Cook Islands Red Cross Society
Promoting respect for international humanitarian law A handbook for members of parliament in the Cook Islands Promoting respect for international humanitarian law ‘As geographically isolated from war as we in the Pacific may seem to be to many, the tragic consequences of war are very real for all of us. With that realisation comes a responsibility shared by the Cook Islands and all other members of the international community. That responsibility is to build a strong respect for the Geneva Conventions and other IHL instruments.’ The Hon. Henry Puna (2011), Prime Minister of the Cook Islands. This handbook was prepared for the Cook Islands Red Cross Society in a joint mission between the Cook Islands Red Cross Society, Australian Red Cross and representatives of the International Committee of the Red Cross, Regional Delegation in the Pacific. The handbook drew significantly on Promoting respect for international humanitarian law: A handbook for parliamentarians, which was prepared and published by Australian Red Cross in 2008, as well as Promoting respect for international law: A handbook for parliamentarians, prepared and published in 1999 by the International Committee of the Red Cross and the Inter-Parliamentary Union. This Cook Islands Red Cross Society Handbook is also written for the general public and aims to stimulate interest and discussion about an area of the law few Cook Islanders may have encountered.
Cover photo: Royal New Zealand Air Force 40 Sqn C130 Hercules delivers aid to Aitutaki Island following Cyclone Pat in February 2010. Photo: Royal New Zealand Air Force Government and CIRCS representatives at the CIRCS offices. Photo: CIRCS Cook Islands Red Cross Society is part of the International Red Cross and Red Crescent Movement (the Movement). The Movement has millions of committed members and volunteers worldwide, making it the largest global humanitarian network. The Movement consists of three components: the International Committee of the Red Cross (ICRC) with a focus upon assisting during times of armed conflict; around 190 Red Cross and Red Crescent National Societies (such as Cook Islands Red Cross Society) providing humanitarian services to people within their own countries and internationally; and the International Federation of Red Cross and Red Crescent Societies (the Federation) which co-ordinates the assistance provided by National Societies during times of natural disasters.
The ICRC, the Federation and all National Societies are guided in their work by seven Fundamental Principles: Humanity The International Red Cross and Independence The Movement is Red Crescent Movement, born of a desire independent. The National Societies, while to bring assistance without discrimination to auxiliaries in the humanitarian services of the wounded on the battlefield, endeavours, their governments and subject to the laws in its international and national capacity, of their respective countries, must always to prevent and alleviate human suffering maintain their autonomy so that they may wherever it may be found. Its purpose is to be able at all times to act in accordance protect life and health and to ensure respect with the principles of the Movement. for the human being. It promotes mutual Voluntary service It is a voluntary relief understanding, friendship, cooperation movement not prompted in any manner and lasting peace amongst all peoples. by desire for gain. Impartiality It makes no discrimination Unity There can be only one Red Cross as to nationality, race, religious beliefs, class or Red Crescent Society in any one country. or political opinions. It endeavours to relieve It must be open to all. It must carry on its the suffering of individuals, being guided humanitarian work throughout its territory. solely by their needs, and to give priority to the most urgent cases of distress. Universality The International Red Cross and Red Crescent Movement, in which all Neutrality In order to continue to enjoy Societies have equal status and share equal the confidence of all, the Movement may responsibilities and duties in helping each not take sides in hostilities or engage at other, is worldwide. any time in controversies of a political, racial, religious or ideological nature. Contents
Foreword 06
Questions and answers about IHL 12 What is IHL? 15 What is the relationship between IHL and human rights? 17 What about IHL and “terrorism”? 19 How does IHL regulate certain weapons? 19 Who and what do the red cross and red crescent emblems protect? 20 What happens when IHL is violated? 22 What is the status of the Cook Islands as a nation? 24 What is the relevance of IHL to the Cook Islands? 24 What is the relationship between IHL and the International Red Cross and Red Crescent Movement? 27
What can members of parliament do? 30 Ensuring the State is a party to IHL treaties 32 Creating implementing legislation 32 Protecting the emblems 33 Spreading knowledge of IHL 34 Other important tasks and facts to know 35
What are the major IHL treaties? 36 Treaties on the protection of victims of war 38 Treaties restricting the use of, or prohibiting certain weapons 40 Treaties on the protection of certain objects 42 Treaty enforcement mechanisms 42
What treaties has the Cook Islands ratified and what legislation is in place? 44 War crimes 46 Weapons 46 06 Promoting respect for international humanitarian law Foreword A handbook for members of parliament 07 08 Promoting respect for international humanitarian law Foreword
Azerbaidjan, Baku. A special treatment unit for prisoners suffering from tuberculosis. Photo: ICRC/B. Hoffman A handbook for members of parliament 09
Even wars have laws The idea expressed by international humanitarian law is simple and compelling: even wars have laws. It is with this basic but essential idea in mind that Cook Islands Red Cross Society is proud to produce this handbook. We hope to enhance your understanding of the nature and importance of international humanitarian law and to encourage you to more effectively promote respect for this increasingly relevant area of international law. In this handbook, you will learn about the relationship between the International Red Cross and Red Crescent Movement (the Movement) and international humanitarian law. Each has a special place in the heart of the other. The work of Red Cross in times of natural disaster is well known in the Cook Islands; its role in times of war may be less well understood. Cook Islanders are proud to live at peace with one another and in a country at peace with its neighbours. With no armed forces and far from the world’s trouble spots, war is not often brought to mind. Media stories and images remind us that for others war is constantly in mind, and of particular concern for those people not involved in the conflict, but suffering because of it. However, there are laws to specifically protect the victims of war and limit the means used to conduct a war. This area of international law applicable in times of war and armed conflict is known as “international humanitarian law” - sometimes called the “laws of war”, the “laws of armed conflict”, or simply “IHL”. In the pages that follow there is plenty of information for anyone interested in the detail of IHL, but what this handbook hopes to achieve are two key things: Firstly, to develop or enhance your understanding that even wars have laws. Should war ever visit our shores we will enjoy the protection of rules that are recognised all around the world. As a country, it is our legal obligation to have knowledge of, and respect for, IHL. Secondly, to encourage and promote respect for IHL. Although the Cook Islands is a small, peaceful nation with no armed forces of its own, we have a role to play in IHL. Our people may never need the protection of IHL but as a country with knowledge and respect for these important humanitarian principles, our tiny nation can add its voice to all those whose efforts aim to relieve the suffering of the victims of armed conflict, wherever they may be. 10 Promoting respect for international humanitarian law Foreword
