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Monitoring IHL Compliance during Non-International Armed Conflicts: The Need for a Complementary Approach – Part I

March 17, 2020

Sofia Poulopoulou is a PhD researcher at the Grotius Centre for International Legal Studies at Leiden University under the supervision of Professor Nico Schrijver and Associate Professor, Dr. Robert Heinsch. Her doctoral research focuses on implementation mechanisms for International Humanitarian Law (IHL). Sofia is also affiliated with the IHL Clinic of the Kalshoven-Gieskes Forum at Leiden University, where she lectures on IHL and supervises the research project ‘IHL in Action: Respect for the Law on the Battlefield’, undertaken in cooperation with the ICRC. She has previously worked for the ICC and the Coalition for the International Criminal Court. She holds an LL.M. from Maastricht University and a Degree in Law from the Democritus University of Thrace.

The majority of armed conflicts taking place nowadays are non-international in character. In this type of conflicts, the fighting takes place between governmental armed forces and organised armed groups or between such groups within a state. Despite the predominance of non-international armed conflicts (NIAC), treaty-based compliance mechanisms applicable to this type of situations are either limited or non-existent. For instance, neither Common Article 3 nor Additional Protocol II to the 1949 Geneva Conventions (GCs), which regulate NIAC, provide for any supervisory mechanisms. States have only agreed to the establishment of compliance mechanisms for international armed conflicts (IAC), that is to say conflicts involving two or more states. However, even in that context, states are not eager to make use of the existing compliance mechanisms (see GC I-IV, Articles 8/8/8/9, Articles 52/53/132/149; Additional Protocol I, Art. 7, Art. 90).

In light of the above, this blog post presents and analyses the existing compliance mechanisms for NIAC and argue that a complementary approach to monitoring respect for IHL is the way forward. Part I focuses on the treaty-based compliance mechanisms applicable to NIAC within the IHL framework. In addition, references to the monitoring system of the Convention on the Rights of the Child (CRC) and the Optional Protocol to the CRC on the involvement of children in armed conflict are made. Although not strictly falling under the IHL framework, the aforementioned treaties are relevant due to the Optional Protocol’s focus on children in armed conflict and the obligation of states parties under Article 38(1) of the CRC “to respect and to ensure respect for rules of IHL applicable to them in armed conflicts which are relevant to the child.” Part II of the blog post discusses non-treaty based mechanisms that engage with armed groups and/or states and monitor compliance with IHL norms. Throughout the analysis, particular attention will be paid to the following issues: (i) whether the compliance mechanisms are designed to monitor the conduct of states, armed groups or both during NIAC; and (ii) the type of mechanisms that currently exist.

Geneva Conventions and their Additional Protocols

Starting first with the core IHL treaties, it has already been established that no compliance mechanisms are included in Common Article 3 and Additional Protocol II to the GCs. A possible way to monitor compliance by parties to a NIAC is through the International Humanitarian Fact-Finding Commission (IHFFC) established by Additional Protocol I to the GCs. While it was created for inter-state armed conflicts, the IHFFC has expressed its willingness to extend its competence to NIAC. Indeed, the first mission of the IHFFC was undertaken in 2017 in the context of a NIAC, as the IHFFC was mandated by the OSCE to undertake an independent forensic investigation into the death and injury of staff of the OSCE mission to Eastern Ukraine. As I have argued here, the ‘good offices’ competence of the IHFFC was the legal basis for the investigation, since it was requested by the OSCE and not by any of the parties to the conflict. If it had been requested by Ukraine, the consent by the non-state party to the conflict would have also been necessary in accordance with article 90(2)(d) of Additional Protocol I (see here and here). So far, the IHFFC has been used only this once. In 2019, the IHFFC offered its services to Ukraine and Russia in relation to the situation in the Kerch Strait but such offer was not taken up by the states concerned.

While not a compliance mechanism per se, the so-called external compliance dimension of Common Article 1 can also serve as a possible avenue for ensuring compliance with IHL during NIAC. It should be noted that Common Article 1 applies (para. 125) to internal armed conflicts and entails the obligation of states to ensure respect for IHL rules applicable to NIAC by armed groups. Pursuant to the updated ICRC Commentary (para. 153), “[s]tates, whether neutral, allied or enemy, must do everything reasonably in their power to ensure respect for the Conventions by others that are Party to a conflict.” The Commentary further elaborates that the duty of states to ensure compliance by others includes both positive and negative obligations (para. 154). The external compliance dimension of Common Article 1 was not originally envisioned by the drafters but was developed by subsequent practice. It is a positive development that supplements states’ obligation to ensure respect for IHL by their organs and the civilian population under their control. Keeping in mind the frequency of partnered operations both during IAC and NIAC, the external dimension of Common Article 1 is of particular importance in such contexts; partnered warfare facilitates the supervision by states of the lawfulness of the conduct of their partners and the adoption of measures aimed at ensuring respect for IHL by all actors involved.

Specialised IHL Treaties

In the case of other treaties within the IHL framework that apply to NIAC, their monitoring system appears in principle more developed compared to that of the GCs and their Additional Protocols. For example, the Convention on Certain Conventional Weapons encompasses reporting obligations and meetings of the High Contracting Parties (para. 2, 5); the Ottawa Convention also provides for fact-finding missions as means of clarifying allegations of non-compliance; or in the case of the Chemical Weapons Convention it establishes an intergovernmental body in charge of overseeing the implementation of the Convention, the OPCW. Nevertheless, the compliance mechanisms included in the aforementioned Conventions are only addressed to states. The same holds true for the Second Protocol to the Hague Convention for the Protection of Cultural Property in Armed Conflict which also applies to NIAC. Its compliance system, consisting of periodic reporting, meetings of the parties and the Second Protocol Committee, can only monitor states’ compliance with treaty obligations. Moreover, with the exception of the Chemical Weapons Convention, the reporting function solely focuses on self-reporting by states; no review of the information submitted can be undertaken as there is no body or forum specifically mandated with this task. The function of the Second Protocol Committee to “consider and comment on reports of the Parties [and] seek clarifications as required” is the closest that we get within the IHL framework to a mechanism overseeing states’ reporting obligations. Nevertheless, as I have argued here, the Second Protocol Committee does not appear to discharge in full its mandate with regard to the reporting obligations of states.

The CRC and the Optional Protocol to the CRC on the involvement of children in armed conflict

Unlike the treaties within the IHL framework, the implementation of the international human rights treaties is monitored by bodies of independent experts. To be more specific, the CRC stipulates that the states parties undertake to submit at regular intervals periodic reports to the Convention’s monitoring body, the CRC Committee. The latter is the body of 18 independent experts that examines states parties’ reports, requests clarifications and issues concluding observations. In relation to the CRC Committee’s approach in monitoring the implementation of Article 38(1) of the CRC, which directly refers to the respect for IHL rules relevant to the child, the following observations can be made. First, even if the CRC Committee – in line with the wording of Article 38(1) of the CRC – refrains from classifying conflicts in its concluding observations, the situations that trigger the applicability of Article 38 are in most cases NIAC. Moreover, the Committee’s practice to refer to IHL principles and protections in its concluding observations is not consistent. The Committee sometimes makes direct references to IHL protections, identifies violations thereof and recommends their respect (see here, para. 49; here, para. 38, 39; and here, para. 25). This approach by the Committee focuses on the rules and principles applicable to the conduct of hostilities and concerns a small number of its concluding observations. The latter usually do not include any explicit mention of IHL (see here, para. 63; here, para. 83; and here, para. 70). Furthermore, although the Committee is mandated to oversee states’ compliance with Article 38 of the CRC, when it is a NIAC it sometimes refers to all parties to the conflict in its concluding observations (see here, para. 66; here, para. 69; and here, para. 60). In addition, when the Committee deals with IHL issues it does not enter into a legal analysis of the IHL principles and protections. This may be explained by the fact that the Committee does not undertake an adjudicative function in its concluding observations. The individual communications procedure, which allows individuals to submit complaints about violations of their rights under the CRC and the Optional Protocol to the CRC, could be a more suitable avenue for a more comprehensive analysis and assessment of compliance with IHL per Article 38 of the CRC by the states parties. While the Optional Protocol to the CRC on an individual communications procedure entered into force in 2014, no communications related to Article 38 of the Convention have been submitted up to this moment.

The CRC Committee also monitors the implementation of the Optional Protocol to the CRC. The Protocol imposes obligations on states parties to ensure that children under the age of 18 are not forcibly recruited or take direct part in hostilities. Article 4 of the Protocol, in particular, states that “armed groups […] should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” Considering that the age standard set by the Optional Protocol is not the same as under IHL, the Committee’s monitoring of the implementation of the Protocol does not amount to overseeing compliance with the IHL rules regulating the recruitment and use of children in hostilities (API, Art. 77; APII, Art. 4). It is true that the Optional Protocol to the CRC does not incorporate a provision similar to Article 38(1) of the CRC. Nonetheless, it does recall in its preamble the obligation of each party to an armed conflict to abide by IHL rules. A closer look at the Committee’s concluding observations to the periodic reports under the Optional Protocol shows that the Committee has, in certain instances, reaffirmed the obligations of states parties’ towards the protection of civilians and civilian objects and recommended that they act in respect of the principles of distinction, proportionality, and precaution (see here, para. 17; here, para. 9; and here, para. 18). In addition, the Committee frequently recommends in its concluding observations (see here, para. 15; here, para. 46) the cooperation with the Office of the Special Representative of the Secretary-General for Children and Armed Conflict (OSRSG/CAAC). Given the state-centric nature of the mechanisms analysed so far, the supervision of armed groups’ respect for IHL norms during NIAC takes places through non-treaty based mechanisms, including for example the Monitoring and Reporting Mechanism on grave violations committed against children in armed conflict. To provide a comprehensive overview of the existing compliance mechanisms, the second part of the blog post will analyse the monitoring system developed by the OSRSG/CAAC and other organisations that engage with parties to NIAC.

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