Elnathan John
INTRODUCTION
The most persistent sound which reverberates through man’s history is the beating of war drums.
-Arthur Koestler [1]
There is little I can do but agree with the painful fact of Koestler’s quote. Indeed it can be asserted that war is an inevitable part of our convoluted existence, first as man in general and then as separate individuals with ideals which are too conflicting, pursued in ways that are too confrontational. Perhaps it is why there has been no international legislation outlawing war itself. Instead, and as a way of acquiescing in the fact of the inevitability of war, laws have been made regulating the conduct of wars. In fact a whole ‘sub-branch’ of law exists for this very purpose.
International humanitarian law or the “laws of war” (which terminology aptly represents its content), governs the conduct of armed conflict and provides protection to the victims of such conflict. This law has as its roots treaties and the customary practices of states. International humanitarian law through detailed rules restricts the means and methods of warfare. It includes internal mechanisms which guarantee that these rules are respected. While doing this, international humanitarian law holds individuals responsible for violations of humanitarian law which they commit, or order others to commit. It requires that those responsible for serious violations should be prosecuted and punished as criminals. The primary statutes which provide the bulk of these rules and regulations are the four treaties known as the Geneva Conventions of 1949 and two additional 1977 protocols.
The Second World War brought in its wake, horrific acts of violence and outrages against human dignity. However, it was desired that even in times of hostilities between nations, human dignity should be respected and preserved. The Universal Declaration of Human Rights had hitherto captured the ideals of the international community as far as human dignity was concerned. In the opening two paragraphs of its preamble it provided:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…
These ideals were sought to be extended to include times of war, whether of international scope or otherwise, leading the community of states to ‘ratify an updated version of the Geneva Conventions in the hope of acquiring a sound legal instrument which would preserve human dignity even in times of war’[2].
Of particular relevance to us are the third and fourth conventions which govern the Treatment of Prisoners of War and the Protection of Civilian persons in the time War respectively. The two additional protocols provide additional regulations with regard to the protection of victims of international and non-international armed conflicts.
The crucial bearing of these conventions is better appreciated against the backdrop of the alarming and constantly increasing number of victims- former combatants and civilians alike, who are subjected to ill-treatment and abuse by either or both sides in a conflict. The vulnerability of these individuals is further heightened as they flee from the war-torn areas to hazardous refugee camps. Thus, both during and after the conflict, the conventions lay down mechanisms to forestall, repress and punish violation of international humanitarian law. These repression mechanisms will now be considered.
THE NOTIONS OF INTERNATIONAL REPRESSION MECHANISMS
The first article common to the four Geneva Conventions provides that the High Contracting Parties undertake “to respect and to ensure respect” for the rules of the conventions. It is in discussing the means by which states bound by the Geneva Conventions “ensure respect” for the conventions that we come in contact with the various notions of repression mechanisms. States are required to take whatever measures are necessary to prevent and suppress all violations thereof. Such measures may include military regulations, administrative orders and other regulatory measures. However, considering the nature of humanitarian law and the risk of further violations in enforcement, criminal legislation is the most appropriate and effective means of dealing with all serious violations of international humanitarian law.
The composite action of humanitarian law enforcement or application has certain constituent elements. The high contracting parties are to employ preventive actions to develop the law and ensure that combatants comply with it by spreading knowledge of its provisions. In Article 144 of the fourth Geneva Conventions there is a provision that “the High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population.”
This is of crucial importance, for combatants cannot respect rules they are not already conversant with. Unless they know of these rules before conflict erupts, it would be unrealistic to expect combatants to observe them in the heat of the conflict.
The high contracting states are also expected to employ remedial action among victims to limit the consequences of any violations. This has for the better part been done by humanitarian organisations. For example, during the genocide in Rwanda, the International Committee of the Red Cross managed to provide protection for some 50,000 people, including many wounded and those accompanying them, who had found refuge in an ICRC field hospital in Kigali where they were given medical treatment as needed[3].
In addition to these, High Contracting States are mandated to employ reactive action to put a stop to ongoing violations by making immediate representations to the authorities[4].