The Red Cross and Red Crescent Movement and IHL IHL and the establishment of the Movement are intimately connected. In 1859, Henry Dunant, a young Swiss man, came upon the scene of a bloody battle in Solferino, Italy, between the armies of imperial Austria and the Franco-Sardinian alliance. Some 40,000 men lay dead or dying on the battlefield and the wounded were lacking medical attention. Dunant organised local people to bind the soldiers’ wounds and to feed and comfort them. On his return to Switzerland, he proposed two ideas. One was the creation of national relief societies to assist the armed forces’ medical services in time of war. The other was a treaty committing governments to protect those giving help to the wounded on the battlefield. To promote these ideas, in 1863 Dunant and others set up what would become the International Committee of the Red Cross. The following year the first Geneva Convention was adopted (initially by 12 States), offering care for the wounded and defining medical services as “neutral” on the battlefield. IHL and the Movement – the ICRC, the National Societies and their Federation – have remained intrinsically related. The Geneva Conventions and their Additional Protocols give elements of the Movement specific tasks which they are legally entitled to do during times of armed conflict. The emblems used by the Movement (the red cross, red crescent and red crystal) are legally regulated under international and domestic law and are universally recognised as symbols which offer protection. The highest deliberative body of the Movement, the International Conference of the Red Cross and Red Crescent Movement, includes not only the ICRC, the Federation and the National Societies but also all States, including the Cook Islands, which are party to the Geneva Conventions. Resolutions from this Conference have identified the ICRC as the “guardians and promoters” of IHL and require National Societies, such as the Cook Islands Red Cross Society, to disseminate and educate the public and particular audiences about the significance of IHL. A handbook for members of parliament 11
We have prepared this handbook as part of the role of the Cook Islands Red Cross Society in disseminating IHL and we trust it will assist in developing wider community understanding of IHL as well as raising awareness among public officials. We are grateful to AusAID for financial support and the assistance of Australian Red Cross and ICRC in the preparation of the handbook. Why IHL and members of parliament? While the Executive arm of government (the Cabinet) has primary responsibility for the Cook Islands’ IHL obligations, parliament also has a critical role to play in enacting legislation that ensures IHL is legally binding throughout the Cook Islands – for government, public officials and civil society. Within the parliament, members can debate and review the decisions of the Cabinet in ratifying or acceding to IHL treaties and support the development of new IHL instruments. Parliamentary debates are broadcast live and widely reported in the media. For these reasons, members of parliament play a crucial role as opinion leaders within the broader community and have unique capacities to raise matters of concern and educate the public on important international legal principles. A valued relationship Cook Islands Red Cross Society greatly values the assistance received from members of parliament of all political parties and independent members in the national parliament for our humanitarian work. We commend the Handbook for members of parliament as a significant contribution towards achieving the goal expressed in its title: promoting respect for IHL, and adding legitimacy to the message “even wars have laws”.
Jessie Ngatokorua Frances Topa-Fariu President Secretary General Cook Islands Red Cross Society Cook Islands Red Cross Society
Niki Rattle Former Secretary General (May 1993 – June 2012) Cook Islands Red Cross Society 12 Promoting respect for international humanitarian law Questions and answers about IHL A handbook for members of parliament 13 14 Promoting respect for international humanitarian law Questions and answers about IHL
Sri Lanka. The ICRC evacuated around 14,000 wounded and sick from northern Sri Lanka between February and May 2009. Photo: ICRC/Z. Burduli Right page: Aitutaki Island 2011, destruction caused by Cyclone Pat in February 2010. Photo: Australian Red Cross/J. Letch A handbook for members of parliament 15
What is international humanitarian law? International humanitarian law (IHL) is a set of rules which seek to limit the effects of armed conflict on people and objects. Also known as the law of war or law of armed conflict, IHL protects certain categories of people and restricts the methods and IHL protects people who are not, or means of warfare. no longer, taking part in the fighting, such as civilians, the wounded, the sick, prisoners of war, detainees, shipwrecked, medical and religious military personnel. These categories of people are entitled to respect for their lives, and parties to a conflict must provide them with assistance, and treat them humanely at all times without discrimination. For example, civilians must not be made the object of an attack; the wounded and sick must be collected and cared for; prisoners and The key messages detainees must be treated humanely and benefit from judicial guarantees. of IHL are: IHL protects objects such as hospitals, Do not attack people who do ambulances and significant pieces not, or no longer, take part in of cultural property, including places armed conflict. of worship, works of art and historic monuments. Under IHL it is also Do not use weapons that prohibited to destroy infrastructure make no distinction between necessary for the survival of the civilian civilians and combatants, or population (such as drinking water cause unnecessary suffering supplies) and works containing dangerous and damage. forces (such as nuclear power stations). 16 Promoting respect for international humanitarian law Questions and answers about IHL
Guadalcanal, Solomon Islands. An ICRC delegate in discussion with members of Guadalcanal Revolutionary Army (GRA). In September 2003 ICRC and the Solomon Islands Red Cross Society were among the only humanitarian agencies able to cross the frontline into rural areas where the GRA was present. Photo: ICRC/R. Sidler
IHL limits the type of weapons and who started the fighting. IHL is an area of military tactics which can be used during law which is above all practical and strikes armed conflict. It is prohibited to use a careful balance between humanitarian weapons or methods of warfare which concerns and military requirements. do not distinguish between those taking IHL is found in international treaties/ part in the fighting (combatants) and those conventions as well as in customary law which are not (civilians as well as civilian (rules which develop over time due to property). IHL does not allow the use of consistent State practice accompanied by weapons which cause superfluous injury or the belief that the practice is legally required). unnecessary suffering as well as prohibiting The major elements of IHL are contained in tactics which cause severe or long-term the four Geneva Conventions of 1949 as well damage to the environment. as the three Additional Protocols; however IHL applies only during times of armed there are many other relevant treaties which conflict, both international (between two or deal with matters such as the regulation of more States) and non-international (internal specific weapons and the prosecution of war to the territory of one State). Once a conflict criminals. A list of the major relevant treaties has begun IHL applies equally to all sides and a short summary is provided in the later regardless of the reasons for the conflict or section of the handbook (on page 37). A handbook for members of parliament 17
