Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office): Introduction

Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)

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Introduction

The Laws of War: Problems of Implementation in Contemporary Conflicts

I. Introduction

II. Implementation Provisions and Mechanisms

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1. From 1899 to the Second World War

2. The Post-Second World War Trials

3. The Post-1945 Conventions: General

4. The Post-1945 Conventions: Humanitarian, Monitoring and Fact-Pinding Tasks

5. The Post-1945 Conventions: Punishment and Compensation

6. Other Mechanisms of Implementation

7. The Involvement of the United Nations

8. The International Court of Justice

III. Problems of Implementation in Wars since 1980

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1. Iran-Iraq War 1980-88

2. The 1990-91 Gulf Conflict

3. The Wars in the Former Yugoslavia since 1991

4. Civil War and Humanitarian Intervention in Somalia 1992-95

5. International Conference, Geneva, August-September 1993

6. Rwanda 1994

IV. General Issues

1. Woodrow Wilson's Dilemma in 1914

2. Successors' Responses to illegal Acts of Previous Regimes

3. One Alternative Vision

V. Summary and Conclusions

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1. Realist and Idealist Images of the Laws of War

2. Still a World of States

3. Humanitarianism as a Substitute for Policy

4. Application to Non-International Conflicts

5. Mines

6. Limits of Compliance Provisions

7. Trials

8. International Criminal Court

9. Reparations

10. The United Nations

11. Barbarians?

12. A Set of Professional Military Standards?

13. Need to Keep Our Own Houses in Order

14. The Relation between Ius in Bello and Ius ad Bellum

15. Taking Implementation Seriously

The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations

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I. The United Nations and Humanitarian Law

II. The failure of the UN in Constituting Enforcement Instruments and the Practice of the Security Council of Authorizing Enforcement Action by States

III. The Law of International Armed Conflicts and UN Enforcement Operations Under Chapter VII

IV. The Alternative Experience of Peace-keeping Operations

V. The 1994 Convention on the Safety of United Nations Personnel as an Instrument Proscribing Attacks Against United Nations Missions in the Framework of Ius ad Bellum and the Contextual Recognition of the Applicability of Ius in Bello

VI. The Applicability of International Humanitarian Law to Peace-keeping Operations in the Light of General Instruments of International Law

VII. The Practice of Specific Instruments Concerning the Applicability of International Humanitarian Law in Peace-keeping Operations

VIII. A Conclusion in the Light of the 1994 Convention on the Safety of United Nations Personnel

International Humanitarian Law and the Law of Refugees and Internally Displaced Persons

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I. Introduction

II. The Inadequacy of International Refugee Law in Situations of Armed Conflict

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1. The Need for Reconsidering the Refugee Definitions in International Law

2. The Need for Improving the Substantive Rights of Refugees in Situations of Armed Conflict

3. The Need for Improving International Co-operation with Regard to Refugees from Situations of Armed Conflict

4. The Need for Further Consideration of International Action in Favour of Refugees from Situations of Armed Conflict

III. The Inadequacy of International Law in Respect of Internally Displaced Persons

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1. Existing Norms of International Law Applying to Internally Displaced Persons

2. The Lacunae of International Law in Respect of Internally Displaced Persons

3. Possible Ways of Improving the Legal Situation of Internally Displaced Persons

4. The Need for Further Consideration of International Action in Favour of Internally Displaced Persons

IV. The Need for Comprehensive Approaches

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1. Overcoming the Differentiation Between Externally Displaced Persons (Refugees) and Internally Displaced Persons

2. Overcoming the Still Existing Differentiation in International Law as Regards Norms Applicable Before, During and After Situations of Armed Conflicts Resulting in Forced Movements of Persons

V. Conclusions and Recommendations

Notes on the Contributors

Abbreviations

Introduction

During the past 50 years the International Community has rarely had to deal with so many armed conflicts at the same time. States, international organizations and non-governmental organizations are engaged in alleviating the suffering of victims of those conflicts - most of which are civil wars. Although humanitarian assistance is provided on a large scale by different humanitarian organizations and individuals, today's wars still have an enormous and growing effect on those who are not fighting, which has become obvious to the global public by intensive media coverage. There are two reasons for this tendency. Despite the development of new conventional weaponry, which is easily available and accessible in contemporary conflicts, it is the deliberate attack on civilians which is the main cause for the great number of victims in civil wars. Secondly, due to the political changes in the state community after the end of the Cold War, new types of conflicts have emerged in which the innocent civilian is a frequent target of those who fight.

