National implementation of International Humanitarian Law and related inter-American Conventions Governmental Experts' Meeting
Executive summary of the meeting
San José, Costa Rica, 6-8 March 2001
Department of Legal Cooperation and Information of the General Secretariat of the Organization of American States
International Committee of the Red Cross
In cooperation with:
Government of Canada
Ministry of Foreign Affairs and Worship of Costa Rica
National Commission for the Improvement of the Administration of Justice of Costa Rica
EXECUTIVE SUMMARY OF THE MEETING
Advisory Service on International Humanitarian Law
International Committee of the Red Cross
III. Summary of discussions:
A. Part I: National implementation of international humanitarian law (IHL) and related inter-American Conventions.
i. Session I:
National implementation of inter-American conventions relating to IHL. Overview of the current status of ratification and implementation.
ii. Session II:
Implementing the rules of IHL. Importance and difficulties. Diagnosis of the present situation on the continent.
B. Part II: Specific topics
i. Round table I:
National mechanisms for the implementation of IHL and related inter-American conventions – functions and role of national IHL committees and similar bodies.
ii. Round table II:
The protection of children in situations of violence.
iii. Round table III:
Preventing and punishing violations of IHL and human rights law.
iv. Round table IV:
Repercussions of the proliferation and availability of weapons, particularly small arms and light weapons, on human security and the civilian population.
C. Part III: International criminal justice. Towards the ratification and implementation of the 1998 Rome Satute of the International Criminal Court (ICC).
i. Introductory session:
The International Criminal Court. A new mechanism to punish serious violations of IHL and human rights law.
ii. Workshop I:
The complementarity principle of the 1998 Rome Statute and the ratification and implementation process.
iii. Workshop II:
Modifications to domestic legislation required in order to comply with the 1998 Rome Statute of the ICC.
IV. Conclusions and follow-up
2. Resolution ag/res. 1706 (XXX-O/00) of the General Assembly of the Organization of American States.
3. Statement by the Secretary General of the Organization of American States.
4. Opening address by the Vice-President of the International Committee of the Red Cross.
The Governmental Experts'Meeting on the National Implementation of International Humanitarian Law and Related Inter-American Conventions took place in San José, Costa Rica, from 6 to 8 March 2001.
The purpose of the meeting was to facilitate compliance with resolution ag/res. 1706 (XXX-O/00) of the General Assembly of the Organization of American States (OAS) held in Windsor, Canada (Annex 2). In the resolution, emphasis was placed on the need to strengthen the rules that protect the life and dignity of th e individual in all circumstances, through worldwide acceptance of international humanitarian law (IHL) and its broader dissemination and national implementation.
The meeting, which was held for OAS member States, was convened by the organization's Secretary General in response to a regional initiative sponsored by the OAS General Secretariat, the Government of Canada, the Ministry of Foreign Affairs and Worship of Costa Rica, the National Commission for the Improvement of the Administration of Justice of Costa Rica and the International Committee of the Red Cross (ICRC).
The main objective was to promote the implementation of IHL treaties and related inter-American conventions, particularly those regarding the protection and security of the individual.
In ratifying the Geneva Conventions of 1949 and their Additional Protocols of 1977, States had undertaken to ensure that those instruments were known and respected. At the regional level, various inter-American conventions had also been adopted to guarantee the best possible protection of the individual, in particular during armed conflicts. IHL and inter-American law for the protection of the individual had gradually developed into a complex set of rules covering a wide variety of issues. Both the process of implementing those rules and the intricate web of related customary norms that were part of domestic legislation in each country were highly complex.
In light of the above, the specific aims of the meeting were as follows:
to support the countries of the Americas in their efforts to incorporate into domestic legislation the principles of the above-mentioned international and regional instruments and meas ures for their implementation;
to help strengthen the capacity of States to promote respect for the rules contained in those instruments at national level;
to provide information on recent advances in international criminal justice, in particular with respect to the International Criminal Court (ICC);
to promote the exchange of information on relevant laws and other provisions adopted within bodies (especially national committees for the implementation of IHL) set up to facilitate and coordinate the introduction of new norms.
The meeting was opened by the Vice-President of Costa Rica in the presence of other high-level representatives of the country's government, the Legal Adviser of the Department of Foreign Affairs and International Trade of Canada, the Director of the OAS regional office in Costa Rica and the permanent Vice-President of the ICRC. The OAS representative read a statement by the organization's Secretary General (Annex 3) and the ICRC Vice-President delivered the opening address (Annex 4).
More than one hundred people from the countries of the hemisphere attended the meeting, mainly experts from ministries of foreign affairs, justice, the interior and defence, together with representatives of regional academic institutions and intergovernmental organizations, both regional and international.
The proceedings were chaired by the Vice-President of the ICRC.
In keeping with its agenda (Annex I), the meeting was divided into three parts: a general introduction, a discussion of specific topics and an examination of the system of international criminal justice. The work was carried out in plenary sessions and during round table discussions and technical workshops moderated by eminent experts.
Among the issues addressed during the plenary sessions were the importance of incorporating the inter-American conventions into the domestic law of States parties, the obstacles thereto and the situation regarding the implementation of IHL within the hemisphere.
The round table discussions focused on the following topics:
national mechanisms for the implementation of IHL and related inter-American conventions: functions and role of national IHL committees and similar bodies;
the protection of children in situations of violence;
preventing and punishing violations of IHL and human rights law;
repercussions of the proliferation and availability of weapons, particularly small arms and light weapons, on human security and the civilian population.
The topics were selected in view of their relevance to respect for IHL and the inter-American conventions, their topicality in terms of international and regional agendas and their interest to governments in the hemisphere.
The third day of the meeting was devoted to a discussion of the ICC and its 1998 Rome Statute. The complementary character of the ICC with respect to national courts, the legislative amendments required to ensure cooperation between the ICC and States parties and the effective functioning of the ICC received particular attention.
The Department of Legal Cooperation and Information of the OAS General Secretariat also presented a project that consisted in setting up a virtual inter-American network on IHL. It invited interested experts to join in.
The meeting was intended to be technical and informal in nature, so as to encourage a broad exchange of opinions and information on complex issues among the experts present. It was therefore decided not to issue official conclusions or recommendations.
A summary of the discussions, which was presented at the final session, is included below.
III. Summary of the discussions
A. Part I: National implementation of international humanitarian law (IHL)
and related inter-American Conventions.
i. Session I:
National implementation of inter - American conventions relating to IHL Overview of the current status of ratification and implementation
The session was moderated by Ms Magaly McLean , Legal Officer, OAS Department of Legal Cooperation and Information. The panel comprised the following experts:
Ms Marcela Matamoros , Counsellor, Permanent Mission of Costa Rica to the OAS
Mr Douglass W. Cassel , Director of the Center for International Human Rights, School of Law, Northwestern University, Illinois
Mr Gonzalo Elizondo , Director of the Department of Public Institutions, Inter-American Institute of Human Rights
Mr José Luis Molina Quesada, Supreme Court of Justice, Costa Rica.
The experts discussed the relationship and points of convergence between inter-American conventions and IHL instruments, and the efforts made by the OAS and other organizations within the inter-American system to promote IHL and support its implementation. They also focused on exchanges and other forms of cooperation in that area between the OAS and the ICRC, the functioning of the Inter-American Court of Human Rights and the relationship between international law and domestic law in Latin American countries. Lastly, the session took a critical look at the Inter-American Convention to Prevent and Punish Torture.
During the introduction, mention was made of the resolutions that had been adopted each year by the OAS General Assembly in connection with IHL. The first such resolution had been adopted by the Belén Assembly in 1994 (ag/res. 1270 XXIV-O/94) . Reference was also made to various inter-American conventions relating to IHL, specified by the Department of Legal Cooperation and Information, in particular the:
American Convention on Human Rights (1969);
Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990);
Inter-American Convention to Prevent and Punish Torture (1985);
Inter-American Convention on the Forced Disappearance of Persons (1994);
Protocol to the Convention on Duties and Rights of States in the Event of Civil Strife (1957);
Convention to Prevent and Punish the Acts of Terrorism Taking the Forms of Crimes Against Persons and Related Extortion that are of International Significance (1971).
Ms. Matamoros commented on the ICRC's long history and on the strategic alliances the organization had formed over the years with the United Nations and various regional bodies, including the Organization of African Unity, the Council of Europe, the Asian-African Legal Consultative Committee, the African Commission on Human and Peoples'Rights, the African Society of International and Comparative Law, the League of Arab States, the Organization of the Islamic Conference, the Organization for Security and Cooperation in Europe and the OAS. She recalled that the OAS General Assembly had adopted its first resolution on respect for IHL in 1994, 23 years after the ICRC had opened its first office in Latin America. She underscored that the resolutions adopted in 1994 and 1995 had served as a basis for the cooperation agreement signed by the ICRC and the Secretary General in 1996 and that the General Assembly had subsequently adopted a number of resolutions, on a regular basis, urging member States to ratify IHL instruments, disseminate information about the law and enact national legislation to promote its implementation and prevent violations thereof. The resolutions also asked States to establish national advisory committees in order to facilitate and coordinate those tasks. The seven resolutions approved to date had led to increasing commitment by OAS member States to IHL.
She pointed out that, in his report to the Permanent Council on compliance with Resolution 1706 (Canada, June 2000), the Secretary General had referred in particular to Article 5, which asked States, in implementing IHL, to pay special attention to:
the broadest possible dissemination of IHL among the armed and security forces, for example by including it in official instruction programmes;
the enactment of criminal legislation to punish those responsible for war crimes and other grave breaches of IHL;
the enactment of legislation to regulate the use of the emblems protected under IHL and to punish any misuse thereof.
the obligation, in the study, manufacture, acquisition or adoption of a new weapon, to determine whether its use would violate IHL and, if so, to prohibit such use by the armed and security forces and the manufacture of that weapon for any other purpose.
In 1998 the ICRC had been invited to engage in a dialogue with representatives of OAS members States within the Committee on Juridical and Political Affairs. In the cooperation agreement signed in 1996 by both organizations, the OAS General Secretariat had agreed to cooperate in matters of common interest to all the States of the Americas, especially with respect to the promotion and dissemination of IHL, the adoption of measures to improve implementatio n of that law, support for the ICRC's humanitarian action and sponsorship of joint meetings.
IHL norms were recognized, accepted and valued by the governments of all 34 OAS member States. Regardless of the historical, cultural, legal or political diversity among the nations of the hemisphere, there was total agreement about the values, principles and rules making up that body of law.
In order to facilitate their task, the ICRC and the OAS should find new ways of assisting, supporting and cooperating with each other, in particular by taking full advantage of various bodies already set up for the development of international criminal law, judicial cooperation and a better conceptual understanding of IHL in the Americas. They should also make use of existing forums, such as meetings of ministers of justice, in which, for example, extradition and judicial cooperation were important topics.
The Inter-American Juridical Committee ran educational programmes in IHL and accorded great importance to that body of law and to the ICC.
Turning to the field of human rights, the Inter-American Commission and the Inter-American Court applied and monitored respect for IHL norms. In countries beset by internal armed conflicts, IHL and international human rights law combined to protect the victims.
Finally, the Inter-American Commission of Women and the Inter-American Children's Institute were OAS bodies whose fields of activity were of particular interest to the ICRC, since they looked after people who were generally vulnerable in internal and international armed conflicts.
Dr. Cassel , referring to government obligations under the San José Pact and to the functioning of the Inter-American Court of Human Rights, pointed out that in the 1980s States had not complied with their obligation to appe ar before that Court. The situation had changed in the 1990s, as evidenced by a decision handed down by the Court in 1991 in a case involving Honduras.