Perhaps the most far reaching and practical of these elements is that the high contracting parties should employ punitive action to prosecute violations already committed and punish the culprits[5]. A number of States have already enacted criminal law to punish violations of the provisions of Common Article 3 of the Geneva Conventions and Additional Protocol II which apply to non-international armed conflict[6].
Section 2 of the Additional Protocol I of 1977 provides concrete regulations regarding the Repression of Breaches of the Conventions and of the additional Protocols. Article 85 of the protocol describes acts which qualify as grave breaches of the Conventions[7]. They include the wilful killing of civilians and captured combatants and issuing orders that there should be no survivors. These grave breaches which are the most serious violations of humanitarian law are termed war crimes. States are obliged to suppress all such violations.
The term war crimes may need some further expatiation. These refer to breaches which are so grave as to impose upon the High Contracting state the obligation to punish such crimes or extradite such violators to jurisdictions where they would be prosecuted. Primarily, the responsibility for the implementation of repression mechanisms rests on the state affected by the conflict. This is not surprising, for the majority of armed conflicts are of non-international nature. This, in fact, is the particular mandate of the Additional Protocol II of 1977.
However there is also international jurisdiction for war crimes. War crimes are considered to be crimes of universal jurisdiction. Owing to the fact that that they are so unanimously accepted as repulsive, it is viewed that any nation may prosecute the perpetrators, regardless of their nationality, the nationality of the victims or the location of the crime[8]. War crimes or grave breaches are not the only types of violations of international humanitarian law. Other serious violations of international humanitarian law are also recognized as constituting war crimes. They encompass, for example, violations of treaties such as the Fourth Hague Convention of 1907 or of customary rules regulating warfare[9].
As far as the international jurisdiction of humanitarian law is concerned, there are the international criminal tribunals established for the former Yugoslavia and Rwanda which are specifically empowered to prosecute war crimes in the former Yugoslavia and Rwanda, respectively. More recently however, there is the international criminal court which has a wider jurisdiction and scope. In July 1998 UN delegates approved a statute to create a permanent International Criminal Court (ICC) to try people accused of genocide, war crimes, crimes against humanity, and crimes of aggression. The ICC was designed to replace ad hoc tribunals of limited jurisdiction, such as those created to address the conflicts in the former Yugoslavia and in Rwanda. The ICC, with headquarters in The Hague, The Netherlands, officially came into being on July 1, 2002.
This international court is not a substitute for national courts in their responsibility to repress violations of humanitarian law through prosecution. While leaving the primary responsibility for action to States, the international criminal court would institute proceedings only in cases where national courts had failed to do so[10]. Corroborating this, the Statute of the ICC states in its preamble, that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, including war crimes. States will therefore have to enact appropriate national criminal legislation, take steps to facilitate inter-State judicial cooperation and also work together with international jurisdictions[11].
VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW
As far as violations of international humanitarian law is concerned there exists a plethora of examples. These examples emphasize the need for repression of violation of humanitarian laws and human rights at the highest level possible. I have chosen to discuss these violations with reference to the conflicts in Sierra Leone, Kosovo and Rwanda.
SIERRA LEONE
The year 1991 saw the beginning of a gruesome conflict between the Revolutionary United Front(RUF)- a rebel group, and the government of Sierra Leone. The violent campaign of the rebels and the reaction of the government led to the loss of tens of thousands of lives. Worse still were the flagrant violations of the Geneva Conventions where civilian populations were made the object of attack by the rebels[12], with rape and mutilation wantonly committed. Article 27 of the Fourth 1949 Geneva Convention in fact grants women the status of protected persons by providing inter alia that ‘women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault’. The Conventions severally provide for the protection and care of children during armed conflict and it is sad to note that this was the most flouted of all the regulations. Child soldiers were a common feature of the war as rebels abducted children and forced them into combat. The war ended in 2000 with a long record of humanitarian law violations. Thus, in 2002, pursuant to the obligations of repression imposed by the Geneva Conventions, the United Nations and the Sierra Leone Government jointly established a war crimes tribunal, the Special Court for Sierra Leone, to try individuals who had committed atrocities during Sierra Leone’s civil war. The court charged seven people, including rebel leader Foday Sankoh and Internal Affairs Minister Sam Hinga Norman, with murder, rape, extermination, sexual slavery, conscription of children into an armed force, among other crimes.
