Use of Force in Enforcement of Humanitarian Protection

International Relations – Use of Force in Enforcement of Humanitarian Protection
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November 1, 2021
Understanding the various rules, laws, and enforcement mechanisms for humanitarian protection is essential for everyone. It allows them to better understand their rights, as recognized by the State and the whole international community. However, although treaties regarding international humanitarian considerations are regarded with the highest consideration in the international community, it is clear that many violations are still present and are being committed in various parts of the world. Thus, this raises the question, is the use of force an appliable remedy for violation of international humanitarian law? To answer this, I would initially provide the basic rules regarding humanitarian law, including the available remedies for individuals. After that, an analysis of whether these enforcement mechanisms are allowed will be discussed. Nonetheless, I believe that while enforcement mechanisms should be used, such use of force must still be reasonably necessary and the least intrusive method.
Principles of International Humanitarian Law
The principles of International Humanitarian Law are embraced and embodied in various treaties, including the Rome Statute. It is applicable in times of "armed conflict" (International Armed Conflict or IAC), or when there exists an actual taking up of arms, and when the combatants are either a State against a State or against a belligerent group CITATION ICR08 \l 1033 (ICRC.Org, 2008). Accordingly, even though the principles of humanitarian law are also applicable in some instances involving Non-international Armed Conflicts (NIAC), such applicability is limited to the protection of civilians and other protected individuals under the Geneva Conventions.
As of today, there are around 123 countries around the world that are signatories to the Rome Statute. Most of these countries have agreed and ratified their act of entering into the convention, thereby making them responsible for complying with this treaty, pursuant to the doctrine of pacta sunt servanda under Article 26 of the Vienna Conventions on the Law of Treaties CITATION ILI08 \l 1033 (ILIJA, 2008). However, the Rome Statute itself provides that the International Criminal Court (ICC) jurisdiction, which has the jurisdiction to try violations of international humanitarian laws (i.e., War crimes), such jurisdiction can only be obtained under the Principle of Complementarity. This principle provides that the ICC can only try the case if the domestic courts fail to provide an adequate judicial remedy for victims of war crimes CITATION Cornd \l 1033 (Cornell Law School, n.d.).
While the principle of complementarity provides for the need to seek recourse to domestic courts and a further recourse to the ICC in case of insufficient judicial remedies, there are several issues that could limit the enforceability of these powers.
On the one hand, the ICC's decision lacks the proper "teeth" to enforce these mechanisms. Under the Act of State Doctrine, "national courts must refrain from prosecuting the validity of official acts carried out by a foreign state within its own terri...