34 Governance gaps of monitoring of State obligations and Enforcement

Prof. Vik Kanwar

Table of Contents

1. Learning Outcomes

2. Introduction

3. Governance Gaps: 3.1 Knowledge Gap

3.2 Normative Gap

3.3 Policy Gap

3.4 Institutional Gap

3.5 Compliance gap

4. Reparations for violation of International Humanitarian Law

4.1 Right to Individual reparations

4.2 War Victim: Status and limited rights

5. Summary

1. Learning Outcomes

• To give students an overall perspective on the different kinds of challenges that implementation of IHL faces, judicial or otherwise.
• The student will be able to demonstrate by the end of this module the student will have an understanding of problems of governance as well as lack enforcement agencies to implementation of IHL norms and laws

2. Introduction

One of the most difficult tasks an international institution faces is to ensure peace, preventing conflicts which could lead to war and help in restoring war-torn nations. Conflicts can lead to widespread destruction in all the aspects of society ranging from Human Rights to basic amenities like health and environment. Main factors for causing such uncertainty are terrorism; drug trafficking, slave girls, illegal arms trade, environmental exploitation and so on. The foremost task for any international institution is to ensure that the State is willing to work in compliance in order to mitigate these issues. The problem arises when there is a lack of political consensus, financial source and lack of enforcement mechanism and it is necessary for smooth functioning of the international institution to deal with such issues first.

To ensure that war crimes abomination aren’t repeated, the Geneva Convention presented a system of appointing Protecting Powers to safeguard the interests of the protected persons and make sure that they are treated in accordance with the rules set forth by Conventions. However, this system has been unable to be implemented to its full force. But, there are certain provisions which ensure that the person is held accountable for its actions. States have an obligation to its citizens to carry out the necessary research or investigation into the accused who is accused of carrying out serious crimes, or inhuman breaches which can vary from killing to biological treatments to serious bodily injury and make sure that such people are held liable for punishment.

Although, the States have included in their penal code certain provisions with respect to war crime atrocities, there is lack of enforcement of such provisions. The States lack a mechanism system which is necessary to prevent such catastrophe. Moreover, when cases pertaining to these matters arise, a major confusion with respect to who handles such cases also arises. At such a point issue of hegemony arises, where States are unwilling to take up their respective obligations and responsibilities. Due to this, the international institutions are unable to fulfil their respective promises.

3. Global Governance

The word governance has always been linked with the idea of institutions, political parties or all systems which represent control. Governance in this sense denotes formal political institutions that both aim to coordinate and control interdependent social relations and that also possess the capacity to enforce decisions.

Despite the fact that United Nations has failed at various instances it is still the most universally accepted and legitimate institution which has the greatest potential to achieve global governance. Global governance cannot be restricted to just who has policy over what region, but an understanding between actors taking part at local, national, regional, and global level is a requirement too.

At this point, five global governance have been put forward by the United Nations between the present global disputes and limited solutions present for these disputes. These gaps revolve around knowledge, norms, policy, institutions, and compliance.

3.1 Knowledge Gap

The first time of governance gap is the Knowledge Gap. Generally, it is observed that it is irrelevant whether there are institutions or no, there is consensus or no with regards to the nature, cause, gravity and magnitude of a problem. However, what is constant is the disagreement over the most useful solution which is presented for the problem. One example about this is that of global warming or about restriction of the use of nuclear weapons.

Even making an effort to fill the knowledge gap partially can help in dealing with other gaps that exist in the sphere of global governance. Till date, United Nations has been successful in filling to knowledge gaps. Many a times, there are certain ideologies which are followed by the State due to which empirical data may not be sufficient enough to change their minds. In such a case, the role of the State in the development process and at the same time controlling market forces is a major phenomenon.

3.2 Normative Gap

The Second gap is the Normative Gap. The word norm has various meanings with all pointing to the same conclusion. A norm may be defined as a behavioural pattern that is most widely accepted or seen. In other words, it is a behavioural pattern that is followed according to a society’s belief system. Norms play a major role in governance gaps mainly because it is human nature is such that one cares about what the other thinks of them. United Nations provides the State with the platform to codify the norms in the form of resolutions and declarations. However, one may witness the powerful States may dissent to the resolution which leads to no common conclusion or such a solution which is not beneficial to anyone concerned.