He noted that the powers of the Court had been consolidated and were guaranteed by all the States party to the inter-American conventions, treaties and resolutions, with the exception of Cuba. Judging by the current degree of compliance, respect for the Court's decisions had improved. The Court had functioned more efficiently over the past decade thanks to the strengthening of democracy in the countries concerned and the fact that its final sentences were fair, its decisions reflected progressive and prudent development and the extent of the compensation, financial or otherwise, awarded by it had increased.
The work of the Court was based on the principle of full compliance by governments with their obligations under international law (Arts 1.1 and 2 of the American Convention), the duty of States to guarantee access to effective judicial remedy (Art. 25) and the principle of combating impunity. The decision in the case of Honduras had confirmed the obligation of States to investigate violations of the Convention and to prosecute and punish the perpetrators. Both the Commission and the Court had made it clear that such an obligation applied even in the case of an amnesty. In general, case law relating to government obligations tended to condemn impunity and the defence of impunity and to support the review and nullification of proceedings that violated inter-American conventions and international law. Moreover, in 1998 the Court had passed a resolution asking member States to adopt legislation concerning genocide and war crimes.
As for the relationship between IHL and human rights law, the Court had found, in a preliminary ruling handed down in February 2000 regarding a case entitled " Las Palmeras " , that it was not competent to decide whether a ny rules of IHL had been violated. However, it acknowledged its competence to interpret the Inter-American Convention on Human Rights in the light of IHL, as it did later in a case involving Guatemala.
Lastly, the ICC would only try cases that had not been brought before national courts. States that did not wish to surrender presumed perpetrators of serious violations of IHL or of international human rights law could try them in their own courts, as long as domestic criminal legislation provided for punishment of the crimes defined in the ICC Statute.
In his presentation, Dr Elizondo referred to various aspects of the incorporation of international law into domestic law, the amendment of constitutional law and the activity of constitutional courts in light of the theories of dualism and monism, in particular with respect to the relationship established by States between the two types of law. In his opinion, the two systems were not contradictory and should therefore be examined as a single entity.
The approximately 70 treaties and two courts in Europe and America dealing with human rights, to which should be added the treaties on refugee law, were considered complementary under various legal systems. Those treaties were a means of ensuring respect for human rights. Declaration 10/89 of the Inter-American Court of Human Rights, guaranteed by Article 38 of the Inter - American Convention on Human Rights, had had a major impact in that it defined customary law, general principles, case law and doctrine as sources of international law. Regarding treaty-based law, American States took three different positions: for some it carried the same weight as the constitution, with international law taking precedence over domestic law; for others, treaties were subordinate to the constitution but nevertheless took precedence over domestic law (e.g. Guatemala); for others still, treaties were vi ewed as being on a par with federal law (e.g. Mexico).
In that respect, very interesting changes had taken place in Latin America, witness some of the decisions handed down by the constitutional courts of Argentina, Mexico, Costa Rica and the Dominican Republic. The American Convention on Human Rights had been ratified and its compulsory nature was guaranteed in the absence of any other relevant law. Moreover, as stated by the Inter-American Court, every person had the right to full protection of his constitutional rights and no law could deprive him of that right. In conclusion, it was pointed out that treaties took precedence over domestic law in Costa Rica, in Argentina they were considered on a par with constitutional law and in Mexico they had a supra-legal nature.
Mr Molina Quesada spoke about the constant evolution of international law relating to fundamental rights and stressed that those rights had taken on an inalienable character in nations that had ratified the human rights treaties. Such instruments included principles that tended to favour their implementation, such as those of pro libertade and pro homine . All of them must be applied and respected in accordance with the provisions of each national constitution. Human rights had started to develop with the adoption of the United Nations Charter in 1945 and had further progressed with the declarations made in 1948 and later on. International law had increasingly taken precedence over domestic law via the implementation of conventions, treaties and declarations containing such provisions and there was growing interdependency among States – a development that should be viewed as positive.
The 1985 Inter-American Convention to Prevent and Punish Torture upheld and provided for the defence of individual freedoms. It contained rules protecting the dignity and honour of the individual and provided that, in cases where torture was practised, it should not go unpunished, all the more so as there was no statute of limitation for that crime.
In his opinion, the Inter-American Convention to Prevent and Punish Torture should be amended in the following manner: Article 17 concerning the provision of information should be rephrased to make it clear that the activity in question was mandatory for States at national level; it should be a duty for States to broadly disseminate any information that might contribute to preventing torture; and, in connection with Article 9, it should be mandatory to compensate the victims and such compensation should be adequate.
Moreover, the incorporation of international rules into domestic legislation should be required so that compensation was given promptly and the relevant mechanisms constituted a permanent obligation before the Court. Likewise, effective mechanisms should exist to monitor and ensure compliance with all the principles laid down in the Convention. In connection with Article 2, torture was a violation of the rights of the individual and the moral suffering endured by the victims should be clearly mentioned in the definition of that crime.
(ii) Session II:
Implementing the rules of IHL. Importance and difficulties . Diagnosis of the present situation on the continent
The session was moderated by Mr Arturo Donoso , Magistrate, Supreme Court of Justice, Ecuador. The panel comprised the following experts:
Ms Maria Teresa Dutli, Head of the ICRC Advisory Service on IHL
Mr Rodolphe Imhoof, Ambassador of Switzerland to Costa Rica
Mr Charles Leacock, Director of Public Prosecutions, Barbados
The experts discussed the importance of implementing the rules of IHL and provided an overview of the current situation regarding respect for IHL instruments in the Americas. They also referred to the commitment made by the Swiss Confederation, as the depositary State for IHL instruments, to promote and support their implementation at national level. Finally, they commented on the current approach of English-speaking Caribbean States towards IHL and its implementation, and the efforts made by some of those States to incorporate international obligations into domestic law.
Ms Dutli pointed out that the implementation of IHL called for the adoption of measures to ensure that its rules were fully respected at all times. Moreover, such mea sures must be taken not only where a conflict had broken out but also in areas removed from the theatre of fighting and in peacetime. Steps were also required to guarantee that all persons – whether civilian or military – were aware of the rules of IHL, that the structures, administrative provisions and human resources required to apply that body of law were available, and that violations thereof were prevented or punished.
She emphasized that it was mainly up to States to ensure full implementation of IHL. Furthermore, it was not only the parties to conflict but all States party to the 1949 Geneva Conventions (190 States) that were under an obligation to " respect and ensure respect for " IHL in all circumstances, in accordance with Article 1 common to those treaties.
The Geneva Conventions set forth a series of measures that States must take at national level to ensure their implementation. Those mainly included:
(a) translating the texts of the Conventions into national languages;
(b) seading knowledge of the Conventions as widely as possible, both among the armed and security forces and among the general public;
(c) repressing war crimes by enacting national legislation to prohibit and punish them;
(d) ensuring that protected persons and places were clearly defined and correctly identified;
(e) adopting legislation to punish misuse of all protected signs, in particular the red cross emblem;
(f) recruiting and training qualified personnel;
(g) setting up civil defence organizations and national information offices.
She added that unless special laws were enacted to ensure compliance with certain rules of IHL, national authorities would be unable to fulfil their international obligations.
As for delays in developing and implementing IHL, they were attributable in part to a psychological factor. Indeed, IHL was a exceptional law that applied only in situations of armed conflict and the majority of States did not believe that such situations were likely to occur on their territory. As a result, they did not consider the implementation of IHL as a priority.
Another important factor was that implementation depended, at national level, on various government authorities. Unless there was a central coordinating body or authority in charge of the matter, responsibility was diluted and no one took the necessary initiative. In that respect, national committees for the implementation of IHL had a very important role to play.
The ICRC had set up an Advisory Service on IHL to strengthen its support for States endeavouring to promote the implementation of IHL at national level. The Advisory Service emphasized universal acceptance of all IHL treaties, the repression of war crimes, the protection of the red cross and red crescent emblems, the protection of children in armed conflicts, the protection of cultural property in armed conflicts and the establishment of national IHL committees. To that end, the Advisory Service promoted the ratification of the relevant treaties, organized seminars and meetings of experts, provided technical assistance, encouraged exchanges of information and issued publications.
To facilitate the exchange of information on existing national measures and their implementation, the Advisory Service maintained a database of laws, regulations and other domestic legislation relating to IHL, such as national case law, including general comments on the legal systems of different countries. In so doing, the Advisory Service cooperated with regional and international academic and government institutions, such as the Council of Europe, the Commonwealth of Independent States, the OAS, the Commonwe alth Secretariat, UNESCO and various universities.
She then gave an overall assessment of the status of ratification and implementation of various treaties in the Americas, stressing the important advances made.
As for the teaching and dissemination of IHL, significant progress had also been noted in the Americas, both in the training of police and armed forces and in universities. Fourteen national committees for the implementation of IHL, comprising representatives of ministries and other government bodies, had been set up by States to coordinate the adoption of measures for national implementation and act as consultative bodies for the national authorities.
An important process had thus been set in motion throughout the hemisphere to strengthen implementation of international humanitarian law and all States in the region should make an ongoing effort to reflect on that process and take every step to further it since they were responsible for ensuring compliance with the rules of IHL and thus for making sure that individuals were respected during armed conflicts.
Mr Imhoof , recalling the dual obligation of States party to the Geneva Conventions to respect and ensure respect for IHL, pointed out that the former obligation derived naturally from the principle pacta sunt servanda. As for the latter, it implied a specific commitment or shared responsibility to ensure that the actions of each member of the international community respected, both at national and international levels, the universal principles underlying a number of fundamental rights. That obligation was not always easy to fulfil, however, since certain States guarded their sovereignty jealously and drew a fine line between the obligation to ensure respect for IHL and intervention in their internal affairs.
That situation had given rise to what was known as the " right to intervention on humanitarian grounds " , which justified setting aside the principle of State sovereignty in order to assist people whose fundamental rights were being denied. With respect to both human rights law and IHL, however, it was more accurate to speak of the " obligation to intervene " since, if States wished to ensure respect for IHL, intervention was not only a right but an obligation. If one agreed that the principles of IHL were universal, it could be argued that they were part of jus cogens, which was mandatory for all States.
Laudable efforts at international level had produced results and would continue to do so, providing all States persevered in their efforts to ensure compliance with IHL and, in particular, rapidly adopted domestic legislation enabling them to do so.
The status of ratification of international human rights and IHL conventions was encouraging, particularly in the Americas, a region that had in many respects pioneered the implementation of IHL thanks to the efforts of the ICRC and the OAS. Among the most important achievements to date were the ratification by the majority of American States of the Ottawa treaty, participation in the drafting of a convention to fight the proliferation of small arms and light weapons, efforts to promote ratification of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict and broad ratification of the Rome Statute of the ICC. The ICC represented a giant step forward in the endeavour to ensure respect for IHL, an obligation that all States party to the 1949 Geneva Conventions had undertaken.
Ensuring the welfare of the population should be the priority of every government, but this was impossible to achieve wherever fundamental rights were being violated.
Mr Leacock , commenting on the approach of English-speaking Caribbean nations towards IHL and its implementation, explained that IHL was not a priority for governments in the region since they had no recent experience of armed conflict and had limited human resources.
Those governments should nevertheless adopt certain practical measures, such as designating an authority responsible for assessing how efficiently IHL was being incorporated into domestic legislation, identifying shortcomings and taking necessary action. In Trinidad and Tobago, for instance, an interministerial committee had been appointed to examine the question of adherence to the 1977 Protocols additional to the Geneva Conventions and had subsequently presented a set of recommendations to the authorities concerned. Several other specific examples of efforts made by States in the region to promote respect for IHL were mentioned.
With respect to armed conflicts, member States of the Caribbean Community (CARICOM) had recruited and placed military forces on active duty during the rebellion in Grenada. That experience had shown that armed forces in the region needed to be aware of the rules of IHL in case of a similar crisis in the future. Important efforts were currently being carried out, with the support of the ICRC, to spread knowledge of IHL as part of military instruction programmes.
