Legal Accountability For Breach Of IHL: An Overview Of The Legal Consequences Of Violation Of IHL
Author: Akashmika Jena, University Law College, Utkal University, Bhubaneswar
Abstract
As per rule 149 of the Customary International Law a state can be held accountable for the breaches of the coveted International Humanitarian Law derivable to the same. This also further includes a) the state is responsible for the breaches committed by its bodies along with its military forces, b)for breaches committed by individuals or person authorized to implement rudiments on the behalf of the central authority, c) the individuals or entities working acting under the state’s orders committing violations shall render the state accountable for the concerned breaches; d) acknowledging and espousing as the conduct of its own the state is responsible for such conduct by the private individuals and groups. Aiming towards the general applicability of the rule it is stated that a State shall be accountable for the internationally acclaimed unlawful conduct. Similar to the Executive, legislative, and Judiciary the military forces are acknowledged as a body of the State government. This particular article states the legal responsibility of a State for Internationally committed wrongful acts. The author with the help of several case laws such as the Distomo case, Essen Lynching case, and onwards seeks to highlight the consequences of violating the provisions of IHL.
Introduction
Accountability for the violation of provisions of International Humanitarian Law has been righteously portrayed in 4 subsequent Geneva Conventions wherein along with the employed requirement of prosecuting the individuals for the violation of IHL the State is held responsible for the aforesaid conduct.[1] Moreover, the same has also been mentioned in the Second Protocol of the Hague Convention for the Protection of Cultural Property.[2]
Besides that the accountability of a State in regards to the violations of IHL by individuals in certain guides while the others hold the State’s responsibility for serious violations or misconducts through remaining ambiguous on the entity to be derivable to the State.[3] Nevertheless, as mentioned above irrespective of being armed or non- combatant its held that the conducts of the State bodies are subjected to the State. Similarly attributing to the unlawful conduct by an individual to Germany the District Court of Jerusalem in the Eichmann Case [4]held that the said conduct was to be attributed as acts of state. Referring to the provisions mentioned under the Public International Law the Supreme Court of Germany in the Reparation Payments Case[5] expressed that a State being a partaker to an armed conflict shall be held accountable for the conduct of its citizens along with the resentment further violating the provisions of International Humanitarian Law. Lastly, the said German court in the Distomo case [6]examining the unlawful conduct of individuals and personnel belonging to the military forces held the State as accountable for such global misconducts.
State’s responsibility towards omissions
As per jk[7] : A state subjected to command responsibility
is accountable for its inability to avert, punish, or testifying a war crime. In the British Claims in the Spanish Areas of Morocco[8] of 1925, it was rightfully held that a State upon failure of exercising necessary diligence aimed towards preventing alongside punishing the unjust conduct of the concerned armed groups then the State shall be held accountable for the aforesaid conduct. Similarly in the Essen Lynching case[9] , the partakers belonging to a military escort hailing from Germany were found guilty following the failure of protection from an aggrieved and aggressive crowd.
State accountability for breaches committed by persons or entities authorized to employ elements of governmental authority
Aiming towards exercising central authority owing to their intramural law the states are accountable concerning the actions of the entities or other persons authorized with exercising the rudiments of the central authority.[10] Moreover, the aforesaid law states that the States are entitled to resort towards other democratic units in performing specific tasks on behalf of the state not neglecting the duty. Subsequently, the states are also accountable for the mode of action employed by private and individual bodies similar to those of the military in achieving specific tasks.
State accountability for the actions committed under the intemperance of authority or in contradiction with the orders
Irrespective of the individuals or groups surpassing their power or contravening orders the state is held accountable for the said acts committed by the concerned entities on its behalf.[11]
As per Art.3 of the Hague Convention and the Art.9 of the First Protocol following the State’s armed forces a party to the concerned discord is accountable for the actions executed by the personnel of its respective armed forces.[12] Concerning the acts committed by the individuals within their scope or against the command, the federal Supreme Court of Germany in the Distomo case held that the State is liable for the aforesaid acts committed by the individuals belonging to the armed forces.[13]
State’s responsibility for violations committed by persons subjected to the directions of the State
Owing to the violations by persons or groups under the directions or control of the state, the same can be held responsible for such actions.[14]. However in the Nicaragua case [15]of 1986, the ICJ stated that to be held accountable for the violations of the International Human Rights alongside the Humanitarian Law it was necessary for the United States to retain operative control regarding the military and paramilitary actions during which the concerned violations took place.
