|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.
The 1899 and 1907 Hague Conventions on Land War, and the Regulations annexed to them, are vague on the matter of ensuring compliance. Article 1 of the 1899 and 1907 Hague Conventions requires the powers to issue instructions to their land forces in conformity with the Regulations. Article 3 of the 1907 Convention says that a belligerent party violating the Regulations "shall, if the case demands, be liable to pay compensation". In addition, Article 56 of the 1899 and 1907 Hague Regulations makes a vague reference to legal proceedings in the event of violation of its rules about certain types of public property. Nothing more is said about how these or other provisions are to be enforced. The many striking omissions regarding enforcement exposed the Hague system to the accusation that it was based on unduly optimistic assumptions.
However, the relative paucity of formal provisions in the Hague Conventions and Regulations did not mean that there was no implementation system at all. The central assumption, of which the above-summarized provisions are a mere reflection, was of a responsibility on states to ensure that the rules were observed and offenders brought to justice. This assumption has many weaknesses, of which the most obvious, easy to identify but hard to remedy, is that most governments have been, quite understandably, reluctant to prosecute their own servants in cases where their violations of the laws of war were carried out while pursuing government policy. It is this problem above all which has sustained an unbroken series of calls for some diminution of national sovereignty so far as the punishment of war crimes and crimes against humanity is concerned. In twentieth century practice, the Hague Regulations have provided the basis for numerous trials, appeals, arbitrations, and inquiries - not only by national, but also by international, bodies. Their modes of implementation have been richer than those specified in the original texts.
After the First World War a number of international agreements included reference to the punishment of war crimes. The 1919 Treaty of Versailles, Articles 227 to 230, required Germany to surrender for trial members of its armed forces charged with violations of the laws of war. However, by subsequent arrangement with Allied governments, Germany itself tried German offenders, very few of whom were convicted The Versailles Treaty also imposed heavy reparations on Germany on account of its perceived responsibility for the outbreak and therefore the costs of the war - a matter of ius ad bellum rather that ius in bello. The 1929 Geneva Convention on Wounded and Sick, Article 29, provided for punishment of violations on the basis of national penal legislation. The 1929 Geneva Convention on Prisoners of War, Article 86, provided for Protecting Powers to monitor observance of the Convention. both these 1929 Conventions are now defunct, having been superseded by the 1949 Conventions.)
By contrast, a major laws of war agreement of the inter-war years, the 1925 Geneva Protocol of Gas and Bacteriological Warfare, said nothing about implementation other than in the noble but vague formulation "that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations" On ratification, France and many other states remedied the gap by making it clear that they would cease to be bound by the Protocol if their enemies used the prohibited weapons. Here was a clear threat of reprisals. Fear of reprisals almost certainly played some part in subsequent cases of non-use of such weapons, including during the Second World War and the 1991 Gulf War.
There were very many war crimes trials at the end of the Second World War, mainly in national courts of the victorious powers and of the countries they had liberated. The best-known were the international military tribunals at Nuremberg and Tokyo which tried major Axis war criminals. They constitute the major precedent for implementation through international trials. Today, when new international tribunals in respect of war crimes have been established, the post-1945 international tribunals merit re-examination.
The bare facts of the two international tribunals are easily summarized. They originated in Allied declarations in London (13 January 1942) and Moscow (1 November 1943) which declared the prosecution of war crimes to be one of the Allies' principal war aims. On the basis of these statements much work was done to prepare for the numerous national trials. This left the special problem of what to do about major figures whose crimes were not tied to any particular location. On 8 August 1945 the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis was concluded. Article 6 specified three types of crimes:
· 6(a) crimes against peace
(relating to ius ad bellum);
· 6(b) war crimes (violations of the laws or customs of war); and
· 6(c) crimes against humanity (discussed further below).
On this basis, the International Military Tribunal at Nuremberg sat from 20 November 1945 to 1 October 1946. Of the twenty-two defendants, all but three were found guilty on some charges. Twelve were sentenced to death. Seven received prison sentences ranging from ten years to life. The International Military Tribunal for the Far East, based on the same principles as at Nuremberg, was held in Tokyo from 3 May 1946 to 12 November 1948. There were twenty-eight defendants, of whom two died during the trial, and a third was found mentally incompetent. All twenty-five remaining were found guilty on some charges. Seven were sentenced to death. Sixteen were given life imprisonment, one twenty years, and one seven years. The Tokyo Tribunal has been even more heavily criticized than its counterpart at Nuremberg, not least because it placed comparatively less emphasis on the well-established category of war crimes against protected persons such as prisoners and inhabitants of occupied territories.
