When I think of International Humanitarian Law, the first question that crosses my mind is whether International Humanitarian Law is really law? This is because it seems very absurd to regulate an armed conflict with law. But over the past weeks I have learned enough about International Humanitarian Law to appreciate its role and found out that I was so wrong.
Ask me what made me think International Humanitarian Law is absurd. I would tell you simply, it is because it lacks remedy which is the enforcement and implementation of International Humanitarian Law.The duty to enforce International Humanitarian Law primarily lies on States who are obliged to respect and to ensure respect for International Humanitarian Law in all circumstances. States are to look for and prosecute perpetrators of serious International Humanitarian Law violations. Other bodies that ensure International Humanitarian Law is enforced are The United Nations and Non-Governmental Organizations namely The Red Cross.
Mechanisms that were put to place to ensure enforcement of International Humanitarian Law have fallen out of use. This is because its provisions are limited to regulate the conduct of hostilities and also because of the changing nature of conflict. This is what this paper seeks to address. It examines the challenges facing International Humanitarian Law enforcement in armed conflict management. THE CHANGING NATURE OF WARThis is a principal challenge facing the Law Of Wars because it is a threat to the conduct of hostilities.I would not refer it as a perception as Professor Dinstein puts it, but as the reality of the challenge International Humanitarian Law facing on the development of the means and methods of warfare.Many wars that have been fought are more of intra-state conflicts or civil wars, fought by groups within the state, than of an inter-state conflicts, fought between states.Many of these modern wars do not have an international character, this is because they are a result of internal armed conflicts, which do not apply the rules of the Law of Armed Conflict.
The capacity of International Humanitarian Law to respond to these new threats has received attention and has led to the emergence of Non-International Armed Conflict.The real picture of civil wars is covered with much bloodshed and cruelty. It is caused by intense disorder in the international society where various groups arise in the name of nationalism seeking to restore the lost glory of their states prestige. In these the civilians are the most affected because they become targets of the rebel groups;they are forced to leave their homes,their property are destroyed and are subjected to extreme violence plus indiscriminate attacks. In the New Wars Thesis, as proposed by Mary Kaldor one of the main proponents,New Wars present a new version of new actors who are non-state actors who do not adhere to jus in bello as opposed to state actors in Old Wars. Non- State armed groups might also deny the applicability of IHL on the grounds that it is a body of law created by States and that they cannot be bound by obligations ratified by the government against whom they are fighting.
In such cases, the law will seldom be a relevant frame. (Michael Reisman & Chris T. Antoniou, 1994.pp 294)A notable feature of New Wars is their longevity which is because some individuals,co-oporations or states are benefiting from these wars by gaining politically and financially.
This further continues with the goal of going to war, in the New Wars the aim it is to claim power by a particular group , this is identity politics, unlike in Old Wars which is Geo-politics which is to expand their territory. This is what changes the characteristic of war,competition and struggle among an array of non-state actors provokes conflicts that states are unable to contain.Old Wars were fought in battles using decisive encounter methods to capture territory, New Wars have no battles and capture territory using political means by controlling a population. The main financiers of Old Wars was the state using taxes or by borrowing money and was highly centralized unlike in New Wars which is predatory private individuals who have succeeded in funding expenses for the use of violence. Examples of non-international armed conflict that have been witnessed in the past decade include that of the Syrian Civil War which was characterized by the use of gas(chemical)attacks and air strikes on civilians caught up in the crossroads of major super power battlegrounds in the cities of Aleppo,Palmyra and Idlib Village.(BBC News) The setback of Syria’s Civil War is the lack of protection from attack of civilian and civilian objects. The conflict in Somali presents what seems to fit the New Wars Model.
It is characterized by a long civil war(3 decades) where the opposition overthrew the authoritative government of General Siad Barre in the mid 1980s. Then over the years, in the opposition emerged new players who divided it into clan lines with each one of them wanting to control their own population(capture territory) The neighboring Ethiopia is also seen to support some of the rebel groups. The biggest casualties for the civil war in Somalia are the ordinary civilians who have been killed or ended up in Kakuma Refugee Camp in neighboring Kenya. The identity politics game that is played in this region is that of the establishment of an Islamic State.(Bruce Pilbeam,2015.
pp 107) STATES AND THE INTERNATIONAL CRIMINAL COURT (ICC) HAVE FAILED TO PROSECUTE AND PUNISH WAR CRIMINALS WITHIN NATIONAL AND INTERNATIONAL JURISDICTION Enforcement of IHL depends on the goodwill of states. Under the Geneva Convention Treaties states are obliged to abide by the rules governing the conduct of hostilities and to provide for mutual assistance with regard to criminal investigations. In most cases, it has proved difficult to establish which party proves a just cause which translates to why parties to a conflict deny the applicability of IHL. Provisions of National Jurisdiction in prosecuting a criminal for gross violations of human rights have become a dead letter. Many states have disregarded the dictates of this law and have not complied to them.
States have shied away from International Criminal Tribunals because they intrude one of the most sensitive areas , State Sovereignty. States are reluctant to prosecute its own personnel when it comes to the winning side or the enemy personnel because it risks exposing crimes committed by the state’s own personnel.In most cases if the conflict was motivated by politics,political leaders may want to settle disputes off the books (non-judicial systems) by choosing reconciliation (Antonio Cassese,1998.pp 5)This is evident in the case of Israel and Palestine in the 2014 Gaza War Crimes, where Israel is accused by the Amnesty International Report ,for War Crimes following the capture of a soldier by Hamas. Israel has failed to co-operate with the UN in probing allegations of war crimes and says it has been unfairly targeted by the UN by been subjected to regular reviews by the International Body. The State of Palestine has failed to conduct investigations on the allegations of International War Crimes.Israel has accused Palestine of firing missiles into civilian populations during the 50 day conflict in Gaza. Both Israel and Palestine authorities have failed to ensure that the victims who are mostly the ordinary civilians have access to justice and reparations.
Other states which did not participate in the conduct of hostilities have unwillingly provided for the prosecution of offenders because of the mutual suspicion and distrust for the Western states , with interference in their domestic affairs. War criminals may end up in their doorsteps ,but they may not comply on extradition because of political and diplomatic considerations. States prefer amnesty to prosecution which fails to maintain the peremptory norm of IHL.This non-compliance attitude by these states have proved a much bigger challenge in the implementation of IHL.
This ignorance of the law impedes efforts to increase respect for IHL and to regulate the behavior of the parties to conflicts.In the case of the International Criminal Court, they have no police force and has placed reliance on the member states co-operation to arrest any war criminals which has proved difficult for the ICC when states fail to arrest indicted individuals.In this case some of the individuals with arrest warrants, would dodge any one willing to put them behind bars.My thought on why the court has not been able prosecute all atrocities is due to lack of sufficient evidence , because they lack social legitimacy. A successful case requires support from everyone.
Most victims who have participated in these cases ended up dead. The International Criminal Court is said to be unfair because of the ten cases they have dealt with nine involve African countries. Numbers don’t lie,this is a clear indication that the legitimacy of the court is questionable. With the notable absence of the United States of America as a member state of the International Criminal Court presents a paradox on being the largest financier.