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IHL: IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW, Omissions A State…

- - - - STATES ARE RESPONSIBILE FOR INTERNATIONALLY WRONGFUL
        This rule is an application of the general rule of State responsibility for internationally wrongful acts, whereby a State is responsible for the behaviour of its organs.[2]
        
        ARMED FORCES ARE STATE ORGANS
        The armed forces are considered to be a State organ, like any other entity of the executive, legislative or judicial branch of government.
        The application of this general rule of attribution of responsibility to international humanitarian law is reflected in the four Geneva Conventions, which specify that State responsibility exists in addition to the requirement to prosecute individuals for grave breaches.[3]
        
        STATE RESPONSIBILITY EXISTS IN ADDITION TO INDIVIDUAL CRIMINAL RESPONSIBILITY
        The principle that State responsibility exists in addition to individual criminal responsibility is also reaffirmed in the Second Protocol to the Hague Convention for the Protection of Cultural Property.[4]
        
        GRAVE BREACHES OR WAR CRIMES ARE NOT YET CATEGORICALLY UNDERSTOOD TO BE COMMITTED ONLY BY THE ARMED FORCES
        A number of military manuals specify that a State is responsible for violations of international humanitarian law. Some of these manuals expressly refer to acts committed by members of the armed forces of a State, while others more generally deal with responsibility for grave breaches or war crimes, not specifying by whom such acts must be committed in order to be attributable to the State.[5]
        
        ACTS OF ALL STATE ORGANS ARE ATTRIBUTABLE TO THE STATE, WHETHER MILITARY OR CIVILIAN
        However, it is clear from the above-mentioned general principle of international law that the acts of all State organs are attributable to the State, be they military or civilian.
        
        There is also national case-law supporting this rule. In its judgment in the Eichmann case in 1961, Israel’s District Court of Jerusalem attributed the wrongful acts committed by the accused to Germany as its own “acts of State”.[6]
        
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  - - - The requirement of individual criminal responsibility is recognized as a fundamental rule of criminal procedure in Additional Protocols I and II.[3]
        
        The requirement of individual criminal responsibility is explicitly provided for in several military manuals.[4]
        
        It is a basic rule of most, if not all, national legal systems.[5]
        
        The requirement of individual criminal responsibility is included in the American Convention on Human Rights (as a non-derogable right), the African Charter on Human and Peoples’ Rights and the Cairo Declaration on Human Rights in Islam.[6]
        
        The European Convention on Human Rights does not spell out this rule, but the European Court of Human Rights has stated that “it is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act”.[7]
        
        Interpretation
        It is a basic principle of criminal law that individual criminal responsibility for a crime includes attempting to commit such crime, as well as assisting in, facilitating, aiding or abetting, the commission of a crime. It also includes planning or instigating the commission of a crime. This is confirmed, for example, in the Statute of the International Criminal Court.[8]
        
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- - - - GENEVA CONVENTIONS AND PROTOCOLS PROVIDE THE OBLIGATION
        This obligation is integrated in Common Article 47/48/127/144 in the Geneva Conventions of 1949 and reiterated in Article 83 of Protocol I and Article 7 of Protocol III.
        
        AUDIENCES ARE MILITARY, RED CROSS/CRESCENT, ACADEMICS, ETC.
        The main audiences for dissemination are the military, the Red Cross and Red Crescent National Societies, governmental services (in particular within the ministries of Defense, Foreign Affairs, Justice and Health), academic circles, elementary and secondary schools, medical professions, the media, and the public in general .
      - STATES ARE LEGALLY OBLIGED TO TRAIN TROOPS ON THE GC
        Moreover, States have the obligation to train their troops on the provisions of the Conventions.
        
        STATES ARE LEGALLY OBLIGED TO GIVE ORDERS/INSTRUCTIONS TO RESPECT IHL & SUPERVISE PROPER EXECUTION
        States also have the legal obligation to give orders and instructions for the respect of IHL, and supervise the proper execution of such instructions, which naturally also relates to military training and exercises (See Art. 1 of 1907 Hague Convention IV and Art. 80(2) of Protocol I).
        
