Françoise J Hampson
International Humanitarian Law in Situations of Acute Crisis
Contents:
1. INTRODUCTION
2. WHAT IS "INTERNATIONAL HUMANITARIAN LAW"?
a) International and non-International conflicts
b) Customary Law
c) Enforcement of International Humanitarian Law
3. SIMILARITIES AND DIFFERENCES BETWEEN IHL AND
INTERNATIONAL HUMAN RIGHTS LAW
4. THE CONTEXT
a) Pre-conflict situations
b) The conflict
c) Post-conflict
5. CONCLUSION
6. PROPOSALS
See elsewhere: Author's Biography
(appendix C)
1. Introduction
In the conclusion to her paper, Kate Mackintosh states that:
'the use of human rights analysis in planning and
implementing responses to crisis can improve protection'.1
The thesis of this paper is that, if human rights analysis is
to shape responses during as well as after the worst of a crisis, that analysis
must take into account international humanitarian law.
The paper will first examine what international humanitarian
law is about and then consider similarities and differences between that body of
rules and international human rights law. The third section will consider the
context in which international humanitarian law operates, by following through
the evolution of the crisis. Finally, there will be an attempt to evaluate the
role which international humanitarian law does and / or could play.
2. What is "international humanitarian law"?
International humanitarian law is also known as the law of
armed conflict or the law of war. In this paper, the first formula will be used,
with the abbreviation IHL.
IHL is the body of rules which regulates the conduct of
organised fighting parties during time of conflict. It is therefore immediately
apparent that it is only of relevance to those crises which involve organised
fighting and not, for example, to situations of famine, unconnected with war.
The reference to organised fighting is to distinguish situations in which IHL is
applicable from those involving criminal violence or mere banditry, in which it
is not. In some circumstances, it may be difficult to distinguish the two, as in
the case of local people with guns manning barricades in Bosnia-Herzegovina.
Relevant factors for determining how the violence should be characterised
include the existence, or otherwise, of some structure of command, military and
/ or political.
IHL applies equally to all the fighting parties, irrespective
of the lawfulness of the resort to armed force. A separate body of rules
addresses the lawfulness of the resort to armed force.2 The equal application of IHL to all the parties does not in any way affect their legal status. In
particular, it does not imply, tacitly or overtly, any recognition of "rebels"
or view as to the legitimacy of their cause.3
In essence, and this must be accompanied by the usual caveat
concerning oversimplification, IHL regulates the conduct of hostilities with a
view to keeping the inevitable killings and destruction to the inevitable
minimum and protecting, so far as possible, those not involved in the fighting
(i.e. civilians). It affords particular protection to the most vulnerable
victims of war, such as the wounded and sick and persons in the power of the
"other side", including former fighters.
It attempts to achieve those objects by
-
identifying what can be attacked and /or
-
identifying what cannot be attacked, except in certain
circumstances and
-
proscribing indiscriminate attacks, on account of the
risk involved to those not participating in the conflict and
-
proscribing the use of certain weapons on account of their
effects.
This part of IHL is concerned with the conduct of military
operations and essentially consists of "thou shalt not" injunctions.4
IHL addresses the need for protection of the most vulnerable
by imposing obligations on the party in whose hands they find themselves. The
protection of the wounded, sick, shipwrecked, prisoners of war and civilians in
the hands of an opposing party essentially takes the form of "thou shalt"
obligations.5
The detailed rules which make up IHL are to be found in both
treaty law and customary law. There is a considerable body of detailed treaty
rules, much of which has received widespread ratification.6 Most of the treaty
law concerns international armed conflicts, that is to say conflicts between two
or more states and situations of belligerent occupation, whether or not opposed.7
In some circumstances, conflicts in the name of self-determination are treated
as international, even if they take place within the territory of one state.8
There is a limited amount of treaty law applicable to
non-international conflicts and, within that limited framework, the main focus
is on protecting civilians and the particularly vulnerable.9 In other words,
there is very little on the conduct of hostilities between the fighting parties,
beyond the minimum rules necessary to protect the civilian population from
direct attack or the indirect effects of the fighting.
a) International and non-International conflicts
A moment's thought will make it clear why there is this
difference between the treaty rules applicable in international and
non-international conflicts. In the first situation, a state is fighting against
a similar type of entity and one which can make the same type of legal claims.
