An examination of the overall objective of International Human Rights Law and International Humanitarian Law will reveal that the underlying goal of both laws is to protect the lives and dignity of the human personality.
This fact is readily discernable from the provisions of both laws regarding the prohibition of torture, cruel or inhuman treatment or punishment, prohibition of slavery or servitude and the prohibition of retroactive criminal laws.
International Humanitarian Law, however as it stands today, and unlike International Human rights has no judicial or quasi judicial mechanism to consider complaints from individuals who are victims of international humanitarian violations. This phenomenon, is in my view, paradoxical since the basic principles of justice is to ensure that there is unhindered accessibility to everyone, which is what the concept of individual complaints procedure seeks to achieve.
International Humanitarian Law as set out in the Four Geneva Conventions and Two Additional Protocols does not expressly envisage causes of action for victims of violations of international humanitarian law in any national or international law, as one would find for example in Article 13 of the European Convention on Human Rights, which stipulates that individuals whose rights as set forth in that Convention are violated shall have an effective remedy before a national authority.
Although the imposition of individual criminal responsibility, with its establishment of universal jurisdiction and the International Criminal Court can be described as positive steps in the concept of ensuring that justice is done, it is my candid opinion that the very end of justice – individual accessibility has not been served.
The International Criminal Court, the International Red Cross – the guardian of International Humanitarian Law, and the International Fact Finding Committee in Protocol One have all been criticised as lacking in means, mandate, scope and purpose to adequately cater for the interests of individuals whose rights have been violated under international humanitarian law.
As a result of these gaps, there have been calls and debate for an individual complaints procedure as in international human rights – specifically, the core human rights treaties - International Covenant on Civil and Political Rights, Torture and Cruel inhuman or Degrading Treatment or Punishment, International Convention on the Elimination of all Forms of Racial Discrimination and the Convention on the Elimination of All forms of Discrimination against Women.
It is believed that the individual complaints procedure as practised under these conventions are accessible and very uncomplicated and will better serve the ends of justice.
This paper seeks to examine the desirability of establishing an individual complaints procedure in International Humanitarian Law. It looks at how this procedure is practised in the four core humanitarian law treaties, x - raying the so called gaps and inadequacies that are inherent in the statutes of International Criminal Court, the mandate of International Red Cross and in the provision of the International Fact Finding Commission as provided for in Protocol One.
It ends by pointing out the characteristics that make the individual complaints procedure in international human rights, a novelty, for which International Humanitarian Law could draw from.
THE INTERNATIONAL CRIMINAL COURT
As stated by the United Nations Secretary General, one of the objectives of establishing the international criminal court is to prosecute and punish persons responsible for war crimes, crimes against humanity and genocide.
There is no doubt that this goal is laudable because it establishes the principle of individual criminal accountability for all who commit such acts. This principle is now the cornerstone of international criminal law. There are however gaps when viewed within the context of individuals, who are victims of violations of international humanitarian law and their access to justice.
Firstly, an examination of Article 5 of the court’s statute shows that the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole, and thus only crimes of genocide, crimes against humanity, war crimes and the crime of aggression are relevant.
A look at Article 7 also shows that, "crime against humanity" means any act(s) when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
Article 8 (1) also provides that the court shall have jurisdiction in respect of war crimes “in particular when committed as a part of a plan or policy or as part of a large scale commission of such crimes”.
What is characteristic behind all these provisions is that they only concern very serious crimes and they must have been committed as part of a widespread or systematic policy before it becomes a crime. This leaves out a lot of violations which are committed individually and not part of a widespread or systematic policy and is not serious, but with is against the principle of justice, and undoubtedly a violation of International Humanitarian Law.
One could also discern more of this gap in Prosecutor vs. Tadic case. It was stated therein that the crime against humanity refers:
“to inhuman acts of a serious nature …committed as part of a widespread or systematic attack against a civilian population”.
In the report of the establishment of a Permanent International Criminal Court, cited in Tadic, it was stated that ‘ crimes against humanity “ usually involves a widespread or systematic attack against the civilian population rather than isolated offences… and particular forms of unlawful acts ( murder, enslavement, torture, rape and imprisonment etc) are less crucial to the definition.
It goes on that “… the thrust behind what is large scale and or widespread is to exclude random acts that was not committed as part of a broader plan or policy ”. While, a single act might constitute a crime against humanity, it is not “a single act” in a literal sense, but there must be a link with the widespread or systematic attack on a civilian population”.
