Armed Conflicts And Prosecution Of The Perpetrators Of War Crimes Under The International Humanitarian Law (Syria And Yemen).

Armed Conflicts And Prosecution Of The Perpetrators Of War Crimes   Under The International Humanitarian Law (Syria And Yemen).    

                                  International Law Studies

 

                                 Hesham Haddad

                                                  2020

Armed Conflicts And Prosecution of The Perpetrators Of War Crimes Under The International Humanitarian Law (Syria And Yemen).                                                         

                                                  Contents

     I.      Abstract

   II.    Introduction

  III.    Overview of the international humanitarian law:

A.    Its definitions of armed conflicts and war crimes

B.     Its expansion in the field of armed conflict and war crimes law

        1. a. Historical development

             1. a. a the most important treaties and articles

        2. b. Current situation and its application                   

C.     It’s Effectiveness in armed conflicts and prosecution of war crimes perpetrators since WW2 till today (1945-2019).

  IV.     The role of IHL in establishing criminal responsibility in:

                      A.Yemeni and Syrian armed conflicts

                      B. prosecuting perpetrators of war crimes

 V.      According to IHL the perpetrators of war crimes in Yemeni and Syrian civil wars.

 VI.     Yemeni and Syrian wars and the efficacy of International Criminal Tribunals in:

                       A. prosecuting perpetrators war crimes.

                       B. How those war criminals will be prosecuted.

VII.     Assessing the effectiveness of international humanitarian law in the current issues.

        Abstract

This thesis is contained of a brief presentation of armed conflicts, war crimes, the nature of international humanitarian law and the historical development that accompanied its development in order to identify the evolution of the humanitarian concepts that accompanied the stages of this development. Thus, we will touch on the origin of the issue, which is to try the perpetrators of war crimes in armed wars through analysis and research steps.

First, we will overview of the international humanitarian law and Its expansion in the field of armed conflict, then we will look at the historical development of international law armed conflict, moreover the most important articles of the treaty on the laws of armed conflict and current situation of law and its application in the armed conflicts. 

That will lead us to evaluate its effectiveness (the international humanitarian) in the prosecution of war crimes perpetrators now and before by giving many examples and cases to discuss. Also, we will see how the evolution of the law of prosecution of perpetrators law since WW II till today (1945-2019).

 After that, we come to the problem of this thesis which is studying the role of IHL in establishing criminal responsibility in Yemeni and Syrian armed conflicts and prosecuting perpetrators of war crimes in both wars And according to IHL will find out who are the perpetrators of war crimes in Yemeni and Syrian wars and what is the responsibility of IHL, The international community and International Criminal Tribunals for example the role of the International Criminal Court. in this research, we Assess the efficacy of International Criminal Tribunals in Yemeni and Syrian wars by defining who are prosecuting perpetrators war crimes and how those war criminals will be prosecuted, the steps of prosecuting.

Finally, we will be Assessing the effectiveness of international humanitarian law in current issues, especially in prosecuting perpetrators war crimes.

Introduction

Throughout many ages, the world has not seen a period of lasting peace, as it has suffered many wars and its ravages. It was the best way to break the thorn of the adversary and seize and control its land and its goods.  It is a waste of rights and freedoms, perhaps due to the tremendous technical and technological development of the war machine reached by modern man.  As a result of this great suffering and suffering on human beings, which claimed the lives of millions of innocent people, whether civilians or warriors, there was a great need for humanitarian rules and principles to be observed during the wars.  

Humanity has witnessed the most brutal and ferocious crimes committed against humanity over the centuries, which resulted in the tragedies and disasters that the international community tried to recognize and prevent a recurrence, even late. Legislation developed by nations throughout history is as its purpose is to protect mankind by granting security and justice and the punishment of all who violate them so nations have succeeded in that but failed many times which led to the inability to stop these massacres and crimes and deter.

Hence the need for bodies and organizations in which States cooperate to work on the formulation of principles, even theoretical sometimes to stop the commission of the most serious crimes against humanity and to resort to neutral bodies where victims find their justice and the perpetrators of crimes punishable even after a while has begun to think seriously to find a criminal justice in order to prosecute the perpetrators of the most serious crimes  Danger to peace and humanity and its security in the neutrality and independence of insurance  War crimes are defined as grave breaches of the four Geneva Conventions of 1949, serious violations of laws and customs applicable in international armed conflicts under permanent international law, in the event of an international armed conflict not of an international character, and grave breaches of Common Article 3 to the Fourth Geneva Conventions and finally grave breaches.  These crimes are among the most heinous crimes committed during armed conflicts and in Rwanda In Yugoslavia, only proof of what an individual can be committed in order to achieve political and military reconciliation and purpose, which requires an end to these crimes and serious and deep interest in the trial of the perpetrators of war crimes according to the law.

Whereas war is an exceptional situation in which ordinary law cannot be applied, especially as each party to this armed conflict seeks to strike an enemy and its military objectives have not helped to reduce the repeated violations of international humanitarian law, but that exceptional circumstances do not necessarily mean that all acts and actions are investigated for military purposes but that there are laws and customs that each party to an armed conflict must observe.

In this regard, it must be mentioned the importance of judicial follow-up which is the responsibility of the State which has to adapt its legislation to allow for the follow-up of the perpetrators of these violations, which necessitates the tightening of the penalties prescribed.

 Since the perpetrators of these crimes are high in the state, which made some countries hesitate in the text in their domestic legislation despite the existence of an international obligation to resurrect all necessary and necessary measures to follow up and prosecute the perpetrators of these violations, which led us to study this issue and various methods and mechanisms that can be used to achieve follow-up and apply the punishment to those.  In order to identify some of these facts, it has been selected a group of countries as models to study the possibility of such follow-up and trial, in order from the weak legislation to the strongest then assessing the International Criminal Court which has a big role sought to renew the international obligation on the subject.

The Yemeni and Syrian tragedy that the two peoples have been suffering for more than seven years has never been seen in history, either in terms of the huge number of victims, displaced and forcibly disappeared in prisons, in terms of the magnitude of the massive destruction, the widespread looting of people, stone, etc. But the international community has been unable to put an end to this tragedy, whose continuation has been a stain on humanity.

Despite numerous attempts to persuade the international community to prosecute and prosecute the perpetrators of war crimes in Syria and Yemen, whether by referring the crimes to the International Criminal Court or by establishing a special tribunal for these two countries, such as the Special Tribunal for the Former Yugoslavia. The international response to it, and the inability of the Security Council, and its inability to take any decision in this regard, due to the Russian veto always seems ready to disrupt and prevent any decision by the Security Council in this regard. This encouraged criminals to continue their criminalization against the Syrian and Yemeni peoples and gave a clear message that the possibility of impunity is still available to criminals to continue their crime, which contradicts the legitimacy of human rights and all international conventions calling for the prosecution and accountability of criminals.

All these lead us to realize the role importance of International humanitarian law and its application (IHL) which is a branch of positive, customary and treaty-based international law that aims to limit methods and means of warfare and protect victims of armed conflict.  However, if a State is unwilling or not in a position to prosecute, such crimes may be prosecuted through international criminal tribunals established by treaty or the binding resolution of the United Nations Security Council.

This brief overview of the existing legal and political situation reflects the state of the law at the dawn of the twenty-first century, and how this law is the result of a growing awareness of the international community in the face of the atrocities of war and the unspeakable suffering suffered by humanity throughout the ages, the awareness of the need to establish and consolidate the limits of violence and to punish those responsible, in order to deter those who think themselves to exceed these limits and act violently in the future. 

   Research problem

The problem of the study is the seriousness of the crimes committed against the Syrian and Yemeni people against human beings and infrastructure without the movement of the international community and its organizations to hold accountable the perpetrators of these international crimes, especially the crimes committed from 2011 till now.

The Syrian regime and the Saudi regime have used various kinds of crimes, using excessive armed force through its planes and heavy armor, and suffocating siege on cities, villages, and camps, and practicing policies of starvation, subjugation and collective punishment, targeting unarmed civilians, destroying private and public property, and failing to comply with international legitimacy resolutions. They also refused to implement the Fourth Geneva Convention[1] for the Protection of Civilians under Artillery Shelling and bear its legal and moral responsibilities towards the Yemeni and Syrian people.

In Syria, individuals from all parties to the conflict in Syria have committed gross violations of international human rights and humanitarian law on a very large scale. Based on its investigation, Human Rights Watch found that the government and pro-government forces committed crimes against humanity and war crimes[2].

Another problem which is inability  the Security Council to establish international tribunals to try and prosecute major war criminals in many parts of the world effectively, as it used to do in many areas e.g.former Yugoslavia criminal tribunal 1993[3], nowadays we see major Saudi and Syrian war criminals travel freely and possess diplomatic immunity between the countries of the world, including the Arab countries, as if Syria and Yemen and the war crimes that are shaking the conscience of mankind, are not part of the world and do not deserve the protection of the basic rights of its citizens. Given the particular national and international security and political and religious centrality of Syria and Yemen, which make them closely related to international peace and security, it is necessary to seek justice, to hold accountable and to prosecute the perpetrators of war crimes in both countries, as they are of great importance to both the international community and to measuring the effectiveness of international and humanitarian law.

In fact, we cannot deny there are many attempts are being taken in case Syria but for Yemen not, for six years, the UN fact-finding mission in Syria has been collecting information on crimes against humanity and possible war crimes during the conflict. Investigators prepared 13 reports, each containing shocking evidence of village destruction, crop burning, poisoning wells, torture, rape, starvation siege, the mass bombardment of civilians, as well as the unimaginable decade ago, the use of chemical weapons. The Commission said that there was no doubt that war crimes had been committed by all parties to the conflict. Each report called for those responsible to be held accountable since no one should be allowed to commit such horrific acts and impunity but the problem is the security council has Russia and china in it, they prevent any decision to be done about this issue which creates more crimes that are being done by the parties of the war.

Carla Del Ponte[4] who was a member of UN’s investigative commission for Syria and witnessed these crimes said:

 “This would be an unbelievable scandal,” describing the abuses in Syria as the worst I have ever seen. “But nothing happens, and we hear only talk.”[5]

In August 2017, Carla del Ponte quit the UN’s investigative commission for Syria, blaming the Security Council for its inaction.

“The Security Council is guilty of this situation [in Syria] because the Security Council did not make a decision to put in place a tribunal ad hoc or to refer to the permanent Criminal Court,” del Ponte told Upfront. “Trying to obtain justice for the victims … was not possible. Nobody’s listening to us, to the commission, and in Syria is still total impunity.”[6]

In the case of Yemen, no tangible steps, but International reports revealed that humanitarian and human rights organizations are preparing a file of Saudi crimes in Yemen for the purpose of submitting them to the International Criminal Court. The Rome Statute of the International Criminal Court affirms that the most serious crimes of concern to the entire international community must not go unpunished and that the perpetrators must be effectively prosecuted.[7]

A group of lawyers and experts in international law announced at a press conference in Paris to file a criminal complaint on behalf of the Arab Commission for Human Rights before the Office of the Prosecutor of the International Criminal Court about the United Arab Emirates war crimes by using mercenaries in Yemen.

joseph Braham, a lawyer, international war crimes expert,and one of experts who attended the press conference in Paris said:

“ he no longer has hidden any of the atrocities and crimes committed against Yemeni civilians for years, as well as the use of famine weapons that threaten millions of children by the Saudi-led Arab coalition”[8].

The international experts’ report on Yemen revealed serious violations committed by the coalition, as well as local Yemeni parties, according to the international report as “war crimes”, the perpetrators of which are held accountable for violations of international law and human rights violations.

The report came a year after the first report of experts, but the new report in which international experts named Saudi Arabia and the United Arab Emirates, as well as the government of President Abd Rabbu Mansour Hadi, and the Houthis, practicing violations “amount to war crimes” under international law, despite the experts confirm that they were unable to monitor all violations, due to obstacles placed by all parties to obstruct their work, especially Riyadh and Abu Dhabi.[9]

After seeing many examples of trying to bring the Yemeni and Syrian war criminals to justice we still notice there are obstacles prevent from achieving justice and the prosecution of war crimes there.

From this we raise the following problem:

.  To what extent can real or actual prosecution of crimes under international law be achieved under the present circumstances?

.   Do the existing mechanisms, mechanisms and legal methods enable a real and effective trial of the perpetrators of war crimes?     

.    Do “war criminals” get away with it?

 The importance of research

This study is considered as a real attempt to track the practices of the Saudi, the Syrian regime and look at their classifications as war crimes, especially the war crimes committed between 2011 and now in Syria and Yemen, as well as to shed light on the principles and rules of international criminal accountability.

 Also, it looks for the possibility of both personal criminal accountability for commission of these crimes, and the application of the rules of accountability to those practices committed in Syria and Yemen, which could be considered a violation of laws and customs War and its traditions established in international norms, as well as to demonstrate the means and legal mechanisms at the international and regional level for the prosecution of major war criminals as a practical translation of the application of the principle of personal criminal responsibility of perpetrators of war crimes.

The Purpose of research

The study seeks systematic research to follow the aggressive actions that are done by the Syrian and Saudi regime on the Yemeni and Syrian people, in order to know the real legal classification of these crimes and discuss the possibility to account for the Officials and protect victims’ rights.

 Another goal is studying the role of decision-makers and international institutions in the world to help bring war criminals before international courts to try them for their war crimes against the two peoples, especially that people believe that here Palaces and a deficit of clear internationally and regionally to deal with these obligations. It is also considered one of the objectives of the study to detect crimes and refute those allegations of the Saudi and Syrian regimes about their claims for irresponsibility to these crimes through the legal texts that came in the relevant international conventions as Fourth Geneva Convention, which Saudi and Syrian are considered as ratified parties.

The hypotheses of research

In light of the research problem the hypotheses can be drawn as follows:

By assuming that conflicts do not end, and international cannot bring the justice in nowadays world,  will the world be able to create new law to limit conflicts completely and work to limit them to a number of strict laws governing the parties to the conflict and prevent them from committing more crimes, and bring them to the justice especially as people know that the parties to the conflict in the world now, such as the parties of the Syrian and Yemeni war do not apply any of war law, by contrast, they abuse they international humanitarian law and do a lot of war crimes nevertheless whole international community with its tools of punishment did nothing tangible till now.

The second assumption if people believe in the effectiveness of the International Criminal Court as an international penal mechanism for the prosecution of war crimes, can this court do its job effectively and start to press the parties to implement the international law.

The third hypothesis is a failure of international justice in prosecuting the perpetrators of war crimes in Yemen and Syria and brings them to justice, and how that will affect future conflicts in terms of implementing war law and prosecuting the perpetrators of war crimes.