What is the relationship What is armed between IHL and human conflict? rights? IHL is used to reduce suffering IHL and international human during times of armed conflict. rights law both strive to Armed conflict is a legal term and there are two major types protect the lives and – international armed conflict dignity of individuals. (traditionally called “war”) Despite these two legal systems being and non-international armed complementary, they are also distinct in conflict (often called “internal that they have developed separately and armed conflict” or “civil war”). are contained in different treaties. International armed conflict IHL applies exclusively to times of armed occurs when fighting breaks conflict, both international and non- out between two or more international, and is intended to respond States. Non-international armed to humanitarian problems that arise during conflict is a situation when warfare. International human rights law applies at all times and sets standards acts of violence occur regularly for States’ treatment of individual and between the State military and collective rights and freedoms. Human other organised armed groups rights are inherent entitlements which or between non-state armed belong to every person as a consequence groups. For example, a single of being human. However, some human riot or event of violent political rights may be suspended by governments in situations of public emergencies, such disturbance would not amount as an armed conflict. Unlike human rights to armed conflict. IHL has a law, no element of IHL can be suspended different set of rules depending as this area of law was created for a upon the type of armed conflict specific emergency, namely armed conflict. being fought. The regime Both IHL and international human rights law regulating international armed aim to protect human life, prohibit torture conflict is more detailed or cruel treatment, prescribe basic judicial than that dealing with non- guarantees, prohibit discrimination and regulate international armed conflict. aspects of the right to food and health. In However increasingly there is addition, IHL contains rules which deal with issues not found in human rights law such an understanding of the need as the conduct of hostilities, combatant and for people to be protected prisoner of war status and the protection of in all situations of conflict. the red cross, crescent and crystal emblems. 18 Promoting respect for international humanitarian law Questions and answers about IHL
Kabul, Afghanistan. Mohammed practices walking with his prosthesis in the ICRC limb-fitting and physical rehabilitation centre after losing his leg to a makeshift bomb. Photo: ICRC/K. Holt A handbook for members of parliament 19
Similarly, international human rights law How does IHL regulate deals with aspects of life in peacetime that are not regulated by IHL, such as certain weapons? the freedom of the press, the rights to IHL enshrines the principle that there are assembly, to vote and to strike. The duty legal limitations on the use of weapons to implement IHL and human rights lies and tactics by those involved in armed first and foremost with States and both conflict. Combatants are prohibited from areas of law require governments to using weapons which do not discriminate make international legal principles between civilians and combatants or which domestically relevant. are of a nature to inflict suffering greater than that required to take combatants “out of What about IHL action”. The use of weapons which cause and “terrorism”? widespread, long-term and severe damage IHL does not provide a definition of to the natural environment is also prohibited. “terrorism” but prohibits most acts Some particular categories of weapons committed during armed conflict that have been deemed so heinous that the would be commonly considered acts international community has agreed to of terror. Under the Geneva Conventions prohibit them. Over the years specific and their Additional Protocols, IHL strictly treaties have been created which prohibit prohibits acts committed during armed or restrict the use of certain weapons such conflict which aim to spread terror among as biological, chemical, blinding laser or the civilian population. A range of acts incendiary devices, or dum-dum bullets which could be considered terrorist (ammunition which explodes or flattens attacks (such as indiscriminate attacks, easily in the human body). The basic attacks on civilians and civilian objects, principles found in the Geneva Conventions attacks on places of worship and the and their Additional Protocols were central taking of hostages) are expressly to the worldwide campaigns to ban prohibited in specific provisions found anti-personnel mines and prohibit the in IHL. Indeed the general requirement use of inaccurate and unreliable cluster to distinguish between civilians and munitions. The former campaign resulted combatants, and the prohibition of attacks in the 1997 Convention on the Prohibition on civilians or indiscriminate attacks, of the Use, Stockpiling, Production and lies at the very heart of IHL. Transfer of Anti-Personnel Mines and on Terrorist acts may occur during armed their Destruction (Ottawa Convention), conflict or in time of peace. As IHL only whilst the latter culminated in 2008 in the applies in situations of armed conflict, it Convention on Cluster Munitions (Oslo does not regulate terrorist acts committed Convention) which came into force on in peacetime or the manner in which States 1 August 2010. The principles also underlie respond (human rights standards do apply). the international agreement adopted However if the fight against terrorist acts to prevent and remedy the effects of takes the form of an armed conflict then explosive remnants of war which entered IHL applies to the conduct of hostilities. into force on 12 November 2006. 20 Promoting respect for international humanitarian law Questions and answers about IHL
Who and what do The Geneva Conventions oblige States to adopt national legislation governing emblems protect? the use of the emblems, including specifically prohibiting perfidious use The neutral emblems of the of the emblem, which is a war crime. red cross, red crescent and red Originally, despite the red cross and crystal are international symbols red crescent emblems being exclusively of protection in situations of universal and humanitarian symbols, they have been wrongly perceived as armed conflict. The emblems having religious, cultural and political identify persons or facilities considerations. This has affected engaged in the provision of respect for the emblems and has diminished the protection they offer medical aid or humanitarian to victims and humanitarian aid assistance, and they mean providers operating in conflict. “don’t shoot!” in any language. The solution, endorsed by governments and the Movement, was the creation of a third emblem, known as the “Third Protocol emblem” or the “red crystal”. In 2005 States party to the Geneva Conventions adopted Additional Protocol III This means that those who wear or work to the Conventions, establishing the under the emblems are to be protected red crystal as a third emblem of at all times. Protected persons include protection. This third humanitarian medical personnel, medical equipment emblem enhances protection in cases such as hospitals and ambulances, where neither the red cross nor the red chaplains attached to military forces, crescent emblems are respected as neutral. and humanitarian workers including Governments and National Societies are Red Cross and Red Crescent delegates. obliged to promote awareness and respect for all three emblems. As well as the protective purpose of the emblems, National Societies such as the In the Cook Islands, the three emblems – Cook Islands Red Cross Society can use the red cross, red crescent and red crystal the emblem in peacetime to indicate – are all protected under the Geneva that a person or object is linked to the Conventions and Additional Protocols Act Movement, and works in accordance with 2002 (Geneva Conventions Act 2002) and the Movement’s Fundamental Principles. the Geneva Conventions and Additional Protection of and respect for the red cross, Protocols Amendment Act 2011. red crescent and red crystal emblems is a Under the Geneva Conventions Act 2002, vital component of IHL. Any misuse of the only the Cook Islands Red Cross Society emblems weakens their protective effects is allowed to use the red cross emblem in and undermines the efficacy of humanitarian their logo. The Minister of Foreign Affairs assistance provided to victims. A handbook for members of parliament 21
