IRIN Web Special on Civilian Protection in Armed Conflict

The need for implementation of IHL

Advocates of IHL emphasise the central importance for its implementation - and, therefore, for the protection of civilians - of the role of individual states.

The way forward lies in states adopting, ratifying and codifying in national laws the various conventions and protocols on the law of armed conflict, and assuring its implementation on the ground.

Just as national governments have the primary responsibility to assure the safety and protection of their civilians, in times of peace or violent conflict, so national courts have a clear obligation to bring to court those accused of grave breaches of international humanitarian law and national laws based upon it, according to the ICRC.

But while the application of IHL is primarily the responsibility of states and other parties to armed conflict, other states are also bound by the Geneva Conventions "to respect and ensure respect for those rules in all circumstances".

This implies "that we must prosecute those who break these laws," says Gnaedinger, because to ignore the crime is to deny justice to the victims of war crimes, crimes against humanity and other atrocities.

In June 2001, for instance, a jury of the Brussels 'Cour d'Assises' [Crown Court] in Belgium declared four Rwandans guilty or partially guilty of war crimes committed during the 1994 genocide.

But with states frequently failing to protect civilians as called for under IHL, or to bring perpetrators of war crimes and crimes against humanity to justice, there has been a growing trend of internationalising individual responsibility for certain heinous crimes.

The International Criminal Court (ICC)

In 1998, the Rome Statute on the International Criminal Court paved the way for the establishment of a permanent court capable of prosecuting individuals allegedly responsible for serious breaches of IHL - and with jurisdiction over crimes regardless of when or where they were committed.

Rights and justice campaigners have emphasised the importance of the ICC:

• To help achieve justice for all, by filling a gap in the international legal system by dealing with individual responsibility as an enforcement mechanism.
• To end impunity by establishing the principle of individual criminal accountability for all who commit crimes against international law as a cornerstone of international criminal law.
• To help end conflicts, since violence often begets further violence, by providing the deterrent that at least some perpetrators of war crimes or genocide may be brought to justice
• To remedy the deficiencies of ad hoc tribunals, which immediately raise the questions of 'selective justice', by establishing a permanent court that can operate in a more consistent way and regardless of the time and place in which atrocities occurred.
• To take over when national criminal justice institutions are unwilling or unable to act since, especially in times of violent conflict, institutions may have collapsed or national judicial systems lack the political will to pursue their own citizens.
• To deter future war criminals by establishing more clearly that atrocities will not go unpunished.

The UN High Commissioner for Human Rights, Sergio Vieira de Mello, hailed the inauguration of the ICC on 11 March as an historic "reaffirmation of our commitment to human rights, fundamental freedoms and justice." He stressed, however, that only 89 countries had ratified the Rome Statute establishing the court - which, he said, was "far from universality" - and that wider acceptance of its jurisdiction will be necessary to make the Court truly effective.

"The creation of the ICC represents a major step forward in an environment hitherto characterised by impunity, but a step that will only bear fruit if national legislation and actions become truly complementary to those of the ICC," according to Angelo Gnaaedinger of the ICRC.

But while more rigorous prosecution of grave breaches of IHL should act as something of a deterrent, humanitarian workers say it is important that the international and humanitarian community must also raise public awareness and mobilise opinion each times the rights of victims are ignored or flouted.

They also call for extended advocacy for IHL, both with combatants and by giving lessons in humanitarian law in schools and universities, and the provision of proper instruction in military training establishments.

"We must finally recognise," according to the ICRC's Gnaedinger, "that protecting the victims of conflict cannot be limited to emergency action - when we know how often such action is doomed to failure.

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