Protocol I) provides for the establishment of an International Fact-Finding Commission. The Commission was officially constituted in 1991 and is a permanent body whose primary purpose is to investigate allegations of grave breaches and other serious violations of international humanitarian law. As such, the Commission is an important means of ensuring that international humanitarian law is both applied and implemented during armed conflict.
  • By recognizing the Commission’s competence, on a permanent or ad hoc basis, a State contributes significantly to the implementation of international humanitarian law and to essuring compliance with it during armed conflict. By depositing a declaration of recognition, a State therefore takes an important step in securing the fundamental guarantees laid down for the victims of armed conflict.

The Commission is composed of fifteen members of high moral standing and acknowledged impartiality, elected for five years by the parties who have declared that they accept its competence.

  1. Enquiry Procedure under the Geneva Conventions:
  • Articles 52, 53, 132 and 149 of the four Geneva Conventions respectively provide identical on enquiry procedure in the event of violation of the Conventions. They read as follows:
  • At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.
  • If agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide on the procedure to be followed.
  • Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.
  1. Role of International Criminal Tribunals to Implement International Humanitarian Law

The United Nations Security Council, acting under Chapter VII of the United Nations Chapter, has established two international criminal tribunals. These tribunals are “ad hoc” – they have been set up to punish crimes committed in relation to two specific contexts: the former Yugoslavia and Rwanda.

  1. a) The Hague Tribunal:
  • The International Criminal Tribunal for the former Yugoslavia, based in the Hague (Netherlands), was established in February 1993 by Security Council Resolution 808. Its jurisdiction is limited to acts committed in the former Yugoslavia since 191 and covers four categories of crimes:
  1. i) Gravebreaches of the Geneva Conventions of 1949;
  2. ii) Violation of the laws and customs of war;

iii) Genocide; and

  1. iv) Crimes against humanity.

These crimes are defined in the Tribunal’s Statute.

  1. b) The Arusha Tribunal
  • The International Criminal Tribunal for Rwanda, based in Arusha (Trnzania), was established in November 1994 by Security Council Resolution 955. Its jurisdiction in Limited to acts committed in Rwanda, or by Rwandan nationals in neighboring States, during 1994. It covers three categories of crimes as defined in the Tribunal’s Statute:
  1. i) Genocide;
  2. ii) Crimes against humanity; and

iii) Violations of common Article 3 of the 1949 Conventions and Additional Protocol II (these set out rules applicable to non-international armed conflicts).

  1. International Criminal Tribunals and Obligations of States
  • States have clear obligations to cooperate with the Hague and Arusha Tribunals, this includes where necessary, the enactment of legislation to ensure the collection of evidence and the arrest and transfer of those accused of crimes within the Tribunal’s jurisdiction.
  • In addition, States are themselves obliged to bring persons accused of grave breaches of the principal humanitarian law treaties, the 1949 Geneva Conventions and 1977 Additional Protocol I for trial before their own national courts or to extradite them for trial elsewhere. There is still a clear obligation on States to bring to justice those accoused of grave breaches and national courts will continue to have an important role in the prosecution of war crimes.
  1. The InTernational Criminal Tribunals and the ICRC:
  • The International Committee of the Red Cross supports all efforts to promote respect for international humanitarian law and, in particular to punish war crimes. In this connection, it has strongly welcomed the establishment of the Hague and Arusha Tribunals.
  1. The Establishment of International Criminal Court and its Role in Implementing Humanitarian Law:
  • The United Nations has considered the idea of establishing a permanent international criminal court at various times ever since the end of the Second world War. A serice of negotiations to establish a permanent International Criminal Court that would have jurisdiction over serious international crimes regardless of where they were committed started up in 1994 and led to the adoption of the Status of he International Criminal Court (ICC) in July 1998 in Rome.
  • Under Article 8 of the Statute, the ICC has jurisdiction in respect of war crimes. These include most of the serious violations of international humanitarian law mentioned in the 1949 Geneva Conventions and their 1977 Additional Protocols, whether committed during international or non-international armed conflicts.
  • Under the 1949 Geneva Conventions and 1977 Additional Protocol I, States must prosecute persons accused of war crimes before their own national courst or extradite them for trial elsewhere. Nothing in the ICC statute releases States from their obligations under existing instruments of international humanitarian law or under customary international law.
  • By virtue of the Principle of complementarities, the jurisdiction of the ICC is intended to come into play only if a state is genuinely unable or unwilling to prosecute alleged war criminals over which it has jurisdiction. To benefit from this principle, States will need to have adequate legislation enabling them to prosecute such criminals.
  1. a) The International Criminal Court and The ICRC
  • The International Committee of the Red Cross supports all efforts to promete spect for international humanitarian law and, in particular to punish war crimes. In this connection, it has strongly welcomed the establishment of the International Criminal Court.

Meeting of the High Contracting Parties to Consider General Problems Concerning the Application of the Conventions and of the Protocol

  • “The depositary of this Protocol shall convene a meeting of the High Contracting Parties, at the request of one or more of the said parties and upon the approval of the majority of the said Parties, to coasider general problems concerning the application of the Conventions and of the Protocol”. (Art. 7, Protocol I).
  1. The Obligation of States to Transmit Official Translations, Laws and Implementing Regulations.

The 1949 Geneva Conventions and their 1977 Additional Protocol I, which are part of the core of IHL, provide for the exchange of information between States parties on national measures to implement their provisions.

