|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|
Implementation of the laws of war often involves use of mechanisms which were not specifically envisaged in the conventions. These mechanisms are of many kinds. In their mutual relations, states commonly use the whole range of methods open to them, from diplomatic notes to economic sanctions and threats of war, as means of trying to enforce compliance; while within states a huge variety of factors may affect compliance, including the political and ethical culture of the state and its citizens. What follows are simply a few illustrations of the range of mechanisms which may in fact operate.
Fact-finding, especially public exposure of violations of the laws of war, has often been done through the media. It was through the press, for example, that details of the 1968 My Lai massacre in Vietnam were exposed. Similarly, it was though the press and TV that the inhumane regime in some prison camps in the former Yugoslavia was publicized. Sometimes the presence of UN peace-keeping forces in an area can help to make war crimes known.
Within states, a wide range of administrative measures have had an important part in bringing the practice of armed forces and the principles of the laws of war into some kind of relation with each other. For example, official enquiries and reports are often a means of establishing facts, and of re-examining and bringing about changes in government policy on particular issues.
Such reports can be a basis for applying international rules to internal situations. For example, throughout the troubles in Northern Ireland from 1968 to 1994 the UK government was consistent in viewing the situation there as essentially internal and low-level in character. At least until 1972 it did not go much beyond the position that the principles in common Article 3 of the 1949 Geneva Conventions were germane whether or not they were formally applicable. However, in 1972 Lord Gardiner's minority report, which was accepted by the Government, was an interesting example of asserting the wider relevance, even in an internal conflict, of certain international legal standards, including some from the main body of the four 1949 Geneva Conventions.
When, following the Israeli intervention in Lebanon in 1982, there were massacres of Palestinians at Sabra and Shatilla camps in Beirut in September 1982, it was an Israeli official report which helped establish the facts surrounding these events, and reminded Israel that certain well established standards had to apply not only to the actions of the Israel Defence Forces but also to those paramilitary forces operating in conjunction with them.
Unofficial commissions and inquiries, set up by non-governmental organizations, can also play an part in fact-finding, and in expounding the rules applicable to a particular situation. One such commission was established following the Israeli invasion of Lebanon in 1982.
Regional organizations can also have a role in reminding parties to conflicts of the relevance of international standards and in applying pressure for their implementation. They may do this through their representative, executive or judicial bodies. There have been many such cases in the history of the European Union and its predecessors. The role of the European Court of Human Rights in dealing with numerous cases from Northern Ireland is an example. The Court's decision of 27 September 1995 about the Special Air Service killing of three Irish suspects in Gibraltar in 1988 exposed considerable British government sensitivity about UK military actions being subject to European court decisions.
The European Commission of Human Rights played a significant role in issues arising from armed conflict when it heard the Cyprus v. Turkey cases. The Government of Cyprus vigorously asserted that violations of human rights by Turkey in the Turkish-occupied areas (including the detention or murder of some 2,000 missing Greek Cypriots and the refusal to allow more than 170,000 Greek Cypriot refugees to return to their homes) were contrary to the European Convention on Human Rights, and were matters of legitimate international concern. The applications of the Government of Cyprus were ruled admissible by the European Commission of Human Rights on 26 May 1975 and 10 July 1978 - a significant recognition in principle of the applicability of international human rights law to occupied territories.
At a more political level, from the late 1980s onwards member states of the European Community made protests to Israel regarding its policies in the occupied territories, and suspended or delayed ratification of trade agreements.
What is striking about the some of the implementation mechanisms briefly outlined here is their largely political character. They tend to involve attempts to change policies perceived as illegal or inhuman through the application of pressures of various kinds. Even when it is asserted clearly that violations of the laws of war have occurred, such attempts are not necessarily linked to demands for trials of individuals. Sometimes such attempts are one-sided, showing only limited understanding of the complexities of a conflict and the different viewpoints of belligerents.
Where court cases have followed from violations of the laws of war, they have often assumed a very different form from the state trials of war criminals envisaged in the conventions. They have often been civil rather than criminal in character. One unusual and controversial example is the Israeli innovation of establishing a right to petition the Supreme Court of Israel against arbitrary or illegal acts by the occupant. Another interesting example is the current attempt of former prisoners of war under the Japanese, and Asian women forced into prostitution by occupying Japanese armies in the Second World War, to gain compensation for illegal Japanese conduct through Japanese courts.