Similarly owing to judgment in the Tadic case of 1999 the ICT or the International Criminal Tribunal expressed that the degree of the indispensable State jurisdiction varies accordingly. As per the objectives of the Tribunal, the demeanor of a particular non- military individual or a group is subjected to accountability to the state on the grounds of the nature of the instructions prescribed by the same. However, subject to the control of the state the operations of secondary armed forces, paramilitary forces, or militias are regulated accordingly.[16] As per the provisions of the Tribunal, the respective control persists owing to various roles of organizing, financing, regulating the conduct of the military, subsequent training as well ensuring active support of the concerned group. In cases where the armed groups operate in the territory of another State, the Tribunal considered that “more extensive and compelling evidence is required to show that the State is genuinely in control of the units or groups not merely by financing and equipping them, but also by generally directing or helping plan their actions”.[17]
State accountability for breaches committed by secluded persons or groups recognized and adopted by a State as its own
Through the means of successive knowledge and approving the acts committed by certain people and groups, it is held that the state is responsible for the acts committed by the concerned private entities and groups.[18] Therefore, irrespective of the fact that the person or the group carrying out the act at the time of the commission was neither a representative of the state nor was authorized to act on the State’s behalf. Taking in to account the Priebka case [19]during World War 2 on the grounds of encouraging the actions of the Italian partisans, Rome’s Military Tribunal held Italy as accountable for acknowledging the partisans post-conflict. Similarly in the J.T. Case[20] Hague’s District court analyzed that the state having most of their territory being accountable for the acts committed under the consent of the exiled government by a rebellion post-liberation. . Subsequently, in the Tadic case, the International Criminal Tribunal or the ICT for prior Yugoslavia ruled that in the absence of military authorization the for the acts of certain individuals and groups then subjected to publicly sanctioned illegal act could be acclaimed as a de facto stance and the state shall be held responsible. The same also stands for ex post facto stances.[21]
Legal accountability of armed rival groups
As per Rule 139 of the International Humanitarian Law[22], operating under an accountable command bestows the responsibility on the armed rival groups to safeguard the reverence of International Humanitarian Law.[23] Therefore, it can be rightfully presumed that setting aside the consequences the aforesaid imposes accountability for the acts conducted by the members of the concerned groups.
Conditionally, approved through primal reading in 1996 concerning state responsibility Art. 14 clause 3 of the Draft Articles expressed that the modus operandi of a representative of a rebellion was debarred of being held as an act of the state Article 14(3) of the Draft Articles on State Responsibility, as provisionally adopted on first reading in 1996, stated that the fact that the conduct of an organ of an insurrectional movement was not to be considered an act of State[24]. Deeming to be beyond the purview of the highlighted subject matter the aforesaid article was obliterated. Further, it was acknowledged by the United Nations Special Rapporteur that instances of violation of the provisions of International Humanitarian Law can be plausibly envisioned.[25] Consequently, overlooking the eradication of the aforesaid article, Article 10 [26] of Draft Articles on State Responsibility lays down that subject to the operation of a rebellion forming the Government concerning International law it ought to be acknowledged as an act of the State.[27]
Conclusion
The main purpose of International Humanitarian Law is limiting casualties and ensuring the protection of the POWs. Hence, owing to the responsibility of a state under the purview of International Humanitarian Law it the duty of the State to prevent wrongful conduct ultimately being held accountable for the same.
[1] First Geneva Convention, Article 51 (ibid., § 2); Second Geneva Convention, Article 52 (ibid., § 2); Third Geneva Convention, Article 131 (ibid., § 2); Fourth Geneva Convention, Article 148 (ibid., § 2).
[2] Article 38 (ibid., § 4) Second Protocol to the Hague Convention for the Protection of Cultural Property.
[3] See, the military manuals of Argentina (ibid., § 9), Canada (ibid., § 10), Colombia (ibid., § 11), Germany (ibid., § 12), Netherlands (ibid., § 13), New Zealand (ibid., § 14), Nigeria (ibid., § 15), Russian Federation (ibid., § 16), Spain (ibid., § 17), Switzerland (ibid., § 18), United Kingdom (ibid., § 19), United States (ibid., §§ 20–21) and Yugoslavia (ibid., § 22)
[4] ADOLF, son of Karl Adolf, EICHMANN v. THE ATTORNEY GENERAL, Criminal Case No. 40/61.
[5] Reparation Payments case Germany, Federal Supreme Court (ibid., § 24).
[6] Distomo case Germany, Federal Supreme Court, (ibid., § 25).
[7] Rule no 153 of Customary International Humanitarian Law
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule153
[8] Arbitral Tribunal, British Claims in the Spanish Zone of Morocco case (Affaire des biens britanniques au Maroc espagnol), Arbitral Award, 1 May 1925, reprinted in Reports of International Arbitral Awards, Vol. II, United Nations, New York, 1949, Section III(II), pp. 642–646, §§ 3–6.
[9], British Military Court for the Trial of War Criminals, 18th-19th and 21st – 22nd December 1945.
[10] See Article 5 of Draft Articles on State Responsibility,(ibid., § 8).
[11] See Article 7 of Draft Articles on State Responsibility, (ibid., § 8).
[12] Article 3 of the Hague Convention (IV) 1907, Article 3 (ibid., § 1); Article 91 (adopted by consensus) of Additional Protocol I, (ibid., § 3).
[13] Distomo case Germany, Federal Supreme Court (ibid., § 25)
[14] See Article 8 of Draft Articles on State Responsibility, (ibid., § 8).
[15] Nicaragua v. United States ICJ Rep 14 (1986)
[16] Tadić case, Judgment on Appeal ICTY, (ibid., § 63)
[17] Tadić case, Judgment on Appeal (ibid., § 63)
[18] See Article 11 of Draft Articles on State Responsibility, (ibid., § 8).
[19] Priebke case Italy, Military Tribunal of Rome, (ibid., § 27).
[20] Netherlands, District Court of The Hague, (ibid., § 28).
[21] Tadić case, ICTY, Judgment on Appeal (ibid., § 63).
[22] Rule no 139 of Customary International Humanitarian Law
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule139
[23] Article 1(1) of Additional Protocol II.
[24] Article 14(3) of Draft Articles on State Responsibility,1996.
[25] The first report on State responsibility by the Special Rapporteur, Addendum (ibid., § 57).
[26] of Draft Article on State Responsibility
[27] Article 10 of Draft Articles on State Responsibility,(ibid., § 8).
La Senatus Scriptors 