5.0. THE ROLE OF ICRC IN THE IMPLEMENTATION OF IHL
The International Community of Red Cross (ICRC) has a precise duty under the Geneva Convention to care for victims of armed conflict and internal violence. The ICRC explores their operations in which it is guided by its fundamental principles. They have, through their fundamental principles, initiated some humanitarian agencies to join hands in helping victims of arm conflicts.
It promotes the safety of lives and prevention of suffering by:
1. adoption of new treaties to make IHL more effective and respond to new needs that arise;
2. ratification and usage, by States, of laws, tools and measures to give effect to these instruments at national level;
3. Awareness and education programmes to make sure armed actors know of, understand and act upon their responsibilities to protect civilians in times of war. It does not fail to place restriction on the use of weapons with indiscriminate effects and suffering on innocent civilians
They have the duty to work in line with the full application of international laws of armed conflicts. At both internal and international conflicts, they are to act fairly and neutrally to protect and serve aids to combatants and victims. Also, they have in their duty to inform conflicting sides about the laws in relation to armed conflicts.
They are the guardian of the International Humanitarian Laws. They make sure that parties to conflict comply with the laws. Upon the violation of the IHL, the ICRC has the responsibility to correct either of the parties. They operate as discreet diplomats to settle violent conducts between parties and it does not provide evidence before national or international court which is based on its compliance with the principle of confidentiality.
5.2 THE ROLE OF THE INTERNATIONAL CRIMINAL COURT (ICC)
In 1998, the Rome Status on the International Criminal court paved the way for the establishment of a permanent court capable of prosecution individuals allegedly responsible for serious breaches of IHL – and with jurisdiction over crimes regarding less of when or where they were committed.
In chapter four as it was said, the court does not have jurisdiction on terrorism but from the argument of scholars, the acts of terrorism can be prosecuted as crimes against humanity. The 9/11 attack against U.S. by Al-Qaida is a call for international community to join hands together and eliminate terrorism from its root at the international level. National laws may no more be effective to cub the menace of terrorism in the nearest future.
Bringing focus on the jurisdiction rationae material, in the meaning of Article 1 of the Rome Statute, the Court shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern. Article 6, 7 and 8 respectively listed the crimes to be genocide, crimes against humanity and war crimes.
However, jurisdiction rationae personae needs to be given a view. Article 25 and 25 of the Rome Statute clearly expresses it that ICC has jurisdiction over natural person who must be above the age of eighteen as at the time the crime was committed. Article 12 stipulates it that ICC’s jurisdiction extends to territory of the State’s party where crime is committed with no regards to the nationality of the accused. In subsection 2 of Article 12, the criminal will suffer some criminal responsibilities even whether the State he is a nationality is a party to the Rome Statute or not. On the ground of nationality principle, the ICC carry out jurisdiction over people, who are have nationality with State or States parties that have accepted the jurisdiction of ICC. Alleged individuals can go through trial regardless of whether a criminal act has been committed in the territory of a state party. On the other hand, non-state parties are not bound by the provisions of this Rome Statute; they are free to disregard the authorities of the ICC in a situation where a national of a State committed a criminal offence in their own territory.
ICC has jurisdiction for crimes only committed after the Rome Statute came into force. This is known as jurisdiction rationae temporis. Besides, States that became a party afterwards, all crimes committed after the Statute came into force are covered. In any case, it would be sufficient that either the criminal act was committed or that the nationality of the author of the crime be party to the Statute for the competence of the ICC to be recognized.
From all the discussions seen so far, no one definition has been given for terrorism, there have been a big challenge for the international community to differentiate between terrorism, national liberation movement and some other movements that apply force to achieve their goals. However, at present, most States have resulted to being selective on which treaties they will be a signatory to and applied to their national laws. This calls for an agreement among States to agree on tackling terrorism at the international level and this is where ICC comes into the scene as the international judicial body to handle this issue of terrorism.
