International Humanitarian Law, SS 2011, Alexander Breitegger

1. International Humanitarian Law, SS 2011,Alexander Breitegger Session 4: Implementation and Enforcement of IHL

2. Implementation of IHL IAC • Obligation to respect and ensure respect for IHL (c. Art. 1, GC I-IV; Art. 1, API): • State compliance with IHL by all organs and others within its jurisdiction; • Negative obligation on third states not party to armed conflict not to encourage or assist in violations of IHL (Nicaragua, ICJ); • Positive obligation on third states to take action against violations of IHL: exact scope? • Measures before (peacetime), during, after armed conflict

3. Implementation of IHL, IAC • Preventive measures: • Dissemination and instruction (Arts. 47/48/127/144 GCs, 83 API; Art. 82 API) • National legislation (Arts. 49-54/50-53/129-132/146-149 GCs, 85-91 API) • Practical measures, such as ensuring separation of military from civilian objects; identification and marking of medical facilities, works and installations containing dangerous forces, civil defence, cultural property

4. Implementation of IHL, IAC Control Measures • Protecting Powers (rarely used): instead also impartial humanitarian organisation, de facto often ICRC • ICRC: • conventional right to visit detainees (Arts 126 GCIII, 143 GCIV), distribute relief supplies (Arts 125 GCIII, 142 GCIV), act as neutral intermediary for news to family, family reunification (Arts 123 GCIII, 140 GCIV, 33 API) • right of humanitarian initiative (Arts 9/9/9/10 GCs, 81 API) • Enquiry Procedure (Arts 52/53/132/149 GCs) • International Fact-Finding Commission (Art 90 API) • UN bodies: Art 89 API • e.g. SC sanctions, enforcement operations under Chapter VII, thematic Resolutions; e.g. SC Res 1265 (1999), 1296 (2000), 1674 (2006), 1894 (2009); R2P

5. Implementation of IHL, IAC Repressive measures • UN: Art. 89 API SC sanctions, enforcement operations under Chapter VII • State responsibility (before ICJ, human rights courts and bodies): Art 91 API • National criminal prosecutions • International criminal tribunals

6. Grave breaches • Obligation to enact legislation providing for effective sanctions • Obligation to prosecute alleged perpetrators before own courts • Universal jurisdiction: nationality or territoriality link not required • if not able: obligation to hand them over to states with a view to their criminal prosecution

7. Grave breaches, examples • wilful killing; • torture or IT; • wilful deprivation of rights of fair and regular trial of POWs or protected persons; • extensive destruction and appropriation of property not justified by military necessity, and carried out unlawfully and wantonly; • wilfully causing death/serious injury when making civilians the object of an attack or when launching indiscriminate attacks • perfidious use of red cross or red crescent emblems

8. Implementation of IHL related to NIAC • Pre-conflict: Dissemination of IHL: Art. 19, APII; esp. among fighters, in practice: allow ICRC to disseminate IHL • Practical measures, like separating military from civilian objects possible • During conflict: • C. Art. 3 (2): ICRC may offer its services to conflicting parties • also UN bodies: appeals, sanctions under Chapter VII also in NIAC • Post-conflict: • national criminal prosecutions but not explicit in GCs • International criminal tribunals: also jurisdiction for crimes committed in NIAC

9. Problems of Implementation in respect of NSAGs • General weakness that no participation by NSAG in formation of treaty rules • special agreements: c. Art. 3 (3) GCs • unilateral declarations • inclusion of IHL in codes of conduct • inclusion of IHL in ceasefire/peace agreements • grants of amnesty for mere participation in hostilities (Art. 6 (5) APII)

10. Reform proposals of IHL control mechanisms • problem: no IHL mechanism for individuals like under HRL treaties • UN mechanisms and HRL bodies: politicised, regional, NSAGs not covered • ICRC: one area where conventional development proposed • should be automatic (not based on consent of parties); neutral and impartial; if possible: decision-making power • options: strengthen existing mechanisms like International-Fact Finding Comm? IHL Court? IHL Commission?