The last hypothesis is a public’s disappointment with international humanitarian law and international justice and how this will be countered by the possibility of the emergence of strict new laws in order to achieve justice and bring war criminals to international or national courts.

The limitations of the research

This research consists of three limitations

-First, the spatial limit: that the research here focused on the study of a particular area in the world which is Yemen and Syria and the war crimes that are being happened there.

-Second, the time limit: the time on which this research was based on the studying of events from the beginning of the Arab Spring 2011 to the present time 2019.

-Third, the objective limit: the study of the armed conflicts, war crimes and prosecute the perpetrators of war crimes under the international humanitarian law, finally we will be discussed the efforts of and role of the international community to bring these perpetrators and trail them.

Research Methodology

The research follows more than one approach to give the opportunity in the process of research the subject of the study in all its historical, analytical and critical aspects. First, it follows the historical approach in its narrative of events and developments that accompanied war crimes, the principle of personal criminal responsibility of the perpetrators and their trials as a preliminary step to enter into its content and tenors.

Second, it uses a Comparison method to the study of Yemeni, Syrian and international community efforts in Prosecute the perpetrators of war crimes.

The data used in the research was collected from school libraries, e-libraries on the Internet and e-books, TV interviews, human rights magazines and from the archives of the media, websites from the correspondence with the official institutions through interviews with the scientific publications and from the primary and secondary sources obtained from the official websites.

                    1.            Overview of the international humanitarian law

What is International humanitarian law (IHL)?

It is a major part of general international law, but as a humanitarian system that does not prohibit or criminalize war, nor does it consider its legitimacy, it rationalizes it and reduces its grave consequences for innocent people. Therefore, IHL consists of a set of international legal rules and conventions. Written and customary, applicable during international and non-international armed conflicts; aims to prohibit and restrict the means and methods of combat for humanitarian purposes, while providing protection and assistance to civilian victims of armed conflict and other non-combatants or persons hors de combat. Contends with him two principles opposite, the first principle of military necessity; and which seeks to achieve the goals of the war to weaken the enemy and win it, and secondly, the principle of humanity, which aims to stop all beyond the military necessity of prohibited acts to ensure the protection of those who do not participate in the fighting or become incapacitated him[10].

Jurisprudence differed in determining the meaning of the term international humanitarian law, and so far no agreement has been reached or reached a single definition in this regard, due to the rapid and successive developments experienced by the world in the context of repeated wars, and in this regard says Dr. Said Gouili[11]: “Scholars have argued that it is a human rights law applicable in armed conflict, or that it is the Geneva Act only, meaning the four Geneva Conventions of 1949 on the protection of war victims and the protocols thereto, and some considered it part of international human rights law, while others went To say That it includes all the convention and customary rules in Hague Law[12], Geneva Act[13], or that it came to replace Law of War[14], Law of Armed Conflict ”[15].

According to Dr. Montaser Hammouda[16], the term international humanitarian law comes from two broad and narrow aspects. It means in the broad sense of humanitarian law that “this part of the law is dominated by human feelings and aims to protect human rights.” This definition includes all written, unwritten and customary international legal norms. It aims to respect and preserve the human being and his physical and psychological integrity and everything related to his life[17].

In a narrow sense, IHL is defined as “Geneva laws or regulations that concern the protection of non-combatant or non-combatant military personnel such as the wounded, sick, and prisoners of war, and also of civilians and their protection beyond the limits of military operations”[18].

Based on the foregoing, it is clear that the proponents of the narrow trend have limited international humanitarian law only to the four Geneva Conventions of 1949, and that these conventions only include the protection of human rights in situations of war and armed conflict.

The ICRC[19] defines international humanitarian law as “a set of international legal norms derived from international conventions or custom, aimed at solving humanitarian problems arising directly from international or non-international armed conflicts, which for humanitarian reasons restrict the right of parties to conflict to use methods and methods. A war that appeals to them, and protects persons or objects that have been or may be affected by armed conflict”[20].

The scholar Jean Pictet[21], one of the most prominent men of international humanitarian law, defined him as “a branch of international law that encompasses the whole set of legal norms inspired by a sense of humanity, which are primarily focused on the protection of the individual in wartime. To regulate the moral and humanitarian concerns that have been transferred to the field of international law”[22].

  This jurisprudence adds that there is a broad and narrow concept of international humanitarian law. “A broad concept is a set of written or customary international legal norms that ensure respect for and integrity of the human personality, while the narrow concept of international humanitarian law is intended to the laws and regulations of Geneva that are concerned with Fighters or persons outside military operations ”[23].

After looking at several definitions that dealt with the term international humanitarian law and presenting it to a large group of them, the researcher adopts the definition of the International Committee of the Red Cross with regard to international humanitarian law, where the International Committee of the Red Cross has the great credit for the development and promotion of this law Into existence, so it defined IHL as:

“A set of international legal norms derived from international conventions or custom, aimed at solving humanitarian problems arising directly from international or non-international armed conflicts, which for humanitarian reasons restricts the right of parties to a conflict to use methods and methods of warfare which they like and protects persons or objects Which have been or may be affected by armed conflict.”[24]

 The International Committee of the Red Cross (ICRC) has broadened its definition of international humanitarian law, referring to its sources, namely customary rules and the Convention, identifying the scope of IHL jurisdiction as applicable in international and non-international armed conflicts, as well as distinguishing between rules limiting the right of parties to Means of fighting, and between rules that protect people, whether wounded or sick, and civilians. This definition is integral; it contains in its content and incorporates a summary of the provisions and regulations covered by the most important constituent conventions of international humanitarian law.

Stages of its emergence and development

IHL has gone through several stages, the first of which is rooted in ancient civilizations and heavenly religions. (1869), during which 291 agreements were concluded, relating to conventions and regulations concluded by warlord commanders, although there were some earlier agreements of that period, such as the Sempach era[25] of 1393 between the Swiss provinces, which included conditions requiring respect for the wounded and women[26].

However, the most important stages of development are the period between 1864 and 1977, during which IHL went through several stages, which can be summarized as follows:

In 1864, the first international convention, known as the Convention on the Amelioration of the Condition of Wounded Military Persons, under which international humanitarian law moved from heavenly religions, customs, internal laws and jurisprudence to the beginning of the international phase of international humanitarian law, was the starting point for international humanitarian law[27].

In 1899, the Hague Convention for the Adequacy of the Naval War concluded the principles of the 1864 Geneva Convention, since the 1864 Convention was limited to military personnel in the field, and the 1899 Convention came to include naval warfare[28], In 1906, an agreement was signed to improve the situation of the wounded and military patients in the field. In 1907, the Hague Convention was concluded, and was an amendment and development of the 1899 Convention on the Conflict at Sea[29].

In 1929, during the Diplomatic Conference in Geneva, two agreements were concluded:

First: improved the condition of the wounded and sick soldiers in the field and served as a modification and development of the provisions of the Convention in 1906.

The second was the first international organization of prisoners of war. In 1949, the four Geneva Conventions were concluded[30]:

The first is to improve the situation of the wounded and sick in the armed forces in the field, including the amendment and development of the First Geneva Convention of 1929.

The second concerned the improvement of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, and was an amendment and development of the provisions of the Hague Convention of 1907.

Third: Special treatment of prisoners of war, including amendment and development of the provisions of the Second Geneva Convention of 1929.

Fourth: It included provisions for the protection of civilians during armed conflicts, and was the first international organization dealing with the protection of civilians.

In 1977, the two Additional Protocols of 1977 were adopted, the first dealing with international armed conflicts, one of the most important of which was to consider liberation wars as an international armed conflict, while the second concerned non-international armed conflicts[31].

In addition to previous international conventions, other international conventions and declarations keep pace with the evolution of international humanitarian law in its international phase, including:

• The 1868 Peter Spurge Declaration on the Prohibition of the Use of Certain Explosive Missiles.

           • The Hague Declaration of 1899 on the Prohibition of Lead (Dumdum).

Geneva Protocol of 1925 on the Prevention of Use of Toxic Gases and Microbial Weapons

• The 1954 United Nations Convention for the Protection of Cultural Property and Objects in Armed Conflict.

• The 1980 Convention on the Prohibition of the Use of Certain Conventional Weapons.

  The 1997 Ottawa Convention on the Banning of Anti-personnel Mines.

• The Statute of the International Criminal Court, concluded in Rome in 1998, and entered into force on 31 July 2001 and after ratification by (60) States as required by the Statute.[32]

However, the brief development of the principles of international humanitarian law, which we reviewed earlier, in its international phase, did not come from a vacuum, but rather a summary of the efforts and long historical development, devoted by the laws and customs of heavenly and religious to find that the ancient civilizations and heavenly laws contributed to laying the first building blocks of the principles and concepts Of current international humanitarian law. By following the stages of the development of international humanitarian law, we believe that there is an urgent need to review and activate the principles of this law, especially after the tremendous technical progress in the production of weapons, especially lethal ones, and after the proliferation of weapons of mass destruction in various parts of the world.

IHL Sources

International humanitarian law is an integral branch of general international law, and therefore its sources are undoubtedly the same as those of general international law. Therefore, the focus in this part of the study will be to identify the sources of international humanitarian law drawn from the sources of public international law. The most important of these sources are – 1 – international conventions -2 – rules of customary international law -3 – provisions of international courts-4 – opinions and writings of senior jurists – 5 – declarations and decisions issued by international bodies and organizations, such as the decisions of the General Assembly of the United Nations.

The following are the main treaties on international humanitarian law, in chronological order of adoption:

1864 Geneva Convention for the Amelioration of the Condition of the Wounded, Armies in the Field.

1868 St. Petersburg Declaration (prohibition of the use of certain shells in wartime).

1899 Hague Conventions on the laws and customs of land warfare, and adapting the principles of the 1864 Geneva Convention to include naval warfare.

1906 Review and development of the Geneva Convention of 1864.

1907 Revision of the Hague Conventions of 1899 and adoption of new agreements.

1925 Geneva Protocol to prohibit the use of asphyxiating or toxic gases or other gases in warfare and prohibit bacteriological methods of warfare.

1929 Geneva Conventions for the same year, which:

      1- Review and development of the Geneva Convention of 1906.

      2- The Geneva Convention relative to the Treatment of Prisoners of War.

1949 The four Geneva Conventions:

      The first: to improve the condition of the wounded and sick in the field from the armed forces.

      The second: to improve the wounded patients and drowned the armed forces in the seas.

      Third: To improve the treatment of prisoners of war.

      Fourth: To protect civilians in wartime.

1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological and Toxin Weapons and their Destruction)

1976 Agreement banning the use of environmental change technologies for military or other hostile purposes.

1977 The two Additional Protocols to the Four Geneva Conventions of 1949, which enhance the protection of victims of international armed conflicts (Additional Protocol I), and the protection of victims of non-international conflicts (Additional Protocol II).

1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons that may be deemed to be excessively injurious or to have indiscriminate effects.

       1 – Protocol I: on fragments that cannot be detected.

    2- Protocol II: On Prohibitions or Restrictions on the Use of Mines, Booby Traps, and Other Devices.

    3- Protocol III: On Prohibitions or Restrictions on the Use of Incendiary Weapons.

1989 Convention on the Rights of the Child (Article 38).

1993 Convention banning the development, production, stockpiling, use, and destruction of chemical weapons.

1995 Fourth Protocol on Blinding Laser Weapons (Added to the 1980 Convention) on Prohibiting or Restricting the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects.

1996 Revised Protocol on Prohibiting or Restricting the Use of Mines and Booby Traps (Protocol II [amended] to the 1980 Convention on the Use of Certain Conventional Weapons).

1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.

1998 Rome Statute of the International Criminal Court.

1999 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

2000 Optional Protocol to the Human Rights Convention on the involvement of children in armed conflict.

2001 Amending Article 1 of the 1980 Conventional Weapons Convention.

2003 Fifth Protocol on Explosive Remnants of War (added to the 1980 Conventional Weapons Convention).

2005 Additional Protocol to the Geneva Conventions, relating to the adoption of an additional distinctive emblem (Additional Protocol III).

2006 International Convention for the Protection of All Persons from Enforced Disappearance

2008 Cluster Munitions Convention.

2013 Arms Trade Treaty.[33]

In the end, it can be said that the international instruments of international humanitarian law have evolved with the development of their sources with the development and change of the international system, and with the increase in the needs for new laws that codify and alleviate the scourge of wars, and international human rights instruments have contributed to the field of human rights such as the Universal Declaration of Human Rights and the European Convention on Human Rights.

A.                Its definitions of armed conflicts and war crimes

     Armed conflicts

Armed conflict has replaced the term war, given that war is in principle prohibited, and with reference to the various conventions of international humanitarian law as well as the Hague Conventions, we find that despite the use of this term, it did not set any definition for it [34]. And by reference to the rulings of the international judiciary, especially the International Criminal Tribunal for the Former Yugoslavia, and in its ruling in the “Tadic” case, it ruled that resort to armed force between states, or prolonged armed violence between government authorities and organized armed groups, or between these groups within the state is an armed conflict[35].

However, this wording does not cover all armed conflicts, international or non-international. Therefore, we will expand the concept of international and non-international armed conflict as follows:

1 – The concept of armed conflict

International armed conflict differs from non-international armed conflict as will be shown in the following paragraphs:

A – International armed conflict:

It was stated in the official commentary of the International Committee of the Red Cross on the Geneva Conventions, when determining the armed conflict of an international character, that it is “every emerging dispute between two countries that would lead to interference by members of the armed forces”, even if one of the parties denied the existence of a state of war And it does not matter how long the conflict lasts or the number of its victims.[36].

some jurists argue that it is considered an international armed conflict in the event of resorting to armed violence between two or more countries, whether with or without prior declaration of war, and it requires the warring parties to apply international humanitarian law, whether they recognize the conflict or not recognize it, and this is what crossed Some also say about him by saying that the international armed conflict is the interference of the armed forces of one state against another, whether the intervention is legal, or unlawful, and whether or not war is officially declared[37]. The First Hague Convention Relating to the Laws and Customs of War on Land of 1899 limited the parties to international armed conflict to The regular armies of one of the warring parties: the armies of sovereign states, whether they are simple or federal states.

The group of militias and volunteers: provided that at the head of this group is responsible for its members, that it also have a distinctive emblem that distinguishes it, as it is required to carry weapons, and to adhere during the combat operations to the rules and customs of war [38].

Residents of the non-occupied territories, which bear arms spontaneously when the enemy is approaching to confront it, and without having in advance sufficient time to organize themselves according to the conditions stipulated for the militias, but only on condition that the laws and customs of war are respected.

