Marko Milanovic, University of Cambridge ATHA Training, June 2010

 A level of enforcement – legal sanctions for non- compliance – as a necessary quality of any legal system  Comparison between domestic law and international law: vertical v. horizontal; role of self-help  H. Lauterpacht: “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”

 Originally the law of war was nothing more than a set of bilateral, quasi-contractual commitments; enforcement starts as mutual deterrence  Belligerent reprisals: acts that would otherwise be unlawful, justified as a response to the unlawful acts of the enemy, with the purpose of bringing him to compliance; cf. countermeasures in the general law of state responsibility  Measures against the enemy army, civilians, or property  Must be necessary, protests and warnings have to be undertaken first, proportionate, ordered by a high authority, and terminate with the cessation of the unlawful act which provoked the reprisal

 Gradual evolution, spurred by the great historical and moral events and crises, toward community interest and protection of individuals; greater emphasis on humanitarianism  Potential of reprisals to lead to a spiral of violence and systemic non-compliance; openness to abuse (e.g Iraq/Iran war)  Gradual limitations on reprisals ◦ No reprisals against POWs – 1929 GC; Art. 13(3) GC III ◦ No reprisals against protected persons; Art. 33(3) GC IV; also those protected under GC I & II ◦ No reprisals against cultural property; 1954 Convention for the Protection of Cultural Property in Armed Conflict ◦ Prohibitions expanded in AP I 1977 ◦ What remains? E.g. use of prohibited weapons. ◦ Uncertainty in NIACs

 The importance of reputation in a horizontal system; cf. domestic contract law  Countermeasures = reprisals, outside IHL  Retorsion = unfriendly, but not unlawful acts  Condemnation and pressure only work if the targeted state actually cares about its reputation or other possible harms; cf. North Korea

 Art. 8 GC III ◦ The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.  Affirmed in Art. 5 AP I; Art. 5(4) provides: ◦ If, despite the foregoing, there is no Protecting Power, the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy, after due consultations with the said Parties and taking into account the result of these consultations, to act as a substitute. The functioning of such a substitute is subject to the consent of the Parties to the conflict; every effort shall be made by the Parties to the conflict to facilitate the operations of the substitute in the performance of its tasks under the Conventions and this Protocol.

 Art. 90 AP I ◦ 15 independent members ◦ System of voluntary declaration accepting the Commission’s competence ◦ Has never actually been used; much like the system of protecting powers The ICRC has by far the greatest practical role

 UN Security Council ◦ Chapter VII of the UN Charter ◦ Military action ◦ Sanctions ◦ Creation of ad hoc tribunals; ICC referrals ◦ Chapter VI and peacekeeping  Regional organizations  The international community not really a true community or a single society; consequent limits on collective action – e.g. Europe does not want to spill its blood and gold for the Congo

 Implementation of IHL in domestic law  Dissemination of IHL  Culture of compliance  Public opinion, domestic and international  Legalization of warfare  Impact of human rights

 War crimes; from the obligation to prosecute to direct international criminalization  Criminal law and military discipline always had an important role within the armed forces; however, unable to punish crimes committed as a matter of state policy  Surge post WW II and post Cold War  The move from bilateral to community interest naturally leads to criminalization

 Relationship between IHL and IHRL  Relative strength of the European human rights system – an incentive for litigation  The European Court and Chechnya  The UK courts and Human Rights Act in Iraq

 Continuing role of reciprocity, even with the tendency for outlawing reprisals; compliance most difficult in asymmetrical conflicts  Importance of a culture of compliance; some potential of human rights enforcement  Limited role of third-party enforcement; by definition political and subject to other interests; power disparity a persistent issue  Criminal law: are the hopes justified?