In conformity with the traditional structure of international law, violations are considered to have been committed by States and measures to stop and repress them therefore must be directed against the State responsible for the violation. Such measures can be foreseen in IHL itself, in the general international law of State responsibility, or under the UN Charter, the “constitution” of organized international society.
Before violations can be repressed, they have, of course, to be ascertained. The Conventions provide that an enquiry must be instituted into alleged violations if requested by a party to the conflict.[1] However, the procedure has to be agreed on between the parties. Experience shows that such an agreement is difficult to reach once the alleged violation has occurred – in particular between parties fighting an armed conflict against each other. Art. 90 of Protocol I therefore constitutes an important step forward, as it establishes the International Humanitarian Fact-Finding Commission[2] and its procedure. The Commission is competent to enquire into alleged violations of one party at the request of another party if both parties agree on its competence, either on an ad hoc basis or by virtue of a general declaration.[3] The Commission has declared its readiness to act in non-international armed conflicts as well, if the parties concerned agree. In conformity with the traditional approach of IHL, the enquiry is based on an agreement between the parties, and the result will only be made public with their consent. This may be one of the reasons why no request for an enquiry has ever been brought before the Commission, although some 70 States have made a general declaration accepting its competence. States have preferred to impose enquiries through the UN system, which produces a published report, or to establish ad hoc commissions of enquiry, but the results have not been much more convincing.
In the event of a dispute, all means afforded by international law for the peaceful settlement of disputes are available. A conciliation procedure involving the Protecting Powers is foreseen, but needs the agreement of the parties.[4] The Protecting Power system itself is an institutionalization of good offices. The general problem, however, is that a peaceful settlement of disputes on points of IHL between parties who prove by their participation in an armed conflict that they have been unable to settle their disputes in respect of jus ad bellum peacefully would be an astonishing occurrence and only rarely succeeds. Therefore, the use of coercive measures which can only be taken through the UN system seems more promising, but risks mixing jus ad bellum and jus in bello. Such a mix-up is natural for the UN, as its main role is to ensure respect for jus ad bellum, but it jeopardizes the autonomy, neutrality and impartiality required for the application of IHL.
When a violation occurs, not just the injured State, which is the direct victim, but – under common Art. 1 and the general rules on State responsibility[5] – every State may and indeed must take measures to restore respect. Those measures must themselves conform to IHL and to the UN Charter[6] and must be taken in cooperation with the UN as the frail embryo of a centralized international law enforcement system.[7] Cooperation between all States, however, does not mean that no reaction to violations is possible in the absence of a consensus.
In keeping with the rules of the law of State responsibility, IHL recalls the general obligation to pay compensation.[8] According to a majority of writers and court decisions, this implies, in conformity with the traditional structure of international law, that the State responsible for the violation has to compensate the State injured by the violation; it does not confer a right to compensation on the individual victims of violations. This traditional implementation structure is at variance with internal armed conflicts, as in such cases victims of violations are often nationals of the State concerned. Thus, for a growing number of violations, International Human Rights Law requires that the State make reparation directly to the beneficiary of the rule.
For the rest, IHL prescribes some changes to the general rules on State responsibility (or makes clear that certain of its exceptions apply in this branch). It holds the State strictly responsible for all acts committed by members of its armed forces;[9] it prohibits reprisals against protected persons and goods and the civilian population,[10] reciprocity in the application of IHL treaties being excluded by the general rules; and it makes clear that, as the rules of IHL are mostly jus cogens, States may not agree to waive the rights of protected persons[11] nor may the latter renounce their rights.[12] Finally, as IHL is intended for application in armed conflicts, which are by definition emergency situations, and as many armed conflicts are fought in self-defence, while the same IHL must apply to both sides, necessity (except where explicitly stated otherwise in some of its rules[13] ) and self-defence are not circumstances precluding the wrongfulness of IHL violations.[14]
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dd) but no reciprocity
[CIHL, Rule 140]
Quotation
Article 60. Termination or suspension of the operation
of a treaty as a consequence of its breach[...]
- A material breach of a multilateral treaty by one of the parties entitles:
- the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
- in the relations between themselves and the defaulting State; or
- as between all the parties;
- a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;
- any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
- A material breach of a treaty, for the purposes of this article, consists in:
- a repudiation of the treaty not sanctioned by the present Convention; or
- the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
[...]- Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
[Source: Vienna Convention on the Law of Treaties, U.K.T.S. 58 (1980), Cmnd. 7964]
Suggested reading:
MEYROWITZ Henri, “Die Repressalienverbote des I. Zusatzprotokolls zu den Genfer Abkommen vom 12. August 1949 und das Reziprozitätsprinzip”, in Neue Zeitschrift für Wehrrecht, 1986, pp. 177-193.
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ff) IHL obligations are erga omnes obligations
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