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24 November 2020 Written by  Debora Belachew and Yehualashet Tamiru

Snapshot Review of Imperative Necessity and challenges for Implementation IHL: Part One

 

 

Synopsis

The implementation of the International Humanitarian Law (hereinafter referred to as IHL) mainly rests upon the effort of the state parties. The international humanitarian law is currently accepted by every country in the world but the absence of a comprehensive and meticulous mechanism to enforce the rules embodied in IHL, is an Achilles’ heel fuelled by the very nature of IHL which is meant to regulate the issues that arise out of armed conflict.

Where there is an existing issue that causes harm, once recognized a law is set in that specific area to govern or to address that issue. This could be so as to minimize the damage that the issue causes, to prohibit that act from being committed or it could also be just to manage or set a guideline as to how those acts should be committed. Armed conflict or war is a commonly known phenomenon that causes great destruction.

Wars have existed since time immemorial and no one can clearly tell how or when it was assumed that wars should be a means to resolve conflicts. No matter how advanced we got, even if the reasons differ, the threat of armed conflict exists to this day. The weapons are only getting more complex and dangerous. This could only mean more harm and greater threat, as these complex machineries of destruction are built specifically to create damage. Not only that but their effectiveness and how powerful they are, is measured by their ability to cause great destructions. The greater the damage it causes the more powerful that weapon and the state that holds it is. Nobody knows when this way of resolving our differences will come to an end. But if it can‘t be fully prevented, the least that can be done is to have a law of armed conflict to minimize the damage that is caused by it.

IHL rules properly and effectively applied have many benefits to state parties implementing it. To mention a few: it promotes discipline in the armed force, enhances military efficiency and it will serve as a tactical means to overcome the adversary. There are various imperative reasons which necessitate the implementation of IHL that are overlooked by many member states in general and Ethiopia’s government in particular. This series of articles, therefore, will decoy our attention to the emphasis on the importance of and the challenges thereof in the implementation of IHL.

 

1. A brief overview of IHL

 

Even though the motive of the rules and regulations might not have been purely humanitarian, it is possible to find rules protecting certain categories of victims of armed conflict as early as 3000 B.C. For instance, in the ancient Hindus’ texts, it’s possible to find rules which are similar to the principle of distinction. The Hindu texts clearly recognized the distinction between a military target and a non-military target, which could not be attacked.

Despite this fact, the very beginning of modern codified IHL is highly interlinked with the incident of Solferino, which was a war among French, Italian, and Austrian forces that took place in 1859 at a place called Solferino. In this battle Henry Dunant, a businessman from Geneva witnessed the miserable fate of the wounded left behind on the battlefield. When he returned to his homeland he wrote a book entitled ‘A Memory of Solferino’.

From this time onward the issue started to be addressed, from only ten provision conventions in 1864 to the four Geneva Conventions which are very comprehensive were laid down to govern issues that arise out of war. Even though the world communities came up with very comprehensive rules that are meant to govern armed conflicts: four Geneva Convention, two additional protocols, and prohibition of the use of force under Article 2(4) of the UN Charter, we witness an ever-growing grave violation of humanitarian laws. Such atrocity and ruin violations happened even after the promulgation of such comprehensive law. By an overstretched assumption we shouldn’t be quick to judge that the cause is lack of rule or law governing the area, the cause is not a lack of rule covering such act rather it is the effective implementation and enforcement of the rules and principles.

IHL, as it is one part and parcel of the international law any loopholes in international law mutantis mutandis apply to it. One of the central critics that are perhaps considered as a great problem in international law is the lack of an effective central organ that oversees the implementation of those laws. The same holds true for IHL. The main problem is an implementation which has a lot to do with the lack of central enforcing body.

With the view to alleviate this problem, various mechanisms have been employed both nationally and internationally. In the next part, we will discuss the imperative necessity of the proper implementation of IHL.

 

2. The Imperative necessity for the implementation of IHL

 

The most titan person of his generation, Austin, defines law as “a rule laid down for the guidance of an intelligent being, by an intelligent being having power over him.” And hence, an unenforceable law is not a ‘’law’’ at all. It is difficult to even give it equal status with local customs. Therefore, laws must be implemented. This becomes very imperative when we see it in light with the objective that is sought to be achieved.

 It is common knowledge that laws are generally crafted to shape the behavior of the society in a certain way with the final and ultimate objective of attaining a specific purpose. That purpose could be to prevent harm, it could be to protect groups that are thought to be vulnerable, or it could also be to set a guideline in which a certain act must be committed. Implementation is a way in which we turn rules into action. To achieve the basic objectives set the law has to first be implemented. So it is reasonable to ask why the contracting states failed to observe IHL? What benefits would they acquire by implementing and observing IHL?

There are many reasons why States in general and Ethiopia, in particular, should observe IHL. The first purpose to be achieved by implementing IHL is highly connected with the law of warfare itself, which is to minimize the damage that would happen had it not been for the observance of IHL. Therefore, the first and most important reason for observing IHL is to help minimize, if not avoid, the unnecessary damage and suffering related to armed conflict. To put in other words, armed conflict inevitably brings human suffering, which entails the breakdown of relations since it is an anarchic and violent situation. The observance of IHL rules ultimately reduces this effect.

The second reason is that an army (a group of armies) that applies IHL will only try to get military advantage in their conduct. This benefit is expressed in terms of the high level of discipline that adherence to the principle of IHL entails, the degree of military efficiency achieved, and the tactical principle 3

of economy and proportionality of means. So how can the army benefit in this way? This is done by three means:

  • IHL rules by their nature promote discipline in the armed forces, which in turn is necessary to the success of the army. This is because the soldiers know that the principles of distinction and proportionality do not undermine a victim's right to self-defense.
  • Adherence to IHL rules leads to military efficiency, which is basic to overcome the adversary.
  • Adherence and implementation of IHL lead to the implementation of the principle of economy and proportionality that are a tactical means. Therefore, it is important to implement IHL rules since ultimately a member state will get a military advantage which is essential to overcome the adversary.

The third reason relates to state responsibility. As Hoque perfectly put it “had there been only one man on earth, the idea of right, between individuals or between individual and the state, would have no existence because the conception as to the right of one entity presupposes the existence of at least another entity possessed of the capacity to hold right.”  

Thus, when a country is entering into a treaty, it indirectly enters into a commitment to implement the rule in good faith. Failure to implement leads to failure in state responsibility. If Ethiopia fails to implement IHL, there will be punishment for non-observance. This is the exact situation in the aftermath of the Ethio-Eritrea war. Furthermore, because the payment is to be effected in foreign currency, it will affect the economy at large.

In connection to this, it is important to note that it is not only Ethiopia as a state that is going to be responsible for the failure of the implementation of IHL, but it also triggers the responsibility of criminal individuals. Therefore, in any armed conflict that involves Ethiopia, every citizen must implement and observe IHL otherwise they will be responsible for war crimes.

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Last modified on Tuesday, 24 November 2020 19:20