01 Jun The Importance of IHL Dissemination and Domestic War Crimes Prosecutions in Ensuring Respect for International Humanitarian Law
[Karolina Aksamitowska is a Swansea University Research Excellence Scholar at the Hillary Rodham Clinton School of Law, Swansea University, Wales, UK.]
The book that is the focus of this symposium, Ensuring Respect for International Humanitarian Law, is an important contribution to international law and practice. Generating respect for international humanitarian law (IHL) is one of the most difficult challenges faced by humanitarian actors nowadays and the book edited by Eve Massingham and Annabel McConnachie constitutes essential reading for academics and practitioners wishing to understand the many different aspects of the obligation contained in Common Article 1 (CA1) of the Geneva Conventions (GCs).
In each report on IHL and the challenges of contemporary armed conflicts, the ICRC has emphasised that the most significant challenge to IHL is the lack of respect for it. They have recommended that efforts should be taken at all levels (domestic, regional, international) and at all legislative stages, as well as military planning and decision‑making, to promote and ensure respect for IHL.
Several chapters of the book address a number of important aspects of the obligation, including for instance, the obligation to respect IHL in relation to the protection of civilians, detention, the rights of internally displaced persons, third states, private actors and the use of artificial intelligence.
I have decided to focus on two key areas which in my view are crucial in meeting the obligation contained in CA1 in two different categories of states, about which I have written elsewhere (here and here), which remain underexplored areas of international criminal law and international humanitarian law, namely domestic war crimes prosecutions and dissemination of IHL through the use of local customs and traditions. Creating war crimes units, as well as conducting domestic war crimes prosecutions and investigations in states hosting significant numbers of refugees from conflict affected areas, or states taking direct part in military coalitions and deploying troops abroad, is vital for generating respect for IHL at home. This would help spread awareness about the IHL principles among the general population, and in the long run, help deter future violations during deployment. On the other hand, the dissemination of IHL through the use of local customs could help ensure respect for IHL in countries directly affected by armed conflict, where non-state armed groups might not respect IHL as a Western concept. Appealing to local values and traditions corresponding to IHL principles could achieve better results in generating respect for IHL on the ground.
As noted by Parisa Zangeneh in Chapter 16, the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) was particularly important, because it was the first international tribunal whose subject matter jurisdiction included grave breaches of the GCs. Following this “Nuremberg moment” with the establishment of several international criminal tribunals, the international community changed the way states and international organisations could work together to ensure respect for IHL. The history of international justice, however, has now arguably entered a phase of another “Nuremberg moment” in which the majority of convictions for war crimes, most often relating to foreign terrorist fighters, are delivered by domestic courts and not by international criminal tribunals as was done before. Furthermore, the vast majority of investigations into alleged war crimes are carried out by domestic highly specialised war crimes units that were created within the police, immigration or prosecution services (here and here). International criminal investigations carried out by domestic war crimes units into alleged core international crimes can demonstrate that a state is adhering to its international obligations and can increase certainty and predictability of the law, effectively ensuring more respect for IHL in the long run.
Several chapters of the book (for example, Chapter 3 and 4, 7, 8, 12 and 15) introduce elements of the domestic perspective on different aspects of the obligation to ensure respect for IHL.
In Chapter 4, Lara Pratt presented an overview of how parliamentary committees may be used to facilitate a state meeting its obligation to respect and to ensure respect for IHL. On the legislative level, ensuring that an appropriate legal framework – that allows for the creation of a fully operational war crimes unit exists – should be one of the steps taken towards IHL compliance. The recent creation of a prototype war crimes investigations office with the new Office of the Special Investigator that was established to investigate alleged crimes identified in the Inspector General of the Australian Defence Force Afghanistan Inquiry into the conduct of Australia’s Special Operations Task Group, is certainly one of such steps that were taken already after the publication of the book. Another benefit of creating a domestic war crimes unit as a strategy to meet the obligation to ensure respect for IHL might be the deterrence effect. In states where the authorities have the jurisdiction and all the resources at their disposal, to investigate and prosecute the most serious international crimes, and where the courts are seen convicting individuals for atrocities, the respect for IHL would be higher and it is less likely that there would an incentive to cooperate with third states in operating secret detention centres. This topic is explored in Chapter 11, in which Kelisiana Thynne examines examples where third states may have an obligation to prevent violations in relation to secret detention operations.
Petra Ball, Yvette Zegenhagen and Marnie Lloydd address the relevant and timely topics of domestic accountability for terrorism-related crimes and the question of responsibility for prosecuting foreign fighters, in Chapters 12 and 15 respectively. Approaches to these issues, while largely shaped by the state’s national security responses, constitute an opportunity to generate respect for IHL domestically and abroad. Prosecuting these crimes domestically presents another opportunity to create awareness about IHL, and to promote and ensure respect for its rules.
In Chapter 6, Kenneth Wyne Mutuma offers a unique analysis of the case study of South Sudan and the neighbouring states in relation to ensuring respect for IHL. As the author notes, CA1 places a duty, and not merely a right, to take proactive steps to ensure respect for IHL, also for the bordering states. Core international crimes, such as war crimes, crimes against humanity and genocide, should be of concern to every state and prosecuting such crimes should be in the interests of all states to meet their obligation to ensure respect for IHL. Since many perpetrators of war crimes in South Sudan have moved across the border to Kenya, Kenyan authorities are in the position to take investigative steps to serve justice to the victims of atrocities. Similarly, countries hosting large numbers of Yazidi victims and witnesses, as well as significant numbers of asylum seekers from Syria and Iraq, such as Germany and Sweden, are at the forefront of accoutability efforts in relation to the genocide against the Yazidis and international crimes committed against other groups in Syria and Northern Iraq. Establishing a fully operational war crimes unit, which will be able to exercise universal jurisdiction over violations of the Geneva Conventions and Additional Protocols, is therefore a crucial step towards ensuring respect for IHL.
At the same time, disseminating IHL in South Sudan through appealing to local values and traditions, increases the chances of engaging with armed non-state actors on the ground with the aim of promoting IHL principles and generating respect for IHL in the long run. In Chapter 8, Eve Massingham discusses the obligation to disseminate IHL and the need for appropriate IHL training at all levels of the state armed forces. Arguably, in contemporary armed conflicts – often of non-international character and involving various non-state actors – the importance of IHL training to armed groups is even greater. One of the possible means of ensuring respect for IHL in conflict-affected areas and encouraging compliance is the dissemination of IHL through appealing to local values, customs and traditions. Local armed groups might be more willing to engage in a conversation about the rules of warfare, when they can identify with the values underpinning certain IHL principles.
In a divided world where it is not always possible to deliver justice to the victims in their countries of origin, the approach towards preventing future violations and punishing the perpetrators has to inevitably become twofold. Establishing war crimes units in host states, as well as states that take part in coalition fighting abroad, has the potential to raise awareness about the rules of IHL, and ensuring more respect for this area of law, acting as a deterrent. On the other hand, disseminating IHL through appealing to the local values and traditions in conflict-affected areas where IHL is not respected could help prevent violations and contribute to a dialogue between the civilian population, armed groups and humanitarian actors. The book Ensuring Respect for International Humanitarian Law has managed to address in-depth the most pressing obstacles to generating respect for IHL in a comprehensive and thought-provoking way and this blog post aimed at presenting domestic and grassroots approaches as a way to address some of these obstacles.