The significance of the Nuremberg and Tokyo tribunals is notoriously a subject of controversy. Some aspects of the controversy are not relevant to the present inquiry, such as certain procedural deficiencies and the question of whether the charge of waging aggressive war was well founded in existing international law, and fairly applied, especially at Tokyo. Three other grounds of criticism are closely related to present-day problems of applying the law. These are: (1) that the tribunals applied a body of law some aspects of which had not before 1945 been clearly enunciated in treaty form, or were in treaties which were not fully applicable to the events under scrutiny; (2) that the tribunals were one-sided, as possible war crimes committed by the Allies were neither fully considered there nor dealt with elsewhere; and (3) that large numbers of guilty individuals were either not prosecuted at all, or were treated too leniently. The first and second of these grounds feed into the commonly-uttered view that these trials constituted victor's justice.
The point about whether new law was being developed deserves attention today because it sheds light on the issue of whether there are some standards of behaviour so basic that they must apply to all states and their citizens, in peacetime and in wartime, irrespective of whether or not those standards are clearly spelt out in treaties to which the state in question has subscribed. Several elements are involved.
The first element is the notion of "crimes against humanity". To some extent these were simply war crimes writ large, but in addition they could encompass actions before as well as during the war, and could apply to a government's offences against its own citizens. However, the wording of Article 6(c) of the 1945 Charter of the Nuremberg Tribunal suggested that they had to be committed "in execution of or in connection with any crime within the jurisdiction of the Tribunal" - a curious proviso which blunted the impact of this innovative category. Like the simultaneous development of human rights law in the Charter of the United Nations, the introduction of the idea of "crimes against humanity" can be seen as creative law-making. It did have some basis, albeit shadowy, in existing law. For example, the 1899 and 1907 Hague Conventions had stated in the Martens Clause that in cases not included in the Regulations, "the laws of humanity" remain a source of law of key importance. Whatever the validity of the basic concept of "crimes against humanity", it had even less concreteness and independent existence in the Nuremberg judgment than it had had in the London Charter. Its role was yet further attenuated in the Tokyo trial. Subsequent developments, however, including in the Barbie case, and in the statutes of the international tribunals for the former Yugoslavia and Rwanda, suggest that this legal category is growing in importance and is reinforcing the idea that a wide range of crimes and factual situations is subject to international legal rules.
A second aspect of new law-making arose from the way in which the judgment of the International Military Tribunal at Nuremberg asserted the universal applicability of a key part of existing law, the 1907 Hague Convention IV on land war. The Hague Convention's Article 2, its "general participation clause", had stated that its provisions were applicable only if all the belligerents in a conflict were parties to the Convention. The defence at Nuremberg contended that because some belligerents, Albania being one example, were not parties to the Hague conventions, therefore Germany had not been bound by these conventions, at any rate vis-is non-parties. The Tribunal's judgment said that during the Second World War this treaty applied to all countries, because it had by then become customary law. With this statement, the judges from the victor powers were saying that irrespective of the adherence or otherwise of states to particular accords, irrespective of the legal niceties and the small print, there had to be some minimal universal standards.
All this was part of that aspect of Nuremberg which significantly tempered the central role of governments by injecting the idea of personal responsibility in respect of universal standards. The doctrine that superior orders are not a defence against a charge of war criminality was another manifestation of this approach. In short, the old idea of a society of states was having to yield, however slowly, to a society where governments were subject to certain over-arching principles, and could not order around their citizens, even their officers, just as they wished. Modern ideas of legal positivism, based on treaty law alone, were subtly yielding to older ideas of natural law.
