Enforcement of IHL

Enforcement of IHL
When violations of international humanitarian law (IHL) occur, victims often suffer serious
consequences including infringements upon their human dignity. In the wake of such
violations, attention turns to accountability.
Who is responsible for enforcing respect for IHL?

Given that IHL is a branch of public international law, the general rules of state and individual
responsibility will apply. In addition to these general rules, IHL sets out specific legal
consequences for warring parties and third states that come into play when IHL is violated.
Obligations of the warring parties

It is primarily the responsibility of the warring parties to an armed conflict to respect the rules
outlined under international humanitarian law. Respect for IHL is the most important obligation
of the parties to an armed conflict.
“To respect” means that all state institutions, and all other individuals or bodies under their
authority, must follow the rules of the Geneva Conventions. A state has a duty to do everything
it can to ensure that the Conventions are respected by all (the duty to exercise due diligence).
Dissemination of IHL standards and education of its armed forces and general population is a
key element of a state’s obligations under the Geneva Conventions.
Under Common Article One of the Geneva Conventions, which codifies the notion of respect,
parties to a conflict must respect all applicable rules of IHL in all circumstances. These rules
include those found in the Geneva Conventions, their Additional Protocols, the Hague
Regulations as well as rules of Customary IHL. States must enact legislation to give legal status
to the protections provided for under international law.
States shall also actively search for war criminals within its jurisdiction and bring them to court
or extradite them as soon as possible (Article 146 GCIV, Article 80 API). A state is responsible
for its soldiers' behaviour when they take part in conflicts abroad. This also applies to the actions
of soldiers in peace-keeping missions. In fact, states are responsible to ensure that the rights in
the Conventions are respected in all places under its control. For example, a state has to ensure
the protection of prisoners in a prison that is run by its armed forces abroad.
When states violate rules of IHL they must cease the violation and make reparation to the victims
involved.
Click here to read more about the general rules on state and individual responsibility.
Must all violations of IHL be investigated?

There is no explicit obligation under IHL to investigate every violation, but all grave breaches
and serious violations of IHL must be investigated. That said, investigation of all violations is an
important way to ensure genuine respect for the law. In order to be taken seriously, the notion of
respect must include some form of genuine legal protection.
Third state responsibility and IHL

Despite the clear legal obligations, it is difficult to completely reply on the warring parties to
enforce respect for the rules that they themselves are often breaking. The drafters of the Geneva
Conventions were aware of such a challenge and set out clear third state obligations under
Common Article One of the 1949 Geneva Conventions which provides that all High Contracting
Parties to the Geneva Conventions are responsible to “respect and ensure respect” for the
Convention in all circumstances.
Hence, during times of armed conflict and at other times, all states must take steps to ensure
respect for (and refrain from taking any measure to undermine respect for) these cornerstone
conventions of modern IHL. The nature of this obligation has been summarised by the ICRC as
follows:
Common Article 1 is now generally interpreted as enunciating a responsibility on third States not
involved in an armed conflict to ensure respect for international humanitarian law by the parties
to an armed conflict by means of positive action. Third States have a responsibility, therefore, to
take appropriate steps — unilaterally or collectively— against parties to a conflict who are
violating international humanitarian law, in particular to intervene with states or armed groups
over which they might have some influence to stop the violations.[1]
In addition, when it comes to grave breaches all states shall actively search for war criminals
within their borders - even if the crimes were committed in another country and the criminal is a
non-citizen - and bring them to court or extradite them as soon as possible (Article 146 GCIV,
Article 80 API).
What does the obligation to ‘ensure’ respect actually mean in practical terms?
The European Union Guidelines on Promoting Compliance with International Humanitarian Law
list several measures which can be seen as a means of implementing this obligation. In practical
terms, the international community could consider imposing sanctions in accordance with the
UN Charter. Sanctions can be diplomatic, economic, and as a last resort, could even be of a
military nature. The following are examples of possible practicle steps that could be taken:
Political dialogue;
Demarches;
Restrictive measures including sanctions;
Ensuring no impunity for war crimes.
Other actors who monitor the respect for IHL

There is no supranational police force to intervene and ensure that violators of international law
are punished. The warring parties, protecting powers, and the ICRC as well as international fact
finding and enquiry missions, United Nations Special Procedures, and treaty monitoring bodies
all play a role.
A state involved in an armed conflict is responsible for the conduct of the members of its armed
forces. An officer is responsible for the orders s/he gives to subordinate soldiers, and should see
to it that they abide by the laws of war. A soldier is also responsible for the action s/he takes
under the rules on individual criminal responsibility.
Media
More than ever before, representatives of local and international media are present in and
reporting on conflicts in the world today, often where access of others, such as observers and
human rights groups or officials on monitoring duty, is limited. Independent media outlets play a
crucial role in reporting on and publicising violations. Given that reporting on and monitoring of
violations is a fundamental part of ensuring respect for IHL and international law in general, the
media has a vital role to play in the observance of IHL.
Protecting Power
According to the Geneva Conventions, a so-called Protecting Power can be appointed by the
parties. A Protecting Power is a neutral third state given the task to monitor observance of IHL.
Protecting Powers have not been used often due to the difficulty on the parties to the conflict to
agree on the identity of the two neutral states that will observe the situation on behalf of each
party.
International Committee of the Red Cross (ICRC)
The ICRC has a specific mandate to act in armed conflicts. It has the mandate to visit prisoners
of war (POW) and other detained persons as well as provide medical care and protection for
civilians in armed conflict.
Fact-finding commissions
As stipulated in Article 90 of Additional Protocol One (API), a fact-finding mission can be

appointed to enquire into any allegation of violations of IHL. The UN, EU, or Organization for
Security and Cooperation in Europe (OSCE) can also send different kinds of fact-finding
commissions of their own. For example, in February 2005 an OSCE Minsk Group Fact-Finding
Mission visited the seven occupied regions of Azerbaijan. As of March 2013 the UN Human
Rights Council mandated 13 fact finding missions or commissions of inquiry - each of the twelve
completed missions examined issues of IHL.
[1] IMPROVING COMPLIANCE WITH INTERNATIONAL HUMANITARIAN LAW ICRC

2004

Enforcement of IHL

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Enforcement of IHL

Who is responsible for enforcing respect for IHL?

Obligations of the warring parties

Must all violations of IHL be investigated?

Third state responsibility and IHL

Restrictive measures including sanctions;

Ensuring no impunity for war crimes.

Other actors who monitor the respect for IHL

International Committee of the Red Cross (ICRC)

As stipulated in Article 90 of Additional Protocol One (API), a fact-finding mission can be

[1] IMPROVING COMPLIANCE WITH INTERNATIONAL HUMANITARIAN LAW ICRC

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