In the case of the Gulf War in 1990, for example, Iraq was in fact the
aggressor. Kuwait had the right of self-defence. Iraq would also have had the
right of self-defence if it had been attacked. That symmetry is not found in
internal conflicts. The State has the monopoly on the legitimate use of force.
The "rebels" are engaged in unlawful violence, usually against the State. If
captured, they may be tried not merely for murder but for treason. Even if the
"rebels" confine their attacks to members of the security forces, they are still
subject to the exercise of the state's criminal jurisdiction.
In other words, a civil war is not, legally or politically,
the same kind of thing as an inter-state war but within one State. States are
very concerned lest they appear to give recognition to the "rebels" or
legitimacy to their cause. This explains why the rules are less developed,
particularly with regard to the conduct of hostilities. It does appear, however,
that, in some quarters at least, there is the beginning of a tendency to assume
that "gaps" in the rules applicable in civil wars can be filled in with the more
detailed rules applicable in international conflicts. Two examples will
illustrate the trend. One is the extension of limitations on the use of
anti-personnel landmines (APMs) to non-international conflicts, by treaty law.10
The second example comes from the work of the International Criminal Tribunal
for the Former Yugoslavia (ICTY), which has before it issues such as the
applicability of the rules on command responsibility in non-international
conflicts.11
Nevertheless, it is clear that, legally at least, it is
important to distinguish between a conflict characterised as international and
one characterised as non-international. There are two other significant
threshold questions. Within the category of non-international conflicts, one
must distinguish between high intensity civil wars, in which relatively detailed
treaty rules are potentially applicable12, and conflicts of a lower intensity in
which the only applicable treaty law is common Article 3 of the four Geneva
Conventions of 1949.13 The second threshold issue is the question of what
constitutes an "armed conflict"? Isolated and sporadic acts of violence are not
included.14
It will be recalled that human rights law also has a
threshold - the point at which a state is entitled to derogate and modify the
scope of certain of its obligations.15 There is no formal link between the human
rights threshold and the IHL threshold.16 It is to be hoped that human rights
monitoring bodies will determine that a state which invokes its right to
derogate is estopped from claiming that the situation does not cross the
threshold for the application of at least common Article 3 of the Geneva
Conventions. This should not be used as an excuse for lowering the derogation
threshold. It is to be hoped that common Article 3 will be applied even in
situations in which a State is not entitled to derogate.
b) Customary Law
Customary law also plays a significant role in IHL. Given the
quantity of treaty law, customary plays something of a subsidiary role in
international conflicts. Potentially, it has a much greater part to play in
internal conflicts. There is considerable uncertainty as to the content of
customary law in such situations. That may be clarified in 1999 when the
International Committee of the Red Cross (ICRC) is due to submit a report on
customary law to the next Red Cross Conference. It will be based on what is
believed to be the most thorough examination of state practice ever undertaken.
In the meantime, the ICTY is already making a contribution. The appeal chamber
has already stated that significant parts of the "laws and customs of law"
applicable in international conflicts also apply, as a matter of customary law,
to internal conflicts.17 Significant clarifications of custom as a source of IHL
can be expected from that Tribunal over the next few years.
c) Enforcement of International Humanitarian Law
The system of enforcement of IHL is its weakest point. It
relies principally on enforcement through the criminal law of the fighter's own
state. In addition, every State is required to bring proceedings against those
suspected of having committed "grave breaches" of the Geneva Conventions and
Protocol I of 1977, irrespective of the nationality of the alleged offender or
the victim and irrespective of where the act was committed.18 In the case of
internal conflicts, the ICTY has ruled that States are free to bring proceedings
on the same basis against individuals accused of violating Common Article 3 of
the Geneva Conventions.19 They are not, however, required to do so. Much will
depend on whether the domestic law of a particular State allows for this type of
jurisdiction (universal jurisdiction).
