A version of this article appears at the website atlantic-community.org. The Atlantic Community is a foreign policy think tank based in Berlin and Washington D.C.
International Humanitarian Law (IHL) is at a crossroads. Though first implemented to reduce war casualties and prevent atrocities, over the course of the last fifty years the nature of armed conflict has changed to such a degree that enforcement of IHL in some circumstances leads to worse human rights violations than would have occurred otherwise. One such recent example includes accusations with regard to Israeli soldiers in neighborhoods hosting suspected militants. Soldiers were instructed to clear out non-militants from the residence, try to defuse the situation and talk the suspected militants into surrendering. This is clearly a more humanitarian approach than raiding a suspected militant hideout without warning, increasing the likelihood of armed resistance and civilian casualties. Yet under IHL, which prohibits the use of enemy civilians for military purposes, this is illegal. On the other end of the spectrum, one can imagine situations where a state is brutally oppressing a segment of its population, committing genocide or crimes against humanity, stripping members of that group of any political recourse and leaving no hope for conventional military victory due to a disparity in resources. IHL currently condemns those groups to suffer immeasurable horrors rather than utilize unconventional warfare tactics.
Changes need to be made to both the letter of IHL and its enforcement. Many proposals have been put forward recently that would make immediate impacts toward reducing anti-humanitarian impact of IHL. Gabriella Blum has suggested permitting a ‘humanitarian necessity justification’ defense, which would allow combatants to violate certain IHL if doing so yields greater humanitarian results. She also suggests changing our war status classification paradigm, i.e. combatants vs. civilians. Such a change would emphasize the inviolability of human life in war and focus the predominant considerations in IHL on sparing those who are not threatening soldiers due to an intentional attack. Cherif Bassiouni has made many suggestions that address the effectiveness of IHL, which include a new approach to lawful combatants and POWs of non-state actors willing to abide by IHL, amending international law such as the Genocide Convention and the Convention Against Torture to include applicability to non-state actors, and recognition by the U.N. of the Responsibility to Protect. These proposals need to be adopted and will help to make IHL more relevant in the current state of conflict.
Additionally, greater relevance and effectiveness can be achieved by applying the positive sovereignty concept to the Responsibility to Protect in international law, and setting up an enforcement tribunal to ensure compliance. The Positive Sovereignty Principle holds that states have a responsibility to prevent genocide, war crimes, crimes against humanity and ethnic cleansing or face retribution from the international community. The notion that genocide, war crimes, crimes against humanity and ethnic cleansing are unacceptable is an international norm and codified in numerous human rights and humanitarian law treaties. However, the politics of enforcement, particularly in the U.N. Security Council, often renders these treaties ineffective. Rwanda and Darfur are but two of the most chilling examples.
The Human Rights Council has the potential, after serious reform, to be our strongest tool for the prevention of egregious crimes by exposing precipitous rights abuses. The International Criminal Court is only equipped to handle these crimes after the fact. But currently, thanks to the political state of the U.N. Security Council, the international community is generally incapable of stopping these crimes as they happen. A treaty similar to the Rome Statute should be passed that creates an independent tribunal which would make binding decisions on its members first on whether member states are in breach of their of their positive sovereignty by committing one of the four crimes listed above, and second making recommendations for action when a state is found in violation. The structure of the tribunal should be in the model of the I.C.C. This new tribunal would have binding power to determine when military intervention by state parties is necessary by measuring situations against the six criteria laid out in the International Commission for Intervention and State Sovereignty: Just Cause, Right Intention, Final Resort, Legitimate Authority, Proportional Means, and Reasonable Prospect. This power should be limited to conflicts not of an international character. Ultimately, the goal would be to incorporate the tribunal into the make-up of the United Nations with the Security Council relinquishing its authority on these graves crimes committed during internal conflicts, but retaining its international peacekeeping and general enforcement powers. The Security Council would retain most of its authority while allowing the most serious violations of positive sovereignty to be addressed without the political pitfalls that have frequently lead to injustice. Either way, intervention in the most extreme cases will help prevent victimized groups from resorting to committing atrocities in retaliation.
This idea is a political impossibility at the moment, but it is an aspirational one. Most current manifestations of international government were at aspirational some point or continue to be so. IHL seeks to reduce human suffering. However, until we are able to eliminate the most egregious forms of human suffering, IHL will continue to work increasingly against its own purpose.