With the rise of globalization, CARICOM States had also been invited to join several peacekeeping missions – for example, in Haiti and Namibia – by providing civilian and military personnel specialized in IHL and human rights law.
As far as cul tural property was concerned, the authorities of Barbados had shown an interest in defining the items to be protected in armed conflict and in implementing the 1954 Hague Convention and its protocols.
The establishment of national committees for the implementation of IHL had led to tangible progress in several countries but their suitability for small Caribbean countries was questionable and should be assessed on a case by case basis.
Fundamental rights were guaranteed by the constitutions of all the region's countries. With a view to avoiding arbitrary treatment, both their relevant provisions and decisions taken by the executive branch of governments were subject to periodical judicial review. Public prosecutors could also supervise government administrations and prevent acts that violated constitutional provisions.
B. Part II: Specific topics
(i) Round table I:
National mechanisms for the implementation of IHL and related
inter-Americanconventions. Functions and role of national IHL
committees and similar bodies .
The round table was moderated by Ms Maria Teresa Dutli, Head of the ICRC's Advisory Service on IHL, with Ms Tathiana Flores Acuña , Legal Adviser to the ICRC regional delegation for Central America, acting as rapporteur. It comprised the following experts:
INTER-INSTITUTIONAL COMMITTEE ON IHL, EL
Ms Jacqueline Cruz and Mr Ernesto Villalobos, members
NATIONAL COMMITTEE ON IHL, BOLIVIA (CNADIH)
Ms María Alicia Terrazas Ontiveros, member
PERMANENT NATIONAL COMMITTEE FOR THE IMPLEMENTATION OF IHL, PANAMA (CPDIH)
Ms Angela Healy, President
AD-HOC COMMITTEE FOR THE STUDY OF THE 1977 ADDITIONAL PROTOCOLS, TRINIDAD AND TOBAGO
Mr Eden Charles, member
The round table focused on the work of several national IHL committees in the region, including their main achievements and the challenges faced by committees which for one reason or another had been unable to comply fully with their mandates. Progress made in countries where no such national body existed was also discussed.
The participants agreed that in many cases national IHL committees had proved to be a satisfactory mechanism in facilitating State ratification of or accession to the relevant instruments, compliance with their rules at national and international level and their dissemination of those rules throughout society.
Experience had nevertheless shown that substantial steps could be taken towards achieving those goals even in the absence of a national IHL committee.
The fact that three of the committees under discussion were permanent and one had been set up on an ad-hoc basis explained the differences in their roles and the scope of their mandates. The three permanent committees, established by executive decree, were responsible for monitoring the implementation of IHL and promoting and spreading knowledge of its rules. The ad-hoc committee, from Trinidad and Tobago, was set up for the specific purpose of studying the provisions of the 1977 Additional Protocols and advising the government regarding its possible accession thereto.
All the participants described the setting up, mandate and main activities of their national committees, which included promoting ratification of or accession to IHL instruments, disseminating their rules and incorporating those rules into domestic law.
From an organizational point of view, the three permanent IHL committees were quite similar. At the executive level, they included representatives from the respective ministrie s of foreign affairs (responsible for chairing the committees or for their overall work), justice, defence or security, and education and health; the office of the public prosecutor and the office in charge of defending citizens'rights.
At the legislative level, some committees included representatives of human rights, foreign affairs or legal bodies. Others – not among those taking part in the round table – had representatives of the judiciary, which was of great importance in ensuring follow-up to legislative initiatives and the implementation of subsequent amendments.
A standard feature of most national IHL committees was that they held regular meetings and submitted annual reports to the ministry of foreign affairs and central government.
The committees taking part in the round table had set up sub-committees so as to be able to fully discharge their mandates and carry out in-depth studies on various topics, such as legislation, protection of the emblem, training and dissemination and independently managed activities.
According to the participants, the work of the sub-committees had produced excellent results. Particular mention was made of the preparation by the CIDIH-ES of an educational version of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols, the drafting by the CPDIH of proposed amendments to its country's penal code in order to provide for the punishment of serious violations of IHL and a study carried out by Bolivia's CNADIH with a view to promoting the ratification of or accession to IHL instruments. Progress made in disseminating IHL among public officials, university students and the general public was also highlighted.
The mandate of the ad-hoc committee of Trinidad and Tobago, which had prepared a document recommending that the government accede t o the Additional Protocols, was extended to carry out a study of the 1954 Hague Convention and its two Protocols and the 1980 United Nations Convention on Conventional Weapons and its four Protocols.
During the round-table discussions and presentations, it was pointed out that several challenges had to be met if national IHL committees were to be successful. First of all, the political will underlying their establishment must be accompanied by the funds necessary for them to fulfil their mandates. Financial support, even limited, was essential if the committees were to function. In particular, they needed funds to maintain a permanent secretariat, which in most cases was the driving force behind their work.
Secondly, the rotation of committee members and substitute members meant that training had to be provided on a continual basis if the desired level of expertise in IHL was to be maintained. The situation nonetheless presented an advantage in that more and more people were becoming aware of the importance of implementing IHL in peacetime.
The participants concluded that the existence or absence of a national committee and the nature of its agenda depended on the country's historical and social context. In the case of El Salvador, for instance, the horrific experiences of the recent armed conflict explained why keen awareness already existed, at national and governmental levels, of the importance of promoting and implementing IHL. As for Panama, the preventive role of the national committee was underscored and its mandate was seen as part of an effort to promote the ratification of or accession to IHL instruments and universal respect for the law they embodied.
In order to enable participants to pursue their efforts to improve compliance with IHL worldwide, the head of the Advisory Service informed them about the next meeting of representatives of national committees, which was to be held with the support of the ICRC. The meeting would provide a forum for exchanging experiences and information and for assessing the work of the national committees with a view to bringing about greater respect for the fundamental rights laid down in each and every IHL instrument.
(ii) Round Table II:
The protection of children in situations of violence.
The round table was moderated by Ms Carmen Claramount, Adviser to and representative of the Minister of Justice of Costa Rica, with Ms Susana Fraidenraij, Legal Coordinator at the ICRC delegation in Colombia, acting as rapporteur. The panel comprised the following experts:
INTERNATIONAL COMMITTEE OF THE RED CROSS
Ms Cristina Pellandini, Legal Adviser for Latin America, ICRC Advisory Service on IHL
Ms María Jesús Condé, Adviser, UNICEF Child Protection Program me for Latin America and the Caribbean
Ms Beatriz Linárez Cantillo, Ombudsman for the defence of children´s rights
Mr Mario Polanco , member of the Grupo de Apoyo
Mutuo (mutual support group)
The round table focused on sharing information about the legal protection afforded to children in armed conflicts and situations of violence, encouraging States to adopt national measures – in particular legislative ones – for the protection of children and discussing practical steps to mitigate the negative effects of violence and create a favourable environment for the full development of children.
Ms Pellandini approached the topic of protection for children in armed conflicts by referring to the relevant provisions of the four Geneva Conventions of 1949 and their two additional Protocols of 1977.
Protection under those instruments was both general and specific. Indeed, children were entitled to the protection afforded all civilians not participating in the hostilities and to special protection in view of their particular vulnerability. The general protection afforded children was based on the right to life and humane treatment, and on the distinction that parties to conflict must draw between combatants and civilians not participating in the hostilities and the ensuing prohibition on attacks targeting the latter.
As for specific protection, it arose from the provisions of the Fourth Geneva Convention concerning the obligation to respect and p rotect children against all forms of abuse, to evacuate them as needed, to care for and assist them, to help reunite them with their families in the event of separation, to see to their education, to preserve their cultural environment, to grant special treatment to children in detention and to refrain from imposing the death penalty on children under the age of 18. Unlike adults, children who participated in hostilities continued to benefit from special protection under IHL. Minors participating in hostilities were considered as combatants, even though children under 15 were prohibited from such involvement.
A number of other IHL instruments likewise afforded children specific protection. The 1989 Convention on the Rights of the Child, which, in Article 38, extended the scope of application of Additional Protocol I of 1977 to non-international armed conflicts, prohibited the recruitment of children under 15 and urged that, if minors between 15 and 18 were recruited, the oldest be taken first. As for the Convention's Optional Protocol on the involvement of children in armed conflict, adopted in May 2000, it set the minimum age for recruitment at 18 years, prohibited mandatory recruitment and laid down the obligation for States to define such acts as criminal.
Another instrument that had recently improved the protection afforded to children was the Rome Statute of the ICC, which included the recruitment and forced participation in hostilities of children under 15 among the acts it listed as war crimes.
Despite such positive legal developments, thousands of children continued to be affected by armed conflicts. States must therefore take the necessary steps to ratify the treaties of IHL granting protection to children and ensure their implementation, in particular in relation to detention and the deprivation of freedom, the death penalty, recruitment into the armed forces, participation in hostilities and education.
Ms Condé provided some figures to illustrate the dire situation of children affected by armed conflicts. Over the previous decade, two million youngsters had lost their lives in armed conflicts, four million had gone missing, more than 20 million had been displaced by violence and some 300,000 were estimated to have played an active part in hostilities. The main role of UNICEF in such situations was to set up cooperation programmes for children based on a comprehensive approach taking into account the relationship between physical and emotional security, cognitive and social development and nutritional and other health needs.
UNICEF also strove to promote universal ratification of international treaties relating to children and cooperation with the United Nations, governments and NGOs in devising policies and strategies to ensure special protection and assistance for children in armed conflicts and situations of violence.
UNICEF programmes in the region had included nine vaccination campaigns carried out in El Salvador between 1985 and 1987 during the " days of tranquility " (agreed pauses in the hostilities), efforts to eradicate anti-personnel landmines, assistance for displaced children and child soldiers and the rehabilitation of children in the aftermath of conflicts, such as its pilot programme for the psychological and social rehabilitation of children from the Ixil region of Guatemala.
Ms Linárez Cantillo , referring to the specific case of Colombia, explained that even though the country had ratified the instruments of IHL, their rules had not yet been fully incorporated into domestic legislation. The 1997 Public Order Act, which punished attacks on the civilian population, set forth State responsibility towards the victims of armed conflicts, incl uding the duty of the authorities to protect them, and prohibited the recruitment of children under 18. In accordance with that Act, in 1999 the armed forces had released every minor from military service. Although armed groups claimed to comply with the rules of IHL setting the minimum age of recruitment at 15, it was estimated that 30 per cent of the children in those groups were younger. The discrepancy that exists at present in international norms (IHL treaties and the Optional Protocol of 2000 to the Convention on the Right of the Child) should be resolved in Colombia by opting for the norm most favourable to children.
The new penal code, which had come into effect in July 2000 , included a special chapter on violations of IHL that set out various humanitarian norms. The Convention on the Rights of the Child, ratified in 1991, had not yet been incorporated into domestic law.
Some 6,000 children were linked to armed groups in the country. The majority of them served as combatants and the others were involved in no-less-hazardous intelligence operations. In the previous three years, it had been possible to release 600 and send them to social-welfare institutions.
Under Colombian legislation, those children were considered to be at risk. However, owing to the nature of their situation, their protection called for different treatment than that envisaged for children who had violated ordinary criminal law. Such an approach was in conformity with the provisions of Additional Protocol II of 1977, the 1989 Convention on the Rights of the Child, the American Convention on Human Rights and the 1997 Public Order Act.
Mr Polanco , referring to the situation in Guatemala, noted that the country had recently put an end to an internal armed conflict that had lasted for 36 years, claimed 150,000 lives and left 50,000 people unaccounted for, including 5,000 children. Children had been a prime target of the conflict: many had been separated from their families, others had witnessed the death or torture of one of their parents and still others had been the victims of extrajudicial executions. Another serious problem was the illegal adoption of children by their own tormentors or by third parties. They had been seen as " war booty " and illegal adoption had become a profitable business, one that had continued even after the signing of the peace accords.
