implementation of international
humanitarian law
Anne-Marie La Rosa and Carolin Wuerzner*
Dr Anne-Marie La Rosa is Legal Adviser at the Advisory Service, Legal Division, ICRC.
She also teaches international criminal law. Carolin Wuerzner holds a LL.M. of the Geneva Academy of International Humanitarian Law and Human Rights and is editorial assistant at theInternational Review of the Red Cross.
Abstract
While it is widely accepted that punishing the perpetrators of violations of international humanitarian law is an important instrument in improving compliance with the law, little research has been done into the obligations on armed groups to impose sanctions and their possibilities for doing so. This article discusses characteristics of armed groups that influence their willingness and ability to comply with international humanitarian law and to punish those of their members who commit violations. It takes a holistic approach to these sanctions, and analyses the different methods of punishing members of armed groups, including disciplinary sanctions, penal sanctions imposed by the state and penal sanctions imposed by the group itself.
Introduction
Each party to a conflict is required to comply with the provisions of international humanitarian law and to ensure that the members of its armed forces and other
* The content of this article reflects the views of the authors and not necessarily those of the organisations to which they are or were associated.
persons or groups acting under its instructions and orders or under its control also comply.1 In this respect international humanitarian law makes no distinction between the obligations of states and those of the armed groups concerned.
Moreover, Article 3 common to the Geneva Conventions, which reflects the minimum rules applicable to all armed conflicts, stipulates specifically that the parties to the conflict, without distinction, must comply with certain rules set forth in that Article.2
In order to reflect on how sanctions can affect the behaviour of armed groups, we must examine the extent to which the underlying principles of international humanitarian law – which are rooted in international armed conflicts – are suited to them. Those principles call for appropriate action whenever the law is violated, including administrative, disciplinary or punitive measures, in order to put an end to the violation and prevent its repetition. In the case of several of these measures, the initiative and responsibility lie with the armed bodies themselves. Others fall within the purview of entities that are authorized and competent to take such action, such as judicial bodies, although it must be borne in mind that they may be powerless when faced with armed groups which claim control of their own affairs, hence the need to explore to what extent these armed groups are in a position to meet the relevant obligations imposed by international humanitarian law, including the measures to be taken in the event of violations.
In order to apprehend this issue fully we must first identify in the constellation of armed groups those that have the characteristics that are necessary if the implementation and sanctions of international humanitarian law are to have the desired effect of preventing violations from being committed or repeated. We shall confine ourselves to examining the situation of armed groups in the conventional sense of the term and shall not include those that have been described as transnational groups, even though some of the considerations set forth below could apply to them.3Once these groups have been identified, we shall discuss how they could spread knowledge of international humanitarian law and
1 Article 1 common to the four Geneva Conventions of 1949. See alsoMilitary and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986I] ICJ Rep., para. 220; Rule 139 of the ICRC Customary Law Study confirms the applicability of this provision for international and non-international armed conflicts – see Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, ICRC and Cambridge University Press, Geneva and Cambridge, 2005, Vol. I, pp. 495–8.
2 See for exampleMilitary and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep., para. 218. It states that ‘‘Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘‘elementary considerations of humanity’’ (Corfu Channel, Merits, ICJ Reports 1949, p. 22, paragraph 215 above).’’
3 See in particular, on the issue of transnational groups, Marco Sasso`li, ‘‘Transnational armed groups and international humanitarian law’’,Program on Humanitarian Policy and Conflict Research, Occasional Paper Series, Winter 2006, No. 6, Harvard University, available at www.hpcr.org/pdfs/
OccasionalPaper6.pdf (last visited 14 July 2008).
train their members in this subject. We shall then turn to the sanctions which could be applied in the event of non-compliance by focusing our attention on the question of criminal punishment.
The essential characteristics of armed groups in relation to implementing international humanitarian law
There are various constraints involved in identifying armed groups that can be influenced by the discourse of compliance with the law. For instance, for international humanitarian law to be applicable, the armed groups must at the very least be operating in a context of non-international armed conflict – that is, in a situation of violence between a state and an armed group or between armed groups. To qualify as an armed group a minimum degree of organization – that is, a certain level of organizational coherence and hierarchy, such as a command structure and the capacity to sustain military operations – is necessary. This element will be discussed below.4
The level of organization
An armed group must have a minimum degree of organization to be able to comply with all the rules of international humanitarian law applicable to non-international armed conflicts.
This level of organization is particularly relevant to our purposes, for a group that does not attain it may well be unable to familiarize its members with international humanitarian law and establish mechanisms to ensure compliance.
This situation can result in an increase in violence that is difficult to control and leads to a spiral of anarchy and bloodshed – precisely what humanitarian law aims to avoid by seeking a balance between the principle of humanity and the considerations of military necessity.