may authorise other organisations to under s10 of the Geneva Conventions Act use the emblem but to date no such 2002 and may result in conviction and authorisation has occurred. To use the a fine up to $1000, and forfeiture of any red cross emblem in the Cook Islands goods on which the emblem was used. without such permission is an offence
Cook Islands Red Cross Society volunteer. Photo: Cook Islands Red Cross Society/F. Tuitupou 22 Promoting respect for international humanitarian law Questions and answers about IHL
committed. Certain specific acts found in the Geneva Conventions and Additional Protocol I, such as wilful killing, torture or inhuman treatment, rape, and other acts which wilfully cause great suffering or injury to body or health, must be punished. IHL also requires States to search for persons accused of grave breaches and bring them before their own courts or hand them over for trial in another State. It is also important for States to require military commanders to prevent the commission of war crimes and to take measures against those under their control who commit grave breaches. As well as domestic prosecutions, the international community has established a number of international tribunals which aim to supplement national courts. The United Nations has established two ad hoc tribunals that deal specifically with crimes committed in the former Yugoslavia and Rwanda. The What happens when Rome Statute of the International Criminal IHL is violated? Court (ICC) was opened for signature on 17 July 1998 and entered into force in 2002. States party to IHL treaties The ICC is the first permanent international are legally bound to comply judicial body established to have jurisdiction with the rules and must do over serious international crimes, including war crimes, regardless of whether they everything in their power to were committed in an international or non- respect and ensure respect international armed conflict. The ICC will only for IHL. Serious violations operate when a State is genuinely unable or unwilling to prosecute those who are accused of IHL constitute war of crimes and are within their own jurisdiction. crimes and individuals Increasingly, various countries are also creating at all levels of society mechanisms to prosecute those accused of war crimes which are part of the domestic can be held individually jurisdiction but also incorporate international criminally responsible. support (see page 37 for more detail about The primary responsibility for the prosecution major IHL treaties). of those accused of war crimes rests with The Cook Islands signed and ratified the ICC States, regardless of where the crimes were Statute in July 2008. A handbook for members of parliament 23
Tripoli, Nahr el Bared Palestinian camp, where the Lebanese army battled Fatah al Islam for almost four months between May and September 2007. Much of the camp was reduced to rubble and the vast majority of its 40,000 inhabitants had to flee. Photo: ICRC/F. Pagetti Left page: The ICRC visits 14 prisons in Rwanda, including the Kigali Central Prison, which holds over 4,300 detainees, to monitor detainees’ living conditions and the manner in which they are treated. Photo: ICRC /T. Babayev 24 Promoting respect for international humanitarian law Questions and answers about IHL
What is the status of the affairs. Although the Cook Islands manages its defence and security policy, New Zealand Cook Islands as a nation? retains responsibility for the defence of the The Cook Islands is a Cook Islands. In practice, this responsibility would only be acted upon at the request self-governing state in of the Cook Islands Government. free association with New Zealand. This special What is the relevance of relationship was established IHL to the Cook Islands? in 1965 through the Cook War has not directly touched the Cook Islands Constitution Act Islands for a very long time, but it is a part of our people’s history. The Cook Islands sent 1964 (the Constitution Act) contingents to fight in the First World War: and allows Cook Islanders to France and Egypt. In 1917, the Cook to maintain New Zealand Islands was the only part of New Zealand reached by enemy forces – German sailors citizenship, whilst the coming ashore briefly in Atiu and Aitutaki. country administers its During the Second World War, the Cook own affairs. Islands did not send any contingents overseas but war came directly to the The Constitution Act continued New Pacific. Japanese forces reached Papua Zealand’s responsibility for the defence, New Guinea and Guadalcanal in the security and foreign affairs of the Cook Solomon Islands. This brought both Islands. However, the international New Zealand and United States forces personality of the Cook Islands has further to the Cook Islands, building airstrips in developed. In the early 1980s, it established Rarotonga, Aitutaki and Penrhyn. its own Ministry of Foreign Affairs and started to conduct foreign affairs in Although the Cook Islands has no national consultation with New Zealand. From 1988 defence force, Cook Islanders are serving New Zealand’s signature and ratification around the world as members of the armed of international treaties no longer covered forces of New Zealand and Australia. the Cook Islands as well, and the United This history and the continued role of Cook Nations recognised the full treaty-making Islanders in armed forces makes knowledge capacity of the Cook Islands in 1992. and respect of IHL in the Cook Islands In 2001 New Zealand and the Cook Islands essential. It was not possible to foresee signed a Joint Centenary Declaration which the involvement of the Cook Islands in formally gave the Cook Islands power to any of these wars. It is therefore important manage its own foreign, defence and security that Cook Islanders have knowledge of policies. This marked a further step in the the protections IHL sets out for those not development of Cook Islands’ independence. participating in the conflict to limit their The Cook Islands now exercises almost suffering and the obligations on those full control over domestic and international actors who are parties to the conflict. A handbook for members of parliament 25
