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close this bookLaw in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)
close this folderThe Laws of War: Problems of Implementation in Contemporary Conflicts
close this folderV. Summary and Conclusions
View the document(introduction...)
View the document1. Realist and Idealist Images of the Laws of War
View the document2. Still a World of States
View the document3. Humanitarianism as a Substitute for Policy
View the document4. Application to Non-International Conflicts
View the document5. Mines
View the document6. Limits of Compliance Provisions
View the document7. Trials
View the document8. International Criminal Court
View the document9. Reparations
View the document10. The United Nations
View the document11. Barbarians?
View the document12. A Set of Professional Military Standards?
View the document13. Need to Keep Our Own Houses in Order
View the document14. The Relation between Ius in Bello and Ius ad Bellum
View the document15. Taking Implementation Seriously

15. Taking Implementation Seriously

The many failures to find effective means of implementation in respect of violations of the laws of war in the past twenty years, coupled with a high level of rhetoric on the subject, have had deeply damaging effects. They have contributed to a view, quite widespread today, that the laws of war are virtually a dead letter, and can be ignored with impunity. Serious violations in one conflict, publicized but not checked by international reaction, have lowered international standards, making such violations more probable in subsequent conflicts.

A critical intellectual weakness which has seriously affected understanding and implementation of the laws of war is the almost complete divorce between two important schools of thought about security matters in the post-1945 period. On the one hand, theorists of deterrence (a concept not limited to its most extreme form, nuclear deterrence) have shown little interest in the laws of war; while on the other hand proponents of international humanitarian law have had little to say about deterrence of any kind, nuclear or conventional. It is not surprising that France, a country committed to an unusual degree to the idea of deterrence, has indicated that it is not acceding to 1977 Geneva Protocol I because of "the lack of consensus among the signatory states of Protocol I as to the exact meaning of the obligations they have undertaken so far as deterrence is concerned ". The questions of how to deter adversary states from initiating war, and how, during a war, to deter them from violations of the laws of war, are central to international security debates, and indeed to the achievement of humanitarian objectives. Such questions should not be neglected by proponents of international humanitarian law. Some developments in the past twenty years, including the severe attenuation of the right of reprisal in 1977 Geneva Protocol I, risk not only weakening deterrence, but also undermining what may still be one important means of implementation of the laws of war. Although there is bound to be a degree of tension between the idea of deterrence and the laws of war, there are also many areas of intersection between the two approaches. For proponents of the laws of war to neglect such areas is to risk consigning themselves to a position of doctrinal purity and practical irrelevance.

There is an urgent need for a much fuller and more reflective international study and debate on the whole question of implementation. Such a process should involve representatives of states, alliances and armed forces, as well as of the UN, the ICRC and other interested bodies. It should employ other methodologies beside those of law. It should take account of neglected and uncomfortable realities, including the continued role of reprisals, and of the use of force, in preventing or opposing major violations. It should recognize the importance, and also the pitfalls, of the UN's new roles regarding implementation of the laws of war. It should look critically at how well or otherwise particular rules emerge from the test of war, as well as judging the acts of warriors by a legal yardstick. Above all, it should be based on a frank recognition of the enduringly complex realities, the unremarked successes and the conspicuous failures of the implementation process.