At the last International Conference of the Red Cross and Red Crescent, the ICRC reminded the assembled delegates that ‘the main cause of suffering during armed conflicts and of violations of IHL remains the failure to implement existing norms – whether owing to an absence of political will or for another reason – rather than a lack of rules or their inadequacy'.Footnote 1 In the heat of battle, when the wagers of war and their victims are prey to mistrust and hostility, compliance with the rules does not come easily. Passions are unleashed and hatred and the desire for revenge give rise to all manner of depredations, sweeping aside calls to preserve a modicum of humanity even in the most extreme situations. Yet to make just such a call is the very purpose of international humanitarian law.
The present article deals with the way international humanitarian law is implemented and war victims are protected and assisted.Footnote 2 The first part describes the mechanisms provided for under international humanitarian law itself and briefly analyses their importance in practice. Particular emphasis is placed on the work of the ICRC and the implementation of international humanitarian law in non-international armed conflicts. Next, the growing tendency of human rights monitoring bodies to scrutinize situations of armed conflict is examined. An account is then given of the institutions and agencies that work to help war victims obtain due respect for their rights and person, independently of the framework provided for under international humanitarian law, i.e. through the UN system, regional organizations, intergovernmental organizations and NGOs. The various mechanisms and approaches vary considerably. In order to protect and assist war victims effectively, the international efforts should build on the comparative advantages of the different mechanisms and actors.
Mechanisms originating in international humanitarian law
The obligation of parties to a conflict to respect and ensure respect for international humanitarian law
The 1949 Geneva Conventions and 1977 Additional Protocol I thereto stipulate that the parties to an international armed conflict must undertake to respect and to ensure respect for those treaties. Each party is therefore obliged to do what is necessary to ensure that all authorities and persons under its control comply with the rules of international humanitarian law. The enforcement can include a wide variety of measures, both preventive and repressive, to ensure observance of that law. While this article focuses on the legal measures, other non-legal steps to create an environment conducive to compliance with minimal rules, even during the worst situations, are absolutely essential to give the law a chance to be respected.
On a more practical level, the parties to an armed conflict must issue orders and instructions to ensure that these rules are obeyed and must supervise their implementation.Footnote 3 Military commanders in particular have a great responsibility in this regard.Footnote 4 However, in the final analysis each and every soldier and individual involved in the conflict must observe the rules of humanitarian law.Footnote 5
The particular featureFootnote 6 of international humanitarian law governing non-international conflicts is that it is addressed not only to the states party to those treaties, but more broadly to the ‘Parties to the conflict’, in the words of Common Article 3,Footnote 7 or, according to Additional Protocol II, to ‘dissident armed forces or other organized armed groups …,Footnote 8 but without conferring any legal status on them.Footnote 9 Common Article 3 even governs situationsFootnote 10 in which state structures have totally collapsed,Footnote 11 for a conflict of this type can take place without the state itself being involved. Each party to the conflict must respect and ensure respect for international humanitarian law by its armed forces and by other persons or groups acting de facto on its instructions or under its control. As in international conflicts, the rules on non-international conflicts are ultimately destined for all persons taking direct part in the hostilitiesFootnote 12 and oblige them to conduct themselves in a particular manner.Footnote 13
National implementation measures
To ensure that international humanitarian law is applied in situations of armed conflict, the entire range of implementation mechanisms provided for in the law itself must be used to the full, including in peacetime. National measures to implement humanitarian law arise from the pledge given by states party to humanitarian law treatiesFootnote 14 to respect those treaties and ensure that they are respected. This duty is made explicit in a series of provisions that oblige states to take particular implementation measures. Moreover, like all international treaties, the humanitarian law treaties call for a number of measures to be incorporated in national legislation, if this is not already the case.
The general obligation to take ‘measures for execution’ is laid down in Article 80 of Protocol I, which states that the parties ‘shall without delay take all necessary measures for the execution of their obligations under the Conventions and this Protocol’. Among the numerous measures set out in the Geneva Conventions and the Protocols additional thereto, two types of national measures are particularly important, namely the adoption by states of national laws to ensure that the treaties are applied,Footnote 15 and measures relating to dissemination and training.
National implementing legislation is necessary for treaty provisions that are not self-executing and therefore require a legislative act for them to become applicable. Apart from the general obligation to ensure that the treaties are applied through primary and secondary legislation,Footnote 16 the four Conventions and Protocol I provide for states to adopt any necessary legislative measures to determine appropriate penal sanctions for grave breaches of international humanitarian law.Footnote 17 Finally, legislation is needed to be able to prevent or punish misuse of the emblem and distinctive signs at any time.Footnote 18 However, various attempts to strengthen the treaty-based obligations to prevent violations of international humanitarian law have failed. For example, a proposal to introduce an obligation for states to report to an international commission on the way national measures are applied was rejected.Footnote 19
To put the law into effect and give effective protection to people affected by armed conflict, widespread knowledge of the law and training of those who will have to apply it are indispensable. Dissemination activities must be stepped up in wartime, but must already be in place in times of peace. States undertook, as an initial obligation, to disseminate the texts of the treaties in peacetime and in wartime, and to include study of these in military and if possible civilian instruction programmes, so as to ensure that the armed forces and the entire population are familiar with their content.Footnote 20 International humanitarian law is largely made up of obligations with which armed and fighting forces must comply, and must therefore form an integral part of their regular instruction and practical training. Yet despite their importance, the rules of war often feature only marginally in the military instruction programmes of most states.
The implementing measures required in peacetime to back up the obligation to spread knowledge of the Geneva Conventions and the Protocols thereto ‘as widely as possible’ are the training of qualified staff,Footnote 21 the deployment of legal advisers in armed forces,Footnote 22 emphasis on the duty of commandersFootnote 23 and special instruction for the military and authorities who may be called upon to assume relevant responsibilities.Footnote 24
Punishment for breaches
Several articles of the Geneva Conventions and Protocol IFootnote 25 specify the breaches that are to be punished by the states party to those instruments. All other violations constitute conduct contrary to the Conventions and Protocol and should be dealt with by means of administrative, disciplinary and criminal measures that the contracting parties are required to take to punish the perpetrators. Grave breaches are expressly listed; their distinguishing feature is that the parties to a conflict and the other contracting parties have an obligation to prosecute or extradite the perpetrator of such a breach, regardless of his nationality and the place of the breach, in accordance with the principle of universal criminal justice.Footnote 26 Grave breaches are considered war crimes.Footnote 27 Punishment of violations at national level immediately upon outbreak of a conflict and while it continues are particularly important if a negative spiral of serious and repeated violations of the law is to be avoided. A system of penalties must be an integral part of any coherent legal construct, from the point of view of deterrence and of coercive authority.Footnote 28
As the system of universal criminal jurisdiction had largely been left in abeyance by states, there was previously no effective prosecution and punishment of these types of crimes. However, international mechanisms such as the ad hoc Criminal Tribunals for the former Yugoslavia and for Rwanda, set up by the UN Security Council,Footnote 29 and in particular the International Criminal Court, have given an impetus to prosecutions at national level. International criminal law and its application by the international courts and tribunals is playing an increasingly important part in the interpretation and enforcement of international humanitarian law and in individual criminal liability for war crimes, as well as crimes against humanity and genocide often committed during armed conflicts. The role of the International Criminal Court is complementary to that of national justice systems. It will investigate or prosecute only where the state is ‘unwilling or unable genuinely to carry out the investigation or prosecution’.Footnote 30
The credibility of the International Criminal Court and its ability to perform its role of punishing international crimes depend on the adherence of as many states as possible to it. The fact that a number of influential states and some states currently involved in armed conflicts have not ratified the Rome Statute indicates a double standard in the implementation of international criminal law. This undermines its credibility to some extent and tends to confirm that political considerations carry the day even where international crimes have been perpetrated. Moreover, the international legal apparatus which aims mainly to punish the perpetrators can often only act years after the end of a conflict and cannot replace non-judicial means,Footnote 31 although the creation of international courts and tribunals has strongly promoted recourse to that avenue for enforcing international humanitarian law.
Enquiry procedure
An enquiry procedure is provided for under the Geneva Conventions,Footnote 32 but to date has never been used since its inception in 1929.Footnote 33 Its dependence on the belligerents’ consent is doubtless one of the reasons why this mechanism has not been put to the test.
The International Fact-Finding Commission
Article 90 of Additional Protocol I was an attempt to systematize the enquiry process by instituting an International Fact-Finding Commission. This Commission is competent to ‘enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violations’Footnote 34 thereof and to ‘facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.’ In particular, the idea was that the activities of the Commission should help to prevent polemics and violence from escalating during a conflict. It is doubtful, though, whether it could achieve this in practice without an operational arm on the ground and the necessary rapid-response capacity.
The Commission is competent to find facts and not to decide on points of law or to judge,Footnote 35 but even if it were to limit itself to findings of fact,Footnote 36 their pronouncement would often lead to their legal categorization and the elucidation of responsibilities.Footnote 37 Under Article 90, paragraph 5, the Commission is required to submit a report to the parties concerned on its findings of fact, with such recommendations as it deems appropriate. This article further specifies in sub-paragraph (c) that the Commission shall not report its findings publicly, unless all the parties to the conflict have requested it to do so.Footnote 38 The fact that its conclusions must remain confidential is reminiscent of the ICRC's modus operandi, but confidentiality is not really an appropriate way for an international commission to work.
