Implementation of Law of Armed Conflict Obligations

IMPLEMENTATION OF LAW OF ARMED CONFLICT OBLIGATIONS

Lecture 9 October 2008 by Arne Willy Dahl

1. Introduction

All existing states have ratified the four Geneva Conventions of 1949, and most states have ratified a number of other treaties regarding the Law of Armed Conflict, such as the Additional Protocols of 1977, The Conventional Weapons Convention of 1980 and many other instruments. In ratifying these treaties, states undertake certain obligations in case of war. It is, however, easy to forget that in order to fulfil these obligations, certain steps should be taken in peacetime.

Let me give you two examples from additional Protocol 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

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.

These provisions do not execute themselves. With regard to the first, legal advisers have to be identified, trained and made available to the armed forces. Regulations have to be given with regard to status, rank, position in the military staffs and how they should interact in the military decision-making process.

With regard to the second, legislation has to be enacted, making it a military duty for military commanders to take the necessary steps to prevent, suppress and report breaches of the relevant Conventions.

2. Positive and Negative Aspects

The two above mentioned provisions elucidate the positive and the negative aspect of implementation. The positive aspect is to make preparations that make it possible to comply with the requirements of the conventions. The negative aspect is to prepare sanctions against those who disregard the obligations of the Law of Armed Conflict.

Positive Aspect Elements:

Translation of the conventions to national language(s)

Dissemination and training

Providing experts and advisers

Identification of cultural property, civil defence works and installations containing dangerous forces

Military planning with regard to separation of potential military objectives from civil population

Negative Aspect Elements:

Legislation on punishment of crimes

Legislation on protection of the emblems

Assigning and training investigators and prosecutors

Recent steps taken in Norway

•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 trial for war crimes since the trials immediately following WW II is presently before the district court of Oslo.

2.1 Translation of the conventions to national language(s)

In order to present a treaty before the national parliament or some other relevant body for authorization of ratification, the texts of the treaty will have to be translated to the official language, or languages, if there are more than one. In some countries, there are, however, additional languages that do not have official status. There are even still some peoples that lack a written language, their language does only exist in oral form.

Without taking any position on how far one should go with regard to translate the conventions to various minor languages, the advise must, however, be that national authorities must give the matter some thought, as one can not expect that persons who might not be able to read the conventions, should follow their provisions, or avail themselves of the rights the conventions confer upon them.

The Norwegian Red Cross Society issued in 2006 an updated translation into Norwegian of the 1949 Geneva Conventions and the 1977 Additional Protocols.

2.2 Dissemination and training

Dissemination is more than merely to make translations available. Dissemination entails teaching principles and main rules to soldiers, officers and civilians. Each group must be made aware of the rules relevant for their activities, at the appropriate level. Private soldiers need to know how to handle prisoners on the battlefield, officers how protect civilian when making targeting decisions. Some will have to know how to run Prisoner of War camps, while others must know the law of occupation. The relevant rules have to be worked into the appropriate military manuals.

In Norway, the Norwegian Red Cross society cooperates with the Ministry of Defence with regard to providing training for military personnel.

2.3 Providing experts and advisers

Military commanders will need advise from experts in the Law of Armed Conflict when making certain decisions. These experts cannot be improvised by enlisting some lawyer off the street, having him hanging around in the headquarters until a legal question comes up. The Law of Armed Conflict is a specialized branch of the Law, which has to be studied in beforehand. The legal adviser should also have good understanding of military operations, in order to give sound advise. For this reason, it has to be considered whether such advisers should be officers trained in the Law of Armed Conflict, or jurists that are given some military training.

In any case, it has to be decided at which levels such advisers should be found, where their proper place in the staff should be, and how they should work. Many commanders have found that they need to have the legal adviser close at hand, and that the legal adviser should be available for all staff sections, including personnel, intelligence, operations, logistics, communications and the civil-military co-operation cell (CIMIC). The function of the legal adviser should be integrated in the work of the staffs also in peacetime, not only when the staff is put on a war footing.

2.4 Military planning

War plans, particularly defensive ones, are made in peacetime. Where will defensive positions be established? Will these be separated from civil built-up areas? If not, are there plans to evacuate the civilian population. Is there a civil defence organisation tasked with protecting the civilian population in cases where it is not feasible to separate potential military objectives such as railway marshalling yards, harbour areas, militarily important industry etc. in cities, from residential areas.

2.5 Identification of cultural property, civil defence works and installations containing dangerous forces

These objects should be marked with the appropriate distinctive signs under AP I. The objects have to be identified in peacetime and the signs applied, or at least prepared. The military planners should be made aware of the location of such objects.

2.6 Legislation on punishment of crimes

Parties to the Geneva Conventions and other relevant treaties have an obligation to ensure respect for the rules and to make breaches punishable in their national legislation. The enactment of appropriate penal legislation is particularly important with regard to “grave breaches” that can be found enumerated in the 1949 Geneva Conventions, the 1977 Additional Protocol I and the 1999 Second Protocol to the 1954 Hague Convention on protection of cultural property in armed conflict. Such grave breaches are regarded as war crimes, and entail universal jurisdiction. This means that they can be punished in any state party to the relevant treaty, no matter where the crime is perpetrated or the nationality of the perpetrator.

The establishment of the International Criminal Court (ICC) has provided an important impetus for legislation, which extends beyond war crimes to genocide and crimes against humanity. It extends also beyond treaty law, including crimes based on customary law that are included into the 1998 Rome Statute of the ICC.

States party to the ICC statute, have an indirect obligation to legislate in accordance with the statute, in order to pre-empt a possible embarrassing situation having to surrender a person to the ICC because it is found that the state is found to be “unable genuinely to carry out the investigation or prosecution”. Norway found itself in a comparable situation in the summer of 2006, as the Appeals Chamber of the Rwanda Tribunal found that Norway does not have the required legislation to carry out prosecution of a genocide case.

