Improving compliance with international humanitarian law
The question of how to improve compliance with international humanitarian law during armed conflict, and in particular during non-international armed conflict, was posed to the participants of five ICRC regional expert seminars conducted in 2003 on the subject "Improving Compliance with International Humanitarian Law".
Insufficient respect for the rules of international humanitarian law has been a constant - and unfortunate - result of the lack of political will and practical ability of states and armed groups engaged in armed conflict to abide by their legal obligations. The question of how to improve compliance during armed conflict was posed to the participants of five ICRC regional expert seminars conducted in 2003 on the subject " Improving Compliance with International Humanitarian Law " .
The seminars were organized, in co-operation with other institutions and organizations, as part of the preparation for the Decem ber 2003 International Conference of the Red Cross and Red Crescent. Five seminars were held: in Cairo (23-24 April 2003), Pretoria (2-3 June 2003), Kuala Lumpur (9-10 June 2003), Mexico City (15-16 July 2003), and Bruges, Belgium (11-12 September 2003).
The goal of the seminars was to focus on ways in which article 1 common to the Geneva Conventions, that is the states'obligation to " respect and ensure respect " for international humanitarian law, could be operationalized; to evaluate existing IHL mechanisms and discuss the potential and feasibility of the creation of new mechanisms, and to consider, in particular, the specific problem of improving compliance by parties to non-international armed conflicts.
Discussions throughout the seminars reaffirmed the importance and relevance of IHL in the contemporary contexts of armed conflict. Regarding common Article 1, the state obligation to " respect and ensure respect " for the conventions in all circumstances was affirmed by participants as enunciating a specific responsibility not only for states to ensure compliance in their own domestic context, but also for third states not involved in armed conflict to ensure respect for international humanitarian law by the parties to armed conflicts.
Participants called upon states to fulfil their common Article 1 obligation by neither encouraging a party to an armed conflict to violate IHL nor taking action that would assist in such violation. In addition, participants acknowledged a positive obligation on states not involved in an armed conflict to take action against states that are violating IHL, in particular to use their influence to stop the violations, and proposed a number of concrete measures third states might take in this regard.
Turning to practical means to improve compliance with IHL, participants discussed existing IHL mechanisms and bodies. Among them is the ICRC, which participants in all the regional seminars commended for its initiatives concerning compliance with international humanitarian law. They noted the ICRC's strong reputation for independence and impartiality and the success that it has achieved in this field.
Regarding other existing mechanisms, it was agreed that while they are not necessarily defective, they do suffer from lack of use due to absence of political will and lack of knowledge about their potential. Participants urged for the re-invigoration of existing mechanisms, and in particular found great potential in the International Fact Finding Commission, provided for in Article 90 of the First Additional Protocol.
Concerning supervision mechanisms or bodies of other branches of international law, it was generally agreed that existing human rights bodies - and in particular the regional bodies - have been useful in their consideration of IHL. However, given their lack of express competence to examine issues of IHL and the potential risk of obscuring the distinctions between the two bodies of law, some participants cautioned against actively encouraging this growing practice.
Participants discussed the potential and feasibility for the creation of new supervision mechanisms for IHL. A number of proposals were put forward and, although many participants saw the value in pursuing their creation, it was also recognized that the general international atmosphere at present is not conducive to the establishment of new mechanisms. Thus, many participants advocated for a gradual process, beginning with the creation and use of ad hoc or regional mechanisms, which might earn trust and garner support over time, potentially leading to the creation of a new permanent universal mechanism.
Finally, a great deal of time was devoted to the specific problem of compliance with IHL by parties to non-international armed conflicts. Parti cipants noted that better accountability by states and armed groups for IHL obligations can be achieved by, among other things, encouraging special agreements between states and armed groups, such as those envisaged under common Article 3 of the Geneva Conventions. It was also suggested that armed groups be encouraged to issue and deposit unilateral declarations of their commitment to comply with IHL, as well as to adopt internal codes of conduct on respect for IHL.
The fact that armed groups usually enjoy no immunity from domestic criminal prosecution for mere participation in hostilities (even if they respect IHL), remains an important disincentive in practice for better IHL compliance by such groups. Participants expressed the view that granting immunity from prosecution for mere participation in hostilities by means of amnesties, or by introducing a system of mandatory amnesties, as well as by the granting of some form of " combatant-like " immunity might be ways of providing armed groups with an incentive to comply with IHL. Reduction of criminal punishments under domestic law in cases of compliance by armed groups with IHL was suggested, as were other incentives. Needless to say, it was underlined that there can be no amnesties or other forms of immunity from criminal process for members of armed groups suspected of having committed war crimes.
In conclusion, the experts felt that the ICRC initiative to address these questions was both timely and appropriate. The ICRC was encouraged to continue consultations in order to further refine the proposals made at the regional seminars with a view to ensuring improvements in compliance with IHL by all actors to armed conflicts.