Post No.: 0744
Furrywisepuppy says:
International Humanitarian Law (IHL) is implemented and enforced primarily by States/countries themselves. Other mechanisms are also provided via IHL treaties or international organisations – chiefly the International Committee of the Red Cross (ICRC) at present. Other treaties or bodies that aren’t specific to IHL but also play a role in this area include the United Nations (UN). Non-governmental organisations (NGOs) play a part too – these might be involved in fact-finding missions, humanitarian activities or putting pressure on political leaders. You’ll find that some of these NGOs that focus mainly on human rights are often involved in investigating IHL matters too (e.g. Human Rights Watch, Amnesty International).
The International Committee of the Red Cross is part of a broader movement – the International Red Cross and Red Crescent Movement. This consists of the ICRC, the International Federation of the Red Cross and Red Crescent Societies (IFRC), and numerous National Red Cross and Red Crescent Societies. The fundamental principles that guide the movement in pursuing its mission are humanity, impartiality, neutrality, independence, voluntary service and unity. The primary purpose of Red Cross, Red Crescent and Red Crystal members is protection. (The ICRC’s website contains neat databases on IHL treaties and customary law too.)
The main task of the IFRC is to safeguard the protection of victims in situations of emergency outside of armed conflict zones (e.g. displaced refugees, natural disasters). It leads and coordinates disaster responses and development projects in local communities.
An example of a National Red Cross or Red Crescent Society is the British Red Cross. They are regulated by the laws of the State where they operate, and act as voluntary societies that help vulnerable people within their own borders in times of both war and peace (e.g. during armed conflicts, natural disasters, man-made disasters, epidemics, mass refugee displacements). They also cooperate with public authorities regarding the prevention of diseases and the development of good health (e.g. by setting up and managing hospitals, training medical personnel, organising blood donor clinics, assisting people with disabilities).
You may have seen the Red Cross or the other emblems many times before either firsthand or on the news – you should now hopefully understand that they originated from the Geneva Conventions and Additional Protocol III and aren’t intentionally religious symbols (the cross, crescent and crystal symbols are used in different countries to hopefully avoid any confusion with existing religious symbols), and when displayed means ‘don’t shoot us because we’re not fighting in this armed conflict and are only here to try to protect the sick and wounded’.
The ICRC is an impartial, neutral and independent organisation whose exclusively humanitarian mission is to alleviate suffering and to protect the lives and dignity of victims of armed conflict and other situations of violence, and to provide them with assistance. The ICRC also endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles.
The practical functions of the ICRC include reminding belligerents about their obligations under IHL before or at the outset of any hostilities, visiting detainees (prisoners of war (POWs) and other protected persons) in situations of armed conflicts to see if they’re being treated lawfully, re-establishing links between family members separated in conflict areas, helping displaced persons access drinkable water and food, establishing protected zones for imperilled civilians, acting as a mediator between belligerent parties, helping in the drafting and adoption of new IHL rules, producing commentaries on existing rules (e.g. studies on customary IHL), and more. Outside situations of full-blown armed conflict, such as situations of internal disturbances and tensions, the ICRC may still offer its services to governments on the basis of its right of initiative to act. The ICRC are by and large good dogs. Woof!
ICRC delegates must be permitted to visit all places where POWs may be held, and to visit not only the places where civilians are interned but also civilians in the national territory of a State or in territories under belligerent occupation. (The law of belligerent occupation was covered in Post No.: 0726.) The ICRC must be allowed to interview them and their representatives, as well as any other protected persons, without any other witnesses being present so that any statements gathered from them aren’t being coerced by such witnesses. Visits may be temporarily blocked in exceptional cases for reasons of imperative military necessity, but ICRC delegates otherwise have full liberty to select the places they wish to visit and the duration and frequency of these visits. The ICRC doesn’t need any (additional) consent from a State to carry out this particular task, although in practice it tends to ask anyway.
The ICRC also manages the Central Tracing Agency, which collects information that might help identify persons in particular need of protection, and reunite them with their families. It may arrange the exchange of family correspondence and help transfer and repatriate individuals too.
The organisation also responds to IHL violations. The preferred mode of action by the ICRC involves bilateral and confidential representations between belligerent parties. These condemnations and/or recommendations are confidential because the ICRC must be perceived to be operating in a strictly neutral manner – it cannot be seen to be taking sides or politicising matters otherwise this could obstruct its work and ability to access protected and suffering persons. (Indeed NGOs have frequently been prevented from doing their jobs after publicly denouncing serious human rights violations. In any armed conflict, every party to a conflict has things that they don’t really want going public.) These reasons also explain why international criminal jurisdictions (e.g. the ICC) have agreed not to disclose evidence from the ICRC or compel ICRC delegates to testify before them.
