The Duty of Third States to Implement and Enforce International Humanitarian Law

In: Nordic journal of international law, Band 66, Heft 1, S. 55-75

Abstract

AbstractThe debate surrounding peacekeeping missions and humanitarian intervention has become particularly poignant with the conflagration of violent conflict and incidents of genocide, presenting States with a moral and legal dilemma. While not addressing the issue of humanitarian intervention, this study argues that the international legal order imposes upon States not only a right but a duty to see to it that other States party to conflict abide by their legal and humanitarian obligations as members of the international community. The duty, argues the study, is imposed by several factors. Article~1 common to the Geneva Conventions and additional Protocol I imposes upon signatories the duty to ``respect and ensure respect for the Convention[s] ...'' The universal acceptance of the Conventions as well as the customary law nature and objective character of several of the Conventions' provisions and general principles of international law further make for an erga omnes responsibility, not only a contractual one between States, thus not subject to the principle of reciprocity. The paper shows that this obligation to act to ensure compliance with humanitarian law further arises from the United Nations Charter as well. The study goes on to discuss the scope of the duty to act, arguing that the Draft Articles on State Responsibility and a number of decisions by the International Court of Justice have gone beyond defining a State's right to act and beyond the duty not to assist the commission of violations, the omission of which constitute wrongful acts by States. It is further shown that the aforementioned is an obligation of result; States must continue to take measures to bring parties to a conflict to compliance with international humanitarian commitments until the desired result is achieved. Finally, the study concludes that the lack of enforcement of humanitarian law is a result of States' unwillingness to subject themselves to judicial machinery, which ``while cognizant of the hornets' nests of political entanglements, have the potential to struggle free of them.''