It is self-evident that the overwhelming majority of war
criminals remain unpunished. There are a variety of reasons for this. First,
State authorities do not have a good track record for the prosecution of their
own forces for suspected violations of IHL. They do enforce the rules when the
issue concerns the effective functioning of the armed forces (e.g. failure to
obey an order) but not when the victim was a foreigner or a civilian. Publicity
may lead to prosecution in individual cases but then the defendant may have a
sense of grievance for having been picked on arbitrarily.20
It is not clear that non-State forces have even shown the
desire to "prosecute" a member of their own or the State forces. They do not
generally have the machinery to do so. If any proceedings precede punishment,
they are almost certainly a singularly rough form of justice.
The record of third States is no better. It will be recalled
that, in the case of "grave breaches", they are under a legal obligation to
prosecute. Nevertheless, the author knows of no case where a State prosecuted an
individual on that basis alone.21
Prosecution may be difficult during an ongoing conflict for
practical reasons. Even after the end of the fighting, however, experience
suggests that there is no improvement. Amnesties are often said to be the price
of a peace agreement and a transition to civilian rule. The experience of
amnesties in Central and Latin America suggests that this may be called into
question.22 Very recently in Argentina there have been heated debates about a
long-standing amnesty for low and middle rank officers involved in the "dirty
war". Sleeping dogs may have a tendency to wake up! Even at the point of
transition, individuals in Rwanda and the former Yugoslavia have disputed the
claim that there is a conflict between justice and reconciliation. The victims
of the situation, and not just outsiders, have said that there can be no
reconciliation without at least some measure of justice.
No consistent position has been taken by third States.
Hand-wringing has not been accompanied by effective action. There are, of
course, practical difficulties in bringing proceedings before their own courts
but, even where that has been possible, they have generally shown a great
reluctance to do so.23 The one exception is in relation to suspects from the
former Yugoslavia. Certain states have brought proceedings, usually either
because they had offered the suspect to the ICTY, who rejected him, and they
effectively had no option but to try him themselves or because they had not
introduced the domestic legislation necessary to effect a transfer to the ICTY.24
This "spin-off" effect of the existence of the ICTY suggests an additional
reason for supporting the creation of a permanent criminal court.
Third states have also seen sleeping dogs wake up, as in the
case of pressure to try those alleged to have committed international crimes
during World War II. The experience in Australia, Canada and the UK suggests,
not surprisingly, that trials fifty years after the events are fraught with
difficulty. They also illustrate the possible problem of giving refuge or
granting asylum to war criminals and those responsible for crimes against
humanity or genocide.
This points to the need for trials at the time or as soon as
possible after the event. The domestic legal system is best placed, practically
speaking, to obtain evidence and summon witnesses. There are nevertheless real
political difficulties in expecting a post-conflict domestic legal system to
give fair trials to suspected war criminals. An international tribunal is a
necessary fall-back but it needs to have the power to compel attendance and the
production of documents.
If there was a reasonable prospect of an individual being
tried for violating IHL, it might have a marked effect on the current trend of
deteriorating respect for the laws and customs of war.
3. Similarities and differences between IHL and international
human rights law
The underlying object of both IHL and human rights law is to
avoid unnecessary pain and suffering. Both bodies of rules are based on respect
for the human person.
There are significant differences between the two sets of
rules but, far from being a cause of conflict, they in fact enable the rules to
complement one another.25 They need to work in different ways because they are
designed to operate principally in different situations.
IHL, both in customary law and as treaty law, is very much
older in origin than human rights law. The first text which resembles a military
code is that of Sun Tzu.26 The three main monotheistic religions contain
principles, of varying specificity and obscurity, regulating conduct in
conflict. To that tradition was added chivalric notions of honour, at least
between fighters of a certain rank. The political developments in the
seventeenth and eighteenth centuries, notably the creation of sovereign nation
states, contributed to the nationalisation of honour. This gives IHL something
of an advantage over human rights law, when it is invoked with the kind of
belligerents so common today. The argument sometimes made, that international
human rights law reflects Western imposition, does not apply. It is possible to
appeal to fighters by appealing to the warrior tradition and / or cultural and
religious principles in their own society. Both these sets of values may include
care for the vulnerable and protection for non-fighters. In many situations,
there is a very real ignorance regarding human rights values, not least because
the values of civil society are unknown. Human rights notions do not exist in a
vacuum of political philosophy. The only premise of IHL, however, is the fact of
fighting. That may make it easier to enter into an IHL dialogue than a human
rights dialogue, where there has never been the lived experience of civil
society.
