- Table of Contents
1. Introduction
2. Scope and Relevance of International Humanitarian Law in Modern Conflicts
3. Contemporary Challenges to the Enforcement of IHL
4. Legal and Institutional Barriers to Effective Enforcement
5. Recent Developments and Judicial Precedents (Last 10 Years)
6. Role of International and Domestic Mechanisms
7. Proposed Reforms for Stronger Enforcement of IHL
8. Conclusion
9. Reference
- Introduction
The Wars, the reason for tragedies, blood folks, stories talking about the nightmares of people from killing to immigration. Wars breaks down families, separate people create scars that last decades even the history is painted with the atrocities of War. Ambition, Revenge, politics and what not? Several reasons one outcome the War. Even today the modern world is not free for the clutches of the glories of war but are they really what the books and society define them as? Glory or something else? Then what changed? The laws and transparency. Now in the time of technology and internet nothing can stay hidden and accountability is been seen more than ever before.
International Humanitarian Law (IHL) popularly known as the laws of the conflict more specifically the armed conflict aims to protect the people who are the not the part of the war but become a witness or victim of it due to various reasons that include citizenship, tourism and studies, etc. While the frame work of the IHL is quite promising the issue arise in its implementation and effectiveness in the modern conflict. The modern Conflict that has its own issues with conflict often including the rebels, terrorists that may not follow the rules of IHL. This makes the situation sensitive with conflicts including the weaker side and a stronger opponent the line between the solider gradually fades which makes the protection even harder. The laws are there but their enforcement? Weak especially when powerful countries stop or intervene to block momentum at the UN.
This Article talks about the challenges that came across in enforcing the IHL in modern conflict, the barriers, and proposes reforms aimed at strengthening accountability and compliance.
- Scope and Relevance of International Humanitarian Law in Modern Conflicts
International Humanitarian Law (IHL), the law that was created to protect the people at the time of war but is that really all? IHL doesn’t just talks about the protection of civilians, the injured and the prisoners of the war. It also talks about the limitation and Humanitarian aspects of war. For example, ban on using the weapons that cause too much suffering, ban on torturing and killing of people. The law also requires the countries to identify the fighters from non-fighters to avoid innocent killing.
Originally coming from the four Geneva Conventions of 1949 and protocols and agreements with international law. These laws apply equally to both the international armed conflicts (IACs) and non-international armed conflicts (NIACs), which is what type of conflict that seen in modern conflict.
Modern conflicts increasingly involve:
* Non-state armed groups
* Armed violence
* Urban warfare affecting civilian populations
* Advanced technologies such as drones and cyber tools
Despite the evolution of society, change of time, The core principals of the International Humanitarian Law that includes the humanity, military necessity are very important in even the modern-day conflict.
- Contemporary Challenges to the Enforcement of IHL
Although principals and core of the Humanitarian Law are very important and relevant but still the problems that came across in the enforcement of the law can’t be ignored with multiple challenges in political and financial fields the effects and authority of law is being gradually erased.
The core Challenges of the enforcement of the IHL are given below: –
- The Groups: The Wars that usually happen between two or more country, they immediately come under the international concerns rather than the just national concern between countries. No matter how small or big or what the tenure of the war, it remains the concern of the world as wars disturbs the world corporation and environment especially in the modern conflict as many countries now possess the nuclear weapons that ultimately creates the threats nuclear war. With this, wars don’t just include the armies, it includes the rebels and militants that just don’t follow the rules of IHL ultimately leading to tragedies.
- Politics: At the international platforms the cooperation between nations is pretty much expected. Countries cooperate based on their interest, long time relations and even to counter a stronger nation. Politics is commonly seen at the international level to establish or protect their interest. This comes with expectations of cooperation at the difficult times and countries usually doesn’t disappoint. Powerful countries protect their allies especially at UN to avoid punishment even at the times of war.
- No international bodies: The laws are there but the enforcement? Depends on countries to act. There is official body with authority to enforce the IHL ultimately leading for the countries powers to decide based on their interest which often leads to casualties and deaths of people.
- Courts: If the laws exist then there should be the courts to handle violation and there is the international court of justice but the catch? It can only act if the members of UN or countries agrees so what happens to the violations no country or member of the UN want to act on or the violations, they think is not their business? Ignored.
- Legal and Institutional Barriers to Effective Enforcement
The barriers, the things that creates an obstacle in the path of the enforcement of the IHL. These obstacles include not just the legal casualties but the institutional as well. These barriers are given below: –
1. State Sovereignty: Every country that is a member of UN or any other international organisation has the right to its country’s sovereignty. Originally, the rule established to protect the countries integrity and sovereignty while they corporate and connect on the international level. Now this same rule has become hindrance, countries use their right to sovereignty to escape from the investigation and the scrutiny in the case of accusations of the violation of IHL.
