The Penal Responsibility and Sanctions for Violations of International Humanitarian Law
CHAPTER ONE
Objective of Study
Armed conflicts are experienced throughout the world today and have both direct and indirect adverse effects on their victims. IHL aims to minimize these adverse effects and to provide certain protections. Adherence to the international conventions is but the first step. Respecting IHL requires that number of concrete measures be taken at the domestic level, even in peacetime, to create a legal framework that will ensure that national authorities, international organisations, the armed forces and other bearers of weapons understand and respect the rules, that the relevant practical measures are undertaken and that violations of humanitarian law are prevented, and punished when they do occur. Such measures are essential to ensure that the law works when needed.
This study is significant in that it illustrates the need for States to implement measures required for the penal responsibility and sanctions for violations of IHL as an important basis to safeguard the lives and dignity of victims of armed conflicts. Throughout the study, selected IHL Conventions will be analyzed and the obligations on States determined. The study will further discuss the causes and consequences of failure to implement and will conclude with recommendations on how to overcome these obstacles. Recent practical examples will be utilized in the study to demonstrate the need for an effective penal responsibility and sanctions system on the domestic level.
CHAPTER TWO
AN INTRODUCTION TO INTERNATIONAL HUMANITARIAN LAW
INTRODUCTION
Imagine a huge theatre: outside, posters indicate that the play “International Affairs” is being performed. It is a very successful play and has been running in the same theatre for years […]. Once inside, our newcomer is overwhelmed by the sheer immensity of the stage and the complexity of the spectacle. He observes a great turmoil of actors of all shapes, sizes and colours, who are moving about in all directions; some of them are shouting, gesticulating wildly, brandishing weapons in the face of apparent opponents, or even engaging them in outright combat; others can be seen crouching in dark corners where they whisper conspiratorially, whilst others again sit immaculately dressed at highly polished round tables, with a microphone and a little flag in front of each of them. […] [T]he longer one observes the spectacle, the more certain more or less constant patterns of behavior are discerned, apparently in application of generally accepted standards; and at other moments one notes how formal arrangements are being drawn up among groups of actors, apparently designed to regulate their conduct with respect to particular situations.18
The analogy used by Kalshoven in his description illustrates the complexity of International Humanitarian Law („IHL‟). The principle of state sovereignty has and will always determine interactions between States and more so when dealing with armed conflicts, constituting the very essence of the threat to sovereignty. Yet the body of law that constitutes IHL is immense and its importance is illustrated when Kalshoven states, “it is events of this type which more than anything else result in large numbers of the public in the theatre losing their status as peaceful onlookers and finding themselves dragged onto the stage as participants in the deadly game called war.”19 IHL as an ever-expanding body of law, created by States, has as its aim the protection of persons and prevention of unnecessary suffering.
WHAT IS INTERNATIONAL HUMANITARIAN LAW AND WHEN DOES IT APPLY?
The maxim inter arma silent leges20 embodies when the body of IHL comes into effect. In times of armed conflict, when laws are suspended,21 IHL aims to mitigate the suffering caused. It is a set of rules that limits the effects of armed conflicts, for humanitarian reasons.22 The two main areas that IHL regulates are the protection of those who do not participate or no longer participate in the hostilities and the restriction of the means and methods of warfare used by the parties to the conflict.
IHL is applicable to armed conflicts and situations of occupation.23 International Armed Conflicts are those, which occur between two or more States regardless of whether a declaration of war has been made, or even whether the state of war is recognised by either of them.24 A situation of partial or total occupation is also regarded as an International Armed Conflict, even if the occupation meets with no armed resistance.25 An armed conflict where peoples are fighting, in the exercise of their right to self- determination, against colonial domination; alien occupation; and racist regimes will also qualify as an International Armed Conflict and will be regulated by the relevant body of IHL.26 The full body of IHL is inclusive of all rules contained in treaties concluded between States27 and the body of customary IHL.28 Together these regulate the conduct of hostilities to, in part, ensure the protection of the victims of armed conflicts; of which the rules contained in the Geneva Conventions of 12 August 1949 („the Geneva Conventions‟) and Protocol I Additional to the Geneva Conventions of 12 August 1949, 1977 („Additional Protocol I‟) form substantial part.
A Non-International Armed Conflict occurs within the territory of one State.29 Also known as an internal armed conflict or a „civil war‟, these conflicts occur between the regular armed forces of the State and other armed groups or between other armed groups entirely.30 The principle of state sovereignty has ensured that a more limited body of rules is applicable to Non-International Armed Conflicts, in particular that of Common Article 3 of the Geneva Conventions („CA 3‟) and Protocol II Additional to the Geneva Conventions of 12 August 1949, 1977 („Additional Protocol II‟). Customary IHL has expanded the protection afforded to victims of Non-International Armed Conflicts and tends to minimize this distinction.