KOSOVOA separatist movement began in Kosovo in 1991 when ethnic Albanians, who made up more than 90 percent of the province’s population, started to agitate for secession from Serbia. The humanitarian law violations that followed were appalling.
A Human Rights Watch publication listed the violations of the Yugoslav Government as follows:
- The disproportionate use of force against the civilian population and the specific targeting of civilians during military operations;
- long-range artillery shelling, and other military operations that are being used to target or indiscriminately fire on civilians;
- the systematic destruction of civilian property. This includes the burning and destruction of homes, the burning of crops and the killing of livestock;
- summary executions and execution of people in detention;
- widespread torture and ill-treatment in detention, including in particular allegations of the deaths of at least five persons as a result of torture by police and
- indefinite detention leaving the victims incommunicado, without access to their lawyers.
The Kosovo Liberation Army itself was not free from guilt. There was a lot of hostage-taking, using humans as shields, ill-treatment of civilians or others placed hors de combat, torture and killing of captured Serbian soldiers and policemen among a host of humanitarian law violations[13].
The United Nations established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in May 1993 to try persons allegedly responsible for war crimes, crimes against humanity, and genocide committed in the territory of the former Yugoslavia. President Slobodan Milošević of the Federal Republic of Yugoslavia was charged together with four other top Serbian or Yugoslav officials with war crimes and crimes against humanity based the violations in Kosovo primarily directed at Kosovo Albanian civilians. In 2001 the Serbian government extradited Milošević to the war crimes tribunal.
RWANDA
Civil war erupted in Rwanda in 1994 when the Hutu President Juvénal Habyarimana was killed in a downed plane. This sparked off fighting between the country’s two major ethnic groups- the Hutu and the Tutsi. Here too there were massive violations of humanitarian law.
Whole civilian populations were systematically exterminated and the Hutu-dominated Rwandan army was accused of genocide against the Tutsi. In all, between 500,000 and 1,000,000 persons, mostly Tutsi civilians lost that lives in that gruesome conflict[14].
In furtherance of the implementation of international humanitarian law, the Security Council of the United Nations in November 1994 adopted Resolution 955 creating the International Criminal Tribunal for Rwanda mandated with trying individuals responsible for genocide and other serious violations of humanitarian law during the 1994 civil war.
Jean Kambanda, the former Rwandan prime minister pleaded guilty to the charges of genocide and crimes against humanity and was sentenced to life imprisonment. Jean-Paul Akayesu was also sentenced to life imprisonment for similar charges.
DO THE INTERNATIONAL REPRESSION MECHANISMS ADEQUATELY ADDRESS THE PUNISHMENT OF VIOLATORS OF INTERNATIONAL HUMANITARIAN LAW?
Now the big question. I would hasten to begin by stating the perceived ideal of the international repression mechanisms:
“…That the perpetrators of war crimes, crimes against humanity and the crime of genocide are brought to justice.”[15]
I begin the analysis of this stated ideal with the word ‘justice’. I find it pertinent to ask, justice for whom or to what end? The first part is relatively easy to answer. Why, for humanity, one might readily answer. The truth of this is probably seen in the concrete gains of humanitarian law in trying to punish war crimes offenders, right from the International Criminal Tribunal for the former Yugoslavia indictments, to the Special Court for Sierra Leone indictments in 2003. Indeed this predominantly judicial approach to the enforcement of humanitarian law ‘upholds the credibility of law, reminds the parties to the conflict of their responsibilities and demonstrates the international community’s determination to have the law applied.’[16]
Even here there are inherent problems. It is not always easy to identify and apprehend the actual violators of humanitarian law after the conflict and even much less during the conflict. Whereas a large number of people are usually involved in the violations, only a few people will ever get prosecuted. When the conflict is over, a lot will already have been lost.