3.3 Policy Gap

The third governance gap which has been suggested is the Policy Gaps. According to Oxford Dictionary the word ‘policy’ refers to “a course or principle of action adopted or proposed by an organization or individual.” Basically, policy is a set of mixed governing rules and goals along with possible solutions to put in place those rules and achieve the goals. At this point, United Nations acts like a forum where every State send a representative to help in developing certain policy decisions while keeping in mind their State policies, instruction and all the issues with respect to policy which their State’s government seem to be facing. However, while the source and scale of most of today’s pressing challenges are global, and any effective solution to them must also be global, the policy authority for tackling those remains vested in states. The implementation of most “UN policy” (as determined by the First UN) does not rest primarily with the United Nations Secretariat itself (the Second UN) but is kicked back upwards to member states.

3.4 Institutional Gap

The fourth kind of governance gap refers to the “Institutional Gap”. Institutions are generally classified as formal organisations but they do have informal establishment too. All the policy decisions require an institution for smooth free process of passing the policy otherwise it can create havoc. There are international institutions that deal reasonably well with a problem area, and those that are most effective often deal with specific issues and have well-embedded norms and consensus among member states. Examples of such institutions are UNICEF for child welfare, WHO and so on go on to show that these institutions do make a difference. Institutional gap is independent of other gap, which is even if other gaps aren’t in existence, institutional gap will often exist. Reasons for this could be that not many states are party to an institution. Thus, in conclusion it can be said that the problem for institutional governance arises due to lack of resources to cover the entire problem.

3.5 Compliance gap

The final governance gap refers to most common problem faced by an international institution, compliance gap. Compliance facts has three major elements which need to be fulfilled – implementation, constant supervision and enforcement.

Various instances many States although agree to a particular policy, they fail to implement it in their legal system. Therefore, even if a treaty is in existence pertaining to common problem, it will have no effect if there is no political will to implement the treaty. At such times, the question which arises is who has the authority, responsibility, and capacity to monitor that commitments made and obligations accepted are being implemented and honoured?

Various instances United Nations itself has tried to come up with solutions to deal with such issues the most common one being “embarrassment” which happens when the United Nation Secretariats prepared a report about non-compliance of the particular State.

Unfortunately, in the context of human rights, there has hardly been an enforcement mechanism which has been put forward whether it be soft law or hard law. Although International Criminal Court was set up with such a view and some convictions have taken place when the cases have been of war crime atrocities, the result is still very limited in this area.

4. Reparations for violation of International Humanitarian Law

It is the obligation of the State to provide those who have faced International Humanitarian Law violations with remedies. However, this hasn’t been such an easy task as the question keeps on arising as to who comes under the right and whether such rights can be granted to individuals? In spite of the gap in the International Law Commission’s Articles on State Responsibility, which were finally adopted in 2001 but fail to mention rights of individuals in the regime of secondary rights, it is generally known that human rights treaties provide a remedy, both substantive and procedural, for individuals suffering injury from unlawful conduct by State authorities.

Thus, despite the fact that various laws have been put in steps to protect the interests of the individuals, the reality is that the individuals are still being taken for a ride by the government especially in the instances of armed conflicts. As mentioned above, various steps have been taken by setting up Ad Hoc tribunals and International Criminal Court but it isn’t enough.

The word reparation has been defined by the International Centre for Trans Justice as “Reparations seek to recognize and address the harms suffered by victims of systematic human rights violations.” One of the most basic principles of public international law makes it clear that any wrongful act gives rise to an obligation to make reparation be it any violation of any obligation under the international law. The main purpose of reparation is to go to do situation which was in place before any illegal activity took place. There are various forms of reparation which involves restitution, compensation or satisfaction. There may obviously be circumstances in which restitution is materially impossible, for example, if the property in question has been destroyed.

It is necessary to keep in mind that this same principle is applicable in case of any violation of international humanitarian law. Although Article 91 of Additional Protocol I makes it clear that compensation is the main criteria for any violation of international humanitarian law, however, an obligation to make reparation arises automatically as a consequence of the unlawful act, without the need for the obligation to be spelled out in conventions.

