IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW IN PEACE TIMES:CHALLENGES AND PROCEDURES.
Being a Seminar Paper
Presented to the 2012/2013 LL.M Class,
Faculty of Law,
Obafemi Awolowo University,
Ile-Ife.
By
AJIBADE, Oladapo Oladele
To:
Dr.O.S.Oyelade
LECTURER IN CHARGE
Department of International Law
Faculty of Law
Obafemi Awolowo University
Ile-Ife.
March, 2014.
ABSTRACT
‘the main cause of suffering during armed conflicts and of violations of IHL remainsthe failure to implement existing norms – whether owing to an absence of political willor for another reason –rather than a lack of rules or their inadequacy’. 1 In the heat ofbattle, when the wagers of war and their victims are prey to mistrust and hostility,compliance with the rules does not come easily.
The implementation and enforcement of international law in general and IHL inparticular is problematic. The international legal system is based on the notion of thesovereign equality of States, and, generally speaking, no State may interfere in theinternal affairs of another sovereign State. This means that enforcement ofinternational law is decentralised – there is no central authority for enforcement, in thesame way that domestic legal systems have police forces, courts, and governments. Thisis especially complex in regard to IHL. With a few exceptions, implementation andenforcement of IHL is often voluntary, and there are no compulsory means for thesettlement of disputes or for ensuring enforcement of IHL. While duties are imposedunder IHL, there are few sanctions that can be imposed on a State that fails to abide bythose duties.2
Despite the seemingly bleak prospects for adherence to the principles of IHL, States doattempt to fulfil their obligations under IHL. This is done by means of measuresundertaken both in times of peace and war
1 International humanitarian law and the challenges of contemporary armed conflicts, Documentpreparedby the International Committee of the Red Cross for the 30th International Conference of the RedCrossand Red Crescent, Geneva, Switzerland, 26–30 November 2007, International Review of the RedCross,Vol. 89, No. 867, September 2007, p. 721.
2 http://www.legalanswers.sl.nsw.gov.au/guides/hot_topics/intnl_humanitarian_law/enforcement_ihl.html. Accessed on 25/01/14
This paper considers how ihl is implemented during peace times and further x-ray thechallenges and procedures of its implementations.
INTRODUCTION
International humanitarian law (IHL), or the law of armed
conflict, is the law that regulates the conduct of armed
conflicts (jus in bello). It is that branch of international law
which seeks to limit the effects of armed conflict by protecting
persons who are not or no longer participating in hostilities,
and by restricting and regulating the means and methods of
warfare available to combatants. IHL is inspired by
considerations of humanity and the mitigation of human suffering.
"It comprises a set of rules, established by treaty or custom,
that seeks to protect persons and property/objects that are (or
may be) affected by armed conflict and limits the rights of
parties to a conflict to use methods and means of warfare of
their choice".3 International humanitarian law includes "the3? GSDRC (2013). International legal frameworks for humanitarian action: Topicguide. Birmingham, UK: GSDRC, University of Birmingham. http://www.gsdrc.org/go/topic-guides/ilfha
Geneva Conventions and the Hague Conventions, as well as
subsequent treaties, case law, and customary international law".
It defines the conduct and responsibilities of belligerent
nations, neutral nations and individuals engaged in warfare, in
relation to each other and to protected persons, usually meaning
civilians.4
IMPLEMENTATION OF IHL
Implementation generally means observance of a body of law or its
enforcement in case of violations.5 In an international system
that lacks an over- reaching central authority, implementation is
4 GSDRC (2013). International legal frameworks for humanitarian action: Topic guide. Birmingham, UK: GSDRC, University of Birmingham. http://www.gsdrc.org/go/topic-guides/ilfha
5 International Humanitarian Law: Origin, Chalenges and prospects Voll 2 Accessed on http://books.google.com.ng/books?id=RvAYn7ufhEkC&pg=PA163&lpg=PA163&dq=challenges+of+implementation+of+ihl+in+peace+times&source=bl&ots=BmJEdJPnpy&sig=S0MAFLwhDGnnAo5qAIYJ2A7Dt3w&hl=en&sa=X&ei=nPNbUrroPOz40gWY54HQDw&ved=0CH0Q6AEwCA#v=onepage&q=challenges%20of%20implementation%20of%20ihl%20in%20peace%20times&f=false on 18th November 2013.