As to the accusation that the Nuremberg and Tokyo trials were onesided, it is easy - and it was well done by the defence lawyers at the trials- to point out that there had been terrible deeds on both sides in the war. On some matters, such as submarine warfare and city-bombing, the Allies, just as much as the Axis powers, had ignored existing treaties and legal principles. The Soviet record regarding treatment of prisoners had been appalling. However, there was one major category of activity on which the law was clear, and in respect of which there was little comparison between Axis powers and at least most of the Allies. This category was in the end a main basis for the conviction of most of the major war criminals. It concerned, not combat itself, but treatment of those more or less hors de combat The Axis atrocities against many of those who were directly under their control - whether Jews, prisoners of war or inhabitants of occupied territories - formed the strongest ground for conviction. It cannot have been wrong to punish these acts. They were clear violations of the most elementary principles of decency, as well as being contrary to the 1907 Hague Land War Convention and the 1929 Geneva Prisoners of War Convention.
The accusation that the many trials at the end of the Second World War did not go far enough is serious. The administration of justice was, as perhaps it had to be, extremely selective. Many German and other individuals who had been accomplices in mass murder escaped the Allied net, or else were considered too useful to the Allies to be prosecuted The attempt at Nuremberg to establish "organizational guilt" through membership of criminal organizations such as the SS (Schutzstaffeln) was not successful. As time wore on, the Allies rapidly lost enthusiasm for criminal prosecutions, and thousands of cases were not pursued. The "denazification programme" was a preferred if still flawed substitute In the end, an implicit principle of Nuremberg and Tokyo was to hold highly-publicized trials of a few leaders primarily responsible for a process of criminality in which hundreds of thousands had in fact been culpable in one way or another.
While these and other criticisms of the Nuremberg and Tokyo trials are well founded, they do not for the most part suggest that the trials were not worthwhile. The trials responded to wholly exceptional circumstances. They greatly strengthened the idea that the conduct of states and armies was subject to some over-arching legal standards however imperfectly enforced in this instance.
The post-Second World War trials may have been "victor's justice", but in retrospect that is not only their greatest weakness but also their greatest strength. The fact that they were victors enabled them to gather the necessary evidence, arrest a high proportion of the main suspects, and hold trials. There were few worries about whether the trial process might actually worsen the conflict with the Axis powers, since they were already defeated. The costs of the process were underwritten The contrast with the International Criminal Tribunal for the Former Yugoslavia, which has experienced difficulties in such matters as getting hold of suspects and securing adequate resources, is striking.
A questionable part of the legacy of Nuremberg is the creation of expectations that, in general, trials are an appropriate way to handle war crimes issues. As Telford Taylor has put it:
"Also, in terms of enforcement, whether the charge is war crimes or crimes against humanity, I think it is a mistake to expect that the device of a criminal trial is the major way in which the enforcement of those limitations and obligations is going to be achieved. As one vho has taught criminal law for several years, I always try to instill in my students a basic appreciation that most law enforcement is voluntary. Therefore, in the international field as well, the idea that trials alone (or statutes and treaties) can bring about the reforms and remedies that we hope for is misplaced reliance .
Since 1945, many countries have conducted national trials for war crimes committed in the Second World War. Often there has been special legal provision to permit such prosecutions long after the offences. Thus the UK government, while failing to take action regarding Iraqi war crimes in the 1990-91 conflict over Kuwait, and acting over the objections of the House of Lords, passed the War Crimes Act 1991, enabling UK courts to try offences arising from the Second World War. The UK government appeared to be pressing ahead towards possible trials of octogenarians who had held middle- or low-ranking positions in the Second World War. An argument for the UK government's approach was that these individuals were under UK jurisdiction, and hence it was actually possible to take action. To date, extensive investigations of possible suspects have only led to one indictment.
After two world wars the need for some penal and other mechanisms for securing compliance with the laws of war was self-evident. The major treaties in the field since 1945, particularly the four 1949 Geneva Conventions, contain an unprecedented range of provisions about dissemination, instruction of armed forces, humanitarian and monitoring tasks during armed conflicts, and repressing breaches These provisions, discussed below, did not follow a single standard form, and contained many innovations.
A general trend in the post-1945 conventions has been to try to get beyond the previous unsatisfactory situation in which it was assumed that implementation was fundamentally an internal matter for states. The Nuremberg and Tokyo tribunals had self-evidently taken a bold step beyond the idea that states could be relied on to punish their own nationals. In several ways, itemized in the following sections, the Geneva Conventions and other laws of war agreements advanced the concept of international involvement in implementation - especially through proposals regarding fact-finding and universal jurisdiction for war crimes. Three agreements since 1945 have specifically provided for a United Nations role in securing implementation of their terms and in dealing with violations.