        STATES HAVE AN OBLIGATION TO INCLUDE LEGAL ADVISORS IN THEIR ARMED FORCES
        Finally, States also have an obligation to include legal advisors in their armed forces.
        
        "ENSURE AND RESPECT UNDER ART. 82 OF AP I
        This derived from the obligation to “ensure respect” of the Conventions of 1949, and since 1977, this is covered specifically by Article 82 of Additional Protocol I.
        
        RATIO: MAXIMIZE IMPACT OF DISSEMINATION + PROVIDE IMMEDIATE ADVICE TO COMMANDERS IN FIELD
        The purpose is to maximize the impact of the dissemination and training activities on IHL, but also to provide immediate advice on how to apply IHL in the concrete conduct of hostilities to commanders in the field, upon whom the enforcement of the Conventions rests in the first place, and taking into account the vast amount of legal obligations contained in the Conventions.
  - - - THUS, ADVISORY SERVICE WAS SET UP TO ASSIST STATES IN IMPLEMENTATION
        With this objective in mind, in 1996, the ICRC set up the Advisory Service in order to assist States in their implementing efforts.
        
        ROLE OF ADVISORY SERVICE
        This Advisory Service
        cooperates with the governments and,
        taking into account their specific needs and their respective political and legal systems,
        offers them legal and technical assistance in the field of IHL incorporation in States’ internal laws .
      - UNLESS STATE CONSIDERS INTERNATIONAL TREATIES AS AUTOMATICALLY DOMESTIC LAW
        unless of course their domestic legal regime considers that the international treaties concluded by the State automatically form part of their domestic legal order (e.g. the case of Switzerland).
  - - - BINDING ON NON-STATE ACTORS
        This obligation is also binding upon non-State actors. The new Commentary to common Article 1 published in 2016 details in depth the obligations of common Article 1.
        
        OTHER TREATIES ASIDE FROM THE GCs IMPLEMENT IHL OUTSIDE OF
        ARMED CONFLICTS
        It is also important to bear in mind that international humanitarian law includes many other treaties in addition to Geneva Conventions and their Additional Protocols, and some of these instruments contain important mechanisms for their implementation outside the context of armed conflicts.
        
        OTTAWA CONVENTION (1997) - BAN ON ANTI-PERSONNEL LANDMINES AND MONITORING OF STATES
        For example, the 1997 Ottawa Convention imposes a total ban on antipersonnel landmines and creates a comprehensive mechanism in order to monitor that State Parties comply with their obligations pursuant to the Convention.
      - ARTICLE 1(1) OF AP I REINFORCES THIS; PART OF RULE 139
        This obligation was reinforced by Article 1(1) of Additional Protocol I of 1977, and is also considered to a certain extent to be part of customary international law (see Rule 139 of ICRC Customary IHL Study).
- - - - HCP & COMMANDERS IN FIELD ARE OBLIGED TO MONITOR THE CARRYING OUT OF THEIR ORDERS
        High Contracting Parties and commanders in the field also have a positive obligation to monitor that their orders are carried-out in conformity with International Humanitarian Law.
        
        PARTIES TO THE CONFLICT ARE OBLIGED TO INQUIRE ANY VIOLATIONS OF GC UPON REQUEST OF ANOTHER PARTY TO THE CONFLICT
        In addition to this constant and regular mechanism, Parties to the conflict are under an obligation to inquire into any violations of the Geneva Conventions upon the request of another party to the conflict (see Common Article 52/53/132/149 GC1949).
        
        ALL HCPS ARE OBLIGED TO SEARCH FOR PERSONS WHO COMMITTED GRAVE BREACHES TO GCs WHETHER
        AC HAS ENDED
        In addition, all High Contracting Parties – not just the parties to a conflict – must search for the persons who committed grave breaches to the Geneva Conventions (See Common Article 49/50/129/146 GC1949), whether or not a specific armed conflict has ended.
      - GENERAL INSTRUCTIONS TO RESPECT IHL ARE INSUFFICIENT
  - - - DEFINITION OF PROTECTING POWER
        In essence, a protecting power is a neutral or other State not Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and who has agreed to carry out the functions assigned to a Protecting Power under the Conventions and Additional Protocol I.
        (See Art. 2 Protocol I)
        
        RIGHTS OF PROTECTING POWER
        Protecting powers are granted various rights by the Conventions, in particular the right to have access to and inspect all places of detention where prisoners of war
        (see Art. 126 Convention III) and civilians
        (see Art. 143 of Convention IV) are detained, and have with these detainees interviews without witnesses.
        