Another difference is that IHL is based on membership of a
group and on obligations, not rights. How a person has to be treated depends on
whether he / she is a civilian or a combatant or whether he / she is wounded or
sick. It does not depend on any inherent attribute of the individual. The
preoccupation of human rights law with the individual and its apparent lack of
concern for the community causes difficulty in gaining acceptance for human
rights values in cultures and societies which are much more community-minded
than Western European societies. Those cultures may also be more receptive to
the acceptance of obligations than to the assertion of rights.
Insofar as IHL and human rights law "deliver the goods", they
do so through different systems and structures. Stable, which usually also means
strong, government is necessary to deliver effective human rights protection.
Respect for human rights usually makes such governments more stable, not less.
The machinery of stable government includes functioning legal systems and
independent judicial officers. That machinery is necessary to human rights
protection. Without it, there can be no long term foundation for human rights
protection. Protection of human rights requires mechanisms to investigate
alleged abuses and thereby to prevent them. For these reasons, it seems
impossible to envisage meaningful human rights protection in a failed State.
IHL, by contrast, functions essentially through the criminal
law, whether enforced by court martial or the ordinary criminal courts. It
imposes obligations on individuals, for the breach of which they may be
criminally liable. An important tool for ensuring respect for the rules is the
principle of command responsibility. A commander is responsible not only for
what he does but also for what those under his command do, if he knows or ought
to have known about it. This not only assists in maintaining discipline but, if
the commander knows that in practice he will be called to account, it can make a
significant difference to respect for the rules by soldiers on the ground.
It is possible to have highly disciplined fighting forces
even where state structures are collapsing. If there is a culture of obedience
to orders and responsible command, this could remain an effective constraint on
conduct, even where the chances of trial may be remote. It should be remembered
that simply because civilian judicial mechanisms have ceased to function does
not necessarily mean that the threat of a court martial is an empty one.
In other words, in the case of failed States, it will rapidly
become very difficult to ensure human rights protection but the possibility of
IHL acting as a constraint on the conduct of fighters may last a little longer.
Insofar as IHL depends more than human rights law on the conduct of individuals
on the ground, the possibility exists that fighters in one area may respect the
rules whilst those in another do not. Insofar as human rights require effective
institutional protection (e.g. effective investigators, effective prosecutors,
independent judges), a breakdown somewhere is more likely to mean a breakdown
everywhere.
These factors suggest that, during a period of armed
conflict, use of IHL as a tool of persuasion with the fighting parties may be
more effective than reliance on human rights principles alone. This is likely to
be particularly the case with non-State fighters. In the aftermath of the
fighting, reliance has to be placed on human rights because IHL ceases to be
applicable, except in relation to criminal proceedings arising out of the
conflict. In that case, the protection of the vulnerable in situations of acute
crisis requires the use of both IHL and human rights to achieve the same goal.
The choice will depend on what is likely to be most effective with the
particular group being addressed and at that particular stage in the evolution
of the conflict.
4. The context
Whilst IHL is only applicable during the conflict, the
situation on the ground before the outbreak of fighting will have an impact on
the conflict and what happens during the fighting will affect the situation
after the close of hostilities.
a) Pre-conflict situations
There are usually clear warning indicators that a situation
is deteriorating to the point at which open organised fighting is likely. Many
of the signs surface in one or other of the human rights bodies.27 The problem is
not that they are not recognised for what they are but rather that the
international community appears unable to find the will and resources to take
effective preventive action.
Significant under-development is often accompanied by a lack
of good government. A small element of economic disturbance may set in train
increasing disaffection and criminality. The threat to governmental authorities
will often be met with greater repression. Whilst the elements are different in
each situation, the pattern is often remarkably similar. The economic, social
and legal system is often fragile, with little scope for adjusting to setbacks.
