The Legal Implications of Violating the Law of War

By Ogeno Jackson Ambrose, Esq.

Opinion

Image by: Gallo Images/Thinkstock

Image by: Gallo Images/Thinkstock

May 12, 2014(Nyamilepedia) — In the Pre-19th Century, the limitation on the conduct of armed conflicts varied immensely and dependant on time, place and the Countries or Parties involved but the 19th Century ushered a successful effort to create a set of internationally recognized laws governing the conduct and treatment of persons in warfare.

The major notable universal codification of the sets of rules which seek for humanitarian reason, to limit the effects of armed conflict is the Four Geneva Conventions (GCs) of 1949 and their Additional Protocols (APs) of 1977. The GCs and their APs form the cores of International Humanitarian Law (IHL) (also known as the Law of War or Law of armed conflict/Jus in Bello).

GC I is concerned with the relief of the condition of the wounded and sick in armed forces in the field, GC II deals with the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, GC III relates to the treatment of Prisoners of war, GC IV concerns with the protection of civilian persons in times of war, AP I and II relate to the protection of victims of International and non International armed conflicts respectively, while AP III relates to the adoption of additional distinctive emblems.

Nearly every State/Country in the world (including South Sudan) agreed to be bound by the GCs and their APs. South Sudan acceded to them and enacted a Legislation ‘’The Geneva Conventions Act, 2012’’ to give effect of the same in the Country in times of war. This signifies South Sudan’s vehement legal commitment to respect and observe the rules of IHL/Law of War in times of War. The Law applies once a conflict has begun equally to all sides of the conflict regardless of who started it contrary to the then valid Cicero’s assertion that inter arma enim silent leges (in times of war the law falls silent) in his published oration pro milone.

The application of the GCs and their APs is determined by the type of armed conflict which can either be International or non-international armed conflicts. International armed conflicts are conflicts between/among States/Countries, thus the applicable principles of IHL/Law of War are those contained in the Four GCs (GCs I-IV) of 1949 and AP I, whereas non-international armed conflicts are those restricted to the territory of a single State/Country, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. Therefore, internal war is regulated by Article 3 common to the Four GCs and by the set of rules in AP II. However, it is worth noting that the Four GCs can as well be applicable in internal war by Special Agreement between the warring parties as envisaged in Article 3 common to the GCs and arguably, the Cessation of Hostilities Agreement signed between the South Sudan Government and Rebels is the example of this.

From the above distinction of armed conflicts, it follows that the South Sudan’s five months-old war between the Government forces and Rebels within the Country is a non-international armed conflict ought to be regulated by Article 3 common to the Four GCs, AP II and the martens clause (the principles of humanity and the dictates of public conscience).

The basic fundamental rules of IHL/Law of War contained in Article 3 common to the Four GCs and AP II that should be respected and observed in times of internal war includes: a) Prohibition of direct attacks against the civilian population or individual civilians b)There must be distinction between civilians and combatants- indiscriminate attacks are forbidden c) Precautionary measures in attacks must be taken to avoid injury or loss or damage to the civilian population d) The wounded and sick must be collected and cared for by the party to the conflict which have them in its power e) captured adversaries/enemies and civilians must be protected against all acts of violence and reprisals f) The Parties to a conflict do not have unlimited choice of methods and means of warfare. Methods of warfare that can cause unnecessary suffering or superfluous injury are forbidden g) Medical and Religious personnel, medical units and transports must be protected h) Extra Judicial Killings is prohibited i) Attacks on dwelling, objects and other installations which are used by the civilian population are forbidden.

The Jurisprudence of the International Court of Justice (ICJ) in its advisory opinion on the legality of the threat or use of nuclear weapons and the Nicaragua’s case strengthen the above fundamental principles as jus cogens/Customary International Law binding on all States or Parties to an armed conflict.

