SANCTIONS FOR VIOLATION OF INTERNATIONAL HUMANITARIAN LAW IN TIMES OF TIMES OF ARMED CONFLICT: AN APPRAISAL1

Introduction Sanctions under international law are actions by one or more states towards another state calculated to force it to comply with legal obligations2. Each party to a conflict is required to comply with the provisions of international humanitarian law and to ensure that the members of its armed forces and other persons or groups acting under its instructions and orders or under its control also comply3. In this respect international humanitarian law makes no distinction between the obligations of states and those of the armed groups concerned. Moreover, Article 3 common to the Geneva Conventions, which reflects the minimum rules applicable to all armed conflicts, stipulates specifically that the parties to the conflict, without distinction, must comply with certain rules set forth in that Article. 24 Implementation of International Humanitarian Law The major import of a legal provision is basically to influence human behavior. Humanitarian law is respected not only because this is required by treaties between states, by domestic penal law or by military orders, but also for other reasons which have been divulged of legal arguments. For instance, a party will respect the law in its own interests, in an effort to keep its own nationals from harm i.e if a state violates humanitarian laws, then other states would do same.
1

A paper by Anjorin-Ajose Tanimola, part V Law Student, and President, Lasulaws Student Judicial Council, Lagos State University, Ojo. 2 www.dictionary.com
3

Article 1 common to the Four Geneva Conventions of 1949. See also Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep, para 220: Rule 139 of the ICRC Customary Law study confirms the applicability of this provision for Intl and Non-Intl Armed Conflict.
4

defines certain rules to be applied in the armed conflict of a Non-Intl Character and in event of armed conflict, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to Intl Conflicts; and they are rules which in the courts opinion reflect what the court in 1949 called Elementary Considerations of Humanity

Also, respect for humanitarian rules is an element of discipline, which is an essential characteristic of an effective army. Above all, humanitarian law is not intended to make war impossible rather set limits to it and establishment of the International Criminal Court (ICC) has complimented other efforts towards sustaining a considerable level of compliance with humanitarian laws. PENAL REPRESSION AT NATIONAL AND INTERNATIONAL LEVEL International humanitarian law sets out detailed rules aimed at protecting the victims of armed conflicts and restricting the means and methods of warfare. It also establishes mechanisms to ensure that these rules are respected. In particular, 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 most serious violations of humanitarian law are termed war crimes. A state may prosecute such persons, or extradite them for trial in another state: many of the rules relating to in general, a states criminal law only international armed conflict are set out applies to acts committed within its jurisdiction.

National cum International Efforts The Geneva Convention and Additional Protocol I stipulate that certain serious violations committed in the course of an international armed conflict must be considered as criminal offences. They list a number of acts that should be punished as grave breaches5. Among these are willful killings, torture or other forms of inhuman treatment of protected persons (prisoners of war, inhabitants of an occupied territory, children), or attack on the civilian population or individual civilians resulting in death of serious injury to the body or health of the victim. All of these, like was earlier mentioned are classified as war crimes6. In the event of a suspected grave breach of the Conventions or the Additional Protocols, criminal proceedings must be brought against the suspect, unless the person is handed over to a third party state which then institutes penal
5

First Convention, Article 49 and 50: Second Convention, Article 50 and 51: Third Convention, Article 129 and 130, Fourth Convention, Article 146 and 147: Protocol 1, article 85
6

see Protocol I, Article 85(5), See also Rule 156 of ICRC Customary Laws

proceedings (principle of aut dedere aut judicare) State parties, as one of their obligations is to prosecute under their domestic legislations where the occasion affords it. International humanitarian law has thus established individual responsibility, with penal sanctions, for observance of its obligations. This responsibility applies to each individual, who must answer for his actions and inactions. Special responsibility resides in the military commanders who are obliged to do everything possible to prevent breaches of the Convention or of Additional Protocol I in area under their command7, if a commander neglects to give the necessary instructions or permits short-comings in the required supervision, then he must answer under criminal law if grave breaches occur under his command8. However, difficulty arises when the accused pleads the exception of superior order. In such instance, a person accused of such does not deny the offence but states that he acted under orders from a superior, and that therefore he should not be punished. Many of the defendants in the trials following the end of the Second World War pleaded thus, it is trite that even those persons who acted under orders were responsible for their acts9. In connection with the judgments of the Nuremberg court, there has grown up a rule of customary law which has influenced domestic legal systems. According to this principle, everyone is personally responsible for his actions, even when acting on orders. Yet a subordinate may proceed on the assumption that any order he is given by a superior is legal. However, if it is clear to the subordinate that the order would result in a breach of the law, then he must refuse to obey it, but only if the possibility of doing so really exists. If he nevertheless carries out the order and in so doing commits a breach of international humanitarian law, then he must accept the legal consequences. He may be given the benefit of mitigating circumstances10.