It is one of the main objectives of international humanitarian law to protect the victims of armed conflicts. The four Geneva Conventions of 1949 and the two Additional Protocols of 1977 are international treaties stipulating the basic rules as well as detailed regulations on the protection of the wounded and sick, prisoners of war and civilians. These rules have been carefully developed by the state community after the Second World War, taking into account experiences from all major conflicts. The rules set forth by these treaties provide protection against wilful killing, torture and other inhuman practices. The International Court of Justice has pointed out in its famous decision in the Nicaragua case, the basic protective rules as embodied in common Article 3 of the Geneva Conventions are valid in war and peace. Comparing the present practice in armed conflicts with the legal framework of combatant conduct in respect of innocent civilians it is quite clear that the implementation of the pre-existing norms of international humanitarian law is the key precondition for the protection of victims today.

1990 marked a turning point, as Parties to armed conflicts have since been called upon by the International Community to implement the basic rules of international humanitarian law. However, in many instances there was a lack of political will of those fighting in contemporary conflicts, as proven by the reports on murder and torture of victims. Thus the system of implementation of international humanitarian law still needs to be improved in order to foster the political will of parties to an armed conflict towards strict observance of its rules. What is the practice of implementation, what are the main obstacles to improvement, in which areas is it most important and what are the new mechanisms supporting implementation? These are the keytopics of the present international debate.

The present volume meets the need for a more thorough international legal reflection on the question of implementation and recent trends in establishing new implementing mechanisms. The following collection of essays addresses a number of the most important legal aspects, including the practice of the recent past, basic problems of international law concerning the implementation of humanitarian rules and observations on the foundations and legal problems of the new mechanisms. Adam Roberts' essay reviews the reaction of the international community to the implementation problems in specific conflicts such as those in Somalia and Rwanda. Based on his evaluation of this practice, Roberts outlines the difficulties of ensuring compliance with the rules of humanitarian law and how the international system should be further developed to allow for better implementation. The essay by Paolo Benvenuti analyses the implementation of international humanitarian law in UN peace-keeping operations. It includes a detailed discussion of the implementation problems relating to UN forces authorized to carry out enforcement actions. He examines in depth the implementation of international humanitarian law in the so-called "new peace-keeping operations" and the relevance of recent lawmaking in the UN in respect of the status of UN and associated personnel in such operations. Flavia Lattanzi discusses the repression of grave breaches of international humanitarian law through national courts, international courts and tribunals. She also comments on the international legal problems relating to the recent establishment of the UN tribunals dealing with war crimes and crimes against humanity in the former Yugoslavia and Rwanda.

Toni Pfanner follows with a comprehensive review of the implementation framework in which the ICRC operates. He examines both traditional and modern implementation mechanisms in the light of recent state practice and developments in international law His essay involves an analysis of the main impediments to the implementation of international humanitarian law and how to minimize their effects from an ICRC perspective. In the fifth article of this volume, Rainer Hofmann outlines the inadequacy of present international law concerning the protection of refugees and internally displaced persons. The author discusses the need to improve the substantive rights of refugees in situations of armed conflict as well as the lacunae of international law in respect of internally displaced persons. He argues in favour of a comprehensive approach which is aimed at overcoming the existing differentiation in international law concerning the fields of application of the relevant norms.

The sixth and last contribution to the book by Adama Dieng deals with the responsibility of states in repressing grave breaches of international humanitarian law. His contribution evaluates recent state practice attempting to prosecute and punish individuals for grave breaches of international humanitarian law before national courts and international tribunals. He examines the question of whether human rights mechanisms can be used for the implementation of international humanitarian law. Adama Dieng concludes his observations by discussing the present development towards the establishment of new mechanisms such as the International Criminal Court and an Economic Security Council.

As the co-ordinator of this book, I would like to express my appreciation for the hard work undertaken by the members of the Institute for International Law of Peace and Armed Conflict (IFHV) of the Ruhr-UniversitBochum. My special thanks go to Mr. Ralph Czarnzecki and Mr. Guido Hesterberg for their invaluable and tireless efforts in the editing process.

Horst Fischer
Bochum, October 1995