How to ensure respect
for the rules of war?

THE IMPLEMENTATION OF international humanitarian law (IHL) has endured mixed fortunes over the last two decades.

The creation of international institutions to enforce the concept of personal criminal responsibility for war crimes — from the ad-hoc tribunals for Rwanda and the former Yugoslavia, to the special court for Sierra Leone and the International Criminal Court (ICC) — raised expectations in the late 1990s about a new era in the implementation of the laws of war.

The optimism faded somewhat with the international response to the terrorist attacks of 11 September 2001. The subsequent repudiation of fundamental norms, such as the absolute prohibition of torture, were certainly a setback in the implementation of IHL, as was the whole questioning of long-held tenets of the rules of war, such as the distinction between civilians and combatants, and the requirement of proportionality in military response.

In the context of the fight against terrorism and asymmetric warfare, some argued, the traditional laws of war, initially intended to address conflicts between states, looked outdated. One of the most blatant examples over the past decade came in the final months of the civil war in Sri Lanka in 2009, when government efforts to eradicate once and for all the Tamil Tiger rebels led the army to indiscriminate shelling on a scale that killed tens of thousands of civilians.

Yet the past decade has not simply been one of setbacks. Somewhat paradoxically, the flouting of the law has made us more conscious of it. There is an increased awareness of IHL and its requirements both in military circles and among political leaders, as well as the general public. In some theatres, there have been increased efforts at compliance.

The way forward must build on these achievements by encouraging the rebuilding of a consensus on the norms. Consensus increases voluntary compliance, which is much more efficient than coercion as a method of implementation. The ICRC has the leading role to play in the preservation of the integrity of the norms of humanitarianism but also in their modernization. Civil society actors and academics are increasingly engaged in the debates.

Efforts should be focused on increasing the effectiveness of mechanisms of enforcement. This should include a renewed momentum for making the International Criminal Court a truly universal body. The ICC’s effectiveness stems from its legitimacy, but this is difficult to achieve in an environment of perceived politicization and double standards.

There have also been sensible calls for a universal monitoring body. The idea, expressed by US author and associate professor of political science Charlie Carpenter and others, would be to establish an institution that does for IHL what the International Atomic Energy Agency does for non-proliferation and the World Health Organization does for medical standards by providing an independent authority to investigate claims of violations of IHL on the ground. This could serve to concentrate and professionalize the fact-finding and inquiry initiatives that have proliferated in recent years, at times with insufficient impact.

The ultimate objective must be, of course, the prevention of armed conflict. Political engagement, humanitarian presence and human rights protection all play a part in reducing the deadly consequences of warfare. But as long as war continues to be waged, the implementation of rules of universal application on the conduct of combat remains a significant and essential challenge.

By Louise Arbour
Louise Arbour is the former United Nations High Commissioner for Human Rights, a former Justice of the Canadian Supreme Court and a former chief prosecutor at the International Criminal Tribunals, for both the former Yugoslavia and Rwanda. She now serves as president of the International Crisis Group, www.crisisgroup.org