Measures in times of war

In time of war, the need to respect and ensure respect for IHL is obviously paramount.
This principle is expressed in the Geneva Conventions in Common Article 1.
Common Article 1 provides that parties to the Convention ‘undertake to respect and to
ensure respect for the present Convention in all circumstances.’ According to this
principle, it is the responsibility of both the affected State, and all States parties to the
Convention, to ensure that breaches of the Convention are halted. What this means in
practice is less clear, but generally speaking, under Common Article 1, any State
injured by a violation of IHL can take all measures permissible under international
law generally, and IHL specifically, to ensure respect for IHL.

Protecting Powers

More practical means of ensuring respect for the rules of IHL can be found in recourse
to what are known as the Protecting Powers. The concept of ‘protecting powers’ is
borrowed from international diplomatic law. Under international diplomatic law,
foreigners abroad enjoy diplomatic protection by their State. However, when such
diplomatic protection does not exist, due, for instance, to diplomatic relations being
severed between States, States may choose to appoint a third State to act as a
protecting power. This third State then operates to protect the interests of the State and
its nationals. For a protecting power to be appointed, all three States must agree to
cooperate in such a manner. In IHL, Protecting Powers are thus neutral States who
agree to look after the interests of the parties to the conflict, where diplomatic
relations have broken down due to the conflict. The Conventions therefore contain
numerous provisions that make reference to Protecting Powers, including tasks such
as visits to protected persons in detention; supervision of relief missions or
evacuations; and assistance in judicial proceedings against protected persons.

CASE STUDY: CHARLES TAYLOR

Charles Taylor was President of Liberia from 1997 to 2003. Taylor was indicted by
the Special Court for Sierra Leone in 2003 on 11 charges of war crimes, allegedly
committed between 1996 and 2002, during the Sierra Leone civil war. The crimes
included murder, rape, sexual slavery, enslavement, mutilation, and recruiting and
using child soldiers. It was this last charge regarding child soldiers that formed the
basis of the charges before the Special Court, which heard Taylor’s case in The
Hague, rather than the Liberian capital, Monrovia. It was claimed that Taylor
supported rebel groups in nearby Sierra Leone, as part of a plan to control the
diamond fields located in that country.

Taylor was arrested after resigning as President, following a period of exile in Nigeria.
He was extradited to The Hague in 2006, as it was thought that holding the trial in
Liberia could be politically destabilising for the country, especially as Taylor still held
support in certain parts of the country. Taylor pleaded not guilty to all charges,
claiming he was actually the peace-keeper during the civil war; he also denied having
received any so-called ‘blood diamonds’ from Sierra Leonean rebels. Taylor took that
stand in his own defense, with his testimony lasting nearly seven months. The trial
concluded in 2011, with judgment handed down in May 2012. Taylor was found
guilty on all 11 charges and was sentenced to 50 years in prison.

The Role of the ICRC

In addition to having Protecting Powers, the International Committee of the Red Cross
plays an important role in the observance and respect for IHL. In time of armed
conflict, the ICRC serves as a neutral independent body, working with all parties to
the conflict to help all victims of armed conflict. Their work involves numerous tasks,
such as visits to persons in detention (both in international and non-international
armed conflicts). During visits, interviews are conducted to check on the conditions of
detention, and to ensure the well-being of detainees. The interviews are conducted
without witnesses and the detaining power is not permitted to discover what has been
said by detainees. If the ICRC finds that detention facilities are not maintained to the
standard required by the Conventions, the ICRC will approach the State in question,
confidentially and without revealing information regarding sources, and work with the
State to improve the detention facilities and the condition of the detainees. Only rarely
will the ICRC ‘go public’ with their concerns regarding the acts of States in armed
conflict, preferring instead to rely on confidential negotiations with States.

The ICRC also undertakes the provision of relief supplies and medical assistance to
victims of armed conflicts. The ICRC also serves as a neutral and independent
repository of information on persons affected by armed conflict – specifically the
missing, sick, wounded, shipwrecked, detained or imprisoned. The ICRC operates a
tracing service for people to attempt to find their loved ones, and to keep track of
persons caught up in conflict zones. The ICRC’s humanitarian initiatives vary
according to the type of armed conflict. In international armed conflicts, the ICRC has
a guaranteed right to provide humanitarian assistance to States; under Article 81 of
Protocol I, States are obliged to accept the assistance of the ICRC. However, in non-
international armed conflicts, the ICRC has no such guaranteed right; it may only
offer such services, with States under no obligation to accept the offer.

The International Fact-Finding Commission

Another avenue for ensuring respect for IHL is the International Humanitarian Fact-
Finding Commission. The Commission was created pursuant to Article 90 of Protocol
I, and was officially constituted in 1991. The Commission is a permanent international
body tasked with investigating allegations of grave breaches and other serious
violations of IHL. Seventy-two States have accepted the competence of the
Commission, which comprises 15 individuals elected by States. As of April 2012, the
Commission is yet to be called on.

CASE STUDY: RADOVAN KARADŽIĆ

Radovan Karadžić was a Bosnian Serb political leader, who was President of
Republika Srpska during the break-up of the Former Yugoslavia in the 1990s. In
1995, Karadžić held the dual positions of Supreme Commander of the Bosnian Serb
armed forces and President of the National Security Council of the Republika Srpska.
It was during this time that Karadžić allegedly committed a number of crimes,
amounting to acts of genocide, crimes against humanity, and war crimes. As Supreme
Commander of the Bosnian Serb armed forces, Karadić allegedly ordered the so-
called Siege of Sarajevo and the Srebrenica massacre, resulting in the deaths of over
8000 Bosnian Muslim men and boys. Karadžić also allegedly ordered UN personnel
be taken hostage.

