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Participation in international humanitarian law treaties and their national implementation - achievements and activities in the countries of the Americas in 2005

27-02-2006 Report

Document prepared by the International Committee of the Red Cross for the information of the member States of the Organization of American States, January, 2006

   

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 Introduction  

National implementation of international humanitarian law witnessed significant progress in the Americas during 2005.

On the one hand, there was an increase in the number of States Parties to the main treaties related to this law. There were twenty new ratifications of various instruments that govern topic s as essential to the protection of the victims of armed conflicts as the penal repression of war crimes, the banning of recruiting children for combat, the protection of cultural property against the effects of armed conflicts or the restraints imposed by law to the use of certain specially harmful weapons.

Thus, the States in the region displayed a strong commitment to international humanitarian law, and this positions the hemisphere above the world average regarding participation in the different treaties.

On the other hand, the American States have made a substantial effort to implement the obligations provided for in the treaties they have signed. This resulted in many highly positive results in the development of national measures concerning the application of international humanitarian law.

Thus, during the period outlined, there was an increasing number of bills that, if passed, will punish the worst violations of international humanitarian law, i.e. war crimes. Nowadays, these crimes still inflict suffering that is as indescribable as it is unacceptable. By signing the four 1949 Conventions, the States pledged to have such crimes punished by their own courts, irrespective of where they are committed, and by whom. Such obligation has been supported by the establishment of international criminal courts, the statutes and case law of which pinpoint critical aspects that national parliamentarians must take into account in order to ensure the effective punishment of war crimes. By the end of 2005, fourteen Latin American States and one Caribbean State were in the process of adapting their criminal legislation to international law requirements.

Also, the national measures aimed at protecting cultural property in case of armed conflict achieved commendable success. Perhaps the renewed attention on this topic, thanks to the fiftieth anniversary of the 1954 Hague Convention – which was celebrated in the Americas with two important meetings, on e in San Salvador in June 2004 and another in Buenos Aires in March 2005 –, contributed to the adoption of a host of measures to identify the cultural heritage in the region and to strengthen the respect and the legal protection accorded to it, including by raising awareness among the different sectors of the government and the public opinion.

The dissemination, or rather the integration, of international humanitarian law by the different education levels –both professional and general– has been consistently upheld by the States in the region.

This further consolidated the ongoing processes that are striving to integrate this law permanently and across the armed forces'doctrine and practices. Thirteen Latin American States made specific progress in this regard during the period under review.

The effort to have national measures adopted in order to aid in the dissemination and integration of international humanitarian law is not restricted to the military sector. During 2005, the achievements of a large number of universities –which gave courses on international humanitarian law as part of a subject or as a stand-alone course– particularly stand out in the Americas. It should be noted that, by the end of 2005, the number of such courses was growing steadily throughout the region.

Besides, it should be highlighted that interministerial commissions contributed frequently and decisively to the activities on international humanitarian law application.

These commissions are bodies established by many Governments in the region with the aim of building their ability to comply with the commitments undertaken in the international humanitarian law field. Judging by the results, these commissions enable the States to work more efficiently by rationalizing resources and concentrating competences that are usually scattered among several government departments and other institutions, such as universities or the National Societies of t he Red Cross. Besides, given their essentially technical nature, these commissions can consistently keep their focus on international humanitarian law, regardless of the situation at any given moment. By the end of the year, sixteen States in the region had implemented these mechanisms and two more had taken specific steps towards formally establishing them in the near future.

Overall, the balance in the region is quite positive , both in terms of State participation in treaties and of the activities undertaken to apply the treaties'provisions, and considering the establishment of structures such as the international humanitarian law commissions.

However, a closer look into the national implementation of treaties reveals that there still is a significant gap between international requirements and their implementation. This means that many of the efforts undertaken have not yet yielded concrete results.

This prevents the States from fully complying with their commitments. This situation causes concern, because it has a negative impact on the respect for international humanitarian law, thus weakening the protection offered to the victims of armed conflicts. In order to be efficient, such protection calls for active engagement not only on the part of conflicting parties, but also on the part of a much wider range of players. Preventing and responding to the suffering caused by armed conflict is everybody's responsibility. But only when everybody is furnished with the national measures enabling prompt responses, can it be expected that the horrors of war will not occur over and over again.

In this regard, it is worth mentioning the legislative reforms aimed at ensuring that national criminal law is able to punish the violations of international humanitarian law. With very few exceptions, in spite of the several bills mentioned above, the obligations in force in this field have not yet been included in the national legislations in the reg ion.

