THE PENAL RESPONSIBILITY AND SANCTIONS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW

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THE PENAL RESPONSIBILITY AND SANCTIONS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW

CHAPTER ONE

1.1 Introduction

During this century, millions of children, women and men have been victims of unimaginable atrocities in the theatre of wars that deeply shook the conscience of humanity. For instance, the war in Iraq which 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, also the Libyan Crisis, an ongoing conflict in Libya, beginning with the Arab Spring protests of 2011, which led to the First Libyan Civil War, foreign military intervention, and the ousting and death of Muammar Gaddafi. The civil war’s aftermath and proliferation of armed groups led to violence and instability across the country, which erupted into renewed civil war in 2014.

Another instance, is the Nigerian civil war, popularly known all over the world as the “Biafran War” which broke out from 2 July 1967 to 15 January 1970. The war was between the then Eastern Region of Nigeria and the rest of the country. Also the ongoing Syrian Civil War, a multi-sided armed conflict in Syria fought primarily between the government of President Bashar al-Assad, along with its allies, and various forces opposing the government.

It is against this background that an analysis of the penal responsibility and sanctions for violations of International Humanitarian Law becomes necessary. This chapter highlights the general issues relevant to the study, purpose of the study and the significance of the study.

1.2 Background Statement

The history of mankind is the story of power struggles, confrontations and armed conflicts between nations, people and individuals. From the earliest times, men have been preoccupied with the problem of how to control the effect of violence and its attendant human sufferings with varying degrees of success.

Prior to the middle of the 19th Century, agreements to protect victims of wars were of mere transient character, binding only upon the contracting parties thereto, and based upon strict reciprocity.

In reality, they were purely military agreements usually effective only for the duration of a particular period of hostility. This state of affairs was changed by the birth of modern humanitarian law which is associated with the emergence of the Red Cross Movement in 1863. This development makes states bound by universal treaty applicable at all times and in all circumstances.

It would therefore be misleading to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the beginning of international humanitarian law as we know it today. Just as there is no society of any sort that does not have its own set of rules, there has never been a war that did not have some vague or precise rules covering the outbreak, end of hostilities, and how they are conducted. As Quincy Wright rightly observed “Taken as a whole, the war practices of primitive people illustrate various types of international rules of war known at the present time; rules determining the circumstance formalities and authority for beginning and ending war; rules describing limitation of persons, time, place and methods of it conducts, and even rules outlawing war altogether .

The first laws of wars were proclaimed by major civilization several millennia before our era: “I establish these law to prevent the strong from oppressing the weak”.

Many ancient texts such as Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the Viqayet, a text written toward the end of the 13th century at the height of the period in which the Arabs ruled Spain, contains a veritable code for warfare. The 1864 convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered law and customs of war protecting the wounded and those caring for them. In the 17th century, the Dutch legal scholar and diplomat, Grotius wrote his ‘De jure belli ac pacis’ in which he listed rules that are among the firmest foundation of the law of war.

From the beginning of warfare to the advent of contemporary humanitarian law, over 500 cartels, codes of conduct, covenants and other texts designed to regulate hostilities have been recorded. They include the Lieber Code, which came into force in April 1863 and it is important in that it marked the first attempt to codify the existing laws and customs of war.

Unlike the first Geneva Convention adopted a year later the Lieber code however did not have the status of a treaty as it was intended solely for union soldiers fighting in the American civil war.

Modern international humanitarian law can be associated with sophistication of weapons of mass destruction employed in modern warfare by large national armies and the resultant suffering of the wounded soldiers lying helpless in the battle field, the wanton destruction of properties and the ecological effect on the environment. These coupled with the increasing interest of state in the common principles of respect for the human being informed the development of the modern law of armed conflicts which is based on multilateral conventions.