4.1 Right to Individual reparations

The above principle talks about one State making reparation to the other however, the question which arises here is that whether the State is only entitled to reparations? If yes, then what about the individual victims? Initially, the peace treaties used to take the stand that the compensation which the State will receive will be sufficient enough to cover the losses of the State and at the same time be sufficient for the individual victims of the State. International humanitarian law instruments are silent as to who are the beneficiaries of reparation for violations of international humanitarian law; unfortunately, they only address the responsibility to compensate.

Despite the fact that due to recent strikes, individual have become aware of the fact that individuals do have a right to reparation for violations of international law of which they are victims. Unfortunately what hasn’t been put forward is a proper system to facilitate this, and this could be one of the examples of institutional gaps which are suffered in today’s age. The main reason for such confusion is due to the fact that Individuals are as treated beneficiaries and must claim their rights via their State of nationality.

Up till now, individuals didn’t have the right to bring claims against States with respect to violation of International Humanitarian Law. However, special tribunals have been set up with the help of treaty in order to give individuals and corporations particular rights to claim damages against the government.

4.2 War Victim: Status and rights

Due to setting up of these tribunals, the notion of the word ‘victim’ was raised. Traditionally victim is a person whose rights have been violated. However, under the concept of International Humanitarian Law, victims are defined as those who suffer because they are affected by an armed conflict; they are termed “war victims”.

The main right of the war victims is the Right to protection. The main purpose of International Humanitarian Law is to protect the war victims. “In a judgment of 29 November 2002, the Supreme Court decided that rules of IHL do not protect persons against stresses and tensions that are consequences of air strikes as such and do not protect persons with regard to whom the rules and norms have not been violated in concreto. The right to invoke the rules of IHL is therefore confined to those who personally were the victims of violations of IHL”.

Since, there is a classification with respect to a victim, the remedy and reparation lies on which right has been violated under International Humanitarian Law. In such cases, the primary issue is to determine which right has been violated in order to determine the extent of reparation. But, the problem arises when the compensation has been given to the State to transfer to the victims. No statute imposes any duty on the States to give effect to the provision of the IHL. Thus, victims of violations of International Humanitarian Law hardly have any mechanism to exercise their right under national law.

Unfortunately, the same is the case at international level as well. There is no binding principle which allows the victim to be able to contend those rights. In practice, all existing procedures under IHL are subject to the agreement of the parties to the conflict concerned, and none provide individual victims with a general right to a remedy for violations of the law.

5. Summary

One might say that there are very few avenues available for a war victim to get compensation for the harm caused to him/her. There are few scenarios where victims are given the right of their own to a remedy for violations of international humanitarian law. After the Second World War, in the Shimoda Case, the plaintiff happened to be one of the survivors of the atomic bombs in the Hiroshima and Nagasaki. The plaintiff claimed that since Japan had signed the 1951 Peace Treaty with the US, Japanese government was entitled to pay the compensation as they had wrongfully waived it away. Now, although Atomic Bombing constitutes as a violation of IHL, the Court took the argument presented by Japanese government which was that individuals had no right to remedy under international law as per Article 3 of Hague Convention IV and ruled in the favour of Japanese government.

This goes on to show that the number of cases where compensation isn’t awarded is more in number than those in which compensation is awarded.

Reference

• Hughes, Steve, and Rorden Wilkinson. Global Governance: Critical Perspectives. Routeledge, 2003.
• Sinclair, Timothy J. Global Governance : Critical Concepts in Political Science. London [u.a.: Routledge, 2004.
• Cabrera, Luis G. Global Governance, Global Government Institutional Visions for an Evolving World System. Albany: State University of New York Press, 2011.
• “Global Governancehttp://www.unhistory.org/briefing/15GlobalGov.pdf.
• “International Center for Transitional Justice.” Reparations. Last accessed. https://www.ictj.org/our-work/transitional-justice-issues/reparations
• GILLARD, EMANUELA.  “Reparation  for  Violations  of  International  Humanitarian  Law.” International Review of the Red Cross 85 (2003): 530-31. http://www.corteidh.or.cr/tablas/r27219.pdf.