Monitoring IHL Compliance during Non-International Armed Conflicts: The Need for a Complementary Approach – Part II

About the author(s):

Sofia Poulopoulou is a PhD researcher at the Grotius Centre for International Legal Studies at Leiden University under the supervision of Professor Nico Schrijver and Associate Professor, Dr. Robert Heinsch. Her doctoral research focuses on implementation mechanisms for International Humanitarian Law (IHL). Sofia is also affiliated with the IHL Clinic of the Kalshoven-Gieskes Forum at Leiden University, where she lectures on IHL and supervises the research project ‘IHL in Action: Respect for the Law on the Battlefield’, undertaken in cooperation with the ICRC. She has previously worked for the ICC and the Coalition for the International Criminal Court. She holds an LL.M. from Maastricht University and a Degree in Law from the Democritus University of Thrace.

The Monitoring System of the Office of the Special Representative of the SG for Children and Armed Conflict

Apart from the Convention on the Rights of the Child (CRC) and the Optional Protocol to the CRC, the thematic area of children in armed conflict is monitored by the Office of the Special Representative of the Secretary-General for Children and Armed Conflict (OSRSG/CAAC), through its Monitoring and Reporting Mechanism (MRM). The MRM serves as the basis for the collection of information on the situation of children affected by armed conflict and has the capacity to supervise compliance with IHL and human rights norms related to the protection of children by states and armed groups. This is a major advantage considering the state-centric nature of the existing treaty-based compliance mechanisms. Nevertheless, this advantage is compromised because for the MRM to engage in dialogue and develop an action plan with a non-state actor the consent (pg. 683) of the relevant state party is required. This is an element that can diminish the potential of this mechanism, as states are apprehensive of facilitating any type of engagement with non-state actors, fearing that they will gain legitimacy. As Marcos Kotlik discussed recently here on this blog, states’ reticence to the MRM’s engagement with non-states actors is evident throughout the practice of this mechanism.

Regarding the activation of the MRM, which is country specific (pg. 9) and comprises the most important actors in the area of child protection at the national and international level, it gets triggered once a party (state or armed group) is listed in the annexes of the UN Secretary-General’s reports for committing grave violations against children. There are six grave violations but only five of them trigger the activation of the MRM, namely the recruitment or use of children below the age of 18 as soldiers, the killing and maiming of children, sexual violence against children, attacks against schools or hospitals and the abduction of children (UNSC Res. 1379, para.16; UNSC Res.1882, para. 3; UNSC Res. 1998, para. 3; UNSC Res. 2225, para. 3). Once a party is listed in the UN Secretary-General’s reports for committing one or more of the five grave violations against children, delisting is only possible following the signature and effective implementation of an action plan between the UN and the party concerned. The monitoring system by the OSRSG/CAAC is further supplemented by the UN Security Council Working Group on Children and Armed Conflict (SCWG). In accordance with the UN Security Council Resolution 1612, the SCWG reviews the reports of the MRM and supervises the progress in the implementation of the action plans signed between the UN and the parties listed in the Secretary-General’s reports.

The monitoring system by the OSRSG/CAAC comprises response-oriented mechanisms, that are set-up to target and respond to violations of international norms committed against children. For example, the MRM is activated once violations against children have already taken place. It therefore aims to gather additional information on the violations committed, engage in dialogue and develop an action plan with the party/parties listed for committing grave violations against children. The SCWG then considers the reports prepared by the MRM and suggests possible courses of action to advance the protection of children during armed conflicts. Coercive measures in the form of sanctions are among the measures that the SCWG can recommend in situations of concern. While the adoption of sanctions was met with hesitation, as they have been applied only after a sanctions regime was in place for a situation already on the UN Security Council’s agenda, as in the case of the DRC (para. 9), the possibility to adopt coercive measures further confirms the characterization of the monitoring system as response-oriented. The nature of the monitoring process is justified by the mandates of the MRM and the SCWG, which consist in documenting information related to violations committed against children and recommending appropriate courses of action. Nevertheless, the monitoring system by the OSRSG/CAAC still aims to enhance the ownership of international norms by the parties concerned. For instance, disciplinary rules and high-level focal points in the military hierarchy charged with overseeing the implementation of the accepted commitments have to be incorporated in the action plans (see here, para. 179).

