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Heike Krieger (ed.), Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region, Cambridge, Cambridge University Press, 2015, 557 pp., ISBN 978-1-107-10205-7

Published online by Cambridge University Press:  11 June 2018

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Abstract

Type
BOOK REVIEWS
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2018 

Although contemporary international humanitarian law (IHL) has existed for more than 60 years, only recently have international lawyers and scholars focused their attention on how to enhance IHL compliance.Footnote 1 In todays’ armed conflicts, the effectiveness of this legal regime faces challenges from different quarters. This can be linked to several circumstances – for example, the unwillingness of the parties to acknowledge that a situation of violence amounts to an armed conflict, the absence of an incentive for the parties to abide by IHL, or their lack of appropriate structure or resources to acknowledge, understand and implement their international obligations.Footnote 2 The particular features of these scenarios reveal the importance of implementing strategies specifically aimed at achieving IHL compliance. While the importance of the subject is certainly undisputed, how to actually achieve protective outcomes has led to a variety of proposals.

In Inducing Compliance with International Humanitarian Law, Heike Krieger offers an opportunity to explore some of these issues through the lens of some of the most highly qualified contributors in a collection of 21 topical essays. Running in parallel with an exponential increase of academic literature on the subject,Footnote 3 the editor took upon herself the task of putting together an interdisciplinary analysis of different compliance mechanisms which have been ‘in the foreground of international efforts in recent years’.Footnote 4 The book focuses on war-torn areas of limited statehood in the African Great Lakes Region. There, ‘[f]ragmented armed groups fight each other or armed forces of a government, which represents only the remainders of collapsed State structures’.Footnote 5 Considering that governmental authorities would not be able to enforce the law, it remains unclear who may replace the state and how this replacement would take place. Unraveling these issues is not merely an intellectual exercise, and the examples provided in the book validate their importance, in particular for individuals living in those territories. Based both on its geographical scope and on the inclusion of legal and political sciences pieces, Inducing Compliance with International Humanitarian Law fills an important gap in the literature.

The book organizes the various topics that it covers in an introduction and four parts, all of which are subject to vigorous academic debate. Published in 2015, the volume was conceived as an edited collective because improving respect for IHL requires an exchange of ideas, reflections and experiences between international lawyers, political and social scientists and practitioners. Together, the chapters give a good overview of the efficiency and legitimacy of IHL vis-à-vis the parties to armed conflicts, be they non-state armed groups (NSAGs) or states.

In the introduction, Krieger identifies some of the main difficulties of addressing compliance with IHL in the African Great Lakes Region. In particular: i) the possible asymmetry between states and NSAGs in terms of national criminal prosecution, which ‘directly affects the classically most important motive for compliance in international law – reciprocity – and seems to diminish the prospect of compliance based on the norm's legitimacy’;Footnote 6 ii) the unlawful nature of NSAGs’ action, which may affect their lack of willingness to voluntarily comply with the law; and iii) the fragmentation of NSAGs and states, whose collapsing structures make any internalization, enforcement and dissemination of humanitarian norms highly unlikely.

Part I addresses certain conditions for IHL compliance, focusing specifically on non-hierarchical instruments. Understanding the reasons why this legal regime is violated is a necessary step to persuade those responsible to respect the law. Traditionally, international legal compliance theories have addressed why states follow international rules, claiming that contrary to the popular belief, they do observe international law and breaches are actually rare.Footnote 7 As the book under review shows, in armed conflicts involving failed or failing states and fragmented or decentralized NSAGs,Footnote 8 the reality can be different. Incentives to comply with international law can indeed be weak.Footnote 9 Wood, precisely, explores the motives for insurgent violence against the civilian population. According to him, this is a rational action, as ‘it helps insurgents stave off collapse and denies victory to the government’.Footnote 10 In order to induce NSAGs to respect the law, Part I includes a variety of proposals, such as the inclusion of rebel governance into IHL-promotion efforts with the goal of maintaining services and stability for the population living in those territories. Furthermore, it is proposed to directly engage these non-state entities on humanitarian norms, as certain international non-governmental organizations (for instance the ICRC and Geneva Call) have done; and to persuade their leaders, who will then replicate this internally. Finally, it is suggested to recognize that NSAGs have ‘some sort of role in the creation, translation and enforcement of humanitarian norms in order to foster a sense of ownership and therefore improve levels of compliance’.Footnote 11 Although some important challenges by non-state armed groups are addressed throughout the five chapters, it remains unclear why strategies on how to improve compliance by failed or failing states are not similarly explored. As the book has geographical and thematic scopes (the African Great Lakes Region and IHL), the analysis of governmental structures should have also been included.