The State had not set up the necessary legal mechanisms to put an end to those problems. Even though Guatemala was a party to the Convention on the Rights of the Child, the notion prevailed that children, being minors, had no rights. National legislation was therefore not in conformity with international norms in that area.
Various steps could be taken to help protect children affected by such problems, including the implementation of relevant treaties ratified by Guatemala; the adoption by the State of legislative, political and other measures necessary to guarantee children's rights; community mobilization; help from the Church in resolving the problems of especially vulnerable youngsters and the establishment of organizations for the defence of children's rights.
The participants agreed that IHL provided the basic rules for protecting children in armed conflicts and situations of violence, and various other treaties, such as the Convention on the Rights of the Child and its Optional Protocol on the involvement of children in armed conflict, extended that protection even further. In practice, however, compliance with and effective implementation of those instruments were still far from being achieved. Efforts to ensure that children could fully exercise their fundamental rights should therefore not be abandoned.
In conclusion, two youngsters from Pavas, a shantytown near San José, testified to the daily difficulties children faced in their community.
(iii) Round table III:
Preventing and punishing violations of IHL and human rights law.
The round table was moderated by Ms Sonia Picado Sotela , Congresswoman and member of the Executive Board of the International Institute of Human Rights, with Mr Gabriel Pablo Valladares , Legal Adviser to the ICRC regional delegation for Argentina, Bolivia, Chile, Paraguay and Uruguay, acting as rapporteur. It comprised the following experts:
INTERNATIONAL COMMITTEE OF THE RED CROSS
Ms Cristina Pellandini, Legal Adviser for Latin America, ICRC Advisory Service on IHL
PROSECUTOR'S OFFICE, INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
Mr Xavier Aguirre
UNIVERSITY OF CHILE
Mr Miguel Soto Piñeiro , Professor of Criminal Law
ARME D FORCES OF MEXICO
Major Miguel Ángel Delgado Villanueva
Ms Pellandini , outlining the various mechanisms provided for under IHL and human rights law to deal with serious violations thereof, explained that the 1949 Geneva Conventions, their Additional Protocols of 1977 and a number of other IHL treaties explicitly required States parties to repress, by means of criminal law, certain breaches committed in armed conflicts. Moreover, those States had an overall obligation to enact domestic legislation to punish such breaches.
Far from being silent on the topic of serious violations, IHL stipulated that the perpetrators thereof must be prosecuted and punished like ordinary criminals. They could be tried either by a national court, by a special international tribunal or even by the ICC, once it began to function.
In accordance with the basic principle of international treaty law, pacta sunt servanda , States must comply in good faith with the commitments they made when ratifying or acceding to IHL instruments and prevent any violations of their rules. Moreover, under Article 1 common to the four Geneva Conventions, States had the individual and collective obligation to respect and ensure respect for the rules thereof.
In addition to those basic obligations for States, the Geneva Conventions and their Additional Protocols included a complex system of mechanisms to prevent and punish violations.
IHL laid down the principle of individual criminal responsibility on the part of those who committed or ordered others to commit acts contrary to its rules and required that the perpetrators of serious breaches be tried and punished regardless of their natio nality or the place where the acts were committed. In ratifying the Geneva Conventions and their Additional Protocols, States had undertaken to:
search for persons accused of having committed or ordered others to commit any of the serious breaches mentioned in those instruments;
prosecute the presumed authors of breaches without delay and order them to appear before the country's courts in accordance with the principle of universal jurisdiction, i.e. regardless of their nationality or the place where the crime was committed, or extradite them for trial by another State;
instruct the officers of their armed forces to prevent grave breaches, put an end to those being committed and take the requisite measures whenever persons under their orders committed such acts;
adopt the legislative, criminal law and administrative measures necessary to comply with their obligations under IHL, in particular by incorporating into domestic law those acts that constituted grave breaches.
It was regrettable that IHL treaties did not provide for the repression of serious violations committed in non-international armed conflicts. However, on the basis of customary law, the case law of ad hoc criminal tribunals and the definition of war crimes set out in Article 8 of the Rome Statute of the ICC, those violations could be considered to have been defined as war crimes and were therefore punishable, possibly in application of the principle of universal extraterritorial jurisdiction.
Other important IHL treaties based on the Geneva Conventions contained similar obligations with respect to the prevention and repression of violations. Moreover, with the adoption of the Rome Statute, a new mechanism had been added to the overall system for the repression of war crimes, whose elements and principles not only underpinned the Statute but had been further developed therein.
It had to be acknowledged that the above-mentioned repressive mechanisms had not been effective in practice, owing to the failure to resort to them, a lack of political will and the reluctance of States to apply the principle of extraterritorial jurisdiction. Nevertheless, over the previous decade – largely under the pressure and influence of the International Criminal Tribunals for the former Yugoslavia and Rwanda, respectively located in The Hague and Arusha – more and more States, particularly European ones (e.g. Belgium, Denmark and Switzerland), had prosecuted perpetrators of serious violations of IHL and human rights law, committed in the former Yugoslavia, Rwanda and elsewhere, in their national courts.
It was a welcome development that an increasing number of States, including several from the Americas (e.g. Argentina, Bolivia, Chile, Costa Rica, El Salvador, Nicaragua, Honduras, Panama and Colombia), were in the process of incorporating IHL provisions into their domestic legislation, especially their penal and military codes.
Mr Aguirre described the origin, establishment, functioning, jurisdiction and work of the International Criminal Tribunal for the Former Yugoslavia (ICTY).
He stressed that the laws underpinning the Tribunal were ancient; what was new was the will to implement them in the current context. Contrary to the ICC, which was set up on the basis of an agreement, the ICTY was an ad-hoc body established pursuant to a resolution of the United Nations Security Council.
The ICTY had come into being in exceptional circumstances shaped by the severe crimes committed since 1991 in the former Yugoslavia, the international political situation at the time and new developments in the humanitarian sphere promoted by, among others, the International Committee of the Red Cross.
The ratione materiae jurisdiction of the ICTY encompassed serious breaches of the Geneva Conventions, violations of the customs and law of war, genocide and crimes against humanity. A major criterion was set forth in the report of the United Nations Secretary-General that served as a basis for interpreting the ICTY Statute, namely that crimes tried by the ICTY must clearly come within the scope of customary international law. In other words, the principle of legality must be respected so as to avoid the kind of criticism levelled at the Nuremberg and Tokyo tribunals.
The ICTY had succeeded in implementing IHL in full accordance with its substantive and procedural requirements (procedural in the sense that individual criminal responsibility was discussed in adversary proceedings, before impartial judges and with due respect for the rights of the accused, e.g. the presumption of innocence). Article 7 of the ICTY Statute, concerning individual criminal responsibility, was of particular interest. It stated, in paragraph 1, that " a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime " could be held responsible for that crime. Paragraph 2 stipulated that holding an official position did not relieve a person of criminal responsibility and paragraph 3 dealt with command responsibility. Under paragraph 4, the argument that the accused person had obeyed superior orders in committing a crime could in certain cases be considered as an attenuating circumstance but not as grounds for acquittal.
In indicting senior military and political leaders, the ICTY had gone further than expected. The Milosevic case marked the first time that an active head of State and his ministers were being prosecuted.
The following three important judgements illustrated the recent work of the I CTY.
Judgement of 20 February 2001, Celebici camp case – the Tribunal upheld on appeal the decision of the Trial Chamber in the first case dealing with the responsibility of a superior.
Judgement of 22 February 2001, Foca case – Three people were convicted of the selective detention, rape and enslavement of women on account of their ethnic origin.
Judgement of 26 February 2001, Kordic and Cerkez case – A prominent political figure and a brigade commander were convicted of war crimes.
The ICTY's work was complicated and sufficient resources and time were therefore needed to ensure its effectiveness. The case law of such tribunals was a valuable source of international law that could and should be incorporated into domestic legislation. Moreover, every effort should be made to keep national judges informed of that law.
Dr Soto Piñeiro spoke about the incorporation into domestic legislation of possible supranational obligations relating to protection through criminal law, basing his comments on a report by a group of experts in criminal law from the University of Chile, of which he was a member. The report had been prepared at the request of the country's Ministry of Justice with a view to facilitating efforts made by the Chilean IHL committee to adopt national measures in that respect.
His presentation focused on the importance of defining the scope within which protection through criminal law was mandatory at international level and to what extent its incorporation into Chilean criminal law was compulsory. In his view, supranational obligations were explicitly set forth in the Geneva Conventions and their Additional Protocols with respect to grave breaches, since those instruments stipulated, at least in the event of international armed conflicts, that the offences described therein must be made punishable under domestic legislation.
To put it briefly, the normative model for such matters should be the 1998 Rome Statute of the ICC, for reasons both of legal policy and relevance. Although the Statute – unlike the Geneva Conventions and Additional Protocol I – did not lay down the obligation for States to punish, it established the degree of relevance of domestic legislation at international level.
The unacceptable yet inevitable paradox of criminal law was that, in and of itself, it was a source of danger to those whom it was intended to protect. For that reason, jus puniendi had to be exercised in accordance with strict standards designed to ensure its legitimacy. The punitive aspect of international human rights law was also subject to strict monitoring since a number of rules and principles existed which limited the exercise of jus puniendi within its ambit.
The establishment of fundamental rights automatically implied prohibitions, but not the obligation to punish. Those rights could also give rise to the obligation to protect, and hence the obligation to regulate, that is to lay down norms of behaviour whose practical and legal cons equence was the voidable or unenforceable nature of claims contrary to those norms, the exclusion in principle of any justification for violations of the norms and the duty to make reparations for any damages caused.
The obligation to protect did not, however, give rise to the obligation to punish – the relationship between protection and punishment was not analytical but functional and depended on the principle of proportionality (prohibition both of excessive punishment and of impunity). The same principle governed the relationship between the obligation simply to punish and the obligation to punish through criminal law, as long as the prima facie legitimacy of such punishment could be established.
The obligation to punish an act did not necessarily entail the obligation to make it a criminal offence (i.e. literal incorporation into domestic law of the authoritative international text), only the obligation to impose a penalty. That implied semantic and symbolic consistency (even of nomen juris ) between the international rule and the punishment provided for under domestic law. As a general rule, the supra-legal obligation to punish an act implied establishing a penalty; where it entailed making an act a criminal offence , the obligation could be more or less strict.
In any event, with regard to criminalization, it was important to address the problems of conformity and of respect for the rules and principles that limited jus puniendi and established the pre-eminence of international human rights law over criminal law, as a guarantee in case of a conflict of law.
The group of criminal law experts in charge of examining the matter and drafting recommendations decided to follow the Belgian model and include the pertinent rules and principles in a specific law rather than in the penal code, despite the conflicts of interpretation to which that could give rise. With respect to making genocide a criminal offence, the main model chosen was the German penal code, with certain aspects drawn from the Austrian penal code, especially concerning the subjectifs elements of " injustice " .
As for the section of the report on war crimes, entitled " Crimes against individuals and property in the event of armed conflict " , it was based on the 1995 Spanish penal code and encompassed violations committed both in international and non-international armed conflicts.
In conclusion, the experts in criminal law from the University of Chile had tried, in their report, to define crimes in accordance with the acts described in the Rome Statute , using as a basis, among other texts, the above-mentioned legal instruments and the French penal code of 1994.
Major Miguel Ángel Delgado Villanueva described the efforts made by the Mexican armed forces to ensure that military personnel were fully aware of the importance of respect for human rights when carrying out the duties assigned to them under the country's constitution and that they refrained from engaging in unlawful conduct.