Then Article 13 of the First Geneva Convention came to add to the above categories the following categories:[39]

– Members of the regular armed forces who declare their loyalty to a government or authority not recognized by the Detaining Power;

Persons who accompany the armed forces without actually being a part of them, such as civilian persons included in the crews of warplanes, war correspondents, catering contractors, and members of workers or services units concerned with the entertainment of the military, provided that they have permission from the armed forces that accompany them;

– Members of crews, including commanders, navigators and their aides in merchant ships and civilian aircraft crews of parties to a conflict, who do not benefit from better treatment under any other provisions of international law.

 Protocol I of the first annex to the four Geneva Conventions (Article 140, paragraph 3) eased the conditions that must be met by armed combatant groups, including members of the armed resistance, to impose on them only that they distinguish themselves from civilians, and if this is not possible, they must carry arms in public[40].

B – Non-international armed conflict

Article 03 common to the four Geneva Conventions is considered one of the most important articles ever in the field of dealing with non-international armed conflicts. Some even call it the “mini treaty”, and I have tried to clarify this type of conflict that is not of an international character, by setting a group of The criteria by which the concept of armed conflict can be determined include:[41]

– The identification of the parties to the conflict is possible, that is, they must have a minimum level of organization, structure and chain of command.

– That the armed conflict reaches a level of less intensity, as it is usually assumed that the parties resort to their armed forces or use military means, where the duration of the violence continues to be an additional element that may be taken into account[42]. In 1986, the International Court of Justice affirmed that the provisions of Common Article 03 are a true translation of customary international law, and represent the minimum standard that participating parties should not deviate from in any type of conflict[43]. With reference to the first article of the second additional protocol attached to the Geneva Conventions, we find the following: “This annex applies to the protocol, which develops and complements the third common article between the Geneva Conventions… on all armed conflicts … which revolve on the territory of one of the High Contracting Parties between its armed forces and forces Splinter armed groups or other organized armed groups who exercise, under responsible command, a part of their territory, to enable them to carry out continuous and coordinated military operations, and they are able to implement this annex, the Protocol[44].

And you find the indication here that the second additional protocol came to apply to specific cases of non-international armed conflicts, and went to enhance protection beyond the standards contained in common Article 03, but that this protocol does not apply unless the state ratifies it, and it applies only in Armed conflicts between a country’s armed forces and dissident forces or other organized armed groups, in which it is required that it conduct its business under responsible command over a part of the territory of the state and has control that enables it to carry out sustained and coordinated military operations, and can implement this annex.

As for the parties to a non-international armed conflict, they are the governments of countries whose territories are declared to be armed conflict, and armed groups that are highly organized and have effective control over part of the territory of this country, and whose strength has reached a significant limit, with the ability to implement and respect the protocol.

CClassification of international humanitarian law for armed conflict

The classification of armed conflicts is extremely important, especially with regard to defining the rights and obligations of the parties to the conflict, as well as the rules of applicable international humanitarian law.

International humanitarian law divides armed conflicts into four categories, with the rules and instruments applicable to each varying as follows:

-International armed conflict: the four Geneva Conventions of 1949, the First Additional Protocol of 1977, the Hague Regulations and other legal principles apply to it.

-International armed conflict, which is considered a war for national liberation: It is defined and applied by the first additional protocol of 1977.

-Non-international armed conflict: which is subject to the regulation of Article 03 common to the four Geneva Conventions, and some customary principles.

– Non-international armed conflict: which is narrowly defined by the Second Additional Protocol of 1977[45].

However, there is a big trend today that rejects the idea of ​​classifying armed conflicts as an artificial and unnecessary division and difficult to justify, as it nullifies the humanitarian purpose of the law of war, and this trend is not new. Rather, we find that in the year 1948 the International Committee of the Red Cross presented a report recommending that The Geneva Conventions apply in all situations of armed conflict, even non-international armed conflict, especially in cases of civil wars, colonial conflicts, or “religious” wars.

War crimes definition

War crimes are those violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law. As a result, and in contrast to the crimes of genocide and crimes against humanity, war crimes must always take place in the context of an armed conflict, either international or non-international[46].

War crimes also can be defined as unwarranted acts of violence or brutality, violations of treaties, or violating customs that govern military conflicts. War crimes are most often committed by military personnel but can also be committed by politicians and civilians[47].

War crimes can be divided into three categories[48]:

Traditional war crimes – acts that violate customary wartime practices.

Crimes against peace – acts of hostile military action against a sovereign country that is not in self-defense.

Crimes against humanity – acts that involve the enslavement, persecution, brutality or murder of non-combatants or the extermination of certain groups of people.

What constitutes a war crime may differ, depending on whether an armed conflict is international or non-international. For example, Article 8 of the Rome Statute categorizes war crimes as follows:

·         Grave breaches of the 1949 Geneva Conventions, related to international armed conflict;

·         Other serious violations of the laws and customs applicable in international armed conflict;

·         Serious violations of Article 3 common to the four 1949 Geneva Conventions, related to armed conflict not of an international character;

·         Other serious violations of the laws and customs applicable in armed conflict not of an international character[49].

From a more substantive perspective, war crimes could be divided into: a) war crimes against persons requiring particular protection; b) war crimes against those providing humanitarian assistance and peacekeeping operations; c) war crimes against property and other rights; d) prohibited methods of warfare; and e) prohibited means of warfare.

Some examples of prohibited acts include: murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals; pillaging; rape, sexual slavery, forced pregnancy or any other form of sexual violence; conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities[50].

War crimes contain two main elements:

A contextual element: “the conduct took place in the context of and was associated with an international/non-international armed conflict”;

A mental element: intent and knowledge both with regards to the individual act and the contextual element.

In contrast to genocide and crimes against humanity, war crimes can be committed against a diversity of victims, either combatants or non-combatants, depending on the type of crime. In international armed conflicts, victims include wounded and sick members of armed forces in the field and at sea, prisoners of war and civilian persons. In the case of non-international armed conflicts, protection is afforded to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause. In both types of conflicts protection is also afforded to medical and religious personnel, humanitarian workers and civil defense staff[51].

 International humanitarian law (the laws of war) imposes legal obligations on states and armed groups during armed conflicts to protect civilians and other non-combatants and to reduce their suffering[52]. In the view of international humanitarian law, the conflict in Darfur is a non-international (or internal) armed conflict. The law applicable here is the third common article to the four Geneva Conventions of 1949, as well as customary international humanitarian law[53]. Although many states have not ratified the Additional Protocol to the Geneva Conventions on the Protection of Victims of Non-International Armed Conflicts (Protocol II), most of its provisions, including those for the protection of the civilian population, are a reflection of customary international law[54]. Violations of the laws of war in which individual criminal responsibility is the subject of war crimes.  

B.        Its expansion in the field of armed conflict and war crimes law

           a. Historical development

Contemporary IHL came into being with the original Geneva Convention of 1864. It has evolved in stages, to meet the ever-growing need for humanitarian aid arising from advances in weapons technology and changes in the nature of armed conflict; all too often, these developments in the law have taken place after the events for which they were sorely needed. The following are the main IHL treaties in chronological order of adoption:

1859 The Battle of Solferino[55].

1863 The International Committee for the Relief of the Injured emerged, which later became the International Committee of the Red Cross.

1864 First Geneva Convention for the Amelioration of the Condition of the Wounded in the Armed Forces in the field.

1868 The St. Petersburg Declaration with a view to prohibiting the use of certain missiles in wartime.

1907/1899 Hague Conventions, the Hague Peace Conferences of 1899 and 1907 marked the first significant attempts to codify the international law of war and the opening of the modern era of efforts toward international disarmament[56].

 1906 Amendment and development of the First Geneva Convention.

1925 Geneva Protocol prohibiting the use of asphyxiating and toxic gases or the like, and microbial agents in war.

1929 Geneva Convention relative to the Treatment of Prisoners of War

1949 The four Geneva Conventions to protect[57]:

The first: the wounded and sick in the field.

 Second: the wounded, sick and shipwrecked.

 Third: Prisoners of war.

 Fourth: Civilian people in wartime.

1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

1972 Convention on the Prohibition of the Development and Production of Bacteriological (Biological) and Toxin Weapons and on Their Destruction.

1976 Military or any agreement prohibiting the use of environmental change technologies for other hostile purposes.

 1977 Additional two suffixes to the Geneva Conventions[58]:

* Right (Additional Protocol I), relating to the protection of victims of international armed conflicts.

* Right (Additional Protocol II), relating to the protection of victims of non-international armed conflicts.

1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons that may be deemed to be excessively injurious or to have indiscriminate effects.

 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa Convention).

1998 Statute of the International Criminal Court, Establishment of an International Criminal Court on 12 July 1998[59].

2000 Optional Protocol to the 1990 Convention on the Rights of the Child on the involvement of children in armed conflict.

2005 Next (Additional Protocol III, relating to the emblem). Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005. As an indicative device, an emblem shows that a person or object is linked to ICRC Movement. Additional Protocol III provides for the red crystal in its pure form to be used as a protective device[60].

2006 International Convention for the Protection of All Persons from Enforced Disappearance

2008 Convention on Cluster Munitions

2013 Arms Trade Treaty[61]

This list clearly shows that some armed conflicts have had a more or less immediate impact on the development of IHL.

During the First World War (1914-1918), methods of warfare, including those that were not completely new, were used on an unprecedented scale. These included poison gas, the first aerial bombardments and the capture of hundreds of thousands of prisoners of war. In the Second World War (1939-1945), civilians and military personnel were killed in equal numbers, as against a ratio of 1:10 in the First World War. In 1949, the international community responded to those shocking casualty rates, and more particularly to the terrible effects the war had on civilians, by revising the conventions then in force and adopting a new instrument: the Fourth Geneva Convention for the protection of civilians[62].

The Additional Protocols of 1977 were a response to the consequences, in human terms, of wars of national liberation, which the 1949 Conventions only partially covered through Article 3 common to the four Geneva Conventions (common Article 3)[63].

                  a .a. Essential treaties and articles

In all likelihood, war crimes have been domestically punished ever since criminal law originated[64]. The Hague Conventions of 1899 and 1907 were international treaties that, along with the First and Second Geneva Conventions (1864 and 1906, comprised some of the first formal statements of the laws governing war and war crimes. Those have been refined and interpreted over time, but the early twentieth century offers three particularly good examples before the advent of the Geneva Conventions of 1949 of how courts were dealing with international legal violations in times of conflict[65].

And as it is known the most important treaties that most countries are parties and they are essential in IHL, they can be listed:

First Geneva Convention “for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field” (first adopted in 1864, last revision in 1949).

Second Geneva Convention “for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea” (first adopted in 1906 and revised in 1949).

Third Geneva Convention “relative to the Treatment of Prisoners of War” (first adopted in 1929, last revision in 1949).

Fourth Geneva Convention “relative to the Protection of Civilian Persons in Time of War” (first adopted in 1949, based on parts of the 1907 Hague Convention IV).

Two Additional Protocols were adopted in 1977, completing and updating the Geneva Conventions: Protocol I (1977) “relating to the Protection of Victims of International Armed Conflicts.” Protocol II (1977) “relating to the Protection of Victims of Non-International Armed Conflicts.[66]

War crimes committed in internal armed conflict were not recognized in war crimes provisions until the Statute of the International Criminal Tribunal for Rwanda, as a result of the 1994 genocide that occurred there. This post-dates the mandate of the Statute for the International Criminal Tribunal for the Former Yugoslavia, though in the 1995 Tadic case, the Court embraced a broad view of the two categories of war crimes and found that international criminal responsibility included acts committed during internal armed conflict[67].

The International Criminal Court and the Rome Statute:

In July 2002, a treaty-based court in The Hague, the Netherlands came into being in order to prosecute war crimes, crimes against humanity, genocide, and crimes of aggression committed after July 1, 2002. This Court is able to try citizens of State parties who are accused of committing crimes or those who commit crimes in the territory of a member state. In the Rome Statute, the treaty governing the Court, the drafters embraced war crimes committed in international armed conflicts as well as in non-international armed conflicts[68].

As articles, the Geneva Conventions of 1949 and their Additional Protocols of 1977 contain almost 600 articles and are the main instruments of IHL.

            b. Current situation and its application

A report was published by(ICRC) on international humanitarian law (IHL) and the challenges and current situation of contemporary armed conflicts, the International Committee of the Red Cross (ICRC) sets out its views on a number of pressing humanitarian and legal issues. The ICRC has submitted a report like this one – the Challenges Report – to every International Conference of the Red Cross and Red Crescent since 2003. The International Conference, which takes place every four years, brings together all the States party to the Geneva Conventions, all the National Red Cross and Red Crescent Societies, the International Federation of Red Cross and Red Crescent Societies, and the ICRC. The Challenges Report provides an overview of some of the challenges for IHL posed by contemporary armed conflicts, and outlines current or prospective ICRC action, positions, and areas of interest. One of its main aims is to stimulate reflection on all these matters.

The 2019 Challenges Report focuses on the following topics[69]:

– Urbanization of warfare

– New technologies of warfare

– The needs of civilians in increasingly long conflicts

– IHL and non-State armed groups

– Terrorism, counterterrorism measures, and IHL

– Climate, armed conflict, and the natural environment

– enhancing respect for IHL[70].      

 Applications

The goal of international humanitarian law is to protect and respect human rights during armed conflicts and wars, and this goal cannot be achieved by merely concluding international covenants and the accession of states to them, but can be achieved by including international covenants with mechanisms that ensure the application and respect of international humanitarian law in all circumstances, as well as protecting People during armed conflicts. The four Geneva Conventions of 1949 and its two additional protocols listed several mechanisms through which the rules of international humanitarian law can be best implemented and applied[71].

These mechanisms will be discussed through two topics as follows[72]:

 National mechanisms

National mechanisms are defined as “the mechanisms for the application of international humanitarian law provided for in the Geneva Conventions through the Contracting Parties, the Protecting Power, the International Committee of the Red Cross, and the International Fact-Finding Commission. It is also known as the mechanisms and procedures that each country takes at the national level in order to ensure the application of and respect for the rules of international humanitarian law.

National mechanisms can be identified as follows[73]:

The first requirement: the commitment of the contracting parties to respect and ensure respect for international humanitarian law.

The Geneva Convention of 1949 and the First Additional Protocol of 1977 annexed to it stipulated that the parties to an international armed conflict must undertake to respect and ensure those treaties, and each party must commit to do what is necessary to ensure that all authorities and persons under its control comply with the rules of international humanitarian law, and may include Enforcement is a wide variety of both preventive and repressive measures to ensure observance of the law[74].

The second requirement: commitment to spread international humanitarian law.

