Enforcing International Law in an Age of Seeming Impunity

Publication Date: 
Tuesday, September 1, 2015

ISIS’ recently advertised destruction of part of the ancient complex at Palmyra shocked the international conscience, and raised a renewed chorus of denunciation, with Irina Bokova, the Director-General of UNESCO, the UN’s cultural agency, condemning the destruction as “a new war crime and an immense loss for the Syrian people and for humanity.” Yet this precisely the problem – the destruction of protected world cultural heritage in Palmyra may be a “new” instance of a war crime, but it is only the latest in a long series of international crimes committed in the conflict in Syria and Iraq – ranging from genocide and sexual enslavement targeting the Yazidi community by the Islamic State to the use of prohibited chemical weapons by both the Islamic State and the Syrian regime – to which the world has reacted with equal parts outrage, despair and frustration at the seeming lack of accountability and enforcement of international norms.

“Much like the grinding slaughter of human beings,” writes Anne Barnard in the NYTimes, “the ravaging of irreplaceable antiquities in Syria and Iraq has become something of a grim wartime routine.” Various means and mechanisms exist to promote compliance with and enforcement of IHL – including economic, diplomatic or military sanctions, monitoring reporting and fact-finding (MRF) missions, and criminal prosecution through courts and tribunals. Yet there are significant barriers to the effective application of these enforcement mechanisms in practice. The result is that despite international consensus and denunciation of the commission of international crimes, many serious violations of international law are not – or at least not in a timely manner – the subject of investigation, sanction, criminal prosecution, or military intervention. In the face of such challenges, what holds back the enforcement of IHL in practice? What are the costs of non-enforcement, and what will it take to build consensus around enforcement and accountability?

Barriers to enforcement

Even when it comes to international law, states have the primary responsibility for implementing and enforcing the law within their territory; as a result, however, domestic barriers pose the first obstacles to the enforcement of international law. In the case of an armed conflict, states have an obligation to “respect and to ensure respect” for IHL. This includes enforcing compliance with the rules of IHL, and punishing serious violations through domestic military or civilian justice systems. Under IHL, all states are also required to prevent and punish “grave breaches” of the Geneva Conventions, which are war crimes that trigger universal jurisdiction. Universal jurisdiction allows for prosecution of war criminals in front of a domestic tribunal that may not have jurisdiction traditionally, which generally arises out of the nationality of the perpetrator or the victim or the territory on which the crimes were committed. Especially during or immediately following armed conflict, or when the state itself is responsible for the violations, however, states may be unwilling or unable (unwilling e.g. in the case of President of Sudan Omar Al Bashir, or (unable e.g. the case of Joseph Kony in Uganda) to prevent and punish serious violations of IHL domestically. Under the principle of complementarity, this would open the door to international enforcement.

These international enforcement measures face their own unique barriers. For one, jurisdictional barriers limit the ability of international courts to enforce the law. The International Criminal Court (ICC), established in 2002 to prosecute serious violations of international law giving rise to individual criminal responsibility under international criminal law (ICL) – namely war crimes, crimes against humanity and genocide – may only exercise jurisdiction over nationals and territories of countries that have ratified the Rome Statute, or otherwise accept the jurisdiction of the Court. Thus far, Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali (all States Parties to the Rome Statute) have referred situations occurring on their territories to the Court. Alternatively, the UN Security Council may refer the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime, which has occurred with respect to situations in Darfur, Sudan and Libya (both non-States Parties). Since neither Syria nor Iraq are Parties to the Rome Statute, and although there have been numerous calls for it, no referral has come from the Security Council, despite numerous calls, ICC Prosecutor Fatou Bensouda has declared that the Court does not have jurisdiction to prosecute ISIS despite “crimes of unspeakable cruelty”.

The lack of Security Council referral to the ICC is indicative of a third obstacle, namely political barriers to the enforcement of international law. Many of the international mechanisms for enforcing international law discussed here are not automatically engaged, but require political consensus in the Security Council or other international or national fora. In addition to referring a situation to the ICC, for instance, the Security Council may also authorize enforcement measures. Acting under Chapter VII of the UN Charter, the Security Council may “determine the existence of any threat to the peace, breach of the peace, or act of aggression”(Article 39) and may impose economic or diplomatic (Article 41) sanctions. It may also authorize the collective use of armed force (Article 42) to restore international peace and security. Yet such an authorization depends upon approval, or a least lack of opposition, by the Permanent Five member states. With regard to the situation in Syria, opposition from Russia and China has in recent years prevented the authorization of military intervention or an ICC referral. The lack of international political consensus also forecloses a further option of establishing an ad hoc international criminal tribunal with jurisdiction to prosecute serious violations committed in Syria or Iraq, as occurred prior to the creation of the ICC with the establishment of ad hoc criminal courts for the former Yugoslavia (ICTY) and Rwanda (ICTR) by the Security Council. Political barriers are also paramount in the decisions of international bodies or states to establish monitoring, reporting and fact-finding (MRF) missions to investigate alleged violations of international law.

In the absence of Security Council action, states may take a number of steps to pressure other states or non-state actors to comply with international law, though each of these means has its own shortcomings as well, including questions of legality. As previously noted, states may exercise universal jurisdiction to prosecute domestically “grave breaches” of the Geneva Conventions; however, this is a rare and highly political step. More common is for states to enact their own economic, diplomatic or military sanctions against other states or groups as a means of enforcement. A number of states, including the US for instance, have placed economic, property and travel sanctions on both Syria and designated “terrorist” groups such as ISIS and Al Qaeda. Sanctions enacted by one state – rather than collectively through the Security Council – are likely to have limited effect, however, unless other states follow suit. Under some bodies of international law, states may also commit reprisals – actions which would otherwise be unlawful but which are permitted in exceptional cases as an enforcement measure in response to unlawful acts of an adversary – though the form and severity of allowable reprisals is strictly limited under IHL. A party to a conflict may not, for example, lawfully target civilians because its adversary did. Without Security Council authorization, military intervention as a means of filling gaps in enforcing international law and security is also of questionable legality, not to mention political viability.