largely reserved for its main actors, state governments. Other
entities working at the international level, perhaps with the
exception of the United Nations, have only limited authority to
affect the process. Thus, they are restricted solely to
activities aimed at encouraging, assisting or inducing state
governments to comply with their legal obligations. In addition,
international bodies assist in developing standards of state
responsibility and promoting a general atmosphere of
accountability in the international arena.6 Implementation can
however be carried out in time of war and during peace times. For
the purpose of this paper, we shall be examining the
implementation of IHL in times of peace.
IMPLEMENTATION OF IHL IN PEACE TIMES
6 See D.P. Verma, Role of distinct bodies in promoting respect for international humanitarian law with particular attention to the independent commission on International Humanitarian Issues in Implementation of International Humanitarian Law 411(Frits Kalshoven& Yves Sandos eds, 1989)
Peace times are periods without war or violence.7 It is essential
that the bulk of IHL implementation be conducted during a time of
peace. The nature of human warfare usually creates situations
wherein an individual suddenly finds himself with unrestricted
power over the lives of other human beings. Unfortunately, the
temptation to abuse this power can be difficult to resist. And,
as it has been tragically proven on numerous occasions, it is
usually too late to talk about humanitarian norms at that time.8
Peacetime implementation can take the forms of legislative
actions, government and Court decisions, planning, training of
military personnel, or the development of wide reaching
educational systems. Promotional activities, such as
dissemination of information or advancing new international
standards contribute to the atmosphere of state accountability
and thus further the observance of I.H.L.9
7 http://www.thefreedictionary.com/peacetime. Accessed on 17/10/13
8 Jean- Jacques Suberk, Dissemination of International Humanitarian Law, 33 AM.UL.REV.125(1983).
9 B.G Ramcharan, The Role of International Bodies in implementation and Enforcement of Humanitarian Law and Human Rights Law in Non – International Armed conflicts, 33 AM.UL.REV 99,115
African states are under an international legal obligation to
disseminate and incorporate IHL into their domestic legislation.
In particular, Common Articles 49, 50, 129 and 146 of the four
Geneva Conventions state that:
“The High Contracting Parties undertake to enact any legislation
necessary to provide effective penal sanctions for persons committing, or
ordering to be committed, any of the grave breaches of the present
Convention…”10
Thus the IHL system is based on three key obligations, namely:
1) to enact relevant domestic legislation;
2) to pursue alleged violators of IHL; and
3) to prosecute such suspects.
Compliance with these norms can only be anticipated if civilians,
members of armed forces and authorities are familiar with its
contents. In accordance with Article 47 of the 1949 Geneva
Convention I, Article 48 of the 1949 Geneva Convention II,
10 GCs Art. 49, 50, 129, 146.
Article 127 of the 1949 Geneva Convention III and Article 144 of
the 1949 Geneva Convention IV:
“The High Contracting Parties undertake, in time of peace as in time of
war, to disseminate the text of the present Convention as widely as
possible in their respective countries and, in particular, to include the
study thereof [if possible] in their programmes of … civilian instruction, so
that the principles thereof may become known to the entire
population"11(Emphasis mine)
Thus, there are military and civilian channels for making IHL
known. In practice, some African states have produced training
manuals for the military, and set up IHL committees which advise
the government in discharging its international obligations,
though resource constraints have meant that IHL receives less
priority. However, IHL is still relatively unknown in Africa -
although recently a number of African universities have included
IHL in their curriculums.12
11 GCs: Art. 47, 48, 127, 14, see also AP I: Art. 83, 87(2); AP II: Art. 19. See Also ICRC, “Practice Relating to Rule 143. Dissemination of International Humanitarian Law among the Civilian Population” <http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule143>
12 See 1CRC ( 2012), “IHL in Africa: from rules to action” http://www.icrc.org/eng/resources/documents/feature/2012/09-17-south-africa-
PROCEDURES FOR IMPLEMENTATION OF IHL IN PEACE TIMES
The implementation of international humanitarian law during peace
times are conducted via the following routes:
a. DISSEMINATION OF INTERNATIONAL HUMANITARIAN LAW
IHL is disseminated through a number of ways. States have
obligation to disseminate it through a number of mediums.
