International humanitarian law learning resources

Henry Dunant Seminar, Wellington, November 2019. Henry Dunant Seminar, Wellington, November 2019.
- K J Keith.

In 2004 the International Committee of the Red Cross (ICRC) published an important study - The Roots of Behaviour in War. It provided valuable guidance on the teaching of IHL to different audiences. It was cautious about emphasizing values or morals because they varied between cultures and might be used to undermine compliance with the law. By contrast, in 2018, in its report, The Roots of Restraints in War, the ICRC included this major finding: 

An exclusive focus on the law is not as effective at influencing behaviour as a combination of the law and the values underlying it. 

I will come back to values after running through the national and international methods of seeking compliance or imposing punishment for breaches.

National methods

From the very first Geneva Convention (1864) States or, in that case, the commanders in the field have been obliged to instruct their armed forces about the rules for the protection of the victims of war. The state obligation now extends to instruction to the public, particularly through educational facilities. National Societies now share in that obligation under the Statutes of the Red Crescent and Red Cross Movement. Those obligations of dissemination are of fundamental importance, requiring as they do, careful instruction of the essence of the law and its detail according to the responsibilities of the military in question. In New Zealand the IHL Committee has significant responsibilities in this area.

The State obligation has more recently been extended to require legal advisers on the battlefield and not simply to prepare wills for soldiers heading into battle. An early example is to be seen in the Gulf War following the Iraqi invasion of Kuwait. General Colin Powell, then the head of the US military, has written about the involvement of the lawyers in the making of targeting decisions, a process which involve a measuring of likely military advantage against the likely civilian casualties, an interesting example of steps which, as a matter of law, the US was not obliged to take. The assessments were made by reference to provisions of the 1977 First Additional Protocol by which the US was also not bound.

A third national mechanism is the exercise of military discipline, for instance through courts-martial for breaches of the law of armed conflict incorporated into national military law.

A fourth method is criminal prosecution in the regular courts for grave breaches of the Geneva Conventions of 1949 and the First 1977 additional Protocol and for the crimes in the Statute of the International Criminal Court Statute.

Civil proceedings in national courts have also occurred, for instance in Italy and the Netherlands.

Finally, inquiries may be held into alleged breaches of the law, as in both Australia and New Zealand, for instance, In respect of incidents in Afghanistan.

International methods

‘A tooth for a tooth, an eye for an eye’ or reprisals was once seen as playing a major role in ensuring compliance but they brought with them the real risk of a downward spiral, as perhaps evidenced by aerial warfare in the Second World War. The First Additional Protocol of 1977 adds to the prohibitions on reprisals to be found in the 1929 and 1949 Conventions.

Neutral states, particularly Switzerland and Sweden during the World Wars, have had the role of being protecting powers through a number of wars, but only rarely since 1945. They are appointed by  agreement between the receiving state and the protecting state and have the task of monitoring compliance with the Conventions and First Protocol, with the purpose of protecting the sick, wounded and shipwrecked members of the armed forces, prisoners of war and civilians in occupied territories. In the absence of an appointment being made, the ICRC may act as a substitute and it has in practice become the primary actor.

The 1929 and 1949 Conventions provided for inquiry into alleged breaches of them, a procedure never invoked. The 1977 First Additional Protocol, building on those provisions, establishes a permanent commission but it too has scarcely been invoked. The United Nations (UN), for instance, through the Security Council, has set up ad hoc inquiries, recently in respect of Darfur in Sudan and earlier in Yugoslavia.

The 1977 Protocol also provides for meetings of the State parties to address allegations of breach and for cooperation with the UN. 

It also recognises that states in breach may be held responsible, as seen for instance in a case in the International Court of Justice (ICJ) between the Democratic Republic of Congo and Uganda in which compensation is to be established.

Individuals may also be subject to prosecution for serious breaches of the law in ad hoc tribunals for instance in respect of Rwanda and Yugoslavia, or the permanent International Criminal Court (ICC). 
I return to the other forces for compliance, to values.

Central is humanity, the first of the ICRC’s fundamental principles. In 1899 Frederich de Martens, a Russian diplomat, helped resolve a major controversy at the First Hague Conference by having the assembled delegates agree to a formula which in its most recent treaty form reads as follows:

"In cases not covered by the law in force the human person remains under the protection of the principles of humanity and the dictates of the public conscience"

Closely related is the role of chivalry, emphasised by a senior German military officer early in its war against Russia, but rejected by his seniors for the technical reason that the USSR had not  ratified the 1929 POW convention or, in more colloquial terms reflected in the 2018 ICRC report I mentioned at the outset, "it is not us"-a response to an outrage by a member of a disciplined armed force.

Next is the political advantage of compliance. In the words of Henry V, immediately before the battle of Agincourt in 1415, confirming the execution of one of his force for pillage from a church in breach of the law of arms, "the gentler gamester is the soonest winner".

Economic advantage may also arise from compliance. Winston Churchill, after the bombing and conflagration of Dresden late in the Second World War, affirmed that he did not wish to have the Allies occupying a devastated Germany especially with winter looming.

Although, as I mentioned, reprisals have been severely limited, the fear of reciprocal action must always be in mind.

And as the reaction to the first television war, the Vietnam War, through teach ins and street protests, so plainly demonstrates public and international opinion may well have major influence.

There is much more to be said about the basic role of humanitarian principle balanced as it must be by military necessity. (For those who are keen see (199) 48 Duke Law Journal 1081, 1171-1130). 

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We are currently preparing a transcript for this video. Thank you for your patience.