On 24 June 1859, the Austrian and French armies clashed at Solferino, a town in modern Italy. After 16 hours of fighting the battle field was strewn with 40,000 dead and wounded men. The same evening Henry Dunant, a Swiss citizen, arrived at the area on business. He was horrified by what he saw: for want of adequate medical services in both armies, thousands of wounded soldiers were left to suffer unattended and abandoned to their fate. Dunant immediately set about organizing care for them without discrimination, helped by civilians from neighbouring villages. On return to Switzerland, Dunant was unable to forget the terrible scene he had witnessed.

He decided to write “A memory of Solferino” which he published at his own expense in November 1862, and circulated to friends, philanthropist, military officers, politicians and certain reigning families. The book was an immediate success and its appeal to human conscience was eloquent, as he stated. “On certain special occasions, as, for example, when princes of the military art belonging to different nationalities meet… would it not be desirable that they should take advantage of this sort of congress to formulate some international principle sanctioned by a convention and inviolate in character, which once agreed upon, and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries.

On 9th February 1863, the Geneva society for public welfare, a charitable association based in the Swiss city of Geneva, decided to set up a five-member commission to consider how Dunant’s ideas might be implemented.

This commission made up of Gustave Moynier, Guillaume-Henry Dufour, Louis Appia, Theodore Mounior and Dunant met on 17 February and founded the International Committee for Relief to the wounded in time of war, which later became the International Committee of the Red Cross (ICRC). By Dint of enthusiasm and perseverance, they succeeded in 1864 in persuading the Swiss government to convene an international conference in which the representative of twelve states participated and the tangible result of which was the signing in 1864 the Geneva Convention for the Amelioration of the conditions of the wounded in the Armies in the field. This expressed with clarity, the idea of a generally applicable humanitarian principle, by requiring the High contracting parties to treat their own wounded and those of the enemy with equal care. Medical personnel, equipment and installation were to be protected.

They were to be identified by a distinctive emblem, a red cross on a white background. This first Geneva Convention signed in 1864, marked, the beginning of modern international humanitarian law. In 1899, the Hague Convention respecting the laws and customs of war on land and the adaptation to maritime warfare of the principles of the 1864 Geneva Convention. In 1906, the provisions of the 1864 Geneva Convention was improved and supplemented. In 1907, the Hague Convention of 1899 was reviewed and a new Convention which defined the categories of combatants entitled to prisoner of war when captured and to a specified treatment during the whole period of their captivity. In 1925, the Geneva Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare was adopted. These Conventions which are at present in force were adopted.

The Diplomatic conference of 1949 not only adopted the ‘Geneva Convention relative to the protection of Civilian Persons in time of war”, but also carried out a revision of the three earlier conventions, the text of which were brought into harmony. The four Geneva conventions, containing some 400 articles, constitute a legal achievement of historic importance which for more than fifty years has afforded protection for the countless victims of armed conflict.

The international committee of the Red Cross, the initiator of international humanitarian law, in its quest to develop the law so that it may keep pace with the changing pattern of conflicts, undertakes revision of existing instruments as and when it appears to it to be necessary and feasible Although the 1949 Geneva conventions marked a major advance in the development of humanitarian law. In 1965, the ICRC felt the time was ripe for such an undertaking. After de-colonization, however, the new states found it difficult to be bound by a set of rules which they themselves had not helped to prepare. What is more, the treaty rules on the conduct of hostilities had not evolved since the Hague Treaties of 1907. Since revising the Geneva Conventions might have jeopardized some of the advances made in 1949, it was decided to strengthen protection for the victims of armed conflict by adopting new texts in the form of protocols additional to the Geneva Conventions11.

On the basis of the draft rules prepared in 1956, then on resolutions adopted in the 1960’s by two International Conference of the Red Cross and by the International Human Rights conference held in Tehran in 1968, the ICRC studied the possibility of supplementing the conventions adopted in 1949. In 1969, the ICRC submitted the idea to the 21st International Conference of the Red Cross, in Istanbul; the participants including the states party to the Geneva Conventions mandated it accordingly and the ICRC’s own lawyers embarked on the preparatory work. Between 1971 and 1974, the ICRC organized several consultations with government and the movement, the United Nations being kept constantly informed of the progress of the work.