Common Article 1 of the four 1949 Geneva Conventions is often, and increasingly, viewed as providing a basis for states to involve themselves in ensuring implementation of the conventions not merely within their own territories and areas of operations, but also more generally. It says: "The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances". The words "and ensure respect", which had not appeared in previous conventions, have been widely seen as signifying that states, whether or not involved in a particular conflict, have a responsibility to help ensure implementation of the conventions wherever and whenever they are being violated. Such an interpretation of common Article 1 was already evident in Jean commentary, in which he said, in expansive terms going beyond the narrow confines of legal analysis: "It follows [..] that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention". This view has prevailed in much subsequent analysis and advocacy, including at the ICRC.
This interpretation of Article 1 does not appear to have a basis in the negotiating history of the 1949 Geneva Conventions. In the various meetings at Stockholm and Geneva, the words "to ensure respect" had another meaning: to ensure that the whole population of a country which was party to the conventions would respect the law in all circumstances, even perhaps in the case of civil war. There appears to be little or nothing in the records of the 1949 Diplomatic Conference to suggest an awareness on the part of government delegates, or indeed ICRC participants, that the phrase "to ensure respect" implied anything beyond this.
Whatever the original intention behind it, the interpretation of common Article 1 as implying a duty to promote implementation generally has helped to bring the question of implementation of the laws of war more centrally into the discourse of states and the activities of international organizations. It played some part in the EC Dublin summit Declaration on the Middle East of 26 June 1990. States are indeed at liberty to interpret, or reinterpret, their obligations under Article 1 in this way; and it may be especially appropriate to do so in view of developments since 1949, including the world-wide concern over laws of war issues. Yet states need to be aware that in so doing they are entering difficult territory, probably not envisaged by the negotiators of the 1949 conventions, and containing pitfalls for the unwary.
The 1949 Geneva Conventions put considerable, perhaps too much, emphasis on that long-established diplomatic institution, the Protecting Power, as a means of ensuring implementation of their terms during armed conflicts. Pictet defines a Protecting Power thus:
"A Protecting Power is, of course, a State instructed by another State (known as the Power of Origin) to safeguard its interests and those of its nationals in relation to a third State (known as the State of Residence). It will be seen at once that the activities of a Protecting Power are dependent on two agreements: the first between the Power of Origin and the Protecting Power and the second between the Protecting Power and the State of Residence".
The 1977 Geneva Protocol I, Article 2(c), offers the following definition for the purposes of the Protocol:
"'Protecting Power' means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol".
The 1949 Geneva Convention IV makes extensive provision for Protecting Powers to look after the interests of civilians, including in occupied territory. Protecting Powers have a general duty to protect the interests of the parties to the conflict; they are to lend their good offices in cases of disagreement either about the interpretation of the Convention or about its application; they can facilitate the establishment of hospital and safety zones and localities; they are to be informed of any transfers or evacuations in or from occupied territory; they can verify the state of food and medical supplies in occupied territories; they must be informed of all charges instituted by the occupant against protected persons involving the death penalty or sentences of two years or more, and they have various other rights and duties as regards legal proceedings; they can supervise the distribution of collective relief shipments to internees; and they can go to all places where protected persons are, particularly to places of internment, detention and work. In addition, Protecting Powers have responsibilities regarding the observance of the 1954 Cultural Property Convention; and are the subject of numerous detailed provisions in the 1977 Geneva Protocol I.
The 1949 Geneva Conventions do allow for the possibility that the Protecting Power arrangements might fail to come into operation. A common Article in all four conventions provides that certain organizations can assume all the functions of the Protecting Powers. Such a substitute may be, by agreement between the parties, "an organization which offers all guarantees of impartiality and efficacy"; failing this, in exceptional circumstances it may be a neutral state appointed by the Detaining Power; failing this, a humanitarian organization such as the ICRC may assume, if not all the traditional functions of the Protecting Power, at least the humanitarian functions performed by Protecting Powers under the 1949 Conventions.
Quite separately from the provisions regarding Protecting Powers, the 1949 Geneva Convention IV leaves much scope for activities by impartial humanitarian organizations such as the ICRC, which is mentioned in no less than 22 of its 159 articles.