In practical terms, internal organization presupposes that there is a command structure. Only when such a structure exists can the leaders train the members of the group, give clear orders and instructions, be informed of the actions of subordinates and react promptly to them. A chain of command and a reporting system are thus necessary if the leadership is to be informed about violations, trace the role played by individuals in committing a crime and take appropriate measures. The reporting procedures require reliability and predict-ability and can only exist in structures with a certain level of internal organization.5
4 See Dietrich Schindler, ‘‘The different types of armed conflicts according to the Geneva Conventions and Protocols’’,Recueil des Cours de l’Acade´mie de droit international de Lie`ge, Vol. 163 II, 1979, p. 147.
For a detailed analysis of these criteria, see International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Fatmir Limaj, Case no. IT-03-66-T, Judgement, 30 November 2005, para. 94–134.
5 On the different organizational structures of armed groups see Pablo Policzer, ‘‘Human rights and armed groups: toward a new policy architecture’’,Armed Groups Project, Working Paper No. 1, July 2002, available at www.armedgroups.org/sites/armedgroups.org/files/_1_Policzer.pdf (last visited 14 July 2008).
Furthermore, there must be a body or an authority, such as a command superior, with responsibility for imposing rules and punishing violations. Under any system of self-regulation, offences committed by members of armed groups would be liable to go unpunished. Besides, it is this minimum degree of organization within the hierarchy of an armed group which makes it possible to hold superiors responsible for their omissions, owing to their effective control over their subordinates and their ability to command respect, to put an end to violations and to punish them. Seen from this angle, one understands how important it is for commanders and other superiors to take timely action to ensure that their subordinates are aware of their obligations with regard to international humanitarian law and to take the most appropriate measures in the event of violations.
It is not to be believed, however, that mere organization could be enough for an armed group, in actual practice, to be fully in a position to implement the law and to sanction violations and, above all, to be motivated to do so. From a purely practical point of view, other factors – not affecting the legal nature of a conflict – such as a group’s level of control over the territory and its willingness to comply with the law may also play a role.
The level of territorial control
A certain level of territorial control is a condition for the implementation of Protocol II additional to the Geneva Conventions.6Such control by armed groups is advantageous when it comes to imposing penal sanctions, since it can enable the group to set up institutions which are similar to those which states are obliged to establish, and which are often necessary for ensuring compliance with the law.
When armed groups have a high level of control over part of a territory, the state has little or no control in that region and probably cannot ensure that the law is implemented and observed or carry out law enforcement duties. In the event of violations it may therefore be extremely difficult for the state to impose sanctions on members of armed groups. On the other hand, it may be possible for armed groups to take the necessary measures to ensure that the law is known and complied with and to react in the event of contraventions with measures such as criminal sanctions, since these groups have a long-standing and more stable presence and can thus take over state-like functions. When armed groups have such a high level of territorial control, they usually also have the necessary financial and military means to maintain control over long periods. This makes their actions sustainable, which is a prerequisite for prosecuting and punishing serious violations of international humanitarian law while honouring all essential judicial guarantees to the full (see below).
6 Article 1(1) of Protocol II (1977) additional to the Geneva Conventions of 1949 stipulates that it applies to ‘‘organized armed groups which, under responsible command, exercise such control over a part of [a]
territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’’.
In today’s conflicts, however, it may be very difficult to look at the hostilities in terms of control over territory. They tend to be characterized by
‘‘isolated acts, often countered by covert operations coupled with repressive measures, [which] replace continual hostilities. The scene of actions shifts constantly, for an attack can take place at any time and in any country. There is no geographically circumscribed battlefield’’.7
The willingness of armed groups to respect international humanitarian law The willingness of an armed group to abide by the law and to show that it can appropriately address situations of non-compliance is often linked with the aim it pursues.8For example, an armed group whose aim constitutes per se a flagrant violation of international humanitarian law, such as a group that pursues a policy of ethnic cleansing, is unlikely to be much concerned about sanctions. The same can be said of groups that inculcate a culture of demonization and dehumaniza-tion of the enemy as a basis for training their members.9 On the other hand, groups that would welcome recognition and support from the international community clearly have a stake in preventing violations. They also have an incentive to show that they can and do mete out appropriate sanctions in the event that violations nevertheless do occur.
Unilateral declarations and special agreements
Allowing armed groups that are party to non-international armed conflict the opportunity to make a unilateral declaration stating their commitment to comply with international humanitarian law can be a useful tool for ensuring compliance in actual practice.10 It should be borne in mind, however, that such statements could be issued for purely political purposes.
The ICRC and the Depositary of the Geneva Conventions and their Protocols have on many occasions received declarations of this kind from armed groups.11
7 Toni Pfanner, ‘‘Asymmetrical warfare from the perspective of humanitarian law and humanitarian action’’,International Review of the Red Cross, Vol. 87, No. 857, March 2005, p. 155.
8 Note that the aim of the groups is irrelevant to definitions of such groups or of armed conflict under international humanitarian law. An exception to this are the armed groups fighting for national liberation, as provided for in Article 1(4) of Protocol II (1977) additional to the Geneva Conventions of 1949.
