“The Implementation of International Humanitarian Law”

Essay by Av. Jordan DACI, LL.B, MA

June 2003

Table of content

1. Introduction

2. International Humanitarian Law and Human Rights

3.  International Humanitarian Law Application

4. Conclusions

5. Bibliography

Introduction

Throughout centuries the world has been the witness of many wars or as today some scholars prefer to call them armed conflicts that have caused gross human rights violation represented by death of millions of people, most of them children and women and other types of civilians, part of vulnerable groups of society. On the other hand “the universality, indivisibility and inalienability of human rights are widely accepted on a global level”[1]. Today human rights are considered as a “culture” not only need, but also regarded as a crucial factor for the “development of a modern society”[2]. However, until now these development and new perceptions for the future did not succeed to prevent armed conflicts. The application of international humanitarian law has the scope to ensure that a “minimal level of humanity is maintained during armed conflict”[3].

International Humanitarian Law, further IHL, is the “human rights law” in time of armed conflicts and it is a “lex specialis”[4]. The implementation of IHL is the only way to maintain a minimal standard of human right protection during armed conflicts. The implementation of IHL is a crucial and very important element of human rights protection, but practice has shown that IHL implementation mechanisms are weak and have not yet been successful.[5]

The main goal of this essay is to explain that IHL should be a practical law, ensuring that will be understandable by ordinary people, even in extreme circumstances when there is not time for reflections and debates, and soldiers and not only by lawyers and academics. It is well known that IHL does not have yet successful implementation instruments in classical meaning compared with human rights law, even though that the former is one of the oldest part of international law and human rights law is considered as a newly developed law.

Due to the scope the IHL and human rights law overlap each other and they have establish not only a theoretical relationship, but also practical one as well between these two bodies of law. Having in mind this relationship, due to the successful implementation mechanisms of human rights law, IHL can use human rights law mechanisms to be implemented. Indeed, IHL and human rights law have the same scope - to protect human rights, but in different times and with different standards.

In this essay it will be underlined that successful implementation in practice of IHL is very important for the protection of human rights and that IHL can be more successful using human rights law instruments and mechanisms, but as well setting up more advanced standards for the protection of human rights, taking into account human rights law standards that are considered the best that humanity have so far.

In the first chapter it will be explained the relationship between IHL and human rights law, the idea that these two bodies of law are overlapping each other and that by understanding this relationship we can understand not only the nature of each of them but we can learn also how they can contribute to the implementation of each other, to protect human rights hopefully in a maximum level.

In the second chapter  will be explained how IHL can be fully implemented through the combination of its instruments and mechanisms with human rights law due to their relationship. Also, it will be demonstrated how important it is to ensure full implementation of IHL for the protection of human rights, always taking in consideration the developments of the new limits of restriction of human rights by human rights law.

The main methodology used will be based on a theoretical and practical level of debate about the implementation of IHL in regards with new legal, political and philosophical developments, not only of human rights but also with the new understanding of armed conflicts and their function. As resources I will use mostly available books and articles.

I. IHL and human rights law

From a simplistic analysis of the relationship between IHL and human rights law it does not seem that this relationship does really exist. But indeed, at least in the “worse sense there is a real relation and may seem to be an academic issue,”[6] beside practical one. In facts these doubts about this relationship between IHL and human rights law have as their base two different approaches about this question.

The first one underlines that these two bodies of law are “contradictory” between each other, excluding the coexistence among IHL and human rights law.[7]  The idea is that these two bodies of law are not overlapping each other therefore their implementing mechanisms can not be used in one interrelated way by them.

The second one supports the idea that IHL and human rights laws are both “concerned with the alleviation of the suffering of victims caused by state. In this perspective it is really hard to find any kind of relationship among IHL and human rights law earlier than 20^th century, simply because human rights law has been developed recently and “IHL is the first part of international law that received codification.”[8] Of course, it was a result of different conceptions of the function of armed conflict considered as a deviation from human relationship and as something against natural human rights such as the right to life, etc. IHL has been a practical concern throughout time pushing people to develop it and giving to it a new understanding such using it to protect human rights.

A good analysis of the relationship among IHL and human rights law serves not only to understand better “their nature”[9] but also “has a marked effect upon the measures to be taken for their implementation”[10]. The relationship among IHL and human rights law can be seen bearing in mind that there is “a set of basic human rights to which and every person is entitled under all circumstances and this now seems to be generally recognized in itself of inestimable importance for the realization of the values to which both IHL and human rights law are committed” [11].

