Penalties and sanctions for breaking international human rights law
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CHAPTER ONE
1.1 Introduction
Millions of children, women, and men have been victims of unspeakable crimes on the battlefields of conflicts that profoundly shook the conscience of mankind over this century. For example, the Iraq War was a protracted armed conflict that began in 2003 with the invasion of Iraq by a United States-led coalition that toppled the government of Saddam Hussein, and the Libyan Crisis is an ongoing armed conflict in Libya that began with the Arab Spring protests of 2011 that led to the First Libyan Civil War, foreign military intervention, and the overthrow and death of Muammar Gaddafi. The legacy of the civil war and the expansion of armed organizations led to bloodshed and instability across the nation, which culminated in a resumption of the civil war in 2014.
The Nigerian civil war, generally known across the globe as the “Biafran War,” erupted between 2 July 1967 and 15 January 1970. The conflict was between the then-Eastern Region of Nigeria and the rest of the nation. Also the continuing Syrian Civil War, which is a multi-sided military war in Syria waged principally between the administration of President Bashar al-Assad and its supporters and other factions opposing the government.
In light of this, an examination of the criminal liability and punishment for breaches of International Humanitarian Law is required. This chapter emphasizes the broad concerns pertinent to the research, the study’s goal, and its relevance.
1.2 Background Statement
Nations, communities, and individuals have engaged in power struggles, confrontations, and military battles throughout human history. Men have been fascinated with the subject of how to limit the effects of violence and the resulting human miseries since ancient times, with varied degrees of success.
Prior to the middle of the 19th century, agreements to safeguard war victims were just temporary, binding only the parties to the agreement, and based on strict reciprocity.
In actuality, they were simply military agreements that often lasted for the length of a certain time of hostilities. The development of contemporary humanitarian law, which is related with the formation of the Red Cross Movement in 1863, altered this circumstance. This innovation binds governments to a global treaty valid at all times and under all conditions.
Therefore, it would be inaccurate to assert that the establishment of the Red Cross in 1863 or the passage of the first Geneva Convention in 1864 marked the beginning of contemporary international humanitarian law. Just as there has never been a civilization without its own set of laws, there has never been a war without some vague or definite norms governing the beginning, conclusion, and conduct of hostilities. As Quincy Wright rightly observed, “Taken as a whole, the war practices of primitive people illustrate the various types of international rules of war known at the present time; rules governing the formalities and authority for beginning and ending war; rules describing the limitations of persons, time, place, and methods of its conduct; and even rules outlawing war altogether.”
Several millennia before our time, a significant civilization established the first rules of war: “I create these laws to protect the powerful from oppressing the poor.”
Numerous ancient writings, including the Mahabharata, the Bible, and the Koran, advocate for enemy respect. For example, the Viqayet, a document composed at the end of the 13th century at the height of Arab control in Spain, offers a true code of warfare. In the guise of a multilateral treaty, the convention of 1864 formalized and reinforced the old, fragmented, and dispersed laws and practices of war safeguarding the injured and those caring for them. Grotius, a Dutch legal scholar and diplomat, published ‘De jure belli ac pacis’ in the 17th century, in which he enumerated norms that are among the most solid foundations of the law of war.
Over 500 cartels, codes of conduct, covenants, and other writings aiming to govern hostilities have been documented between the commencement of combat and the emergence of modern humanitarian law. They include the Lieber Code, which went into effect in April 1863 and is the first effort to codify existing rules and traditions of war.
In contrast to the first Geneva Convention, which was established a year later, the Lieber code was not a treaty since it was meant only for union troops fighting in the American Civil War.
Modern international humanitarian law is linked to the sophistication of weapons of mass destruction used in modern warfare by large national armies, as well as the resulting suffering of wounded soldiers lying helpless on the battlefield, the wanton destruction of property, and the environmental impact. The formation of the current law of armed conflicts, which is based on multilateral treaties, was influenced by these factors and the growing interest of states in respecting universal human rights values.