CHAPTER THREE
THE DOMESTIC IMPLEMENTATION OF PROVISIONS FOR THE PENAL RESPONSIBILITY AND SANCTIONS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW
States obligations
States bear the primary responsibility for ensuring that IHL is implemented effectively inter alia through national legislation. The importance of the prevention and, if necessary, the punishment of violations of IHL is particularly important and lies with the State.44 Almost all IHL Conventions contain provisions that require States to adopt appropriate legislation to repress violations of IHL, and to prosecute those that commit violations. Select Conventions will be discussed and a brief analysis of the various obligations in this regard will be provided. Distinction is made between the laws governing an International Armed Conflict and those governing a Non-International Armed Conflict purely on the basis that this distinction exists in IHL and as a result provides for different set of obligations
The distinction between International and Non-International Armed Conflicts and the provisions of International Humanitarian Law applied to the classification of conflicts It has been said that IHL “does not contains precise enough criteria to determine which situations fall within its material field of application, as the reality of armed conflict is more complex than the categories anticipated by IHL.”45 Although there have been calls for the removal of classification of conflicts as either International or Non- International46, supposing that the requirements for either are met, the distinction remains and is thus important in many respects. It is important because different IHL rules apply to an International Armed Conflict than those applicable to a Non- International Armed Conflict.47
Non-International Armed Conflicts are further categorised into those falling within the ambit of Common Article 3 („CA 3‟) as those conflicts “not of an international character occurring in the territory of one of the High Contracting Parties”48 and those conflicts reaching the threshold required for the application of Additional Protocol II.
CHAPTER FOUR
FOLLOWING TWO DECADES OF ARMED CONFLICT: THE SYSTEM OF PENAL RESPONSIBILITY AND SANCTIONSS IN UGANDA
BACKGROUND TO THE CONFLICT IN NORTHERN UGANDA
“Violence and conflict have plagued much of Uganda since independence.”107 As with all conflicts, the root causes of the conflict can be traced back to years before they broke out. Uganda is no different and some of the basic reasons for the conflict can be traced back to British colonial administration and the suppressive „divide and rule‟ technique employed at the time.108 Uganda gained independence in 1962 and has since moved through violent revolts and conflicts, from the violent dictatorship of Idi Amin extending 1971 to 1979, followed by the civil war from 1980 to 1986 after the first multi-party elections, to the protracted civil war Northern Uganda endured for over two decades that unleashed untold suffering.109 It is not surprising that Uganda has been described as having a “history of violence and impunity.”110
While an in-depth analysis of the conflict and its causes fall outside the scope of this work, what is important is that Uganda‟s post-independence political system has had a strong military character.111 The regimes of Idi Amin and Milton Obote I and II were characterised by gross human rights violations, revealed by the large scale torture, rape, disappearances and displacement, extra-judicial executions and mass murders.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
CONCLUSION
“Never think that war, no matter how necessary, nor how justified, is not a crime.”
– Ernest Hemingway
The victims to the conflict that was waged in Uganda for more than two decades are yet to see justice done. “There are women who have been sexually assaulted and raped who see their attackers driving around, living normal lives … Even the amnesty has not resolved this …”
This is one of the problems currently facing Uganda in ensuring that justice is served for crimes committed during the conflict. The difficulties extend from the views and everyday experiences of the victims of the conflict to an inability currently to prosecute those responsible. This has been demonstrated and is a practical real-time example of the potential ramifications of the lack of effective implementation of a system of penal responsibility and sanctionss in a State. While Uganda did undertake to implement some obligations required of them under the Geneva Conventions, they failed to do anymore than that. Now, two decades later, the possibility of effective prosecutions of those responsible hangs in the balance. And so too does the dignity of the victims of the armed conflict.
An effective system of penal responsibility and sanctionss ensures not only that the dignity of victims is protected but also provides a measure of protection for the lives of victims of armed conflicts. When an effective system to repress violations is in place it acts as a deterrent to those actively participating in the armed conflict. Knowing that such behaviour will not be tolerated and that effective prosecutions will follow provides additional protection to all parties involved.
More so, when prosecutions are able to be initiated and take place during the course of an armed conflict, they themselves may act as a measure to end the conflict. In Uganda should such a system have been in place and prosecutions already be carried out, the amnesty law may have played a lesser role in ending the conflict. Instead the deterrent of possible prosecution may have acted as the means necessary to bring all parties together with a view to bringing an end to the conflict and negotiations for peace.
RECOMMENDATIONS
States need to ratify IHL instruments and accede to those they are not yet a party to. This is the first step in ensuring that the full body of IHL can be applied domestically and that the victims of an armed conflict can benefit from the full body of protections afforded in times of armed conflicts.
States need to ensure that all obligations placed upon them under the respective IHL instruments are taken seriously and are fully implemented on the national level. This is inclusive of all IHL instruments regulating the protection of civilians, property, and the environment; the use of weapons during times of armed conflicts; and all related matters.
References
- Currie I & De Waal J (2005) The Bill of Rights Handbook Wetton: Juta & Company
- Dormann K (2003) Elements of War Crimes under the Rome Statute of the International Criminal Court Cape Town: Cambridge University Press
- Dugard CJ (2011) International Law: A South African Perspective Cape Town: Juta & Company
- Dunant H (1986) A Memory of Solferino Geneva: ICRC
- Du Plessis M (eds) (2008) African Guide to International Criminal Justice Pretoria: ISS Gasser HP (2009) International Humanitarian Law: An introduction Geneva: ICRC
- Henckaerts JM & Doswald-Beck L (2009) Customary International Humanitarian Law, Volumes I & II New York: Cambridge University Press
- Kalshoven F (2007) Reflections on the Law of War: Collected Essays The Netherlands: Martinus Nijhoff Publishers
- Kalshoven F & Sandoz Y (eds) (1989) Implementation of International Humanitarian Law The Netherlands: Martinus Nijhoff Publishers