Karadžić was indicted by the ICTY in 1995 but evaded capture for over a decade.
During his fugitive years, Karadžić worked as a psychologist and alternative medical
practitioner in Belgrade under a pseudonym. Karadžić was eventually arrested in
Belgrade in 2008, and transferred to the ICTY for trial. Karadžić initially refused to
cooperate with the ICTY, but eventually appeared before the Tribunal, making his
opening statement in March 2010. The Prosecution opened its case in April 2010 and
rested in May 2012; the Defence is scheduled to open its case in October 2012.
Karadžić’s case is one of the few remaining cases the ICTY is hearing, having already
prosecuted over 60 cases.

Accountability Mechanisms

With regards to holding States and individuals accountable for their breaches of IHL,
there are two mechanisms for this; the rules on State responsibility (for State
accountability) and international criminal law (for individual accountability). The
rules on State responsibility contain some provisions relevant to IHL, namely that a
State is strictly responsible for all acts committed by members of its armed forces.
Reprisals against protected persons and goods, as well as the civilian population, are
prohibited. States may not renounce or waive the rights of protected persons, and
generally, speaking, claims or necessity or self-defence are not allowable as
circumstances precluding the wrongfulness of any IHL violations. Under the law of
State responsibility, there is a general obligation to pay compensation.

The situation with regards to individual responsibility is equally complex. Certain

violations of IHL are known as war crimes. War crimes include, but are not limited
to, what are known as grave breaches – those violations of the Geneva Conventions
that are considered especially egregious and are considered to be of such ‘gravity and
magnitude that they warrant their universal prosecution and repression.’ (Attorney
General of Israel v. Eichmann [1961], 36 ILR 18, 50 (1968) (District Court of
Jerusalem); affirmed in Attorney General of Israel v. Eichmann [1962], 36 ILR 277,
282-83 (1968) (Supreme Court of Israel)). Grave breaches are crimes committed
against those persons and objects designated by the Conventions as specially
protected. These include persons hors de combat, the wounded, sick or shipwrecked,
prisoners of war, and civilians subject to the territorial control of the Detaining Power
or under the belligerent occupation of an occupying power (See further Articles
50/51/130/147 of the four Geneva Conventions, respectively, and Article 85 of
Additional Protocol I). Objects protected under the Conventions include medical
transports and medical units, non-defended localities and demilitarised zones, and
objects of cultural, historical or spiritual importance (See, for example, Article 85 of
Protocol I). Such offences are perceived as attacks on the international order.

International criminal law also criminalises categories of acts known as crimes

against humanity and genocide. Crimes against humanity are understood as crimes
committed systematically, in accordance with an agreed plan, by either a State or
organised group. The idea of crimes against humanity emerged from the criminal
tribunals convened after the Second World War and have evolved to be part of
customary international law. It is now generally understood that a crime against
humanity can be committed during time of peace as well as in war time – a connection
to armed conflict is no longer a necessary part. Additionally, genocide has been
criminalised under international law, understood as acts such as killing members of a
group; causing serious bodily harm to members of the group; deliberately inflicting on
the group conditions of life calculated to bring about its physical destruction in whole
or in part; imposing measures intended to prevent births within the group; and/or
forcibly transferring children of the group to another group; with the intent of
annihilating the group altogether. Like crimes against humanity, a connection to an
armed conflict is no longer necessary for acts of genocide to be made out.

Due to the importance placed on repressing grave breaches, IHL compels parties to
the Conventions to enact legislation to punish such breaches, to search for persons
alleged to have committed such breaches, and to either bring such persons before
one’s own State courts, or else extradite them to another State for prosecution. This is
the principle of universal jurisdiction, which allows any State to bring to trial a
person or persons accused of committing certain crimes against international law,
regardless of the location of commission of the crime, or the nationality of the victim
or perpetrator. By implementing a system of universal jurisdiction, the hope was that
such crimes would not go unpunished, should the State ‘harbouring’ the accused be
unwilling or unable to prosecute the accused. Therefore, under Articles 50/51/130/147
(Of Conventions I, II, III, and IV respectively. See also Article 85 of Protocol I), a
State is obliged to punish grave breaches of the Conventions, even if the State is not a
party to the Conventions, the offender(s) or victim(s) is not that State’s national, and
the offence is committed outside that State’s territorial jurisdiction (GCI, Art. 49;
GCII, Art. 50; GCIII, Art. 129; GCIV, Art. 146). Furthermore, if a State is unwilling
to prosecute an offender within its territory, it is obliged to hand over the alleged
offender to any Party to the Convention who can make out a prima facie case (GCI,
Art. 49; GCII, Art. 50; GCIII, Art. 129; GCIV, Art. 146).

While the Conventions and Protocols do not provide for the concept of war crimes or
grave breaches in non-international armed conflicts, customary international law has
developed over the last few years to acknowledge that violations of Common Article 3
and some violations of Protocol II do indeed amount to war crimes – the Rome Statute
of the International Criminal Court (ICC) includes non-international armed conflicts
within its ambit, making violations of Common Article 3 of the Geneva Conventions
and Protocol II a war crime. (For instance, Art. 8(2)(c)-(f), Rome Statute of the
International Criminal Court, 2187 UNTS 90 (1998); see generally the UN Diplomatic
Conference of Plenipotentiaries on the Establishment of a International Criminal
Court, Rome, Italy, June 15-July 17 1998; UN Doc. A/CONF.183/9 (1998).

The proliferation of international criminal courts and tribunals has contributed

significantly to ensuring better adherence to the laws of armed conflict. IHL is no
longer seen as a law with no means of enforcement or accountability, but rather as a
dynamic source of obligations for both States and individuals in their conduct in
armed conflicts, both international and non-international