11. War Crimes • Violations of IHL entailing individual criminal responsibility • Art. 85 (5) API: grave breaches = war crimes • violations other than grave breaches of IHL: obligation to take necessary measures for their suppression, not necessarily criminal, not necessarily war crimes • Traditionally: grave breaches = war crimes, only in IAC

12. War Crimes • Prosecutor v. Tadic, Jurisdiction: war crimes also other IHL violations than grave breaches (Art 3 ICTY Statute) • also establishment of International Criminal Tribunal for Rwanda (ICTR): Statute explicitly individual criminal responsibility for violations of c. Art. 3 GC and APII • Rome Statute of the International Criminal Court (ICC Statute) contains the following categories of war crimes (Art 8 ICC Statute): • Grave breaches • Other serious violations of IHL in IAC • Serious violations of c. Art. 3 GC • Other serious violations of IHL in NIAC

13. International Criminal Law • International crimes: • breaches of international rules entailing individual criminal responsibility; • Rules protect fundamental values of international community; • Universal interest in repressing these crimes (not exclusively to one state) • started off with war crimes, then “crimes against humanity” and “genocide”

14. Crimes against humanity • Art. 7, ICC Statute, elements: • Specific acts that must be: 1) part of an attack against any civilian population; and 2) attack must be widespread or systematic • ad 1) attack: conduct involving multiple commission of acts against civilian population, in furtherance of state or organisational policy; • attack: not limited to use of armed force; mistreatment • no nexus to armed conflict necessary;

15. C.a.h. ctd. • ad 2) widespread or systematic: • widespread: against a multiplicity of victims (quantitative) • systematic: pursuant to preconceived policy (qualitative) • practical factors: political agenda; involvement of high military and political authorities; repetitious and uniform perpetration against same civilian population • acts: murder, extermination (mass killings), enslavement, deportation/forcible transfer, imprisonment/other severe deprivation of liberty, torture, sexual offences like rape, forced pregnancy (new), persecution (specific discriminatory intent), enforced disappearance (new), apartheid (new)

16. Genocide • 1948 Genocide Convention, also ICC Statute def.: • intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such (subjective element) • acts (objective element): • a) killing members of the group; • b) causing serious bodily or mental harm to members of the group; • c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; • d) imposing measures intended to prevent births within the group; • e) forcibly transferring children of the group to another group.

17. Genocide: Intent • intent: not enough that members of group targeted because belong to a group but specific intent that physical act would destroy a protected group • Difficult to prove: practice of ICTY, ICTR circumstantial evidence to infer genocidal intent • Circumstances: • Deliberate and systematic targeting of victims on account of their group membership; • Relative proportionate scale of destruction of group in region or country; • Methodical way of planning; • Specific statements; use of derogatory language

18. Genocide: Protected Groups • Akayesu, ICTR 1998 judgement: membership normally not challengeable by its members, who belong to it by birth, often in a continuous and irremediable manner • National group: collection of people sharing common citizenship • Ethnic group: group whose members share a common language and culture • Racial group: hereditary physical traits often identified with a geographic region, irrespective of linguistic, cultural, national or religious factors • Religious group: members share common religion, denomination or mode of worship • Subsequently: not only objective criteria but may be supplemented by subjective perception by others and self-perception even if individuals would not constitute different groups in accordance with objective criteria

19. Genocide: objective element • a) killing and b) causing serious bodily or mental harm: objective acts not different from murder, torture, CIT under war crimes, c.a.h • c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction: e.g subjecting group to subsistence diet; systematic expulsion from homes, reduction of essential medical supplies below minimum requirements • d) imposing measures intended to prevent births within a group and e) forcibly transferring children of protected group to another group: e.g changing demographic balance through forced pregnancy

20. Establishment: SC Res under Chapter VII, UN Charter as subsidiary organs of SC consequence: obligation of all UN member states to co-operate with orders and requests by Tribunal (Art. 25 UN Charter) Jurisdiction: established for one specific situation (ad hoc tribunals) Relationship int.tribunal/nat. authorities: primacy Establishment: international convention (Rome Statute) consequence: only States Parties under Art. 86 R.S. general obligation to co-operate with requests of ICC; non-State parties no such automatic obligation Jurisdiction: esp. not limited to one specific situation Relationship int.tribunal/nat. authorities: complementarity ICTY, ICTR ICC