9 On demonization and dehumanization see in the English literature Lt. Col. Dave Grossman,On Killing:
The Psychological Cost of Learning to Kill in War and Society, Little, Brown, New York, 1995. See in the French literature Harald Welzer,Les exe´cuteurs. Des hommes normaux aux meurtriers de masse, trans.
Bernard Lortholary, Gallimard, Paris, 2007. See also the article by Emanuele Castano, Bernhard Leidner and Patrycja Slawuta, ‘‘Social identification processes, group dynamics and the behaviour of combatants’’, in this issue.
10 This possibility is mentioned expressly in Article 96(3) of Protocol I (1977) additional to the Geneva Conventions of 1949 for groups that fall within the scope of application set out in Article 1(4) of the Protocol.
11 They can be delivered in writing or orally. Although oral commitments do not have the same formal weight as written ones, they are useful for follow-up action and dissemination.
Many were published by the ICRC, some in this journal, without discussion of their validity or content.12 These declarations provide the answer to a paradox of humanitarian law. For although armed groups, as we know, cannot be party to treaties of humanitarian law, it is nevertheless their responsibility to respect and to ensure respect for that body of law in all circumstances, even if in practice they are reluctant to be bound by the international obligations of the party they are fighting or by any laws which that party may have adopted. Although most of the declarations are limited to general statements of respect for international humanitarian law and do not include any concrete provisions regarding implementation mechanisms such as sanctions, they are a way for these groups to demonstrate and confirm that they are prepared to be bound by international humanitarian law and to ensure that it is implemented. This was in fact noted at the 27th International Conference of the Red Cross and Red Crescent convened in 1999,13and it was on this basis that the Geneva Call organization invited armed groups to sign a declaration of adherence to the rules enshrined in the Ottawa Convention on anti-personnel mines. To date, thirty-five armed groups have reportedly agreed to ban anti-personnel mines through this mechanism, and the results in the field have been conclusive.14These declarations send out a clear message from the hierarchy confirming its responsibility in the implementation of humanitarian law and can be an appreciable entry point for opening a dialogue with those groups on any particular aspect of implementing the law. Ideally, the declarations should include a pledge not only to comply with international humanitarian law, but also to include it in the internal disciplinary code of the group and to enforce compliance.
In addition to such declarations, there are special agreements (provided for in Article 3 common to the Geneva Conventions) between the parties to the conflict. These can provide an incentive to comply with international humanitarian law on the basis of the mutual consent of the parties. An example is the agreement between the various parties to the conflict in Bosnia and Herzegovina. It even included specific commitments as to its implementation and a commitment to undertake enquiries into allegations of violations of international humanitarian law and to take the steps needed to put an end to them and punish those responsible. The examples of such agreements are, however, rare,15either because the states are concerned about indirectly granting armed groups legitimacy, or because the parties do not want to commit themselves
12 Examples are the unilateral declarations by the Palestine Liberation Organization (International Review of the Red Cross, No. 274, January–February 1990, pp. 64–5), the National Union for the Total Independence of Angola (UNITA) (International Review of the Red Cross, No. 219, November–
December 1980, p. 320) and the African National Congress of South Africa (International Review of the Red Cross, No. 220, January–February 1981, p. 20).
13 See 27th International Conference of the Red Cross and Red Crescent,Plan of Action for the Years 2000–
2003, Final goal 1.1(3), available at www.icrc.org/Web/Eng/siteeng0.nsf/html/57JQ8K (last visited 14 July 2008).
14 The declaration can be consulted at www.genevacall.org/about/testi-mission/gc-04oct01-deed.htm (last visited 14 July 2008).
15 Attempts to conclude final agreements have failed for example in Colombia, Tajikistan and Jammu/
Kashmir.
to more than the minimum for fear of their own members being prosecuted, or because the intention of one or both parties to respect international humanitarian law is not sincere.
The dissemination of international humanitarian law and training for members of armed groups
If the state or states on whose territory armed groups are operating fulfil their obligation to spread knowledge of international humanitarian law among the civilian population – in particular by making the instruments available in the national language or languages – it can be presumed that, as a result, the armed groups too will be informed, at least in general terms. This does not absolve those groups from all responsibility, however. On the contrary, they themselves must, as part of their responsibility to ensure respect, see to it that all their members, in both their political and their military branches, are familiar with the rules of humanitarian law and understand them. Those rules can only be appropriated if certain measures which the leadership is largely responsible for carrying out are in fact taken.
First, appropriate training must be provided and should be tailored to suit the level in the hierarchy and the degree of responsibility of the target groups. It should address both the practicalities of compliance and the mechanisms to be implemented in the event of violation. People who bear weapons must internalize not only the message about obeying the rules but also the message about sanctions
First, appropriate training must be provided and should be tailored to suit the level in the hierarchy and the degree of responsibility of the target groups. It should address both the practicalities of compliance and the mechanisms to be implemented in the event of violation. People who bear weapons must internalize not only the message about obeying the rules but also the message about sanctions