Indeed, different levels of protection of human rights by IHL and human rights law cannot be used as argument of justification to negate the existence of the relationship between these two bodies of international law. These two bodies have the same scope to ensure protection of human rights in all the circumstances.

IHL is, in a way, a deviation from normality, therefore nobody should expect any “miracle” from its application, but we should be aware that is the only possibility to ensure the enjoyment of basic non-derogable human rights.

The historical development of any area of law inevitably reflects the evolving concerns of society, in which are generated and perceived needs of which it is to serve.[12]The same has happened with IHL. In fact from 1968 a close links have been established between the advanced human rights law and IHL of armed conflicts reflected in a series of General Assembly’s resolutions since 1968, adopted under the rubric -“Respect for human rights in armed conflicts”.[13]

“Thanks to this relationship a powerful support to the development of IHL came from contemporary development from the law of human rights.[14]

It is widely accepted that the use of IHL in turn constitutes a recognition of the fact that the organized use of force, differently from the domestic law, found in IHL contains a none extensive set of juridical guarantees that might otherwise be made operable during an “emergency” situation in which human rights have been derogated.[15]

“IHL as every law should be adapted with the new developments of international law”[16], especially with human rights law as integral part of it. In many ways human rights law has effected to strongly review of the IHL in order to be adapted with new “standards” set up by the new understanding of armed conflicts and human rights protection during this time. In other words “human rights law has provided the language of the common effort of revision of the law of war”[17] or as it is known IHL.

Due to the relationship in theory and practice IHL and human rights law are now considered as “essential part of each other”[18] confirming that IHL and human rights laws are overlapping each other.

IHL until the development of human rights law has embraced the protection of human rights just in the inter-states conflict situations. “Now as result of this relationship IHL embraced the protection of human rights of the individuals both in conflict and pacific situation, inter-states and intra-state”[19].

The development of laws of armed conflicts ‘jus ad bellum’[20] and ‘jus in bello’[21] besides the theoretical explanation one should have the purpose to make it clearer, more understandable and try to make it functional on a practical level, not only by lawyers, but mostly by ordinary people in circumstances which allow little time for debate and reflection, such as soldiers that are “entitled” to apply IHL norms.[22]

It is a matter of great significance that norms in case of jus in bello, operate even in the most extreme collapse of normal relationship between individuals.[23][23] This shows the possibility of full implementation of IHL, which is the key issue connected not only with the protection of human rights during armed conflicts but is dealing also with the new understanding of armed conflicts, namely accepted as the last possibility to reset the order and justice among people.

II. The implementation of IHL

Laws are adopted to respond human beings’ needs in order to regulate their relationship between each other and on the other hand between the people and the state. Laws reflect from any kind of new development setting up of a new relationship extended in new dimensions. Sometimes laws are adopted to be a guideline for expected developments and this is the best way to avoid any non-desirable development.

IHL as every law is adopted with the aim to be fully implemented and in this way to effect directly the development of relationship between individuals, but the purpose is to be regulator in a particular time, during armed conflicts when reason gives way to aggressiveness. The main issue of implementation is related to and conditioned by enforcement, which in many ways is essential constituent of legal efficacy, a vital importance in any area of law.[24]

The rule of so-called ‘golden balance’ is necessary to be applied in case of IHL implementation and enforcement especially taking in consideration that usually IHL is going to be applied in “extreme circumstances”[25]. A successful application and implementation of IHL requires an accurate assessment of material field laws of application.[26]

In order to understand better the way of implementation of IHL “we should note that IHL is a balance between conflicting concepts of military necessity on the one hand and of humanitarian concerns on the other.[27] It is quite clear that reaching this balance it is not easy, but the accent should be placed upon humanitarian concern and especially on the protection of vulnerable groups.

International law is the weakest part of all law and IHL as its part is also weak[28], namely in terms of full implementation. This consideration about international law in general and especially for IHL in fact is derived from the absence of efficiency of implementation mechanisms, or better to say, of the classical mechanisms that have shown that function well and that people are familiar with the implementation of laws. However, this approach does not help the protection of human rights during armed conflicts and “it must not be assumed that courts, prisons and firing squads are the sole mechanisms of enforcements”[29].

