IMPLEMENTATION OF LAW OF ARMED CONFLICT OBLIGATIONS

1. IMPLEMENTATION OF LAW OF ARMED CONFLICT OBLIGATIONS Lecture 27 September 2010 by Arne Willy Dahl

2. 1977 AP I Article 82 Legal advisers in armed forces The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, 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.

3. 1977 AP I Article 87 ‑ Duty of commanders 1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.

4. Positive Aspect Elements • Translation of the conventions to national language(s) • Dissemination and training. Training program for the military with the assistance of the Norwegian Red Cross Society • Providing experts and advisers. Legal advisers integrated in military staffs in peacetime • Military planning with regard to separation of potential military objectives from civil population • Identification of cultural property, civil defence works and installations containing dangerous forces

5. Negative Aspect Elements • Legislation on punishment of crimes - Indirect obligation to cover the ICC crimes - Treaty obligations with regard to crimes not covered by the ICC statute • Legislation on protection of the emblems • Assigning and training investigators and prosecutors

6. Steps taken in Norway • 2006 Updated translation by the Norwegian Red Cross Society • Penal provisions have been enacted in 2008, covering the ICC crimes + Norwegian IHL obligations. These supplement previous, less specific, provisions. • Investigation and prosecution units were established in 2005/2006. • The first conviction for war crimes since the trials immediately following WW II was awarded 2 Dec 2008 by the district court of Oslo. Largely upheld by High Court. Appealed to the Supreme Court. See “legal tools” website.

7. Mechanisms for international enforcement • Penal • Non-penal • Non-judicial

8. Non-judicial enforcement • Reprisals/expectations of reciprocity • Monitoring – protecting power/ICRC • Fact-finding commission • Public exposure • Diplomacy/intervention by the UN SC

9. Non-penal judicial enforcement • Reparations as a part of a peace settlement • ICJ – International Court of Justice • Lawsuits before national courts

10. Penal enforcement • At the outset a national responsibility • In wartime a state can prosecute enemy war criminals (exemption from customary immunity for state officials with regard to acts within the scope of their duties) • For ”international crimes”, third countries have a right and an obligation to prosecute or extradite.

11. Some fundamental questions • Are all breaches of the law of armed conflict war crimes? • Can war crimes be based on customary (not treaty) law? • Do we have international crimes that are not necessarily connected to war?

12. The core crimes • Genocide – specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Convention 1948. • Crimes against humanity include certain enumerated criminal acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack . • War crimes are generally speaking grave breaches against the Laws and Customs of War. • + The crime of aggression

13. Nuremberg 1945 Under the art. 6 of the charter, the jurisdiction included: • Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression … • War crimes: namely, violations of the laws or customs of war, including, murder, ill‑treatment … killing of hostages, plunder of public or private property, wanton destruction • Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts … Genocide was at that time considered as a special case of crimes against humanity.

14. ICTY 1992 ICTY has under its statute jurisdiction the following crimes committed in the former Yugoslavia since 1991: • Grave breaches of the Geneva Conventions of 1949 (art. 2) • Violations of the laws or customs of war (art. 3) • Genocide (art. 4) • Crimes against humanity (art. 5) (ICTY will wind down its activities in a couple of years from now.)

15. G III art. 130 Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

16. ICTY-statute art. 3 The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to; (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or village, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and educations, the arts and sciences, historic monuments and works of the art and science; (e) plunder of public or private property.

17. Some questions which the ICTY had to resolve • Do the provisions of the art. 3 of the statute (laws and customs of war) apply to non-international armed conflict? Yes. • Do the lists of grave breaches of the Geneva conventions apply to non-international armed conflict? No. • Do breaches of common article 3 give rise to penal liability? Yes.

18. Common article 3 to the Geneva conventions (excerpt) • (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; • (b) taking of hostages; • (c) outrages upon personal dignity, in particular humiliating and degrading treatment; • (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

19. The 1977 additional protocols and war crimes • The 1949 Geneva conventions are universally accepted. • This is not the case with regard to the 1977 Additional Protocols. • The 1977 AP I has an additional list of grave breaches.

20. Excerpt of AP I art. 85 • (a) making the civilian population or individual civilians the object of attack; • (b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii); • (c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii); • …

21. ICC 1998 Statute adopted by treaty 17 July1998. In force 1st of July 2002. 108 states parties. The court has jurisdiction over the following crimes: • Genocide (art. 6) • Crimes against humanity (art. 7) • War crimes (art. 8) • The crime of aggression The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime

22. Ad hoc tribunals and the ICC • ICTY and ICTR have jurisdiction over specific situations. ICC in principle world-wide. • ICTY and ICTR established by UN Security Council resolution – binding on all. ICC established by treaty – binding on states parties • ICTY and ICTR have primacy over national jurisdictions. ICC has ”complementary jurisdiction” – a court of the last resort.

23. Other international efforts • Hybrid courts for Sierra Leone, East Timor (ceased), Cambodia, Bosnia-Hercegovina • Internationally inspired national efforts in Indonesia and Iraq

24. War crimes under the ICC statute • In general, the provisions reflect universally accepted customary law. • The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes (art 8 paragraph 1). • In the statute, there are separate provisions that apply in international armed conflict (art. 8 paragraph 2 (a) and (b)), and others that apply in non-international armed conflict (paragraph 2 (c) and (e)).

25. Art. 8 nr. 2 (a) – grave breaches of the 1949 Geneva Conventions (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages.

26. Art. 8 nr. 2 (b) other serious violations (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long­term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Continues to sub-paragraph xxvi

27. Art. 8 nr. 2 (c), based on common article art. 3 • Applies in non-international armed conflict (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. .

28. Art. 8 nr. 2 (e) other serious violations • Apply in non-international armed conflict (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict; Continue to sub-paragraph xii.

29. Some general principles of criminal law in the Rome statute • Superior orders. Does not relieve from criminal responsibility unless the person was under a legal obligation to obey, the person did not know that the order was unlawful; and the order was not manifestly unlawful. More lenient than in Nuremberg and under the ad hoc tribunals • Command responsibility Military commanders are held responsible for the criminal acts of their subordinates which they knew or should have known, and fail to prevent, repress or submit to prosecution. Other superiors are held responsible only with regard to criminal acts that they knew about, or they consciously disregarded information which clearly indicated crimes.

30. To sum up • Implementation of IHL starts with national preparations. • IHL has to be taken into account in planning processes, in order to be properly implemented in the actual military operations. • Failure by a state to comply with IHL obligations can be med with various reactions. • Penal prosecution is first and foremost a national responsibility.   • The International Criminal Court is a court of the last resort, which will concentrate on those most responsible for the most serious crimes, in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes

31. End of lecture Thank you for your attention Any more questions?