Does NATO comply with the IHL?

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Contrary to the common belief NATO is not a separate body, independent from its members but it is organized as a tool or a set of tools that can be used by the Allies when and if they need to. NATO can take actions only if and to the extent that has been specified and approved by the North Atlantic Council, NATO’s supreme governing body, composed of ambassadorial representatives from all twenty-nine Allied states.

All Allies have ratified the 1949 Geneva and earlier Hague Conventions and are in consequence subject to these conventional international obligations. However, the Alliance is composed of sovereign states and the overall of their international legal obligations and the national legal frameworks through which those states implement their IHL obligations may vary significantly. Even if all the member-states have formally identical international obligations, in the concrete context they may be subject to different legal obligations and adjudicatory mechanisms that will affect their understanding and application of IHL. For instance, twenty-six out of twenty-nine Allies are subjects of the European Court of Human Rights, whose jurisprudence increasingly overlapping with areas that are considered to be the realm of IHL as lex specialis (specific applying rule), and twenty-seven ratified the Rome Statute creating the International Criminal Court. That is why NATO is planning and conducting every operation under operation plans (OPLANs) and rules of engagement (ROE) that are consistent with the legal framework of each Ally and participating partner.

One of the most known issue relating to the application of IHL during NATO-led operation was the treatment of detained persons by the International Security Assistance Force (ISAF) in Afghanistan. Each detainee was captured by a unit of a specific nationality. Therefore, the responsibility for his or her treatment belonged to the state the unit is from and is determined by that state’s own understanding of its IHL obligations toward prisoners of war. The ISAF commander has no authority to dictate a common policy on detentions, and the Allies have not considered it necessary to agree on one.

A second issue about compliance with IHL by NATO is about designation of Libyan targets during Operation Unified Protector (OUP) in 2011. By contrast with the detention situation, identification of targets and planning for striking them was conducted by multinational personnel at the NATO operational headquarters, and orders to conduct those strikes were issued by the NATO operational commander on the basis of general criteria agreed by all the Allies. The strikes themselves, however, were carried out by units under national command within the overall NATO operational context.

These two examples highlight one of the most difficult questions about application of IHL in NATO operations: the attribution of responsibility in case of violation. Like the UN, the EU, the African Union and others, NATO conducts its military operations through volunteered contingents of national military forces. In this context the question may rise of whether legal responsibility for an alleged violation of IHL falls to the Organization or to the involved state in a given incident.

What differentiates NATO from other organizations conduction multinational military operations, is that every NATO’s major decision is taken by the North Atlantic Council on the basis of a unanimous consensus. Therefore, the responsibility of outcome lies on each member-state.

What future?

In December 2015, NATO assisted for the first time the 32nd International Conference of the Red Cross and Red Crescent, as an observer. The Organization formally pledged to continue a substantive dialogue with the International Committee of the Red Cross (ICRC) to identify areas where training and education provided by NATO on international humanitarian law may be further enhanced.

The pledge demonstrates the Alliance’s overarching support for the principles of international humanitarian law and its commitment to engage with the international community to promote these principles in practice. NATO is committed to including measures to protect civilians affected by armed conflict in the Alliance’s military doctrine, education, training, planning, exercises and conduct of operations.  

Sources :

-https://www.nato.int/cps/en/natohq/news_125839.htm

-http://natoassociation.ca/victory-by-any-means-part-1-rules-of-war-humanitarian-law/

-https://www.nato.int/cps/en/natohq/news_169754.htm

-https://time.com/5741250/nato-summit-2019/

-https://www.ap.org/live-and-location-services/events/annual-nato-meeting

-A NATO perspective on applicability and application of IHL to multinational forces, by Peter M. Olson

-Advisory service of International Committee of Red Cross

-A brief overview of legal interoperability challenges for NATO arising from the interrelationship between IHL and IHRL in light of the European Convention on Human Rights, by Colonel Kirby Abbott

-The ICTY Prosecutor and the Review of NATO Bombing campaign against the Federal Republic of Yugoslavia, by Paolo Benvenuti

-How are Multinational NATO Operations Responsible for International Humanitarian Law Violations? By Nachama Rosen

-The legality of NATO bombing in Libya, by Geir Ulfstein and Hege Føsund Christiansen

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