In practice, the various formal provisions for the role of Protecting Powers have been of little use, because states in conflict with each other have almost always been unwilling or unable to agree on the appointment of such Powers. Many writers have pointed to the weaknesses of the Protecting Powers arrangements, depending as they do on a tripartite consensual basis. Yet there have been some cases of Protecting Powers having a role during armed conflicts, albeit in a manner different from what the conventions envisaged. They were used, for example, in the 1971 India-Pakistan War, in which one Protecting Power acted on behalf of both sides in a conflict, representing each to the other; and in the 1982 Falklands War, in which the duties of the Protecting Powers were mainly general diplomatic representation, rather than the exercise of humanitarian functions under the Geneva Conventions.
In most conflicts, it has been the ICRC which has borne the heat and burden of the day. ICRC representatives have actually carried out most of the various humanitarian and monitoring tasks provided for in the Geneva Conventions; this has been so even in cases where Protecting Powers have been appointed to look after certain interests of the belligerents.
A further mechanism aimed at securing implementation of the Geneva Conventions is the International Humanitarian Fact-Finding Commission. 1977 Geneva Protocol I, Article 90, provides for the establishment on a permanent basis, with periodic elections, of an International Fact-Finding Commission to:
"(i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol;
(ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol ".
The International Humanitarian Fact-Finding Commission has in fact been set up. Under the terms of Art. 90(1)(b), which stipulated that it could only be established when twenty states agreed to accept its competence, the Commission, which has fifteen members, was duly elected at a meeting in Bern in June 1991. At its second meeting, in July 1992, the Commission unanimously adopted the final draft of its rules of procedure, and became operational. Since then it has done some preparatory work, not least, in the delicate words of its President, trying "to draw the international community's attention to its avaiblity.
An inquiry can be set up in two situations, both of which depend on states to take an initiating role. First, a party to a conflict can request an inquiry, which can only be established with the consent of the other party or parties concerned; or secondly, a state having accepted the automatic competence of the Commission makes an allegation against another state which has likewise previously accepted the Commission's competence. So far, there is no evidence that states will use this new mechanism. Franse Hampson has written:
"As experience with the Geneva Conventions has shown, the mere existence of a fact-finding mechanism does not mean that it will be used. The challenge is there. It remains to be seen whether States will rise to meet it".
Why, in its three years of existence, has use not been made of the International Humanitarian Fact-Finding Commission? One part of the problem is the continuing reluctance of many states to make a declaration accepting its competence. As of 30 June 1995, of the 138 states parties to 1977 Protocol I, 46 had made a declaration accepting the competence of the Commission. A more fundamental problem may be the reluctance of states, including those which have accepted the Commission's competence, to invoke its services in view of the fact it may have to deal with issues as sensitive as the applicability of the Conventions, and the characterization of particular acts as "grave breaches " or "serious violations".
The relevance of the Fact-Finding Commission is above all called into question by the fact that in the years since it was established the UN Security Council has established ad hoc mechanisms for investigating and taking action regarding violations, most notably in connection with the wars in the former Yugoslavia and Rwanda. Indeed, Erich Kussbach has gone so far as to say: "After a long period of inability to act, the Security Council has seemingly become the master of collective security and apparently is about to take over, step by step, the responsibility for the administration of humanitarian law. The future will show how the Security Council will be able to cope with its heavy responsibilities". Although his optimism about a UN system of collective security is open to serious criticism, the ad hoc arrangements under UN Security Council auspices do have many advantages over the Commission: it is not necessary for individual states to initiate the process; states or other entities can be investigated irrespective of whether they have accepted the competence of the Commission; the relevant body of law to be applied can be identified separately in each instance, and can thus be appropriate to the particular conflict and the facts alleged; the range of problems and situations which can be investigated is therefore greater, since it is not limited to clear cases of international armed conflict; there are fewer obstacles to publication of the outcome of an investigation; and the fact-finding process can be linked to action in the form of prosecutions. Once again, implementation in practice has assumed forms significantly different from what the conventions provide.
The various conventions concluded since 1949 contain far more on the punishment of violations than did their predecessors.