The Cook Islands is a party to the Geneva Conventions and Additional Protocols implemented by the Cook Islands parliament through the Geneva Conventions Act 2002. Every state that is party to the Geneva Conventions has an obligation to disseminate knowledge of and respect for IHL to its population. The Cook Islands has made an international commitment to educate its population about, and to respect the principles of, IHL. By bringing IHL into domestic laws, as with the Geneva Conventions and Additional Protocols, the Cook Islands strengthens the Rarotongan soldiers pose for a photograph at Narrow Neck camp in Auckland. protections of IHL and builds its reputation Photo: The New Zealand Electronic Text Collection as a good international citizen. http://nzetc.victoria.ac.nz/tm/scholarly/tei-WH1-Effo-t1-body-d1-d2.html Although the Pacific region largely lives up to its name as a peaceful part of the by Cook Islands Red Cross Society will be world, from time to time Pacific countries crucial not only for humanitarian reasons, experience internal tensions resulting in the but to ensure law enforcement officers need for an understanding and application are fully aware of their responsibilities of IHL principles. The term “armed conflict” under IHL. Indeed, all individuals deployed has a specific and legal meaning, and there internationally and acting in another state are instances when a situation may not need to comprehend and apply the basic reach the “threshold” of fighting required for principles found in IHL, such as the correct it to be categorised as an armed conflict. treatment of the civilian population and the However, the “spirit” of IHL may still apply. processing of detainees. For instance, the ICRC has visited persons For Cook Islanders, knowledge about detained in relation to “the tensions” in the issues such as the legally correct use of the Solomon Islands through an arrangement red cross emblem, as well as the unique with the government, and Solomon Islands role Red Cross Societies play during times Red Cross Society has organised family of armed conflict and tensions, is important. visits for these detainees. Such activities For IHL to be useful in times of war it must are implemented in accordance with the be acted upon and understood during times spirit of IHL rather than as a necessary of peace. When conflict does appear likely legal component of IHL. it is often too late to implement protective rules. There are a number of preventive In addition, since July 2003, in response to measures which must be initiated during tensions in the Solomon Islands, the Cook times of peace to ensure compliance is Islands has provided police officers to the possible when IHL is needed. Regional Assistance Mission to Solomon Islands (RAMSI). Provision of information For all these reasons IHL has a strong and training to groups such as the police relevance to the Cook Islands. 26 Promoting respect for international humanitarian law Questions and answers about IHL
Yemen, an ICRC delegate takes delivery of a Red Cross message in June 2004. Photo: ICRC/R. Maro A handbook for members of parliament 27
What is the relationship Movement, includes not only the three elements of the Movement (the ICRC, between IHL and the the Federation and the National Societies) International Red Cross but also States who are party to the and Red Crescent Geneva Conventions, including the Cook Islands. Resolutions and statements from Movement? this important Conference have identified From its very creation in the ICRC as the “guardians and promoters” of IHL and furthermore require National 1863, the International Red Societies, such as the Cook Islands Red Cross and Red Crescent Cross Society, to disseminate and educate Movement (the Movement) the public and particular target audiences has had a strong connection about the significance of IHL. The Cook Islands Red Cross Society to IHL. The creation of the was founded in 1989. In 2002, to Movement and the birth of recognise the importance of the Society modern IHL were the results to the life of Cook Islanders, the Cook of the vision of the same Islands Parliament passed the Cook Islands Red Cross Society Act which person – Henry Dunant. formally established the Society. After that As well as the historical relationship, Act was passed, the Cook Islands Red the most important treaties in the area Cross Society was recognised by the of IHL, the Geneva Conventions and their ICRC and admitted to the Federation Additional Protocols, contain numerous as an independent Red Cross Society. provisions which give elements of the Under the Act the Government recognises Movement specific tasks which they the Society as auxiliary to the public are legally entitled to do during times of authorities in the performance of the armed conflict. For example, under IHL Society’s object. This includes acting, the ICRC has the right to visit prisoners in accordance with the Geneva of war and Red Cross and Red Crescent Conventions and Additional Protocols, National Societies must be allowed to in times of armed conflict and in peace carry out humanitarian activities. This on behalf of all victims of armed conflict legal connection between an international (e.g. provision of medical assistance). humanitarian organisation and a specific The Society may also organise, consistent area of international law is unique and with any national plan, emergency relief provides the Movement with a legal services for the victims of disasters, mandate to assist victims during times however caused. The Government of armed conflict. must also respect the independent and The highest deliberative body of the voluntary nature of the Society, and the Movement, the International Conference Society’s adherence to the Movement’s of the Red Cross and Red Crescent Fundamental Principles (see page 4). 28 Promoting respect for international humanitarian law Questions and answers about IHL
CIRCS Volunteers provide IHL information at High School Student Careers Expo, 2012. Photo: CIRCS/F. Tuitupou A handbook for members of parliament 29
Cook Islands Red Cross Society is not an NGO for two distinct reasons. Firstly, its auxiliary role means that it is a unique partner for national and local public authorities and must work in a consistent manner, aligned with the Movement’s Fundamental Principles. This particular role is very important when the Society disseminates IHL and in work during emergencies and national disasters. Newly created guidelines on international disaster response law (IDRL) specifically mention the critical role of National Societies such as the Cook Islands Red Cross Society. Secondly, the Cook Islands Red Cross Society is not an NGO because of the legal status of the emblems used by the Soldiers of the Combined Forces Task Group Movement (the red cross, red crescent parade on the one-year anniversary of RAMSI. and red crystal). The emblems are not Photo: ADF “logos”, rather they are legally regulated under international and domestic law, Due to its special international legal status and can only be used in very specific the Movement also has a specific way circumstances. For example, in the Cook of working, in that it does not take sides Islands the Geneva Conventions Act 2002 in hostilities or engage in controversies. restricts the use of the emblem. These In many situations the ICRC works in a emblems are universally recognised confidential manner dealing with authorities as symbols which offer protection. rather than making concerns public in the Due to its continued engagement in IHL, first instance. Similarly, National Societies in the Movement – particularly the ICRC – their involvement in humanitarian advocacy, continues to ensure that this area of law focus their work upon respect for all and remains relevant to contemporary conflicts. assistance without discrimination rather The ICRC monitors IHL issues around the than any engagement in domestic politics. world and uses its technical expertise in IHL to work with States to clarify, develop and strengthen the law. The operational and practical work of the Movement in assisting victims during times of armed conflict adds credibility to the strong legal connection found between the Movement and IHL. 30 Promoting respect for international humanitarian law What can members of parliament do? A handbook for members of parliament 31 32 Promoting respect for international humanitarian law What can members of parliament do?