In principle, the International Fact-Finding Commission can undertake an enquiry only if all the parties concerned have given their consent,Footnote 39 but there is nothing to prevent a third state from requesting an enquiry by the Commission into a grave breach or serious violation of humanitarian law committed by a party to conflict, provided that the party concerned has also recognized the Commission's competence.Footnote 40 This possibility arises out of the obligation to ‘ensure respect for’ the law of armed conflict.
Though established in 1991, the Commission has not yet been activated,Footnote 41 nor is it likely to be unless it is enabled to undertake an enquiry on its own initiative or at the request of only one party to a conflict, or by virtue of a decision by another body (e.g. the UN Security Council).Footnote 42 In practice, the enquiry commissions set up and foisted even on unwilling states by the UN Security CouncilFootnote 43 are better placed to meet the international community's expectations.
Protecting Powers
A Protecting Power is a neutral state mandated by a belligerent state to protect its interests and those of its nationals vis-à-vis an enemy state.Footnote 44 Its role is twofold: it can conduct relief and protection operations in aid of victims, and can at the same time supervise the belligerents' compliance with their legal undertakings. The Protecting Powers' tasks are huge and varied in view of the needs of persons protected for instance by the Third or Fourth Geneva Convention.
Since the Second World War, this system has very rarely been set in motionFootnote 45 and the chances of its being used successfully in future are slim, given the politically delicate role a state would have to play to discharge its responsibilities as a Protecting Power.Footnote 46 Article 5 of Protocol I, which assigns the ICRC a new role, allows it to tender ‘its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent’.Footnote 47 However, the ICRC has acted more as a substitute,Footnote 48 for it has in effect assumed the great majority of the humanitarian tasks assigned to Protecting Powers. It has done so without prejudicing its other expressly recognized activities, but restricting itself to humanitarian activities in accordance with its mission.
Reparations
In an international armed conflict, the warring parties can be held responsible for breaches of international humanitarian law. An obligation to pay compensation for violations of international humanitarian law is laid down in Article 91 of Protocol I, and even as early as Article 3 of the 1907 Hague Convention.Footnote 49 According to the general international law of state responsibility, compensation is to be understood more broadly as reparationsFootnote 50 and encompasses a range of measures, including non-monetary means of restitution (re-establishment of the situation before the wrongful act was committed), satisfaction (acknowledgement or apology) and/or rehabilitation (including medical or psychological claim, or legal and social rehabilitation), and guarantees of non-repetition.Footnote 51
Even in situations where large numbers of people have been victims of violations,Footnote 52 those who have suffered direct or indirect personal harm as a result thereof are entitled to reparation.Footnote 53 However, purely monetary compensation could easily constitute an excessive burden in view of the limited resources available, the significant war damage and the enormous task of reconstruction after a conflict and require both an individual and a collective assessment, taking the scope and extent of any damage into account.Footnote 54 Rulings on reparations in individual cases can take account of the collective dimension of certain violationsFootnote 55 and can lead to wider settlements for larger communities.
It is, however, disputed whether an individual right to reparations is recognized or not by international humanitarian law. Despite ‘an increasing trend in favour of enabling individual victims of violations of international humanitarian law to seek reparations directly from the responsible State’,Footnote 56 it does not yet form part of customary law.Footnote 57 Preclusion by a peace settlement, sovereign immunity or the non-self-executing nature of the right to reparations under international law mostly rule out successful individual claims. Victims can thus only approach their own government, which may submit their complaints to the party or parties that committed the violation – a procedure that depends on relations between states, which have often both committed violations. In non-international armed conflicts, there is no treaty rule obliging states or non-state armed groups to make reparations for violations of international humanitarian law.Footnote 58
The possibility for an individual victim to claim reparations for a violation of international humanitarian law can nonetheless be inferred from Article 75 of the Statute of the International Criminal Court.Footnote 59 More importantly, human rights treaties require states to provide a remedy for violations.Footnote 60 At a regional level, both the Inter-American and the European Court of Human Rights have ordered reparations for victims of human rights violations that were simultaneously violations of international humanitarian law. They have done so in both international and non-international armed conflicts, e.g. in relation to Turkey, Cyprus, Chechnya, Guatemala, Colombia, Peru, and Bosnia and Herzegovina.Footnote 61 Reparation has also been provided directly to individuals via different procedures, in particular through mechanisms set up by the Security Council,Footnote 62 inter-state agreementsFootnote 63 and unilateral acts such as national legislation,Footnote 64 or in response to requests submitted directly by individuals to national courts.Footnote 65
Nevertheless, broader international and/or national reparations schemes and especially those implemented via transitional justice mechanisms (including truth and reconciliation commissions)Footnote 66 can and should complement this rather selective legal regime. It is difficult to resolve claims on a case-by-case basis and the mere use of the term ‘reparation’ presupposes a violation of international law. This approach leaves out all the victims of armed conflicts who are not victims of violations and in particular all those affected by – lawful – collateral damage. Only a wider definition of victims including all persons affected by a conflict could enable the victims' interests to be met more satisfactorily, and dealing with past conflicts requires much broader societal measures than just individual reparations.
The International Committee of the Red Cross (ICRC)
As the above international mechanisms for enforcing international humanitarian law work only very patchily, if at all, it is worth dwelling at greater length on the role assigned to the ICRC in the implementation of this body of law. In practice, the ICRC plays a key role in the protection of war victims.
Its principal mandate is to provide the victims of armed conflict with protection and assistance. It is enjoined ‘to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law’ and ‘to endeavour at all times – as a neutral institution whose humanitarian work is carried out particularly in time of international and other armed conflicts or internal strife – to ensure the protection of and assistance to military and civilian victims of such events and of their direct results’.Footnote 67 The ICRC's internal basic doctrine with regard to its mission and activities has declared the dual nature of its work – operational help for victims of armed conflict on the one hand, and developing and promoting international humanitarian law and humanitarian principles on the other – to be part of the institution's identity.Footnote 68
There are a hundred or so references to the ICRC in the 1949 Geneva Conventions and the Protocols thereto, and most of them are injunctions to act.Footnote 69 Other tasks are left to the ICRC's own discretion.Footnote 70 Finally, its exercise of the right of initiativeFootnote 71 is determined by needs and circumstances.
The various aspects of its mandate are the practical expression of what is often referred to as the ICRC's role as guardian of international humanitarian law.Footnote 72 However, it is not the guarantor of humanitarian law. That role must be performed by the High Contracting Parties in accordance with their obligation under Common Article 1. They must, however, ‘grant the International Committee of the Red Cross all facilities within their power so as to enable it to carry out the humanitarian functions assigned to it […] in order to ensure protection and assistance to the victims of conflicts …’Footnote 73 In the Simic case, the International Criminal Tribunal for the former YugoslaviaFootnote 74 acknowledged the specific role of the ICRC in the implementation of international humanitarian law by upholding its immunity from the obligation to testify, even before international tribunals, in the interests of its ability to perform that role.Footnote 75
The ICRC has taken various steps to ensure that international humanitarian law is put into effect before war breaks out, and to step up both the protection of war victims and compliance with the rules.Footnote 76 It has, for example, been active in supporting national implementation measures and efforts to spread knowledge of the relevant law. It has set up an advisory service at headquarters and in the field to explore the entire range of measures for integrating international humanitarian law into domestic systems,Footnote 77 and its staff review states' domestic legislation, military doctrine, education, training and sanction systems and propose any changes needed to bring them into line with the state's obligations under the humanitarian treaties. The ICRC's main target groups are ‘those actors that have a significant capacity to influence the structures or systems (e.g. legislation, military doctrine and training, disciplinary and penal sanctions) associated with the actual and potential humanitarian problems identified. These actors include political authorities and parties, the judiciary, arms carriers, National Red Cross/Red Crescent Societies, the media, the private sector, religious groups, academic circles, non-governmental organizations (NGOs) and international organizations. Such actors may have a positive (or negative) impact on the lives and dignity of persons affected by armed conflict […], and they may be in a position to facilitate (or hamper) the ICRC's access to concerned populations.’Footnote 78
Operations during an armed conflict
In working for the faithful application of international humanitarian law, the ICRC endeavours to persuade states and other parties concerned to accept and comply with the rules of international humanitarian law applicable in a given situation. The obligations that arise for them will differ, depending on whether a situation is classified as an international armed conflict or not, and this classification also determines whether or not a state is obliged to accept the ICRC's offers of services. In the case of an international armed conflict, most victims have the status of protected persons and states are under specific obligations both towards them and towards the ICRC,Footnote 79 whereas the law applicable to internal conflicts does not impose those same constraints on the belligerents.
In international conflicts, the ICRC has traditionally drawn the parties' attention in a formal manner to the essential rules of international humanitarian law.Footnote 80 Its memorandaFootnote 81 to them contain a reminder of the relevant principles and rules of that law; they include the rules on the conduct of hostilities and on the protection of people affected by war. Legal classification of a situation as an armed conflict serves to highlight the belligerents' obligations, sets out a framework for the ICRC's operations, and provides guidance for its delegates in the field. The ICRC's overarching aim is to ensure that victims benefit at least de facto from treatment that complies with humanitarian rules, especially in internal conflicts.
