ENFORCEMENT OF INTERNATONAL HUMANITARIAN LAW: BREACHES, DIFFICULTIES AND PROSPECTS

ABSTRACT
This thesis concerns the main obstacles surrounding the implementation and enforcement of international humanitarian law in all forms of armed conflicts are found on all sides of such conflicts. States tend to show an unwillingness to admit that a situation meets the requirements for non-international armed conflicts. States are equally reluctant in such cases to recognise that the rebels opposing it constitute parties to those conflicts. Armed insurgent factions, on the other hand, lack motivation to apply the rules since this measure will probably not change their status and treatment under the domestic laws of the State. In addition, the concept of internationalised armed conflict, where a prima facie non-international armed conflict turns international by the involvement of a third State or States, is creating confusion on which legal framework should be applicable. Methods and mechanisms of enforcement are hardly deterring enough to forestall future violations of International Humanitarian Law provisions. Some of the cases cited in this study are characterised by long, tortuous, and delayed justice delivery. The proliferation of International Criminal Courts and Tribunals, and additional provisions surrounding the use of modern warfare methods are some of the ways International Conference of Red Cross and Red Crescent is looking more effectively enforce IHL in the future. ICRC must vigorously encourage States to ensure pursuit to conclusion cases of violations of breaches enshrined in the IHL. The international community through the appropriate organs of the United Nations step in to ensure enforcement of breaches to the IHL, where States are unwilling or reluctant to prosecute or punish offenders in armed conflict situations.




TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION
1.1 Background to the study --- --- --- --- 1
1.2 Thesis statement --- --- --- --- 6
1.3 Research questions --- --- --- --- 7
1.4 Limitations of the study --- --- --- --- 7
1.5 Significance of the study --- --- --- --- 8
1.6 Methodology --- --- --- --- 9
1.7 Literature review --- --- --- --- 9
1.8 Overview of the chapters --- --- --- --- 11
CHAPTER 2: THE INTERNATIONAL HUMANITARIAN LAW
2.1 Introduction --- --- --- --- 12
2.2 International Humanitarian Law --- --- --- 14
2.3 Some fundamental principles of IHL --- --- 15
2.3.1 Distinction and recognition of belligerency --- 15
2.3.2 The Characterisation of armed conflicts --- --- 17
2.3.3 The status and protection of individuals --- --- 23
2.3.4 Penal prosecutions --- --- --- 27
CHAPTER 3: ENFORCING AND BREACHES TO THE IHL
3.1 Obligations of States --- --- --- --- 29
3.2 Mechanisms and methods of enforcement --- 36
3.2.1 Protecting Powers --- --- --- --- 37
3.2.2 Fact-finding Commissions --- --- --- --- 38
3.2.3 Penal measures --- --- --- --- 40
3.2.4 Military counsel and sanctions --- --- --- 41
3.2.5 Fact-finding --- --- --- --- 42
3.2.6 Reparations --- --- --- --- 44
3.2.7 Accountability measures --- --- --- --- 47
3.2.8 The ICRC --- --- --- --- 48
3.3 Breaches to IHL --- --- --- --- 50
3.4 Some breaches to IHL --- --- --- --- 51
CHAPTER FOUR: DIFFICULTIES AND PROSPECTS
OF EFFECTIVE ENFORCEMENT OF IHL
4.1 Difficulties in enforcement --- --- --- 62
4.2 Prospects --- --- --- --- 66
CHAPTER FIVE: SUMMARY, CONCLUSION
AND RECOMMENDATIONS
5.1 Summary --- --- --- --- 68
5.2 Conclusion --- --- --- --- 68
5.3 Recommendations --- --- --- --- 71
Bibliography --- --- --- --- 73