A fourth obstacle arises with regard to enforcing compliance by non-state armed groups with IHL. For one, many of the enforcement measures discussed here – such as economic or diplomatic sanctions, and to some extent military intervention – are rather state-centric in nature, and likely to have only indirect effects on non-state actors. While non-state armed groups are bound by IHL and ICL to the same extent as state parties to a conflict, the deterrent effect of enforcement measures on ISIS, for example, has appeared weak, given the barriers to enforcement discussed here; the possibility of military defeat may loom larger to such actors than the remote threat of criminal prosecution, for instance, though even that has proven limited. Moreover, non-state armed groups have a number of strong incentives to commit violations. Non-state actors may be less concerned with the “reputational” effects of noncompliance than a state, and may see the use of prohibited means and methods of warfare – such as the widespread and systematic targeting of civilians or sexual violence – as a means of leveling the playing field in asymmetric conflicts or of rejecting what they perceive as illegitimate, external or Western-imposed norms. Furthermore, significant financial incentives may drive non-state actors to violate international law. We’ve seen for instance the large profits to be had in the illicit economy from the sale of protected antiquities, the trafficking of sex slaves or forced laborers, or the smuggling of migrants and refugees.

Overcoming barriers to enforcement

In light of these obstacles and constraints, how do we overcome barriers to the enforcement of international law, especially in the most extreme cases? One factor in overcoming barriers to enforcement is certainly time; measures such as MRF investigations, and criminal prosecutions, may take years to come into effect, meaning that justice will be delayed, if not denied entirely. Yet there is much more to be done than wait. How then can we translate consensus around legal and moral norms into actionable approaches?

With regard to domestic barriers to enforcement, efforts at strengthening the capacity of weak national judicial systems can contribute to furthering the implementation and enforcement of international law. Such has occurred in Bosnia and Herzegovina, for example, with international support for the creation of a War Crimes Chamber within the national judiciary. At the international level, some organizations have also adopted technical approaches to enhancing compliance by improving knowledge of the law and the contexts of violations. These approaches include educating the public on humanitarian law and principles, and engaging in dialogue with weapons bearers, as exemplified in the work of organizations such as the ICRC and Geneva Call. Admittedly, however, such work is laborious and relies upon establishing productive relationships over time with what may be highly dynamic or volatile groups; engaging with designated “terrorist” groups may also present legal obstacles for humanitarian organizations under counterterrorism regulations in some countries.

Other have adopted advocacy approaches to enhancing the enforcement of international law, mobilizing around issues such as the prosecution of sexual violence, strengthening cooperation with the ICC, or preventing and ending genocide, with varying degrees of success. Alternatively, many have focused on changing the financial incentives for violation: “ISIS's destruction of priceless antiquities stops only when it can get a price for their sale,” remarked Kenneth Roth, Executive Director of Human Rights Watch following the attacks on Palmyra. Similarly, other approaches to preventing violations such as human trafficking or the ivory trade have focused on changing or destroying the illicit markets which fuel noncompliance. This also points to our need to better understand the factors which drive noncompliance in order to mitigate them.

Politics, however, are likely to remain a paramount obstacle. Overcoming political barriers to enforcement – whether in the Security Council or other international fora, or in the domestic realm – will thus require significant consensus-building efforts and political mediation around accountability and enforcement. Despite the seeming paralysis of enforcement today, we are not powerless in the face of mass atrocities. And as international law scholar Louis Henkin famously said, “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” While the same may not be true of non-state armed groups, the ICRC reminds us that, “IHL is omnipresent in contemporary conflicts,” highly visible violations notwithstanding. And yet as we’ve seen, the omnipresence of IHL is does not necessarily equate to the omnipotence of IHL; it still requires effective and consistently applied means and mechanisms of enforcement. Despite the significant progress that the development of international norms, legal frameworks and institutions for human rights and humanitarian protection demonstrates, enforcement is not automatic. It requires persistent efforts by individuals, civil society organizations, states and the international community to ensure that commonly held norms are enforced in practice.

Comments

Hakimi Abdul Jabar's picture

Hi Julia,

I had only studied the duty to prevent and punish acts of terrorism and militancy for my Bachelor of Laws from 1997-1998 and here's my gist :

SIMILARITIES BETWEEN ISLAMIST TERRORIST GROUPS - AL-MAUNAH AND ISIS : THEY BOTH RAID MILITARY CAMPS OF MILITARY WEAPONS AND EQUIPMENT

Prime Minister Mahathir Mohamad has said the Al-Ma'unah cult aimed to overthrow his government and set up an Islamic state.

He says most of the 1,800 cult members nationwide also belong to the main opposition party, Parti Islam SeMalaysia (PAS).
http://news.bbc.co.uk/2/hi/asia-pacific/870776.stm

ISIS has hit another military base in Iraq, this time in the town of Heet about 100 miles from Baghdad and seized more military equipment and weapons.
http://fusion.net/isis-seizes-more-military-equipment-after-capturing-ir...

https://www.amazon.com/ISLAMIST-TERRORISM-Beslan-Children-Torment-ebook/...

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