In order to carry out their humanitarian operations, ICRC delegates must not only be present in warring countries but must also have access to the areas affected by the hostilities, as close proximity to the victims is vital for humanitarian protection and assistance. A headquarters agreement and a presence limited to the capital city will never be an adequate substitute for direct access to the people in need. Similarly, the ability of delegates to work in conflict-torn and potentially dangerous areas and to get to especially vulnerable people – in particular prisoners of war, detainees and civilian internees – is a sine qua non of what is known as protection work. In international conflicts, this right of access is expressly provided for in the ConventionsFootnote 82 and includes a real right of supervision.Footnote 83
Access naturally has to be negotiated with the authorities, and if necessary with all the warring factions. Their consent is indispensable to vouchsafe a minimum level of security. The negotiations have to take account of military interests and security considerations that often take precedence over humanitarian principles. Politics (foreign and domestic), the media, and economic parameters play a part. Although an agreement in principle is often relatively easy to obtain, putting it into practice is often much more difficult. Moreover, access to conflict areas does not in itself enable the ICRC to conduct all its humanitarian operations. For instance protection activities, particularly those related to detention, require specific agreements.Footnote 84
Once the ICRC has access, its treaty-based right of initiative authorizes it to undertake any humanitarian activity with the consent of the parties to the conflict concerned.Footnote 85 If the proposed action is explicitly based on humanitarian law, the ICRC has a wide scope for action (for example requesting a temporary cease-fire to allow evacuation of the wounded, repatriation of wounded prisoners of war, creation of hospital and safety zones, protection of hospitals, organization of relief convoys through front lines). It may also have discussions with authorities in order to perform its role as a neutral intermediary in humanitarian matters that call for negotiations with or between the parties to a conflict – the purpose here is to alleviate the actual or potential humanitarian consequences of a conflict.Footnote 86 Another activity based on humanitarian law is that of its Central Tracing Agency (CTA), which gives moral and practical support to people of concern for the ICRC and to their families. It helps to trace the wounded and dead,Footnote 87 detainees,Footnote 88 civilians isolated in enemy-controlled territory,Footnote 89 displaced people and refugeesFootnote 90 and unaccompanied children,Footnote 91 and to reunite people with their families.Footnote 92
However, the ICRC's work is often carried out without a firm basis in the rules of international humanitarian law. Even limited ad hoc agreements often make it possible to save human lives or alleviate suffering during a conflict. The ICRC can prepare such agreements or respond to requests from parties to a conflict without having any justification other than the humanitarian nature of the action required (resettlement of displaced persons, exchange or release of prisoners, disarmament of armed groups, evacuation or surrender of fighters, etc.) In these situations the action must be based on specific and concurring requests from the parties. At the same time the ICRC must ensure that it does not risk compromising its fundamental principle of neutrality by giving a political or propaganda advantage to either party, or jeopardizing its traditional protection and assistance operations.
Indeed, the ICRC's credibility and acceptance among the parties to conflicts are based on its strict respect for the Fundamental Principles of the Red Cross and Red Crescent, which the States Parties to the Conventions have themselves recognized and agreed to respect. In situations of armed conflict, the principles of humanity, neutrality, impartiality and independence are particularly relevant.Footnote 93 These principles determine its approach and positionsFootnote 94 and guide its operational activity in the field. In its judgment in the Nicaragua case, the International Court of Justice confirmed the importance of the Red Cross principles by singling out humanity and impartiality as the essential conditions for all humanitarian action.Footnote 95
Protection and assistance
Through its operations, the ICRC endeavours to shield conflict victims from dangers, suffering and abuse to which they may be exposed and to provide them with support. Geared to the victims' vulnerabilities and needs, they will therefore vary according to circumstances and cover a wide range of activities, from dissemination of the humanitarian rules and principles to medical, nutritional and material aid. These activities are closely interrelated and can be viewed only as an inseparable whole. In armed conflicts, protection and assistance are inextricably linked: the ICRC sees protection first and foremost as an active presence in the vicinity of people affected by a conflict. Assistance activities often have a protection dimension and vice versa.Footnote 96
The primary aim of the ICRC's operations must be to confront the parties to an armed conflict with their responsibilities and get them to comply with their obligations under international humanitarian law to preserve the safety, physical integrity and dignity of people affected by the conflict. Its work is designed to help them shoulder those responsibilities. It includes activities that seek to increase the safety of individuals and limit the threats they face by reducing their vulnerability and/or exposure to risks.Footnote 97 Firsthand information gathered by the ICRC through its presence in situ and its access to victims serves as input for its representations, based on fact or law, to the authorities to persuade them to ‘work for the faithful application’ of humanitarian law.
These representations take place as part of a regular dialogue with the main contenders in an armed conflict, particularly the political and military authorities.Footnote 98 They can be made at various levels – for example, to the commander of an individual camp, the official responsible for all prison camps, the general headquarters, or even at ministerial or presidential level. They may be made by a delegate, the head of the local or regional delegation, the ICRC Director of Operations or the ICRC President. They may be made orally or in writing, by letter or by note verbale. The type of representation will depend on the gravity of the violation, the urgency of the matter and above all the interests of the victims.Footnote 99
These approaches may take various forms. The extent to which they achieve their aims will obviously depend on the relationship of trust between the authorities and the ICRC. Although as a general rule the ICRC's representations remain confidential,Footnote 100 in the case of serious and repeated violations it can nevertheless appeal to the international community, even denouncing those violations publicly and calling for an end to them.Footnote 101 In recent years such appeals have become more and more frequent, particularly in major conflicts such as those in Somalia, Rwanda, Congo, the former Yugoslavia, Afghanistan, Iraq, and Israel and the occupied territories.Footnote 102 Nevertheless, the ICRC's practice in this regard is cautious so as not to make the numerous widespread violations appear banal by raising the alarm too frequently, and also not to jeopardize its ability to take action on the ground.
More often than not, the protection activities have to be complemented with assistance activities. Whereas the parties to a conflict bear the primary responsibility for meeting the basic needs of the civilian population under their control, relief operations are required to make up for a lack of supplies essential for the population's survival. Under international humanitarian law, parties to a conflict need only guarantee access to assistance operations on condition that the assistance is impartial and neutral, and if the supply of goods essential to the survival of the civilian population is insufficient.Footnote 103 An assistance operation therefore must be negotiated in advance with the warring parties. In an international armed conflict, consent must be given where the said conditions are met.Footnote 104 However, authorization to deliver assistance is often delayed or withheld without any justification based on overriding military necessity.Footnote 105 The ICRC can only carry out an assistance operation if it is able to ascertain the urgency and nature of the needs on the ground by assessing the categories and numbers of potential beneficiaries and organizing and supervising the distribution of relief accordingly.Footnote 106 It closely supervises the use to which assistance is put in order to prevent misappropriation and politicization of its aid by armed forced or groups. It is obliged to do so in order to comply with the requirements of humanitarian law.Footnote 107 Unlike some other players, and strictly following the Red Cross principles, it wants to provide assistance independently of political or military structures and without taking sides as to the cause of conflict.Footnote 108
Co-operation with the National Red Cross or Red Crescent Society
Co-operation with National Societies is indispensable for the ICRC to promote contingency measures for the implementation of international humanitarian law,Footnote 109 and even more so when it is preparing to conduct operations during a conflict. Humanitarian work by National Societies is mainly based on the Conventions themselves, and the primary responsibility for rendering assistance to the victims of armed conflicts rests with the respective National Society as a humanitarian auxiliary to the public authorities.Footnote 110 Article 81(2) of Protocol I,Footnote 111 which is addressed mainly to public authorities and their subsidiary bodies, stipulates that the parties to a conflict ‘shall grant to their respective National Societies the facilities necessary for carrying out their humanitarian activities, in accordance with the fundamental principles of the Red Cross’.Footnote 112
The objective of the operational partnership is to reach persons affected by conflict and respond to their needs as quickly and efficiently as possible. Close co-operation has been established, for example, in first aid,Footnote 113 public health,Footnote 114 assistance programmes and tracing missing persons. The activities conducted by the ICRC, except for those assigned to it by its specific mandate under international humanitarian law and more specifically the various protection activities, can often be carried out just as well or even better and with due respect for the Fundamental Principles of the Red Cross by the National Society concerned. Only when the National Society cannot assume its responsibilities does the ICRC offer to step in. In an internal conflict, however, the principles (independence vis-à-vis the authorities, neutrality in the conflict and impartiality of aid) are difficult for National Societies to comply with, and they are rarely able to do their job throughout the territory, particularly in rebel-controlled areas. Since national humanitarian organizations are often unable in such situations to respond to needs, international operations need to be present to plug any gaps in the national relief system.