This include:
i. Dissemination/ Instruction to the Military& Para-
Military
States must ensure that instruction is given to the armed forces
on matters of IHL. This includes the creation of military manuals
which outline the laws of armed conflict applicable to that
State; integration of IHL into the rules of engagement; and the
provision of regular training in IHL for the armed forces.
Instruction in IHL should also be provided for the police forces
of a State.
ihl-national-implementation.htm
AP I, Article 87(2) provides that,
“In order to prevent and suppress breaches, High Contracting
Parties and Parties to the conflict shall require that,
commensurate with their level of responsibility, commanders
ensure that members of the armed forces under their command are
aware of their obligations under the Conventions and this
Protocol.”
Any military or civilian authorities who, in time of armed
conflict, assume responsibilities in respect of the application
of the Conventions and must be fully acquainted with the texts.13
ii. Among The Civilian Population
Rule 143 of the ICRC provides that States must encourage the
teaching of international humanitarian law to the civilian
population.
State practice establishes this rule as a norm of customary
international law. The practice collected does not indicate that
any distinction is made between teaching international
13 Rikke Ishøy (2004) Handbook on the Practical Use of International Humanitarian Law, Danish Red Cross Blegdamvsvej 47
humanitarian law applicable in international armed conflicts and
that applicable in non-international armed conflicts.
The 1906 and 1929 Geneva Conventions required States to take the
steps necessary to make the conventions known to the population
at large.14 The 1949 Geneva Conventions and the Hague Convention
for the Protection of Cultural Property require States to include
the study of international humanitarian law in their programmes
of civilian training “if possible”.15 The qualifier “if possible”
was not included to make civilian instruction optional but was
added to take into account the possibility in federal countries
that the central government has no authority in educational
matters.16
Additional Protocol I requires States to disseminate
international humanitarian law as widely as possible and, in
14 1906 Geneva Convention for the Protection of the Wounded and Sick, Article 26 (cited in Vol. II, Ch. 40, § 611); 1929 Geneva Convention for the Protection of the Wounded and Sick, Article 27 (ibid., § 612).
15 First Geneva Convention, Article 47 (ibid., § 613); Second Geneva Convention, Article 48 (ibid., § 613); Third Geneva Convention, Article 127 (ibid., § 613); Fourth Geneva Convention, Article 144 (ibid., § 613); Hague Convention for the Protection of Cultural Property, Article 25 (ibid., § 614).
16 See United Kingdom, Military Manual (ibid., § 636); Jean. S. Pictet (ed.), Commentary on the First Geneva Convention (ibid., § 708).
particular, to “encourage the study thereof by the civilian
population”.17
States’ obligation to encourage the study of international
humanitarian law by the civilian population or to disseminate
international humanitarian law as widely as possible so that it
becomes known to the civilian population is stated in many
military manuals. 18 In addition, the legislation of several
States provides that the civilian population must receive
instruction in international humanitarian law or includes
provisions that directly aim to fulfil this requirement by
introducing such training programmes.19
In practice, many States facilitate courses in international
humanitarian law, often through the provision of funds to
organizations such as the National Red Cross or Red Crescent
Society. According to the Statutes of the International Red Cross
17 Additional Protocol I, Article 83 (adopted by consensus) (ibid., § 615)
18 See, e.g., the military manuals of Australia , Belgium , Canada , Cameroon , Colombia , Germany , Hungary , New Zealand , Nigeria , Sweden , Spain , Tajikistan and United States.
19 See, e.g., the legislation of Azerbaijan (ibid., § 639), Croatia (ibid., § 640), Peru (ibid., § 641), Russian Federation (ibid., §§ 642–643) and Slovakia(ibid., § 645).
and Red Crescent Movement, National Societies “disseminate and
assist their governments in disseminating international
humanitarian law; they take initiatives in this respect”.20 In
addition, more than 60 States have created national committees on
international humanitarian law whose tasks usually include
dissemination and promotion.21 An increasing number of
institutions of higher education have started to offer courses in
international humanitarian law in recent years.22
In addition, the UN Security Council, UN General Assembly and UN
Commission on Human Rights, as well as the Council of Europe and
the Organization of African Unity, have called on or invited
States to disseminate international humanitarian law or to
promote the teaching thereof to the civilian population.23 20 Statutes of the International Red Cross and Red Crescent Movement, Article 3(2) (ibid., § 617).