In some regions of the continent, for example in the English-speaking Caribbean, the lack of national measures as basic as laws that translate the Geneva Conventions into national acts ( Geneva Conventions acts) jeopardizes the development of more specific steps and may even undermine the credibility of international humanitarian law dissemination.

Throughout the continent, thousands of families still ignore the whereabouts of their loved ones who disappeared in connection with an armed conflict or any other situation of armed violence. Many were victims of forced disappearances. Many disappeared in combat. Still others disappeared in unclear circumstances. The different States took actions, including the establishment of tracing mechanisms and criminal procedures. But in many cases these efforts failed to successfully meet the humanitarian need still faced by the missing persons'families.

Therefore – and without pretending to be exhaustive –it can be said that there are many national measures yet to be developed so that the States in the region can comply with their international commitments.

The General Assembly of the Organization of the American States (OAS) renewed its support to this endeavour. On occasion of its thirty-fifth ordinary session in Fort Lauderdale, in June 2005, it adopted several resolutions encouraging the States to adhere to humanitarian law treaties and to take the necessary steps to ensure their implementation at national level.

Among those resolutions, it is important to mention resolution AG/RES. 2127 (XXXV-O/05) on the promotion of and respect for international humanitarian law, complementing a series of eleven resolutions on this subject that began to be adopted in 1994.

Other resolutions from the said session delve into specific topics related to international humanitarian law. Specifically, the resolutions involved are AG/ RES. 2072 (XXXV-O/05) on the promotion of the International Criminal Court, AG/RES.2105 (XXXV-O/05) on the support for action against anti-personnel mines in Ecuador and Peru, AG/RES.2106 (XXXV-O/05) on the support for the Program for Comprehensive Action against Anti-personnel Mines in Central America, AG/RES.2107 (XXXV-O/05) on The Americas as a Biological- and Chemical-Weapons-Free Region, AG/RES.2108 (XXXV-O/05) on the proliferation of and illicit trafficking in small arms and light weapons in all their aspects, AG/RES.2125 (XXXV-O/05) on the study of the rights and the care of persons under any form of detention or imprisonment, AG/RES. 2134 (XXXV-O/05) on persons who have disappeared and assistance to members of their families, AG/RES.2140 (XXXV-O/05) on internally displaced persons, AG/RES.2142 (XXXV-O/05) on the Americas as an anti-personnel-land-mine-free zone and AG/RES.2143 (XXXV-O/05) on the protection of human rights and fundamental freedoms while countering terrorism.

With this report, the International Committee of the Red Cross (ICRC) wishes to place on record the activities undertaken and the results achieved in 2005 as to the national implementation of international humanitarian law in the region.

The ICRC was able to follow-up these processes through its Advisory Service, which offers the States specialized technical and legal advice.

This support was provided for within the framework of the mandate bestowed on the ICRC by the States as established in Article 5 (2) (c) of the Statutes of the International Red Cross and Red Crescent Movement. Pursuant to this article, the ICRC has to " work for the faithful application of international humanitarian law " . That mandate was reasserted in Resolution 1 of the 26 th International Conference of the Red Cross and Red Crescent, which endorsed the Final Declaration of the International Conference for the Protection of War Victims, adopted on Se ptember 1 st 1993, and the recommendations drawn up by the Intergovernmental Group of Experts at a meeting held on 23 rd -27 th January 1995 in Geneva, Switzerland.

The Advisory Service works in a decentralized fashion with a team of experts based at ICRC headquarters in Geneva and legal advisors in various regions of the world. In the Americas, the Advisory Service works with nine advisors based in Bogotá, Buenos Aires, Guatemala City, Lima, Mexico City, Port of Spain and San José, who report to a coordinator based in Mexico City.

The ICRC wishes to thank the OAS and its Member States for the highly constructive dialogue held throughout 2005, which contributed to enhance the dynamics of the national implementation of international humanitarian law and consolidate the standards of the organization in the region. In this regard, it fostered a favourable environment for the protection of the victims of armed conflict as well as of other situations of internal violence not governed by international humanitarian law.

This having been said, the ICRC is aware that nowadays, the situation prevailing in Latin America and the Caribbean involves internal violence events which do not qualify as armed conflicts. They entail a high cost in terms of human lives, which are left unprotected because international humanitarian law is not enforced. The ICRC is not indifferent to the fate of the victims of such situations, and regularly takes action in their favour. The organization frequently notices many ambiguities concerning not only the rules that should limit the use of force but also the practices of the authorities that resort to it. The combination of these factors significantly increases risk for those involved in disturbances or tensions. Here lies a major challenge for the protection of persons in Latin America and the C aribbean.

Anton Camen

Legal advisor for Latin America and the Caribbean

Advisory Service