Limitations
To be able to perform its specific role, the ICRC has to carefully weigh all the implications its public reactions to violations could have for the victims and, as a secondary consideration, for its own activities on their behalf. When faced with the dilemma of either remaining silent and being able to help the victims, or speaking out and not being able to alleviate their plight, the ICRC chooses the first approach.Footnote 115 By the same token, the need to safeguard its operational mandate restricts its ability to co-operate with enquiries or judicial procedures, as it would have to break its commitment to confidentiality vis-à-vis both the parties to conflict and the victims themselves to do so. It would thereby risk forfeiting the trust of the authorities and other parties with whom it engages in dialogue and being refused access to victims.Footnote 116
The ICRC's role as a neutral and independent humanitarian organization is therefore first and foremost an operational one. Its objective is to bring relief to the victims, improve their situation in practical ways, and persuade those responsible to treat them with humanity and work for better application of the law. Quasi-judicial supervision a posteriori Footnote 117 to restore victims' rights is not part of its mandate. It cannot be ‘at once champion of justice and of charity’.Footnote 118
Implementation in non-international armed conflicts
A distinction is made in international humanitarian law between international and non-international armed conflicts. It is also reflected in the implementation mechanisms: in the latter case they are addressed to the ‘parties’ to non-international armed conflicts, i.e. states but also non-state groups. Neither Article 3 common to the four Geneva Conventions nor Additional Protocol II expressly provides for international implementation mechanisms. All attempts to create such mechanisms, let alone a real system of legal supervision, were thwarted by the ‘internal affairs’ reflex.Footnote 119 Besides the humanitarian right of initiative enshrined in Article 3, only an obligation to disseminate the Protocol remains in its Article 19.
Neither Protecting Powers nor enquiry or fact-finding proceduresFootnote 120 are provided for in the law applicable to non-international armed conflicts. It is at best uncertain to which extent armed opposition groups incur responsibility and are under an obligation to make reparations. The obligation to prosecute and try war criminals, which is also implicitly contained for non-state entities, is hard for them to implement, and the parties to such conflicts are moreover often unwilling to enforce criminal responsibility.Footnote 121 Before adoption of the Statute of the International Criminal Court, there was no specific mechanism in international humanitarian law to prosecute and try perpetrators of violations of that law or put an end to such violations. However, the general rule enshrined in Article 1 common to the Geneva Conventions means that the warring parties are bound to ensure respect for international humanitarian lawFootnote 122 and to prevent and punish violations of it. Indeed, according to the International Court of JusticeFootnote 123 the obligation to ensure respect for the Conventions also applies to Common Article 3 and hence to non-international conflicts. This obligation applies to third states too.
The criminalization of violations of Common Article 3 as violations of the laws and customs of warFootnote 124 or as defined in the Statute of the International Criminal CourtFootnote 125 cannot obscure the fact that state practice, not to mention that of non-state entities, is still embryonic in terms of effective prosecution and punishment of violations of the laws and customs of war in internal conflicts. The measures for implementing international humanitarian law therefore essentially rest with authorities at the national level.
Special agreements and unilateral declarations
The rules on internal conflicts as laid down in Common Article 3 and Protocol II can be supplemented by those that govern international armed conflicts. In terms of Common Article 3(2), parties to a conflict must endeavour to put all or part of the other rules of the Conventions into effect by means of special agreements. In order to interpret the rudimentary rules pertaining to non-international conflicts and make them easier to understand and apply, it is necessary to proceed by analogy with the more detailed (and more demanding) rules applicable to international conflicts. This is an appropriate course to take, as the humanitarian and military challenges of both types of situation are often similar and there can be no real justification for differentiating between them.Footnote 126 Problems arising over the legal classification of a conflict can be overcome pragmatically by means of an agreement, since this will have no impact on the legal status of the contracting parties.Footnote 127
An agreement can be entered into on all or some of the provisions relating to international armed conflict. Such agreements mostly concern particular provisions (e.g. setting up of safety zones,Footnote 128 simultaneous release of wounded prisoners, etc.). There have also been broader references to humanitarian law treaties or parts of treaties, e.g. in the case of the conflict in the former Yugoslavia.Footnote 129 These special agreements are often the result of an ICRC initiative, and are often prepared by the ICRC and concluded under its auspices.Footnote 130
Special agreements between the parties to a non-international armed conflict (either between a State and an armed group or between armed groups) allow for an explicit commitment to comply with a broader range of rules of international humanitarian law. An agreement may be constitutive if it goes beyond the treaty or customary provisions already applicable in the specific context (thereby creating new legal obligations), or it may be declaratory if it is simply a restatement of the law that is already binding on the parties independently of the agreement. As pointed out by the International Criminal Tribunal for the former Yugoslavia, the former category implicitly develops the customary law applicable to internal armed conflicts.Footnote 131
States are often unwilling to enter into such agreements with armed groups, as they may be concerned about appearing to grant legitimacy to an armed group party to a conflict. In practice, special agreements are more frequently attempted and successfully concluded when the conflict is both seemingly intractable and more ‘equal’ in terms of the fighting between the State and armed groups (i.e. that the armed group is more ‘State-like’ in terms of territorial control, effective hierarchical chain-of-command, etc.).Footnote 132
Armed groups party to non-international armed conflicts may also make a unilateral declaration (or ‘declaration of intention’), in which they state their commitment to comply with international humanitarian law or specific rules thereof.Footnote 133 Some armed groups take the initiative to make such declarations through a public statement or press release. At other times the ICRC (or another humanitarian actor or organization) initiates, negotiates and/or receives the declarations.
There is a long history of generalFootnote 134 or partialFootnote 135 declarations of intent. The primary function of a unilateral declaration is to provide armed groups (or their proxies) with an opportunity to express their consent to be bound by the rules of humanitarian law, given that they cannot ratify or formally become party to humanitarian law treaties. Express commitment through a unilateral declaration provides the hierarchy with an opportunity to take ownership of ensuring respect for the law by their troops or fighters. In addition, it can lead to better accountability and compliance by the armed group, through providing a clear basis for follow-up, as well as dissemination to its members, especially when the declaration explicitly mentions the armed group's responsibility to disseminate international humanitarian law and to punish breaches. Similar functions can be fulfilled by the inclusion of humanitarian rules in armed groups' codes of conduct.
The most common argument against the promotion of unilateral declarations is that they are often made in an attempt to gain political legitimacy and there might be little chance of implementation of the commitments.Footnote 136 However, practice suggests that even if the primary motivation appears to be political, one can nonetheless capitalize on the express commitment made by an armed group, using it strategically as an operational tool to promote and improve compliance with the law. Declarations provide a point of entry, or essential ‘first step’, to establishing contact and beginning a dialogue. The negotiations can help to identify a responsible interlocutor with whom to begin a strategic dialogue and work towards building understanding and improving the political will, capacity, and practice of compliance of the party.
The right of humanitarian initiative
There remains the right of initiative conferred on the ICRC by Common Article 3, paragraph 2. Under this provision, ‘[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.’Footnote 137 Although the ICRC does not have a monopoly on this right of initiative,Footnote 138 states have nevertheless enshrined it in the Statutes of the Red Cross/Red Crescent MovementFootnote 139 as a veritable international mandate for the ICRC.
Parties to conflict can decline the ICRC's or any humanitarian organization's offers but must give them due consideration.Footnote 140 The obligation not to decline ‘for arbitrary or capricious reasons’ an offer made in good faith and intended exclusively to provide humanitarian assistanceFootnote 141 dovetails in effect with the requirements of human rights law.Footnote 142
The offer is to be addressed to the parties to a conflict. Depending on the type of conflict and the needs ascertained, the organization will make its offer to the government, the dissident authority or other warring parties (for example, rival armed factions) with a view to gaining access to all the victims on the respective territories they control. It may make an offer to one party independently, as the only relevant condition is the impartial nature of the humanitarian operation. Once a party has accepted its offer, the ICRC takes the view that it is entitled to provide the services concerned, irrespective of the other warring parties' acceptance.Footnote 143 However, it does seek the government's consent to access the whole of the territory, including areas under the control of an armed group. To perform its humanitarian task to the full, the humanitarian organization must enjoy the complete trust of the authorities that control de jure or de facto the territory where the operation is taking place. In the absence of consent, whether explicit, implicit or at least tacit, the aid workers would rapidly encounter safety and security problems.
An offer of services is not simply intended to enable aid workers to be sent to a country engaged in an armed conflict. Through such an offer the humanitarian organization also makes known its willingness to perform certain tasks under its mandate (visits to security detainees and vulnerable groups within the civilian population, provision of medical, nutritional and material assistance, tracing of missing persons). As the conflict develops, and with it the needs of the people affected, specific offers will have to be prepared, discussed and accepted. Day-to-day negotiations at several levels are often necessary at that stage. They may concern agreements on visits to prisoners or to a single individual, but mostly deal with matters such as how and under what conditions the humanitarian organization can access conflict areas.
The responsibility of the international community
‘Ensure respect’ for international humanitarian law
The undertaking in Article 1 common to the four 1949 Geneva Conventions to ‘ensure respect for’ international humanitarian law means that the Contracting Parties are obliged to help bring about compliance with the Geneva Conventions whenever they are applicable, even in conflicts in which those parties are not involved. This provision thus reinforces the responsibility of each contracting state, which besides regulating its own conduct must act by all appropriate means to ensure that humanitarian law is observed by all other states. ‘It follows, therefore, 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.’Footnote 144
This article has been invoked several times, by the UN General Assembly,Footnote 145 the Security CouncilFootnote 146 and the International Court of Justice,Footnote 147 as well as by the ICRC.Footnote 148
The said undertaking by the states party to the Geneva Conventions and the Protocols additional thereto to ‘respect and ensure respect for’ those instruments ‘in all circumstances’ encompasses a wide range of means (in addition to those expressly provided for by international humanitarian law, for example the appointment of Protecting Powers or the International Fact-Finding Commission). These include diplomatic, confidential or public approaches and public appeals.Footnote 149 The scope of this obligationFootnote 150 can only be assessed case by case, depending on factors such as the appropriateness of the various means available and the nature of the relationship between third states and the warring parties. The challenge posed by this provision was consequently not to spell out its content, but rather to identify as precisely as possible the measures available to third states for influencing the parties to a conflict.Footnote 151 Although Article 1 throws the doors wide open to action in support of compliance with the law, states have rarely ventured beyond discreet representations behind the scenes.