As part of implementation strategy of IHL other forms and mechanisms should also be used in combination with classical examples, especially such as “education and pressure upon public opinion”[30]. Education should be considered as a measure that not only can make easier the understanding of necessity of the implementation of IHL, but also can be the prevention of the necessity of the implementation of IHL by preventing the source of necessity, that is, the armed conflicts themselves. It should be stressed that education is the most successful method to apply to any strategy or policy. 

It should be emphasized that the elaboration of ‘soft’ implementing mechanisms like state reporting system has not yet been successful[31]. As it has been mentioned, the scope of IHL and human rights overlap.[32] It is very useful to understand how human rights law can contribute to the realization of IHL.[33]

Combination of implementation of IHL and human rights law can make possible the protection of human rights at least on a minimal level in all the situations and it is suggested that any gap in the area where humanitarian law meshes with human rights law should be filled.[34]

Usually states due to the political and public opinion pressure in international and national level try “to avoid declaring that a particular situation amount to an armed conflict”[35]. As result IHL is not applicable in those cases that indeed are so many and the tendency is to be “increased” in an “artificial” way, but that leave without adequate protection all the individuals involved in these situations. It is more than acceptable and reasonable that only IHL is the best protection that humanity has to protect human rights during armed conflicts, no matter if they are inter or intra- states. We can see that in case of intra-state conflict only human rights law can fill the gap created by the lack of application of IHL.

From this argument we understand that the implementation of IHL should not be regarded in a ‘stricto sensu’, rather it should be a combination based not only on its own implementing mechanisms but alternated with other human rights law instruments and mechanisms that have shown the efficacy in practice. The possibility of using human rights instruments to implement IHL “is not just a theoretical possibility but has been already applied in practice especially by European Court of Human Rights with regard to Turkey.[36]

European Convention on Human Rights realizes the link between human rights law and IHL through Art. 2 (right to life), Art 3 (prohibition of torture), Art 4 (prohibition of Slavery and forced Labor) and Art 15. In the Art 15 of ECHR a catalogue of non-derogable rights is provided setting up new limits of restriction of human rights during armed conflicts by state as well.[37]

IHL is considered as lex specialis and human rights law as lex generalis[38], therefore it should be highlighted the priority of application of IHL during armed conflicts as a special situation, but indeed recognizing higher standards of human rights protection by human rights law. That’s why it is more reasonable to try to bring closer these two bodies of law in favour of human rights law.

European Court of Human Rights in different cases such as Loizidou vs. Turkey and particularly in case of Ergi vs. Turkey could have not avoided analyzing the extent of human rights obligation in the light of the increasing amalgamation of the two bodies of law.[39] Also in the Engles case court has affirmed that there is no political or legal dogmatic reason to avoid taking into consideration IHL and did not hesitated to apply it along with the ECHR, in particular Art. 83 of 3^rd Geneva Convention.[40]

The development of jus in bello tends to reflect the challenges we have mentioned above. For example, in the Gulf conflict with burning of the Kuwaiti oil fields during Iraqi occupation and the release of large oil slicks into the water of Gulf, led to the argument of the need that IHL should adopt new treaties for the protection of environment in armed conflicts.[41]

Another meaningful example is the NATO intervention in Kosova that stressed the need to review many issues of IHL and international law as well. The case of Kosova has been presented as a ‘sui generis case’. Truly, there are many things that attribute to this case, elements of sui generis, however, these elements are not related with IHL.

Regardless the importance of the problems already discussed above a very crucial question for IHL is its implementation with the part that deals with vulnerable groups such as children, women, old people and other groups of civilian population.  The treatment of children as participants or at the worse case as combatants is especially of vital significance. The implementation of clauses that provide the basic rule for non-recruitment and non-participation of children as combatants or participants should thus be a priority.[42]

The protection of property of people is also crucial for the protection of people’s lives after conflicts have ended. It is known that a lot of lives have lost in post-conflicts period as result of a total lack of food, water supplies, medicines, etc.

To conclude, it should be stressed that major role to be play for the full implementation of IHL is for the state that has “a free hand” to go further than IHL standards in a positive sense, ensuring a greater protection of human rights during armed conflicts. The International Criminal Court of Justice is until now the only classic implementing mechanism that IHL has had and the overall trend is that it is going to be successful. Therefore, states should fully support and ensure that this Court will be fully functional and implement IHL.