There are a range of actions In the Cook Islands, it has been the practice that the Ministry of Foreign Affairs, with the members of parliament can approval of Cabinet, signs international undertake to promote respect conventions including those related to IHL. for IHL. These include ensuring Creating implementing that their State is a party to IHL legislation treaties; adopting legislation When a State becomes a party to a treaty to effectively implement IHL it is commonly necessary to create legislation obligations domestically; to ensure it binds those to whom it applies and that breaches of the obligations within the protecting the emblems; and treaty can be enforced by domestic courts. supporting the dissemination One of the most important elements of IHL of IHL in the community. to be incorporated into domestic law is the capacity to prosecute individuals who violate Ensuring the State is IHL. It is first and foremost up to national courts to punish war criminals. Most of a party to IHL treaties the time States can only punish their own By becoming a party to IHL treaties, a citizens or the perpetrators of crimes State not only legally binds itself to the committed on their own territory. However, provisions, but symbolically strengthens the international community has determined the principles contained in this area that some crimes are so serious that an of international law. The fact that every exception has been made to this principle. State in the world is a party to the Geneva Certain treaties, such as the Geneva Conventions of 1949 demonstrates that Conventions, oblige States to search for these treaties have the support of the and prosecute war criminals no matter what entire international community, giving their nationality or where they committed them great authority. their crimes. Alternatively the State may extradite them to another State which has When a State becomes party to an made an extradition request. This principle international treaty, it has to inform the is referred to as “universal jurisdiction”. legal depository of the treaty. The role of members of parliament throughout the The Geneva Conventions Act 2002 makes whole process is important. Members of “grave breaches” of the Conventions criminal parliament can bring to the attention offences. Grave breaches include wilful killing, of the Executive IHL treaties of which torture or inhuman treatment, and unjustified the State is not a party; they can urge the extensive destruction and appropriation of Executive to sign the IHL treaty within or property. Those alleged to have committed outside the parliament and can inform their grave breaches are to be prosecuted in the electorate about the matters involved in the High Court of the Cook Islands regardless treaty in an effort to advance the cause of where the crime was committed or of the of ratification or accession. nationality or citizenship of the offender. A handbook for members of parliament 33
If a person is convicted of grave breaches parliament also have the ability to draft and by the High Court of the Cook Islands, initiate debate on legislation themselves. they can be punished with up to 14 years When legislation is introduced by the imprisonment. If someone has been killed government or otherwise, members of as a result of that breach of IHL, then the parliament can actively participate in the High Court may punish the person as if deliberations and educate their constituency they were guilty of murder. on the importance of the issues involved. Other IHL treaties require action such as legislation banning the use or development Protecting the emblems of certain weapons. There are three distinct and equally important Members of parliament are crucial in the emblems for assisting victims during times process of bringing a State’s international of armed conflict: the red cross, the red obligations under IHL treaties into domestic crescent and the red crystal. In a highly law. International treaties need the support globalised environment, misuse of the of national legislation. If government is emblems can impact upon their legitimacy slow to introduce or pass such legislation, and undermine their effectiveness in members of parliament on all sides of the providing humanitarian assistance to victims. House can ask government to explain why Accordingly, the Geneva Conventions there are delays and encourage the process oblige States to prevent any misuse of the to continue. If dialogue fails, members of emblems, not just during armed conflict.
Cook Islands Government and Red Cross delegation at the International Conference of the Red Cross, 2011. Photo: CIRCS 34 Promoting respect for international humanitarian law What can members of parliament do?
