ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW Paul F. Diehl Political Science and Law University of Illinois

Overview The Need for Compliance Mechanisms The Need for Compliance Mechanisms Basic Compliance Mechanisms Basic Compliance Mechanisms International and Domestic Legal Structures andProcesses International and Domestic Legal Structures andProcesses

Compliance Mechanisms 1. “Habit” 1. “Habit” Professional Militaries Professional Militaries Less Professional Militaries Less Professional Militaries Rebel Groups, Militias, Mobs Rebel Groups, Militias, Mobs 2. Reciprocity 2. Reciprocity POW Treatment POW Treatment Problems of Asymmetry Problems of Asymmetry

Compliance (con’t) 3. Reputation (“diffuse reciprocity”) 3. Reputation (“diffuse reciprocity”) “shadow of the future” “shadow of the future” 4. Direct Enforcement 4. Direct Enforcement Institutional capability Institutional capability Institutional willingness Institutional willingness

LEGAL STRUCTURES: INTERNATIONAL COURT OF JUSTICE VIOLATIONS ADJUDICATED – PLANTIFF V. DEFENDENT VIOLATIONS ADJUDICATED – PLANTIFF V. DEFENDENT LIMITATIONS LIMITATIONS ONLY STATES CAN BE PARTIES ONLY STATES CAN BE PARTIES OPTIONAL CLAUSE EXCEPTIONS OPTIONAL CLAUSE EXCEPTIONS PREFERENCE FOR LOW POLITICS PREFERENCE FOR LOW POLITICS TIME CONSUMING TIME CONSUMING ENFORCEMENT DEPENDS ON UNSC ENFORCEMENT DEPENDS ON UNSC

LEGAL STRUCTURES: INTERNATIONAL CRIMINAL COURT 122 state parties 122 state parties Notable Exceptions: US, Russia (signed not ratified), China, Israel, Notable Exceptions: US, Russia (signed not ratified), China, Israel, All Arab states (except Jordan), Pakistan Uganda, Congo, Darfur, Central African Republic, Mali, Kenya Uganda, Congo, Darfur, Central African Republic, Mali, Kenya Current Cases Current Cases Crimes on Territory of Member or Person is a National of a State Party (or Security Council refers the case) Crimes on Territory of Member or Person is a National of a State Party (or Security Council refers the case) Genocide, War Crimes, Crimes against Humanity, Aggression Genocide, War Crimes, Crimes against Humanity, Aggression Prosecute Individuals, not States Prosecute Individuals, not States Jurisdiction Jurisdiction By Member States or Security Council By Member States or Security Council Case Referral Case Referral

ICC Limitations Small Set of Crimes Small Set of Crimes Cooperation of States Cooperation of States Apprehension of Suspects Apprehension of Suspects Very Slow Very Slow Creates Perverse Incentives for Leaders Creates Perverse Incentives for Leaders

LEGAL STRUCTURES: DOMESTIC COURTS Jurisdiction: Territorial, Nationality, or Universal Jurisdiction: Territorial, Nationality, or Universal Limitations Limitations Must have appropriate domestic laws Must have appropriate domestic laws Must be willing and able to prosecute Must be willing and able to prosecute

POLITICAL STRUCTURES: UN HUMAN RIGHTS COUNCIL 47 member states 47 member states Investigates and reports on abuses Investigates and reports on abuses Normative power Normative power Limitations Limitations no reciprocity incentive (opposite is true) no reciprocity incentive (opposite is true) source of UN information - government themselves source of UN information - government themselves Politicized membership (major violators are members) Politicized membership (major violators are members)