Provision for a further type of ‘co-operation’ in the event of serious violations of international humanitarian law is made by Article 89 of Protocol 1, in which the Contracting Parties undertake to ‘act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter’. If the violations are on such a scale that a continuation of them would constitute a threat to international peace and security (within the meaning of Article 39 of the UN Charter), it is up to the United Nations Security Council to take note of the fact, to make recommendations and, if it deems necessary, to decide on measures to be taken under Articles 41 and 42 of the Charter. The use of force can then be envisaged: the purpose of such measures is not essentially to enforce humanitarian law, but to terminate a situation that is a threat to international peace and security. In this case, the legal basis is not to be found in humanitarian law.Footnote 152
Specific multilateral fora for international humanitarian law?
The establishment of a new specific body that would allow compliance with international humanitarian law to be examined in a multilateral forum has been proposed on several occasions. Certain mechanisms of the United Nations could have a specific competence to deal with international humanitarian law (e.g. a specific subsidiary body of the Human Rights Council), a High Commissioner of International Humanitarian LawFootnote 153 could exercise functions similar to those of the bodies for implementation of human rights,Footnote 154 or a limited inter-state body could supervise the application of international humanitarian law, whether treaty- or resolution-based.Footnote 155
During the drafting of the 1977 Protocols additional to the Geneva Conventions, the ICRC itself put forward various ideas for international supervision of parties involved in a conflict.Footnote 156 Among the avenues suggested were potential roles for existing international and regional organizations, the establishment of an international commission on humanitarian law or the creation of an international court on international humanitarian law.Footnote 157
In 1998 the Swiss government organized a First Periodical Meeting of States parties to the Geneva Conventions (as provided for by Article 7 of Protocol I) on general problems concerning the application of international humanitarian law. The discussions centred on two general topics: respect for and security of the personnel of humanitarian organizations, and armed conflicts linked to the disintegration of state structures.Footnote 158 The opportunity has not been taken to develop this forum for discussion of the implementation of the law, as no second meeting has yet been organized. Although they deal generally with international humanitarian law, the International Conferences of the Red Cross and Red Crescent – which assemble the States parties to the Geneva Conventions together with the components of the International Red Cross and Red Crescent Movement – carefully avoid being drawn into questions of implementation, as the participants (the Movement in particular) fear a politicization and possible polarization of the Conference.
The history of international humanitarian law shows that states have consistently rejected any form of binding supervision of their conduct in armed conflict, especially in non-international conflicts. It is not surprising that experts ‘pointed to the existing low level of enthusiasm for the current mechanisms on the part of States party to the Geneva Conventions and Additional Protocols, and warned that, although it might be a laudable long-term goal, it is too idealistic in this climate to think about the introduction of new permanent bodies or mechanisms.’Footnote 159 If such a mechanism were to come about, it would often overlap with human rights procedures and would probably lead to interminable discussions about whether or not international humanitarian law is applicable in a specific situation. In his report to the Millennium Summit the UN Secretary-General nonetheless recently proposed, without further specification, ‘establishing a mechanism to monitor compliance by all parties with existing provisions of international humanitarian law’.Footnote 160
‘Responsibility to Protect’ (R2P)
Also pertinent to the international community's responsibility but independent of international humanitarian law, the concept of ‘Responsibility to Protect’ (R2P) has recently become a widespread topic of debate in humanitarian and political spheres. Its rationale is ultimately to increase the protection of individuals against the most heinous crimes. It was developed from the notion of ‘humanitarian intervention’ as reflected in the 2001 Report of the International Commission on Intervention and State Sovereignty.Footnote 161 The 2005 World Summit Outcome anchored the concept in the UN environment. It affirmed the responsibility of each state to protect its population against genocide, war crimes, ethnic cleansing and crimes against humanity, and invited the international community,Footnote 162 whenever necessary, to help states in this task and to take action collectively in cases where a state fails to uphold that responsibility.Footnote 163 The Security Council introduced R2P into its deliberations when discussing the protection of civilians in armed conflict.Footnote 164
In substance, R2P refers to the responsibility to prevent those crimes and to react to them. In terms of prevention, it consists of action to ‘encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability’. Parts of the reactive responsibilities of the international community, namely to ‘use appropriate, humanitarian and other peaceful measures to help to protect populations from those crimes’,Footnote 165 are already contained in Article 1 common to the Geneva Conventions. In referring to enforced collective action through the Security Council based on Chapter VII of the Charter – ‘should peaceful means be inadequate and national authorities manifestly fail to protect their populations’Footnote 166 – R2P goes beyond the system of international humanitarian law. The Outcome document, however, limits this responsibility: it does not refer to an ‘obligation’ but to being ‘prepared’ to take collective action, ‘on a case-by-case basis and in co-operation with relevant regional organizations’. This part of R2P is a declaration of the willingness to act and an essentially political concept. It has not yet attained the status of an international rule, irrespective of the fact that it is derived from international norms such as the provisions of international humanitarian law and is described as an ‘emerging norm of collective responsibility to protect’.Footnote 167 There is no systematic obligation to act collectively to stop the most heinous crimes from occurring, but the Security Council – an essentially political organ – can selectively decide how and in which situations it may act. However, the concept of R2P implicitly underlines the erga omnes character of certain obligationsFootnote 168 of international humanitarian law and is a reminder that all states have a legal interest in seeing that those obligations are respected.Footnote 169
Protecting war victims through human rights treaty bodies
International humanitarian law and its implementation are not a closed system. They form part of the general framework of international law. The protection of victims of armed conflicts concerns first of all the parties to a conflict and their obligations under the international instruments drawn up to implement that protection.
The close relationship between humanitarian law and human rights
Despite differences in their historical and philosophical origin, their approaches to codification, their scope both ratio materiae and ratio personae and the fact that different institutions oversee their implementation, international humanitarian law and human rights often converge. They pursue a common aim, namely protection of the human being. The overlapping, complementarity and mutual influence of these two branches of lawFootnote 170 are also reflected in their implementation. Except in cases of derogation, international human rights law applies during armed conflict. The various bodies of the United Nations, along with national and international jurisprudence and doctrine, affirm the principle that ‘[f]undamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict.’Footnote 171 According to the International Court of Justice in its Wall decision, ‘there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.’Footnote 172
The fundamental questions as to the relationship between humanitarian law and human rights law are overshadowed by the legal, but even more political question of whether human rights implementation mechanisms should also govern situations of armed conflict. The mechanisms provided for in humanitarian law are often considered to be less stringent, only exceptionally applied and only rudimentarily developed, especially in non-international armed conflicts. Human rights mechanisms, however, promise a more open – and often judicial – treatment of serious violations of ‘fundamental human rights in armed conflict’.
Human rights treaty monitoring bodies
The human rights treaty monitoring bodiesFootnote 173 favour a strict interpretation of their mandates and confine themselves to applying the conventions they were set up to monitor. They generally do not incorporate international humanitarian law in their work.Footnote 174 Of the bodies in charge of monitoring the present eight international human rights treaties,Footnote 175 there is only one notable exception in this regard, namely the Committee on the Rights of the Child, as the Convention on the Rights of the Child refers explicitly to international humanitarian law.Footnote 176 However, the bodies mandated to monitor the compliance of states parties with their treaty obligations have not hesitated to affirm that the respective treaties apply in situations of international and non-international armed conflicts or in cases of occupation.Footnote 177
Moreover, almost all states in the Americas and Europe and several in Africa are party to a regional human rights convention.Footnote 178 The Inter-American Commission and Court have recognized the applicability of the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights to armed conflict situations.Footnote 179 The European Court of Human Rights has applied the European Convention both in non-international armed conflictFootnote 180 and in situations of occupation;Footnote 181 in recent years that Court in particular has rendered several judgments which have an impact on the legal reading of situations of armed conflict and the applicable law. It has notably agreed to hear cases, brought by Chechen civilians against Russia, of human rights abuse during the Second Chechen War and has made more than 30 rulings to date.Footnote 182
The Inter-American Commission on Human Rights refers freely to international humanitarian law where necessary, both in general reports and in individual decisions.Footnote 183 This suggests that the Commission considers itself competent to examine not only the conduct of states but also that of non-governmental armed groups.Footnote 184 However, the Inter-American Court of Human Rights takes the view that, while it cannot apply international humanitarian law directly, it can use it to interpret the provisions of the American Convention on Human Rights when they have to be applied in times of armed conflict.Footnote 185 In contrast, the European Court of Human Rights has never explicitly referred to international humanitarian law to support its judgements, even in cases linked to armed conflicts.Footnote 186 It has refrained from even mentioning humanitarian law, probably to avoid potential problems of material competence; but even so, the Court could not avoid referring to concepts stemming directly from humanitarian law, namely the distinction between combatants and civilians.Footnote 187 In the African human rights system, treaties on the protection of women and children specifically address the context of armed conflict.Footnote 188 Yet the judicial body, the former African Commission on Human and Peoples' Rights, based its decisions almost entirely on human rights law. Nevertheless, it did hold in connection with the right to life that the state must take all possible measures to ensure compliance with international humanitarian law in a civil war.Footnote 189 In 2004, the Commission was replaced by the African Court of Human and Peoples' Rights, which was subsequently merged with the African Court of Justice to form the African Court of Justice and Human Rights.Footnote 190 These mechanisms have not yet become operational, in effect leaving victims of violations in Africa without any judicial recourse when their national systems fail to provide a remedy.
