General Jean-René Bachelet (2nd Son) was General Inspector of the Armed Forces of the French Republic. In 1995 he commanded the Sarajevo sector in the former Yugoslavia for UNPROFOR, during the paroxysm of the siege until its lifting. Between 1999 and 2004 he led a study to draw up an ethical and behaviour framework for the army and initiated an ambitious reform of the initial training of officers at Saint Cyr, the foremost French military academy. He gave the following opening address at the Interregional Meeting on the Role of Sanctions in Ensuring Greater Respect for International Humanitarian Law, held in Geneva on 15–17 November 2007.

There are several aspects to reviewing the role of punishment in ensuring greater respect for international humanitarian law. First, there is the question of improving compliance with the law, second, the focus on the punishment itself and, third, the characteristics of the perpetrators. The situation of armed groups is dealt with separately. The article also examines transitional justice as an accompanying measure and the problem of how to take care of the victims. Finally, suggestions are presented which could help the parties concerned in the establishment of a system of sanctions capable of having a lasting influence on the conduct of weapon bearers so as to obtain greater respect for international humanitarian law.

For more than 30 years the codification of state responsibility has been the main task of the International Law Commission, which has placed greater emphasis on financial reparations than on criminal sanctions. Since the 1990s, however, the responsibility of individuals for gross violations of humanitarian law has been one of the main topics in international law. This new approach implies discrepancies between domestic practice and international case law in terms of the nature and scale of sanctions, the role of victims and also the accountability of non-state entities, including private companies and international organizations.

In this contribution, respect for international humanitarian law among combatants is considered from a social psychological perspective. According to this perspective, the social identities derived by individuals from their membership of social groups provide norms and values used by the individual to interpret events, form opinions and decide upon a course of action. We argue that group identities are particularly salient in combat situations, and that they have a profound influence on combatants' decisions to respect or violate international humanitarian law.

This article discusses sanctions for and the prevention of mass violence. But rather than take a classic approach centred on statutory players such as soldiers, officers or political leaders, all of them acting within a legal chain of command, I focus on non-state perpetrators. My reflections are based on case studies of four former Serbian militiamen who took part in mass violence in the former Yugoslavia. I argue that it is of the utmost importance to consider the typical grass-roots relationship between these local players and their own community, so as to maximize the effect of sanctions and perhaps prevent further offences by potential future perpetrators.

This paper raises two main questions. The first concerns the current idea that punishment – conceived as the loss of liberty – has an effect in preventing unlawful behaviour. It can in fact be shown that, in general, sanctions have a poor individual preventive effect. As to general prevention, punishment may be expected to have a deterrent effect when the unlawful behaviour is the result of a rational decision, that is, a decision based on a cost–benefit analysis. However, a wide variety of factors, from group support to situational and systemic factors, may very well counteract the threatening effect of the sanction. The second question concerns the feasibility of non-stigmatizing ways to cope with crime. The few examples borrowed from legal anthropology seem to indicate that viable alternatives exist. But the transfer of a non-Western, indigenous problem-solving process to culturally different contexts is problematic and should be carried out with extreme caution.

Under international humanitarian law commanders have been entrusted with the task of ensuring respect for that body of law by their subordinates. This responsibility includes not only the training in IHL of those under their command, but also the taking of necessary measures to prevent or punish subordinates committing violations of IHL. Failure by a commander to do so will give rise to criminal liability, often termed superior responsibility. The following article reviews some of the issues arising from the application and development of this form of responsibility, from both a practical and a legal perspective.

The impact of disciplinary military sanctions on respect for international humanitarian law depends on the extent to which the principles governing that law have been integrated into the disciplinary rules of the armed forces and the range of responsibility of the commanding officer giving an order which breaches international humanitarian law or which does not ensure respect for it. Whereas the armed forces rely on a strong principle of obedience, respect for international humanitarian law depends essentially on the superior officer whose responsibility is subject to sanctions imposed by international criminal judges within a judicial system which aims to make sanctions an effective means of ensuring respect for international humanitarian law.

While it is widely accepted that punishing the perpetrators of violations of international humanitarian law is an important instrument in improving compliance with the law, little research has been done into the obligations on armed groups to impose sanctions and their possibilities for doing so. This article discusses characteristics of armed groups that influence their willingness and ability to comply with international humanitarian law and to punish those of their members who commit violations. It takes a holistic approach to these sanctions, and analyses the different methods of punishing members of armed groups, including disciplinary sanctions, penal sanctions imposed by the state and penal sanctions imposed by the group itself.

War crimes are among the most serious crimes; that is why international courts and tribunals have jurisdiction to prosecute and punish them. However, serious though they are, it is not legitimate to punish them in such a way as to exceed the bounds of respect for human rights. The author considers that, when the perpetrators of war crimes are prosecuted and punished, criteria inherent to the rule of law like those applied by the European Court of Human Rights (such as legality and proportionality) must be met.

This article seeks to explore the reasons why sanctions for international humanitarian law (IHL) violations are so difficult to put into effect. Beyond the lack of willingness of states to do so for political reasons, some more technical aspects should be emphasized. The implementation of sanctions is too often seen solely through the prism of international law, without enough attention being paid to the complexity and diversity of municipal legal systems. The author puts forward the idea that efficiency starts with a clear sharing of competencies. Three main issues are discussed: first, the influence of the sharing of competencies within the state (between the judiciary, the executive and the legislature) on the implementation of sanctions; second, the broad interpretation of their powers by regional or international bodies in charge of monitoring and reviewing human rights protection; and, third, the creation of new or specific bodies in charge of dealing with and if necessary punishing gross violations of humanitarian law.

Transitional justice aims at once to restore victims' dignity, build confidence between warring groups and foster the institutional changes needed to bring about a new relationship within the population, in order to usher in the rule of law without endorsing practices that amount to total or partial impunity. In situations of post-conflict, however, governments are also faced with other pressing needs, such as disarming fighting forces, improving civilian security, compensating victims and relaunching the economy of a society in ruins. This article explores the relationship between these needs and transitional justice mechanisms, and critically evaluates their influence on the forms justice has taken in post-conflict situations.

Using the case of Morocco's Equity and Reconciliation Commission as an example, this article analyses how transitional justice is by definition the place where ethics and reasons of state, the will to see justice done and the balance of power meet. Therein lie both the strength and the ambiguity of transitional justice. The sanction-free approach adopted in the specific case of Morocco limited the Commission's effectiveness by not establishing the truth about past human rights violations or creating an environment conducive to greater democratic reform.

The participation of victims in criminal proceedings is generally a rather new phenomenon. While there is a certain tradition of victim participation as “partie civile” in the criminal proceedings of some national jurisdictions, it is a novelty in international criminal trials. The drafters of the International Criminal Court (ICC) Statute chose to design a rather broad victim participation scheme. Although it is hailed as an important and effective instrument for giving victims of gross violations of human rights and international humanitarian law a voice, the procedural and substantive details are far from being settled. Some of the most significant issues are discussed in this article, including the question whether and how victim participation may influence sentencing and punishment.

Despite the growing attention being paid to “victims” in the framework of criminal proceedings, this attention does not seem to be meeting their needs under either national criminal justice systems or the international regime. In the latter, the difficulties encountered by the victims are aggravated by factors specifically arising from the prosecution and punishment of mass crimes at international level. This has prompted the authors to point out that the prime purpose of criminal law is to convict or acquit the accused, and to suggest that the task of attending to the victims should perhaps be left to other entities.