Edited by Robert Kolb and Gloria Gaggioli
Chapter 29: Is there a need for new international humanitarian law implementation mechanisms?
The contributions contained in this chapter prompt some further remarks about the effectiveness of the traditional means of enforcement envisaged by international humanitarian law (IHL) and about the advisability of reinforcing them, eventually grafting on to them some human rights (HR) implementation approaches. We must look at the means of implementation of IHL with some innovative ideas in order to overcome a situation in which the contemporary realities of armed conflicts are frequently paved with regrettable humanitarian defeats. There can be no doubt about the need to do everything possible in order to reinforce those means of implementation which, if carefully used, could strengthen the weakest section of IHL: namely its observance. In fact, IHL instruments show special care in setting out many rules specifically devoted to the execution of substantive obligations, rules which give the responsibility of ensuring respect for IHL, both to the Parties in conflict and to third States. In reality, in so far as IHL rules are provided in the interest of protected persons as such, it follows that the obligations envisaged are not bilateral obligations linking the Parties in conflict inter se only. On the contrary, we frequently find erga omnes obligations. This rationale in guaranteeing IHL is set out clearly in Article 1 common to the Geneva Conventions and to Additional Protocol I: all States Parties ‘undertake to respect and to ensure respect’ for IHL Conventions ‘in all circumstances’.1 Therefore, while the Parties in conflict primarily bear the responsibility for respecting IHL, all States have some sort or juridical title in this regard.
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