However, this confidentially can be relinquished if violations continue without a foreseeable chance they’ll cease despite bilateral and confidential representations. At first, the ICRC may share its concerns with third-party States, international organisations or anyone in a position to influence the action of the recalcitrant belligerent in confidence. The next step could be publicly expressing concerns about how dialogue with that belligerent isn’t going well without going into specific details. As a last resort, it could publicly denounce that a belligerent has breached IHL after weighing up the pros and cons of doing so.
Neutrality also means that the ICRC cannot make comments on which party they think was the original aggressor, the reasons for the conflict, or the like. But critics argue that this amounts to a culpably passive attitude regarding some of the most egregious breaches of law. The general policies of confidentiality and non-disclosure here arguably have a parallel with banking secrecy in neutral States (e.g. Switzerland, which is also the home of the ICRC, and the Red Cross emblem is basically an inversion of the Swiss flag too) – where lots of fraud and the hiding of criminal activities and proceeds of crime occurs.
Many diverse United Nations organs and agencies can be involved when it comes to armed conflicts too, such as the UN Security Council (UNSC), the World Food Programme (WFP), the UN Development Programme (UNDP), and the UN International Children’s Emergency Fund (UNICEF). The UN Secretary General itself may initiate fact-finding missions.
The UNSC can issue binding resolutions if it votes in favour of intervening in situations that amount to either an act of aggression, a breach of the peace or a threat to the peace, according to its general powers under Chapter VII of the UN Charter. Its primary function isn’t to sanction violations but to safeguard international peace and security – yet serious violations of international humanitarian or human rights law are common reasons for the UNSC to act, often militarily (e.g. via the deployment of UN peacekeeping forces). It is also empowered to adopt non-forcible measures (e.g. economic sanctions).
Note that State responsibility is distinguished from individual criminal responsibility, for which the latter applies to individuals who commit serious IHL violations that amount to war crimes. (Therefore understand too that not all violations of IHL are war crimes – only the more serious ones.) The former refers to the set of rules that govern situations when States violate IHL, as well as the consequences that stem from such breaches. In non-international armed conflicts or civil wars, the addressees of the obligation to follow IHL are only States and their armed forces, and not non-state armed groups; although we may infer from the customary nature of these laws that armed groups and their members must still, nevertheless, respect all relevant IHL rules.
The International Court of Justice (ICJ) is a civil court that hears disputes between States, whereas the International Criminal Court (ICC) is a criminal court that prosecutes individuals. Yet international law, in general, is only partially judicialised, meaning that – unlike in domestic contexts where almost any legal dispute may find its way to a judicial body – it’s relatively rare for international legal disputes to be settled by international courts. This is particularly true for IHL since there’s no international court with compulsory jurisdiction over violations of IHL.
There are two avenues whereby alleged violations of IHL can be heard before an international court – via the ICJ (which is the principal judicial organ of the UN) and via the creation of ad hoc judicial tribunals to prosecute and try individuals responsible for mass atrocities during armed conflicts (the UNSC itself created two so far in history, which have been the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994; although there have been many other tribunals such as the Nuremberg and Tokyo tribunals that dealt with the events of WWII). But a problem is that the ICJ’s jurisdiction – its legal ability to hear cases – depends on both parties to the case giving their consent. The creation of ad hoc tribunals generally needs the agreement of both States too. This is just a reminder that there is no ‘world government’ that can compel any sovereign State to do what it does not consent to do.
States are of course legally bound to respect the treaties they have chosen (i.e. consented) to ratify. States are also obliged to ensure respect for IHL is met by all persons under their authority, which means their own armed forces and civilian populations (e.g. by training their military forces to respect IHL and by encouraging their civilian populations to learn about it too). States must search for, prosecute or extradite alleged perpetrators of serious IHL violations irrespective of their rank or status.
The prevailing view is that States must also, as best as they can, ensure that other parties to armed conflicts who aren’t under their authority respect IHL too – this entails both negative obligations (to abstain from assisting other parties in violating IHL) and positive obligations (to do everything feasible in their power to ensure that these parties respect IHL, and to induce compliance in recalcitrant parties to bring any violations to an end). Since States must try their best to influence other States into adhering with IHL, it depends on factors like their capacity, political links and geographical distance to erring States.
States must respect and ensure respect for IHL in all circumstances – even during peacetime where applicable (e.g. the teaching of IHL), even if other belligerents in a given conflict aren’t parties to a particular treaty that one is, and even if another State appears to have violated its obligations.
Woof! I hope the posts in this IHL mini-series are helping States to ensure respect for this area of law by educating civilian populations about International Humanitarian Law. Maybe you’d like to say, via the Twitter comment button below, whether you think I’m doing an okay job?
Comment on this post by replying to this tweet:
