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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

7. Trials

In the pre-1945 history of the laws of war the issue of trials for major violations was not greatly emphasized, and indeed in some early agreements reparations are mentioned more. There was an assumption, overtaken by events of this century, that for the most part the governments of civilized states would be responsible for the implementation of the laws of war. The 1949 Geneva Conventions did make extensive provision for penal sanctions in respect of grave breaches, but these have been little used by states.

These arrangements leave unsolved the acute problem of the state or non-state entity which will not put its criminals on trial, or which indeed is headed by its criminals. This phenomenon, which aggravated the barbarity of some recent wars, especially those with a strong element of communal conflict, has necessitated a new approach to the issue in the form of the International Criminal Tribunal for the Former Yugoslavia. This approach is not likely to yield quick results on anything like the scale of the atrocities to which it is a response, but may in the long run have some small part in the restoration of battered norms. The consequences for the laws of war of raising public hopes and then seeing them dashed could be serious. The tribunal merits support, but at the same time there is a need for understanding of the inherent difficulties of the tasks with which it is entrusted.

The European Union has assisted in the funding of both the Yugoslavia and Rwanda tribunals. It has done so without much public declaration of moral and political commitment, or fully-elaborated rationale as regards the possible contribution of the tribunals to eventual political reconciliation. Both tribunals face extreme funding crises in view of the freezing of expenditures in the UN system. The European Union and its member states should urgently consider increasing their contributions and presenting a modest rationale for so doing. It would do no harm to recognize publicly that, for the kinds of reasons advanced in this study, the tribunals are only likely to have a minor impact on vast problems, and are not necessarily the most important mechanisms even for the limited objective of securing implementation of the laws of war. In particular, the European Union must neither let the International Criminal Tribunal for the Former Yugoslavia starve for lack of funds, nor let it suffocate under the weight of exaggerated expectations.