A problem, man-made or natural, occurs and the authorities do not have the
tools, resources or experience to cope, other than by resorting to increasingly
repressive measures in the face of disturbances. Another common model is where
one group within a State feels itself to be disadvantaged and wants greater
autonomy or even secession. Even if other elements are present, such as
different ethnicities, there is usually also some perception of economic
grievance. That is probably also true in the third type of scenario - a power
struggle, possibly with an ideological component. For a significant number of
individuals to be willing to fight, they must think that they have nothing to
lose and / or something to gain or they must think they have no choice.
The form the collapse into fighting takes will affect the
extent to which an organised infrastructure can be used, for example for the
delivery of humanitarian assistance. The pre-conflict situation will also affect
which agencies are already in theatre. A development agency already on the
ground may be able to implement relief programmes more rapidly if personnel are
already there and they have existing contacts with officials at both the local
and national level.28
Weapon procurement, by both states and other parties, will
shape the conduct of the conflict. Whether unreasonable quantities of weapons
are stockpiled or whether they are purchased in the immediate run-up to the
conflict, the international community is in a position to do something about it.
The difficulty is that it appears illegitimate for a well developed Western
State with sophisticated armed forces and equipment to tell another State what
it can be allowed to have to defend itself. Expressing the total appropriate
defence expenditure as a proportion of GNP or of expenditure on health and
education may be less objectionable.
If States wished to prevent crises from becoming wars, much
might be achieved through effective limits on weapon acquisition. Economic
pressures within arms manufacturing States make it very unlikely that this
problem will be addressed effectively.
b) The conflict
The causes of the conflict may well affect the form that the
fighting will take, along with such practical constraints as resources and
geography. In particular, if the very object or goal of one party is unlawful
(e.g. the involuntary displacement of a distinct group in the population) it is
most unlikely that it will be achievable by lawful means. That will make it more
difficult to get respect for IHL on the ground. "Ethnic cleansing", for example,
required the targeting of civilians, in order to get them to move. That includes
not only direct attacks but also denial of humanitarian assistance. There is a
certain logic to the means chosen in pursuit of the unlawful goal. The
unlawfulness of both means and ends is unlikely to deter the belligerents. Where
the goal is simply to gain power, it may be easier to persuade the parties to
avoid unlawful means in the pursuit of that objective.
There is a real challenge for the international community. If
aggression or "ethnic cleansing" or atrocities are not to be rewarded, then the
means must be found to prevent them. States lost a good deal of credibility on
account of their moral posturing about atrocities in Bosnia-Herzegovina, without
having the political will to generate the means to prevent the objectionable
results. Where States take strong moral positions but no effective action to
support them, any peace-keeping forces in the field are, from the outset, likely
to suffer a loss of credibility. This adversely affects their deterrent value.
The presence of "peace-keeping" forces will affect the
dynamics of the conflict.29 The issues include whether the force is there with
consent, whether it has a Chapter VI or Chapter VII mandate, whether it has a
peace-enforcement, wider peace-keeping or traditional peace-keeping role,
whether it has the human, material and logistic resources to carry out its
mandate, whether it has clearly defined and achievable goals or whether its
presence is a substitute for policy and whether the various contingents have the
training and experience necessary for the particular operation. Whilst these
elements are inter-related as far as the operation itself is concerned, they
reflect different types of problems. Far and away the most significant issue is
the question of political will. If the international community wills the end, it
must will the means - but often does not do so. Another problem is decisions
with a decisive impact on the likelihood of achieving the military objective
being taken by diplomats and politicians, without adequate consideration being
given to non-negotiable military realities (e.g. "safe areas" in
Bosnia-Herzegovina). A variety of legal questions are also likely to arise, both
with regard to the creation of the force and in the dealings of the contingents
with one another and with the force commander.
