Integrating the law International Commitee of the Red Cross 19 Avenue de la Paix 1202 Geneva, Switzerland T + 41 22 734 60 01 F + 41 22 733 20 57 E-mail: [email protected] www.icrc.org © ICRC, May 2007 Cover Photo: Bob Strong/Reuters Table of contents Introduction 1 PART NATIONAL IMPLEMENTATION OF APPLICABLE LAW 4 1.1 Legal framework 5 1.2 National implementation 9 1.3 Responsibilities 12 1.4 Reality check 15 PART 2 INTEGRATION 16 2.1 The concept of integration 17 2.2 Basic requirements 20 2.3 The programme 21 2.4 Integration into doctrine 23 2.5 Integration into education 26 2.6 Integration into training 29 2.7 Equipment 32 2.8 Effective sanctions 35 PART 3 ICRC SUPPORT 36 3.1 The ICRC and international law 37 3.2 The role of the ICRC 40 Introduction Today, a large number of arms carriers major efforts to ensure compliance – armed forces, security forces, police with the applicable law during opera- forces, non-State armed groups and tions and some have achieved good private military or security companies results. However, violations still occur – use force in very diverse situations. and the need is felt to share experi- These range from maintaining law and ences and best practices in this field to order during peacetime to highly lethal further enhance compliance. combat operations. Arms carriers also use force in the intermediary situations The International Committee of the referred to as “internal violence,” “ten- Red Cross (ICRC) has been mandated sions” or “disturbances.” by the international community to protect and assist the victims of armed Thomas Dworzak/Magnum Photos Law enforcement or combat duties conflict and other situations of vio- entail considerable powers, such as the lence. It also strives to prevent suffering power to search people or their prop- by promoting IHL and a relatively small erty and to use force – including firearms but essential part of what is known – to prevent a deadly offence or to put as IHRL, namely certain fundamental people out of action by wounding or rules protecting people in situations of killing them. However, such powers go violence. hand in hand with equivalent responsi- bilities. The use of force is therefore not This booklet draws together the lessons unlimited and always occurs within a learned by the ICRC over the past few specific legal framework. At the inter- decades and aims to provide authori- national level, these rules and legal ties and the most senior personnel standards are enshrined in international among arms carriers with an overview humanitarian law (IHL) and international of what we have come to call the “inte- human rights law (IHRL). gration” process. This is the process of transposing legal rules into concrete Many authorities and arms carriers mechanisms or measures to ensure around the world have undertaken compliance and adopting the means 2 Integrating the law required to achieve this end. Integration is a continuous process. It must address doctrine, education, training and equipment issues and be backed up by an effective system of sanctions. The document is divided into three parts. The first presents the legal framework applicable to the use of force and the responsibilities of the highest political authorities regarding its implementation and dissemination. The second refers more specifically to arms carriers and addresses technical aspects related to integrating the relevant law into doctrine, education, training and equipment, plus the crucial role that sanctions play. The third part discusses the ICRC’s relationship with international law and the ways in which the organization can actively sup- port efforts to promote lawful behaviour. The booklet refers mainly to States and their responsibilities. However, the proc- ess and the main concepts and conclu- sions can be extended by analogy to non-State armed groups that commit themselves to respecting the law and have the capacity to effectively discharge their responsibilities over time. Integrating the law 3 Str Old/Reuters Integrating the law NATIONAL IMPLEMENTATION OF APPLICABLE LAW 1.1 Legal framework Use of force is limited by IHL and by specific provisions of IHRL. IHL and IHRL are complementary. Both tions are permitted under IHL, as this strive to protect the lives, health and branch of law was designed from the dignity of individuals, albeit from a dif- outset to strike a balance, in emer- ferent angle. Both also directly address gency situations, between the right to issues related to the use of force. use force and the obligation to protect the rights and dignity of individuals. IHL has been codified and developed There is therefore no vacuum, and the to regulate the use of force in the use of force always occurs within a legal exceptional situation of armed conflict; framework. it aims to protect persons who are not (or are no longer) taking part in hos- tilities and imposes duties on all parties. Pascal Lauener/Reuters IHRL protects the individual at all times, in peace and war alike; it