International Humanitarian Law Cases, Materials and Commentary

INTRODUCTION

Enforcement of IHL is achieved through various legal and non-legal mechanisms. They include the institution of Protecting Powers, Fact-Finding Commissions, belligerent reprisals, national and international judicial (civil or criminal) processes, and action by human rights bodies or by the UN. A central feature of IHL enforcement is that it is State oriented. States have an obligation to respect and ensure respect for IHL and this obligation entails action prior, during or after the end of an armed conflict with the aim of preventing, suppressing and repressing violations. More specifically, States should enact legislation, disseminate the GCs, provide training and education, monitor compliance, and investigate, prosecute or extradite those responsible for violations of IHL. A State may be held responsible for violations of IHL pursuant to Article 3 Hague Convention IV and Article 91 API or according to the law of State responsibility if the attribution tests are satisfied but it should be noted that State responsibility is not criminal responsibility. Individuals may be held criminally responsible for violations of IHL at the national or at the international level before specifically established tribunals or before the International Criminal Court. Proceedings before international criminal courts and tribunals are often complementary to national proceedings. Judicial enforcement at the national level is hampered by the fact that States or foreign officials enjoy immunity but immunities do not apply before international courts. Although the ICRC is guarantor of the GCs, it is not an enforcer. This notwithstanding, its role in the implementation and enforcement of IHL is critical.

This chapter will thus present and assess the scope and effectiveness of the available enforcement mechanisms and remedies in relation to States, individuals, armed groups and international organisations.

Resources: Article 3 HCIV; Arts II, V, VIII Convention on the Privileges and Immunities of the United Nations; Common Article 1 GCs; Arts 8, 49–54 GCI; Arts 8, 50–53 GCII; Arts 8, 129–132 GCIII; Arts 9, 146–149 GCIV; Arts 5, 51, 52, 83–91 API; Art. 19 APII; Arts 8, 13 ICC St.