UNIT 4

0
IMPLEMENTATION AND ENFORCEMENT
MECHANISM
IHL - IMPLEMENTATION AND ENFORCEMENT MECHANISM

• The implementation and enforcement of international law in general

and IHL in particular is problematic.
• The international legal system is based on the notion of the sovereign
equality of States, and, generally speaking, no State may interfere in
the internal affairs of another sovereign State.
The implementation and enforcement mechanism of IHL

Peace ---
Domestic legislations; and
Dissemination

Measures

WAR--
Common Article 1 provides that High
Contracting parties to the Convention
‘undertake to respect and to ensure respect for
the present Convention in all circumstances.
State Responsibilities during war

• IHL Obligations;
• Protecting Powers;
• ICRC;
• International Fact Finding Commission; and
• State Responsibility and International Criminal Law
State Responsibility

Armed Forces
State
Accountability
State Reprisals
Responsi-
bility Violations of IHL

Individual Attorney General of Israel v. Adolf

Eichmann [Supreme Court of Israel
judgement 1962],
The first universal jurisdiction case
Implementation and Enforcement mechanism
1. MEANS OF PREVENTION ( During peace time – ‘Pacta sunt
servanda’);

2. CONTROL (During Conflicts);

Common Article 1
3. SANCTIONS(Post Conflict ):
Post Conflict Mechansim
(a)General Observations (High Contracting parties obligations):--
• ‘aut judicare aut dedere’ ---
State Responsibility - Articles 50/51/130/147 (Of Conventions I, II, III, and IV
respectively and Article 85 of AP I.
If a State is unwilling to prosecute an offender within its territory, it is obliged to
hand over the alleged offender to any Party to the Convention who can make
out a prima facie case (GCI, Art. 49; GCII, Art. 50; GCIII, Art. 129; GCIV, Art. 146).
Even if the State is not a party to the Conventions, the offender(s) or victim(s) is
not that State’s national, and the offence is committed outside that State’s
territorial jurisdiction (GCI, Art. 49; GCII, Art. 50; GCIII, Art. 129; GCIV, Art. 146).
(b) Responsibility of the superiors and duty of commanders ---
(Art.86 (2) and Art.87(1&3) API)
( c) Mutual Assistance in criminal matters (Art.88 AP I)
(d) Other means:
1. International enquiry:
2. The enquiry procedure Instituted by the Conventions of 1949
(Art.52,53,132,& 149 OF GC, 1949)
3. The Fact Finding Commission(Art.90 API);
4. The Role of the ICRC;
5. Cooperation with the UN (Art.89 API)
6. Procedure in case of disagreement regrading the application of legal
provisions; (Art.11,11,11, & 12 GC 1949 and Art.7 API) –
Good offices of protecting power