The issue of regional human rights mechanisms is of even greater importance, since the human rights treaties may apply not only within the national borders of the state party thereto but also to acts committed by it abroad – including in situations of armed conflict. The International Court of Justice,Footnote 191 the Human Rights CommitteeFootnote 192 and the Inter-American CourtFootnote 193 endorsed this principle of extraterritorial application of human rights by emphasizing that it is unconscionable to permit states to do abroad what they are prohibited from doing at home.Footnote 194 The jurisprudence of the European Court of Human Rights – in particular, on the meaning of ‘effective control’ and the question whether the application is restricted to detention of persons – demonstrates the uncertainty as to how far human rights treaties should govern situations in which humanitarian law is lex specialis.Footnote 195 Differing jurisdiction and jurisprudence of the various treaty bodies may directly affect the actual conduct of hostilities and the distribution of roles among allied parties to a conflict, especially as acts of different belligerents may or may not be subject to review by human rights bodies.
This tendency to examine the conduct of war through human rights mechanisms has met with opposition from various quarters. First, states are averse to any form of judicial supervision of their behaviour during hostilities that could hamper their ability to wage (and win) a ferocious and bloody war. Second, they argue that the reality of conflict and the disruption of justice systems in wartime are not conducive to a judicial approach. Further objections are that simultaneous application of international humanitarian law and international human rights law, which sometimes lead to contradictory conclusions, could destabilize armed forces and facilitate a ‘pick and choose’ approach which could ultimately dilute universally applicable standards. Non-state entities taking part in a conflict would not fall within the purview of an international judicial system based on human rights, and some of the roles played by human-rights monitoring mechanisms seem ill-adapted to the characteristics of non-governmental armed groups. Finally, it is argued that this type of approach could lead to a regionalization of the law applicable in armed conflicts, as not all regions have judicial human rights mechanisms such as those found in Africa, the Americas and Europe.Footnote 196
Despite these issues judicial human rights mechanisms, and in particular the Inter-American Court of Human Rights and the European Court of Human Rights, have provided a considerable boost to the implementation of international humanitarian law even though they do not formally apply it. Moreover, prompted by the International Court of Justice's interpretation of the law in the Wall case,Footnote 197 these courts uphold the extraterritoriality of human rights and their consequent applicability in military operations and armed conflicts outside the borders of the states party to the relevant treaties. Although the contours of this case-law have not yet been finally determined, this interpretation overturns the earlier view of the difference between international humanitarian law and human rights law, as regards both substance and implementation. In its boldest formulations, it is a major step towards a larger role for judicial processes in the context of war – as intimated by the first judgements handed down by the international criminal tribunals – and towards greater protection for war victims, including provision for reparation which is almost entirely lacking in international humanitarian law.
Protecting war victims through the United Nations system
The obligation to ensure respect for international humanitarian law by the parties to a conflict also applies to third states. The most high-profile contributions to this implementation effort are made through the United Nations, regional organizations and non-governmental organizations, even though they are given no specific role, or only a marginal one, under the terms of that body of law.Footnote 198
Clearly, the United Nations cannot but be concerned by armed conflicts. Recourse to war is no longer a legitimate way of settling disputes, and keeping or where necessary restoring international peace and security is one of the UN's fundamental aims. Once an armed conflict breaks out, the various UN bodies, each within its own specific role, must concern themselves with international humanitarian law, which is an integral part of the corpus of international law that the United Nations must comply with and promote.
In working towards respect for human rightsFootnote 199 the relevant UN bodies have come to assign ever greater significance to compliance with international humanitarian law within the framework of human rights law, outside the treaty system. However, the relationship between the different human rights monitoring systems and their respective link with international humanitarian law remains a moot point.Footnote 200 The few observations below illustrate and explain the importance attached by the various UN bodies to the implementation of humanitarian law.
The Security Council
The Security Council has often called for respect for international humanitarian law and has gone so far as to express the view that compliance with its rules and principles is an important factor for restoring peace. Compliance with international humanitarian law by warring parties can help to avoid a spiral of violence and be a first step in a conflict-settlement process. Over the past two decades, humanitarian matters have loomed large in the Security Council's deliberations and decisions, frequently in the absence of any immediate hope for a settlement to a conflict. This concern was particularly evident in connection with the conflict in the former Yugoslavia.Footnote 201
The UN Charter as framework
As long as the Security Council remains within the broad framework of the UN Charter, it is not limited to the instruments made available to it by international humanitarian law and can innovate. It can take wide-ranging decisions and even create new mechanismsFootnote 202 as long as it acts in accordance with the purposes and principles of the CharterFootnote 203 and does not violate the norms of jus cogens. The main check on the Security Council's decisions is, however, the possibility that states may disregard its decisions: without the Member States' support, the resolutions are mere wishful thinking.Footnote 204
Whereas the system established under international humanitarian law rests essentially on the consent of the parties to a conflict, particularly in internal conflicts, the measures authorized by Chapter VII of the Charter require no consent and can be imposed. The Security Council does not remain within the framework of international humanitarian law, and often combines aspects of jus ad bellum (direct or indirect interventions in current military operations) and of jus in bello (initiatives to protect war victims). In doing so, especially where force is used to impose these measures, the Security Council is implementing the UN Charter and not humanitarian law, which does not admit of any interference in a conflict. It cannot be neutral between an aggressor and the victim of an aggression. This differs from the approach necessary for proper application of international humanitarian law, in which neutrality is de rigueur and which makes it vital that the Security Council should also, as stated in the preamble to Protocol I additional to the Geneva Conventions, apply its provisions ‘to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict’.
The Security Council's practice furthermore reveals a difference in treatment inasmuch as it does not consider conflicts that arise within or involve a permanent member of the Security Council (or their allies) in the same way as conflicts arising in other states. Although the Charter does not explicitly oblige the Security Council to act impartially, these differences of treatment – or double standards – affect the credibility of the Council and do little to bolster support for the crucial tenet that international humanitarian law must be applied ‘in all circumstances.’Footnote 205
Situation-specific practice
The list of actions in Article 41 of the Charter is merely indicative and does not limit the Security Council's choice of means for achieving the desired objective or restoring and keeping the peace.Footnote 206 In its practice, the Security Council has been primarily concerned with the effects of international conflicts and frequently calls upon the belligerents to respect humanitarian law (examples include the Iran/Iraq conflict,Footnote 207 the territories occupied by Israel,Footnote 208 the invasion of Kuwait,Footnote 209 Ethiopia/Eritrea,Footnote 210 Iraq,Footnote 211 Georgia, etc.Footnote 212). It has, however, increasingly addressed non-international armed conflicts (such as Somalia, Rwanda, Liberia, AfghanistanFootnote 213). These can also constitute a threat to international peace and security, have an impact on neighbouring countries (huge influxes of refugees), provoke interventions by third countries or destabilize entire regions. Moreover, the international community cannot stand by and watch hundreds of thousands of people die, as a catastrophe of that nature is in itself a threat to international peace and security.
The Security Council has, for instance, called for recognition of the applicability of the Fourth Geneva Convention;Footnote 214 for prisoners of war to be released and repatriated;Footnote 215 for unrestricted access and safe passage to be given to aid deliveries;Footnote 216 for travel bans and asset freezes for those responsible for violations;Footnote 217 for a commission of enquiry to be set up;Footnote 218 for ad hoc criminal tribunals to be established;Footnote 219 or for a situation to be referred to the International Criminal Court, even if the state concerned is not a party to the Rome Statute.Footnote 220
However, it can also set up UN Protection Forces,Footnote 221 protected townsFootnote 222 and humanitarian corridors,Footnote 223 a compensation system for the victims of armed attacksFootnote 224 or even a reporting system related to international humanitarian law.Footnote 225
In the words of the Secretary-General, the ‘Security Council […] has a critical role in promoting systematic compliance with the law. In particular, the Council should: (a) Use all available opportunities to condemn violations, without exception, and remind parties of, and demand compliance with, their obligations; (b) Publicly threaten and, if necessary, apply targeted measures against the leadership of the parties that consistently defy the demands of the Security Council and routinely violate their obligations to respect civilians; (c) Systematically request reports on violations and consider mandating commissions of inquiry to examine situations where concerns exist regarding serious violations of international humanitarian law and human rights law, including with a view to identifying those responsible and prosecuting them at the national level, or referring the situation to the International Criminal Court.’Footnote 226
Protection of the civilian population
In 1999, the Council adopted the ground-breaking thematic resolution on the protection of the civilian population, articulating clearly and specifically the link with the Council's responsibilities for the maintenance of international peace and security.Footnote 227 Since then, the Secretary-General has reported seven times on this issue to the Security Council,Footnote 228 which discusses the reports and their recommendations and increasingly refers to the concept of R2P.Footnote 229 The main challenges are currently considered to be promoting greater compliance with the legal obligations, also by non-state entities, the growing role of peacekeeping missions in the protection of civilians, humanitarian access and increased accountability.Footnote 230
Even a cursory examination of the mandates of peacekeeping forces shows that the scope of their operations is no longer limited to and indeed goes well beyond classic activities such as supervising and maintaining cease-fires, observing borders or acting as a buffer between belligerents. The protection of civilians is now considered to be a task inherent in all peacekeeping missions, not merely a military task. The range of possible assignments includes protection of the civilian population, distributing information and collecting data on violations of human rights and humanitarian law, and assistance for war victims. This role is performed by military observers and by police and human rights specialists. In the former Yugoslavia, for example, the UNPROFOR units in charge of supervising compliance with human rights (the Civilian Affairs department and civilian police force) have already played an important part in ensuring respect for humanitarian law.