International humanitarian law requires the necessity of disseminating its principles, provisions and rules as widely as possible, as the spread of international humanitarian law is one of the most prominent international obligations of the countries that have accepted the basic international treaties related to international humanitarian law and are the four Geneva Conventions and their Additional Protocols of 1977 AD, and the statute Of the International Criminal Court for the year 1998 AD[75].

The third requirement: the preparation of qualified workers.

Article VI of the first additional protocol of 1977 states that “to prepare qualified workers in order to facilitate the application of the agreements and this annex, especially with regard to the activities of the Protecting Power”[76].

Fourth requirement: The appointment of legal advisers to the armed forces.

“When ratifying the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977, states are obliged to respect these international legal instruments and ensure their respect in all circumstances. Knowledge of the law is a prerequisite for its proper implementation. The purpose of the need for legal advisers in the armed forces is to: As stipulated in Article 82 of Additional Protocol I, in improving knowledge of and compliance with international humanitarian law, and given that the conduct of hostilities was becoming more sophisticated, both legally and technically, the states felt that when negotiating Concerning Additional Protocol I, it is appropriate to appoint legal advisers who advise military commanders to help them implement and teach international humanitarian law. [77]

International mechanisms

International mechanisms are defined as: the mechanisms that are not pursued by states at their national level but rather by the international community represented by states, international organizations, specialized international bodies and committees, and the most important international mechanisms are summarized by the measures taken by the United Nations, the Protecting Power, alternatives to the Protecting Power and the Commission International Committee of the Red Cross, international investigation, and the International Fact-Finding Commission[78].

The first requirement: the measures taken by the United Nations.

The provisions of Article (89) of Additional Protocol I affirm the necessity of commitment to state cooperation with the United Nations in the application of international humanitarian law, in which it states, “The High Contracting Parties undertake to work, collectively or individually, in cases of grave breaches of the agreements and this appendix (protocol), In cooperation with the United Nations and in accordance with the Charter of the United Nations.[79] “

The United Nations is implementing the provisions of international humanitarian law through its organs such as the International Security Council that is concerned with the maintenance of international peace and security, the United Nations General Assembly with broad competencies and specifically issues related to human rights, the International Court of Justice which is the main judicial tool of the United Nations and which is concerned with resolving The settlement of all disputes between countries that agree to this jurisdiction[80].

The second requirement: the Protecting Power.

Article 2 of Additional Protocol I specifies the definition of the Protecting State as “a neutral State or another State that is not a party to the conflict, who is interested in one of the parties to the conflict and accepted by the opponent and agrees to perform the tasks assigned to the Protecting State in accordance with the agreements and this right (protocol), and these tasks are to protect the interests of the parties The conflict and its nationals present in the enemy’s territory.[81]

Third requirement: alternatives to the Protecting Power and the International Committee of the Red Cross.

There are some practical difficulties that may hinder the system of the Protecting Power, so the system of alternatives to the Protecting State was approved within the common articles of the four Geneva Conventions of 1949 AD, and then this decision was reformulated in Article Five of the First Additional Protocol of 1977 AD, and alternatives perform the same tasks The Protecting Power lies with the same conditions prescribed for it, and the most important of these conditions is “that such an alternative perform its duties for the consent of the parties to the conflict”

Fourth requirement: the international investigation.

The international investigation is carried out at the request of one of the parties to the conflict, where an investigation is opened regarding the violation of the agreements, and in the event that no agreement has been reached on the investigation procedures, the parties must agree to appoint an arbitrator whose task is to establish the procedures that must be followed by the parties to the conflict, and in the event The violations of the agreements were found, and the parties to the conflict must put an end to this violation and repress it as soon as possible[82].

Mechanisms for the implementation and application of international humanitarian law have a great importance to both sides, be it national or international mechanisms, as these mechanisms work to prevent the penetration of international humanitarian law by parties to armed conflict, and also act as an observer to implement the provisions of international humanitarian law.

And if sometimes it is unable to carry out its work and achieve the goal for which it was set, due to the severity and severity of the surrounding conditions, or the failure of the state’s parties to the conflict to allow these mechanisms to interfere or be present on their lands, for example the Protecting Power cannot intervene without the consent of all parties to the conflict , And an international investigation that cannot be done without consent and asks parties to the conflict to start it[83].        

c.          It’s Effectiveness in armed conflicts and prosecution of war crimes perpetrators since WW2 till today (1945-2019).

Historically, the war criminals or those who have committed violations against people from torture and killing have not been tried except in a few cases that were carried out according to the will of the victors, or the victor, but in the case of conflict between adults, the crimes committed by them or their agents are often forgotten. But there have been and continue to be efforts by international humanitarian law to prosecute war crimes and organize armed wars.

After the Second World War, international and domestic courts conducted trials for those accused of war crimes. The prominent German officials were tried before the International Military Tribunal (IMT)[84], in Nuremberg, Germany, under the supervision of coalition forces judges (the United States, the United Kingdom, the Soviet Union, and France). From October 18, 1945 to October 1, 1946, the International Military Court held trials of 22 “prominent” war criminals on charges of crimes against peace, war crimes, crimes against humanity, and conspiracy to commit such crimes. Twelve of the defendants were convicted and sentenced to death, while three of the defendants were sentenced to life imprisonment, and four others were sentenced to prison terms ranging from 10 to 20 years. Meanwhile, the international military court acquitted three of the defendants. The United States military tribunals also held 12 additional trials of senior German officials in Nuremberg. Among those tried were prominent doctors, members of the mobile killing units, members of the German Ministry of Justice and the German Foreign Office, members of the high command of the German army and prominent German industrialists[85].

The International Criminal Tribunal for the former Yugoslavia for war crimes perpetrators, the Security Council adopted, by Resolution 808 on 22/2/1992, the trial of people for serious violations contained in the Geneva Conventions of 1949, whether it occurred against people, money, killing or torture, and Article 2 of its statute included Prosecuting people who have committed grave violations, including murder, torture, and inhuman treatment. And Article 3 of its statute dealt with violations of the rules and customs of war, indiscriminate destruction and sabotage of cities, and attacking and bombing neighborhoods and property[86].

The International Criminal Court for Rwanda to try those accused of genocide crimes The formation of the court was approved by Security Council Resolution No. 955 on 8/11/1994 and it adopted the same foundations and rules in the Nuremberg Court System of 1945 and also relied on the draft of the International Law Commission which is the individual criminal responsibility of those responsible for War and the lack of immunity of heads of state from responsibility and failure to advance the issuance of orders from presidents to commit crimes and under Article 4 of the statute granted jurisdiction to try perpetrators of crimes committed contrary to the agreements and rules of the Geneva Convention standards of 1949 and the Additional Protocol First and second in 1977 and include the use of violence against people, murder, torture, rape, hostage-taking and terrorist acts and outrages upon personal dignity[87].

These (and hybrid) international criminal tribunals may contribute to the development and clarification of international humanitarian and human rights law. It can also promote respect for international humanitarian law by providing justice for the benefit of victims, be a deterrent to future armed conflicts and contribute to reconciliation and reconstruction by demonstrating the truth of what happened during conflicts.

The decision of the international community to establish an international criminal court in 1998 was another attempt to address these concerns, by which it could provide a tool to prosecute cases in which states were unable or unwilling to act[88].

The International Criminal Court and its statute, in the period from 1995 to 1998 the call was in place to create an international judicial system in line with the existing international foundations, and this was embodied by the establishment of the International Criminal Court and its statute was adopted by the majority of 120 countries. The United States and Israel announced their disapproval and the statute included a preamble ( 128) An article distributed in thirteen chapters, which includes the definition of crimes, the jurisdiction of the court, the priorities for commencement, the role of the public prosecution and the Security Council, and application mechanisms[89].

The past years have witnessed the trial of leaders from several countries before the International Criminal Court in The Hague or tribunals for war crimes and crimes against humanity, and these trials ended with either conviction or innocence, and some could not be brought to the courts, while there are multiple demands to try systems and individuals with the same charges[90]. The continents of Africa had the largest share of actual trials and arrest warrants for former presidents and senior leaders or were still in their positions when they were tried or arrested against them. On Tuesday, the International Criminal Court acquitted former Ivory Coast President Laurent Gbagbo, 73, of charges of crimes against humanity during the unrest after the 2010 and 2011 elections that ended with his arrest and Hassan and Tara assumed power with the support of the French and international forces stationed there[91].

In 2009 and 2010, the International Criminal Court issued two arrest warrants for Sudanese President Omar al-Bashir on charges of crimes against humanity that included genocide, killing and forced displacement, war crimes and also genocide and attacking civilians, the first time that such action had been taken against a president still in office. The charges relate to the conflict that broke out in the Darfur region (western Sudan), which the United Nations says has killed three hundred thousand people; while Khartoum confirms that the number of its victims did not exceed ten thousand people[92].

However, Al-Bashir has since challenged the court, which was unable to implement the arrest warrant, despite its repeated requests to arrest the Sudanese President during his visit to the countries that signed the Rome Treaty establishing the International Criminal Court. Al-Bashir and Sudanese officials have accused the ICC of continuing to be politicized[93].

Nowadays, the effectiveness of international humanitarian law and the International Criminal Court is weak for a number of reasons, including, for example, In light of Russia’s repeated veto in the UN Security Council, all attempts to refer Syria to the International Criminal Court in order to try those responsible for war crimes that have occurred on its soil since 2011 have failed[94].

During the past years, Western politicians, Syrian and Yemeni opponents, and international human rights organizations have called for the trial of President Bashar al-Assad as the primary responsible for war crimes and crimes against humanity committed in Syria and, as well as for the perpetrators of war in Yemen, but the political and legal complications surrounding the Syrian and Yemeni crisis seem to weaken the possibility of this happening.

The same voices escalated last year for the trial of Myanmar leaders on the same charges in connection with the crackdown on the Rohingya Muslim minority and the flight of more than half a million people to neighboring Bangladesh.

The role of IHL in establishing criminal responsibility in:

a.      Yemeni and Syrian armed conflicts

Individuals on all sides of the conflict in Syria and Yemen have committed massive violations of international human rights law and international humanitarian law on a very large scale.

In Syria, Human Rights Watch based on its investigations that the government and pro-government forces have committed crimes against humanity and war crimes.[95] The government continues to conduct air strikes and indiscriminate artillery strikes on residential areas and continues to carry out arbitrary detentions, torture, and extrajudicial killings of civilians and combatants. In August, chemical weapons attacks killed hundreds of civilians, including many children, near Damascus. A United Nations investigation has found that the nerve gas used is Sarin. While the government denies responsibility, the available evidence strongly indicates that the regular forces are responsible for these attacks[96].

Among the international crimes committed in Syria are war crimes and crimes against humanity. Since July 2011, Syrian forces and Hezbollah militias that support the government have committed many war crimes and crimes against humanity, against civilians, civilian property, and ethnic groups.[97] The opposition forces may also be responsible for war crimes, Human Rights Watch documented grave violations amounting to war crimes by some opposition groups, including the indiscriminate use of car bombs, kidnappings, torture and extrajudicial executions. Foreign fighters and al Qaeda-linked groups were among the perpetrators of some of the most brutal of these violations. In one of the opposition operations documented by Human Rights Watch in the Latakia countryside in Syria in August, evidence strongly indicates that the violations committed by five armed opposition groups amount to crimes against humanity. Some armed opposition groups operating in Syria also use children in combat and other military purposes[98].

International humanitarian law (the laws of war) imposes legal obligations on states and armed groups during armed conflict to protect civilians and other non-combatants and to reduce their suffering. In the view of international humanitarian law, the conflict in Syria is a non-international (or internal) armed conflict[99]. The law applicable here is the third common article to the four Geneva Conventions of 1949, as well as customary international humanitarian law. Although Syria has not ratified the Additional Protocol to the Geneva Conventions on the Protection of Victims of Non-International Armed Conflicts (Protocol II), most of its provisions, including those for the protection of the civilian population, are a reflection of customary international law. Violations of the laws of war in which individual criminal responsibility is the subject of all war crimes[100].

Crimes against humanity are unlawful acts committed as part of a widespread or systematic attack against civilians. These crimes include murder, extermination, slavery, deportation, arbitrary detention, torture and rape, as well as prosecution for political, ethnic or religious reasons, and other inhumane acts[101].

The widespread and systematic abuse of government forces and their militias against ethnic groups, and dissidents amount to attacking a civilian population and fall within the definition of crimes against humanity. The similar model of crimes against the civilian population in different areas of Aleppo, in addition to the evidence provided by documents and eyewitnesses linking senior government officials to abusive military operations, indicates a policy pursued at the highest levels of the Syrian government. But if this policy amounts to genocide, it is still not clear[102].

Knowing if there is intent to genocide requires access to government documents and to the leadership elements that planned and coordinated the campaign in various Syrian cities. But the evidence necessary to prove the intent of the genocide is not necessary to demonstrate the existence of war crimes or crimes against humanity. Putting the question of genocide aside, it remains essential to hold the Syrian government (and relevant civil officials, members of the armed forces and militias) accountable for crimes against humanity and war crimes in Syria that have claimed hundreds of thousands of civilian casualties.

Many Syrian government officials, military commanders, and militia leaders have been in positions of authority over the soldiers and militia elements who have committed these atrocities. Some have also issued orders to attack civilians, destroy villages and loot civilian property, and this is what they bear individual criminal responsibility for[103]. Others can also be condemned under the principle of the commander’s responsibility: military and civilian commanders are responsible for serious violations committed by persons subject to their authority or their orders if they knew about it, or if they were free to know about them, and then did not take measures to end or punish crimes. As for attacking civilians, it was organized at the highest levels of the government, and it lasted for more than nine years, with full knowledge that the target is civilians, and did not lead to serious steps to punish those responsible for the crimes committed[104].

In the case of Yemen, what applies to Syria applies to Yemen, but in Yemen, there are more parties to the conflict. Each side practiced all kinds of crimes against the other side. There are Houthi militias, government forces, Saudi and Emirati forces, as well as many armed militias.

United Nations investigators on Yemen indicated in a report that possible “war crimes” were committed with gross human rights violations, including killings, torture and sexual violence in this country. While all parties to the conflict accused of these violations escape impunity[105].

The United Nations also confirmed that Saudi Arabia, the UAE, the legitimate government, and the Houthis violated international human rights law in Yemen, “and it is possible that these parties have committed war crimes”. This was stated in a report issued by a committee composed of 3 international experts charged with investigating cases of human rights violations that have occurred in Yemen since 2017[106].

The report pointed out that the international bodies that sell arms to the parties to the conflict in Yemen also bear the responsibility of the human tragedy and the violations taking place in this country. Parties to the conflict in Yemen continued their violations due to the absence of an accountability mechanism. The report stated that all parties to the conflict in Yemen have resorted to the violence of harassment, sexual assault, and social crimes and that the militias supported by the United Arab Emirates are also involved in such crimes[107].