benefits eve- ryone and its principal goal is to protect individuals from arbitrary behaviour by their own governments. For these pro- tections to be effective, international provisions must be reflected in national legislation. Most human rights instruments allow governments to derogate, under strict conditions, from certain rights when confronted with a serious public threat (for instance, during internal distur- bances or armed conflict). However, there is a “hard core” of basic rights from which governments cannot derogate under any circumstances. No deroga- Integrating the law International humanitarian law (IHL) IHL is a set of rules that seek to limit the The rules governing the conduct of effects of armed conflict for humanitar- hostilities are set out in the Hague ian reasons. IHL protects persons who Conventions of 1899 and 1907. They are not (or are no longer) participating limit the methods and means of war- in the hostilities and restricts the means fare that parties to a conflict may use. In and methods of warfare. International essence, they regulate the conduct of humanitarian law is also known as military operations in an armed conflict “the law of war” or “the law of armed by defining proper and permissible uses conflict.” of weapons and military tactics. The Geneva Conventions – revised and Rules on the protection of individu- expanded in 1949 – lay down rules als and the conduct of hostilities were to protect the following groups of brought together and updated in the people: two Protocols additional to the Geneva Conventions adopted in 1977. Several • First Convention: sick and other treaties complement these provi- wounded on the battlefield sions, such as the Hague Convention • Second Convention: sick, of 1954 for the Protection of Cultural wounded and shipwrecked at Property in the Event of Armed Conflict, sea the Convention on Certain Conventional • Third Convention: prisoners of war Weapons of 1980, the 1997 Convention • Fourth Convention: civilians in on the Prohibition of Anti-personnel time of war Mines and on their Destruction, the 1998 Rome Statute of the International The four Geneva Conventions are the Criminal Court and the 2005 Protocol most widely accepted international additional to the Geneva Conventions treaties and have achieved universal (Protocol III), establishing an additional acceptance. emblem (commonly referred to as the Integrating the law red crystal) alongside the red cross and usually through ratification. These writ- the red crescent. ten obligations are complemented by customary law derived from a general Treaties bind only those States that practice accepted as law. have agreed to be bound by them, International human rights law (IHRL) IHRL consists of a set of principles and rules, on the basis of which individuals Regional instruments – such as the or groups can expect certain standards European Convention on Human of protection, conduct or benefits from Rights, the Organization of American the authorities, simply because they States Charter or the African Charter on are human beings. The main universal Human and Peoples’ Rights – comple- IHRL texts now in force include: ment the universal treaties. • The Universal Declaration of Professionals responsible for law Human Rights, adopted by the enforcement should be particularly UN General Assembly in 1948 familiar with the United Nations Code • The International Covenant on of Conduct for Law Enforcement Civil and Political Rights of 1966 Officials (CCLEO, 1979) and the Basic • The International Covenant on Principles on the use of Force and Economic, Social and Cultural Firearms by Law Enforcement Officials Rights of 1966 (BPUFF, 1990). These two documents • The Convention against Torture do not set legally binding obligations and Other Cruel, Inhuman, and are therefore part of what is com- or Degrading Treatment or monly known as “soft law.” However, Punishment of 1984 they give useful guidance on specific • The Convention on the Rights of issues related to the maintenance of the Child of 1989 law and order. Integrating the law The “hard core” Certain fundamental rights laid down in IHRL instruments can never be dero- gated from. In particular, these include the right to life, the prohibition of tor- ture and inhuman punishment or treat- ment, the prohibition of slavery and servitude, and the principle of legality and non-retroactivity of the law. Since IHL applies precisely to exceptional situations, the “hard core” of IHRL tends to converge with the fundamental and legal guarantees provided by IHL. Article 3 common to the four Geneva Conventions of 1949, applicable in non- international armed conflicts, provides a good summary of these “hard core” rights, setting the minimum basic rules regulating the use of force when inter- nal violence attains the threshold of an armed conflict. 1.2 National implementation Integrating the law To be effective, international treaties and conventions must be implemented in national legislation.