Implementation and Enforcement of International Humanitarian Law

Abstract

The chapter analyzes different means of implementation and enforcement of international humanitarian law (IHL). This includes traditional means, and new means of implementation. Hence, the use of big data tools and Artificial Intelligence, and new challenges for the implementation of IHL, as the use of autonomous weapons, are tackled. In more general terms the author differentiates between bilateral confrontative means (such as retorsions and reprisals), general non-confrontative means (such as the law of state responsibility) and more specific non-confrontative means (such as decisions and opinions of courts and war crime tribunals, especially the International Criminal Court). Moreover, special forms of implementation and enforcement of IHL are stressed, as the system of collective security, the instruments to secure both interstate and domestic enforcement and the competence and responsibilities of different actors. It is argued by Voeneky that, even though there is no place for the claim ‘inter arma silent leges’, IHL faces two main challenges for its realization: Firstly, IHL, like other areas of international law, is not implemented and enforced via a central body or hierarchical institutions, which leads to implementation deficits of rules protecting common values and an overlap of norms and competences. The second major challenge, relevant for this particular area of international law, is its purpose, aiming at humanizing an area that is per se inhumane. Moreover, by implementing and enforcing IHL rules, a balance has to be struck between the aim to protect certain persons and objects through restricting the means and methods of warfare, and the preservation of the right of self-defense as enshrined in Article 51 UN Charter.