        PPs CAN EXTEND GOOD OFFICES TO PARTIES IN CASE OF DISAGREEMENT ON APPLICATION OF CONVENTIONS
        Protecting powers can also extend their good offices to the parties to the conflict in case of a disagreement on the application of the Conventions.
        
        PPs ARE DESIGNED TO RECEIVE INFORMATION THAT PTTC ARE OBLIGED TO COLLECT + TRANSMIT TO OTHER PARTIES
        Protecting powers are also designed to be the recipients of a variety of information that the parties to the conflict have the obligation to collect and transmit to the other parties, such as the names and details of the detainees, the location of the detention places, etc.
        
        PPs MAY ALSO, IN CERTAIN CIRCUMSTANCES:
        
        APPOINT LEGAL COUNSEL TO DETAINEES
        (Art. 105 of GC Convention III and 72 of Convention IV)
        
        PRESENT AT TRIAL
        (Art. 105 and 72 of Convention IV)
        
        MAKE FINANCIAL ALLOWANCES TO DETAINEES
        (Art. 39 of Convention IV)
        
        It is also interesting to note in particular that protecting powers may also, in certain circumstances, appoint a legal counsel to detainees under trial (see Art. 105 Convention III and 72 Convention IV), have the right to be present at the trial (see Art. 105 Convention III and 72 Convention IV), and to make financial allowances to the detainees (see Art. 39 Convention IV).
      - NO PROTECTING POWERS IN NIACs
        The notion of “protecting powers” only pertains to international armed conflicts, and has no equivalent in non-international armed conflicts.
      - PP SYSTEM POWERS ONLY OPERATED ON 5 OCCASIONS
        Since its insertion into the legal corpus, this system only operated on five occasions, the last one being the Malvinas – Falkland conflict when Argentina and the United Kingdom appointed Brazil and Switzerland, respectively, as Protecting Powers.
        
        IN SUBSITUTE OF A PP, DP SHALL ASK A HUMANITARIAN ORG TO UNDERTAKE HUMANITARIAN FUNCTIONS ENTRUSTED TO PP
        Anticipating the failure of the system, the Geneva Conventions of 1949 established a substitute for Protecting Powers. This was meant to offer all guarantees of impartiality and efficacy and the substitute would be either a neutral State or an organization appointed by the Detaining Power.
        In the absence of a substitute, the Detaining Power
        shall ask a humanitarian organization, such as the International Committee of the Red Cross, to undertake the humanitarian functions entrusted to the Protecting Powers under the Convention
        OR
        shall accept offers of services from such an organization.
        
        ONLY ESSENTIAL FUNCTIONS OF PP ARE ENTRUSTED, NOT ALL
        This role of quasi -substitute does not entail the performance of all functions entrusted to Protecting Powers, but only the humanitarian tasks (that is to say the essential functions).
- - - - HCPs ARE LEGALLY OBLIGED TO
        
        SEARCH POSSIBLE AUTHORS OF GRAVE BREACHES
        +
        
        PROSECUTE THEM
        OR
        
        EXTRADITE THEM, TO BE PROSECUTED BY ANOTHER HCP
        Conventions list a series of behaviors (murder, torture, ill-treatment, destruction, etc.) for which all High Contracting Parties are under a positive obligation to search possible authors of such grave breaches and either prosecute them in their own domestic courts or extradite them to be prosecuted by another High Contracting Party (See Common Article 50/51/130/147 GC1949).
      - DOMESTIC COURTS WERE OBLIGED TO PROSECUTE/EXTRADITE AUTHORS OF GRAVE BREACHES
        The grave breaches system thus had an immense advantage over the previous attempts to hold war criminals accountable for their acts: the trials did not depend on the setting-up of an international tribunal.
        The domestic courts of all High Contracting Parties not only could, but were also obliged to either prosecute or extradite for prosecution (aut dedere aut judicare) war criminals.
        