Part II deals with judicial procedures and hierarchical enforcement on different levels, focusing in particular on different aspects of prosecutions. Unlike Part I, it is noteworthy that two chapters specifically refer to a state's response to IHL violations, focusing on the Congolese legal system.Footnote 12 Kumbu and Kahombo provide in this sense some insights into the difficulties the Democratic Republic of Congo faces when attempting to effectively prosecute war crimes. Interestingly, Willms’ chapter explores NSAGs’ courts as an alternative for law enforcement, taking into account a basic dilemma:

[o]n the one hand, States are usually unwilling to accept the operation of an armed groups’ court on their territory because the administration of justice is considered to be a very important aspect of their sovereignty. On the other hand, the international community has a strong interest in the enforcement of international humanitarian law, in which such courts may play a role.Footnote 13

He then concludes that ‘[i]f the leadership of an armed group is genuinely willing to enforce humanitarian law, courts of that armed group have a relatively high potential to be successful in inducing compliance’.Footnote 14 This topic is later addressed by Fleck, who recognizes that even if these organs were unconstitutional and illegal under national frameworks, they may well be legitimate and lawful under IHL.Footnote 15 However, Fleck concludes that the practice, still rudimentary, has not provided a clear picture on this issue. The possibility of armed groups creating judicial bodies and passing sentences has real life practical utility. For instance, the Bemba Gombo Pre-Trial Chamber addressed the lack ‘of a functional military judicial within the [Mouvement de Libération du Congo] through which [Bemba Gombo] could have punished crimes committed and prevented their future repetition during the period of intervention’.Footnote 16 More recently, a former member of a Syrian NSAG was sentenced to life imprisonment by a Swedish court for violating IHL through his participation in the killing of seven individuals. The defence argued that this was, in fact, the enforcement of a death sentence by a NSAG's court following a trial.Footnote 17

Part III includes six chapters on the role of international organizations for ensuring compliance. Steiger begins by arguing that enforcement of IHL by human rights bodies ‘is a development that cannot be turned back but will continue and intensify in the future. It serves justice and the protection of human beings and thus serves human rights’.Footnote 18 He, indeed, suggests that these institutions fill a gap left by the absence of an individual complaints procedure for IHL violations, and this is done not by choice, but by a mandatory obligation. Klostermann follows this ‘institutional approach’ and deals with the UN Security Council (UNSC) involvement in securing respect with those international norms dealing with children and armed conflict. In 1999, the UNSC passed Resolution 1261, calling the parties to the conflicts to respect their legal obligations on this topic. In addition, it also required the UN Secretary General to submit a report on the implementation of the resolution.Footnote 19 In 2001, the UNSC requested that the report includes as an annex a list of parties that recruit and use child soldiers,Footnote 20 with the aim of ‘naming and shaming’ the perpetrators.Footnote 21 In 2005, after the UN Secretary General suggested the establishment of a mechanism for the monitoring of six grave violations of children's rights, the UNSC issued Resolution 1612, which created the Working Group of Children and Armed Conflict.Footnote 22 As Clapham explains:

[t]he mechanism vis–a–vis the non-state actor works not only through naming and shaming but by encouraging the non-state actor to submit an “action plan” to the Security Council, in this way the group can be removed from the list of violators.Footnote 23