Moreover, Mexico had undertaken commitments at international level to define, promote and protect the fundamental rights of the individual, for which it had every regard. One of the main aims of the administration of President Vicente Fox was to foster a climate of respect for human rights. The Ministry of Defence, as part of the federal administration, had a solemn duty to impl ement President Fox's guidelines in that regard. To that end, it was pursuing action undertaken by the military since 1932, the year in which the military code of justice, containing various provisions on respect for human rights, had been enacted. Following the President's guidelines, in 2001 the Ministry of Defence had set up a programme to promote and strengthen human rights, which was currently being carried out. Its main purpose was to increase respect for human rights within the armed forces.
If a violation of human rights law was committed by a member of the Mexican armed forces and the victim reported it to the National Commission on Human Rights, the accused would be tried under the law of armed conflict.
Given the concern of the high command that military personnel not engage in unlawful acts, a number of other activities were being carried out to strengthen respect for human rights. Those included advanced military instruction, courses in human rights law, postgraduate and masters degree programmes, the incorporation of human rights law into military training and publications on the subject. A series of conferences was also held in 2000 to bolster respect for human rights by military personnel and another series would be completed in 2001.
Complaints of human rights abuses and the ensuing recommendations issued by the national ombudsman were examined and followed up with a view to identifying the circumstances in which they had occurred. Moreover, among the criteria used to evaluate candidates for promotion to a higher rank was their knowledge of human rights law.
In conclusion, the speaker outlined the mechanism used by the National Commission on Human Rights to process complaints against military personnel.
During the round-table discussions, the participants also addressed the possibility of setting up ad-hoc tribunals for other countries, the functioning of the Mexican National Commission on Human Rights and various questions relating to the definition of international crimes and the guarantees laid down in the Statute of the ICC.
Finally, Ms Picado Sotela spoke about her experience as United Nations special rapporteur on East Timor.
(iv) Round table IV:
Repercussions of the proliferation and availability of weapons, particularly small arms and light weapons, on human security and the civilian population
The round table was moderated by Ms Margaret Mason , Chairman of the United Nations Group of Governmental Experts on Small Arms, set up pursuant to Resolution 54-54V, with Mr Olman A. Rodríguez , member of the National Commission for the Improvement of the Administration of Justice of Costa Rica, acting as rapporteur. The panel comprised the following experts:
Mr Luis Alfonso de Alba , Director General for the United Nations System, Ministry of Foreign Affairs
ISER-VIVA RIO, BRAZIL
Mr Ignacio Cano, Researc her and Professor, University of Rio de Janeiro
ARIAS FOUNDATION FOR PEACE AND HUMAN
PROGRESS, COSTA RICA
Mr Carlos Walker Uribe, Programme Officer
The main aim of the round table was to provide up-to-date information and allow an exchange of opinions on:
(a) The efforts being made at international level to limit the availability of small arms and light weapons, in particular those embodied in the OAS Convention against the illicit trafficking in firearms, the negotiations on the Vienna firearms protocol, the process leading up to the 2001 United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, including meetings convened ahead of the Third Preparatory Committee sessions to be held in New York from 19 to 30 March 2001, and the Conference itself.
(b) The proposed Code of Conduct on Arms Transfers.
Another aim of the round table was to present the report of a group of governmental experts on the enactment of more effective legislation concerning the trade in small arms and light weapons.
Mr De Alba reviewed various aspects of the main topic, stating that the OAS Convention had not been given due attention in discussions on the adoption of the Vienna firearms protocol. He referred to the draft plan of action prepared in connection with the 2001 United Nations Conference and underscored the disagreement among member States on the means of achieving the basic goal of reducing the availability of light weapons. In his opinion, all States should adopt a common approach that would ensure a positive outcome to the Conference.
Different approaches could be taken, ranging from arms contro l to crime prevention, including one that emphasized the ethical aspects of the issue and the interests of the general public. All of them were valid provided they were undertaken in a complementary fashion.
Mr Cano , referring to the case of Brazil, described the efforts made by members of civil society to promote disarmament by discouraging the sale and purchase of light weapons and improving controls over them. The steps taken included public information campaigns to counter the arms industry's endeavour to create an artificial need for weapons among the population, programmes to encourage people to surrender their weapons voluntarily and efforts to ban all sales of small arms and light weapons, with only a few exceptions. Moreover, steps had been taken to improve the situation by providing technical assistance to the police in registering weapons and support for the regional harmonization of weapons transfers within the Mercosur member countries.
After presenting the Code of Conduct on Arms Transfers, Mr Walker Uribe noted that the source of most illegal weapons was the legal arms trade. Weapons used to commit human rights violations were generally diverted from legal purposes and taken to areas where control over them was lax. Another key issue was the meaning of the term " legal " , which should not be limited to that which governments authorized. Since Article 1 of the Geneva Conventions laid down the obligation to ensure respect for IHL, any assistance given by one State to another that resulted in the commission of an illegal international act constituted a violation of IHL in and of itself. That principle was the cornerstone of the proposed Code of Conduct, which sought to limit transactions that could lead to violations of IHL, international human rights law or any other relevant legislation.
A lively discus sion ensued about Costa Rica's efforts to include the Code of Conduct in the Action Plan of the 2001 United Nations Conference and to establish a follow-up mechanism. Attention was drawn to the important role played by the ICRC in stressing the dire impact which the proliferation of small arms and light weapons had on civilian populations. It was also pointed out that the culture of violence, the deadly effects of weapons – including small ones – and the need to apply strict controls over them, had to be dealt with globally. However, some States considered that discussions should be limited to the illicit trade in those devices so as to elude State and industry responsibility for illegal trafficking to sensitive destinations.
Lastly, it was emphasized that small arms considered to be legal constituted a problem worldwide and that responsibility for it lay with the international community. Indeed, even the smallest State could become an exporter of weapons (such as surplus police firearms) or a place of transit.
C. Part III: International criminal justice. Towards the ratification and implementation of the 1998 Rome Satute of the International Criminal Court (ICC).
(i) Introductory session:
The International Criminal Court.
A new mechanism to punish serious violations of IHL and
human rights law
The session was moderated by Mr Michael Leir, Legal Adviser, Department of Foreign Affairs and International Trade, Canada. The panel comprised
Ms Elisabeth Odio Benito, Acting President of the Republic of Costa Rica
Ms María Teresa Dutli, Head of the ICRC's Advisory Service on IHL.
In his introduction, Mr Leir pointed out that the adoption of the Rome Statute of the ICC on 17 July 1998 had come too late for millions of civilians, including women and children, who had lost their lives or their health, their belongings or their dignity, in the many conflicts that had taken place in the past 50 years.
Today, the need for a permanent and impartial court in charge of prosecuting the most serious crimes committed worldwide was more evident than ever. The establishment of the ICC was the culmination of many years of work aimed at moving forward from a culture of impunity to one of accountability. The Rome Statute represented a well-balanced effort to create a solid court, whose strength rested on the provisions enshrined in its Statute and on the broad and ever-increasing support of States f or the new institution. In 1998, 120 States had voted in favour of the Statute (with seven voting against and 21 abstentions). The Statute had been approved by the majority of States because they knew that, after five decades of reiterated and frustrated efforts to set up an international criminal court, it would have been a mistake not to seize such an historic opportunity.
Two years later, support for the ICC was greater than ever: 139 States had signed the Statute, 30 had ratified it and at least 20 were actively involved in the process of ratification or accession. A total of 60 States must ratify or accede to the Statute before the Court could become a reality. Today the question was no longer if but when there would be an ICC. Optimists thought the Statute would come into force during the year, others set the date in 2002. Yet only two years earlier, pessimists had claimed that it would be decades before the Court could be set up. While some States continued to express reservations concerning the Rome Statute, their numbers were dwindling.
Indeed, knowledge of the Statute and the Court itself (which was designed to function as a judicial body, not a political one) was growing. As a result, acceptance of the Statute had become increasingly widespread – several States that had hesitated to support the text in Rome were now defending it as an achievement of the entire international community. Moreover, the Court was not merely an idea on paper but would soon become a reality. The majority of States were therefore making the necessary practical arrangements to ratify or accede to its Statute.
A milestone had been reached in June 2000 when the Preparatory Commission for the ICC adopted by consensus two major documents, namely the Rules of Procedure and Evidence and the Elements of Crimes. Several countries that had originally abstained or had voted against the Statute had joined the consensus.
When the Rome Statute was approved, it included but did not define the crime of aggression. Such an unorthodox approach stemmed from the fact that States had agreed on the importance of including that crime in the Statute but could not agree on its definition. The crime of aggression would come within the Court's jurisdiction as soon as a definition could be agreed on by consensus and approved by the Review Conference. Many States had said that they would not ratify the Statute as long as the crime of aggression remained undefined. However, it had since been widely acknowledged that, although it was essential ultimately to define the crime of aggression, discussion of the matter should not delay ratification and implementation of the Statute. States had come to realize that it was better to give the Statute immediate effect since the crime of genocide, crimes against humanity and war crimes were being committed worldwide. They were also aware of the importance of punishing those crimes. Many States had therefore decided to ratify and implement the Statute and meanwhile to take part in further discussions on the crime of aggression.
Since the Statute's entry into force had received a fresh impetus, those discussions might continue within the Assembly of States Parties that was to be set up once 60 States had ratified or acceded to the document. Many States had decided to join that Assembly so as to ensure that their voices would be heard in any discussions on the crime of aggression that took place in that forum.
A large number of OAS States had already signed, ratified or acceded to the ICC Statute. In so doing, they had undertaken certain obligations, such as that of cooperating with the Court by detaining and handing over suspects. However, there was another possibility: under the Court's complementarity regime, States could themselves investigate and prosecute persons accused of genocide, crimes against humanity or war cr imes instead of delivering them to the ICC.
The complexity of the ICC Statute and the fact that the obligations it entailed had been set out in detail called for the adoption of national measures. Some States would have to enact general implementation laws or draft new legislation on the ICC. Others might introduce amendments to their penal codes and mutual assistance legislation. Representatives of OAS States, civil society and international organizations had already held many conferences and seminars to discuss the issues of ratification and implementation.
On 29 July 2000, Canada had become the first country to introduce a general law providing for the implementation of the Rome Statute (Crimes Against Humanity and War Crimes Act). In the belief that their experience could be of use to other States involved in the implementation process, the country's authorities had decided to finance the preparation of a manual on the subject and to launch a campaign aimed at promoting ratification of, accession to and implementation of the Statute worldwide.
Ms Dutli , speaking from the point of view of the ICRC and other humanitarian organizations, raised three topics:
the importance of the establishment of the ICC from the ICRC's perspective;
the advances and shortcomings observed;
the activities carried out or planned by the ICRC with a view to promoting the ICC's proper functioning.
With respect to the first topic, many people believed that the adoption of the Rome Statute – the legal basis for the ICC, which would enjoy legal personality and have its headquarters in The Hague – was as important an historic event as the adoption of the United Nations Charter had been in its day. Indeed, the ICC constituted a powerful and necessary legal mechanism fo r ensuring that persons who violated fundamental principles of IHL and human rights law would not go unpunished. Its importance also derived from the growing number of States that had ratified the Statute. The progress made in the previous two years was greater than expected since half of the necessary ratifications had already been received.
Adoption of the Statute also marked a major development in the field of IHL since, under its provisions, violations of the rules applicable in non-international armed conflicts were considered as war crimes.
Moreover, the Statute defined as war crimes or grave breaches of IHL certain acts that were not considered as such under IHL and gave the ICC jurisdiction over them. Those acts included the recruitment of children under the age of 15 into the armed forces or other armed groups, their forced participation in hostilities, sexual violence and attacks against the personnel of humanitarian agencies.
The Statute nevertheless also presented certain shortcomings. During the negotiations, some acts prohibited by IHL and considered as war crimes under it had been left out, in particular:
unjustified delay in the repatriation of prisoners of war and civilian internees after the end of hostilities;
the use of weapons with especially cruel effects, a topic that was barely mentioned in the Statute.