How do States become Members of parliament play an important role in promoting respect for the emblems party to a treaty? by ensuring their countries have legislation There are two possible ways prohibiting misuse and taking action when instances of misuse come to their attention, to become a party to a treaty: e.g. if a medical surgery in their constituency signing and then ratifying advertises its services by displaying a red a treaty or acceding to it. cross. In discussions with their constituents and Signature and ratification as leaders within the community, members of parliament may have opportunities to promote Treaties are usually open for information about the emblems and even be signature for a limited period involved in finding positive solutions to resolve after they have been drafted situations of misuse. and often this is until they enter into force. Spreading knowledge A State which signs a treaty has of IHL an obligation not to behave in IHL treaties require States to take any way that is contrary to the measures to spread the knowledge of object and purpose of the treaty. IHL. Cook Islanders serving in armed However to be fully committed forces overseas would receive IHL training a State must ratify the treaty as part of their role, but it is also important that the wider community understands the it has signed. When a State protections of IHL. As well, the public needs ratifies a treaty it can issue to be aware of the protective status of the reservations to certain elements emblems and the prohibition of misuse. of the treaty on the condition that these reservations are not Members of parliament may have the “contrary to the purpose and authority and the opportunity to promote informed discussion of IHL topics in the objective” of the treaty and do community. For example, the Cook Islands not “undermine its substance”. Red Cross Society may ask members Accession of parliament for promotional assistance and involvement in dissemination events A State can accede to a treaty because, as leaders within the community, when the treaty is no longer open they are well placed to provide legitimacy for signature. The procedure is to important IHL related messages. exactly the same and has the same effects as ratification, the only difference being the later time-frame of the process. A handbook for members of parliament 35
Other important tasks propose declarations/statements expressing parliament’s concerns. Members of and facts to know parliament are often in situations where they Universal respect can champion the cause of IHL not just nationally but internationally. States such as the Cook Islands, which are party to the Geneva Conventions, National IHL Committee are required not only to respect but ensure The Cook Islands has a National IHL respect for IHL. This means that when the Committee comprised of representatives rules of IHL are breached pressure should be from relevant government departments, exerted to bring about a cessation of such non-governmental organisations and the violations. This duty can involve reminding Cook Islands Red Cross Society. This the other State of its obligations under IHL Committee has the role of coordinating and and demonstrating that the violations it is mobilising work relating to IHL in the Cook responsible for are not to be tolerated. Public Islands, which includes ensuring those IHL pressure on the Executive to take political treaties that the Cook Islands is a party to action is important, and so too is the urging are properly implemented. Supporting and of members of parliament. Members of keeping this Committee active is important to parliament may be in a position to advocate assisting and encouraging the development for specific inquiries to be established or of IHL and to maintain respect for IHL.
A mother and children reunited in Lubango in 2005, after three years stranded in the remote south-west of Angola. Photo: Australian Red Cross/J. Letch 36 Promoting respect for international humanitarian law What are the major IHL treaties? A handbook for members of parliament 37 38 Promoting respect for international humanitarian law What are the major IHL treaties?
Treaties on the protection of victims of war Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (First Geneva Convention) Geneva, 12 August 1949 Protects wounded and sick combatants, the personnel attending them, the buildings in which they are sheltered and the equipment used for their benefit. Also regulates the use of the red cross and red crescent emblems.
Convention for the amelioration of the condition of wounded, sick and shipwrecked members of the armed forces at sea (Second Geneva Convention) Geneva, 12 August 1949 Extends protection to shipwrecked combatants and regulates the conditions under which they can be assisted.
Convention relative to the treatment of prisoners of war (Third Geneva Convention) Geneva, 12 August 1949 Protects members of the armed forces that have been taken prisoner. Sets forth the rules governing their treatment and establishes the rights and obligations of the detaining power.
Balochistan province, Pakistan. Murad, 90, talks with members of the ICRC and Pakistan Red Crescent Society. Photo: ICRC/M. Naseer A handbook for members of parliament 39
Convention relative to the protection Optional Protocol to the Convention of civilian persons in time of war on the rights of the child on the (Fourth Geneva Convention) involvement of children in armed Geneva, 12 August 1949 conflict Establishes the rules governing the 25 May 2000 protection of the civilian population, Requires States Parties to take all feasible in particular the treatment of civilians measures to ensure that members of their in occupied territory, those deprived armed forces who have not attained the of their liberty, and occupation in general. age of 18 years do not take a direct part in hostilities. Protocol Additional to the Geneva Conventions of 12 August 1949, and Protocol Additional to the Geneva relating to the protection of victims Conventions of 12 August 1949, of international armed conflicts and relating to the adoption of (Protocol I) an additional distinctive emblem 8 June 1977 (Protocol III) Broadens the protection extended 8 December 2005 to civilians and limits the means and Establishes a new emblem, commonly methods of warfare. referred to as the red crystal, alongside the red cross and red crescent as a Protocol Additional to the Geneva protective emblem. Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II) 8 June 1977 Contains the fundamental guarantees for persons not taking part in hostilities during a non-international armed conflict, sets forth rules relating to the protection of civilians and objects and installations essential for their survival.
Congo. Centre for demobilised former child soldiers. One of the children holds a photograph of his father. Photo: ICRC/W. Lembry 40 Promoting respect for international humanitarian law What are the major IHL treaties?
Treaties restricting the use of, or prohibiting certain weapons Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction 10 April 1972 Prohibits State Parties to develop, produce, stockpile or otherwise acquire or retain:
1. Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;
2. Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.
Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects Geneva, 10 October 1980, amended on 21 December 2001 Establishes the framework for the protocols prohibiting the use of certain weapons. There are currently five protocols under this Convention:
Dako, Afghanistan. Children attend a mine risk education session in a village on the frontline of the fighting. Photo: ICRC/M. Kokîc A handbook for members of parliament 41
Protocol I: Protocol on Protocol V: Protocol on explosive non-detectable fragments remnants of war Geneva, 10 October 1980 28 November 2003 Prohibits the use of weapons that injure Allocates responsibility for explosive by fragments that cannot be detected remnants of war and facilitates the marking by X-rays. and clearance, removal or destruction of explosive remnants of war such as Protocol II: Protocol on prohibitions unexploded artillery shells, mortar shells, or restrictions on the use of mines, hand grenades, cluster munitions, bombs booby-traps and other devices and similar weapons which are often found Geneva, 10 October 1980, amended after the end of active hostilities. on 3 May 1996 Convention on the prohibition of the Prohibits the use of mines, booby-traps and development, production, stockpiling other devices against the civilian population and use of chemical weapons and and restricts their use against military targets. The amended Protocol further on their destruction extends the prohibition of those devices Paris, 13 January 1993 and extends its scope to internal conflicts. Bans chemical weapons.
