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The Domestic Implementation of International Humanitarian Law a Manual THE DOMESTIC IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW A MANUAL ICRC national implementation database http://www.icrc.org/ihl-nat Treaty database and States Party http://www.icrc.org/ihl THE DOMESTIC IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW A MANUAL Geneva, Mont Blanc bridge. Flags on the occasion of the 30th International Conference of the Red Cross and Red Crescent. © Jorge Perez/Federation CONTENTS Contents FOREWORD .............................................................................................................. 5 AIM OF THIS MANUAL .................................................................................................... 7 ACKNOWLEDGEMENTS ................................................................................................... 9 1 CHAPTER ONE: INTRODUCTION – THE BASICS OF IHL 11 2 CHAPTER TWO: IHL TREATIES AND NATIONAL IMPLEMENTATION 17 3 CHAPTER THREE: IHL AND DOMESTIC CRIMINAL LAW 27 4 CHAPTER FOUR: THE GENEVA CONVENTIONS AND THEIR ADDITIONAL PROTOCOLS 43 5 CHAPTER FIVE: TREATIES CONCERNING PEOPLE AND PROPERTY IN ARMED CONFLICT 63 6 CHAPTER SIX: WEAPONS TREATIES 79 7 CHAPTER SEVEN: THE INTERNATIONAL CRIMINAL COURT 119 8 CHAPTER EIGHT: SUPPORT FOR IHL IMPLEMENTATION 129 ANNEXES RELEVANT SITES BIBLIOGRAPHY 3 FOREWORD Foreword The people most severely affected by armed conflict are This Manual on the Implementation of International increasingly those who are not or who are no longer taking Humanitarian Law, prepared by the ICRC’s Advisory Service, part in the fighting. International humanitarian law has been is based on close to 14 years of experience in the field developed as a set of rules that aims at minimizing the effects of implementation. It covers the concrete steps required of armed conflict on these groups. Its range of conventions for the implementation of the Geneva Conventions and their and protocols embraces numerous subjects such as the Additional Protocols, the various weapons treaties, the Rome protection of the wounded and sick, civilians, prisoners of Statute of the International Criminal Court and other relevant war and certain property, as well as the restriction or treaties. It offers ratification kits, model laws and fact sheets prohibition of certain means and methods of warfare. as tools to ensure that the law and practice of States are in full conformity with the obligations that flow from humanitarian Some international humanitarian law treaties have been law treaties. widely ratified. Indeed, the Geneva Conventions have now achieved universal acceptance and their Additional Protocols I hope that this manual will be useful to governments in their of 1977 are among the most widely accepted legal instruments. work in ensuring the full implementation of international The universal ratification of some other humanitarian law humanitarian law, as, without doubt, increased ratification treaties is, however, still a long way off. and effective implementation are key to greater protection of victims of armed conflict. Adherence to these international conventions is only the first step. Respecting international humanitarian law requires that a number of concrete measures be taken at the domestic level, even in peacetime, to create a legal framework that will ensure that national authorities, international organizations, the armed forces and other bearers of weapons understand Dr Jakob Kellenberger and respect the rules, that the relevant practical measures are President of the International Committee undertaken and that violations of humanitarian law are of the Red Cross prevented, and punished when they do occur. Such measures are essential to ensure that the law works when needed. To do this effectively requires coordination between various government departments, the military and civil society. The ICRC has always had a recognized role in the development and promotion of international humanitarian law and, aware of the challenges attached to full compliance, it created an Advisory Service in 1996 to strengthen its capacity to provide services to States in this regard. 5 AIM OF THIS MANUAL Aim of this manual The ICRC’s Advisory Service was established within the ICRC This manual does not set out to provide definitive legal Legal Division in 1996. Since then, the number of States that interpretations of the provisions of the instruments that are parties to instruments of international humanitarian it describes. It should be regarded as a practical tool that law (IHL) has increased significantly. Much work remains to the ICRC’s Advisory Service makes available to all those be done by States, however, to ensure that the obligations set involved in the implementation of IHL. It reflects the out in these instruments are adequately reflected in domestic expertise accumulated during its close to 14 years of law and applied in practice. experience in implementing IHL. Combined with the ICRC’s web-accessible databases on national implementation This manual has been drafted mainly for policy-makers and measures (http://www.icrc.org/ihl-nat), which provide legislators, and for those assisting them in their efforts to examples of legislation and jurisprudence from countries comply with their obligation to ensure respect for IHL. It aims around the world, and on IHL treaties and documents to assist them in the ratification of relevant instruments and (http://www.icrc.org/ihl), which show the current state of to offer guidelines in the implementation process, thus signatures and ratifications, this manual should provide a enabling them to bring their laws and practice in line with the number of answers. requirements of IHL. The ICRC’s Advisory Service on IHL stands ready to assist The manual emphasizes general principles and obligations States in their efforts to further respect for IHL obligations. as much as possible; it does so in order to reach beyond It may be contacted through its network of regional legal differences in legal traditions and in levels of institutional advisers or in Geneva at the address below: development. It follows a treaty-based approach: for instance, one important chapter (Chapter Four) is on the core instruments of IHL, i.e. the universally ratified Geneva Conventions of Advisory Service on IHL 1949 and their Additional Protocols of 1977 and 2005. Other International Committee of the Red Cross chapters deal with complementary instruments concerning 19, avenue de la Paix the protection of specific persons and property during armed CH – 1202 Genève conflict (Chapter Five), weapons (Chapter Six) and the Tel.: +41 22 734 6001 International Criminal Court (Chapter Seven). All the chapters Fax: +41 22 733 2057 provide succinct overviews of the contents of treaties; they do E-mail: [email protected] not discuss a treaty’s every provision in detail. Because the manual is for use primarily by legislative drafters or those assisting them, it focuses on those provisions that require action in the form of legislative or regulatory measures. General information on IHL and its implementation is provided in the introductory chapters (Chapters One to Three), which also discuss the links between IHL and criminal law at the domestic level. The manual offers some practical tools: an extensive bibliography – with titles in English, French and Spanish – as well as annexes containing model laws and guidelines developed by the ICRC and other specialized organizations. 7 ACKNOWLEDGEMENTS Acknowledgements The ICRC Advisory Service is grateful to all those persons and organizations that have contributed to the drafting of this manual, which is the result of intensive teamwork. It would particularly like to thank those organizations that have permitted the reproduction of some of their documents concerning the implementation of international humanitarian law. Responsibility for the manual, however, rests solely with the ICRC. 9 1 INTRODUCTION – THE BASICS OF IHL THE DOMESTIC IMPLEMENTATION OF IHL THE DOMESTIC IMPLEMENTATION OF IHL Contents CHAPTER ONE: INTRODUCTION – THE BASICS OF IHL What is IHL? ..........................................................................................................................13 When does IHL apply? ...............................................................................................................14 What does IHL cover? ................................................................................................................15 What is protected and from what? ..............................................................................................15 What restrictions are there on the means and methods of warfare? ..........................................................15 What is the difference between IHL and human rights law? .......................................................................16 Are IHL and IHRL applicable in the same situations? ..........................................................................16 Who is bound by IHL and human rights law? ..................................................................................16 12 1: INTRODUCTION – THE BASICS OF IHL What is IHL? International humanitarian law (IHL) is a set of rules which Other IHL treaties complement these fundamental seek for humanitarian reasons to limit the effects of armed instruments. Some prohibit or restrict the use of means and conflict. IHL protects persons who are not or who are no methods of warfare and protect certain categories of people longer participating in hostilities and it
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