2. Jurisdictional Limitations: While the international platform has courts such as the international court justice that handles the decipher of the Rome Statute and other international document, solves the conflict between countries using negotiation, mediation, arbitration, punish the violation of human rights and IHL then what’s the problem? The limitations and barriers when it comes to implementations in states who are not the member of the Rome statute.
3. Selective Justice: Politics and bias make it even harder to perform the act where it is required as it has been observed that international court of justice does discriminate based on countries size, political position and power. For example, the court has been seen being extra strict with African countries for the same violations as the western easily get away with.
4. Enforcement Deficit at the Domestic Level: Many countries fail to properly implement the IHL laws in their country due to various reasons. Some don’t have the will as they are afraid to upset their allies or it affect their military. Other don’t have courts or law to properly investigate the situation. Even through the laws exist, they are not enforced due to lack of resources or independence.
With increase in war crimes the ICC has increased its focus in crimes against humanity with notable decision and investigations. The most notable actions are givens below: –
– ICC has taken action against the war crimes in Ukraine (initiated in 2022), which is a huge step towards accountability in conflicts.
– ICC has also started proceeding relating to crimes committed by the state and non-state bodies in Afghanistan.
(2) International Court of Justice (ICJ) : ICJ has also taken another step. They have significantly increased engaging in dispute related to IHL through various orders in cases involving armed conflict, indicating that humanitarian actions are a must even at the time of conflict.
(3) Universal Jurisdiction Cases: Even when the situation looks devastating there is always hope. Several countries in Europe can punish people even if the crime is committed far away and is not related to their citizen. It is called the Universal Jurisdiction. The idea comes from the mindset and belief that crimes against humanity like genocide and torture are the problem of all not the one country. For Example, the courts the Germany, Switzerland, France and Sweden have punished people for war crimes in Syria. With the help of victims and evidence the justice was served. This ignites the hope that when ICJ can’t do anything due blockage at UN, these countries can come with justice.
- Role of International and Domestic Mechanisms
(a) International Mechanisms: –
International Criminal Court: Punishes people responsible of serious IHL or international human rights.
United Nations: Regulates the international standard for human rights, put nations for violations, put commissions for inquiry for accountability. Highlighting that no one should be able to escape their responsibility regardless of any reason.(b) Domestic Mechanisms: –
Inculcation of the IHL as the domestic of law of every country.
Military courts and civilian courts exercising jurisdiction over war crimes.
Cooperation between the countries with the international investigative bodies to identify the people who does or are responsible for the violation of IHL
- Proposed Reforms for Stronger Enforcement of IHL
Universal Jurisdiction: More and more countries should be allowed to punish the people who responsible for war crimes in the courts regardless of the place or the entity responsible.
Better law: Countries should update their laws with IHL so the violators could be punished at the home country without much delay.
Independence: The international justice bodies should be independent so they can make any decision to uphold justice without any interference from powerful countries with political opinion.
Compliance: A global system that monitors to ensure that every country is following the IHL and there should be no exceptions.
Training: Soldiers, judge, armed groups and common people should be aware of their right in IHL and receive proper training to prevent the violation before it happens.
- Conclusion
International Humanitarian Law, the law that protects the people during wars remain the core but the it only works if the countries agree comply. Now in the modern day many violations go unnoticed or are ignored as it does not bring any profit or political value. To make IHL stronger, the countries must turn the international laws into national laws, investigate and punish the violator regardless of the location or the violators’ identity, stop letting the politics block the justice and train the people, soldiers, judges and everyone to be aware of their right and to stop the violation before it appears. Stronger enforcement means fewer abuses, more accountability and better protection of the civilians.
- Refrences :
1. Geneva Conventions of 1949 and Additional Protocols of 1977.
2. Rome Statute of the International Criminal Court, 1998 .
3. International Committee of the Red Cross (ICRC), Customary International Humanitarian Law Study.
4. International Criminal Court, Situation in Ukraine (2022–present).
5. International Court of Justice, Provisional Measures Orders in armed conflict-related cases (2016–2024).
6. United Nations Human Rights Council, Reports of Commissions of Inquiry on Syria and other conflict zones.
7. International Criminal Court, Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Judgment on appeal, ICC, 2023.
8. United Nations Secretary-General, Report on the Protection of Civilians in Armed Conflict, UN Doc. S/2024/XXX.
THIS ARTICLE IS WRITTEN BY CHETNA SHARMA STUDENT OF 2nd YEAR, BA LLB, IIMT UNIVERSITY, MEERUT