In 1973, the 22nd International Conference of the Red Cross, in Tehran, considered the draft texts and fully supported the work done. In February 1974 the Swiss Government, as depository of the 1949 Geneva Conventions, Convened the Diplomatic Conference on

The re-affirmation and development of international humanitarian law applicable in armed conflicts, in Geneva, it comprises four sessions and ended in June 1977.

The law of Geneva, or humanitarian law proper, is designed to safeguard military personnel who are not or no longer taking part in the fighting and persons, particularly civilians not actively involved in hostilities, while the law of the Hague, or the law of war, which establishes the rights and obligations of belligerents in the conduct of military operations and limits the means of harming the enemy.

These two branches of IHL are not completely separate. However, the effect of some rules of law of The Hague is to protect victims of conflicts, while the effect of some rules of the law of Geneva is to limit the action that the belligerent can take during hostilities. With the adoption of the Additional Protocols of 1977, which combined both branches, of IHL, that distinction is now merely of historical and didactic value.

At the end of the fourth and last session of the Diplomatic Conferences, the plenipotentiaries of the 102 states present adopted the 102 articles of Protocol 1 relating to the victims of international armed conflicts and the 28 articles of Protocol 11 relating to the protection of victims of Non- international conflicts.

By adopting on June 8, 1977 the two Protocols Addition brought to a successful conclusion four years of arduous negotiation. It is indeed a landmark in the development of international humanitarian law. To make state party bound by the protocols additional to the Geneva conventions, they have to sign and ratify or accede to them hence the solemn ceremony of signature of June 10, 1977. These texts became effective as from that date as common property and have been invoked in appropriate circumstances. Protocol I, relating to international armed conflict introduced innovatory features.

Special protection was extended to cover civilian medical personnel, transport and units, which represents a considerable improvement in medical assistance to victims. This is a good illustration of the significant breakthrough made by the protocol, since it broadens the generic category of objects and persons protected by the 1864 Geneva Convention. In addition the means of identification of medical transports (radio signal, radar, acoustic, etc) were adopted to modern technology. These rules therein set forth should spare civilian populations such sufferings and tragedy of the kind experienced during the Second World War

Prior to 1977, there existed 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 comparatively limited range while the fourth Geneva convention of 1949, aside from setting forth a few general rules contains only provisions for the protection of civilians against abuses of power by enemy or an Occupying Power.

A major breakthrough of protocol, it must be emphasized was the substantial progress achieved in the rules relating to the conduct of hostilities, the authorized methods and means of warfare and the protection of civilian population. New types of conflicts have emerged in the interlude, wars of liberation and guerrilla tactics. The use of sophisticated and indiscriminate weapons, such as incendiary weapons and fragmentation projectiles have also emerged. The Civilian population often compelled to accept combatants in their midst, have thus become more vulnerable. It was therefore important to frame legal rules of protection in that field.

The three basic rules governing the conduct of hostilities were clearly expressed and incorporated in the text of law:

1. The right of the parties to the conflict to choose methods or means of warfare is not unlimited.

2. “It is prohibited to employ weapons and methods of warfare of a nature to cause superfluous injury”

3. Civilians and civilian objects must not be the target of attack,

These articles set out the principles of the distinction between civilians and combatants and between civilian objects and military objectives.

These articles protect both the civilian objects, which it defines by contradistinction with military objective. It specifies that attack against the civilian population or against civilian objects are prohibited. As well as attacks made against civilians by way of reprisals, and that attacks may be directed only against military objectives. Indiscriminate attacks i.e. those which are of a nature to strike military objective and civilian or civilian objects without distinction are prohibited.

Four articles deal with relief in favour of the civilian population. These articles specify that the parties to the conflict must provide the necessary relief to the civilian population or, if they are unable to supply the needs of that population, must allow unimpeded passage to all relief supplies essential for its survival. This rule applies in all circumstances even for the benefit of an enemy population of an occupied territory. Action in this respect must include facilities for relief organization and protection of specialized relief personnel.