Austrian and French forces battled in modern-day Italy’s Solferino on 24 June 1859. After sixteen hours of action, the battlefield was littered with forty thousand dead and injured soldiers. Henry Dunant, a Swiss national, came in the region for business the same evening. He was shocked by what he saw: hundreds of injured troops were left to languish neglected and abandoned by both forces due to a lack of sufficient medical assistance. Dunant promptly organized treatment for them without distinction, with the assistance of citizens from nearby villages. Dunant was unable to forget the horrible sight he had experienced upon his return to Switzerland.
In November 1862, he produced “A recollection of Solferino” at his own cost and distributed it to friends, philanthropists, military leaders, politicians, and some governing families. As he noted, the book was an instant hit and its plea to human conscience was eloquent. “On certain special occasions, such as when princes of the military art of different nationalities meet, would it not be desirable for them to use this type of congress to formulate some international principle sanctioned by a convention and inviolable in nature, which, once agreed upon and ratified, could serve as the foundation for societies for the relief of the wounded in the various European nations?
On 9 February 1863, the Geneva society for public welfare, a philanthropic organization established in Geneva, Switzerland, voted to establish a five-member committee to examine how Dunant’s ideas might be implemented.
This committee comprised of Gustave Moynier, Guillaume-Henry Dufour, Louis Appia, Theodore Mounior, and Dunant convened on 17 February and created the International Committee for Relief to the Wounded in War, which ultimately evolved into the International Committee of the Red Cross (ICRC). 1864 saw the signing of the Geneva Convention for the Amelioration of the Conditions of the Wounded in the Armed Forces. This was the result of their zeal and perseverance in persuading the Swiss government to convene an international conference at which representatives from twelve states participated. This clearly articulated the concept of a universally applicable humanitarian standard by asking the High Contracting Parties to treat both their own and the enemy’s wounded with equal care. Personnel, medical equipment, and installations had to be safeguarded.
They were to be distinguished by an insignia consisting of a red cross on a white background. The 1864 signing of the first Geneva Convention marks the birth of contemporary international humanitarian law. 1899 saw the adoption of the Hague Convention on the rules and practices of land warfare and the application of the Geneva Convention of 1864 to marine combat. The terms of the Geneva Convention of 1864 were revised and expanded in 1906. In 1907, the Hague Convention of 1899 was revised and a new Convention defining the kinds of fighters entitled to the status of prisoner of war when seized and to a prescribed treatment during their whole captivity was adopted. The Geneva Protocol on the Prohibition of the Use in War of Asphyxiating, Poisonous, and Other Gases and Bacteriological Methods of Warfare was ratified in 1925. Adopted were the Conventions which are now in effect.
The 1949 diplomatic conference not only approved the “Geneva Convention related to the protection of Civilian Persons in Time of War,” but also revised and harmonized the texts of the three preceding treaties. The four Geneva conventions, encompassing about 400 articles, comprise a legislative accomplishment of historic significance that has provided protection for innumerable victims of armed conflict for more than fifty years.
As the originator of international humanitarian law, the International Committee of the Red Cross revises existing instruments whenever it deems it essential and practicable to do so. This is done to ensure that the law keeps pace with the evolving nature of conflicts. Although the Geneva Conventions of 1949 represented a significant milestone in the evolution of humanitarian law. In 1965, the ICRC determined that the timing was right for such an endeavor. However, after decolonization, the new governments found it impossible to adhere to a set of laws that they had not helped to create. In addition, the laws governing the conduct of warfare under the Hague Treaties of 1907 had not changed. Since amending the Geneva Conventions may have compromised some of the gains obtained in 1949, it was decided to improve protection for victims of armed conflict by adopting new texts in the form of Geneva Conventions addendum protocols11.
The ICRC examined the prospect of amending the 1949 treaties based on a 1956 draft of regulations, resolutions approved by two International Conferences of the Red Cross in the 1960s, and the International Human Rights Conference held in Tehran in 1968. In 1969, the ICRC presented the concept at the 21st International Conference of the Red Cross in Istanbul; the participants, including governments signatory to the Geneva Conventions, mandated it appropriately, and the ICRC’s own attorneys began preliminary work. Between 1971 and 1974, the ICRC arranged a number of discussions with the government and the movement, keeping the United Nations continually apprised of the work’s progress.