The ICC statute does, however, only cover universally accepted provisions with regard to war crimes. In addition to these crimes, states may be bound by treaty obligations, which should also be covered by their penal legislation.

The Rwanda incident in 2006 spurred legislative activity, as penal provisions have been enacted in 2008, covering the ICC crimes + Norwegian IHL obligations. The provisions are inspired by the German 2002 Code of Crimes against International Law. These supplement previous, less specific, provisions. Investigation and prosecution units were established in 2005/2006.

It is also known that the Government of Finland has presented a bill on these crimes, while the Swedes have so far prepared a draft.

In addition to war crimes, there should also be provisions in the disciplinary regulations of the armed forces, in order to prohibit and punish lesser violations of the LOAC, not necessarily treating all such transgressions as criminal offences.

2.7 Legislation on protection of the emblems

It has to be laid down in national legislation who can lawfully use the protective emblem of the Red Cross and other relevant emblems, authorizing the police or some other agency to put a stop to any misuse.

2.8 Assigning and training investigators and prosecutors

Great or small powers that have well-developed armed forces and are more or less frequently involved in military operations, do usually also have a well-developed JAG branch, which is equipped to investigate and prosecute violations of the LOAC. Several countries have, however, experienced that there could be war criminals on their soil who do not belong to their armed forces, but are immigrants, refugees or asylum seekers from a conflict area.

If such cases are not to be prosecuted by the military lawyers, someone else will have to do that. Canada and The Netherlands has been active in this field for some years, and more recently Denmark, Germany and Norway have joined, by establishing specialized units for such cases. In Norway the investigation unit is since the beginning of 2005 in the Central Criminal Investigation Agency (KRIPOS), and the prosecution is since August 1 2005 under the office of the National prosecutor for organized and other serious criminality.

The first trial for war crimes since the trials immediately following WW II is presently before the district court of Oslo.

3. International measures for enforcement

The international society resembles traditional as they were before strong central governments emerged. It was said about the Norwegian society in Viking times (about 1000 A.D.) that each man carried his rights on his spearhead. Although central bodies for enforcement are lacking or imperfect, this is not to say that the rules are without significance. On the other hand, there must not be excessive expectations with regard to law-abidingness.

Mechanisms for enforcement can be penal, non-penal or non-judicial.

Non-judicial

Among the non-judicial mechanisms, we find

• Reprisals/expectations of reciprocity

• Monitoring – protecting power/ICRC

• Fact-finding commission

• Public exposure

• Diplomacy/intervention by the UN SC

In order to resolve disputes about who was at fault, and thereby promoting compliance, a permanent international investigation commission ("International Fact-Finding Commission") was established with the statutory basis in the First Protocol to the Geneva Conventions Art. 90. As per October 2006, 69 states had accepted the Commission’s competence to investigate accusations by another party. The Commission has not received any assignments up to now

Non-penal

Non-penal mechanisms include

• Reparations, for instance after a war, as an element in a peace settlement.

• Recourse to the ICJ – International Court of Justice to obtain reparations or other judicial decisions.

• Lawsuits before national courts to obtain reparations. Van Anraat case in the Netherlands.

Penal enforcement

Penal enforcement is, at the outset, a national responsibility. With regard to war crimes, it has international implications in the sense that 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). Furthermore, for ”international crimes”, third countries have a right and an obligation to prosecute or extradite.

3.1 International penal enforcement

International efforts with regard to penal enforcement, have been centered on three “core crimes”. These are:

• Genocide – certain criminal acts committed with the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Convention 1948.

• Crimes against humanity, which 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, generally speaking grave breaches against the Laws and Customs of War.

The crime of aggression was included in the first major international effort – the Nuremberg trials, but has, due to the political implications of a trial for the crime of aggression, been relegated to the background, at least for the time being.

3.1.1 Nuremberg 1945

At the Nuremberg trial, the tribunal had according article 6 of the charter jurisdiction over the following crimes:

(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing

(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, illtreatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

3.1.2 ICTY 1992

The ICTY was established by a UN Security Council resolution, in order to maintain international peace and stability. Under its statute, the International Criminal Tribunal for the former Yugoslavia, has been given jurisdiction over:

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)

The “grave breaches” are those enumerated in the Geneva conventions, for instance in art. 130 of the third convention on prisoners of war, which reads:

“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.“

As mentioned above, the ICTY has under article 3 of its statute, the power to prosecute violations of the “laws or customs of war”. Under the statute, 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.

The conflict in Yugoslavia was a mix of international and non-international armed conflict. The Law of Armed Conflict is mainly written with international armed conflict in mind. The tribunal had therefore to decide whether some or all of these rules were applicable in non-international armed conflict, too.

With regard to the “laws and customs of war” under article 3 of the ICTY statute, the tribunal concluded that there was no reason to differentiate between international and non-international armed conflict.

With regard to the lists of grave breaches in the 1949 Geneva Conventions, the tribunal, however, concluded that these were not applicable as crimes in non-international armed conflict. But what if a particular act was in breach of common article 3, which relates precisely to non-international armed conflict?

The common article 3 prohibits:

(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

The question was whether this provision gives rise to penal liability. The tribunal found a way around this question in article 3 of their own statute, where it says that violations of the laws and customs of war shall include, but not be limited to a list of certain acts. They found in other words that they were free to add acts prohibited in common article 3 to the list, thereby making them punishable.

3.1.3 Grave breaches in the Additional Protocols

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, which were not included in the statute of the ICTY.

The list is found in article 85. It is long, and I shall only show you the beginning of it.

(a) making the civilian population or individual civilians the object of attack