These articles supplement other protocol provisions on civilian objects, which prohibit the starvation of civilians as a method of warfare. In addition objects indispensable to the survival of the population such as agricultural areas, livestock, drinking water installation and supplies, crops, irrigation works etc.; are hence forth protected as are works and installations containing dangerous forces like nuclear electric generating stations, dams, dykes etc.; cultural objects and places of worship. It is provided that military operations must be so conducted as to protect the natural environment against widespread, long term and severe damage.

The fundamental guarantees of respect for the human person have been strengthened and supplemented. The provisions relating to human treatment reiterate, on the whole those of protocol 1: respect of non-combatants; no adverse distinction between persons, prohibition to order that there shall 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 of hostages, etc. special protection for children, protection of persons whose freedom has been restricted and judicial safeguards for the wounded, sick, shipwrecked and dead. Protocol II “does not include provisions on special categories of protected persons, such as prisoners of war, all persons, who do not or have ceased to take part in hostilities are entitled to the same guarantees.

International humanitarian law treaties containing rules applicable to environmental protection include Article 55 of additional protocol 1 and the convention on the prohibition of military or any hostile use of environmental modification technique of 10 December 1976. However, the Gulf war of 1991, revealed that those rules were little known and sometimes imprecise. Therefore in 1994, encouraged by the UN General Assembly and with the help of experts in the matter, the ICRC drafted guidelines for military manuals and instructions on the protection of the environment in times of armed conflict. Although the Geneva Convention and the protocols additional thereto do not expressly prohibit the use of nuclear weapons, the general principles of IHL do apply in such cases. Among other things, they require belligerents to distinguish at all times between combatants and non- combatants and prohibit the use of weapons likely to cause unnecessary suffering. The International Court of Justice in The Hague reaffirmed the application of those principles to nuclear weapons in 1996.

1.3 Research Questions

The study will seek to address the following questions:

1 What is IHL?

2 How is IHL implemented during times of peace?

3 Why does the lack of effective national legislation during times of armed conflict have adverse consequences on the lives and dignity of the participants and victims of an armed conflict, both during the hostilities and once all hostilities have ceased?

4 What are States legally required to do under IHL to ensure the effective implementation of IHL?

5 Why is IHL one of the most important branches of Public International Law to implement on a national level

1.4 Significance of Study

Armed conflicts are experienced throughout the world today and have both direct and indirect adverse effects on their victims. IHL aims to minimize these adverse effects and to provide certain protections. Adherence to the international conventions is but the first step. Respecting IHL requires that number of concrete measures be taken at the domestic level, even in peacetime, to create a legal framework that will ensure that national authorities, international organisations, the armed forces and other bearers of weapons understand and respect the rules, that the relevant practical measures are undertaken and that violations of humanitarian law are prevented, and punished when they do occur. Such measures are essential to ensure that the law works when needed.

This study is significant in that it illustrates the need for States to implement measures required for the repression of violations of IHL as an important basis to safeguard the lives and dignity of victims of armed conflicts. Throughout the study, selected IHL Conventions will be analyzed and the obligations on States determined. The study will further discuss the causes and consequences of failure to implement and will conclude with recommendations on how to overcome these obstacles. Recent practical examples will be utilized in the study to demonstrate the need for an effective repressions system on the domestic level.

1.5 Research Methodology

The principal source of materials for this research are textbooks, journals, law reports, pamphlets, conference proceedings (both national and international) humanitarian groups periodic publications most especially International Review of the Red Cross (IRRC). The central anchor of the entire discussion will be the four Geneva Conventions and the two additional Protocols. The analysis of the research will be based upon authoritative expositions, propositions of respected and universally acclaimed authors and jurists of contemporary humanitarian and legal philosophy especially in the area of humanitarian law and jurisprudence, judicial pronouncements of the international criminal tribunals and where necessary international institutions where they safeguard or enforce humanitarian principles.

