Humanitarian Law: The Most Neglected
Lailatul Ferdus: International Humanitarian Law (IHL) combines two ideas of a different nature, namely one is legal and the other is moral. Since, it determines the rights and duties of belligerents in the conduct of operations and limit the choice of means of doing harm. Ironically, during the war most of the time parties don’t follow the principles of IHL and occur grave breach. Thereby, international humanitarian law requires States to seek out and punish any person who has committed a grave breach irrespective of his nationality or the place where the offence was committed to invoke and seek remedy on behalf of the victims of violations.
International humanitarian law can be defined as the principles and rules which regulate hostilities in order to weakened their hardships and it aims at safeguarding military personnel placed ‘hors de combat’ & persons not taking part in hostilities. The Great Sun Tzu, the author of the book named ‘The Art of War’ wrote, “The art of war is of vital importance to the State. It is a matter of life and death, a road either to safety or to ruin.[1] Hence, it is a subject of inquiry which can, on no account, be neglected.” The intrinsic nature of International Humanitarian Law (IHL) is deeply embedded in this particular statement. The inner meaning reveals the need of protection of inhabitants who are going to be affected by that war.[2] It’s the decision which deadly crucial because many lives of innocent people rely upon it. Thereby, the principles of humanity, neutrality, impartiality and independence are called fundamental to humanitarian action and these will help to provide remedies and justice to the victims.
Becoming party to the Geneva Conventions, States undertake to enact any legislation necessary to punish persons guilty of grave breaches of the Conventions and the States are also bound to prosecute in their own courts any person suspected of having committed a grave breach of the Conventions or to hand that person over for judgment to another with a view to invoke justice for the victims of war. In other words, perpetrators of grave breaches who are called war criminals who must be prosecuted at all times and in all places, and States are responsible for ensuring that this is done. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed and as a result prosecution may be brought either by the national courts of the different States or by an international authority.[3] In this connection, the International Criminal Tribunals for the former Yugoslavia and Rwanda were set up by the UN Security Council in 1993 and 1994, respectively, to try those accused of war crimes committed during the conflicts in those countries.[4]
States party to the 1949 Geneva Conventions are obliged to suppress all acts contrary to the provisions of those instruments and to repress any grave breaches which are considered as war crimes. For determining the breaches properly, a number of these breaches are listed in the four Conventions & more are found in 1977 Additional Protocol l. Moreover, the repression of breaches is also considered one of the emergency measures which must be taken in situations where international humanitarian law is violated on a massive scale.
This process is a bit difficult in IHL because the international legal system is decentralized which based on the notion of the sovereign equality of States and no State may interfere in the internal affairs of another sovereign state.[5] There is no central authority for enforcement alike domestic legal system have police forces, courts and governments. Fortunately, there are some existing IHL forum which are working to protect the victims such as International Committee of the Red Cross (ICRC), International Federation of the Red Cross and Red Crescent Societies, International Rescue Committee (IRC), The Office of the United Nations High Commissioner for Human Rights (OHCHR), Directory of UN Resources on Gender and Women’s Issues: Women and Armed Conflict etc. Hence, victims of violations enjoy rights under IHL though their rights appear to be hardly justiciable and difficult to transform into a right to a remedy or reparation. Because with a few expectations, implementation and enforcement of IHL is voluntary as well as there are no obligatory means for the arrangement of disputes. There are some implementation measures which encompass prevention & repression, include: the enquiry procedure; the International Fact-Finding Commission; the examination procedures concerning the application and interpretation of legal provisions; cooperation with the United Nations. These are part of the process to invoke justice for victims of violations.
Additional Protocol I of 1977 contains one short article entitled “Responsibility” (Article 91) which specifies that a party to the conflict which violates the provisions of the 1949 Geneva Conventions or of Protocol I shall, if the case demands, be liable to pay compensation.[6] It shall also be responsible for all acts committed by persons forming part of its armed forces. This article confirms a rule which is today accepted as being part of customary law. It was already stated in almost identical terms in Article 3 of the Hague Convention No IV of 1907. Moreover, an article common to the four Geneva Conventions emphasizes that no High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred as a result of the commission of grave breaches of the Conventions. This provision entails first of all criminal responsibility, but it also implies that, irrespective of the outcome of an armed conflict, no decision or agreement can dispense a State from the responsibility to make reparation for damages caused to the victims of breaches of international humanitarian law or to pay compensation for those damages.[7]
This responsibility applies first of all in the context of relations among States. It has acquired a new dimension with the reaffirmation & development of the rules governing the conduct of hostilities. A State which has laid mines indiscriminately, or which has caused other unlawful damage to the environment, for example, is under the obligation to make reparation specifically by carrying out mine-clearing operations or pay compensation.[8]
“A right without a remedy is no right at all” as pointed out by Lord Denning in Gouriet v. Union of Post Office Workers, AC, 1978. The relevance of rights under IHL is questionable if victims have no legal capacity to enforce their rights, before either a national or an international tribunal. It’s known, humanitarian law treaties do not expressly contemplate causes of action for victims in national or international law, as a result they are hardly able to exercise their rights. While the punishment of individuals for war crimes has received much greater attention over the past decade, the position of the victims of these crimes has not been equally addressed as well as their rights and interests have largely been overlooked. Yet restitution and reparation for victims of violations of IHL is an imperative demand of justice.
In practice there are cases in which the victims of breaches of international humanitarian law have obtained compensation. Nevertheless, the vast majority of victims do not receive the compensation to which they are entitled. Lastly, to understand the importance of International Humanitarian Law in protecting war victims, invoking justice for them and in seeking compensation, we can look at what Henrietta Newton Martin wrote in his book named “Rudiments of International Humanitarian Law”, “International Humanitarian Law is burgeoning as an important system of justice and has gained momentum in the recent past with its activists across the globe.” Besides, half a loaf is better than none at all.
Writer is Legal Consultant and Apprentice Lawyer, Dhaka Judge Court.
Foot Notes
[1] https://www.marxists.org/reference/archive/sun-tzu/works/art-of-war/ch01.htm accessed in 15 June 2021
[2] Evnat Bhuiya, “Depicting the Essence of ‘The Art of War’ in International Humanitarian Law” Published 2 December 2019 http://lawyersclubbangladesh.com/en/2019/12/02/depicting-the-essence-of-the-art-of-war-in-international-humanitarian-law/ accessed in 15 June 2021
[3] Google Books https://books.google.com/books?id=Qs_fDgAAQBAJhttps://books.google.com/books?id=Qs_fDgAAQBAJ accessed in 13 June 2021
[4] “An Introduction to International Humanitarian Law, focused on International Criminal law,” Published on 17 November 2015 https://www.slideshare.net/bhagya913/international-humanitarian-law-ihl accessed in 13 June 2021
[5] Article 2(7) Chapter 1 of UN Charter
[6] “Protection of war victims” ICRC https://casebook.icrc.org/case-study/icrc-protection-war-victims accessed in 13 June 2021
[7] “State Responsibility” Published By SRD Law Notes https://www.srdlawnotes.com/2017/11/state-responsibility-kinds-of-state.html accessed in 14 June 2021
[8] “Practice Relating to Rule 150. Reparation” ICRC https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule150_sectionb accessed in 14 June 2021
