Implementation, Enforcement and Accountability

1. Introduction The law of armed conflict, like international law more generally, faces unique problems when it comes to the implementation and enforcement of its rules. International law, unlike domestic legal systems, has no central hierarchical system or institution that can enforce or implement its rules. Implementation, enforcement and accountability under IHL are thus decentralised, and effected through various means and methods, including domestic and international judicial, quasi-judicial, legislative and diplomatic measures, as well as through mechanisms such as public scrutiny and public education. This chapter examines the manifold ways in which the law of armed conflict is implemented and enforced, and operates to hold those who violate the law accountable. 2. Common Article 1: the obligation to ensure respect The starting point for implementation, enforcement and accountability is Common Article 1 of the Geneva Conventions, which outlines the general obligation under IHL that all parties to the Conventions must “undertake to respect and to ensure respect for the present Convention in all circumstances”. The ICJ has held that this principle is customary international law, and is also applicable in non-international armed conflicts. What the Article actually means in practice is somewhat complex. The Commentaries to the Conventions explain it thus: it would not, for example, be enough for a State to give orders or directives to a few civilian or military authorities, leaving it to them to arrange as they pleased for the details of their execution. It is for the State to supervise their execution. Furthermore, if it is to keep its solemn engagements, the State must of necessity prepare in advance, that is to say in peacetime, the legal, material or other means of loyal enforcement of the Convention as and when the occasion arises. It follows, therefore, that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. This explanation highlights a number of key elements regarding implementation and enforcement of IHL. First, the State must follow the rules to which it has agreed to be bound. Second, the State must ensure that those rules are followed at all times, through supervision of its organs and subsidiaries tasked with prosecuting the armed conflict.