        WHO HAS INDIVIDUAL CRIMINAL RESPONSIBILITY
        The grave breaches system established by the Geneva Conventions was however only used for the first time in 1994, that is almost 50 years after its adoption. We will not go back here to the history of the emergence of international criminal justice as we know it today.
        It will simply be noted that it is now recognized that individual criminal responsibility relates to the following persons:
        
        DIRECT AUTHORS
        those who directly commit war crimes (by action or omission);
        
        ACCOMPLICES
        their accomplices (including aiding and abetting and other forms of participation); and
        
        COMMANDERS & SUPERIORS
        commanders and superiors.
        
        (The postulate that direct authors and participants in war crimes will be held criminally responsible is not conceptually difficult to understand.)
        
        RATIO:
        COMMANDERS APPLY IHL
        FIRST AND FOREMOST
        Similarly, command – and superior – criminal responsibility results from the fact that the Geneva Conventions are designed to be applied first and foremost by the commander in the field.
        
        ICL REGULATES EXCUSES/DEFENSES. SUCH AS SUPERIOR ORDERS
        International criminal law also regulates very strictly the excuses (or defenses) which may be put forward by the accused in order to exclude their individual criminal responsibility.
        For example, the defence of superior orders will only be admissible when the accused was under a legal obligation to follow the order, there was a subordination relationship with the person who gave the order, the person did not know that the order was not lawful, and the order was not manifestly unlawful (see for example Art. 33 ICC Statute).
        
        COMBATANTS ARE OBLIGED TO DISOBEY MANIFESTLY UNLAWFUL ORDERS
        By the same token, combatants are under a strict legal obligation to disobey manifestly unlawful orders (see Rule 154 of ICRC Customary IHL Study).
        The order to commit crimes against humanity or crimes of genocide is always considered to be manifestly unlawful.
        
        MANY NATIONAL COURTS HAVE JURISDICTION OVER LEGAL (JURIDICAL) PERSONS FOR WAR CRIMES
        Finally, it is worth mentioning that although the ICC has jurisdiction only over individuals, many national courts have jurisdiction over legal persons, including companies and private companies, for war crimes, crimes against humanity and genocide (see in this respect the report of the expert committee of the International Commission of Jurists: Corporate complicity & Legal accountability, 2008, 3 volumes, available at: http://www.icj.org/report-of-the-international- commission-of-jurists-expert-legal-panel-on-corporate-complicity-in-international-crimes/.
        
        ICC HAS NO JURISDICTION OVER COMPANIES
        Under the Current Status of the Law, the ICC only has jurisdiction over individuals, but NOT over juridical persons.
  - - - ???
        In some occasions, regional jurisdictional International Human Rights bodies have pronounced themselves on violations of International Humanitarian Law.
        So far, the European Court on Human Rights has always refused to directly apply IHL in its cases, on the basis of the attributive jurisdiction of the limited to the European Convention on Human Rights.
        
        ICJ IS IMPORTANT IN IMPLEMENTING IHL
        Finally, the International Court of Justice (ICJ) is also one of the important jurisdictional mechanisms for the implementation of international humanitarian law.
        
        NICARAGUA - STATE'S RESPONSIBILITY FOR AGENTS' VIOLATION OF IHL
        It has shaped the implementation of IHL, in particular by ruling on the responsibility of States for violations of IHL committed by their agents see in particular the 1986 Nicaragua Case, 3 the 2005 Uganda Case, 4 and the 2007 Serbia and Montenegro Case5).
        