However, the Statute provided for the possibility of expanding certain prohibitions by means of an amendment mechanism that would exist for seven years after its entry into force.
Article 124 presented a problem in that it allowed States, upon ratifying the Statute, to exclude the jurisdiction of the Court with respect to war crimes for a period of seven years after its entry into force. Moreover, the Statute imposed various limitations on the ratione materiae jurisdiction of the Court. However, those limitations were not exclusive since the acts defined in Article 8 of the Statute were considered to be war crimes, in particular if they were committed as part of a general policy.
As part if its activities aimed at promoting the proper functioning of the ICC, the ICRC had closely followed the negotiations leading up to the adoption of the Statute. It had also played an important role in drafting Article 8 and in preparing the document on the elements of crimes that was to be approved by member States and would serve to guide judges, although it did not have a binding character. The organization had also carried out a study of national and international case law on war crimes.
Lastly, the ICRC was striving to promote the provisions of the ICC Statute regarding the principle of complementarity so that States that so desired could exercise their national jurisdiction.
Ms Odio Benito said that the adoption of the Rome Statute by the international community on 17 July 1998 had been nothing short of a miracle since, owing to the complexity of the endeavour, it had required sustained efforts on the part of many people and organizations.
To recapitulate, in the late 1940s three initiatives had been submitted to the United Nations General Assembly: the Universal Declaration of Human Rights, the Convention on the Prevention and Punishment of the Crime of Genocide (the elimination of a group because of their ethnic origin or religion) and the establishment of an international criminal court. The first two initiatives had been approved in 1948, but not the third one. The beginning of the twentieth century had witnessed the horrors of the First World War, which had affected millions of civilians. Then came the Second World War, with the holocaust, wholesale bombing and the destruction of entire towns by forces on both sides (allied soldiers had been denounced for the rape of many German women), all of which claimed an overwhelming number of civilian victims. Those events had led to the establishment of the Nuremberg and Tokyo tribunals.
The Nuremberg Tribunal, which had prosecuted perpetrators of serious war crimes, constituted a major step forward. However, it had only tried members of the defeated side. Instead of being a truly independent international tribunal, it was thus a multinational body representing only the victorious side.
General MacArthur had set up the Tokyo Tribunal along the same lines as the Nuremberg Tribunal, in order to prosecute Japanese accused of committing crimes during the Second World War. Unfortunately, offences against women were not taken into consideration by the Tribunal as the chief prosecutor did not wish to delve into that horrendous matter.
The experience of the two world wars had led the international community to approve a convention on the crime of genocide.
Later, in 1949, the four Geneva Conventions had been approved, and in 1977, their two Additional Protocols had been adopted – the first to protect the victims of international armed conflicts and the second to protect the victims of internal armed conflicts.
Moreover, the international community had asked the United Nations International Law Commission to draft a code or a statute on international crimes, a task that it had pursued for 40 years to no avail. During the mid 1990s, with the support of the ICRC and various NGOs, the Commission, made up of eminent experts, subsequently prepared a draft statute for an international criminal court.
In 1989, Europe had been terrorized by the conflict in the Balkans, yet it had remained relatively passive. The populations brought together by Marshal Tito to form Yugoslavia had watc hed their country fall apart under the devastating policies of Slobodan Milosevic. The Balkans war not only claimed a large number of civilian victims but actually targeted civilians, especially women, instead of soldiers. The aim was to terrify the inhabitants into abandoning their land so that a Serb nation could be set up. The press played an important role in denouncing those activities. A committee of experts was established to prepare a report on what had happened in Bosnia and Herzegovina and in the Croatian territories.
In 1991, in the midst of a situation that threatened international peace and security, the Security Council had set up, in a resolution based on Chapter VII of the United Nations Charter, an ad-hoc tribunal to prosecute serious violations of IHL and human rights law in the former Yugoslavia. After fighting had broken out in Kosovo, the tribunal’s jurisdiction was extended to include crimes committed in that context as it was considered part of the overall conflict in the Balkans.
In 1994, a genocide with political, ethnic and religious roots had claimed over a million victims in Rwanda. Another international tribunal had subsequently been set up to prosecute violations committed in that context.
At the time efforts to establish a permanent international criminal court were resumed, despite a great deal of reticence on the part of some States.
According to experts, two main objections had been raised to the establishment of an international criminal court. The first concerned the extraterritoriality of criminal law with respect to violations of international law, such as genocide, war crimes and crimes against humanity. The second concerned the need to punish not only the direct perpetrators of crime, but also those who had ordered them or done nothing to prevent them.
Another obstacle was the belief that the creation of an international crimi nal court would undermine international law, as it would transfer the responsibility of States for dealing with violations to individuals.
The work of the tribunals for the former Yugoslavia and Rwanda had strengthened the notion that such bodies acted in accordance with the principles of impartiality, objectivity and legality. That had been fundamental in promoting the ICC and provided a strong guarantee for both the victims and the accused.
The work of international tribunals must be guided by the principles of a fair trial, in which the accused were able to defend themselves and the victims had access to the court. Such tribunals should not be platforms for revenge, but rather places where the victims and presumed perpetrators could find peace and justice, resolve their conflicts on equal terms and thus promote a fair society.
The Rome Statute was very complex. One of its most controversial principles was that of the complementarity of the ICC and national courts. In that respect, the ICC was different from the tribunals for the former Yugoslavia and Rwanda, which had been set up pursuant to Security Council resolutions and took precedence over national courts.
The fear that the perpetrators of massive violations would be tried individually had constituted another obstacle, but impunity had lost out with the adoption of the Statute. It would hence be more difficult for criminals to avoid prosecution.
In the case of Costa Rica, the Constitutional Court had ruled, in keeping with international law, that the Rome Statute of the ICC was entirely constitutional. Costa Rican courts would therefore be able to implement it as domestic law.
Among the general principles laid down in Articles 22 and following of the Statute, those of individual responsibility and command responsibility were of vital importance. The tribunals for the former Yug oslavia and Rwanda had set important precedents, such as the decision that the massive rape and enslavement of Bosnian women constituted war crimes and crimes against humanity.
It was therefore essential for States to support the ICC and to ensure that it operated in an efficient manner.
(ii) Workshop I:
The complementarity principle of the 1988 Rome Statute and the ratification and implementation process.
The workshop was moderated by Mr Darryl Robinson , United Nations, Criminal Law and Treaty Section, Department of Foreign Affairs and International Trade, Canada, with Ms Marie-Claude Roberge , ICRC delegate in Mexico, acting as rapporteur. The panel comprised the following experts:
Ms Socorro Flores , Counsellor, Permanent Mission of Mexico to the United Nations
COALITION FOR AN INTERNATIONAL CRIMINAL COURT
Mr Eduardo González Cueva , Regional Coordinator
INTERNATIONAL COMMITTEE OF THE RED CROSS
Ms Delia Chatoor, ICRC Office for the English-speaking Caribbean
The aim of the workshop was to discuss the 1998 Rome Statute of the ICC, in particular its complementarity principle, and to exchange information on the process of ratification and implementation of the Statute in the Americas.
Mr Robinson opened the workshop with an overview of the current situation regarding the ICC and the interest it aroused, stating that progress was being made at a pace that exceeded all expectations. Efforts to promote the Court had been highly successful since almost half of the 60 ratifications needed for it to begin operating had been received and the involvement of so many players in the ratification process had fostered a new attitude and climate around the world, making it very difficult for criminals to hide.
Ms Chatoor , speaking in a personal capacity, presented the process of ratification of the ICC Statute within the English-speaking Caribbean.
She began by providing some background information, stating in particular that the countries of the CARICOM region, unlike those of Latin America, were governed by Anglo-Saxon law. Besides enacting their own specific laws, they applied the legislation of the United Kingdom. In the Caribbean (with the exception of Haiti and Suriname), governments rather than parliaments were responsible for the process of ratification, signature and accession. The constitutions of most CARICOM States did not provide for a procedure enabling parliament to examine and issue an opinion on international treaties (with the exception of Antigua and Barbuda, whose the Ratification of Treaties Act”: Chp.364 of 1989 stipulated that an act of parliament was required for the adoption of c ertain treaties). The example of Trinidad and Tobago was given by way of illustration.
It was thus common practice for CARICOM States to ratify treaties without the involvement of parliament or, for that matter, of the general public. A State first ratified or acceded to a treaty and only then was the necessary legislation prepared. That stood in sharp contrast to other countries, where the period between the signature and ratification of a treaty was used to enact the relevant legislation. However, the procedure in CARICOM countries required that the treaty subject matter be reviewed after ratification. What appeared to be a simpler procedure was therefore not necessarily so in practice.
Mr González gave an NGO perspective on the principle of complementarity and briefly presented the work of the Coalition for an International Criminal Court. He also provided the status of signature and ratification of the Rome Statute in the region and gave a definition of the complementarity principle in keeping with the preamble and Articles 1 and 17 to 20 of the ICC Statute.
The subsidiary nature of the ICC was not a feature unique to the Rome Statute. It was also found in various other instruments, such as the Statute of the Inter-American Court of Human Rights. However, that Court and the ICC differed in two major ways: first of all, one dealt with individual criminal responsibility while the other dealt with State responsibility; and secondly, their jurisdiction and effectiveness were different.
With respect to the ICC, the complementarity principle was intended to ensure a balance between its jurisdiction and the jurisdictions of national courts. That balance rested on the admissibility test, whereby the Court was to decide whether or not to prosecute a case in the event that a national court was either unable or unwilling to do so. The cases of Rwa nda and the former Yugoslavia were mentioned as examples.
Owing to the complementarity principle, States would have to demonstrate that they were able and willing to prosecute. That meant that they needed to enact the necessary domestic laws in order to be able to exercise their jurisdiction and hence to satisfy the requirements of that principle.
Ms Flores stressed the need for both States party to the ICC and other States to adopt domestic legislation, since national courts remained the most appropriate forums in which to prosecute the types of crimes referred to in the Statute. Though it was not a treaty obligation, such a step was necessary in order to meet the requirements of the complementarity principle.
She referred to the ratione materiae jurisdiction of the Court with regard to genocide, crimes against humanity and war crimes. The inclusion in the Statute of crimes against humanity and a definition of war crimes that included crimes committed in non-international armed conflicts represented a major accomplishment.
With regard to the incorporation of those crimes into domestic legislation, there were two possible approaches, that of introducing a definition taken verbatim from the Statute or that of modifying existing legislation. Nevertheless, at national level, more specific provisions than those contained in the Statute would have to be adopted in certain instances if the principle of legality was to be respected. For example, further details were required with respect to the crime of hostage-taking. In that connection, the work carried out on the elements of crimes had provided a very useful tool.
Mr Robinson said that the ICC was not intrusive in character but instead served to reinf orce national sovereignty. Many States had taken the opportunity of ratification to strengthen and update their domestic legislation so as to ensure that they could meet the requirements of the complementarity principle and thereby preserve the option to prosecute their own nationals and affirm their determination to put an end to impunity.
In enacting domestic legislation to implement the ICC Statute, States had two possible choices with regard to crimes, jurisdiction and responsibility.
Concerning crimes, States could choose to adopt a definition taken verbatim from the Statute or, like Germany and Canada, go a step further and adapt their domestic legislation to include war crimes not covered by the Statute, such as the use of starvation as a method of warfare in non-international armed conflicts.
States must enact domestic legislation to exercise, at the very least, territorial and extraterritorial jurisdiction over their own nationals (basis for jurisdiction in the Statute). They could also go a step further and grant jurisdiction to national courts on the basis of the principle of universal jurisdiction, whereby all States had an interest in prosecuting serious crimes independently of the nationality of the accused or the territory on which the crimes had been committed.
With regard to Article 25 of the Statute, domestic criminal legislation usually extended criminal responsibility to those indirectly involved in committing a crime. By virtue of Article 28, States might have to enact legislation concerning the responsibility of military commanders and non-military superiors, since such responsibility was rarely contemplated in domestic legislation.