From the foregoing, one can see that individual violations of international humanitarian law are not provided for in the International Criminal Court statute, and individuals are therefore denied their right of justice.
THE INTERNATIONAL RED CROSS
The International Red Cross is the guardian of International Humanitarian Law and by virtue of the mandate given to it by the four Geneva Conventions and Additional Protocols is responsible for the international implementation of International Humanitarian Law. It is to assist victims of war and encourage States to implement their International Humanitarian Law obligations.
The International Red Cross right of initiative particularly allows it to offer its services or to undertake any action which it deems necessary to ensure the faithful implementation and application of International Humanitarian Law.
It is therefore a kind of supervisory body because it has for instance access to Prisoners of War in international armed conflicts. It may also visit places of detention in non – international armed conflict and other situations of violence.
As one could see from this mandate, the International Red Cross is not so structured to deal with the individual complaints emanating from violations of international humanitarian law.
It does not have the means, the purpose and the mandate to make enforceable judicial determination of such individual claims. The only method that bears some similarity to any form of complaints at all is the confidential discussions it holds with governments. Its structure could at best be described as broad, general, exclusively humanitarian and inadequate to deal with individual violations of international humanitarian law.
INTERNATIONAL FACT FINDING COMMISSION
The International Fact Finding Commission as provided for in Article 90 (1) of Protocol One is relevant in this discussion because some had argued whether by the mandate given to it and the composition of the Commission, it is capable of exercising, particularly if improved, the functions and role of an individual complaints commission or could complement the role of an individual complaints commission, if established. It is important to state that the Commission has not been used.
Paragraph 2 ( c) of Article 90 states their competency to inquire into any facts alleged to be a grave breach of International Humanitarian Law as defined by the Convention and Protocol.
Paragraph 2 (c) 11 also states that it shall through the use its good offices restore an attitude of respect for the Conventions and Protocols and serious violations thereof.
Paragraph 2 (d) is to the effect that the Commission shall institute an inquiry at the request of a party to the conflict only with the consent of the other party concerned.
As could be seen from the above, the international fact finding commission cannot perform any of the role and functions of an individual complaints procedure because it also falls into the same trap or gap as the International Criminal Court. Only serious or grave violations seem to be the concern of the International Commission and private or individual violations are left out.
It is also important to point out that an inquiry can only be made to the Commission only at the request of a party to the conflict. This is leaves out individuals or persons who are not parties to the conflict, but whose humanitarian rights are violated.
INDIVIDUAL COMPLAINTS, HUMAN RIGHTS PRACTICE AND INTERNATIONAL HUMANITARIAN LAW
The success of the individual complaints procedure as practised in the context of the core international human rights treaties has raised the question of whether supervision of compliance with international humanitarian law can be improved upon in the same manner. The effect of armed conflict on civilian suffering and the similarities between International Human Rights and International Humanitarian Law have also encouraged some human rights bodies to apply international humanitarian law, but the problem with this approach is that international human right treaties are not adequately equipped to deal with international humanitarian issues.
A good example is the Inter American Commission on Human Rights, which found out that although the American Convention on Human Rights is applicable in times of armed conflict, it is not designed to regulate situations of war.
Other problems that occur with the interpretation of international humanitarian law by human rights bodies are those of mandate regarding these bodies and the unilateral reference only to acts of states in such applications.
The first of these problems find some support in the decision of the Las Palmeras case, where the court held that it was not competent to apply the Geneva Conventions, whenever necessary to interpret a rule of the American Convention.
The second problem is to the fact that they do not cover violations of international humanitarian law by other parties to the conflict such as armed opposition groups, nor does it deal with individuals whose humanitarian rights are violated.
By the very nature of international humanitarian law, guarantees are made to the individuals, which states may derogate from under international human rights conventions. International Humanitarian Law also bestows on the individual rights which go beyond the non – derogable human rights.
Applying international humanitarian law under international human rights treaties will not therefore adequately serve the objective behind the Conventions and Protocols. It would rather undermine it, as it may lose its essence, hence the call for an individual complaints procedure that takes this peculiar situation into account at all times and which will take into consideration the gaps in the measures aimed at improving compliance with International Humanitarian Law.
The Novelty in the Individual Complaints Procedure of the International Human Right Treaties
An evident sign in human rights law and its progress is the fact that individuals who claim their rights and freedoms had been violated may ask that the State account for its actions. This is however possible only under 4 or the 6 so called “core “ human right treaties. They are the International Civil and Political Rights, Convention Against Torture and Other Cruel and inhuman Treatment or Punishment, International Convention on the Elimination of all forms of Racial Discrimination and the Convention on the Elimination of All forms of Discrimination Against Women.
