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Respect for International Humanitarian Law
States Parties to the Geneva Conventions are under the obligation to respect and to ensure respect for international humanitarian law, in all circumstances (GCI–IV Art. 1; API Arts. 1, 80.2). The fact that humanitarian law reaffirms States’ obligation to respect its provisions—though this duty exists for all treaties (Art. 26 of the Vienna Convention on the Law of Treaties)—reflects the binding nature of these texts. ▸ International conventions
The duty to enforce this respect exists on two levels. On a national level, States must incorporate the provisions of international humanitarian law into their domestic legislation and ensure that national penal sanctions exist, in case someone commits a violation. On the international level, States must take action if another State commits a violation, because the respect for humanitarian law is crucial to maintaining the international public order that all States must defend.
This respect and accountability are not based only on mechanisms for punishing violations. Because the damage caused by such violations is irreparable, this respect must be implemented before the need for punishment arises. The enforcement of humanitarian law therefore also rests on the creation of distinct spheres of responsibility for all participants in situations of tension or conflict, whether they are States, organizations, or individuals. These may include, in particular, States Parties to the Conventions, parties to the conflict, combatants, and relief organizations. ▸ Responsibility
Furthermore, it is important to note that all States or parties to a conflict are held accountable under humanitarian law, even if an adverse State or party violates its rules. The obligation to respect humanitarian law is not, in fact, tied to reciprocal levels of commitment (GCI–IV Common Arts. 1, 2). It remains applicable even in situations in which one or more parties to a conflict are not party to the Conventions, for instance, or in cases in which they represent non-state entities or authorities that the adversary does not recognize. ▸ International conventions ▸ Legal status of the parties to the conflict
Governments are still the main entities held accountable under humanitarian law, since they have the means to protect, apply, and enforce respect for it. The obligations of States in this regard can be divided into several specific duties:
- Parties to a conflict, and in general States Parties to the Geneva Conventions, must give orders and instructions to ensure that the provisions of the Conventions and Additional Protocol I are observed and must supervise their implementation.
- States undertake to incorporate the provisions of humanitarian law into their national laws, especially in matters of criminal law (GCI Art. 49, GCII Art. 50, GCIII Art. 129, and GCIV Art. 146).
- They have the duty to disseminate the norms and rules of humanitarian law as widely as possible throughout their countries and, in particular, to the members of their armed forces (GCI Art. 47; GCII Art. 48; GCIII Art. 127; GCIV Art. 144; API Arts. 83.1, 87.2; and APII Art. 19).
- They are under the obligation to establish effective penal sanctions for persons who commit or order any acts that violate humanitarian law (GCI Arts. 49, 52; GCII Arts. 50, 53; GCIII Arts. 129, 132; GCIV Arts. 146, 149; and API Art. 86.1). If such a crime is committed, States are under the obligation to search for the authors of these acts and bring them before their own courts, regardless of their nationality. They may also—if they prefer, and in accordance with the provisions of their own legislation—hand such persons over for trial to another State Party concerned, provided this party has made out a prima facie case.
- States undertake to act jointly or individually, in cooperation with the United Nations and in conformity with the UN Charter, in situations of grave violations of the Geneva Conventions or of Additional Protocol I (API Art. 89).
The obligation to respect humanitarian law creates responsibilities for the different national authorities. However, if they fail to meet these obligations, the possibility of judicial recourse is not automatic. In case of grave breaches of the Geneva Conventions, international humanitarian law foresees penal sanctions based on the principle of universal jurisdiction and through the International Criminal Court.
In case of other violations of the Conventions, judicial recourse may exist at national levels, but these are not specified in the Conventions, and the recourse will therefore depend on each different national system of justice.
As a general rule, it is always possible to inform the International Committee of the Red Cross (ICRC) of any violations that have been noted, since the ICRC is the guardian of humanitarian law and the organ carrying out the role of protecting power.
States may also refer to the International Fact-Finding Commission to investigate violations of humanitarian law that occurred in the context of a specific conflict (API Art. 90).
Violations of humanitarian law often qualify as violations of other international conventions—namely, human rights conventions. In each case, the entire range of recourses offered by these treaties must be taken into consideration.
▸ Individual recourse ▸ International conventions ▸ International Criminal Court ▸ International Fact-Finding Commission ▸ Legal status of the parties to the conflict ▸ Mutual assistance in criminal matters ▸ Penal sanctions of humanitarian law ▸ Protecting powers ▸ Protection ▸ Responsibility ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity
Respect for IHL under Customary Law
The obligation to comply with international humanitarian law has become a norm of customary law. The study on the rules of customary international humanitarian law published by the ICRC in 2005 spells out specific obligations in connection with the respect and the enforcement of IHL in international and non-international armed conflicts:
- Rule 139: Each party to the conflict must respect and ensure respect for international humanitarian law by its armed forces and other persons or groups acting in fact on its instructions, or under its direction or control.
- Rule 140: The obligation to respect and ensure respect for international humanitarian law does not depend on reciprocity.
- Rule 141: Each State must make legal advisers available, when necessary, to advise military commanders at the appropriate level on the application of international humanitarian law.
- Rule 142: States and parties to the conflict must provide instruction in international humanitarian law to their armed forces.
- Rule 143: States must encourage the teaching of international humanitarian law to the civilian population.
- Rule 144: States may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law.
For Additional Information: Ewumbue-Monono, Churchill. “Respect for International Humanitarian Law by Armed Non-state Actors in Africa.” International Review of the Red Cross 864 (December 2006): 905–24.
Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, part 6.
ICRC. “Respect for International Humanitarian Law: ICRC Review of Five Years Activity (1987–1991).” International Review of the Red Cross 286 (January–February 1992): 74–93.
Palwankar, Umesh. “Measures Available to States for Fulfilling Their Obligations to Ensure Respect of International Humanitarian Law.” International Review of the Red Cross 298 (January–February 1994): 9–26.
Pejic, Jelena. “Accountability for International Crimes: From Conjecture to Reality.” International Review of the Red Cross 845 (2002): 13–33.
Pfanner, Toni. “Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims.” International Review of the Red Cross 874 (June 2009): 279–328.