To what end is this ‘justice’ sought? What is the result of the mostly belated implementation of repression mechanisms? There is a quote by Lord William Shawcross which readily comes to mind at this point. He said: “You cannot do justice to the dead. When we talk about justice to the dead, we are talking about retribution for the harm done to them… retribution and justice are two different things.”[17] This statement contains a crucial truth for those in charge of implementing repression mechanisms. The 500,000 or more dead Tutsi in Rwanda have nothing to gain from the trials and even the convictions that followed and neither do the tens of thousands dead in Sierra Leone. In fact those who survived either with mutilated limbs or mutilated souls will have very little to benefit from the trials. These trials for one have not stopped humanitarian law violations from happening.
Time is of the essence in the enforcement of repression mechanisms. Unless focus is shifted from repression mechanisms after the conflict to those before and during the conflict, little practical gains will ever be achieved.
To answer the big question, it might be necessary to say that while there have been modest achievements especially at the international level, the test of adequacy is more in the implementation than in the provisions of the law itself. The will to obey and enforce humanitarian law at the right time and for the greater good of humanity is a necessity.
In a world of increasing violence and uncertainty, where individuals are becoming more desperate in their pursuits and ambitions, the mere existence of stiff punishments is not enough to prevent violations. Wars and other armed conflicts are becoming more horrific. Consider the fighting in the Darfūr region of western Sudan which some claim has reached the magnitude of genocide. This is occurring after a relatively long history of the implementation of humanitarian law implementation around the world. The several life sentences handed down by international courts have not frightened the violators into stopping their flagrant violations of humanitarian law.
The international community has to begin treating humanitarian law as being first, a violation of international law and ideals, before even being a violation of the municipal laws of the countries experiencing the conflict. They must be resolute in their resolve to repress violations as soon as they begin and not engage in academic debates as to whether their have been substantial violations or not. The wanton killing, rape and violence in a poverty-stricken third world country must be viewed as seriously as an assault on humanity as a whole. There must be no delays in preventing or ending conflicts which involve humanitarian law violations. Then, they will be able to properly supplement the role of the States whose primary duty it is to repress the violations; then only will international repression mechanisms mean anything to the victims, the violators and humanity in general.
FOOTNOTES
[1] (1905–83), Hungarian-born British novelist, essayist. Janus: A Summing Up, “Prologue: The New Calendar,” sct. 1 (1978).
[2] Jacques Stroun, International Criminal Jurisdiction, International Humanitarian Law and Humanitarian Action, International Review of the Red Cross no 321, pg 623.
[3] Jack Stroun, op. cit.
[4] Ibid.
[5] For example in Article 146 of the Fourth Geneva Conventions provides for the High Contracting Parties to undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Convention.
[6] Penal Repression: Punishing War Crimes, Advisory Service on International Humanitarian Law, ICRC. (2004)
[7] Article 147 of the fourth Geneva Convention also lists what constitutes graves breaches. They include wilful killing, torture or inhuman treatment including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
[8] International Humanitarian Law and War Crimes, HRW World Report 2001: International Justice, (www.hrw.org)
[9] Toni Pfanner, The Establishment of a Permanent International Criminal Court, International Review of the Red Cross no 322. (1998)
[10] Ibid.
[11] Penal Repression: Punishing War Crimes, Advisory Service on International Humanitarian Law, ICRC. (2004)
[12] Contrary to Article 85 par.3 (a) and (b). of the Additional Protocol I of 1977
[13] Article 3 par. 1 of the Third 1949 Geneva Convention relating to the treatment of prisoners of war provides that persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
[14] Article 85 par. 3 (a) describes as grave breaches, making the civilian population or individual civilians the object of attack.
[15] Toni Pfanner, op. cit.
[16] Jacques Stroun, op. cit.
[17] He was discussing the War Crimes Bill which proposed to execute ex-Nazi’s living in Britain. He was a prosecutor in the Nuremberg following World War II.