21 ICRC, Advisory Service, Table of National Committees on International Humanitarian Law, 30 June 2002.
22 See, e.g., the reported practice of Algeria (ibid., § 647), Argentina (ibid., § 650), Belgium (ibid., § 656), Democratic Republic of the Congo (ibid., § 660), Cuba (ibid., § 662), Egypt (ibid., § 663), India (ibid., § 669), Indonesia (ibid., § 671), Iraq (ibid., § 672), Kuwait (ibid., § 674), Malaysia (ibid., § 675), Peru (ibid., § 680) and Uruguay (ibid., § 683).
23 See, e.g., UN Security Council, Res. 1265 (ibid., § 688); UN General Assembly, Res. 3032 (XXVII) (ibid., § 689) and Res. 3102 (XXVIII) (ibid., § 690); UN Commission on Human Rights, Res. 1995/73 (ibid., § 497); Council of
The International Conference of the Red Cross and Red Crescent
has adopted several resolutions by consensus requiring States to
encourage the teaching of international humanitarian law to the
civilian population.24 Similarly, the International Conference
for the Protection of War Victims in 1993 urged all States to
“disseminate international humanitarian law in a systematic way
by teaching its rules to the general population”.25
No official contrary practice was found. At the 27th
International Conference of the Red Cross and Red Crescent in
1999, a large number of States from different parts of the world
pledged to review the curricula of educational and training
establishments with a view to integrating international
humanitarian law into their courses or to intensifying
dissemination to the population in general.26
Europe, Parliamentary Assembly, Rec. 945 (ibid., § 691); OAU, Council of Ministers, Res. 1526 (LX) (ibid., § 692).
24 See, e.g., 19th International Conference of the Red Cross, Res. XXX (ibid.,§ 697); 22nd International Conference of the Red Cross, Res. XII (ibid., § 699); 23rd International Conference of the Red Cross, Res. VII (ibid., § 701);25th International Conference of the Red Cross, Res. VIII (ibid., § 702).
25 See International Conference for the Protection of War Victims, Final Declaration (ibid., § 703).
26 See the pledges made at the 27th International Conference of the Red Cross and Red Crescent by Argentina (ibid., § 648), Belarus (ibid., § 654, Belgium
Additional Protocol I further introduced the obligation of
civilian authorities who, in time of armed conflict, assume
responsibilities in respect of the application of international
humanitarian law, to be fully acquainted therewith.27 While
States are required to encourage the teaching of international
humanitarian law to the entire civilian population, many
governments emphasize training for civil servants, in particular
law enforcement personnel (judiciary, police, prison
personnel).28 Several resolutions of the UN Security Council and
UN Commission on Human Rights support this requirement.29 It was
also recalled in resolutions of the International Conference of
the Red Cross and Red Crescent.30 Other States emphasize the
(ibid., § 655), Chile (ibid., § 657), China (ibid., § 658), Colombia (ibid., §659), Cuba (ibid., § 661), Greece (ibid., § 665), Holy See (ibid., § 667), Iceland
27 Additional Protocol I, Article 83 (adopted by consensus) (ibid., § 615).
28 See the practice of Belgium (ibid., § 655), Colombia (ibid., §§ 321–322 and396), Germany (ibid., §§ 627 and 664), Greece (ibid., §§ 665–666), Iceland (ibid., § 668), Malawi (ibid., §§ 432 and 676), Mozambique (ibid., § 435), Nigeria (ibid., § 630), Peru (ibid., § 363), Philippines (ibid., § 341) and Sweden (ibid., § 631).
29 See, e.g., UN Security Council, Res. 1265 (ibid., § 688); UN Commission on Human Rights, Res. 1994/85, 1995/72 and 1996/80 (ibid., § 496) and Res. 1995/73 (ibid., § 497).