The 22nd International Conference of the Red Cross, held in Tehran in 1973, reviewed the draft texts and enthusiastically praised the work accomplished. In February 1974, the Swiss government convened the Diplomatic Conference on the Geneva Conventions of 1949.
The Geneva Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts had four sessions and concluded in June of 1977.
The law of Geneva, or humanitarian law proper, is intended to protect military personnel who are not or are no longer actively engaged in hostilities, as well as persons, especially civilians, who are not actively engaged in hostilities, whereas the law of The Hague, or the law of war, establishes the rights and responsibilities of belligerents in the conduct of military operations and limits the means of harming the enemy.
These two areas of IHL are not entirely distinct. However, the impact of some rules of law at The Hague is to protect war victims, while the effect of certain rules of law in Geneva is to restrict the actions of belligerents during hostilities. With the passage of the Additional Protocols of 1977, which merged both streams of IHL, this difference currently has only historical and pedagogical significance.
At the conclusion of the fourth and final session of the Diplomatic Conferences, the 102 plenipotentiaries present adopted the 102 articles of Protocol 1 concerning the protection of victims of international armed conflicts and the 28 articles of Protocol 11 concerning the protection of victims of non-international conflicts.
By adopting the two Protocols Addition on June 8, 1977, four years of difficult negotiations were successfully concluded. It is a significant milestone in the evolution of international humanitarian law. For states to be bound by the extra protocols to the Geneva treaties, they must sign, ratify, or accede to them; therefore, the solemn signing ceremony on June 10, 1977. As of that date, these texts became common property and have been invoked in suitable situations. Protocol I, which dealt with international armed conflict, had novel elements.
Special protection has been expanded to include civilian medical professionals, transportation, and units, which represents a significant improvement in medical aid to victims. This is an excellent example of the tremendous advancement achieved by the protocol, since it expands the category of items and individuals covered by the Geneva Convention of 1864. In addition, current technology was used to the detection of medical transportation (radio signal, radar, sound, etc.). These restrictions should save civilian populations the type of pain and tragedy that occurred during the Second World War.
Prior to 1977, there were only fragmentary provisions for the protection of civilians against the consequences of armed conflicts: The Hague convention regulating the conduct of hostilities was signed in 1907, at a time when military aircraft were unknown and artillery fire had a relatively limited range, and the fourth Geneva convention of 1949, other than a few general rules, contains only provisions for the protection of civilians against abuses of power.
It must be highlighted that the great improvement made in the regulations governing the conduct of hostilities, the approved tactics and means of combat, and the protection of civilian population was a major breakthrough in protocol. During the interim, new sorts of fighting have evolved, including liberation wars and guerrilla tactics. Additionally, the employment of sophisticated and indiscriminate weaponry, such as incendiary weapons and fragmentation projectiles, has become more prevalent. Civilians, who are often obliged to tolerate militants among them, have thus grown more vulnerable. Therefore, it was essential to establish legal protections in that sector.
The three fundamental norms guiding the conduct of hostilities were articulated and integrated into the legal text:
1. The participants to a fight do not have an unrestricted right to choose techniques or means of combat.
“It is unlawful to deploy weapons and techniques of combat that are designed to inflict unnecessary harm”
Civilians and civilian property cannot be the target of an assault.
These articles define the difference between civilians and combatants, as well as the contrast between civilian objects and military goals.
These articles safeguard both civilian and military things, as defined in contrast to military objectives. It stipulates that attacks against civilians or civilian property are banned. In addition to assaults on people in retaliation, only strikes against military targets are permitted. There is a prohibition on indiscriminate strikes, or those that are designed to hit both military and civilian targets without discrimination.
Four articles address assistance for the civilian population. These paragraphs stipulate that the parties to the conflict must either give the required aid to the civilian population or, if they are unable to do so, permit the passage of all life-sustaining aid supplies. This law applies under all circumstances, even for the benefit of an occupied territory’s hostile people. This action must involve the establishment of relief organization facilities and the safeguarding of specialist relief staff.
These articles reinforce previous convention restrictions on civilian objects that ban hunger as a military strategy. In addition, objects essential to the survival of the population, such as agricultural areas, livestock, drinking water installations and supplies, crops, irrigation works, etc., are now protected, as are works and installations containing dangerous forces, such as nuclear power plants, dams, and dykes, etc.; cultural objects and places of worship. It is stipulated that military operations must be conducted in a manner that safeguards the natural environment from widespread, long-lasting, and severe harm.
