|Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)|
|The Laws of War: Problems of Implementation in Contemporary Conflicts|
|II. Implementation Provisions and Mechanisms|
This section looks at the formal provisions regarding implementation as set out in the conventions from 1899 to 1981, and glances briefly at aspects of the wider range of pressures and mechanisms which may in fact be involved in processes of implementation. When in an actual armed conflict the laws of war do play a part in shaping the decisions made by belligerents, they may do so for complex reasons. Action in consonance with the laws of war may owe much to a wide range of political, military, diplomatic and ethical factors: these may include a fear of military reprisals, and an anxiety to project a reasonable image with the domestic public and with actual or potential allies.
The 1992 German tri-service military manual lists thirteen factors, mainly treaty-based, that "can induce the parties to a conflict to counteract disobedience of the law applicable in armed conflicts and thus to enforce observance of international humanitarian law ":
· consideration for public
· reciprocal interests of the parties to the conflict;
· maintenance of discipline;
· fear of reprisals;
· penal and disciplinary measures;
· fear of payment of compensation;
· activities of protecting powers;
· international fact-finding;
· the activities of the International Committee of the Red Cross (ICRC);
· diplomatic activities;
· national implementing measures;
· dissemination of humanitarian law; and
· the personal conviction and responsibility of the individual.
As has been recognized in many treaties and manuals on the subject, the laws of war are implemented largely through the medium of individual countries. It is usually through their government decisions, laws, courts and courts-martial, commissions of inquiry, military manuals, rules of engagement, and training and educational systems, that the provisions of international law have a bearing on the conduct of armed forces and individuals. The overwhelming majority of legal cases in connection with the laws of war have been in national, not international, courts.
Even where the problem is one of international enforcement following a violation - to get a foreign state or armed force to comply with the rules - the actions of individual governments have often been important. For example, neutral states may influence the conduct of belligerents, through private or public diplomatic pressure, economic inducements, embargoes, and even threats of military action. On the other hand, they are sometimes hesitant to do so, and when they do act their intervention is often rebuffed by belligerents.
One means of enforcing the law is reprisals. A reprisal may be defined as a retaliatory measure, normally contrary to international law, taken by one party to a conflict with the specific purpose of making an opponent desist from particular actions violating international law. It may be intended, for example, to make the adversary abandon an unlawful practice of warfare. The use of reprisals is controversial. They can on occasion be little more than a fig-leaf thinly disguising the resort to unrestrained warfare; and certain types of reprisal are now prohibited in 1977 Geneva Protocol I. At ratification, a number of states made declarations which, in interpreting some of the Protocol's provisions, appeared to keep open the possibility of reprisals. Italy's long statement of interpretation included the following: "Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation". On occasion the threat or actuality of reprisals can be an important means of inducing restraint.
One other powerful instrument of enforcement is neglected in most discussions of the subject. Sometimes illegal conduct by a belligerent, including the commission of atrocities, may contribute to the formation of an international military coalition against the offending state; and may influence the coalition's willingness to use force. Such conduct has been a significant element in the building of many coalitions, including the anti-Axis alliance in the Second World War, the international coalition against Iraq in 1990-91, the intervention in Somalia in December 1992, and the decision by NATO and the UN to initiate "Operation Deliberate Force" in Bosnia-Herzegovina on 30 August 1995. Even the possibility of such a process is almost entirely neglected in the legal literature. It constitutes a little-recognized but important link between ius in bello (the law applicable in armed conflicts) and ius ad bellum (the law governing resort to armed conflict). It is discussed further at several points in this study.
The treaty provisions regarding implementation, discussed in subsequent parts of this section, are of many kinds. They include stipulations about the trial and punishment of individual offenders, and about reparations by states. They touch on reciprocity as a basis for observing the laws of war, and on the controversial issue of threats of reprisals as a means of enforcing the law. They contain a variety of arrangements, including monitoring, negotiating, and fact-finding, in order to secure implementation of the conventions. Despite this wealth of provisions, concentration on the treaty arrangements for securing compliance can easily mislead. Many of the formal written provisions have proved less important in practice than was hoped. Arrangements and forms of pressure that were not envisaged in the laws of war treaties have sometimes had more impact.