Klostermann presents an interesting perspective about the effectiveness of the system installed by the UNSC by discussing the reasons to comply with these rules. According to her, the party in question follows a rule: i) because the actor fears the punishment of rule enforcers (coercion); ii) because the actor sees the rule as in its own self-interest (self–interest); and iii) because the actor feels the rule is legitimate and ought to be obeyed (legitimacy).Footnote 24 Interestingly, there have been some successful cases in which armed groups have signed action plans, some of which are still under implementation and others being accomplished and successfully de-listed.Footnote 25 On the basis of an interdisciplinary approach, Kostermann concludes that the UNSC's special compliance system for children an armed conflict is a promising step towards inducing compliance. Part III also includes different chapters addressing alternative views on the role of peacekeepers.

Finally, Part IV sheds light on several important international law issues, such as the scope of Common Article 1 to the four Geneva Conventions when examining the obligation to ‘ensure respect’ for these treaties. Geiß explains, in this sense, that the wording of this provision can relate not only ‘to violations by other States but also to violations by organized armed groups’.Footnote 26 Although this is an interesting argument, which follows the recent ICRC Commentary to Common Article 1,Footnote 27 the extent of this obligation remains unexplored. In this sense, what type of measures a state could adopt towards a NSAG? Could this include some sort of capacity-building activity? If one thinks about Willms’ proposal regarding armed groups’ courts, would states be in the position of assisting these entities to enhance their respect in terms of judicial guarantees? Other topics are addressed in this Part. In particular, Schamalenbach deals with the possible international responsibility of armed groups for violations of IHL. According to her, since the international obligations of these entities are well defined, their responsibility under international law:

for the failure to comply with [their] own legal obligations appears to be a self-evident result of logical deduction: where there is an international legal obligation, there is – in the case of a breach – international responsibility (ubi responsibilitas, ibi ius).Footnote 28

Although Schamalenbach's analysis correctly tries to open doors for new paradigms to be explored, her reference to practical cases seems to fail when differentiating primary and secondary rules. For instance, she refers to a ‘refreshingly precise legal assessment of the responsibility of armed groups in the 1997 Tablada Case’,Footnote 29 which does not recognize the application of any rule invocating the responsibility of these non-state actors. Similarly, the UN General Assembly's Basic Principles and Guidelines on the Right to Remedy and Reparations of 2006Footnote 30 do not seem to confirm the existence of these norms, but merely that if they did, ‘States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgments’.

In her concluding ideas, Krieger affirms that ‘[t]he international community responds to the challenges which conflicts in war-torn areas of limited statehood pose for compliance with international humanitarian law by allocating competences to actors other than the State concerned’.Footnote 31 Although international organizations contribute to enforce this legal regime, this task remains dependent on their members, who may be reluctant to engage with armed groups. However, in today's IHL context in which the majority of armed conflicts include at least one organized NSAG, respect for IHL can only be achieved through their engagement. The need to find solutions for IHL compliance issues has led to the exploration of new paradigms in this regard. This book fulfils its purpose by reviewing practical problems and challenges related to the application of IHL in armed conflicts involving failed or failing states and fragmented or decentralized NSAGs. For the purpose of better protection of the victims, state-centric limits should be challenged in order to solve practical difficulties that arise in contemporary armed conflicts. Despite the shortcomings identified above – particularly the lack of strategies on how to enhance respect by states – this book provides useful tools for those who wish to gain insights into different existing mechanisms used to generate respect for IHL, notably including an understanding of the reasons for its violation and how important the direct engagement with the responsible parties is.

Footnotes

*

Thematic Legal Adviser, Geneva Call. LL.M., Geneva Academy of International Humanitarian Law and Human Rights [ezequielheffes@gmail.com]. The views expressed here are solely those of the author in his private capacity and do not represent any institution.