The basic safeguards of respect for the human being have been strengthened and expanded. The clauses pertaining to human treatment are, for the most part, a reiteration of those of protocol 1: respect for noncombatants, no discrimination between individuals, and restriction against ordering that there be no survivors. Prohibition of acts of violence against the life, health, and physical or mental well-being of persons; prohibition of torture, mutilation, taking hostages, etc., special protection for children, protection for those whose freedom has been restricted, and judicial protections for the wounded, ill, and dead. Protocol II “does not include rules on particular categories of protected individuals, such as prisoners of war; all persons who do not or have ceased to participate in hostilities are entitled to the same protections.”
Article 55 of Additional Protocol 1 and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (10 December 1976) are examples of international humanitarian law treaties providing environmental protection regulations. However, the 1991 Gulf War proved that these guidelines were poorly understood and sometimes inaccurate. In 1994, the ICRC prepared recommendations for military manuals and instructions on the preservation of the environment during times of armed conflict, with the encouragement of the UN General Assembly and the assistance of subject matter specialists. Despite the fact that the Geneva Convention and its supplementary protocols do not directly ban the use of nuclear weapons, the broad rules of IHL do apply in such situations. They compel belligerents to differentiate between combatants and noncombatants at all times and ban the use of weapons likely to inflict needless suffering. In 1996, the International Court of Justice in The Hague reiterated that these principles apply to nuclear weapons.
1.3 Research Questions
The research will attempt to address the following issues:
What is International Humanitarian Law?
How is the International Humanitarian Law enforced during times of peace?
3 Why does the absence of appropriate national law during times of armed conflict have a negative impact on the lives and dignity of participants and victims of armed conflict, both during and after hostilities?
4 What are States expected to undertake by international law to guarantee the effective application of IHL?
Why is IHL one of the most essential disciplines of Public International Law to execute at the country level?
1.4 Significance of Study
Today, armed conflicts occur all over the globe and have both direct and indirect negative impacts on their victims. IHL seeks to mitigate these negative impacts and offer certain safeguards. Compliance with international norms is just the beginning. Respecting IHL necessitates that, even in times of peace, a number of domestic measures be taken to establish a legal framework that ensures that national authorities, international organizations, the armed forces, and other bearers of arms understand and respect the rules, that the pertinent practical measures are taken, and that violations of humanitarian law are prevented and punished when they occur. Such procedures are necessary to guarantee that the legislation functions when required.
This research is essential because it demonstrates the necessity for states to adopt measures necessary for the suppression of breaches of IHL as a crucial foundation for protecting the lives and dignity of victims of armed conflicts. Selected IHL Conventions will be studied during the course of the study, and the duties of states will be identified. In addition to discussing the reasons and effects of implementation failure, the research will conclude with solutions for overcoming these challenges. The paper will leverage recent practical instances to highlight the necessity for an efficient domestic repressions system.
1.5 Research Methodology
Textbooks, journals, legal reports, pamphlets, conference proceedings (national and international), humanitarian organization periodicals, most notably International Review of the Red Cross, are the primary sources for this study (IRRC). The four Geneva Conventions and two supplementary Protocols will serve as the discussion’s core lynchpin. The analysis of the research will be based on the authoritative expositions and propositions of respected and universally acclaimed authors and jurists of contemporary humanitarian and legal philosophy, particularly in the area of humanitarian law and jurisprudence, as well as the judicial pronouncements of international criminal tribunals and, if necessary, international institutions that safeguard or enforce humanitarian principles.
1.6 Organizational structure
This study is generally separated into five chapters, with humanitarian values serving not only as a unifying factor but also as a coordinating criterion for the whole dialogue. The first chapter provides an overview of the study project. It examines background knowledge about the origin, nature, and evolution of international humanitarian law. This chapter lays the groundwork by identifying the goals of the study to be conducted. It also describes the research’s scope in explicit and clear words. The chapter also discusses the approach and materials that will be used for the study. It concludes by analyzing the structure and sequence of presentation and research.
