July 1994.  The streets of Rwanda are littered with bodies; broken, mutilated, blistering in the unforgiving sun.  Children have been orphaned, families torn apart and many of those who were fortunate enough to survive have been physically and psychologically scarred by a campaign of insensate cruelty and brutality.

Fifteen years ago, in the one hundred days following April 6, the world witnessed the indiscriminate massacre of at least half a million people.  Innocent civilians.   Men, women, children.¹

International Humanitarian Law (IHL) seeks to limit the effects of armed conflict by restricting the means and methods of warfare and affording protection to those who are not or are no longer participating in hostilities.  This contemporary ‘law of armed conflict’ is principally contained within the Four Geneva Conventions of 1949, the fourth of which provides for ‘the protection of civilian persons in time of war’.²

Though, historically, IHL has governed conflicts of a purely international character, Article 3, common to all four Geneva Conventions, and Additional Protocol II extend the ambit of the law to encompass conflicts of a non-international character, such as the Rwandan massacre.  These provisions require that persons taking no active part in hostilities be treated humanely in all circumstances.  Violence to life and person, including murder, mutilation, cruel treatment and torture and outrages upon personal dignity, including rape, enforced prostitution and any form of indecent assault are expressly prohibited.³

The Geneva Conventions have been universally ratified and are legally binding upon all signatory states.  In addition, many of the rules contained within the Conventions and Additional Protocols, including the protections afforded civilians, are considered to form customary international law and are therefore binding on all parties to both international and non-international armed conflicts.⁴

For the hapless civilians caught in the crossfire, these laws, when observed, provide essential protections of life and liberty.  But of what value is a law without adequate enforcement?

As history demonstrates, both state and non-state actors have consistently failed to abide by their legal obligations, partaking in gross violations of IHL which have resulted in large scale loss of life and human suffering.

September 1998.  The International Criminal Tribunal for Rwanda issues the world’s first formal conviction for the crime of genocide.  Jean Paul Akayesu, a former Rwandan mayor, is sentenced to life imprisonment for his active involvement in the Rwandan genocide and for inciting and engaging in crimes against humanity, including murder and acts of sexual violence.⁵

The International Criminal Court and the International Criminal Tribunals for Rwanda and the former Yugoslavia were established in the 1990s to bring violators of IHL to justice.  Over the past fifteen years, these tribunals have clarified the principles underpinning IHL and have convicted countless perpetrators of war crimes, genocide and crimes against humanity.⁶   Convictions which, it is hoped, may act as a deterrent against future violations.

But these convictions won’t bring back the dead, nor heal the scarred.  For those who have suffered at the hands of despotic regimes and individuals, this retribution comes too late.

Devastating human tragedies, such as Rwanda and the former Yugoslavia, painfully illustrate the necessity of improving compliance with IHL.  The international community, through education, diplomatic channels and special agreements, must work together to promote awareness of and respect for these irreducible laws.⁷

Whilst it is imperative that IHL is applied equally and neutrally, where peaceful diplomatic efforts inevitably fail, does there come a time when, in the face of gross violations, the international community should take coercive action to enforce the law?

Common Article I of the Geneva Conventions provides that the High Contracting Parties ‘undertake to respect and to ensure respect’ for the Conventions in all circumstances.  Arguably, this not only requires states to observe the law and to enforce it within their own jurisdictions, but also to take positive action, either unilaterally or collectively, to ensure compliance amongst other states.  It remains unclear, however, how far the international community can or might go to in the name of ‘ensuring respect’ for IHL. 

Articles 2(4) and 2(7) of the UN Charter expressly proscribe unsanctioned forceful intervention within any state, a principle affirmed under customary international law.⁸   Recently, however, the International Commission into Intervention and State Sovereignty (ICISS) posited that sovereignty is not only a right, but a responsibility.  Where a state is unwilling or unable to prevent its population from suffering ‘large scale loss of life, actual or apprehended,’ the hitherto sacrosanct principles of sovereignty and non-intervention yield to an ‘international responsibility to protect’.⁹   According to this doctrine, where peaceful means are inadequate and non-forceful options have been exhausted, the international community must be prepared to take collective and decisive action, proportionate to the threat, to halt or avert human suffering.

Whilst the United Nations General Assembly adopted the ‘responsibility to protect’ in Resolution 60/1 in 2005, it remains a contentious principle of disputed legality.¹⁰  Yet as Secretary-General Kofi Annan questioned in his Millennium Report to the UN General Assembly, ‘If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?’¹¹

April 7 2009.  The world commemorates the 15th anniversary of the Rwandan genocide.  For the resilient survivors, the ‘bapfuye buhagazi’ or ‘walking dead’, those who were raped, abused, mutilated, those who watched the merciless murders of their loved ones, some scars will never heal.  Today is a day to remember and mourn the past.  It is also a day to look to a brighter future.  Survivor Jacqueline Murekatete pleads, ‘As survivors of genocide, we must not let the world forget what happened in Rwanda, and we must come together to help those civilian populations currently at risk so that our shared history does not continue to repeat itself.’ ¹²

The international community must continue to work together to foster respect for IHL.  Whilst the use of force must always be considered a last resort, the norm of non-intervention cannot be regarded as a protective shield behind which gross violations of humanitarian law can continue unchecked.¹³   It is our collective duty to ensure the protection of our common humanity.  As the words of Fyodor Dostoevsky, inscribed in the entrance hall of the International Red Cross and Red Crescent Museum in Geneva, suggest, ‘Everyone is responsible to everyone for everything.’

References:
[1] Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (2nd ed, 1999) 1.

[2] Red Cross, The Geneva Conventions: the core of international humanitarian law (2009) <http://www.icrc.org/web/eng/siteeng0.nsf/html/genevaconventions>

[3] Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, art 3; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, art 4.

[4] ICRC, Increasing Respect for International Humanitarian Law in Non-International Conflicts (2008) 7.

[5] The Prosecutor vs Jean-Paul Akayesu ICTR-96-4-T [1998]

[6] Leslie C Green, The Contemporary Law of Armed Conflict (3rd ed, 2008) 52.

[7] Dr Jakob Kellenberger, ‘Respect for International Humanitarian Law – a major challenge, a global responsibility’, speaking notes for presentation before European Parliament, Brussels, 16 September 2008.

[8] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, see [188]-[202] for a discussion of the prohibition of the use of force and the right of self-defence; and [202]-[209] for a discussion of the principle of non-intervention.

[9] International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001) xii.

[10] 2005 World Summit Outcome, GAOR Res 60/1, 60th session, UN Doc A/Res/60/1 (2005).  See also Nicholas J Wheeler  ‘A Victory for Common Humanity? The Responsibility to Protect after the 2005 World Summit’ (Paper presented at the Conference on the UN at Sixty: Celebration or Wake?, Toronto, 7 October 2005).

[11] Kofi Annan, ‘We the Peoples’, The Role of the United Nations in the 21st  Century (2000) 48.

[12] Rwandan Genocide Month, RELEASE: Rwandan Genocide 15th Anniversary is April 7 (2009) <http://www.genocidepreventionmonth.org/release-rwandan-genocide-15th-anniversary-is-april-7.html?catid=>.

[13] Boutros Boutros-Ghali, ‘Report of the Secretary General on the work of the Organisation’ (1991) in Yearbook of the United Nations 1991, 7.