The 1948 Genocide Convention, Article VI, contains provisions for the trial, whether by national or international tribunals, of persons charged with offences under the Convention. However, these provisions are puny and inadequate when the treaty's full title (Convention on the Prevention and Punishment of the Crime of Genocide), and the scope and seriousness of the problem which it purports to tackle, are borne in mind. Article VIII breaks new ground in specifying that any contracting state "may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide
The 1949 Geneva Conventions introduce a special category of "grave breaches", and outline a system of penal sanctions for persons committing them. Convention IV defines grave breaches thus:
"Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly".
The immediately preceding article, which is common to all four 1949 Geneva Conventions, requires states parties to enact any necessary legislation to punish grave breaches of the conventions; and to search for people who have committed, or ordered, such breaches. States may also hand such suspected persons over for trial in another state, provided a prima facie case has been made out. States are also to take measures necessary for the suppression of breaches other than grave breaches. This article follows the well-trodden path of relying on states for enforcement, but it does contain significant new provisions in that regard. National courts, which are to have penal jurisdiction to implement the Conventions, are to have jurisdiction over all individuals, regardless of nationality, alleged to have committed grave breaches. This system has obvious, but inevitable, weaknesses. In practice, states not involved in a conflict have proved reluctant to fulfil the obligation to try suspected offenders. A related difficulty concerns extradition. If a state is unwilling to punish a war criminal residing in its territory, it may prove difficult for another state to secure extradition, as the provision in the common article of the conventions is purely permissive. The easy way out for any war criminal is still to go to a country which does not have the political desire to punish him or her, and does not have extradition agreements with those who do.
Overall, the punishment provisions of the 1949 Geneva Conventions have proved vulnerable to the familiar objection that governments are generally reluctant to prosecute their own servants for violations of the laws of war. Further, courts may be reluctant to act independently of the political stance of their respective governments. The punishment provisions of the 1949 Geneva Conventions are also open to the possible objection that they allow for trials to be held in wartime, when passions may be high and the evidence incomplete. Finally, some problems may arise from the fact that the penal provisions, by providing for action by the state, do not envisage legal actions by injured parties. This is in contrast with the rather different procedures in human rights law.
The payment of compensation, or reparations, has consistently been provided for in the laws of war as one means of making amends, and has often been practiced. This whole approach is very different from provisions for trials, as it involves for the most part taking action against the state as a whole, rather than against individuals; and it is often decided by political-diplomatic rather than judicial bodies. Compensation was mentioned, as noted above, in the 1907 Hague Convention IV, Article 3, the words of which were adapted only slightly in the 1977 Geneva Protocol I, which says: "A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces".
As far as non-international armed conflicts are concerned, the post 1945 international conventions that touch on this subject make hardly any provision for punishment or compensation. Common Article 3 of the 1949 Geneva Conventions, and the 1977 Geneva Protocol II, do establish some minimal rules regarding such conflicts, and states do have the right to punish breaches of those rules. Despite this, Denise Plattner was basically right to conclude in 1990: "The rules establishing international responsibility for violations of IHL applicable in non-international armed conflicts are yet to be made". Since then, the adoption by the UN Security Council of the Statute for the International Tribunal for Rwanda (which, in contrast to the tribunal on Yugoslavia, is predicated on the assumption that the conflict in Rwanda is non-international) provides some legal reinforcement to the claim that failure to observe certain basic humanitarian rules is an international offence even in civil wars.
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.
Since about 1980, crises over implementation have focused to an unprecedented extent on the United Nations, and more particularly on the Security Council. The UN's involvement in issues relating to the international law of armed conflict goes back a long way. The wartime allies established the United Nations War Crimes Commission on 20 October 1943, at the same time as they were working towards the creation of the United Nations Organization. The 1948 Genocide Convention, Article VIII of which made significant reference to the UN, was negotiated at the UN General Assembly. A further major landmark was General Assembly Resolution 2444 of 19 December 1968 on "Respect for Human Rights in Armed Conflicts". Literally hundreds of UN General Assembly resolutions have used the laws of war as a basis for criticizing the actions of particular states; Israel's conduct in the occupied territories has been condemned with particular frequency.
In 1977, two treaties made explicit provision for a major UN role in implementing the laws of war. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (the ENMOD Convention) envisaged that the UN, especially the Security Council, would handle investigations of suspected violations. The Geneva Protocol I foreshadowed the further involvement of the UN in matters relating to the laws of war when it stated: "In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter".