The report called for an immediate ceasefire in Yemen, in order to have the opportunity to stop the violence against civilians in this country, and that all parties to the conflict must work to protect civilians and achieve justice for the victims of the internal war. The report pointed out that the experts will submit a secret list to the United Nations High Commissioner for Human Rights, which includes names from Saudi Arabia, the United Arab Emirates, the right-wing government, and the Houthis, who are suspected of committing crimes in Yemen[108].

All United Nations investigators on Yemen said that they based their findings on more than 600 interviews with victims and witnesses, as well as documentary and open-source materials. In their second report, which investigators are to submit to the Human Rights Council on 10 September, they write in detail how airstrikes, indiscriminate shelling, snipers, and landmines were terrorizing civilians across Yemen[109].

They also referred to violations by all parties, including arbitrary killings, torture and the recruitment of children as young as 12 years old to fight, as well as rape and other forms of sexual violence. They also indicated that the parties to the conflict “may resort to starvation as a weapon.” In their report, experts request the Human Rights Council to allow them to continue their work to ensure that the human rights situation in Yemen remains on the agenda, as well as to enhance their powers by allowing them to collect and preserve evidence of alleged violations in an effort to combat impunity. They also called on states to refrain from providing weapons to various parties to the conflict[110].

All these practices by the parties to the conflict in Yemen and Syria are considered acts of aggression against international humanitarian law, which holds the conflicting parties criminal responsibility and gives the green light to international humanitarian law to take the necessary measures to deter and end these aggressive practices and hold perpetrators accountable.

Providing evidence and reports on crimes committed in Syria and Yemen is only a first step; a thorough criminal investigation is required. But gathering evidence for the prosecution of international crimes is extremely difficult in light of the current climate in both countries. Witnesses must be able to testify without fear of reprisal, and the crime scene must remain without tampering with it, and documentary and legitimate evidence must also be proven. Given that the governments of Yemen and Syria did not carry out any serious investigation, they must allow the entry of international investigators and ensure their safety; as well as prevent threats and violence against witnesses, and open their records to external scrutiny.

b.      prosecuting perpetrators of war crimes

International humanitarian law did not overlook the responsibility for breaching its provisions and identified two categories of violations, namely “grave breaches,” and they were mentioned exclusively in the four conventions, the first additional protocol (the ones that are applicable in international armed conflicts) and the rest of the innumerable “violations”. The first category is part of war crimes, and the aforementioned treaties have been entrusted with the responsibility of each Contracting State for the prosecution and prosecution of its perpetrators by its national courts or for their extradition to another Contracting State concerned with their prosecution, and the Contracting States have been required to take national legislation to determine the penalties that should be applied to criminals and the like. As for the rest of the violations, the charters of humanitarian law obligated states to take the initiative to put an end to them by taking the necessary measures.

One of the most important topics regarding the prosecution of war crimes is the principle of “individual criminal responsibility” which has become one of the most important principles recognized in international law since the Versailles conference in 1919[111]. The concept of this responsibility has become, for the jurists of international criminal law, one of the most important means or weapons of international criminal justice to suppress international crimes, which has been increasing steadily, especially in the last decade of the twentieth and twenty-first century.

Individual criminal responsibility, it is a basic principle of criminal law that individual criminal responsibility for a crime includes attempting to commit such crime, as well as assisting in, facilitating, aiding or abetting, the commission of a crime. It also includes planning or instigating the commission of a crime[112].

In this context, rule 102 is the key rule which it says;” no one may be convicted of an offence except on the basis of individual criminal responsibility”. State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts[113].

Also, the 103 rule which is about collective punishments, state practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This prohibition is an application, in part, of Rule 102 that no one may be convicted of an offence except on the basis of individual criminal responsibility. However, the prohibition of collective punishments is wider in scope because it does not only apply to criminal sanctions but also to “sanctions and harassment of any sort, administrative, by police action or otherwise”[114].

Two other rules are essential regarding “state responsibility” to prosecutions, rule 158 and 161.

Rule 158, states must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and prosecute suspects, if necessary[115]. It must also investigate other war crimes within its jurisdiction, and, if necessary, prosecute suspects. The Geneva Conventions require states to search for persons who have allegedly committed or ordered to commit, grave violations, and to prosecute or extradite them[116].

Rule 161, States must do their utmost to cooperate, to the extent possible, with each other, to facilitate the investigation of war crimes and the trial of suspects[117]. Additional Protocol I and Protocol II to the Hague Convention for the Protection of Cultural Property provide that parties to a conflict provide each other with the largest share of aid in relation to investigation and criminal procedures, including extradition, in relation to the war crimes listed in these agreements[118].

The provisions of the Geneva Conventions relating to the punishment of war criminals remain in effect, even after the establishment of a permanent or special international criminal court, and as we have alluded to, the implementation of those provisions requires implementation of complementarity with national legislation, setting the appropriate punishment for each of the crimes listed in the legal instruments An international humanitarian organization returns to the national legislator, whether within the framework of existing legislation such as the General and Military Penal Code or an independent law.

The aim of the relevant provisions of international humanitarian law is not to take revenge and ignite the fire of hatred but rather to provide a minimum level of justice based on the controls and limits that combatants must stand at. Some may question the usefulness of this talk at a time when the most heinous crimes are being committed in Syria and Yemen, as if the perpetrators do not pay attention to any international criminal courts or any international law, but such a question cannot prevent the search for taking the most successful ways to stop the violations of the continent wherever it is. Whatever the status of the perpetrators and the countries to which they belong, war victims and their families have the right to defend their dignity by demanding punishment for the perpetrators, since the principles on which humanitarian law is based cannot exclude the requirements of justice and they are only achieved by prosecuting the perpetrators of violations and holding them accountable for what they have committed.

  V.       According to IHL the perpetrators of war crimes in Yemeni and Syrian civil wars.

This chapter deals with the responsibility of the parties to the conflict for war crimes committed in Yemen and Syria in the light of international law. International humanitarian law provides protection for civilians and non-combatants from the effects of war. Many international reports have documented many combat operations that have not adhered to the basic rules of the laws of war, such as “civilian immunity” and “discrimination”. International human rights law remains in force during armed conflict.

In Yemen

Armed conflict in Yemen was widely ignited after the armed Ansar Allah group (Houthis) took control of the capital, Sanaa, on September 21, 2014, after a series of small wars the group had fought in Saada, Al-Jawf, and Amran, north of Sanaa, and then invaded the rest of the governorates, reaching Aden south. To whom. This conflict entered a new level with the announcement of the start of a military campaign on March 26, 2015, by a coalition of nine countries led by Saudi Arabia and the United Arab Emirates to support President Abd Rabbuh Mansour Hadi and his government[119]. During five years, the coalition and the forces and groups that support it have controlled more than 80% of the area of ​​Yemen, while Hadi and most of his government still reside in the Saudi capital, Riyadh, with the coalition continuing to support and empower armed groups opposed to the government of President Hadi and constantly undermine them, according to UN and international reports.

Parties to the conflict (the Houthis, the Arab coalition led by Saudi Arabia, the Emirates, and the Yemeni government) continued during the year 2014-2020 by undermining the lives of civilians, by air strikes, artillery and tank shells, which killed and wounded civilians indiscriminately and disproportionately, the cultivation of anti-personnel mines also continued, and child recruitment continued. And exploiting them in different ways and cases of sexual violence started to surface[120].

Civilians were subjected to detention and trial because of their religious beliefs, others were detained for their work in the media, and other civilians were detained by the parties to the conflict because of their affiliation with areas under the control of the other parties, and the situation amounted to the detention of citizens because of their surnames and their affiliation with certain families[121]. Arrests and detention continue for long periods without trial or clear accusation, and a number of detainees have been subjected to enforced disappearance and torture leading in some cases to death, and although the majority of those subjected to detention have been men, women have also been subjected to detention, ill-treatment and death sentences on unproven charges and unfair trials Fair.

A number of schools, hospitals, health centers and medical staff have been directly attacked by all parties, in conflicts in several regions throughout Yemen, including air and ground attacks. Some schools were used for military purposes[122].

Parties to the conflict have also continued to use starvation as a weapon of war, and have hindered or prevented the delivery of humanitarian aid. At the same time, practices that limit the ability of citizens to move between different regions of the country have continued, not only in the lines of contact between the parties to the conflict, but within the area of ​​each party, where checkpoints exercise identity screenings for travelers[123].

During the war, Yemen witnessed an outbreak of repressive tactics and violent practices against those participating in peaceful gatherings and demonstrations, and freedom of expression and the media in Yemen were subject – in particular – to various types of violations and human assaults, such as arbitrary detention, enforced disappearance, beatings and humiliation, and raids of press headquarters And burn it. Work in the field of human rights and the defense of public freedoms in Yemen has become a serious danger, and some human rights workers have been detained. In addition to all of this, American drone strikes continued into Yemeni territory, and these attacks resulted in many civilian deaths and injuries[124].

According to ACLED, over 100,000 people have been killed in Yemen, including more than 12,000 civilians, as well as estimates of more than 85,000 dead as a result of an ongoing famine due to the war[125].

Source:https://www.acleddata.com/2019/12/18/yemens-fractured-south-aden-abyan-and-lahij/               

As the conflict in Yemen passes in its fifth year, the number of victims and those affected by this humanitarian catastrophe increases every day due to the parties to the conflict continuing to fight and violating international and humanitarian laws, and stopping the war and its humanitarian, social, economic and political repercussions has become more costly and more difficult[126].

During the years 2018-2019, the indicators on the ground reflected the continuation of military actions in different regions of the country, and the Hodeidah governorate in western Yemen has witnessed since June 2018, an escalation of military operations on various fronts of fighting in the west coast, northwest and central of the country (approximately 140 km), In a process launched by the coalition led by Saudi Arabia and the UAE and groups loyal to it to control Hodeidah, which is one of the largest population centers in the country, and in which the port of Hodeidah, one of the largest ports in Yemen, is located and the only outlet that has been receiving humanitarian aid and commercial consumables that covers the need for money Yin resides in eleven Yemeni governorates (Al Hudaydah, Raymah, Al Mahwit, Hajjah, Amran, Saada, Sanaa, Dhamar, Al Bayda, Ibb, and parts of Taiz)[127], which are still under the control of Ansar Allah (the Houthis). This battle took the largest share of the brutality of the conflicting parties against civilians, as the battles led to the displacement of 81 thousand families, and air and ground raids targeted hospitals and buses carrying displaced persons, farms of citizens and villages, buildings, warehouses of the World Food Organization, and private commercial interests. The Houthis planted mines, which killed many civilians[128].

In exchange for the increase in the frequency of human rights violations, the citizens ’ability to protest and express has declined unprecedentedly. Civil, humanitarian, human rights, developmental, and media work is also facing an increasing frequency with many violations and restrictions, most of which are concentrated in the Houthi-controlled areas, where every day the space shrinks. Possible for this action, which further darkens the situation in Yemen[129]. And all this coincides with the disruption and undermining of law enforcement institutions, including natural justice institutions, in most areas of control of various parties, practices that ultimately enable armed groups to live the lives of millions of civilians, which creates a situation in which appalling human rights violations flourish.

Violations and crimes in Yemen and their potential perpetrators in Yemen are still some form of investigation. The Group of Eminent Regional and International Experts on Yemen issued its first report in August 2018, which indicated that all parties to the armed conflict in Yemen had committed war crimes. On September 28, 2018, the Human Rights Council adopted a decision to extend the mandate of the regional and international eminent expert group on Yemen. The Human Rights Council’s decision to extend the mandate of the group of prominent regional and international experts for a year, provided that this team delivers a detailed written report to the High Commissioner to be presented at the 42nd session of the Council in September 2019[130].

In this context, after reviewing the violations of all parties (the Houthis, the Arab coalition led by Saudi Arabia, the Emirates, and the Yemeni government), it became clear that all parties are war criminals of varying levels according to the violations and the extent of their danger to civilians and public life and according to international humanitarian law.

In Syria

For more than nine years, the Syrians have been subjected to countless violations, ranging from violence in the face of peaceful marches and arbitrary arrests, to murders, destruction and extermination using various types of weapons, including chemical and internationally prohibited, and ending with the siege, starvation and forced displacement.

These violations are classified as war crimes and crimes against humanity in international humanitarian law, and those who committed these crimes carried out these violations are also war criminals according to international humanitarian law. Armed with these crimes, along with the Syrian regime and its allies and militias supporting it, armed groups who took control of Syria’s regions, and also practiced crimes and violations against civilians that required criminal prosecution, for the crimes they committed against humanity against the Syrian people[131].

The United Nations is establishing commissions of inquiry and fact-finding missions to address cases of serious violations of international humanitarian law and international human rights law, to enhance accountability for these violations, and to combat impunity.

Here, it is expected to mention the most prominent crimes committed in Syria which done by parties to the Syrian conflict (the Assad regime, militias, terrorist organizations, and the Syrian opposition). When talking about war crimes and crimes against humanity we must classify them to distinguish between them according to international law[132]. In the Syrian case, the Assad regime and its Russian, Hezbollah and Iranian allies are the most prominent perpetrators of these crimes, according to statistics from the Syrian Network for Human Rights, a Syrian human rights organization that accounts for 90 percent of the total violations committed against civilians in Syria in the Assad regime and its allies, yet the rest of the Parties such as jihadi organizations (such as ISIS and Nazareth), armed opposition factions, Kurdish forces, and even the international coalition are accused of committing these crimes to varying degrees in terms of quantity, quality, and responsibility, although not objective and can be compared to the crimes of the Assad regime, but they do not These parties relieve them of their responsibilities in this aspect. These crimes can be classified into three sections[133]:

Crimes against humanity:

These crimes include intentional killing, extermination, deportation or forcible transfer of population, imprisonment and deprivation of liberty, rape, persecution of any specific group or group of the population for political, racial, national, ethnic, or religious reasons, as well as inhumane acts that intentionally cause suffering Severe or serious harm to body, mental or physical health[134].

All of this was committed by the Assad regime in a widespread and systematic framework against civilians in accordance with the concept of these crimes under the Rome Statute of the International Criminal Court.

Genocide crimes:

If the crimes of genocide are in accordance with the Rome Statute of the International Criminal Court in the total or partial destruction of a national, ethnic, racial or religious group through one of the acts, some of which may be mentioned: A- Killing members of the group, B- Causing serious bodily or mental harm to members of the group C- Deliberately subjecting the group to living acts intended to destroy it in whole or in part[135].

All this has been done by the criminal Assad regime against certain groups or groups of the Syrian people.