What the "peace-keeping" force can do and what it is
perceived as being able to do (which may well be different) will have a
significant impact on the conduct of the belligerent parties. The force may
become the target of attack, both directly and by being made ineffective.30
The variables associated with the role and configuration of
the force and the variables in the response of the belligerents to the force
make it impossible to predict in the abstract what will happen in a given
situation. It can nevertheless be said with some certainty that the presence of
the force will affect the conduct of the hostilities and the treatment of
victims of the conflict. In other words, it will have an effect (positive or
negative) on the respect for the rules of IHL. Those rules, and the language of
the rules will be an important means of communication between the fighting
forces and the "peace-keepers". It may, in a real sense, be the only common
language between them.
The peace-keeping forces not only have to deal with the
belligerents but also with the presence of intergovernmental and
non-governmental organisations that find their way to conflict zones. They
include UN agencies, UNHCR and UNICEF. The NGOs include long-established,
responsible and experienced organisations. They also include "cowboys", whose
presence may attract media attention which puts pressure on other organisations
to engage in high profile work to maintain donor support. The ICRC clearly has a
unique role in being expressly mandated to be involved in conflict situations
and having unparalleled experience. Nevertheless, the ICRC way of doing things
is not the only way of doing things. Different approaches of different
organisations could, if properly co-ordinated, complement one another to the
benefit of those they are there to help.
The other players with a potentially important role are the world media. The
extent to which the "CNN factor" plays a decisive role is a subject of dispute
between journalists themselves.31 A separate but relate
question is the need for journalists to know and understand IHL. That would
enable them to distinguish between political elements in the situation and war
crimes.32
Whilst these players are not the principal addressees of IHL,
nevertheless the law provides a context for their activities and may determine
how they are characterised. The moral sense of an NGO that it should be able to
deliver relief because it is helping victims may find expression as their
"right" to deliver or the recipients' "right" to receive humanitarian
assistance. Again, the language of discourse of IGOs and NGOs with belligerents
and peace-keepers alike is IHL. It is all that is available to them in common.
This phenomenon is also reflected in the language of Security Council
resolutions. In the past decade, they have used the language of IHL very much
more than previously. It is significant that it is not merely lawyers who are
analysing activities in terms of IHL but all the players, both those in
the field and those dealing with the political aspects of the conflict. In order
for IHL to be used in this way, it is necessary for all the parties to learn the
language. Progress is being made but there is a long way to go.
c) Post-conflict
The way the conflict is conducted will play an important role
in shaping the outcome. The duration of the fighting, the extent of population
displacement, the type and scale of atrocities, the extent of destruction of the
physical infrastructure, will all affect the chances of obtaining a sustainable
cease-fire and its content. Those elements will be affected by who is where and
doing what and what is being reported. The actions and reactions of the parties
are shaped by and expressed through the moral precepts which form the foundation
of IHL. Examples from the conflict in Bosnia-Herzegovina will illustrate the
point. "Ethnic cleansing" seemed wrong per se. It was not the detention of men
of fighting age that was wrong but the conditions of detention and the savage
ill-treatment to which they were subjected. The detention of women and children
would be wrong per se. The attacks against the "safe areas" were wrong because
they were full of displaced people who could not defend themselves and were made
victims twice over. The fact that, in the last case, the public did not know
that the Bosnian Serbs were being attacked by forces within the "safe areas" is
beside the point. Given the facts as he knew them, "Joe Public" thought it was
wrong and, had the facts been as he thought them to be, it would also have been
unlawful.
IHL in providing a context for the analysis of conduct in
conflict also shapes the outcome. No one can pretend that it is decisive but it
is the language through which the experience is mediated.
As the situation evolves into one in which rehabilitation,
the re-establishment of the institutions of civil society and the protection of
human rights become predominant, the new players will be building on a
foundation created in part by an IHL analysis. It is therefore important that
they should understand both the IHL discourse which they inherit, as well as the
human rights language with which they will seek to build the future.
Some aspects of the conflict will need to be addressed even
whilst peace building is under way. The obvious examples include clearing
unexploded munitions, notably APMs and determining whether alleged war criminals
are to be prosecuted and, if so, by whom. There will also be a need to disarm
the fighting parties and to enable them to make the transition to a peace-time
environment. This can be a particular problem in the case of orphaned child
soldiers. The police force will need not only to be trained but to be subjected
to effective accountability. It is likely that the police will have played a
nefarious role in the situation which deteriorated into fighting and during the
conflict. They may well need to prove they deserve the confidence of a
suspicious population.