30 See, e.g., 22nd International Conference of the Red Cross, Res. XII (ibid.,§ 699); 27th International Conference of the Red Cross and Red Crescent, Res.
importance of teaching international humanitarian law to youth,
including in secondary education.31 Resolutions adopted by the
International Conference of the Red Cross and the Diplomatic
Conference leading to the adoption of the Additional Protocols
have similarly emphasized this aspect of dissemination.32
Furthermore, Armed opposition groups are also enjoined to
disseminate information of international humanitarian rules to
their civilian populations.
Article 19 of Additional Protocol II states that the Protocol
“shall be disseminated as widely as possible”,33 and this
provision binds armed opposition groups.34 This rule is
I (adopted by consensus) (ibid., § 705).
31 See, e.g., the statements of Argentina (ibid., § 648) and Greece (ibid., § 665) and the reported practice of Argentina (ibid., § 650).
32 See, e.g., 15th International Conference of the Red Cross, Res. IX (ibid., § 695); 19th International Conference of the Red Cross, Res. XXIX and XXX (ibid., §§ 696–697); 23rd International Conference of the Red Cross, Res. VII (ibid., § 701); Diplomatic Conference leading to the adoption of the Additional Protocols, Res. 21 (adopted by 63 votes in favour, 2 against and 21abstentions) (ibid., § 700).
33 Additional Protocol II, Article 19 (adopted by consensus) (ibid., 287).
34 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 4909.
contained in other instruments pertaining also to non-
international armed conflicts.35
In a resolution on respect for human rights in armed conflicts
adopted in 1972, the UN General Assembly called upon all parties
to armed conflicts “to provide instruction concerning [the
international humanitarian rules which are applicable] to the
civilian population”.36
Although practice with respect to the obligation of armed
opposition groups to encourage the teaching of international
humanitarian law to the civilian population under their control
is limited, it is important that “information concerning [rules
of international humanitarian law] be given to civilians
everywhere, with a view to securing their strict observance”.37
In practice, armed opposition groups have frequently allowed the
35 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, § 13 (cited in Vol. II, Ch. 40, § 618); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 4 ( ibid., § 619).
36 UN General Assembly, Res. 3032 (XXVII) (adopted by 103 votes in favour, none against and 25 abstentions) (ibid., § 689).
37 UN General Assembly, Res. 3102 (XXVIII) (adopted by 107 votes in favour, none against and 6 abstentions) (ibid., § 690).
ICRC to disseminate international humanitarian law to civilians
living in areas they controlled.
b. LEGISLATIVE ACTION/ INCORPORATION OF INTERNATIONAL
HUMANITARIAN LAW INTO DOMESTIC LAW
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 legislation38, 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.39
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 to38 Article 48, GC I; Article 49, GC II; Article 128, GC III; Article 145, GC IV. AP I sets out the same obligation in Article 84
39 Defined in Article 50, GC I; Article 51, GC II; Article 130, GC III; Article 147, GC IV; and Articles 11(4) and 85, AP I.
humanitarian law treaties 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, 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,40 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.41
Finally, legislation is needed to be able to prevent or punish
misuse of the emblem and distinctive signs at any time.42
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.43
40 Article 48, GC I; Article 49, GC II; Article 128, GC III; Article 145, GC IV. AP I sets out the same obligation in Article 84
41 Article 50, GC I; Article 51, GC II; Article 130, GC III; Article 147, GC IV; and Articles 11(4) and 85, AP I.
42 Articles 53–54, GC I; Articles 43–45, GC II.
43 At the meeting of the Intergovernmental Group of Experts – see ‘Follow-up to the International Conference for the Protection of war victims, (Geneva, 30August-1 September 1995)’, International Review of the Red Cross, No. 304, January–February 1995, pp. 4–38. It included an ICRC proposal of a reporting system and the setting up of an international committee of experts on IHL ‘to examine the reports and advise States on any matters regarding the implementation of IHL’ (pp. 25–27).