In conclusion, the workshop stressed the need to adapt domestic legislation so as to meet the requirements of the complementarity principle. To that end, technical assistance was offered with respect to the ratification and implementation process.
(iii) Workshop II:
Modifications to domestic legislation required in order to comply
with the 1998 Rome Statute of the ICC .
The workshop was moderated by Mr Charles Leacock , Director of Public Prosecutions, Barbados, with Ms Delia Chatoor , ICRC Office for the English-speaking Caribbean, acting as rapporteur. The panel comprised the following experts:
TRINIDAD AND TOBAGO
Cuthbert Jolly , Deputy Chief Parliamentary Counsel
Mr Eduardo Bertoni , Counsellor, Ministry of Justice
HUMAN RIGHTS WATCH
Ms Brigitte Suhr, Counsel, International Justice Program
Valerie Oosterveld , United Nations, Criminal Law and Treaty Section, Department of Foreign Affairs and International Trade, Canada
In his introductory remarks, Mr Leacock pointed out a number of provisions of the ICC Rome Statute that had to be reflected in domestic legislation. Those included cooperation procedures, the ne bis in idem principle, various privileges and immunities, and measures for the protection of victims.
The participants discussed the procedures followed in preparing implementation legislation. Although different methods had been adopted by certain common-law countries, namely Canada and Trinidad and Tobago, and by Argentina, a civil-law nation, preference had generally been given to an interdisciplinary approach. Indeed, such an approach provided greater certainty that the mandatory provisions of the Rome Statute would be integrated into domestic legislation. Some concern was expressed over whether or not civil society should be involved in that process.
A number of constitutional matters had to be addressed, including:
the surrender of nationals to the Court;
the issue of life imprisonment.
All the participants acknowledged that States party had undertaken to cooperate with the Court and that it was consequently necessary to bear in mind the obligations arising from Part 9 of the Statute, entitled “Internat ional Cooperation and Judicial Assistance”. Moreover, provision had to be made for the administration of justice and for the granting of the relevant privileges and immunities to Court officials.
It was further observed that some of the crimes within the Court's jurisdiction might already be covered by domestic law and that implementation of the Statute provided an excellent opportunity to review criminal justice systems.
In determining the type of legislation that needed to be enacted, States should examine:
whether the crimes in question should be included as a special section;
whether the definitions in the Statute should be used;
whether that definition should be broadened to include crimes omitted in the Statute but nevertheless considered as serious violations of IHL and human rights law.
In examining proposed legislation, careful consideration should be given to existing constitutional practice regarding immunities.
All the participants underscored the importance of enacting legislation in support of the Court’s work, including laws and regulations to improve or streamline existing procedures. Canada, for example, intended to update its regular extradition procedure to include the surrender of suspects to the ICC.
During the discussion, two main concerns were raised:
whether States should enact legislation before or after ratification,
what would be the impact of an amnesty on the ICC’s work.
It was noted with respect to the first concern that in one State taking part in the workshop, it was possible to enact legislation after ratification as sentencing could be delayed until the entry into force of the Rome Statute. In another, certain international rules could be applied directly without resorting to specific procedures. In the third, legislation would apply retroactively, hence there was no need to address the issue.
Regarding the second concern, reticence was expressed towards general amnesties as every victim had the right to demand that justice was done. It was noted that in South Africa, although the process for dealing with crimes had been conducted in accordance with democratic principles, many people were still clamouring for justice. Moreover, certain human rights treaties contained provisions against the granting of amnesties.
IV. Conclusions and follow-up
The participants welcomed the progress recently made in the area of international humanitarian law (IHL) throughout the hemisphere. At the same time, they underscored the need to further strengthen IHL through ratification of the relevant treaties, dissemination of IHL rules among among all sectors of society and effective implementation of those rules within each State. They also agreed on the importance of reinforcing the inter-American system for the protection of the individual through greater participation in the relevant regional conventions and the incorporation of IHL rules into domestic law.
Those present also drew attention to the importance of continuing to promote measures for the implementation of IHL at national level in each country and undertook to do so. Such measures could be legislative (such as criminal laws to punish grave breaches of IHL and human rights law), regulatory or administrative. The excellent work and useful role of the national committees and commissions set up to that end in many countries was highlighted.
The participants furthermore underscored the historic significance of the adoption of the Rome Statute of the International Criminal Court (ICC), the potential impact – in particular the deterrent effect – of the ICC, the dynamic process of ratification of and accession to the Statute, the importance of adapting domestic law so as to comply with the obligations deriving therefrom and facilitate the work of the Court, and the role of technical assistance between States.
General enthusiasm was voiced for the idea of setting up electronic databases on the Internet as a means of further promoting and spreading knowledge of IHL and the activities of the International Committee of the Red Cross (ICRC) in the hemisphere. It was pointed out that such a system would facilitate the exchange of documents and information and foster contacts between States and various organizations.
Lastly, the participants stressed the need for the ICRC and the Organization of American States (OAS) to hold similar government meetings on a regular basis with a view to strengthening IHL and related inter-American conventions and spreading knowledge of their rules, especially those concerning the protection and security of the individual. They noted that such events provided an excellent forum in which countries in the hemisphere could keep each other abreast of their respective efforts and experiences in this field of endeavour.
ANNEXE 2 : Resolution ag/res. 1706 (XXX-O/00) of the General Assembly of the Organization of American States.
Promotion of and respect for international humanitarian law
(Resolution adopted at the first plenary session, held on June 5, 2000)
16 May 2000
THE GENERAL ASSEMBLY,
RECALLING its resolutions ag/res. 1270 (XXIV-O/94), ag/res. 1335 (XXV-O/95), ag/res. 1408 (XXVI-O/96), ag/res. 1503 (XXVII-O/97), ag/res. 1565 (XXVIII-O/98), and AG/RES. 1619 (XXIX-O/99);
HAVING CONSIDERED the report of the Secretary General on the implementation of resolution AG/RES. 1619 (XXIX-O/99) (CP/CAJP-1649/00) and the report of the Permanent Council on the promotion of and respect for international humanitarian law (CP/doc.3314/00);
DEEPLY CONCERNED over the persistent violations of international humanitarian law occurring throughout the world and, in particular, over the fate of the civilian population, which is increasingly subject to attacks that contravene the applicable fundamental rules;
RECALLING that it is the obligation of all states to observe and enforce in all circumstances the standards established in the 1949 Geneva Conventions and, where applicable, for the states that are parties thereto, those contained in the 1977 Additional Protocols to those conventions;
UNDERSCORING the need to strengthen the principles of international humanitarian law by achieving its universal acceptance, its widest possible dissemination, and its implementation;
AWARE of the need to punish those responsible for war crimes, crimes against humanity, and other grave breaches of international humanitarian law;
TAKING INTO ACCOUNT IN THIS CONTEXT the historic significance of the adoption in Rome of the Statute of the International Criminal Court;
RECOGNIZING ONCE MORE the ongoing efforts of the International Committee of the Red Cross (ICRC) to promote and disseminate knowledge of international humanitarian law and the activities it carries out as an organization that is independent, neutral, and impartial under any and all circumstances;
TAKING INTO CONSIDERATION the recommendations made in 1995 by the Group of Experts to study practical means of promoting full respect for and compliance with international humanitarian law, in particular, regarding the establishment of national committees or com missions to advise and assist governments regarding the dissemination and implementation of international humanitarian law;
RECOGNIZING the important part that these national committees or commissions play in ensuring that the Geneva Conventions and the Additional Protocols thereto, as well as the other instruments of international humanitarian law, are incorporated into the domestic law of the member states, so that compliance with those instruments and the dissemination thereof are ensured; and
EXPRESSING its satisfaction with the increasing cooperation between the General Secretariat of the Organization and the ICRC, resulting from the agreement signed on May 10, 1996, which has furthered efforts to disseminate international humanitarian law in the Americas,
1. To welcome the increase in the number of member states that, in the past year, have ratified or acceded to various instruments of international humanitarian law, particularly the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on Their Destruction.
2. To urge the member states that have not yet done so to consider ratification of, or, if applicable, accession to the 1977 Additional Protocols I and II to the 1949 Geneva Conventions.
3. Also to urge the members states that have not yet done so to consider signing or ratification, as appropriate, of the Statute of the International Criminal Court.
4. Further, to urge the member states that have not yet done so to consider ratification of, or, if applicable, accession to, the following instruments relating to weapons, which may be excessively injurious or have indiscriminate effects:
The 1980 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 (and the Protocols thereto);
The 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on Their Destruction; and
The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
5. To underscore how important it is for the states, in implementing the body of international humanitarian law, to pay special attention to the following provisions:
The widest possible dissemination of international humanitarian law among the armed forces and security forces, by including it in official instruction programs and in the training of permanent armed forces staff in this area (Article 83 of Additional Protocol I to the Geneva Conventions);
The enactment of criminal legislation required to punish those responsible for war crimes and other grave breaches of international humanitarian law (Article 86 of Additional Protocol I to the Geneva Conventions);
The enactment of legislation to regulate the use of emblems protected under international humanitarian law and to punish the improper use thereof (Article 38 of Additional Protocol I to the Geneva Conventions and its Annex containing the regulations thereto); and
The obligation, in the study, development, acquisition, or adoption of a new weapon, to determine whether its employment would violate international humanitarian law, and, if it would, not to adopt it for use within the armed forces or security forces or manufacture it for other purposes (Article 36 of Additional Protocol I to the Geneva Conventions).
6. To urge the member states that have not yet done so to study, with the support of the International Committee of the Red Cross, the advisability of establishing national committees or commissions to implement and disseminate international humanitarian law.
7. To urge the member states and all parties to an armed conflict to help preserve the impartiality, independence, and neutrality of humanitarian action in accordance with the guiding principles adopted by the United Nations General Assembly in its resolution 46/182, dated December 19, 1991, and to ensure that the staff of humanitarian organizations are protected.
8. To invite the member states to continue to cooperate with the International Committee of the Red Cross in its various spheres of responsibility and to facilitate its work, in particular, by using its advisory services to support states’ efforts to implement international humanitarian law.
9. To request the Secretary General to report to the Permanent Council before the thirty-first regular session of the General Assembly on the implementation of this resolution.
ANNEXE 3 : Statement by the Secretary General of the Organization of American States. San José, Costa Rica, 6 March 2001
This first meeting of governmental experts convened to deal with a subject which lies at the very heart of the OAS and the inter-American system as a whole, and which is part of their raison d'être , namely, the defence and protection of the rights of the individual, is an event in which I had intended to take part in person. Unfortunately, for last-minute reasons beyond my control, I have been prevented from doing so and have instead asked that this message be delivered to you at the start of your deliberations.
It is thanks to the combined efforts of various institutions, governments and individuals that this meeting is taking place. To all of them, I should like to convey our sincere gratitude.
Allow me, first of all, to express our appreciation to the authorities of Costa Rica and, in particular, to the Ministry of Foreign Affairs and Worship and the National Commission for the Improvement of the Administration of Justice, for their generous welcome and their unstinting support for this meeting. They have thus confirmed once again this country's commitment to the defence and protection of the rights of the individual. I am confident that, under the leadership of Costa Rica, we will make even further progress in strengthening the inter-American system of human rights at our next General Assembly, which is to be held here in San José in early June.
I should also like to thank the government of Canada for having backed this initiative from the very outset. As we are all aware, Canada has provided constant leadership, recognized by the international community, with regard to various matters which you will be tackling at this meeting, such as the protection of children in situations of violence and the adoption of the Rome Statute of the International Criminal Court.
