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Domestic Law

01-05-2012 Overview

For the treaties of IHL to be universally accepted, they must be formally adopted by all States through ratification or accession. States must then enact national legislation and take practical measures in order for the rules to be fully effective. The ICRC’s Advisory Service can help, by providing technical assistance and documentation.

IHL treaties cover a wide range of topics, from the protection of wounded and sick military personnel, prisoners of war and civilians, to the prohibition of weapons such as anti-personnel landmines, chemical and biological weapons and the restriction of the use of other weapons.  In order for the rules of IHL to be truly effective, it is important that States consider becoming parties by ratification or accession to these treaties that make up the body of IHL. Ratification of these treaties, however, is only the first step.

Implementation

Most of these IHL treaties create obligations, which require States to undertake certain actions of compliance, including undertaking legislative, regulatory and administrative measures.

The core IHL treaties are the Geneva Conventions of 1949 and their Additional Protocols. The Conventions have now achieved universal acceptance, imposing the obligations they contain on every Government.

As a result, States must adopt legislative measures to prohibit and repress what are called "grave breaches", regardless of the offender's nationality and regardless of where the acts were committed. They should also provide for the punishment of other serious violations of the Geneva Conventions and their Protocols.

The Geneva Conventions also oblige States to search for people alleged to have committed grave breaches, and either bring them to trial or extradite them to another State for prosecution. States are expected to provide judicial assistance to each other in these matters.

Prosecution for offences is on the basis of individual criminal responsibility and military commanders have a particular responsibility for acts committed by people under their command.

The Geneva Conventions and their Protocols also require States to enact laws to protect the distinctive emblems, signs and symbols of the red cross, red crescent and red crystal, as well as other protective signs, symbols and signals.

Weapons related treaties necessitate the implementation of measures to prohibit the development, production, stockpiling or transfer of certain weapons.

States are also required to adopt more practical measures, such as the integration of IHL in training, in military manuals, the marking of protected objects and the delivery of identification cards.  

The ICRC's role in implementation

The ICRC plays a key role in the national implementation and enforcement of IHL.  Its Advisory Service assists States in enacting domestic legislation, through the provision of technical assistance as well as the provision of publications, including ratification kits and model laws.

The ICRC’s Advisory Service was created following a recommendation of the Intergovernmental Group of Experts on the Protection of War Victims, endorsed by the 26th International Conference of the Red Cross and Red Crescent in 1995, and provides a specialized structure to tackle the issue of national implementation on a systematic basis.

The service has set up a national implementation database, which provides a means of exchanging information on national implementation. It covers a wide range of subjects, including the punishment of IHL violations, regulating the use of distinctive emblems, legal guarantees for protected persons, dissemination and training of IHL and contains legislation and case law of States relating to IHL.

National IHL Committees

The ICRC also encourages the setting up of National inter-ministerial Committees on IHL. Although not legally required, they have proven very effective in assisting States in national implementation by acting as a focal point for the various Government Departments that deal with IHL issues. 

National Committees advise governments on the ratification and application of IHL treaties at the national level but also share, with ICRC encouragement, their expertise and experience at the regional level.

Their creation and composition is entirely the prerogative of governments, but the ICRC recommends the inclusion of representatives of relevant ministries such as Defence, Foreign Affairs and Justice, Interior or Home affairs, Health and Education ,specialist academics, international lawyers, military personnel, representatives of the national Red Cross or Red Crescent society and relevant NGOs.


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International humanitarian law  - Domestic law