However, the fact that military and humanitarian operations coexist within peacekeeping forces is not unproblematic. Military operations go beyond purely humanitarian objectives and encompass political aims, whereas humanitarian action, by its very nature, can never be coercive. The use of force, even for valid humanitarian reasons, inevitably transforms a humanitarian action into a military one, and a threat of force to facilitate a humanitarian operation may be enough to jeopardize that very operation. Nor can such a threat be maintained indefinitely – if it is not put into effect, it is likely to undermine not only the credibility of the military operation but also all efforts made to ensure that humanitarian operations are carried out on the basis of consent, as humanitarian law requires.
The General Assembly
In its Resolution 2444 (XXIII) of 19 December 1968 entitled ‘Respect for human rights in armed conflicts’, the United Nations General Assembly did not confine itself to listing the principles to be observed in such situations. It also paved the way for resolutions calling for compliance with international humanitarian law in general, as well as in specific situations. The broad functions and powers of the General Assembly allow it to discuss and make recommendations on all matters that fall within the purview of the United Nations, subject to the prerogatives of the Security Council.Footnote 231 Through its resolutions on specific conflicts, the General Assembly draws the attention of the states making up the international community to their responsibility under Article 1 common to the four Geneva Conventions to ‘ensure respect for’ international humanitarian law.Footnote 232 The following subsidiary bodies are particularly important:
The Human Rights Council
Since the establishment of the Human Rights Council in March 2006, there has been some uncertainty about the relationship between the Council and the Social, Humanitarian and Cultural Affairs Committee (Third Committee),Footnote 233 as both of these two subsidiary bodies of the General Assembly are in charge of promoting and implementing human rights at world level. However, neither of them hesitates to invoke humanitarian law to underpin their recommendations. States are also divided as to how far the Council, and above all the special procedures mechanisms set up by the former Human Rights Commission and taken over by the Council,Footnote 234 should take international humanitarian law into consideration. Some states fear that selective treatment of certain armed conflict situations, particularly in the Middle East, may further politicize the Council, whereas other states, knowing their strong position in this forum, favour discussions in it about the application of international humanitarian law. Whatever the decision, the Council should not assume the function of the various human rights treaty bodies which bring some impartiality to the often politicized debate.
The main aim of the Human Rights Council is ‘to address situations of violations of human rights […] and make recommendations thereon.’ However, it also concerns itself with armed conflict situations, albeit from a human rights angle.Footnote 235 The first resolution of the Council's very first special session already dealt with humanitarian law, even though it was entitled ‘Human rights situation in the Occupied Palestinian Territory’.Footnote 236 Eight of the eleven special sessions held to date have dealt with armed conflict situations, five of them in the Middle East.Footnote 237 When such a situation is consideredFootnote 238 (as is currently the case for Sudan, Somalia or Israel/Occupied Palestinian Territories),Footnote 239 or a matter within the purview of international humanitarian law is addressed,Footnote 240 at least an otherwise unscheduled discussion forum on the law applicable during an armed conflict is then possible. States and public opinion pay close attention to the discussions in these fora, and although those in the Council are highly politicized and the emphasis is placed on human rights, they can have a deterrent effect and perform a ‘naming and shaming’ function.
One innovation ushered in with the Council is the Universal Periodic Review (UPR). This mechanism provides for a review of the human rights situation in each of the 192 UN Member States. Resolution 5/1 specifically empowers the UPR to consider compliance inter alia with international humanitarian law obligations. This law has been touched upon on several occasions in the review process in cases where the country in question was involved in an armed conflict.Footnote 241 References to it have also been made in the other mechanisms, for instance the new Human Rights Council Advisory Committee that serves as a think-tank for the Council and provides it with expertise and advice on thematic human rights issues,Footnote 242 the special procedures mechanismsFootnote 243 and the revised complaint procedure that enables individuals and organizations to bring human rights violations to the Council's attention.Footnote 244 The Human Rights Council thus continues to work with the UN ‘special procedures’ mechanisms. The working groups, representatives or special rapporteurs mandated by the Council to review particular situations certainly should consider the interaction between human rights and humanitarian law, but have not done so systematically.Footnote 245
The Economic and Social Council
The principal organ of the United Nations for the co-ordination of economic and social affairs, the Economic and Social Council (ECOSOC),Footnote 246 is particularly relevant for formulating policy recommendations addressed to the Member States and the UN system on strengthening the co-ordination of UN humanitarian and disaster relief assistance.Footnote 247 The reports submitted to ECOSOC by the Secretary-General describe the major humanitarian trends and challenges, including those in situations of conflict, and the key processes to improve humanitarian co-ordination.Footnote 248 While mainly concerned with increasing the efficiency of humanitarian action by the UN system, it also highlights the challenges to principled humanitarian action largely drawn from international humanitarian lawFootnote 249 and the Fundamental Principles of the Red Cross and Red Crescent Movement, on which the ECOSOC bases its recommendations.Footnote 250
The Secretary-General and the UN agencies
The UN Secretary-General obviously plays a key role in the implementation of humanitarian law, as he takes care of the practical arrangements for and the follow-up to the actions of the other non-judicial UN bodies, and may bring matters to the attention of the Security Council on his own initiative.Footnote 251 Acting under his authority, the UN High Commissioner for Human Rights is responsible for the UN's activities in the human rights sphere.Footnote 252 In addition to co-ordinating and rationalizing these activities, the High Commissioner has to ‘play an active role in removing the current obstacles and in meeting the challenges to the full realization of all human rights and in preventing the continuation of human rights violations throughout the world …’Footnote 253 Under this mandate the High Commissioner has sent human rights observers to countries in conflict, and has gradually begun to take an interest in respect for international humanitarian law. Over the years, the Office of the High Commissioner for Human Rights (OHCHR) has stepped up its presence on the ground in order to promote human rights and help strengthen national institutions and civil society.Footnote 254 It has expanded his operational mandate to include technical co-operation, in particular for the administration of justice. The work of these ‘human rights observers’ is therefore highly varied, ranging from information-gathering on past violations to emergency operations.
In a bid to meet the needs of victims of armed conflicts and natural disasters more effectively, the UN Under-Secretary-General for Humanitarian Affairs has set out to strengthen ‘the co-ordination of humanitarian emergency assistance of the United Nations’.Footnote 255 The Department of Humanitarian Affairs, with the support of its Inter-Agency Standing Committee (IASC), is supposed to ensure that there are no overlaps or gaps in humanitarian aid by distributing tasks to the various UN agencies concerned in keeping with their mandates.Footnote 256 The proliferation of agencies carrying out humanitarian work and the diversity of their areas of specialization, their abilities and their working methods has fostered a spirit both of complementarity and of competition.
Under international humanitarian law, no entity within the UN system has the same specific role as the ICRC of providing conflict victims with protection and assistance; but all the UN bodies deal with conflict situations in some way or another and can and must concern themselves with war victims within the terms of their mandates, at least on the periphery of areas affected by conflict. Besides the High Commissioner for Human Rights, the Office of the United Nations High Commissioner for Refugees (UNHCR),Footnote 257 the World Food Programme (WFP), the United Nations Children's Fund (UNICEF),Footnote 258 the United Nations Development Programme (UNDP) and to a lesser extent the World Health Organization (WHO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO),Footnote 259 among others, have acted on behalf of conflict victims.
According to the Secretary-General, ‘blurring of humanitarian, political and security objectives can also occur within United Nations operations, particularly in so-called integrated missions, where humanitarian actors work alongside political and peacekeeping missions.’Footnote 260 In post-conflict situations,Footnote 261 but also in conflict situations,Footnote 262 he reaffirmed integration as the guiding principle where the UN has a country-team and a multi-dimensional peacekeeping operation or a political mission/office, in order to ‘maximise the individual and collective impact of the UN's response’. Co-ordinated but diverse approaches should take full account of the various strengths of the objectives of political and humanitarian mandates.