The South Sudan’s five months-old conflict that began in December 2013 between the Government forces and Rebels, as revealed by a number of reports, has resulted into thousands of people dead, women raped, over a million displaced, numerous property destroyed, attacks at UN compounds, etc. The adverse effects of the conflict are attributable to failure to respect the basic fundamental principles of IHL/Law of War by the Warring parties. It is a war guided solely by the dominant notion of military necessity. The Concept of military necessity acknowledges that during military engagements, winning the war is a legitimate consideration. However, the concept does not give the armed forces the freedom to ignore humanitarian considerations altogether and do what they want. The concept must be interpreted in the context of specific prohibitions and in accordance with the fundamental principles of IHL/Law of War and the notion cannot be applied to supersedes specific protections or create exceptions to the rules of War where the GCs and their APs do not provide for any.

What then are the Legal Implications of Violating the Law of War? Our domestic Law, the Geneva Conventions Act, 2012 (Laws of South Sudan) provides that violation of the GCs and their APs amount to a grave breach for which perpetrators should be prosecuted and if found guilty can be penalized with a maximum sentence of life imprisonment by the High Court. But who should be held accountable for the grave beach (commonly know ‘War Crimes’) and how can justice be meted to those responsible?

Accountability is only possible when perpetrators of the War Crimes are identified through unbiased thorough investigations. The Writer acknowledges that a number of reports so far reveal that there is gross violation of Human Rights Law & Humanitarian Law by both sides to the South Sudan Conflict, but so far as these documents do not identify the individual perpetrators then they are still incomplete. It may not be easy to identify both the major and lesser war criminals but with the helpful International Criminal Law’s notions of Individual Criminal Responsibility and Command Responsibility, it possible to achieve this. Therefore Government and Rebels Leaders, commanders of the armed forces of both sides and the forces they command should be the target of investigations as an effort to identify perpetrators.

Justice can be meted by Prosecuting perpetrators of the grave breaches of IHL/Law of War. The Perpetrators can be prosecuted under our domestic Law (The Geneva Conventions Act,2012), which law as noted earlier gives jurisdiction to the High Court to try violators of the Four GCs and their APs for grave breach (War Crimes). War Crimes are not ordinary crimes; they are international crimes that shock the conscience of humanity. Practically, for national Courts to try the offenders there must be competent Investigators, Prosecutors and Judges with expertise in IHL/Law of war and International Criminal Law.

Individuals accused of violating IHL/Law of War may also be tried by the International Criminal Court (ICC). It is well within the knowledge of the world that South Sudan is not a member State of the Rome Statute establishing the ICC and the ICC complement existing national Judicial Systems and may exercise its jurisdiction when national Courts are unwilling or unable to investigate or prosecute the international crimes. This does not mean that perpetrators of war crimes in the South Sudan’s armed conflict cannot be tried by the ICC. South Sudan may voluntarily decide to accept the Court’s Jurisdiction or being a member of the United Nations, by way of referral, the United Nations Security Council can invoke the Jurisdiction of the Court.

Whichever avenue can accord justice to the victims of the South Sudan’s conflict, the Nuremberg Trials of 1945/1946 still do remind the world of the evil that prevails if basic fundamental respect for all human life is disregarded. Individuals are responsible for their actions and must be held accountable for actions that threaten or harm the lives of others.

To reassure its obligation under International Law, South Sudan should respect the principles of IHL/Law of War in times of war. It should adopt measures in order to assure compliance with the GCs and their APs. Some of the measures may include the teaching of the basic fundamental rules of IHL/Law of War to the armed and security forces of whatever rank, prevent violations or prosecute perpetrators of grave breach if they occur. Simplified manuals on IHL/Law of War should be developed as an effort to spread knowledge of the Law to the military personnel and the general public. Though ignorantia juris non excusat (ignorance of the law is no excuse), law which is not understood by or remain unknown to those who have to respect them will not have much effect.

The writer is an Advocate & Legal Consultant with City Advocates & Associates, Juba – South Sudan reachable at jaqcityadvocs@gmail.com.

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