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: 1. From 1899 to the Second World War

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

(introduction...)

Introduction

The Laws of War: Problems of Implementation in Contemporary Conflicts

I. Introduction

II. Implementation Provisions and Mechanisms

(introduction...)

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

1. From 1899 to the Second World War

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.