Implementation and observance
Implementing international humanitarian law (IHL)
The rules of international humanitarian law must at least be adequately disseminated to those under obligation to implement them, and if possible also to those who benefit from them. Furthermore, measures have to be taken to organise the structures, material resources and personnel required to implement the rules effectively. Finally, provision measures should also be in place to prevent and, if need be, suppress violations of IHL rules. A fair number of these measures need to be guaranteed at all times, including times of peace, and should be able to take effect immediately whenever an armed conflict renders this necessary.
The implementation of IHL is primarily the responsibility of the nations bound by this body of law. In Belgium, this responsibility is shared by several federal ministries, especially Defence, Justice, Home Affairs and Public Health, but also the Ministry of Foreign Affairs, Foreign Trade and Development Cooperation. Belgium’s Regions and Communities are also involved in several ways. To facilitate coordination in this connection, in 1987 an Interministerial Commission on Humanitarian Law (CIDH/ICHR) was set up. The members of this Commission include representatives of the aforementioned federal ministries and of the prime minister, and the Commission also invites the governments of Belgium’s Regions and Communities and the respective branches of the Red Cross of Belgium to send representatives to attend its meetings.
However, the nations in question are not left entirely on their own to fulfil this task. For example, thanks to its advisory services, the International Committee of the Red Cross (ICRC) offers them the benefit of its experience, as well as documentation and tools for disseminating IHL. The ICRC also periodically organises meetings between the respective National Committees on Humanitarian Law and places at their disposal an electronic forum for exchanging information and discussing IHL issues. It regularly helps to organise seminars and colloquiums on implementing IHL, including in regions ravaged by armed conflicts. States are also encouraged to implement IHL by way of resolutions adopted by UN bodies and other international institutions. For example, let us not forget that every two years the UN General Assembly considers an item on its agenda entitled Status of the Protocols Additional to the Geneva Conventions of 1949 relating to the protection of victims of armed conflict. Also, in 2005 the European Union adopted its Guidelines on the promotion of international humanitarian law.
Respecting international humanitarian law
The adoption of measures designed to implement humanitarian law clearly constitutes a key precondition for ensuring that this body of law is respected. Naturally, the task remaining is to ensure that the rules of IHL are effectively respected as soon as they become applicable following the outbreak of an armed conflict. Here once again, it is the respective States that bear the prime responsibility for doing this. Accordingly, discipline must be imposed on the relevant armed forces, forces of law and order, organised armed groups, and various public authorities or other powers-that-be. If this proves insufficient, sanctions must be provided for, once legal channels at the national level have been exhausted.
Belgium has pledged to allocate itself the resources it needs to pursue violations of IHL, including in terms of universal jurisdiction, whenever a sufficient link with our country justifies this. The international community is allocating itself increasingly effective resources to make up for the failings of nations at the domestic legal level. The International Criminal Court is the latest example of this, even though some way remains before its universality can be guaranteed and its actions stepped up. The EU, and Belgium within it, is also actively striving to secure this objective.
Ensuring that international humanitarian law is respected
International law has international control or repressive mechanisms whose scope varies greatly. The aim of these mechanisms and tools is evidently to foster or ensure respect for the legal rules involved.
The Geneva Conventions of 1949, and the Additional Protocols to them, dating from 1977, contain a provision not found in any other treaty, namely the commitment by the States in question not only to respect them, but also to ensure that others respect them. This provision enables - in fact explicitly obliges - States to intervene when other States are deemed to have violated their obligations regarding international humanitarian law. However, such an intervention cannot take just any form, but instead usually requires the UN Security Council’s approval. Other forms of intervention are only effective if conducted jointly by a significant group of States, often also under the aegis of the UN Security Council. For instance, they may take the form of economic, political or consular sanctions (visa restrictions). Before adopting such extreme measures, each State, either individually or together with others, must have an opportunity to take diplomatic steps and, if appropriate, retaliatory measures. For instance it may recall its ambassadors, break off diplomatic relations, and so forth. The appropriateness of these measures will also depend on their effectiveness. For example, breaking off diplomatic relations prevents the continuation of a dialogue that may prove more promising in terms of the outcome. The EU guidelines mentioned above govern joint action taken by the EU Member States to urge the parties involved in armed conflicts to respect IHL. Since 2006, the EU has publicly intervened on almost 200 occasions in connection with enforcing respect for IHL throughout the world.