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.44 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
44 20 Article 47, GC I; Article 48, GC II; Article 127, GC III; Article 144, GC IV (the wording is almost identical in the four Conventions); Articles 19 and 83, AP I; Article 19, AP II
Protocols thereto ‘as widely as possible’ are the training of
qualified staff,45 the deployment of legal advisers in armed
forces,46 emphasis on the duty of commanders47 and special
instruction for the military and authorities who may be called
upon to assume relevant responsibilities.
c. SOCIETAL STRUCTURE/ ORGANIZATION
The geographical plan of a state must be structured in a way that
the location of its military objectives are father to the
civilian objects. The duty of states to avoid locating military45 Para. 1 of Article 6, AP I requires that the High Contracting Parties ‘alsoin peacetime, endeavour, […], to train qualified personnel to facilitate the application of the Conventions and of this Protocol, and in particular the activities of the Protecting Powers.’ This training should take place with theassistance of the National Society.
46 Article 82, AP I. The role of the legal advisers will be to ‘advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject’.
47 Article 87, para. 1, AP I. 24 Article 83, AP I. Knowledge of international humanitarian law is also required on the part of civilian and military authorities who, in time of armed conflict, assume responsibilities in respectof the application of the Conventions and this Protocol’ and hence in relationto protected persons. Paragraph 2 requires that such authorities ‘be fully acquainted with the text’ of these instruments
objectives within or near densely populated areas is set forth in
Article 58(b) of Additional Protocol I, to which no reservations
relevant to this rule have been made. 48
CHALLENGES
Implementation is the major challenge facing international
humanitarian law today. The problem of translating States' legal
obligations into action is common to all areas of international
law. There is however a particularly acute contrast between
humanitarian law's highly developed rules, many of which enjoy
nearly universal acceptance, and the repeated violations of those
rules in conflicts around the world. 49
First, in time of peace no one wants to think about the kind of
situation where this body of law is put into practice. Nor is it
easy to foster enthusiasm for legal rules which are beyond
people's personal experience. But unless certain efforts are made
48 http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter6_rule23. Accessedon 28/02/14
49 Paul Berman, The ICRC's Advisory Service on International Humanitarian Law: the challenge of national implementation. http://www.icrc.org/eng/resources/documents/article/other/57jn57.htm, Acessed on 25/01/14
and steps taken in peacetime, it cannot be expected that these
rules will be implemented in time of crisis or war. 50
Furthermore, the system of implementation of IHL is based on
voluntary action and goodwill of parties and this has made
implementation of the principles cumbersome in peace times.
In addition, funds has been a prominent factor militating against
the implementation of IHL in peace times in 2nd and 3rd world
states as funding of trainings and acquirement of instruments for
dissemination of IHL for military and civilians respectively are
quite steep and contracting states would rather expend its
inadequate money on other part of its economy than on issues
relating war.
CONCLUSION
Humanitarian law advocates regularly deal with the challenges of
implementing the law. People of a more practical bent may ask
whether it is worth to implement rules that seem necessary only
in times of war. When resources are scant, it is difficult to
50 Dieter Fleck (1991). Implementing International Humanitarian Law: Problems and Priorities. International Review of the Red Cross, 31, pp 140-153.
justify the means necessary to prepare for some (unlikely) future
risks.
When implementing humanitarian law every state must take into
account its recent history and the overall state of affairs of
the world at large. Although international armed conflicts are
not that common anymore, humanitarian law also applies to non
international conflicts (and to some extent to new forms of war)
which are occurring in many parts of the world and can start
virtually overnight.
Experience has shown that IHL will only be respected in war if it
is made known in times of peace.51 It is of necessity that
humanitarian laws are enforced in peace times to avert a
situation where war breaks (whether national or international)
and the parties to the war are left to conduct it without the
knowledge of humanitarian law.
In the light of the foregoing, it is the opinion of the writer
that the international community assist the 2nd and 3rd world
51 Rikke Ishøy (2004) Handbook on the Practical Use of International Humanitarian Law, Danish Red Cross Blegdamvsvej 27
countries in terms of funds and machinery for the dissemination
of IHL in their states.
Finally, greater encouragement should be given to contracting
states to observe their obligation by implementing IHL in peace
times to forestall a situation where international or intra armed
conflict are conducted without the observance of IHL rules.
Top Related