The second chapter includes a literature review on the penal responsibility for serious violations of international humanitarian law, as well as definitions by various authors and domestic legislation on penal responsibility. Individual penal responsibility in internal armed conflict will be discussed at the end of the chapter.
Chapter Three discusses significant violations of IHL, punishments for IHL violations under the Rome Statute, and other laws. It also provides an explanation of the punishments for violations of international humanitarian law. The nature and breadth of the imposed penalties will be evaluated. This chapter concludes with a discussion of the implementation of sanctions for major violations by states, as well as prosecutions for offenders, extradition where required, and indemnification for states.
Regarding case law, chapter four discusses the enforcement mechanisms of International Humanitarian Law penalties. The formation of national and international criminal jurisdictions for the punishment of grave violations, the competency and competence of courts, and procedural safeguards under IHL will be studied. In addition, the competence and jurisdiction of the International Criminal Tribunals, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda will be investigated. This chapter will be concluded by the Permanent International Criminal Court.
Chapter five, the concluding section of this research effort, will bring the discussion to a close by providing suggestions, and will finish by discussing the role of the International Committee of the Red Cross in formulating, monitoring, and implementing international humanitarian law.
1.7 Scope of Study
Taking into account the fact that international humanitarian law does not claim to be able to end the scourge of war, but instead seeks to mitigate the needless brutality of armed conflicts, and that the mutual interests of the combatants should compel them to observe certain “rules of the game” in the conduct of hostilities.
Therefore, it is vital to establish the purpose of the study from the outset. The primary objective of the research is to provide a concise discussion of the origin, nature, and scope of international humanitarian law in order to determine whether the High Contracting Parties to the four Geneva Conventions and the two additional Protocols are honoring their obligation to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, or to have ordered to have committed serious violations of international humanitarian law.
Another essential objective of the study is to discover violations of international humanitarian law. The emotional and psychological trauma of displaced persons and refugees, torture, cruel and inhuman treatment of prisoners of war, and other grave violations of international humanitarian law necessitate the imposition of effective penal sanctions against those who commit or order the commission of such grave violations.
It is of the utmost importance to evaluate the national and international enforcement mechanisms established under IHL to arrest, convict, and punish individuals who violate the Geneva Conventions and Protocols.
Determine the effectiveness of penalties and enforcement mechanisms in bringing about compliance with the rules of engagement during armed conflicts.
1.8 Limitation of the Study
Implementation of IHL is a fairly wide topic that encompasses actions beyond national implementation. This research will exclusively examine the nationwide application of IHL. Moreover, the nationwide implementation of IHL is a large topic that would need substantial research and analysis, which was not possible given the length constraints of this study. In light of this, the emphasis of this research will be an examination of the duties put on nation states and the penalties they may suffer for breaches of IHL. This research will also be constrained in that it is not meant to be a comprehensive examination of all responsibilities imposed on states by IHL, but will instead focus on the most relevant requirements. In this regard, only a limited number of international instruments will be examined. The Geneva Conventions and Protocols pertaining to the protection of the lives and dignity of combatants and victims will be examined. All weapons conventions and those dealing with the protection of property and the environment during armed conflict are excluded from this analysis. This research will explore Rwanda and Yugoslavia as examples of the inability to adequately incorporate international humanitarian law duties into national legislation.
Quincy Wright, etc. International committee of the Red Cross, ICRC, “Answers to Your Questions,” ICRC publication, page 9.
The Hammurabi Code, 1754 B.C.
During the American Civil War, Francis Lieber (professor at Columbia College New York) drafted a set of instructions for union troops at Abraham Lincoln’s request.
Henry Dunant, “A reminiscence of Solferino,” November 1862, page 7
International Humanitarian Law “Answers to Your Questions” from the ICRC ICRC p.4
Geneva Convention, 1864.
Introduction to International Human Rights and Humanitarian Law, by M.T. Ladan (Zaria: Ahmadu Bello University Press, 1999), page 109.
11 F. Bory, Origin and Development of International Humanitarian Law (ICRC, Geneva, 1982)
Answers to Your Questions; ICRC P.13
Penalties and sanctions for breaking international human rights law
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