Monitoring and litigating humanitarian rights: prospects

Abstract

Lack of humanitarian law enforcement The notorious weakness of international humanitarian law to enforce respect for its provisions and providing effective remedies for violations is well acknowledged. Calls for an effective monitoring mechanism for violations of humanitarian obligations in armed conflicts have resounded for decades in humanitarian circles and academia. The importance of ensuring respect for international norms is obvious: [w]hat is important in regard to human rights whether in peace or war is not so much what the law proclaims as a right as what it provides for the protection and enforcement of those rights when breached. At the same time, the application of human rights in armed conflict introduces not only the substantial norms of human rights law into these situations but also the human rights procedural “infrastructure” at the core of which are the bodies, institutions and procedures just described. They have proliferated in the field of human rights law but – as has been demonstrated – they have also been confronted with and have responded to situations of armed conflict. Should they stand in for the lack of humanitarian law enforcement, and if so, under which conditions, and which consequences would this entail? The means and institutions which international humanitarian law has to offer to enforce the law are limited. Belligerent reprisals, the oldest method of ensuring respect for humanitarian law by reciprocal violations of the law in response to the opponent’s earlier violations, are largely outlawed because of their counter-productive effect of creating a spiral of violence. The institution of the Protecting Power, introduced by the Geneva Conventions in 1949 to allow third states to uphold the interests of the belligerents, has never been effective because of its reliance on state consent which hardly ever materialized. The dual mandate of Protecting Powers (a “political” function as a sort of arbiter between belligerents, the so-called “Vienna mandate” and a “humanitarian” function which allows providing relief, the so-called “Geneva” mandate) remain unused, and the latter has been taken over entirely by the International Committee of the Red Cross (ICRC) when it acts as Protecting Power.