The Monitoring System by Geneva Call and the ICRC

The Deeds of Commitment developed by Geneva Call are another tool that aims to promote ownership of international standards among armed groups. Four thematic Deeds have been developed (see here, here, here and here). Specifically, a Deed of Commitment constitutes a unilateral act that provides armed groups with the opportunity to commit to specific IHL and human rights norms. For example, the first Deed of Commitment developed by Geneva Call invites armed groups to commit to a total ban on anti-personnel mines and cooperation for mine action. Once an armed groups signs a Deed of Commitment, a system of supervision of the commitments undertaken by the signatory kicks in. It is interesting to note that the monitoring system encompasses functions and mechanisms that resemble the state-centric models of supervision. Because of that, the signatory armed groups are given an active role in the monitoring process. To be more specific, armed groups are requested to submit implementation reports and have the opportunity to participate in meetings of signatories to Geneva Call’s Deed of Commitment. It should be noted that self-reporting is only one component of the monitoring process. It is further supplemented by external monitoring, including monitoring by Geneva Call or third-party monitoring. Moreover, if allegations of non-compliance with the Deed of Commitment arise, verification missions can take place to ascertain the facts and facilitate the return to an attitude of respect for international norms. For example, a fact-finding mission was deployed to the Philippines in 2009 in relation to alleged violations of the Deed of Commitment banning anti-personnel mines by one of its signatories. The monitoring approach followed by Geneva Call highlights that self-reporting can be a useful tool for supervising compliance with IHL and human rights norms provided that it is supplemented by other mechanisms and functions. In addition, Geneva Call’s inclusive approach to monitoring places the signatory armed group at the centre of the process and aims to enhance the ownership of the commitments undertaken through their integration in the group’s internal structure, for example, through the revision of internal rules and regulations (see here, at 9) and the development of internal monitoring mechanisms (see here, at 13).

Apart from Geneva Call and the OSRSG/CAAC, the International Committee of the Red Cross (ICRC), in accordance with its mandate and modalities of work, also tries to engage with all parties to a NIAC, offering its services to them in accordance with the right of humanitarian initiative under Common Article 3 to the GCs. Through its field delegations, the ICRC is able to collect information on the situation of victims affected by armed conflict and engage in bilateral and confidential dialogue with the parties concerned in order to enhance the protection and assistance of all people affected by armed conflicts.

Concluding Remarks

As identified by the ICRC in its 2015 IHL Challenges report, better respect for IHL is the main challenge the international community is facing nowadays. Having in place effective compliance mechanisms that can supervise the conduct of the parties to the conflict and in case of violations, facilitate the restoration of respect for IHL is therefore key. The treaty-based mechanisms under the Geneva Conventions and other specialised treaties within the IHL framework cannot undertake this task on their own, particularly during NIAC. With certain exceptions, the specialised IHL treaties such as the Ottawa Convention or the Convention on Certain Conventional Weapons, do not provide for a robust system of treaty monitoring and their mechanisms only address compliance by the states parties. In the case of the Geneva Conventions, the practice of the IHFFC is limited to exclusively rely on it to supervise compliance by parties to NIAC.

In a perfect world, we could just focus on states’ obligations under IHL and monitor their implementation through mechanisms that only address states. However, this is not a perfect world and armed groups are a reality that we have to acknowledge and take into account when addressing matters related to compliance with IHL. The lack of political will – at least in the context of the GCs – impedes the strengthening of the existing compliance system and the adoption of a new one, let alone the establishment of a mechanism that can monitor compliance by all parties to a NIAC, states and armed groups alike. In light of the above, a complementary approach to overseeing compliance with IHL norms during NIAC is the way forward.

The co-existence of formal and informal mechanisms with different mandates enables the monitoring of respect for IHL by all parties to a NIAC. In addition, their interaction ensures that recommendations issued in the framework of other mechanisms are taken into account and brought to the attention of the party concerned. For instance, the reports of the Secretary-General on children and armed conflict recommend the enactment of legislation implementing the CRC and the ratification of the Optional Protocol (see here, para. 103, 146), and vice versa, the CRC Committee also recommends the cooperation of the state party with the MRM (see here, para. 15; here, para. 46). The latter as well as Geneva Call also monitor armed groups’ compliance with international norms relevant to the protection of children in armed conflict. Because of that, Geneva Call developed a policy of ‘strategic complementarity’ (pg. 30) with the goal of avoiding overlaps with other actors involved in the same thematic area. The value of the non-treaty based mechanisms to monitor respect for IHL in NIAC should be not underestimated; on the contrary, this type of mechanisms should be expanded to cover additional thematic areas, complement the formal monitoring system and ensure that armed groups’ implementation of IHL during NIAC can be supervised. A positive development in this direction concerns the launch in 2018 of a new Deed of Commitment on the protection of healthcare in armed conflict by Geneva Call.

Based on the above analysis, all possible avenues including the existing formal compliance mechanisms within the IHL and international human rights law framework, non-traditional mechanisms as well as mandates and organisations with capacity to address both states and non-state actors should be put into use to monitor and ensure compliance with IHL. The road to effectively monitoring compliance with IHL during NIAC is that of complementarity.

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