War crimes:

Such as directing attacks against the civilian population or against civilian sites, and intentionally directing attacks against designated buildings such as for educational, religious, scientific, or charitable purposes, historical monuments, hospitals, and places where the sick or wounded are collected, as well as willful killing, displacement or relocation of the population inside or outside Syria, destruction Property, looting, use of internationally prohibited weapons, use of violence against life and people, mutilation and torture[136].

The Assad regime directed attacks against the civilian population and against civilian sites, and intentionally directing attacks on buildings designated for educational, religious, scientific, or charitable purposes. In addition to the deliberate killing and displacement of the Syrians.

On the other hand, the Syrian opposition factions, represented by the “Free Army” and the Kurdish armed factions and terrorist groups such as ISIS and Al-Nusra, have committed field executions, bombings, indiscriminate shelling and planting mines, which has increased the number of victims for more. But compared to what Assad’s forces did of war crimes, the opposition factions did less[137].

The most famous field execution by opposition factions was in August 2012, when fighters affiliated with the “Free Army” executed a group of what they described as “shabiha” in the field in the city of Aleppo. According to a recording then spread on social media, the arrest of the fighters shows a number of pro-regime elements from the Al-Birri family, whose faces were bloodstained and most notably the group’s leader, Ali Zine El Abidine Berri, known as Zeno.[138] The “Free Army” fighters took the detainees out of the school where they were, and executed them with live bullets in front of a number of families. The prosecution of war criminals in Syria is considered by some Syrians as a prerequisite for achieving sustainable peace and justice, and others consider it an obstacle to proceeding with a political solution.

 Between these two possibilities, discussions took place between the international parties concerned with the Syrian file, fearing this justice would turn from transitional to retaliation that would hinder the political solution, or that this supposed solution would overlook the rights of civilian victims, ending with impunity for perpetrators of war crimes and crimes against humanity in Syria[139].

SNHR has released a report that contains an update on the death toll of civilian victims, women victims, children victims, victims who died due to torture, the death toll among medical personnel and media activists who were killed at the hands of the main six parties that kill civilians in Syria, as shown above in the picture. [140]            

Nearly nine years and ten months since the start of the Syrian revolution and its transformation into a civil war during which the killing machine that all parties to the crisis have adopted has not stopped since the first moment against the Syrian civilians. These years pass and the Syrian Observatory for Human Rights renews its assurances that all those calamities that it suffered could have been avoided The Syrians had their effects on the region and the world as a whole, if the international community had shown a real will to interfere and pressure the regime, its supporters, other parties to the conflict and their supporters, in order to stop the bloodshed of Syria.

In this context, after reviewing the violations of all parties (the Assad regime and its Russian, Hezbollah and Iranian allies, militias, terrorist organizations, and the Syrian opposition), it became clear that all parties are war criminals of varying levels according to the violations and the extent of their danger to civilians and public life and according to international humanitarian law.  Today, war crimes, crimes against humanity and other serious human rights violations continue in Syria. These crimes should not go unpunished. Victims and their families have the right to know the truth and to seek compensation and justice.

VI.    Yemeni and Syrian wars and the efficacy of International Criminal Tribunals in:

A.    Prosecuting perpetrators war crimes.

In this section, the role and effectiveness of the ICC and the legal tracks available for Syrians and Yemenis to prosecute war criminals will be discussed.

On July 17, 1998, 120 countries agreed at a meeting of the United Nations General Assembly in Italy on what is known as the Rome Charter, and considered it a basis for establishing a permanent international criminal court. Seven countries opposed this idea, and 21 abstained[141].

The Charter considered that millions of children, women and men in the twentieth century – which witnessed two world wars – had fallen as “victims of unimaginable atrocities that severely shocked the conscience of humanity” and that it had witnessed “serious crimes threatening world peace and security” and that such crime should not go unpunished[142].

Before that, a special committee had submitted – at the request of the Assembly itself – two drafts of the criminal court system in the early fifties of the last century, but the project did not see the light, and it remained suspended due to the political problems that overshadowed international relations during what was known as the Cold War period between the Western camp led by The United States of America and the eastern camp led by the former Soviet Union.

The International Criminal Court was established legally on July 1, 2002 under the Rome Charter, which entered into force on April 11 of the same year, after the number of countries ratified exceeded sixty. To date, the court has ratified 108 states and meets in an assembly of member states, a body that monitors the court’s work. Another 41 countries have signed the Rome Charter but have not yet ratified it[143].

Court jurisdiction: The International Criminal Court is concerned with following up on individuals accused of:

Genocide crimes, as defined by the Rome Statute, mean killing or causing great harm with the aim of destroying, in whole or in part, a national, ethnic, racial or religious group.

Crimes against humanity, which is any of the prohibited acts provided for in the Rome Statute, if committed systematically and systematically against a group of the civilian population, such as willful killing, extermination, rape, deportation, forced transfer, apartheid and slavery.

War crimes, which means all violations of the Geneva Convention of 1949, and violation of the laws of war in an international or internal armed conflict[144].

Courts can hear cases of persons accused of committing these crimes directly, or others who have indirect responsibility therein, such as responsibility for preparation or planning, or responsibility for covering them, or responsibility for encouraging them. The court – which is based in The Hague, the Netherlands, but can hold its hearings elsewhere – is a court that complements the national jurisdiction of its member states, and represents the last fate when these courts are unable or unwilling to investigate those accused of the crimes in question[145].

Countries ratifying the court or the UN Security Council can refer to the public prosecutor cases related to the crimes for which the court is competent to consider, and he can initiate an investigation into any case he deems worthy. The law of the court requires these states to cooperate with them in the investigations and follow-up they undertake, by extraditing the accused if they are their citizens or arresting and extraditing them if they entered their lands, and that they provide all the documents available to them in any case the court opens an investigation in[146].

The court can cooperate with countries that have not ratified its charter, through separate understandings or agreements. It also links the court with the United Nations an agreement that regulates relations and ways of cooperation between them. Thus, the International Criminal Court differs from the International Court of Justice, which is a United Nations arm by which it aims to resolve disputes between countries[147].

The role of the International Criminal Court in the application of international humanitarian law is embodied in the Court’s consideration of serious violations of international humanitarian law, which undoubtedly contributes to the realization of the effectiveness of international humanitarian law and the implementation of its principles since the rules of international and humanitarian law were aimed primarily at dyeing protection on Specific types of rights in exceptional and special circumstances, namely situations of war and armed conflict, the International Criminal Court is not isolated from the penal effects of wars, but rather these effects are among the most important reasons for calling for their establishment and are at the heart of its competence.

It does not yet appear that the International Criminal Court has taken steps that outrage it to pave the way for the prosecution of war crimes in Syria and Yemen, and the future of the International Criminal Court does not appear bright in terms of its effectiveness in prosecuting war crimes in the world, despite the number of countries that ratify the system The basic principle of the court has increased, but there are a set of obstacles to achieving aspirations and fulfilling aspirations in providing effective and fair protection for victims of violations of humanitarian law[148]. Among the obstacles that limit the ICC’s exercise of its competencies are the following:

The principle of national sovereignty: represents one of the main obstacles to the work of the court, because it is difficult for some countries to be convinced to submit to an international jurisdiction before it in order to be held accountable for violations of their international obligations, such as Syria, which is not a party to the Rome regime[149].

Supplementary jurisdiction: The International Criminal Court has one of the most important obstacles in the work of the court, which would cripple it from the prosecution of international crimes[150], by setting up mock and comic courts for its citizens accused of committing international crimes, and this is what Saudi Arabia and Syria do repeatedly.

Giving the statute to the court the Security Council: the right to intervene to stop the investigation and prosecution procedures, posed a great risk to the effectiveness of the court and its independence[151], as granting these powers to the Security Council would enable the trainees in the court to interfere with them and their work, and deal with perpetrators of crimes with duplication, and this matter with all Confirmation that would obstruct the work of the court, and this is what Russia is doing in nullifying any decision against the Syrian regime in the Security Council that it uses to veto, also the same what America does with Saudi Arabia about their crimes in Yemen.

The court does not possess its own forces: it enables it to prosecute, arrest, and interrogate the accused, keeps the possibility of impunity for the perpetrators, and reduces the court’s effectiveness in implementing its decisions[152].                

The ICC remains the party most able to effectively investigate and prosecute persons who bear the greatest responsibility for crimes and enable the Syrian and Yemeni people to be held accountable. But the court will only be able to prosecute a limited number of senior officials responsible for crimes that have been committed. In the long term, there is a need to conduct national trials to fully achieve accountability, and there is a need to introduce reforms in order for the Syrian and Yemeni judicial system to be able to implement independent and credible internal prosecutions.

Although the work that the International Criminal Court can do is only part of the great accountability efforts that Syria and Yemen need, this remains an essential first step, in addition to being an important reference point in relation to other initiatives, including national trials. Other non-judicial mechanisms are also needed, including truth commissions, investigations and institutional reforms. Although none of this will happen quickly or easily in Syria and Yemen, all of these things remain necessary.

 B. How those war criminals will be prosecuted.

Given the current approach to the parties to the Syrian and Yemeni conflict, which rejects any political settlement to the current conflict and prefers an explicit military victory, it is unlikely to reach an approach that includes the application of the principle of “legal and judicial security” through negotiation, without fundamental changes in the balance of power on the ground. In light of this dynamic, solid progress on the issue of trying war crimes committed during the conflict in Syria and Yemen can only take place now within a context separate from the political process to reach peace.

 In any case, there are, in theory, four main mechanisms that can be followed to achieve justice and prosecute war criminals in Syria and Yemen with regard to allegations of war crimes in them:

The first theoretically possible mechanism is national courts, which rarely consider war crimes cases, yet trials at this level are possible[153].

The adoption of this scenario is very similar to the scenario of the trial of Saddam Hussein in Iraq and the trial of leaders of the Islamic Group in Bangladesh after the War of Independence. However, investigations of war crimes violations in Syria or Yemen through the local judiciary, meaning the Syrian and Yemeni nationals, are currently impossible[154]. On the one hand, there is the inability of these courts to operate in light of the political and security chaos in the country, as the local judiciary requires stability, in light of the rule and effectiveness of law and order, first.

On the other hand, the presence of the Syrian and Yemeni judiciary at the center of the cycle of skepticism and allegiances, and avoiding neutrality, makes it almost impossible for him to consider war crimes, because the achievement of justice and trials through national courts is at the hands of the forces that won the war against defeated enemies.

The trial of Saif al-Islam al-Qadhafi provides an interesting example of what was mentioned in the previous paragraph, as despite the issuance of a memo from the International Criminal Court to try him, Saif al-Islam will be tried in Libya. In the event of the complete collapse of the Assad regime, or its success in surviving a victory over its opponents, the case of Saif al-Islam Qaddafi The second possible mechanism is the Special International Court, and some parties, including the United States of America, have called for the creation of a special international court along the lines of what happened with respect to Rwanda and the former Yugoslavia, in order to try to establish an effective trial for a large number of the accused. But these two trials, namely Rwanda and the former Yugoslavia, have come to light and have begun to consider war crimes cases after the conflict has ended, and have been held under international auspices.

Thus, like the national judiciary, the Special International Court is unlikely to see the light of time before the end of the current conflict, and this is what makes consideration of this option insignificant at the present time. Usually, international special tribunals are created to consider war crimes committed in one conflict, and their establishment must be based on an explicit Security Council resolution. This means that the establishment of this type of court is subject to all types of politicization, settlements, and obstacles accompanying any decision of the Security Council, including the possibility of a permanent member vetoing to prevent the establishment of such a court in Syria or Yemen.

The third mechanism that is also suspended until today is the International Criminal Court, and since Syria is not a signatory to the Rome Statute of the International Criminal Court, this court cannot exercise its jurisdiction in Syria or Yemen only after the approval of the Security Council[155].

Given Russia’s position and, to a lesser extent, the position of China, which supports the Assad regime, it is unlikely that the Security Council would agree to give the International Criminal Court the approval to start procedures for the consideration of war crimes in Syria[156]. As a result of this impasse, which causes the Security Council to circulate in a vicious circle, the International Criminal Court does not have any authority to consider war crimes committed by the Syrian regime.

Although presenting the case file known as “Caesar” to the UN Security Council constituted a force for providing a sample of a number of war crimes that could be taken up by the International Criminal Court, the categorical opposition to this by some of the members of the Council prevented the actual move In considering these accusations. However, Human Rights Watch and other organizations are still pushing for the adoption of the ICC option as the best mechanism to prosecute those responsible for war crimes in Syria and Yemen.

Final mechanism is national courts with international jurisdiction, after all of the above, the most effective mechanism today to consider war crimes in Syria is through national courts with international jurisdiction, which are courts that transcend the geographical concept of states and exercise their powers based on the rule of universal jurisdiction (Universal Jurisdiction), This is based on specific factors related to each individual case[157].

Foreign governments usually enjoy immunity from any trial, based on the principle of “sovereign immunity”. But for the United States of America, all countries classified as sponsors of terrorism are exempt from the principle of “sovereign immunity”, and can therefore be tried in US civil courts. Only three countries currently fall into this US classification, and Syria is one.

One example of the practical application of US law is the case of American journalist Mary Colvin, who was killed in Syria in 2012 by regular forces[158].

However, following any of these mechanisms faces obstacles that need to be overcome, as it was not possible to activate three of them until the moment, as it seems that their activation is out of reach today, and there is one mechanism that was activated through several cases raised in several countries in the world.

  VII.     Assessing the effectiveness of international humanitarian law in current issues.

International human rights and the International Criminal Court are a historical achievement for humanity. The International Criminal Court is the first court established to prosecute individuals who have committed gross violations of international humanitarian law and international crimes that threaten international peace and security. Many have attributed the recurrence of serious violations of international humanitarian law to the weakness of the international criminal system, It lacks the mechanism by which those responsible for these violations can be prosecuted, brought to legal accountability, and punished.

The International Criminal Court has come to crystallize the great international efforts that were made to adopt an international system that is acceptable to the international community, with the aim of overcoming the obstacles to prosecute the perpetrators of crimes that affect the human entity and threaten its safety. To prosecute the perpetrators of violations of international humanitarian law is not sufficient to ensure that the provisions of international humanitarian law are not violated, in the absence of the political will of the parties concerned to carry out this task, so the establishment of the International Criminal Court was a sure attempt to fill a large gap in the system The international legal generally, and in particular international humanitarian law.

The question remains: How effective is international humanitarian law or the International Criminal Court in reducing violations of international humanitarian law, preventing the occurrence of international crimes, and applying justice to all international criminals?, especially given the increasing frequency of wars in many countries of the world, including Syria and Yemen.