Another mechanism specific to the Geneva Conventions of 1949 for ensuring compliance with them is that of ‘protective powers’, whereby neutral States are to be assigned to look after the interests of persons protected by the Conventions vis-à-vis the Parties exercising authority over them. This mechanism has never actually been applied. On the other hand, the ICRC may intervene to substitute for this mechanism. Accordingly, the ICRC is present around the world wherever there are conflicts, acting not only as the guardian of international humanitarian law, but also as a provider of assistance and protection for the victims of these conflicts.
Additional Protocol I of the 1949 Conventions de 1949 established an International Humanitarian fact-Finding Commission (IHFFC), a voluntary mechanism endorsed by around 70 States that has never been used for its prime objective. However, the IHFFC does help to promote international humanitarian law. It is regrettable that the international community neglects this instrument, because the IHFFC could play a useful role as a mediator before being forced to envisage the taking of repressive measures at international level. Currently, a leading Belgian expert in IHL, Professor Eric David, is chairing this Commission.
The international community is primarily holding discussions within the United Nations about concepts like the responsibility to protect, the fight against impunity and defending the rule of law. Although these discussions and their more specific follow-up measures extend beyond the framework of international humanitarian law alone, they also help to promote compliance with IHL. The development of international criminal justice with a view to curbing genocide, crimes against humanity and war crimes is one example of this.
Humanitarian aid, another way of respecting IHL
Broadly speaking, humanitarian aid can be defined as a contribution made by a public or private organisation in an effort to help the victims of a catastrophe. The catastrophe in question may be of natural origin (a cataclysm, major flooding or such like) or man-made (an industrial accident, armed conflict, etc.).
Humanitarian aid often raises complex problems and thorny issues that can prompt debate in international circles, one example being the issue of access to the respective victims. This issue, like many others, regularly features in discussions that usually take place in the UN’s Economic and Security Council, General Assembly or Security Council. There is an abundance of documents on humanitarian aid, and the issue is given general coverage elsewhere on this website. Here we will only cite a few documents, by way of some examples:
- The master plan for Belgian humanitarian aid, approved by the ministers for foreign affairs and development cooperation on 18 September 2006;
- the Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission (2008/C 25/01) containing the European Consensus on Humanitarian Aid, published on 30 January 2008;
- the principles and good practice of humanitarian donorship (GDH), adopted in Stockholm on 17 June 2003.
Naturally, the rules of international humanitarian law relating to assistance provided to the victims of armed conflicts set the framework for humanitarian aid in the event of armed conflicts. On top of this come the humanitarian principles of humanity, neutrality, impartiality and independence. These principles have governed the actions taken by the International Red Cross ever since its establishment. The other actors involved in humanitarian aid have understood that if they want to take credible action, they must also tend to respect these principles. These actors cannot always lay claim to total neutrality and the effective independence of action in the field. The assistance they provide will only remain effective and be accepted under certain conditions and under the strict proviso that it is impartial. However, under some circumstances, the ICRC will remain the only actor accepted by all parties as a provider of essential humanitarian aid. We should reiterate that Belgium actively supports the ICRC, which is one of the international partner organisations of Belgian Development Cooperation. Belgium is also a member of the ICRC’s Donor Support Group, along with 18 other ‘major donors’ in 2009.
Implementation of IHL by the ICRC
International Humanitarian Fact-Finding Commission (IHFFC)
ICRC activities on behalf of people affected by war
United Nations Office for the Coordination of Humanitarian Affairs (OCHA)http://ochaonline.un.org/
- Development “Constantly evolving IHL”
- Interministerial Commission on Humanitarian Law
- Human security
International Committee of the Red Cross (ICRC), IHL in brief:
Belgian Research Centre for Military Law and the Law of War - only available in French or Dutch, with a very full page of links, including links (click on “Liens utiles” or “Nuttige links”) to academic institutions and publications:
Belgian Ministry of Defence: