The Unenforceable Nature of International Humanitarian Law

As technological capabilities of the human race have increased, the destructive potential of warfare has grown exponentially, partly driven by advancements in weaponry. These innovations have transformed the nature of conflict, making modern warfare more dangerous than ever. The heightened consequences of warfare have created an urgent need for Humanitarian Law, specifically in the international community, to hold states accountable for their actions. As such, beginning in the mid-19th century, the modern framework of International Humanitarian Law (IHL) has progressed, leading to the development of the Convention on Certain Conventional Weapons (CCCW) and the Chemical Weapons Convention (CWC). However, recent developments in the international community, such as Israel’s pager attack on Lebanon and Syria’s use of chemical warfare, have sparked debate regarding these conventions’ effectiveness in holding states accountable for their misuse of weapons. The CCCW and CWC stand as key milestones in the effort to regulate the use of such weapons, yet their limitations have become evident in light of these ongoing violations. Due to the anarchic nature of the existing international system, IHL is often left unenforceable as the rules of engagement are typically disregarded in favor of military objectives. This lack of enforceability not only undermines international humanitarian frameworks but also perpetuates a cycle of human rights violations. To address this challenge, it is crucial to reform IHL enforcement and accountability mechanisms, such as enhancing the jurisdiction and enforcement power of international courts. In addition, it is equally imperative to garner the support of the international community.

Despite robust legislation that provides a legal foundation for prosecuting human rights violations, IHL remains largely unenforceable. Many states either reject the jurisdiction of international courts, such as the International Criminal Court (ICC), or completely avoid compliance with their rulings. For example, in order for a violation under the CCCW to be brought under the jurisdiction of the ICC, an investigation can be opened in three possible ways:

1. A member country of the ICC can request an investigation
2. The UN Security Council can request an investigation from anywhere in the world.
3. The ICC’s prosecutor, with approval from ICC judges, can begin an investigation on their own. [1]

Additionally, those who are not members of the ICC can be investigated “if the alleged offenses took place in a member state’s territory, if the nonmember state accepts the court’s jurisdiction, or with the Security Council’s authorization” [1]. While this may seem like a robust framework, the ICC relies entirely on the cooperation of member-states; without their cooperation, the ICC has no enforcement power or “world police” to arrest individuals. Even when an investigation is opened, states can refuse to cooperate or deny the court’s jurisdiction altogether. Some of the most powerful nations in the world remain nonmembers of the ICC, including the United States, weakening the court’s jurisdiction [2]. Despite the lack of enforcement, there is still a strong global consensus that calls for more robust accountability mechanisms. For instance, the Public International Law and Policy Group (PILPG) contests that “those who commit IHL violations should bear individual criminal responsibility and face prosecutions at international, regional, and national tribunals” [3]. Yet, the inherent weakness in the enforcement of IHL creates a cycle of humanitarian violations, as perpetrators understand they can often evade justice and commit recurring abuses.

Numerous recent examples of international conflicts demonstrate the unenforceable nature of IHL, especially the Syrian government’s use of chemical weapons. Beginning in 2011, Syria has been engulfed in a vicious Civil War, with chemical weapons utilized against the Syrian people, thereby violating humanitarian law established by the Chemical Weapons Convention. In 2013, nearly two years into the war, the Syrian regime unleashed a devastating chemical attack with the “deliberative objective of killing as many residents as possible” [4]. This brutal act of warfare not only targeted civilians indiscriminately but also underscored the regime’s willingness to violate international norms and laws in pursuit of its military objectives. Yet, the 2013 attack is not the Syrian regime’s last use of chemical warfare, as the Syrian Network for Human Rights’ databases have documented 222 chemical weapons attacks spanning from 2012 to 2023 [5]. Beyond being a violation of the international norm of targeting civilians, these chemical weapons attacks underscore the Syrian regime’s blatant disregard for the Chemical Weapons Convention (CWC), demonstrating its lack of enforceability. The CWC specifically states:

“Each State Party to this Convention undertakes never under any circumstances to…

• develop, produce, stockpile or otherwise acquire chemical weapons,
• to use chemical weapons; ” [6].

Syria officially signed the CWS in 1993 and became a party to the convention in 2013, the same year it launched a brutal attack on its civilians [7]. Through the lens of Syrian chemical weapons attacks, a harrowing inconsistency of enforcement in IHL and the CWC is revealed. Despite these legal frameworks being established to deter the use of chemical weapons, their enforcement mechanisms are called into question, as Syria, an active participant in the development of these principles, openly defies them and faces no legal repercussions from the international community.

More recently, in the escalation of the conflict between Israel and Lebanon, the state of Israel launched an attack of explosive pagers into Lebanon, violating humanitarian law established during the Convention on Certain Conventional Weapons (CCCW). In the CCCW, it establishes that “Amended Protocol II is the only legally-binding instrument which covers Improvised Explosive Devices (IED)” [8]. Israel signed the Amended Protocol II in 1996; however, the country has not ratified the Amended Protocol. Nonetheless, as a member of the CCCW, Israel is expected to adhere to the convention’s principles that prohibit the use of such “improvised explosive devices” [9]. Though conflictual tensions between the state of Israel and Lebanon are complex, the use of explosive pagers poses a significant risk to civilian lives and raises concerns about nations’ adherence to the humanitarian law framed by the CCCW. Israel’s invasion into Lebanon has received increasing criticism from the international community, including from United Nations Human Rights experts, who have condemned Israel’s actions as a “relentless campaign against the most fundamental protections for civilians” [10]. However, criticism from the UN is not enough to compel compliance or impose penalties. Even if Israel’s recent actions in Lebanon were brought before International Courts, the outcome would most likely reflect the unenforceable nature of IHL. For example, despite the UN’s top court ruling that Israel’s settlements in Gaza violated international law, Israel disagreed with the decision, and no further action was taken [11]. It is expected that the same trend would continue with Israel and Lebanon, rendering IHL and international courts’ rulings powerless.

Despite the challenges and unenforceability, International Humanitarian Law has evolved significantly over the past century, with greater institutional mechanisms now in place to hold violators accountable. The International Criminal Court was created in 2002, aimed to investigate violations of humanitarian law, marking a significant step in holding states and individuals accountable for their actions [12]. However, as demonstrated in the cases of Syria and Israel, the ICC often lacks the enforcement to prosecute. Several factors contribute to this limitation, including the absence of a “world police” in the international community. Unlike an individual state, there is no centralized authority to enforce international humanitarian laws; the ICC relies heavily on state cooperation to apprehend suspects and execute warrants. This dependence on state cooperation poses a significant strain on IHL, especially when nations refuse to comply or political dynamics impede action. Global political dynamics also plays a crucial role in the enforcement of IHL. For example, allied nation states can prioritize their strategic relationships over an adherence to humanitarian law, resulting in a selective or non-effective enforcement.

When evaluating the robustness of International Humanitarian Law, it is apparent that the lack of enforceability mechanisms makes the robustness only true on paper. However, in a world of increasing technological capabilities catapulting destructive weaponry, the enforcement mechanisms of IHL must respond accordingly. Yet, how can we begin to hold states accountable for their violations of international law while emphasizing humanity within warfare? On the one hand, it is increasingly necessary to develop greater enforcement methods of the International Criminal Court to hold states accountable for their violations. This could involve expanding the ICC’s jurisdiction, further streamlining processes and resources and strengthening penalties for non-participation. However, meaningful enforcement cannot be solely reliant on the international courts themselves; it requires a unified movement from the international community. Without widespread support and commitment from nations around the world, including those who have violated IHL, efforts to enforce will struggle to gain the necessary traction. Ultimately, to build a robust framework that protects human rights and holds violators accountable, a concerted effort from the international community is crucial, emphasizing a shared responsibility amongst all states.

Bibliography

[1] Ferragamo, Mariel, and Claire Klobucista. “The Role of the ICC.” Council on Foreign Relations, 2024. https://www.cfr.org/backgrounder/role-icc#:~:text=The%20court%20can%20open%20an,with%20the%20approval%20of%20pretrial.

[2] Coalition for the International Criminal Court: United States. United States | Coalition for the International Criminal Court. Accessed October 15, 2024. https://www.coalitionfortheicc.org/country/united-states#:~:text=A%20request%20to%20open%20an,party%20to%20the%20Rome%20Statute.

[3] Williams, Paul. “Violations of International Humanitarian Law Should Lead toward International Criminal Responsibility.” Public International Law & Policy Group, October 20, 2023. https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2023/10/19/violations-of-international-humanitarian-law-should-lead-toward-international-criminal-responsibility.

[4] “The 10th Anniversary of Two GHOUTAS Attack: The Largest Chemical Weapons Attack by the Syrian Regime on Syrian Citizens [En/Ar] - Syrian Arab Republic,” ReliefWeb, August 26, 2023, https://reliefweb.int/report/syrian-arab-republic/10th-anniversary-two-ghoutas-attack-largest-chemical-weapons-attack-syrian-regime-syrian-citizens-enar

[5] ibid

[6] “Article I – General Obligations,” OPCW, accessed October 6, 2024, https://www.opcw.org/chemical-weapons-convention/articles/article-i.

[7] ibid

[8] ibid

[9] ibid

[10] Dönmez, Beyza Binnur. “UN Experts Condemn Israeli Violations of International Law in Lebanon.” Anadolu Ajansı, 2024. https://www.aa.com.tr/en/middle-east/un-experts-condemn-israeli-violations-of-international-law-in-lebanon/3351504.

[11] Jakes, Lara. “What International Law Says about Israel’s Invasion of Lebanon.” The New York Times, October 12, 2024. https://www.nytimes.com/2024/10/12/world/middleeast/israel-lebanon-invasion-international-law.html.

[12] Ministerie van Algemene Zaken. “The International Criminal Court (ICC).” International peace and security | Government.nl, September 30, 2014. https://www.government.nl/topics/international-peace-and-security/international-legal-order/the-international-criminal-court-icc