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).