Protocol III: Protocol on prohibitions Convention on the prohibition of or restrictions on the use of the use, stockpiling, production and incendiary weapons transfer of anti-personnel mines Geneva, 10 October 1980 and on their destruction (Ottawa Prohibits the use of incendiary weapons Convention) against civilians and civilian objects and Ottawa, 3–4 December 1997 restricts their use against military targets. Bans anti-personnel mines (landmines).
Protocol IV: Protocol on blinding Convention on Cluster Munitions laser weapons Oslo, 3 December 2008 Geneva, 13 October 1995 Bans the use of inaccurate and unreliable Prohibits the use of laser weapons cluster munitions. that are specifically designed to cause permanent blindness.
42 Promoting respect for international humanitarian law What are the major IHL treaties?
Treaties on the Treaty enforcement protection of mechanisms certain objects Statute of the International Convention for the protection Criminal Court of cultural property in the event Rome, 17 July 1998 of armed conflict Establishes a permanent international The Hague, 14 May 1954 criminal court with jurisdiction for the crime Protects monuments of architecture, of genocide, war crimes, crimes against art or history, and other cultural property. humanity and for the crime of aggression. (The crime of aggression was defined at a Protocol for the protection later meeting of State Parties, in Kampala in of cultural property in the event 2010, although the Court’s jurisdiction over this crime will not commence until 2017.) of armed conflict The Hague, 14 May 1954 Provides for the prevention of the export of cultural property from occupied territory, and for the safeguarding and return of such property.
Second Protocol for the protection of cultural property in the event of armed conflict The Hague, 26 March 1999 Enhances the protection of cultural property, strengthens the repression of violations and extends application to internal conflicts.
Convention on the prohibition of military or any other hostile use of environmental modification techniques Geneva, 10 December 1976 Prohibits the military or any other hostile use, as a weapon of war, of environment or geophysical modification techniques having widespread, lasting or severe effects. A handbook for members of parliament 43
Beirut, Lebanon. Sanctuary St Therese of the Child Jesus destroyed by fighting between various armed factions, 1990. Photo: ICRC/R. Sidler 44 Promoting respect for international humanitarian law What treaties has the Cook Islands ratified and what legislation is in place? A handbook for members of parliament 45 46 Promoting respect for international humanitarian law What treaties has the Cook Islands ratified and what legislation is in place?
This section aims to Weapons highlight two important In relation to treaties dealing with the areas of IHL: the prosecution restriction or prohibition of certain weapons, the Cook Islands has ratified of war criminals and the the Convention on the prohibition of the prohibitions or limitations development, production and stockpiling of the use of certain weapons. of bacteriological (biological) and toxin weapons and on their destruction (1972), War crimes Convention on the prohibition of the development, production, stockpiling As noted previously, the Cook Islands and use of chemical weapons and on has ratified the Geneva Conventions of their destruction, (1993), Convention on 1949, the two Additional Protocols of the prohibition of the use, stockpiling, 1977 and the third Additional Protocol production and transfer of anti-personnel of 2005. The Geneva Conventions and mines and on their destruction (1997) and Additional Protocols Act 2002 and the the Convention on Cluster Munitions (2008). Geneva Conventions and Additional The Government of the Cook Islands Protocols Amendment Act 2011 has implementing legislation for the implement those treaties in domestic law. 1993 Chemical Weapons Convention The Cook Islands has also signed (the Chemical Weapons (Prohibition) and ratified the Rome Statute of the Act 2007), the 1997 Ottawa Convention International Criminal Court in 2008. (the Anti-Personnel Mines Act 2007) and the 2008 Cluster Munitions Convention (the Cluster Munitions Act 2011).
South Lebanon, Sadikine village. A mine clearance specialist from Swiss Foundation for Mine Action searching for surface cluster sub-munitions following the war with Israel in 2006. Photo: ICRC/M. Kokîc A handbook for members of parliament 47 48 Promoting respect for international humanitarian law Notes A handbook for members of parliament 49 50 Promoting respect for international humanitarian law Glossary/acronyms and further information
Glossary/acronyms IHL International Humanitarian Law ICRC International Committee of the Red Cross The Federation International Federation of the Red Cross and Red Crescent Societies The Movement The International Red Cross and Red Crescent Movement comprising the ICRC, the Federation and all National Societies National Societies Around 190 national Red Cross and Red Crescent Societies, such as the Cook Islands Red Cross Society Fundamental Principles Guiding principles of the International Red Cross and Red Crescent Movement (see page 4) ICC International Criminal Court NGO Non-governmental organisation RAMSI Regional Assistance Mission to Solomon Islands Emblem Red cross, red crescent or third protocol emblem (red crystal) Humanitarian agencies United Nations, NGO and Red Cross/Red Crescent 1949 Geneva Conventions The four universally accepted international treaties containing laws for the protection of certain individuals during times of armed conflict 1977 Additional Protocols Two international treaties expanding the terms of the 1949 Geneva Conventions 2005 Additional Protocol International treaty creating the third protective emblem of the Movement, the third protocol emblem or red crystal
Further information on the internet
International Committee of the Red Cross www.icrc.org International Federation of the Red Cross and Red Crescent Societies www.ifrc.org International Red Cross and Red Crescent Movement www.redcross.int Standing Commission www.rcstandcom.info Red Cross/Red Crescent Museum www.micr.org International Criminal Court www.icc-cpi.int Chad/Sudan, 2004. Bejingi camp for Sudanese refugees, near Abeche. Photo: Norwegian Red Cross/O. Saltbones The Cook Islands Red Cross Society would like to sincerely thank AusAID, Australian Red Cross and the International Committee of the Red Cross for their contribution and support in the preparation of the Handbook for members of parliament.
Cook Islands Red Cross Society PO Box 888 Rarotonga Tel: (682) 22 598/(682) 26 598 Fax: (682) 22 598 Email: [email protected] [email protected] Web: http://www.redcross.org.ck Published in 2013