The ICC is right now the main proficient international body that could fill the present crevice in the law and serve as a perfect instrument in the fight against terrorism by maintaining justice. The essential connection between peace and prosecution by an unprejudiced court ought not to be thought little of. With adequate backing of the international community, the ICC could be an effective instrument, and it could be a particularly valid one by prudence of its openness and duty to the legal beliefs regarded by most national legal frameworks. It would be a genuine mishap if the Court were permitted to develop incompetently.
5.3 THE ROLE OF UNITED NATIONS SECURITY COUNCIL IN THE ENFORCEMENT OF IHL
The Security Council is conferred with the authority to make recommendations or decide upon measures with the purpose of giving effect to the judgments of the international court of justice (ICJ), including of course those that might establish violations of international humanitarian law. Also, certain treaties containing international humanitarian law provisions specifically provide a role for the Security Council in their implementation, i.e., the 1977 environmental modification convention, and the 1993 Chemical Weapons Convention.
The Security Council has adopted a variety of measures in relation to international humanitarian law. It has for instance determined that international humanitarian law applies to certain situations or that certain conduct amounts to a violation of international humanitarian law, it has invited to consider to convene a meeting of the high contracting parties to the Geneva Convention IV and it has condemned or deplored violations and those who perpetrated them. The council has also set up fact-finding bodies (albeit that these have sometimes been preliminary to the adoption of coercive measures). The security council has in various armed conflicts encouraged, urge, called on, demanded and requested belligerent states to comply with international humanitarian law (in general or with regard to specific instruments).247
In Resolution 1265 (1999) on the protection of civilians in armed conflict, for the first time the Council urged all states to respect international humanitarian law without reference to a specific conflict in the cases, the calls have been accompanied by the threat of the adoption of coercive measures in case of non-compliance: it has however been observed that these threats usually have a negligible effect on the conduct of those to whom they are addressed. The Council has also on various occasions called on member States to enhance their legal and institutional ability to counter terrorist activities, including taking steps to: Criminalize the financing of terrorism; freeze without delay any funds related to persons involved in acts of terrorism; deny all forms of financial support for terrorist groups; suppress the provision of safe haven, sustenance or support for terrorists; share information with other governments on any groups practicing or planning terrorist acts; cooperate with other governments in the investigation, detection, arrest, extradition and prosecution of those involved in such acts; and; criminalize active and passive assistance for terrorism in domestic law and bring violators to justice. In the Resolution 1624 (2005) which relates to motivation to commit acts of terrorism, implored UN Member States to disallow such act by law, counteract it and provide no place of refuge to anybody regarding whom there is reliable and important information giving genuine purposes behind considering that they have been liable of terrorism.
5.6 Prohibitions and Criminal Liabilities Armed Conflict Regarding Terrorism
Most terrorist-type conduct committed in any type of armed conflict is already criminalized as various war crimes. The reason is due to the fact that IHL forbids attacks directed against civilians which covers undiscriminating attacks; act of vengeance; the use of illegal weapons; attacks on cultural property, objects indispensible to civilian survival, or works containing dangerous forces; or through illegal detention, torture or inhuman treatment. Also, the set of criminal acts against humanity is applicable at the same time as in armed conflict just for the sake of protection of civilian populace against regular attacks.
Moreover, in the Article 33(1) of Geneva Convention IV, IHL prohibits the ‘collective penalties and likewise all measures of intimidation or of terrorism against protected persons in the hands of a Party’ (as in detention or occupied territory) to an international conflict. Article 51(2) of Protocol I of 1977 protects all civilians and it states that “acts or a threat of violence the primary purpose of which is to spread terror among the civilian population” is prohibited. Article 13(2) of Protocol II prohibits this same act in non-international conflict. Article 4(2)(d) of Protocol II additionally prohibits ‘acts of terrorism’ in non-international conflicts.
The International Criminal Tribunal for the former Yugoslavia found that a violation of Article 51(2) of Protocol I attracts individual criminal responsibility in the Galic case, in spite of the fact that the article not being listed as a ‘grave breach’ provision. The war crime which has to do with the spreading of terror directly against a civilian population was committed by a operation of sniping and shelling of civilians in the surrounded city of Sarajevo, by purposefully directing the practices of everyday life and in so doing aiming to put civilians in great terror. The crime needed to satisfy the possession of mainly spreading terror purposefully by the offender, but the actual act of causing terror is not necessary. The dolus specialis to spread terror is highly prohibited.