References

1 See, for instance, the project carried out by the ICRC and Switzerland on how to enhance compliance in armed conflicts, available at www.icrc.org/en/document/strengthening-compliance-international-humanitarian-law-ihl-work-icrc-and-swiss-government (accessed 16 March 2018). For other studies on the topic, see the Generating Respect for the Law issue of the International Review of the Red Cross published in December 2015, (2014) 95/96 International Review of the Red Cross 684; and ICRC, ‘Improving Respect for International Humanitarian Law in Non-International Armed Conflicts’, 2008, available at www.icrc.org/sites/default/files/topic/file_plus_list/0923-increasing_respect_for_international_humanitarian_law_in_non-international_armed_conflicts.pdf (accessed 16 March 2018).

2 Heffes, E. and Kotlik, M., ‘Special agreements as a means of enhancing compliance with IHL in non-international armed conflicts: An inquiry into the governing legal regime’, (2014) 96 International Review of the Red Cross 1201CrossRefGoogle Scholar. See also ICRC, Improving Respect for International Humanitarian Law in Non-International Armed Conflicts, supra note 1, at 11–12.

3 See, for instance, H. Jo, Compliant Rebels. Rebel Groups and International Law in World Politics (2015); Sassòli, M., ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’, (2010) 1 Journal of International Humanitarian Legal Studies 5CrossRefGoogle Scholar; Bangerter, O., ‘Reasons why Armed Groups Choose to Respect International Humanitarian Law or Not’, (2011) 93 International Review of the Red Cross 353CrossRefGoogle Scholar. The ICRC is also currently undertaking certain initiatives with the goal of reaffirming the relevance of IHL in armed conflicts. In this sense, J. Garcia Ravel and V. Bernard, ‘Changing the narrative on international humanitarian law’, 4 November 2017, ICRC Humanitarian Law & Policy Blog, available at blogs.icrc.org/law-and-policy/2017/11/24/changing-the-narrative-on-international-humanitarian-law/ (accessed 16 March 2018).

4 Krieger, H., ‘Introduction’, in Krieger, H. (ed.), Inducing Compliance with International Humanitarian Law. Lessons from the African Great Lakes Region (2015), 1 at 4Google Scholar.

5 Ibid., at 1.

6 Ibid., at 2. Asymmetry between NSAGs and states can take a variety of forms, such as balance of power, level of commitment, scale of organization and degree of legitimacy. Hazen, J., What Rebel Want. Resources and Supply Networks in Wartime (2013), 2933Google Scholar.

7 M. Shaw, International Law (2008), 6. Various explanations have been used to justify this assertion. One of these argues that because states participate in the international-law making processes, they have little incentive to break the rules they create. Another reason focuses on the role of legitimacy. When a norm is perceived as useful and legitimate, states would want to adhere to it, as it would be the right thing to do. Finally, Klabbers has suggested, contrary to the conventional thinking, that international law is not completely devoid of sanctions. Despite not having an international police force or international prison, the social sanction of becoming a ‘pariah’ state could be quite strong. J. Klabbers, International Law (2013), 10–11. See also J.D. Ohlin, The Assault on International Law (2015), 23.

8 The ICRC has defined decentralized groups as those ‘with semi-autonomous or splinter factions, operating under an ill-defined leadership structure’. ICRC, Improving Respect for International Humanitarian Law in Non-International Armed Conflicts, supra note 1, at 11.

9 Thürer has explained that respect for IHL depends on the existence of both ‘a military chain of command and a compulsion to comply with international law obligations as required by orders and discipline. This does not apply in the case of an anarchic conflict involving loosely organized clans and other “units”, which may be parts of a “private army” or perhaps just bands of plundering, pillaging killers, none of them bound by any professional code of discipline or honour. Where group structures have completely broken down and the fighting atomized, every combatant is his own commander and the traditional mechanisms for the implementation of international humanitarian law are wholly ineffective’. See D. Thürer, ‘The “failed State” and international law’, 31 December 1999, 836 International Review of the Red Cross, available at www.icrc.org/eng/resources/documents/article/other/57jq6u.htm (accessed 18 March 2018). See also Jo, supra note 3, at 60, focusing exclusively on NSAGs.