International human rights law, international humanitarian law, and the International Criminal Court are a collection of ever-evolving laws and war a constantly changing phenomenon. Therefore, international human rights law and international humanitarian law must constantly amend their provisions to keep pace with the wave of change.

The integrated application of the two laws also provides the necessary elements to start the work of national or international accountability mechanisms for violations committed in the conflict. Accepted United Nations bodies, institutions, and special human rights mechanisms as well as international and regional courts.

Although the United Nations is the body closest to being an implementation mechanism, it is more subject to power structures than to the rule of law, although the ICRC has a positive role, it relies on persuasion as the only way to ensure respect for international humanitarian law, especially since after the 1990s The Security Council interferes with its powers by competing in providing humanitarian aid, and this will cast doubt on the principles on which it is based, despite the fact that the Security Council is considered the most effective organization in implementing the provisions of international humanitarian law as the primary organ, and the executive body of those Meh United Nations, which was entrusted with the task of peace and international security represented by the collective will of the great powers within the organization, but most of its decisions become politicized by the major powers(USA, China, France, Russia)[159].

 Their work is limited to treating the results as far as possible, and without treating the cause and their work is as close as it is to the work of study centers and statistical centers. They also act after it is too late, or do not act and hesitate for any decisive action.

 They cannot enter a food basket in a besieged city in Syria for children dying of starvation without the approval of the criminal regime “Bashar al-Assad” and those behind it who are international criminals who have the right to veto, besides that the balances in the field of international relations and the interests of countries prevent the holding of Russian President “Vladimir Putin And the head of the Syrian regime, Bashar Al-Assad, Hassan Nasrallah, and Qassem Soleimani, and the rest of their gang, to obtain their just punishment for the war crimes they committed, and crimes against humanity against the Syrian people throughout the past years. Who will prosecute these people, the international community, and the United Nations in their weakest times?  as if people live in an international forest(no law).

This situation also applies to the war in Yemen, there are no concrete steps in trying and prosecuting war crimes perpetrators.

But Article 27 of the Charter of the United Nations says that a country that is a party to the conflict cannot vote on the matter when discussing it by the Council, and there appears an important point that can be used to refer the file of these crimes to the criminal court, and forfeiting Russia the right to use the “veto” to thwart Such a decision, especially since most countries today are almost agreed that the Russian forces have become a party to the Syrian conflict and stand on the side of the regime, but the matter requires strong international will, and full agreement among all members of the Council, especially the permanent members[160].

The shocking truth of the two laws of the world is that international law is the law of the powerful and the law of the victors and its provisions are applied against the weak. Among US officials who used more lethal types of these weapons against the Iraqi people, such as napalm and white phosphorous in the battle of Fallujah in 2004 and other depleted uranium weapons that the Iraqis are paying at the moment, just as nuclear weapons were used against Japan in the world, the second war of Before any American official while the German officers, the Japanese were tried in Tokyo and the Nuremberg trials. Nor was any Israeli official punished for the use of white phosphorus, depleted uranium, and other internationally prohibited weapons against Palestinians in the Gaza Strip, as well as the use of these weapons by Russian forces during their war in Chechnya in the 1990s and their war in Syria, where they tried all the most types of new and deadly weapons.

 In Yemen, too, there are Saudi and Emirati forces that use prohibited weapons to bomb civilians, and Iran and its missiles that send them to the Houthi militia, which in turn bombs residential neighborhoods. This indicates that international humanitarian law is at its weakest time. So far, it has not been able to stop these wars or question war crimes perpetrators in these countries so far, there are no even concrete steps in doing that even in the future[161].

And based on the foregoing, we find that the international commitment to prosecute the perpetrators of grave human rights violations in Syria cannot be avoided or neglected to achieve it, but what prevents this so far is the absence of international political will, which, if available, will not be able to perpetrators of those violations with impunity, whatever their authority and political status, especially government officials, such as the president and ministers.

In this formulation, what may constitute a threat to the principle of accountability and legal prosecution are the agreements and political settlements at the expense of the victims, as happened in Yemen by granting the Yemeni President Ali Abdullah Saleh and his assistants amnesty and comprehensive immunity from any prosecution for the crimes they committed targeting the peaceful Yemeni demonstrators in 2011.

Such a pardon constitutes a flagrant violation of the administration of justice, the impartiality and impartiality of the judiciary, accountability for war crimes, compensation for victims and deterrence of perpetrators and government officials in states for war crimes, and it sets a precedent for impunity.

The international crimes committed in Syria and Yemen affect all humanity, but the international community’s inaction in the prosecution of its perpetrators until now has led the Syrian and Yemeni people to lose their confidence in the international community and their despair at the prosecution of those crimes, which has had a negative role in the proliferation of weapons and the escalation of violence more and more, and this Feeling with time will pass on to other peoples, and it will have a negative role by losing also confidence in the entire international system and the international judicial in particular and the principles of international law, and will directly violate the principle of justice and equality in the sovereignty of states and subject to international laws and norms, but with the absence of these crimes Violations of the statute of limitations remain the hope that all these criminals will be held accountable even if it takes time, and the best evidence of this is the trial of the Chilean dictator Pinochet.

The current wave of armed conflict in the Middle East region poses grave challenges to the already stalled international criminal justice system. The nature of these conflicts (in Syria, Yemen and Libya, and the recent wave of conflict in Iraq since 2014) poses a number of obstacles to attempts to put perpetrators of crimes against civilians on the path of justice[162].

The current wars in the Arab world are not traditional armed conflicts. Rather, they fall under the umbrella of “new wars.” In them, the parties involved in the armed conflict diversify and multiply, and limiting them and knowing their composition and form of issuing orders in them becomes a distant matter. This military reality on the ground reinforces the phenomenon of “impunity” in the wars of the contemporary Arab world, because it is difficult to remove immunity from the weapon-carrying parties, some or more of whom are likely to commit crimes that often accompany armed conflicts.

On the other hand, the conflicts in the Arab world provide new support to the owners of the hypothesis of “implementing justice against peace”. This hypothesis means that any attempt to “implement justice” by prosecuting those involved in crimes that occur during armed conflict will, in turn, undermine any potential peace operations. In international criminal investigations, the finger of the finger is often directed at political and military leaders, who are by definition the essential elements needed to achieve peace and stop the violence.

These lines will attempt to review the range of practical obstacles preventing perpetrators of crimes in times of armed conflict from being brought to a fair and fair criminal trial. These obstacles are summarized in two broad addresses: The first is the currently faltering record of the international criminal justice system, especially after widespread criticism of the International Criminal Court that it impedes – intentionally or unintentionally – peace operations in countries experiencing armed conflict or widespread violence. As for the second title, it is the political and military circumstances that govern new armed conflicts in the Arab world, which leads to the spread of the phenomenon of “impunity”[163].

The conflicts of the Arab world erupted at a time when the international criminal justice system suffers from obstacles that some see as threatening his career. It is now 14 years since the International Criminal Court commenced its functions as the first permanent international judicial organ for the investigation and litigation of the most serious crimes in the international system (exclusively four types of crimes: genocide, war crimes, crimes against humanity, the crime of aggression)[164].

Any evaluation attempt to reveal the court’s efforts in these years shows the modest outcome of the court. There are a number of practical flaws in the court’s performance, such as slow litigation procedures and the huge financial budget that the court spends.

The court spent a full decade (from 2002 to 2012), spending nearly $ 800 million (its 2015 annual budget of $ 150 million), and it issued only one ruling (imprisoning Congolese militia leader Thomas Lubanga after being convicted of war crimes during Armed conflict in the Democratic Republic of the Congo).

A more important flaw is the political influence of court decisions on the ground. The Court entered into force after broad international efforts in which 160 countries participated (at the 1998 Rome Conference that adopted the Statute of the Court). The court enjoyed a good reputation at the time, as it was the first criminal judicial institution with legitimacy and broad international support. It is an impartial court, not “politicized” or “imperialist” in nature, as has always been said about the “Nuremberg trials” established by the Allies to try Nazi war criminals after World War II[165].

However, it was barely a decade after the court started its duties, until it was within range of the old criticism itself. African officials, and others, are now accusing accusations of a sample that it is “the court of the white man”, that it is a “selective” judicial institution, and that it is a “western tool” aimed at destroying and obstructing the political process in African countries.

As for the main reasons that limit the effectiveness of international law and its application today, it is that contemporary armed conflicts in the contemporary Middle East (such as their counterparts from “new wars”) differ from traditional armed conflicts in a number of elements, including: different parties to the war, and different war plans The field of conflict, and the different nature of the political economy of war (or war financing) … etc. Each of these elements plays a role in supporting the policy of “impunity” among the parties involved in the commission of crimes against civilians, and also contributes to limiting the effectiveness of the application of international law. And as follows[166]:

First – Multilateralism and denial of responsibility, as the multiplicity of parties involved in the conflict is difficult to count (such as the Syrian conflict, for example, and it contains dozens of combat groups responsible for military decisions targeting civilians). Many of these organizations and armed groups are ambiguous. We do not know, for example, the structure of individuals under the banner of the military organization, nor the rules of organization, nor the form of decision-making in it. This is a context in which “the possibility of denial of responsibility” grows, that is, the ability of the individual combatant and the military decision-maker to deny any possible abuse against civilians. This is one of the central concepts in the trial of individuals before international criminal justice.

Second – the war is spreading geographically and obliterating evidence, as the appalling breadth of the field of military operations (sometimes extending to entire geographical regions) adds an obstacle to any serious attempt to identify individuals involved in the commission of crimes in armed conflict. The organization of the so-called “Islamic State in Iraq and the Levant” (ISIS) has expanded in a few months, and it has controlled more land in Iraq and Syria than Britain, for example. In the conflict in Syria, various armed groups have redistributed demographically by practicing the most violence against opposing identities. Violence is mainly concentrated against civilians, and is a common means of controlling land.

During these military operations, a wide list of war crimes and crimes against humanity occurred, including, but not limited to, crimes of forced displacement, kidnapping and forcing of women into acts such as sexual slavery and ethnic cleansing. But because the reality of the fighting on the ground changes, the nature of the warring parties changes, and with the demographic redistribution of the place over and over again, the evidence is obscured and it is difficult to investigate these crimes to know the individuals involved in these crimes.

Third – external parties and the curtailment of justice, where another central challenge appears that finds itself in a broad title: “the role of external parties” in curtailing justice and promoting the policy of “impunity”. Some researchers have described post-Arab spring conflicts as “proxy wars,” given the central role external parties play in fueling and financing these wars. Accordingly, each party to these military conflicts has an external back, which provides it directly or indirectly, secretly or publicly[167].

Of course, the international powers involved in the conflict will refuse to sacrifice their agents in these wars and bring them to trial. For example, a criminal investigation of crimes accompanying armed conflict (or accompanying large-scale violence) requires referral to the International Criminal Court, often through the Security Council portal[168].

In certain cases, states with a veto will not accept in the Security Council the passage of such a measure, because it represents a clear threat to their allies on the ground (Will Russia, for example, which has a veto power – silence referring Syria to the International Criminal Court?). In addition, an international investigation of violations and violations requires a minimum level of cooperation between external forces and parties involved in the conflict.

Conclusion

International human rights law and international humanitarian law are two sets of constantly evolving laws and war is a constantly changing phenomenon. Therefore, international human rights law and international humanitarian law must constantly amend their provisions to keep pace with the wave of change.

The integrated application of the two laws also provides the necessary elements to start the work of national or international accountability mechanisms for violations committed in the conflict, and both systems provide the necessary mechanisms to ensure that victims are able to exercise their right to a remedy and reparation, and there are actual efforts to ensure protection of the rights of people in situations of armed conflict from Before the United Nations bodies, institutions, and special human rights mechanisms as well as international and regional courts.

Although the United Nations is the body closest to being an implementation mechanism, it is more subject to power structures than to the rule of law, although the ICRC has a positive role, but it relies on persuasion as the only way to ensure respect for international humanitarian law, especially since after the 1990s The Security Council interferes with its powers by competing in providing humanitarian aid, and this will cast doubt on the principles on which it is based, despite the fact that the Security Council is considered the most effective organization in implementing the provisions of international humanitarian law as the primary organ, and the executive body of the United Nations organization that was assigned He has the task of maintaining international peace and security represented by the collective will of the major powers within the organization, but most of his decisions have become politicized by the major powers.

Their work is limited to treating the results as far as possible, and without treating the cause and their work is as close as it is to the work of study centers and statistical centers. They also act after it is too late, or do not act and hesitate for any decisive action.

Finally, in the wars of the Middle East, the parties to the conflict do not have the will, ability, or both to conduct such an investigation, that is, achieving justice and enabling international and humanitarian law to take the necessary measures to prosecute and prosecute war criminals. The lackluster performance of the independent international investigation commissions on the Syrian Arab Republic and the Republic of Yemen, established by the United Nations Human Rights Council since the beginning of 2011, is evidence of the negative role the parties play in investigating crimes that occur in times of armed conflict. Most of the Commission’s reports so far only monitor the list of violations and violations that occurred against civilians in Syria and Yemen, and sometimes blame some parties to the conflict, but they do not go into the details of these crimes and their perpetrators, which in turn reduces the role of international humanitarian law and does not provide an opportunity to interrogate the true perpetrators of war crimes. The massacres witnessed by the civil war in Syria and Yemen revealed the shortcomings of international humanitarian law in dealing with crimes against humanity and war crimes, especially those arising from internal conflicts in which civilians are sometimes the first to be targeted, so it is necessary to consider again how to implement international law Humanitarian and how to compel states to abide its rules, Most important of all, the development and introduction of new texts appropriate to the current situation of the nature of armed conflicts, especially internal armed conflicts.


[1] Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

[2] See, for example, Human Rights Watch, “No One Left: Field Executions by Syrian Forces in al-Baida and Banias,” September 2013: https://www.hrw.org/reports/2013/09/13

[3] The International Criminal Tribunal for the former Yugoslavia (ICTY) was a United Nations court of law that dealt with war crimes that took place during the conflicts in the Balkans in the 1990s. During its mandate, which lasted from 1993 – 2017. United nations official website, International Criminal Tribunal for the former Yugoslavia, 05/11/2019. https://www.icty.org/

[4] Del Ponte knows very well how to prosecute war criminals as a former Prosecutor of the International Criminal Tribunal for Yugoslavia, which was established by the United Nations to try war crimes in the former Yugoslavia, the woman who brought former Serbian President Slobodan Milosevic to trial.

[5] Imogen Foulkes, Are the “war criminals in Syria” getting away with it?, BBC – Geneva, July 25, 2017. https://www.bbc.com/arabic/middleeast-40715358.

