IMPLEMENTATION OF LAW OF ARMED CONFLICT OBLIGATIONS

1
IMPLEMENTATION OF LAW OF ARMED CONFLICT
OBLIGATIONS

• Lecture 18 October 2007 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
• Providing experts and advisers
• 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
Mechanisms for international enforcement

• Penal
• Non-penal
• Non-judicial

7
Non-judicial enforcement

• Reprisals/expectations of reciprocity
• Monitoring protecting power/ICRC
• Fact-finding commission
• Public exposure
• Diplomacy/intervention by the UN SC

8
Non-penal judicial enforcement

• Reparations as a part of a peace settlement
• ICJ International Court of Justice
• Lawsuits before national courts

9
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.

10
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

11
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.

12
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)

13
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.

14
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.

15
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 b reaches of common article 3 give rise to
  penal liability? Yes.

16
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.

17
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.

18
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)

19
ICC 1998

• Statute adopted by treaty 17 July1998. In force
  1st of July 2002. 102 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 aggresion
• 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

20
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.

21
Other international efforts

• Hybrid courts for Sierra Leone, East Timor,
  Cambodia, Bosnia-Hercegovina
• Internationally inspired national efforts in
  Indonesia and Iraq

22
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 conclict (paragraph 2
  (c) and (e)).

23
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.

24
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

25
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.
• .

26
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.

27
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.

28
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

29
End of lecture

• Thank you for your attention
• Any more questions?