Protocol 1, Article 87, Rule 152 of the ICRC customary laws also provides that commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.
8 9

Rule 153 of the ICRC Customary Laws See Rule 154 and 155 of the ICRC Customary Laws.

10

The Diplomatic Conference of 1974-1977 could not agree on a generally acceptable draft provision which is why Protocol 1 has no rule on superior orders. Customary law retains its validity.

Therefore, a superior who gives an unlawful order is liable to penal prosecution. The statute of Nuremburg court stated explicitly that even the head of state may have to answer for his actions11 Grave breaches of international humanitarian law may be punished not only by the detaining power but also by any state in whose power the suspected culprit may be12 .this is known as universal jurisdiction. States must also afford each other assistance, for example, by handing over a suspect to another state and thereby waiving the right to try him, or by providing evidence13. The universality principle simply put, can be regarded as a situation whereby states can bring to trial the perpetrators of international crimes irrespective of where the crime was committed or the nationality of either the perpetrator or the victim(s). There are few examples in contemporary state practice of recourse to (semi-)universal jurisdiction in order to try members of armed groups14. The facts that recourse to universal jurisdiction is unpredictable and that, by its very nature, that jurisdiction is delocalized can detract from the deterrent message of the sanction. It must be recognized, however, that universal jurisdiction can be used to threaten those who have committed international crimes, even if they enjoy the inertia or connivance of the competent authorities. In the same vein, it should also be possible to benefit from the transitional justice mechanisms often set up after a conflict, including those that use
11

A good example Is Charles Taylor of Liberia who is currently been charged for war crimes by the ICC.

12

Each high contracting party shall be under the obligation to search for persons First Convention , Article 49(2); Second Convention, Article 50(2); Third Convention, Article 129(2); Fourth Convention, Article 146(2)
13

Protocol 1, Article 88

14

An example of the Universal Jurisdiction against members of non-state groups is the case of Nikola Jorgic, who was a leader of a Para Military group that took part in acts of terror against the Muslim population in Bosnia. The crimes were carried out with the backing of the Serb rulers and were designed to contribute to their policy of ethnic cleansing. He was found guilty of genocide and sentenced to life imprisonment. The Judgment was found to be in compliance with the European convention of human rights on 12 July, 2007.

traditional indigenous justice systems. These mechanisms must, however, take due account of the interests, rights and obligations of all of the parties concerned. They must not give the impression that they are taking sides by failing to deal with all persons responsible for violations, regardless of which group they belong to. The law of Geneva is intended to ensure the rights of suspects and of defendants. International Responsibility of States On the other hand, breaches of international humanitarian law by members of the forces of a state entail the responsibility in international law of the state concerned. This means that the state must answer to the injured state for the consequences of each and every case of unlawful conduct by each and every member of its armed forces15. The offending state must restore the legal situation and possibly pay damages to the injured state16. What means and redress are open to the injured state? It can issue a protest and demand of the other party to the conflict to refrain from further breaches. The protecting power can also take action in this sense. The injured States can in any case demand an inquiry17, such an inquiry however, requires the consent of all those involved, i.e in particular the accused party, and this has never yet been achieved. Protocol 1 has introduced a welcome innovation, based on the notion of third party mediation: the international fact-finding commission The international fact finding commission referred to in Article 90 of Additional Protocol I has the task, on request, to clarify the facts alleged to be a grave breach of the Conventions and the Protocol, or another serious violation of international humanitarian law. The commission is composed of fifteen persons of high moral standing and acknowledged impartiality appointed by the parties to Protocol I which have recognized the jurisdiction of the commission. The commission has two (2) functions. One is to inquire into any facts alleged to be a grave breach. The other is to offer its services to the parties to restore an attitude of respect for the humanitarian treaties. It is not the duty of the
15 16

Rule 150 of the ICRC Customary Law Protocol 1, Article 91.