The case of the policy provides an instructive example of
what needs to be done to secure effective human rights implementation. An
observer would be forgiven for concluding that the international community
thought it sufficient to provide a few training sessions for the new police
force. In fact, what is needed requires much greater analysis. In a context in
which there has been no real experience of civil society, the police may have
perceived themselves, and been perceived by others, as defenders of the State,
rather than as defenders of the public. That would point to a need to educate
both the new police force and the public as to the proper role of the
police. Even that is insufficient. A combination of sticks and carrots is
necessary. The police must be promised and actually receive an appropriate
salary, so that there is no "need" for them to resort to corruption. It must be
seen as a worthwhile job, not just in financial terms; one which and individual
would not wish to loose. It must also be clear that breaches of the rules will
result in the loss of the job. That requires effective accountability and an
independent investigative mechanism. The public must be encouraged to make
justified complaints, secure in the knowledge that they will be investigated and
acted upon. That, in turn, requires an effective and independent system of
prosecution. In other words, any attempt to create an effective police force
which does not address the need to create an effective, independent, non-corrupt
legal infrastructure, is probably doomed to failure.
Where the new police force consists of demobilised
ex-fighters, there are special challenges. It is first necessary to ensure that
they do not remain potential fighters, masquerading as bodyguards or specialist
police force. That means de-militarising and disarming them, a task which may
have to be carried out by soldiers. To avoid loss of face for them, it may in
fact be necessary to use the threat of a big military stick. This enables the
"policemen" to surrender their weapons because they had no choice, rather than
tempting them to risk shooting it out. De-militarising them has to be done
consciously. It is not likely to be effective if a policing culture is simply
superimposed on a military one. That may call for different trainers from those
used to inculcate good policing habits.
The creation of an accountable police force cannot be
achieved without an analysis of the past role of the police and the role in the
crisis of the individuals destined to be policemen in the future or without the
creation of effective mechanisms of accountability.
This is but one illustration of a more general issue.
Alongside the legacy of the fighting, peace-building needs to be taking place.
That involves in post-conflict situations, participation, accountability, and
respect for the rule of law. A human rights analysis then again comes into its
own.
5. Conclusion
Those who think that human rights law is not applicable in
armed conflict situations are, quite simply, wrong. Its application is, however,
modified and restricted. It is not designed for conflict situations.
International humanitarian law, however, is designed
for just such situations. It meets the needs of fighting parties in an
even-handed way whilst seeking to protect civilians and the most vulnerable to
the greatest extent practicable.
The concepts and language of IHL provide a neutral,
non-partisan tool, which can be used by all the actors involved in the
situation, including IGOs and NGOs. For them to be able to use it, they first
need to learn it. More needs to be done to ensure that all those who may need to
use IHL get to know it.
6. Proposals
- link the derogation threshold in human rights law to the threshold of
common Article 3 of the Geneva Conventions 1949 by saying that at least
the latter is applicable if the State asserts the right to derogate
- give domestic courts the jurisdiction to try those suspected of violating
common Article 3 on the basis of universal jurisdiction, subject to the
consent of the appropriate law officer
- ensure that the International Criminal Court will not only have the
jurisdiction to try suspected war criminals but the power and resources to
make that effective - Amongst other things, reservations which would preclude
the transfer of nationals to the ICC must be prohibited
- make the dissemination of IHL a matter of command responsibility within
the armed forces and, as required by international obligations, ensure
dissemination of IHL to the civilian population by including it in the
educational curriculum
- further improve the participation of NGOs in joint training exercises with
armed forces
- provide human and material support for the military courses run by the
International Institute of Humanitarian Law, San Remo. (It provides courses on
IHL run by the military and for the military. Sponsorship is needed to help
members of the armed forces from less developed countries to attend and to
create a permanent staff.. Members of the armed forces, and not just lawyers,
should be positively encouraged to attend, both as participants and
instructors.)