10 R. Wood, ‘Understanding strategic motives for violence against civilians during civil conflict’, in Krieger, supra note 4, at 15.

11 S. Sivakumaran, ‘Implementing humanitarian norms through non-State armed groups’, in Krieger, supra note 4, at 146.

12 It does not remain sufficiently clear, however, why other states also located in the African Great Lakes Region are not also analyzed.

13 J. Willms, ‘Courts of armed groups – a tool for inducing higher compliance with international humanitarian law’, in Krieger, supra note 4, at 150.

14 Ibid., at 179.

15 D. Fleck, ‘Comment – perspectives on courts established by armed opposition groups’, in Krieger, supra note 4, at 182.

16 Prosecutor v. Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Pre-Trial Chamber II, 15 June 2009, para. 501.

17 ‘Swedish court hands life sentence to Syrian for war crimes’, The Local, 16 February 2017, available at www.thelocal.se/20170216/swedish-court-hands-life-sentence-to-syrian-for-war-crimes (accessed 18 March 2018). See also J. Somer, ‘Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts’, EJIL: Talk!, 10 March 2017, available at www.ejiltalk.org/opening-the-floodgates-controlling-the-flow-swedish-court-rules-on-the-legal-capacity-of-armed-groups-to-establish-courts/ (accessed 18 March 2018).

18 D. Steiger, ‘Enforcing international humanitarian law through human rights bodies’, in Krieger, supra note 4, at 297–8.

19 UN Doc. S/Res/1261 (1999) ‘Children and Armed Conflict’ (30 August 1999).

20 UN Doc. S/Res/1379 (2001) ‘Children and Armed Conflict’ (20 November 2001).

21 S. Sivakumaran, The Law of Non–International Armed Conflicts (2012), 533–4.

22 The six grave violations are killing and maiming of children; recruitment or use of children as soldiers; sexual violence against children; abduction of children; attacks against schools or hospitals; and denial of humanitarian access for children. Office of the Special Representative of the Secretary General for Children and Armed Conflict, ‘The Six Grave Violations’, available at childrenandarmedconflict.un.org/effects-of-conflict/six-grave-violations/ (accessed 16 March 2018).

23 Clapham, A., ‘The Accountability of Armed Groups’, in Clapham, A. and Gaeta, P. (eds.), The Oxford Handbook of International Law in Armed Conflict (2014), 801CrossRefGoogle Scholar.

24 R. Klostermann, ‘The UN Security Council's special compliance system – the regime of children and armed conflict’, in Krieger, supra note 4, at 333. For other reasons why armed groups choose to respect UNSC Resolutions, see Jo, supra note 3, at 167–81, focusing specifically on the Moro Islamic Liberation Front. See also Heffes, E., Kotlik, M. and Frenkel, B., ‘Addressing Armed Opposition Groups Through Security Council Resolutions: A New Paradigm?’, in Lachenmann, F. et al. (eds.), (2015) 18 Max Planck Yearbook of the United Nations 5267Google Scholar.

25 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Action Plans with Armed Forces and Armed Groups’, available at childrenandarmedconflict.un.org/our-work/action-plans/ (accessed 18 March 2018).

26 R. Geiß, ‘Common Article 1 of the Geneva Conventions: scope and content of the obligation to “ensure respect” – “narrow but deep” or “wide and shallow”’, in Krieger, supra note 4, at 428.

27 ICRC, Commentary on Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2016, available at ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=72239588AFA66200C1257F7D00367DBD, para. 125 (accessed 16 March 2018).

28 K. Schamalenbach, ‘International responsibility for humanitarian law violations by armed groups’, in Krieger, supra note 4, at 496–7.

29 Ibid., at 498.

30 Ibid., at 501.

31 H. Krieger, ‘Conclusion: where States fail, non-State actors rise. Inducing compliance with international humanitarian law in areas of limited statehood’, in Krieger, supra note 4, at 550.