17

First Convention, Article 52; Second Convention, Article 53; Third Convention, Article 132; Fourth Convention, Article 149

commission to give a legal opinion on the situation i.e the lawfulness or otherwise of the conduct in question. Despite this limitation, the international fact-finding commission will undoubtedly make a valuable contribution to improving the protection of human right in war. Role of ICRC The injured party may also turn to the ICRC, requesting it, as part of its humanitarian work, to work the adverse party to observe the rules of humanitarian law. It can likewise appeal to the United Nations and through it to the whole community of states. Lastly, it can appeal to the International Court of Justice in Hague, but only if the accused state recognizes the courts competence. In conclusion, we should recall one way in which the injured states may not react. In contrast to the possibility normally available under international treaty law, a state cannot refuse to meet its own obligations under the humanitarian Conventions on the grounds that the other side has grossly violated its obligations18. The obligations derived from international humanitarian law are not subject to the condition of reciprocity, but must be respected in all circumstances and unconditionally by each contracting party. The Geneva Convention and the protocol may, however be denounced like any other international treaty. Denunciation would in no circumstances take effect until the end of the conflict19 However, with the establishment of the International Criminal Court, states must abide by international humanitarian laws as violations would usually come with sanctions20. In its judgment in the case of Nicaragua v the United States, the International Court of Justice in Hague stated that the Four Geneva Conventions were in certain respects the extension of the general principles of international humanitarian law and in another respect, simply the expression

18

see Vienna Convention on the Law of Treatise, 23 May 1967, Article 60(5)

19

First Convention, Article 63; Second Convention, Article 62; Third Convention, Article 142; Fourth Convention, Article 158.
20

This would either come under National or International sanctions.

of those principles21. The object of the principles is the protection of human being and of inherent human dignity. They are therefore not concerned with the interests of the parties to the conflict: what are at stake are general considerations of humanity. Article I common to the Four Geneva Convention and to Additional Protocol I draws the logical conclusion and enjoins the contracting parties not only to respect the individual Conventions and the Protocol I, but also to ensure respect for them. States are thus collectively obliged to assume responsibility for compliance with international humanitarian law.it has been shown that under the principle of universal jurisdiction, in the case of penal repression of grave breaches of the Conventions or Additional Protocol I, a third party state is obliged to bring a suspect before its own court22. A new provision in protocol I, which calls on the contracting parties to act jointly or individually in cooperation with the United Nations goes one step further23. This article confirms an established state practice. Accordingly, any third party state may lodge a complaint with a party to the conflict having committed breaches of international humanitarian law. This may be done through diplomatic channels, i.e, in confidential communications between governments, or by means of a public protest. The ICRC has repeatedly addressed itself to all parties to the Geneva conventions, urging them to make the parties to a conflict observe international humanitarian law. It is no doubt within the competence of the United Nations to act in the event of breaches of international humanitarian law. As a rule, the U.N is in any case concerned in some way with the armed conflict that provides the opportunity for the breach of law. Respect for international humanitarian law by the Parties to that conflict is thus but one aspect of all the issues rose by confrontation. It is to be hoped that the united nations, as the voice of the international community, will in future give still more attention to the observation of international humanitarian law. Moreover, the ICRC, with its great experience
21

International Court of Justice, case concerning Military and Para Military Activities In and Against Nicaragua, Judgment of 29 June 19866 (merits) Para 218
22

see Rome Statute Protocol I, Article 89

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in humanitarian diplomacy, deserves the support of all states in its activities in areas of conflict. The effort is worthwhile: the goal is human survival in war and the protection of human dignity. International Tribunals

International tribunals can provide a satisfactory solution to several problems which may arise when the parties dispense justice themselves. In principle, these tribunals provide a guarantee of independent and impartial justice, which is sometimes lacking or appears to be lacking at national level. In Addition, they should be in a position to deal equitably with all those who have committed acts of violence, so that the reality in the court however imperfect it May be, is brought as close as possible to the reality on the ground. This would seem to be essential if a radicalization of positions is to be avoided and sanctions are to contribute in some way to a return to peaceful existence. It is in fact the approach adopted by the International Criminal Court, where crimes committed not only by states but also by armed groups are prosecuted24. The office of the prosecutor bears a particular responsibility in this regard in determining the courts prosecution policy. However, international courts have the disadvantage of being located at a considerable distance from the places and persons concerned, which can reduce the effect that sanctions are expected to dispense. Furthermore, it should be pointed out that there is a growing tendency for internationalized proceedings to be instituted as close as possible to the place where the crimes were committed. In the same line of thought, it would seem essential that these international initiatives provide for links with the national systems concerned, so that cases can be transferred directly, and for strengthened national capacities, so that the cases can be dealt with as soon as possible after the conflicts in accordance with fair-trial guarantees.