  • According to the terms of Articles 48, 49, 128 and 145, which are common to the Geneva Conventions, and of Article 84 of Protocol I, the States parties must communicate to one another the official translations of the treaties in question and any laws and regulations they have adopted to ensure implementation. These translations are to be communicated in peacetime through the Swiss Government, which is the depositary of the Geneva Conventions and their Protocols, and in wartime through the Protecting Powers.

Other treaties make provision for a similar system for exchanging information.

  • The 1993 Convention on the Prohibition of the Development, Production Stockpiling and Use of Chemical Weapons and on their verfication procedures, also requires the States parties to inform the Organization for the Prohibition of Chemical Weapons of the Legislative and administrative measures taken to implement its provisions. (Art. 7, para. 5).
  • Likewise, the 1999 Second protocol to the Convention for the protection of Cultural Property in the Event of Armed Conflict requires the parties to communicate without dely information to one another, through the Director-General of UNESCO, on the laws and administrative provisions they adopt to ensure that the Protocol is applied. (Art. 30,para. 3.)
  1. Mutual Assistance of States in Criminal Matters
  • “ The High Contracting Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of grave breaches of the Conventions or of this Protocol (…). When circumstances permit, the High Contracting Parties shall cooperate in the matter of extradition (…). (Art. 88, Protocol I)
  1. System for Reporting on the Application of Certain Conventions.

The exchange of information is the purpose of the reporting systems for which provision is made in some instruments of IHL. These documents, which are presented periodically, generally contain analysed data and often cover fields other than the adoption of legislative and administrative measures.

  • According to Article 26, paragraph 2, of the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict, for example, the States parties must submit a report to the Director-General of UNESCO at least once every four years providing any information they deem appropriate on the measures which their respective administrations have taken or prepared or are envisaging in the implementation of the convention and the Regulations for its execution.
  • Article 7 of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction requires the States parties to submit an annual report to the Secretary-General of the United Nations informing him in particular of national implementation measures, the stockpiles of anti-personnel mines, the location of mined areas, the quantities of anti-personnel mines retained for training purposes, the destruction of anti-personnel mines, and the measures taken to warm civilians and pervent them from entering mined zones.
  • Finally, Article 8 of the Optional Protocol to the Convention on t he Rights of the child on the involvement of Children in armed conflict, of 25 May 2000, stipulates that each State party must, within two years following the entry into force of the Protocol for the State, submit a report to the Committee on the Rights of the Child providing information on the measures it has taken to implement the provisions of the protocol, including those on the recruitment of children and their participation in hostilities. Further information on the implementation of the Optional Protocol is included in the subsequent reports the State party submits to Committee on the Rights of the Child (Art. 44 of the Convention).
  1. Information Transmitted within International Organizations:
  2. a) United Nations
  • Since the adoption of the Additional Protocols in 1977, the General Assembly has regularly requested the Secretary General to report to it on the status of these instruments. Initially, that report concerned only the signing and ratification of the two Additional Protocols, but its content has gradually been extended in accordance with the biennial resolutions on which it is based. It now includes an increasing amount of detailed information, which the Member States and the ICRC present on a voluntary basis. Furthermore, this information now covers the measures taken by the States towards the implementation of IHL as a whole.
  1. b) Regional Organizations
  • Regional organizations also provide a framework within which information on national measures to implement IHL can be exchanged.
  • Pursuant to the resolutions adopted each year by the General Assembly of the Organization of American States, for example, numerous reports have been drawn up on the subject within that Organization since 2998, either by the Secretary – General, the Permanent Council or the Member States, or by the ICRC.
  • Similarly, an office for monitoring the IHL was set up within the legal department of the Legague of Arab States in 2001. The tasks of that office include collecting information and drawing up an annual report.
  1. Cooperation with the United Nations
  • “In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Carter”. (Art. 89, Protocol I).
  1. Measures to Exert Diplomatic Pressure

In order to secure compliance with International Humanitarian Law the following diplomatic pressure may be exerted.

  • Vigorous and continuous protests lodged by as many Parties as possible with the ambassadors representing the State in question in their respective countries and, conversely, by the representatives of those Parties accredited to the government of the aforementioned State.
  • Public denunciation, by one or more Parties and / or by a particularly influential regional organization, of the violation of international humanitarian law.

One example would be the statement made by the United States to the Security Council on 20 December 1990 councerning the deportation of Palestinian civilians from the occupied territories: “We believe that such deportations are a violation of the Fourth Geneva Conventions… We strongly urge the Government of Israel to immediately and permanently cease deportations, and to comply fully with the Fourth Geneva Convention in all of the territories it has occupied since June 5, 1967” (S/PV. 2970, Part II, 2 January 1991, pp. 52-53). Similarly, resolution 5038/ES, of the Council of the League of Arab States, at its extraordinary session (Cairo, 30-31 August 1990), condemned, in its paragraph I, “… the violation by Iraqi authorities of the provisions of international humanitarian law relative to the treatment of civilians in the Kuwaiti territory under Iraqi occupation”.

  • Diplomatic pressure on the author of the violation, through intermediaries.

For instance, the steps that were taken by Switzerland to persuade the USSR, China and France to exert pressure upon the Arab States in the Zerka affair of 1970 when three civilian planes were hijacked by Palestinian movements.

The Role of the Media

Media can play and important role for the implementation of the international humanitarian law. Though the Media have no legal function in international humanitarian law. Undeniably, however, they influence its implementation by showing an image of the conflicting Parties forwards which those Parties are generally far from indifferent, and that depends largely on the way in which those Parties apply humanitarian law.

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