In this line of thinking the role of domestic measures should not be underestimated particularly when we have a good practice. Moreover, it should be supported and appreciated by international community and by people which are the main target of human rights violation.

Conclusions

The question of the implementation of International Humanitarian Law is a crucial issue of International Law that includes a large number of actors of international community and that have to deal with the most important issue - the protection of human rights during armed conflicts. It is well known that IHL as integral part of international law is very weak when it comes to the implementation, resulting from the lack of classical implementing mechanisms and has mostly so called “soft” mechanisms. Although it should be stressed that the lack of classical mechanism does not mean that cannot be implemented, because the implementing mechanisms of international law are different from domestic law and they usually consist in political pressure and good will of states. However, new development and understanding attributed to international implementation have shown that there can be a good future for the full implementation.

A good way to ensure full implementation of IHL is to use successful implementing mechanisms of human rights law. This possibility is due to overlap between those two bodies of law and having the same scope, which has been proved not only in theoretical level but also in practical. European Court of Human Rights in different cases regarding Turkey has already used this possibility - some times it is the only one - to protect human rights. These practices serves to understand better the relationship among IHL and human rights law and stress the need to go further and try to make this relationship more functional.

Without underestimating the importance of other issues it is relevant for human rights protection that IHL implementation is fully implemented, especially the parts dealing with the protection of vulnerable groups such as children, women, old people and other groups of civilian population. In order to achieve the implementation of IHL it must become a practical law, considering that it is going to be implemented mostly by soldiers and not by lawyers and applied during extreme circumstances that do not allow the reflections and debates. The education of IHL for different groups of society within one state and extend in international level seems the best way to achieve a full implementation of IHL. This method has been proved to be successful in many other cases when it was used to implement a particular strategy.

States as main actors of international community should play a greater role to ensure full implementation of IHL and in this way human rights protection as their first responsibility.[43]Furthermore, the combination of national and international measures in order to achieve IHL implementation has a great significance. Good practices should be supported and used to go further in the positive sense.

States should also fully support the International Criminal Court as the only classical institution that has the tendency and abilities to be the most successful mechanism for implementation of IHL. States must be convinced that the establishment in practice and not sole on “paper” of the ICC has a relevant importance for the future implementation of IHL and will impact definitely other developments of international law and international relationships among states. As result of globalization many national problems, such as criminality, terrorism and other social problems are transformed in international problems. Consequently, the treatment should also be international one.

The question of IHL implementation is the sole way to protect human rights during armed conflicts and hopefully to ensure that justice and peace will reign all over the world.

Bibliography

1-         A Study of ICRD.“Arms Availability and Situations of Civilian  in Armed Conflicts.” Geneva 1999.

2-         Christine Gray. “International Law and Use of Force”. Oxford University Press Inc. New York. USA 2000.

3-         E. Chandwich. “Self-Determination, Terrorism and International Humanitarian Law of Armed Conflicts”. Martinus Nijhoff Publisher. Netherlands, 1996.

4-         Edward Kwakwa. “The International Law of Armed Conflict: Personal and Material Field of Application “. Kluwer Academic Publishers. Netherlands 1992.

5-         Hans-Joachim Heintze. “The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts”. 5^th Cluster   Reader. ERMA 2002/2003.

6-         Humanitarian Law of Armed Conflicts, Challenges Ahead. Edited by Astrid J.M. Delissen, Gerard J. Tanja. T.M.C. Asser Instituut. Martinus Nijhoff Publisher. Hague, Netherlands 1991.

7-         Ilene Cohn and Guy S. Goodwill –Dill. “Child Solders”. Oxford University Press Inc. New York. USA 1997

8-         Prof. Dr. Wolfgang Benedek. “For a Culture of Human Rights in Balkan”. Part of “ Cultural of Human Rights”. Human Rights Centers Network, Human Rights Center in Belgrade.  2003

9-         Professor Colonel G.I.A.D. Draper, OBE. (Eds.) Michael A. Meyer and Hilaire Mc Coubrey. “Reflection on Law and Armed Conflicts “. Kluwer Law International, Netherlands, Hague 1998

10-       Understanding Human Rights, Manual on Human Rights Education. Editors. Prof. Dr. Wolfgang Benedek and Mima Nikolova. ETC. Graz. Austria 2003.

Other sources

-   Vienna Declaration and programme of Action.