A critical look at the definition of terrorism by 2003 military instruction, it expresses it as violence ‘intended to intimidate or coerce a civilian population or to influence the policy of a government by intimidation and coercion’. In 2004, the offences of the two accused detainees of the Guantanamo Bay were wrapped in the above definition.
Also, in IHL offences, national criminal law could be very useful to some acts of terrorism in armed conflict. The criminal law of an occupied territory is highly applicable to civilian and participants of hostilities in the area of international conflict which is an issue with relations to needed amendment so as to make certain the security of the occupying power. In the context of non-international conflict, the national criminal law of a State is valid and useful to criminalize a non-State actor’s terrorism act. To zoom to limelight, IHL allows States to grant amnesties to terrorists when a conflict has got a reputable solution but not for war crimes.
Thus, the common Article 3 of the Geneva Convention, in non-international conflicts, makes provision for a criminal trial which is fair to be conducted by a regular constituted court which has the judicial stand being recognizable.
SUMMARY
This study sums a critical reflection and appraisal of the role of International Humanitarian Law in the area of terrorism under armed conflicts and to what extent, international humanitarian law as it exists today continues to provide an appropriate response to the humanitarian problems arising from armed conflicts in relations to terrorism by setting up rules to conduct this type of conflict in order to limit its effects among people as well as also formulating measures or mechanisms for its implementation in order of ensure compliance with the rules of IHL by prosecuting and administering punishment against offenders of terrorism.
With respect of most of the issues examined, the study showed that international humanitarian law, in its current state, provides a suitable legal framework for regulating the conducts of parties to armed conflicts. The legal framework for regulating the conducts of armed conflicts as discussed in this study is the Geneva Conventions, Hague Rules and Customary laws. However, the study also showed the role of IHL in checking armed conflicts by building on the existing legal frame work and examining different areas the protection of children, women, prisoners of wars, journalists, medical personnel, wounded and the shipwrecked among others as discussed in this work.
CONCLUSIONS AND RECOMMENDATIONS
This study showed that International Humanitarian Law is fully capable of effectively tacking the problems of terrorism. Under the rules of International armed conflict and the non-international armed conflict, there are some acts of terrorisms that they regulate. In the opinion of the researcher, there seems to be no need for any exceptional status to label terrorist in the context of IHL in which may ridicule the protection existing humanitarianly. Terrorist may be targeted for engaging in unswerving acts of violence, detained and prosecuted for alleged war crimes.
Conversely, there are some laws which are not prohibited by International Humanitarian Law but are criminalized by some other laws which include in proportion, attacks on military objectives by non-State forces or prohibited terrorists sects, for example LTTE in Sri Lanka, that are parties to such conflict.
One contrary consequence may be to undermine the adequacy of IHL and its humanitarian commitments. On the off chance that non-state groups get marked and delegitimized internationally as terrorist criminals, any motivation for them to conform to IHL will be forfeited. Staying undefeated will bring along more plain criminal punishment instead of security detention, amnesties and demobilization.
Where a non-State group is considered a party to a conflict with no criminal branding, they must comply with the humanitarian rules. In that wise, there is a great deal of work to do to incorporate terrorist groups to be in compliance with IHL. With their status as a non-signatory to the treaties of IHL, they can be motivated to agree with the customs of IHL such as the agreement stipulated in Article 3(2), unilateral declarations or deeds of commitment, codes of conduct, training, and the creation of disciplinary systems (including ‘courts’, like those of the LTTE).
Over the years, IHL has been experiencing development; it is strong, bendable and tolerating for more future challenges. Also, it is delicate and can lose its strength if States absolutely render it useless or incompetent. In this situation, States, innocent civilians will be the ones to suffer this while the terrorist will have more reasons to flourish.