The novelty in these treaties is the fact that they establish a quasi – judicial committee to examine complaints from individuals. The complaints mechanisms are designed to be uncomplicated and accessible to the individual. One does not for instance need to be a lawyer in order to lodge a complaint.
A further novelty to the complaint mechanism under each individual treaty is that they are complemented by the complaints procedures before the Commission of Human Rights and Commission on the Status of Women, although these two procedures have a different focus from those under the international treaties.
This is because complaints to the Commission focus on a more systematic pattern and trend of human rights violations and may be brought against any country in the world. Like the complaints procedures under the international treaties, the complaints procedure also seeks to avoid legal and technical terms and procedures and are accessible to everyone.
Under the complaints mechanism in the four international human rights treaties, there is a body of independent experts, elected by State parties of each of the relevant treaty with a quasi – judicial adjudication status.
Their task is to monitor implementation in States that are parties of the rights set forth in the treaties and decide on the complaints brought against them. Although, there are procedural variations between the 4 mechanisms in the 4 international human rights treaties, their design and operations are very much similar.
The characteristic of their accessibility is particularly noteworthy for international humanitarian law in the sense that anyone can bring a complaint. It is also possible for claims to be brought on behalf of another person if there is a written consent, except in the case of children.
It is against only a State however that complaints might be brought. This will not serve the peculiarities of international humanitarian law as most participants in today’s armed conflicts involve non – state actors, such as armed opposition groups
Overview of Individual Complaints Procedure for International Humanitarian Law
As I had discussed, what exist today in International Humanitarian Law is not enough to meet the demands of justice and protection which the Geneva Conventions and its Additional Protocol seeks to confer on individuals.
The bodies such as International Criminal Court, the International Red Cross and the International Fact Finding though are positive developments, they are not adequate and cannot serve the interests of individuals as conferred by the Conventions and Additional Protocols.
The practice of human rights bodies, although also positive, stands the danger of undermining international humanitarian law. This makes it apparent therefore for an individual complaints procedure fashioned after the ones established under the four core international treaties, with the objective of correcting the deficiencies in the already established bodies as discussed, and adapting it to meet the special nature of international humanitarian law.
After all, the purpose of international humanitarian law is to “go beyond the interstate levels and …to reach for the level of the real (or ultimate) beneficiaries of humanitarian protection, i.e. individuals and groups of individuals.
In this regard, the individual complaints procedure should have an all embracing approach. It should cover all types of violation, simple, grave and serious.
It should also cover all parties, state and non – state actors and have as criteria, all acts that constitute a violation against international humanitarian law. This would have all the overall advantage of providing access to all individuals who feel their international humanitarian rights have been violated. This will serve the end of justice, the very purpose behind the Geneva Conventions and Additional Protocols.
One possible problem is that given the peculiar nature of international conflicts and international humanitarian law, it may be difficult to establish facts and claims. My suggestion to help rectify this possible obstacle is to take a look at the International Fact Finding Committee as provided for in Article 81 of Protocol One.
Within the purview of the general discussion in this paper, this provision could be amended in order to serve the objective of an individual complaints procedure under international humanitarian law.
Since this commission in its composition is independent and involves members of high moral integrity and acknowledged impartiality, its work could go a long way in complementing the work of the individual complaints commission.
The consequence is that international humanitarian law would have gone a step further in its development as an important part of international law, distinct, and yet similar to international human rights. It would also avoid losing its unique character, but would rather serve as an authoritative guide for instance when applying international human rights in armed conflict.
Caso Las Palmeras, Exepciones Preliminares, Sentencia de 04 de Febrero de 2000, Serie C, No 66
G. Abi – Saab, “The Specificities of Humanitarian Law”, in C. Swinarski, ed. Studies and Essays on International Humanitarian Law and Red Cross in Honour of Jean Pictet ( Geneva/The Hague, ICRC 1984) pp. 265,269;
Jane K. Kleffner and Liesbeth Zegveld, “ Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law”. in Yearbook of International Humanitarian Law. Volume 3 – 2000 pp. 384 – 401
Tadic Case No IT – 94 – 1 – T, 7 May 1997
T. Meron, “ The Humanization of Humanitarian Law”, 94 AJIl ( 2000) pp. 239, 246 – 247, 251 - 253
Leisbeth Zegveld, “Remedies for Victims of violations of International Humanitarian Law”. RICR, September, 2003 Vol. 85 No 851 497