1.6 Organizational structure

This research is essentially divided into five chapters with humanitarian principles as the common thread not only binding them but equally establishing the parameter of coordinating the entire discourse. The first chapter is a general introduction to the research work. It considers a general background information on the origin, nature and development of international humanitarian law. The chapter sets the ball rolling by defining the objectives of the research sought to be achieved. It equally defines in precise and crystal terms the scope of the research. The chapter further considers the methodology the research will adopt and the materials to be employed. It finally considers the structure and order of presentation and of the research.

Chapter two entails a literature review on the penal responsibility for grave breaches of international humanitarian law, definitions by different authors and domestic legislation on penal responsibility is also accorded a pride of place while individual penal responsibility in internal armed conflict will be treated towards the end of the chapter.

Chapter Three reveals what grave breaches entails under IHL, sanctions for violation of IHL under the Rome statute and other laws. It further undertakes an exposition of the penal sanctions for breaches of international humanitarian law. Nature and scope of the sanctions imposed will be analyzed. Further, imposition of penalties for grave breaches by state is examined/trials of violators, extradition where necessary and reparation for states will conclude this chapter.

Chapter four generally treats the enforcement machinery of the sanctions of International Humanitarian Law with regards to case laws. The establishments of national and international criminal jurisdictions to punish grave breaches, the competence and competent courts, procedural guarantees under IHL will be analyzed. Further, competence/jurisdiction of International Criminal Tribunals, International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda will be examined. While the Permanent International Criminal Court will conclude this chapter.

Chapter five, the final part of this research work will bring the discourse to its conclusion by making recommendations and finally the International Committee of the Red Cross role in developing, monitoring and implementation of international humanitarian law will conclude this research work.

1.7 Scope of Study

Taking into cognizance the fact that international humanitarian law does not claim that it can put an end to the scourge of war, but aims at ameliorating the unnecessary harshness of armed conflicts, and that the reciprocal interest of the belligerents should compel them to observe certain “rules of the game” in the conduct of hostilities.

It is therefore necessary to determine from the onset the objective of the research. The main thrust of the research is to undertake a discourse of the origin, nature and the scope of international humanitarian law albeit in brief with a view to determining whether the High Contracting Parties to the four Geneva Conventions and the two additional Protocols are keeping faith with 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, such grave breaches, and shall bring such persons, regardless of their nationality before its own courts.

Another important aim of the research, is to identify crimes breaches under international humanitarian law. The emotional and psychological trauma of displaced persons and refugees, the torture, cruel and inhuman treatment meted out to prisoners of war and other grave breaches of international humanitarian law necessitate that effective penal sanctions should be meted to those persons committing or ordering to be committed such grave breaches of international humanitarian law.

It is absolutely imperative to consider the enforcement machinery put in place both nationally and internationally under IHL to arraign, prosecute and punish those who violate the provisions of the Geneva Conventions and the Protocols.

Finally to determine the efficacy or otherwise of the sanctions and the enforcement machinery in bringing compliance with the rules of the game during armed conflicts.

1.8 Limitation of the Study

The implementation of IHL is a very broad field and includes taking measures other than the national implementation. This study will focus only on the national implementation of IHL. Furthermore, the national implementation of IHL itself is a vast field that would require extensive research and analysis that could not be undertaken due to the length limitations of this study. For this reason, this study will focus on an analysis of the obligations imposed on nation states and liabilities the states could incur for violations of IHL. This study shall also be limited in that it is not intended to constitute an in-depth analysis of all obligations placed on States by IHL, but rather to highlight the more important obligations. In this respect only select international instruments will be analyzed. The Geneva conventions and Protocols that deal specifically with the protection of the lives and dignity of participants in and victims of armed conflicts will be analyzed. Excluded from this study are all weapons conventions and those conventions dealing with the protection of property and the environment during an armed conflict. This study will examine the former Rwanda and Yugoslavia as a case study of the failure to effectively implement conventional IHL obligations into national laws.

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