Since at least the mid-1980s, the UN's involvements in matters relating to the laws of war have focused more on the Security Council than the General Assembly, and more on implementation than on development of the law. The Security Council's involvement in this area illustrates the wide range of issues in which the Council can become engaged once it is seen as capable of reaching agreement. It also illustrates the difficulties of attempts to ensure implementation.
If the assumption is that the UN is becoming the centre of a system of collective security, then its concurrent rule as a supervisor and arbiter of the implementation of the laws of war may well seem a logical corollary. In the post-Cold War era, many have hoped, and some still hope, that the UN has the possibility of establishing some kind of general system of collective security. However, for those who are sceptical as to whether the traditional difficulties of proposals for collective security have even been addressed, let alone overcome, the Security Council's role in laws of war issues looks especially problematic. If the Security Council is not capable of tackling effectively even a modest proportion of threats to the peace, will it be any more effective in the lesser task of securing implementation of the laws of war?
One obvious problem with the UN's role in respect of the laws of war is that the Security Council is necessarily selective as to which issues it tackles. Due principally to the existence of the veto, the Security Council did nothing about alleged violations of the laws of war during the Vietnam war in the 1960s and 1970s, nor during the Afghan war in the 1980s. It was the General Assembly, not the Security Council, that passed most of the resolutions critical of Israeli conduct in the occupied territories.
In some conflicts since the mid-1980s, as briefly summarized in the following sections of this study, the UN Security Council has dealt with laws of war issues. It has addressed two fundamentally distinct aspects: first, the investigation and punishment of major violations by belligerents; and second, the management of UN-authorized forces, whether in peace-keeping or enforcement actions, in a manner consistent with the laws of war. An opinion on the effectiveness of these roles will be offered in the conclusions of this study.
The International Court of Justice (ICJ) at The Hague has long had certain limited roles in respect of implementation of the laws of war. There are specific references to the ICJ in the 1948 Genocide Convention; and the 1954 Hague Cultural Property Convention. However, the Court's Statute, with its built-in limitations on what type of cases may be brought to it and by whom, is likely to mean that it will only have to look at a minority of issues concerning the laws of war.
Many cases brought before it have involved key laws of war matters: for example, the Corfu Channel case in 1949; and Nicaragua v. USA in 1986.79 Both these cases involved the principle that a state laying mines at sea is obliged to give notification of their location in order to protect the security of peaceful shipping. The Court now has the politically more sensitive and intellectually more complex issue of the legality of nuclear weapons to consider in the case brought by the World Health Organization and the UN General Assembly.
Many cases have involved issues analogous to, and potentially relevant to, laws of war problems. The United States Diplomatic and Consular Staff in Teheran case concerned the treatment of individuals under the protection of international law in an emergency situation. The Frontier Dispute (Burkina Faso/Mali) case raised the question of interim measures of protection. The 1971 Advisory Opinion on Namibia involved several germane matters, including the use of a sanction: termination of a League/UN mandate as a response to failures to observe certain rules of restraint.
In cases concerning the former Yugoslavia, the ICJ has been asked to answer very complex political questions touching on the laws of war. This is most notably so with the case brought by Bosnia and Herzegovina against the Federal Republic of Yugoslavia, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. This case is currently proceeding slowly.
In many of these cases on which it has reached decisions, the ICJ has performed a useful service by clarifying the content of the laws of war and their application to particular and often complex circumstances; and by publicizing fundamental principles which should inform the policymaking of states in matters relating to the use of force. However, there are limits to what the ICJ can achieve. Many states are reluctant to let cases concerning their own survival be settled by a distant conclave in The Hague. They may also worry about the slowness of some (but certainly not all) of its proceedings. When it is asked to comment in a general way on complex issues which are bones of contention among statesmen and lawyers - as in the nuclear weapons case currently before it - the Court's decision, whatever it is, may not be found universally persuasive, let alone decisive. The ICJ may look weak if it tries to avoid certain difficult issues because they are not justiciable, or because they are not quite the types of matter with which the Court is charged to deal. However, it may look even weaker if it reaches a decision which is then not fully implemented. In some cases it could be very difficult to secure implementation of the Court's decisions.