International Humanitarian law (IHL) is designed to be universal, the two Additional Protocols of the four Geneva Conventions do not enjoy the same support as the main texts of the Conventions, given that some major States such as the United States, Iran, India, Israel and Pakistan have not ratified the Protocol I. Also, some conflict-prone States such as Myanmar and Nepal declined to sign and ratify the Protocol II.
This implies that the provisions of the Additional Protocols have limited application on the international scene, making it difficult for the Geneva Conventions to achieve their intended goals. It may however be argued that a cross-section of the rules enshrined in both Protocols are rules of customary international law that already bind all States, irrespective of whether they have ratified the Protocols or not.
Nonetheless, it is easier to enforce the Convention (including the Protocols) against a State which has ratified it and become a party than a rule of customary international law against any State. This is because the debate about what qualifies a rule as customary international law is ongoing. Thus, ordaining that the articles of the Protocols reflect customary international law does not constitute any guarantee that States that have not ratified the Protocols would implement the rules that the articles reflect.
Another shortcoming of IHL is that although it largely developed through a pluralistic process, this in turn made consensus difficult to achieve. Different States with different interests and agendas have prioritised different rules over the years. States have for example differed on when intervention should be allowed, what constitutes self-preservation and when insurgents of a given State may be accorded the same rights and duties as a government. Thus, taking into account a wide array of interests and goals has naturally led to the fact that IHL now has competing and sometimes incompatible objectives.
On the one hand, it seeks to save lives, preserve dignity and humanity in conflicts, and ensure the humane treatment of opponents, but on the other hand, it humanises bloody conflicts and countenances the deprivation of liberty, killing of persons, and destruction of property (sometimes extensive) to achieve justifiable military objectives. Article 147 of the Fourth Geneva Convention for example provides that the extensive destruction of property cannot be justified by military necessity when ‘carried out unlawfully and wantonly’. This implies that destruction of property may be carried out lawfully if it can be justified under IHL principles such as necessity and proportionality.
The principle of proportionality in accordance with Article 51(5) of the Additional Protocol I plays an important role in jus bello by determining whether the collateral damage to persons and property of an attack on a legitimate military target is proportional to the anticipated military advantage. The principle therefore determines whether a State’s decision to resort to war was justified. In the same vein, the principle of necessity determines whether a State’s decision to resort to war in the future will justifiably enable it achieve the goal of self-defence.
However, it goes without saying that it is very difficult to determine what is proportional in each given case, given that one State may prioritise the pre-emptive use of force, while another State may believe a better outcome may be achieved through further negotiations.
The uncertainty regarding the application of the principles of proportionality and necessity therefore further shroud IHL in confusion. Schmitt and Watts conclude that the result of this confusion is ‘an IHL reasonably assured to reflect the best achievable balance of military necessity and humanity – an IHL at once acceptable to the States and armed forces charged with its implementation and to the advocates for war’s inevitable victims.’
The problem of enforceability of IHL also stems from the shortcomings of the enforcement mechanisms generally employed. IHL via the Geneva Conventions contains specific mechanisms that may be used to regulate the activities of States. Two of the mechanisms mostly used include the system of protecting power, and the ICRC’s mandate. The system of protecting power is based on the relationship initiated by a State that does not have diplomatic representation in another State and appoints a third State to be its protecting power.
The latter then becomes responsible for the interests of the former in the host State. The system of protecting power is especially used during armed conflicts when the warring States suspend diplomatic contact. They then appoint protecting powers to protect their interests and serve as intermediary Thus, the protecting power system is a crucial part of IHL given that protecting powers may be used to regulate warfare or make it subject to the rule of law, since they can require warring States to comply with the customs and norms governing war. Nonetheless, this implies that where the protecting power is not willing to regulate warfare, IHL will not be enforced. Also, where the warring States are influential and powerful States, the system is otiose given that they would not be able to appoint smaller and less powerful States to protect their interests. The ICRC mandate on the other hand is based on the fact that the ICRC is a custodian of the Geneva Conventions and the two Additional Protocols, and the mandate is to protect persons affected by armed conflicts.
However, the ICRC is not a sovereign entity and may only enjoy legal immunities and special privileges to the extent that the laws of the State in which it operates allow, and also based on an agreement between the ICRC and the State. In this light, it may be said that only States are empowered to make and implement IHL. Non-State actors, despite their influence and resources, neither have the legal competency to interpret and implement IHL nor the power to create rules that affect the implementation of IHL during conflicts, even where the non-State actors are involved in the conflicts.
As such, the ICRC, despite its influence and resources, does not have the legal competency to interpret and implement IHL on its initiative. It must rely on the willingness of States. The latter create customary international law in accordance with section 38(1) (b) of the Statute of the International Court of Justice 1945 through ‘general practice accepted as law.’ Evidence of the practice is usually the decisions of national courts or opinio juris and not those of institutions such as the ICRC.
This implies that the failure by States to provide unambiguous indications of the practices they have undertaken, as well as the unwillingness of the State that has de jure authority to implement the relevant rules, is directly related to the enforceability of IHL. It is not enforceable without the consent of the State that has jurisdiction. The ICRC’s publications on how to best fulfil its mandate are only influential because legal advisers of States increasingly relied on them, not because they created authoritative rules guiding future cases.
Notwithstanding, not only the opinio juris of national courts have contributed to the development of IHL. The ICC has equally been instrumental given the large number of States that have joined the Court and also, the number of States that have referred situations of crimes against humanity and war crimes to the Court has continued to grow since 2004. Its expanding case law has therefore been important in the development of IHL. Thus, States that do not wish to be governed by rules developed in isolation by other States (sometimes direct competitors) have joined the ICC.