However, political, military and humanitarian actors are not always pursuing the same goal. Peace-making or peace-building, for instance, are not the primary aims of humanitarian actors, even though they consider the impact of their humanitarian work on reconciliation between adversaries and refrain from any activity which might inadvertently fuel violence; they even consider setting up projects that could ease tensions at the local level. Their primary aims are to save lives and alleviate human suffering. The subordination of humanitarian activities to political goals risks causing insurgents, or parts of the population, to perceive humanitarian agencies as instruments of a foreign agenda, entails security risks, fuels scepticism about the accountability of humanitarian actors and can be detrimental to bringing independent and impartial aid to conflict areas.Footnote 263
In all operations conducted under the aegis of the United Nations, a clear distinction should be made between humanitarian activities and the political activities that form part of the remit of the UN Secretary-General. To the extent that the UN agencies contribute to the implementation of humanitarian law, they have to enjoy a degree of independence, sometimes referred to as the ‘humanitarian space’, in relation to the political organs of the United Nations, and have to be able to guarantee the impartiality of their humanitarian operations. The United Nations accordingly refers to ‘the humanitarian principles of humanity, neutrality, impartiality and independence’ ‘within the framework of humanitarian assistance’.Footnote 264 However, the understanding of those principles can vary.Footnote 265
The International Court of Justice
The International Court of Justice, as principal judicial organ of the United Nations, contributes to the implementation of humanitarian law through its jurisprudence and its advisory opinions. It may be called upon to settle a dispute between states concerning the application of international humanitarian law if both states have accepted the Court's jurisdiction.Footnote 266 Generally, the Court has jurisdiction only on the basis of consent and only states may be parties in contentious cases.Footnote 267 When requested to hear a case or give an opinion on a matter linked to an armed conflict, the International Court of Justice quite naturally applies international humanitarian law, as unlike many other international judicial bodies it is free to refer to all applicable international law, not just a selected branch or treaty.Footnote 268 In Nicaragua v. the United States of America, the United States, which had previously accepted the Court's compulsory jurisdiction when it was created in 1946, withdrew its acceptance following the Court's judgment in 1984 that called on the US to ‘cease and to refrain’ from the ‘unlawful use of force’ against the government of Nicaragua. The Court ruled that the United States was ‘in breach of its obligation under the Treaty of Friendship with Nicaragua not to use force against Nicaragua’ and ordered the United States to pay war reparations.Footnote 269 In its final judgment in the Congo case, the Court held that the armed activities of Uganda in the Democratic Republic of Congo (DRC) between August 1998 and June 2003 violated international human rights and international humanitarian law and ordered Uganda to pay reparations to the DRC.Footnote 270 Both judgements may have influenced conscious building, but had not been implemented yet. The advisory opinions on the Legality of Nuclear Weapons and on the Construction of a Wall in the Occupied Palestinian Territories were legal and political highlights,Footnote 271 but did not lead to practical changes in their respective fields. Though the opinions are influential and widely respected, under the Statute of the Court they are inherently non-binding.
Activities of regional organizations
Like the United Nations, regional organizations are not primarily concerned with implementing international humanitarian law. Nevertheless, the consequences of armed conflicts have prompted them to take an ever greater interest in the humanitarian dimension of conflict. They engage in efforts not only to prevent wars where possible, or at least contain them, but also to find peaceful solutions. Where there are no more promising avenues to take, these solutions often begin with a modicum of respect for humanity in the midst of combat.
The growing interest of regional organizations in international humanitarian law finds expression at several levels. The Organization of American States (OAS),Footnote 272 the African Union (AU),Footnote 273 the European Union (EU)Footnote 274 and the Organization for Security and Co-operation in Europe (OSCE), for example, have all made pronouncements based on international humanitarian law. The recognition of the significance of international humanitarian law by member states is also reflected by the reference in an article of the ASEAN Charter.Footnote 275
However, they do not restrict themselves to passing resolutions; they also attempt to play a mediating role and frequently send observers into conflict areas with a broad mandate that often includes monitoring compliance with that law, in particular in Europe. European observers whose main task, in co-operation with the OSCE, was to supervise compliance with a cease-fire in the former YugoslaviaFootnote 276 quickly became involved in humanitarian operations such as visits to prisons and the escorting of convoys. The consolidation of the OSCE as an institutionFootnote 277 has been followed by a high-profile observer presence in the Balkans and the southern Caucasus. The Parliamentary Assembly of the Council of Europe has conducted several fact-finding missions to countries and territories affected by armed conflicts (and other forms of violence), leading to the adoption of resolutions and recommendations addressing issues of a humanitarian nature.Footnote 278 Implementation of the provisions spelled out in the recommendations adopted is then assigned to the Committee of Ministers. The African Union finally began to play a visible role in the field within the framework for the prevention, management and settlement of conflicts set up in Cairo in June 1993.Footnote 279
If regional organizations monitor compliance with international humanitarian law, there is bound to be a positive impact on its implementation, but the essentially political nature of these organizations may be reflected in their operations and may sometimes jeopardize the work of humanitarian agencies that must be conducted with impartiality and remain untainted by political considerations.
Activities of governmental and non-governmental organizations
On the basis of Article 1 common to the four Geneva Conventions, states have, as already pointed out above, a broad range of means to discharge their obligation to ensure respect for international humanitarian law. A wide range of actions are possible, ranging from instruction in the law within the framework of military co-operation to supplying the logistical infrastructure to facilitate humanitarian operations. Governmental agencies are often present in conflict situations and provide financial and/or material support for humanitarian organizationsFootnote 280 or become operational themselves to alleviate the plight of war victims.Footnote 281 It is plain that when governments engage in such operations they will always be viewed with some suspicion, particularly if the humanitarian services they provide also benefit the opponents of the country's legal government. Moreover, when conducting operations in a conflict-driven country, it is not easy to refute an accusation of interference in domestic affairs.
Today's conflicts and emergency situations are quite diverse in nature, intensity and magnitude. Each of them produces a distinct mix of humanitarian needs and brings along its specific constraints. In the face of this enormous variety of humanitarian calls, the diversity of non-governmental organizations (NGOs) greatly enhances the flexibility and the appropriateness of the response. During war-time, NGOs are exercising the right of initiative provided for in international or non-international conflicts.Footnote 282 This right is not limited to the ICRC but can be exercised by ‘any other impartial humanitarian organization’. In conflicts, NGOs often fill the gaps left by international organizations; they generally address specific issues and some of them have operations in many parts of the world. Examples are Médecins sans Frontières (Doctors without Borders), the Norwegian Aid Committee (NORWAC), the International Rescue Committee, CARE, Save the Children, OXFAM and the Islamic Relief Society, to name but a few. Activities stretch from emergency relief, mine action and primary healthcare, to human rights, conflict resolution, democracy and legal aid, and over to development, agriculture, trade, education, gender, environment, and even telecommunications. Many organizations combine a number of these and just add humanitarian relief to the mix. They assist various specific groups such as children, women, elderly, disabled, refugees/internally displaced/asylum seekers.
Where they come across indiscriminate acts of war, summary executions or acts of torture and misappropriation of humanitarian aid, the role of these organizations cannot remain restricted to that of a mere purveyor of medical and material aid; many are therefore gradually supplementing their emergency assistance operations with measures to protect conflict victims. Other non-governmental organizations actually focus on this very issue. Certain organizations such as Human Rights Watch, Amnesty International and the International Commission of Jurists mainly advocate respect for human rights by denouncing violations, but are also increasingly introducing humanitarian law into their arguments to draw attention to human rights violations in armed conflict.
Conclusions
There are obvious tensions – and even frictions – between protection of war victims in the midst of fighting and judicial supervision, between consent and enforcement, between humanitarian action and denouncing violations, and between an impartial humanitarian approach and a political approach. Improving the situation of victims of armed conflicts means using an adequate combination of the various means, and building on their comparative advantages. This must happen first and foremost at the field level, while the global level should strive to support field initiatives.
International humanitarian law and its mechanisms remain international law's modest response during periods of armed conflict. Today, international enforcement of the law is still exceptional in the absence of a central enforcement system. Willingness and ability to comply with the rules largely lie in the hands of belligerents, and supervisory mechanisms are merely based on their consent and good faith. Humanitarian law is best suited to supervision on the spot and endeavours to provide protection and assistance directly to the victims of armed conflicts. The goal is to reach all persons affected by armed conflict, unlike the restricted judicial approach which only takes victims of a violation of the law into account.
However, international humanitarian law needs political pressure to have a chance of succeeding. If the victims' interests so demand, recourse should be had to the States parties to the Geneva Conventions by virtue of their obligation to ‘ensure respect for’ international humanitarian law under Article 1 common to the four Geneva Conventions. Humanitarian law does call upon states to take political measures, both individually and collectively through the United Nations, to induce belligerents to comply with its precepts. The Human Rights Council discusses situations of armed conflict and the Security Council in particular tries to enhance protection of the civilian population on the ground by mandating peacekeeping missions to carry out protection activities, or seeking to create a political environment conducive to facilitating humanitarian access. In exceptional circumstances, even military means may be the only remedy to stop endless killings. As ever in decisions by these essentially political organs, an impartial approach cannot always be guaranteed, and the ‘responsibility to protect’ in particular remains a deliberately vague concept.
Yet international humanitarian law would lose its raison d'être if politics were to take precedence over humanitarian considerations: the very essence of international humanitarian law is the divide it creates between ius in bello and ius ad bellum, so that victims are protected and assisted whatever the reasons for the conflict. In the face of widespread violations of the most basic rules by parties to conflict, and the inability or unwillingness of the international community to take bolder measures to stop the violations or even the conflict, humanitarian action not linked to any political agenda often remains the only remedy, at least for the situation of the conflict victims. The use of humanitarian action as a political tool and its integration into policy makes humanitarian operations captive to the political and military ambitions underlying the conflict, thereby undermining humanitarian access to victims.