        ADVISORY OPINIONS ON NUCLEAR WEAPONS + ON THE WALL
        The ICJ also issued important decisions regarding IHL in advisory opinions (see in particular the 1996 Advisory Opinion on Nuclear Weapons6 and the 2004 Advisory Opinion on the Wall7 ).
        More information on the ICJ and its cases can be found at www.icj-cij.org
        
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        TABLADA CASE (1997) + ARTURO RUBON AVILA CASE (1997) - INTERAMERICAL COMMISSION ON IHL
        For its part, the Interamerican Commission on Human Rights applied or discussed International Humanitarian Law in certain important cases, in particular in the 1997 Tablada Case, 1 and in the 1997 Arturo Ribon Avila Case.
  - - - IHFFC IS EITHER A NON-JURISDICTIONAL OR QUASI-JUDICIAL ORGAN
        The International Humanitarian Fact Finding Commission (IHFFC) could be categorized as either a non-jurisdictional or a quasi- jurisdictional organ, since there is a controversy as to whether the IHFFC can reach legal as well as factual findings.8
        
        IHFFC IS COMPETENT TO INQUIRE INTO FACTS ALLEGED TO BE GRAVE BREACHES OR SERIOUS VIOLATIONS
        As described in Article 90 of Additional Protocol I, the IHFFC is composed of eminent persons and is competent to inquire into facts alleged to be grave breaches or serious violations of the Conventions or Additional Protocol I (Art. 90(2)(c)(i)) and to extend its good offices to the parties to the conflict in order to restore the compliance with IHL (Art. 90(2)(c)(ii)).
        
        COMPETENCE OF IHFFC IS CONDITIONED ON HPC'S DECLARATION
        The exercise of this competence is conditioned by the submission of a declaration made by a High Contracting Party based on Article 90(2)(a) of Additional Protocol I. Such a declaration has been made by 76 States to date.
        
        REQUIREMENTS OF IHFFC'S
        POWER TO INQUIRE
        In addition, the IHFFC is competent to inquire into other violations of the Conventions or Additional Protocol I if the concerned party to the conflict has
        
        DECLARED COMPETENCE
        made the declaration pursuant to Article 90(2)(a) and
        
        AGREED TO INQUIRY
        agrees to the inquiry (Art. 90(2)(d) API).
        
        IHFFC MAY ALSO INQUIRE ON NIACs
        The IHFFC is competent to inquire into international armed conflicts and arguably also into non-international armed conflicts covered by Common Article 3 of the Geneva Conventions of 1949.
        
        IHFFC HAS NEVER INQUIRED (2021)
        Unfortunately, the IHFFC did not conduct any inquiry to date.
        More information on the IHFFC may be found on the following website: http://www.ihffc.org/.
      - UN BODIES - REPORTS AND RESOLUTIONS CALLING FOR IMPLEMENTATION
        United Nations bodies have also played an important role in the implementation of International Humanitarian Law.
        Not only have UN Special Rapporteurs often issued reports on concrete situations of IHL violations, but the UN General Assembly and the UN Security Council have issued numerous resolutions calling for the implementation of International Humanitarian Law in concrete cases.
        
        IMPLEMENTATION OF IHL SUFFERS MANY WEAKNESSES
        IHL has very few mechanisms for monitoring compliance with it and suffers from many weaknesses in the implementation of its provisions, and above all, no effective mechanism of its own.
        
        HISTORY
        This is why the ICRC and the Swiss government launched in 2011 a series of negotiations and discussions in order to set up more effective mechanisms for monitoring and respecting IHL.
        This initiative was based on a resolution adopted the same year by the 31st International Conference of the Red Cross and Red Crescent.
        
        RESOLUTION ON MEETING OF STATES WHOSE OBJECTIVE WAS TO RAISE AWARENESS
        After four years of consultations and discussions with States, a draft resolution was submitted to the International Conference in December 2015.
        It suggested setting up a meeting of States whose objective was to raise awareness of IHL, exchange on concrete experiences of IHL implementation, publicize best practices, etc.
        
        STATES FAILED TO REACH AGREEMENT AND PROJECT WAS NOT ADOPTED
        Despite its non-binding character, States failed to reach an agreement and this project was therefore not adopted. This failure thus underscores the reluctance of States to provide IHL with a mechanism which is specifically dedicated to it.