24

Most recently, charges were brought against the sitting head of state of Sudan, the case of Charles Taylor is also instructive.

Examples of International Tribunals There are various international tribunals which were brought in to existence in times of need to sanction offenders of international humanitarian laws and this has been made possible by the following international criminal laws: Customary international law Peremptory norm Hague Conventions Geneva Conventions Nuremberg Charter Nuremberg Principles United Nations Charter Genocide Convention Convention Against Torture Rome Statute The United Nations has established special international criminal tribunals in Rwanda and Yugoslavia to prosecute those responsible for atrocities during times of war and genocide. Successful convictions of these political and military leaders are meant to bring justice to victims and to deter others from committing such crimes in the future.

These special tribunals gave impetus to the formation of the International Criminal Court (ICC), finally established in 2003. Unlike the ICC, the special tribunals have a more limited jurisdiction and do not threaten the possible prosecution of leaders or nationals of powerful countries like the United States.

International Criminal Tribunal on Rwanda [ICTR] The International Criminal Tribunal for Rwanda (ICTR), or the Tribunal pnal international pour le Rwanda (TPIR), is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.

In 1995 it became located in Arusha, Tanzania, under Resolution 977. (From 2006, Arusha also became the location of the African Court on Human and Peoples' Rights). In 1998 the operation of the Tribunal was expanded in Resolution 1165. Through several resolutions, the Security Council called on

the Tribunal to complete its investigations by end of 2004, complete all trial activities by end of 2008, and complete all work in 201225.

The tribunal has jurisdiction over genocide, crimes against humanity and war crimes, which are defined as violations of Common Article Three and Additional Protocol II of the Geneva Conventions (dealing with war crimes committed during internal conflicts). International Criminal Tribunal on Yugoslavia [ICTY] The Bosnian war in the early 1990s saw ethnic cleansing, genocide and other serious crimes. In May, 1993, the UN Security Council established the International Criminal Tribunal for Yugoslavia (ICTY) to try those responsible for violations of international humanitarian law in the territory of the former Yugoslavia since 1991. The tribunal seeks to bring justice to the victims of the conflict and deter future leaders from committing similar atrocities. The ICTY has also taken on cases from the Kosovo crisis of the late 1990s.

Conclusions

The role sanctions can play in influencing the behaviour of armed groups is an issue that is far from easy to deal with. The fact that little is known of practices that may have been developed in the field by armed groups does not make things any easier. However, where organized armed groups are involved, it is difficult to depart from the paradigm applying to government armed forces, which provides a framework for discussing the factors and conditions which can make sanctions more effective. Those factors are based on a good knowledge of humanitarian law including the sanctions associated with noncompliance, and the assimilation of that knowledge. Hierarchical superiors play a crucial role in this context, for it is they who ensure, by giving clear instructions and orders, that subordinates comply with the law, and it is they who react promptly in the event of non-compliance.

25

United Nations Security Council Resolution 1824 s-Res-1824 (2008) page 1 on 18 July 2008.

Moreover, a prompt reaction must be a factor which subordinates have to reckon with before engaging in deviant behaviour. Once it has been recognized that sanctions play a role in ensuring better compliance with the law, it is essential to examine the nature of sanctions and the body best placed to impose them. It becomes clear that limiting sanctions to the penal components alone although compulsory in cases of serious violation of international humanitarian law makes the preventive capacity of such sanctions more random. The question of criminal sanctions remains at the core of international humanitarian law, however, whenever serious violations are committed. While requiring that the procedure that is established be compatible with fair justice, humanitarian law does not preclude the possibility that criminal sanctions may be imposed by bodies other than states, including the armed groups concerned. It would seem obvious, however, that studies carried out in greater depth are required in order to identify the conditions that could enable armed groups to exercise justice by establishing mechanisms which comply with the requirements of the law to the full and which can contribute to the active role played by sanctions in enhancing compliance with humanitarian law.