[6] Carla del Ponte on Syria: ‘Security Council is guilty’, Aljazeera, 03 Nov 2018. https://www.aljazeera.com/programmes/upfront/2018/11/carla-del-ponte-syria-security-council-guilty-181103071817833.html

[7] International organizations prepare a file for submission to the Criminal Court, Al-Sharq newspaper, Monday 28-08-2017 at 2:05 am.

[8] Report, mercenary crimes in Yemen put the UAE accountable to the International Criminal, Aljazeera, 29/11/2017. https://www.aljazeera.net/news/reportsandinterviews/2017/11/29

[9] International experts report: Everyone is guilty in Yemen, TRT Arabi, Ahmad Al-Hassani 16 September 2019. https://www.trtarabi.com/issues-International-experts-all-guilty-in-Yemen

[10] Abu al-Khair, Ahmed Attia. Protection of the Civilian Population and Civilian Objects during Armed Conflicts, Dar Al-Nahda Al-Arabiya, Cairo, 1998.

[11] Dr. Said Salem El-Gewaily Professor of Public International Law and Board Member of the Egyptian Society of International Law.

[12] The Hague law: law mainly dealing with rules of conduct of hostilities and establishing limitations or prohibitions of specific means and methods of warfare. The term derives its name from the Hague Conventions of 1899 and 1907.

[13] Geneva Act: The law that seeks to protect victims of armed conflict. The Geneva Conventions of 1949 and the two Additional Protocols of 1977 are the main sources.

[14] The law of war: refers to the component of international law that regulates the conditions for war (jus ad bellum) and the conduct of warring parties (jus in bello).

[15] Abu al-Khair, Ahmed Attia. Protection of the Civilian Population and Civilian Objects during Armed Conflicts, Unprinted, Dar Al-Nahda Al-Arabiya, Cairo, 1998.

[16] Dr. Montaser Said Hamouda, Professor of International Law and International Relations, Egypt. 

[17] Abu Wafa, Ahmed. General Theory of International Humanitarian Law in International Law and in Islamic Law, Third Edition, Dar Al-Nahda Al-Arabiya, Cairo, 2013.

[18] The four Geneva Conventions of 1949

[19] International Committee of the Red Cross

[20] Geneva Convention of 1906 for the Amelioration of the Condition of the Wounded and Sick in Military Field.

[21] Jean Simon Pictet (2 September 1914 – 30 March 2002) was a Swiss citizen, jurist, legal practitioner working in international humanitarian law. For more information look http://www.concourspictet.org/ccjpen.html

[22] Bin sakir, Abdul Momen. Obstacles to the dissemination and promotion of the principles of international humanitarian law at the international and internal levels of States, Human Rights Generation Magazine, No. 3 + 4, 2014.

[23] Bin Omran, Insaf. The role of the International Committee of the Red Cross in the implementation of the rules of international humanitarian law, unpublished Master Thesis, University of Hajj El Khadr – Batna, Algeria, 2010.

[24] International Committee of the Red Cross definition of IHL,31 December 2014

https://www.icrc.org/en/document/what-international-humanitarian-law, accessed on 24 Nov 2019.

[25] The Sempach era was held in1393 between the Swiss provinces contains conditions that impose respect for the wounded and women. In this sense, it is sometimes called the ‘women’s instrument’ because it provides for keeping women out of the war. Look https://www.britannica.com/place/Switzerland/The-Swiss-Confederation-during-the-Late-Middle-Ages, Visited on 24 Nov 2019.

[26] Jean Pictet, International Humanitarian Law (Evolution and Principles), Translated by the Henry Dunant Institute, Geneva, first edition 1984, p. 17.

[27] Amer Zemali, Introduction to International Humanitarian Law, Arab Institute for Human Rights, Tunis, p. 7.

[28] Sharif Atalam, Lectures on International Humanitarian Law, Dar Al-Mustaqbal Al-Arabi, Cairo, 2001, p. 20.

[29] This agreement was concluded on October 18, 1907, and was then signed by fifteen states.

[30] For the detailed provisions of the four Geneva Conventions of 1949, the Geneva Conventions of 12 August 1949, see ICRC publications, Geneva.

[31] Prof.Dr. Mohammed Fahad al-Shalaldeh, International Humanitarian Law, 2010, p. 27

[32] Abdel Ghani Abdel Hamid Mahmoud, Protection of Victims of Armed Conflict in International Humanitarian Law and Islamic Law, International Committee of the Red Cross, Cairo, 2000.

[33] The International Justice Resource Center, 22/11/2019. https://ijrcenter.org/international-humanitarian-law/

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[34] See IPU publication, “Respecting and Ensuring Respect for International Humanitarian Law”, p. 13.

[35] Statutes of the International Red Cross and Red Crescent Movement, art. 5, para. 2(g).

[36] International Committee of the Red Cross (ICRC) Opinion Paper, p 1, March 2008.

[37] “It is irrelevant to the validity of international humanitarian law whether the States and Governments involved in the conflict recognize each other as States”: Joint Services Regulations (ZDv) 15/2, in: D

[38] J. Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32.

[39] Additional Protocol I, art. 1, para. 4: “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”.

[40] International Committee of the Red Cross (ICRC) Opinion Paper, p 3, March 2008.

[41] Additional Protocol II, art. 1, Para. 1.

[42] ICRC Opinion paper, p 4 , March 2008 .

[43] Additional Protocol II, art. 1, para. 1.

[44] Statute of the ICC, art. 8 para. 2 (f): “It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”. Look ICRC Opinion paper, March 2008.

[45] A Training Manual on International Humanitarian Law published by Al-Haq, 2006 edition.

[46] Official website of  UN Office on Genocide Prevention and the Responsibility to Protect, War Crimes

Background, https://www.un.org/en/genocideprevention/war-crimes.shtml. Accessed on 26 Nov 2019.

[47] What Are War Crimes? – Definition, Types & Examples, Joseph Jones, study.com, https://study.com/academy/lesson/what-are-war-crimes-definition-types-examples.html. Accessed on 26 Nov 2019.

[48] War crimes, BBC, http://www.bbc.co.uk/ethics/war/overview/crimes_1.shtml. Visited on 26 Nov 2019.

[49] Rome Statute of the International Criminal Court, Article 8 , War Crimes.

[50] UN Office on Genocide Prevention and the Responsibility to Protect, War Crimes

Background,  https://www.un.org/en/genocideprevention/war-crimes.shtml. Accessed on 26 Nov 2019.

[51] UN Office on Genocide Prevention and the Responsibility to Protect, War Crimes

Background, https://www.un.org/en/genocideprevention/war-crimes.shtml. Accessed on 26 Nov 2019.

[52] International human rights laws remain in force during armed conflict, although specific provisions of international humanitarian law may apply to them (the principle of private law). Human rights laws may be restricted by the so-called restrictive provisions imposed under the state of emergency. But there are rights that cannot be restricted, which, in addition to the right to life, are the right not to be subjected to torture or other ill-treatment, the right not to be charged retroactively, as well as the right to freedom of thought, conscience and religious belief. International humanitarian law is increasingly interpreted as consistent with the requirements of human rights law. Hence, the basic guarantees of all persons detained under Article 3 of the 1949 Geneva Conventions and customary international humanitarian law are parallel to the provisions of international human rights law. Look https://www.hrw.org/legacy/arabic/reports/2005/darfur1205/8.htm

[53] One of the reference studies in customary international humanitarian law is a two-volume study published in 2005 by the International Committee of the Red Cross, entitled “Customary international humanitarian law”. Among the important references on this law are the first and second additional protocols (1977) of the Geneva Conventions of 1949 (called the first protocol and the second protocol).

[54] Theodore Nero, “Human Rights and Humanitarian Standards as Customary Law”, 1989, pp. 62-70 and 74-78 (it discusses the customary legal nature of some aspects of Protocol I).

[55] World First Aid Day. The Red Cross’s roots date to 1859, when businessman Henry Dunant witnessed the bloody aftermath of the Battle of Solferino in Italy, in which there was little medical support for injured soldiers. Look Red Cross history, 16 Mar 2018, https://www.history.com/topics/19th-century/red-cross accessed on 25 Nov 2019.

[56] Webster A. Hague Conventions (1899, 1907). The Encyclopedia of War. P1, 2011 Nov 9.

[57] Matheson, Michael J. “The United States position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Conventions.” In The Development and Principles of International Humanitarian Law, pp. 233-245. Routledge, 2017.

[58] Parks, W. Hays. “The 1977 Protocols to the Geneva Convention of 1949.” Naval War College Review (1978): 17-27.

[59] For more detailed formations about it, look the official website of Rome Statute Of The International Criminal Court https://legal.un.org/icc/statute/99_corr/cstatute.htm.

[60] Treaties, States Parties and Commentaries, ICRC, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/615, accessed on 24 Nov 2019.

[61]   Treaties, States Parties and Commentaries, ICRC, https://www.icrc.org/en/document/what-treaties-make-ihl-what-customary-ihl, accessed on 24 Nov 2019.

[62] What treaties make up International Humanitarian Law?, ICRC blog, 7 August 2017, https://blogs.icrc.org/ilot/2017/08/07/treaties-make-international-humanitarian-law/, accessed on 26 Nov 2019.

[63] The Practical Guide to Humanitarian Law, Albert Camus. https://guide-humanitarian-law.org/content/article/3/geneva-conventions-of-1949-and-additional-protocols-i-and-ii-of-1977/. Accessed on 26 Nov 2019.

[64] Leslie C. Green, “International Regulation of Armed Conflict,” in M. Cherif Bassiouni, ed., International Criminal Law, 2nd edn., Ardsley, NY: Transnational Publishers, 2003, vol.I, pp. 355-91.

[65] International Crimes Database, War crimes , http://www.internationalcrimesdatabase.org/Crimes/WarCrimes, accessed on 26 Nov 2019.

[66] The Many Sources Governing Warfare, The New York Times, JAN. 16, 2009 https://www.nytimes.com/2009/01/17/world/middleeast/17lawbox.html. Accessed on 26 Nov 2019.

[67] International Crimes Database, War crimes , http://www.internationalcrimesdatabase.org/Crimes/WarCrimes . Accessed on 26 Nov 2019.

[68] What is a War crime? BBC News Story, Tarik Kafala, 21 October, 2009, http://www.internationalcrimesdatabase.org/Crimes/WarCrimes. Accessed on 26 Nov 2019.

[69] International Humanitarian Law and the Challenges of Contemporary Armed Conflicts – Recommitting To Protection In Armed Conflict On The 70th Anniversary Of The Geneva Conventions- ref. 4427-ebook, https://shop.icrc.org/international-humanitarian-law-and-the-challenges-of-contemporary-armed-conflicts-recommitting-to-protection-in-armed-conflict-on-the-70th-anniversary-of-the-geneva-conventions-3122.html. Visited on 27 Nov 2019.

[70]ICRC Report on ‘IHL and the Challenges of Contemporary Armed Conflicts’, 22 NOVEMBER 2019, https://www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts. accessed on 27 Nov 2019.

[71] Sharif Atalm: “Lectures on International Humanitarian Law”, published by the International Committee of the Red Cross, Cairo, sixth edition, year 2006.

[72]  P fanner, Tony. Various mechanisms and approaches for implementing international humanitarian law, protection and assistance to war victims, Selections from the International Review of the Red Cross, Vol. 91, No. 874, 2009.

[73] John Mary Henckaerts, Louise Dosso Al-Dabek. Customary International Humanitarian Law, Volume 1, International Committee of the Red Cross, 2007.

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[76] Article Six of the First Additional Protocol of 1977.

[77] Persuading States to accept humanitarian treaties, by Hans-Peter Gasser, ICRC, https://www.icrc.org/en/doc/resources/documents/misc/57jnv8.html, 09-12-1997.accessed on 27 Nov 2019.

[78] Habib, Laith Al-Din and Jadee ‘, Arkan. The Protecting Power System in International Humanitarian Law, Anbar University Journal for Humanities, No. 1, 2010.

[79] Article (89) of Additional Protocol I 1977.

[80] Article (89) of Additional Protocol I. 1977.

[81] Article 2 of Additional Protocol I 1977

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[83] Dr. Thuraya Al-Harif: “Mechanisms for Respecting International Humanitarian Law or Mechanisms for Implementation,” Publications of the Legal and Judicial Information Dissemination Association, Series of Studies and Research, No. 03, December 2007.

[84] Nürnberg trials, Nürnberg also spelled Nuremberg, series of trials held in Nürnberg, Germany, in 1945–46, in which former Nazi leaders were indicted and tried as war criminals by the International Military Tribunal. Look Nürnberg trials, Encyclopædia Britannica, Oct 11, 2019, https://www.britannica.com/topic/crime-against-humanity. Accessed on 1 Dec 2019.

[85] Introduction to the study of international humanitarian law, Professor Mahmoud Sharif Bassiouny  Cairo, p. 23, 1999.

[86] Temporary International Criminal Courts, Arab Democratic Center, 16 June 2019, https://democraticac.de/?p=61092. Accessed on 1 Dec 2019

[87] International Criminal Court, Ronda, Amal Yazji, the Arab Magazine, Volume: Volume 8, pp. 46, 2001.

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[89] Dr. Mahmoud Sharif Bassiouni, The International Court, p. 5, third edition 2002.

[90] Dr. Abdul Wahid Muhammad al-Ghar: International Crimes and the Power to Punish them ”p. 69, Arab Renaissance House, Cairo 1996.

[91] International War Crime Trials: Different Prospects and Claims to Include Other Accused, Al-Jazeera, 15/1/2019. https://www.aljazeera.net/news/politics/2019/1/15/InternationalCriminalCourt-Warcrimes. Accessed on Dec 2 2019.

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[112] ICC Statute, Article 25 (cited in Vol. II, Ch. 43, § 20).

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[116] First Geneva Convention, Article 49; Second Geneva Convention, Article 50; Third Geneva Convention, Article 129; Fourth Geneva Convention, Article 146.

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[118] Additional Protocol I, Article 88), Second Protocol to the Hague Convention, Article 19.

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[126] See Mwatana for Human Rights, blog titled “Al Shaqab: Forgotten Villages that Only Death Remembers”, December 16, 2018, for more incidents of indiscriminate ground bombing, at the following link: https://mwatana.org/a-forgotten-village/ .accessed on 8 Feb 2020.

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[129] For a review of some of the suffering of this city, see Mwatana for Human Rights, “The siege is being prepared for the last life in Taiz”, October 2015, at the link: https://mwatana.org/taiz-siege /, see also: Mwatana for Human Rights, “Taiz: The Continuing Stifling Siege Deprives Civilians of Medical Service Remains” November 2015, https://mwatana.org/taiz-unremitting-suffocating/ . accessed on 8 Feb 2020.

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