A special word of thanks must also go to the International Committee of the Red Cross for the extraordinary work which it has accomplished. Without its support and leadership, this Conference would not have been possible. In the name of everyone present, permit me to thank more particularly Cristina Pellandini for her dedication in organizing this event. At the same time, I should like to express my gratitude to the Vice-President of the ICRC, Dr Forster, for his presence and participation here. If there is one organization to which we must express special appreciation for the progress achieved since the adoption of the Geneva Conventions in 1949, it is the International Committee of the Red Cross, a body to which the whole of humanity owes an infinite debt of gratitude.
The government of Switzerland, a supporter of humanitarian law from its earliest beginnings, has also contributed to the success of this meeting and we should like to express our appreciation for its efforts.
Finally, I should like to give special thanks to those who will be presenting papers, and to the government experts who are here, for having accepted the invitation to take part and share their knowledge and experience with us.
International humanitarian law is intended to afford protection and assistance to people affected by armed conflicts and to place limits on the methods and means of warfare so as to avoid superfluous injury and unnecessary suffering.
As far as this part of the world is concerned, apart from the sad and deplorable exception of certain persistent internal conflicts, the hemisphere has made highly significant progress in promoting trust and consolidating peace both within and between countries.
The regional environment has taken on a new aspect. We are seeing the beginning of an era in which nations are united by a community of values and ideals. The trend today is towards cooperat ion. We have closed the door on decades of isolationism, confrontation and mistrust. Little by little, the nations of the hemisphere have subscribed to conventions or strategies which bind them legally and politically to the quest for common objectives and results on such crucial matters as arms control or the fight against corruption and drug-trafficking. There can be no doubt that the current process of economic integration in the Americas is contributing greatly to a reduction in tensions between the countries of our hemisphere.
We are living through a transition from the old order to a new one that we are just beginning to build. There is more scope now for diplomatic action, for the prevention of conflicts and for us to make advances – as we effectively are doing – in redefining the concept of regional security, which is the cornerstone of our quest for durable peace.
We have established a hemisphere-wide policy of fostering democracy, which acts against any threat, be it from right or left, from organized crime or from any creed or ideology seeking to interrupt or disturb the democratic and institutional process in a country. This policy has set in motion a whole series of diplomatic and coercive actions, all backed up by international agreements and instruments.
Preventive diplomacy is being developed, both to eliminate tensions between countries and to assist governments in dealing with internal conflicts. Since the early 1990s and particularly from 1995 onwards, the member countries of the OAS have sought to reduce tensions by agreeing on a series of confidence-building measures designed to bring about a regular exchange of information on military and security matters and by holding consultations on various topics.
Our Committee on Hemisphere Security gathers and distributes this information, which relates to national military budgets, prior notification of military exercises, the excha nge of documents on security strategies, data on stockpiles of certain weapons, the holding of meetings to increase border security and, finally, a host of security and defence subjects which, being familiar to all and generating consultation mechanisms, serve to create a more peaceful climate.
We are adopting a treaty to control the illegal production and trafficking of firearms and other related materials, as well as a convention on transparency in the acquisition of conventional weapons. We have made progress with mine removal in Central America, and the ministries of defence hold regular meetings at hemisphere level.
Finally, the OAS has played an important role in post-conflict situations over recent years through activities such as supervising cease-fires; disarming and demobilizing armed groups in Nicaragua and Suriname; helping refugees in Nicaragua, Haiti and Honduras; providing humanitarian aid in Haiti; resolving community-level conflicts in Guatemala; and monitoring human rights in Haiti and Central America.
In Nicaragua and Guatemala, we have helped to bring about conditions and processes which have facilitated the transition from a culture of confrontation to a culture of dialogue, for example by arranging forums and other mechanisms for the exchange of ideas between the main parties concerned. The " peace committees " set up in Nicaragua are independent civilian groupings driven by the aim of encouraging civil society to promote and protect human rights and to find peaceful solutions to conflicts in areas where tensions are running high.
The whole structure of our preventive diplomacy, using peaceful methods for crisis management and post-conflict action, is based on the principle of defending democracy. This is our paradigm of solidarity. We have accumulated a wealth of experience in protecting human rights, monitoring elections and assisting countries that have suffered internal strife and we have put this experience to good use in the reconstruction of democratic institutions.
The quest for peace in the Americas has been closely associated with rigorous respect for the principles of our Charter, namely international law as the standard for the conduct of States, non-intervention in the internal affairs of other States, equality of all States before the law and respect for national sovereignty and territorial integrity. Above all, we espouse the use and application of peaceful methods for resolving disputes, in particular direct negotiation, good offices, mediation, investigation and conciliation, legal proceedings, arbitration and other means specifically agreed to by the parties concerned.
Thus, the trend in our hemisphere at this time consists in making progress through mechanisms for dialogue and the peaceful resolution of conflicts, the search for new and more effective means of promoting trust and the consolidation of the process of cooperation on security matters.
Today, the chief threats to peace faced by the countries of our region are of a non-military nature, such as drug trafficking, gunrunning and terrorism or, at a different level and varying from one country to another, natural disasters and urban insecurity.
Against this backdrop, there are those who might argue that it makes little sense to focus on humanitarian law in a hemisphere which, by good fortune, has generally moved away from armed conflicts and seeks to advance even further towards eradicating violence.
However, the fact that conflicts of an internal nature subsist in some countries of the Amer icas is reason enough to justify the development and consolidation of humanitarian law in the region. Moreover, it must be added that the world is becoming ever more interdependent and that the Geneva Conventions oblige States not only to " respect " but also " to ensure respect " for their provisions. Therefore, contrary to what some might suppose, the conditions of greater trust and cooperation in the hemisphere have created a favourable basis for progress in the consolidation of humanitarian law in the Americas as a focus for preventive action.
To this end, States need to move ahead in signing, ratifying and incorporating into their domestic legislation the humanitarian law treaties and related inter-American conventions, and in providing information and training on their content and scope. That is precisely the main subject of this inter-American meeting of governmental experts.
I cannot leave you without highlighting the importance of one of the topics which you will be dealing with at this meeting. I refer to the International Criminal Court. There is no doubt whatsoever that the establishment of a tribunal of this kind represents a fundamental advance in attacking and eliminating the impunity enjoyed by many of those responsible for truly heinous crimes against humanity. As a Latin-American diplomat remarked, it is an important step forward in " freeing the planet from the obscene fact that a person is more likely to be put on trial for killing one human being than for killing a thousand " . I am sure that your deliberations on this matter will enable us to specify the progress already made and the steps which remain to be taken in order to ensure that the Court is genuinely effective and able to combat the impunity of the perpetrators of innumerable crimes against humanity.
At the end of the Diplomatic Conference of 1949, its president, Max Petitpierre, observed that its work would not be fully understood unless it were interpreted as a condemnation of war and went on to add that his most fervent hope was that the four Geneva Conventions would never need to be applied. Alas, that was not to be and the spectre of war continues to haunt the world, leaving behind a trail of blood, sorrow and horror.
May the opening of this meeting be an opportunity for us to join in that fervent wish and blunt condemnation of war, as we continue to build a culture of peace and tolerance which promotes the peaceful resolution of disputes, both at the international level and within our own countries.
ANNEXE 4 : Opening address by the Vice-President of the International Committee of the Red Cross.
The Fiftieth anniversary of the 1949 Geneva Conventions: Assessment and perspectives
Jacques Forster, Vice-President, International Committee of the Red Cross
Distinguished participants, Ladies and Gentlemen,
I will begin this presentation on the role of the International Committee of the Red Cross (the ICRC) in the development and the implementation of international humanitarian law with a general outline of its mandate and activities.
As many of you are aware, the ICRC is an impartial, neutral and independent organization. Its mandate is rooted in international humanitarian law and its exclusively humanitarian mission is to ensure that people affected by international and non-international armed conflicts as well as by situations of internal violence receive both protection and assistance. Since its foundation by a group of concerned Swiss citizens in 1863, the ICRC has endeavoured to alleviate, and wherever possible, prevent suffering. It has done this not only by strenghtening and spreading knowledge of international humanitarian law, promoting universal humanitarian principles, but also by being present on the ground in situations of conflict and of internal violence. Indeed our operations carried out in connection with some 20 armed conflicts and some 30 situations of violence and internal strife throughout the world enable us to be close to the victims, to protect and assist them. Currently some 11'000 women and men are engaged in this task in more than 200 different locations (delegations, sub-delegations, offices) around the world.
The 1949 Geneva Conventions and their 1977 Additional Protocols assign specific tasks to the ICRC and also grant the organisation a right of initiative in relation to persons affected by armed conflict. On this basis, the ICRC has the right to visit prisoners of war, to interview them individually in the absence of witnesses and to make follow-up visits at regular intervals. The Fourth Geneva Convention gives the ICRC the same rights in relation to civilian internees.
The ICRC also takes its mandate from the Statutes of the International Red Cross and Red Crescent Movement. These S tatutes were adopted by the International Conference of the Movement which brings together States party to the Geneva Conventions, National Red Cross and Red Crescent Societies, the International Federation of Red Cross and Red Crescent Societies, and the ICRC.
The Statutes of the Movement accord the ICRC an extensive right of initiative and thus enable the organisation to offer its services in all situations that come within its mandate as specifically neutral and independent humanitarian institution.
Given the international orientation and functional mandate of the ICRC, it is hardly surprising that the organisation has been recognised as possessing international legal personality. This was officially confirmed by the United Nations'General Assembly in 1990 when it granted the ICRC Observer status, thereby allowing the organisation to take a more active role in the debate on humanitarian issues at the international level. In addition, the ICRC has concluded headquarters agreements with some 60 States and these agreements provide the organisation with the privileges and immunities necessary to enable it to carry out its mission in total independence.
Finally, the ICRC forms one part of the International Movement of the Red Cross and Red Crescent, along with 176 recognised National Red Cross and Red Crescent Societies and their International Federation. The activities of the Movement as a whole are guided by its Fundamental Principles, the most important of which are the principles of humanity, impartiality, neutrality and independence. The importance of these basic principles cannot be overemphasised in a world where the distinction between political, military and humanitarian action is becoming increasingly blurred.
Before discussing the role of the ICRC in implementing law from a legal perspective, I will speak briefly on the other important aspect of the ICRC's work: namely, its o perational activities for the provision of protection and assistance to persons affected by armed conflict and internal violence
Protection and Assistance
Article 5 of the Statutes of the International Movement of the Red Cross and Red Crescent states that the ICRC has a duty to endeavour to assure that all persons affected by armed conflict are given appropriate protection and assistance.
In the context of its operations, the ICRC works to ensure that the civilian population is protected as far as possible from the devastating effects of armed conflict and internal violence. For this reason, the ICRC's protection activities have focused on meeting the specific needs of particularly vulnerable groups including detainees, the wounded and sick, children and women, refugees and internally displaced persons.
In terms of assistance activities, the ICRC provides medical aid, water, food, sanitation and shelter and endeavours to establish conditions of economic security for populations in areas affected by armed conflict and internal disturbances.
Clearly, the operational work of the ICRC is also intimately connected to the goal of strengthening the implementation of international humanitarian law. The protection and assistance activities undertaken by the ICRC go hand in hand with the promotion of the fundamental principles of international humanitarian law.
This combination of operational activities and the promotion of respect for international humanitarian law is a distinctive feature of this institution, each of these activities giving strength and credibility to the other.
El CICR guardián del derecho internacional humanitario
Permítanme pasar al tema que hoy nos ocupa, el quinc uagésimo aniversario de los Convenios de Ginebra. La noción que la guerra tiene límites es tan antigua como la guerra misma. Precisamente esos límites constituyen uno de los elementos que permiten distinguir la guerra de la matanza. Se encarnan en cierto número de principios humanitarios, cuyo objetivo es reglamentar la guerra, por lo que atañe tanto a la conducción de las hostilidades como a la protección de ciertas categorías de personas - civiles, heridos y prisioneros -. Esos principios humanitarios son la expresión de unos ideales universales de humanidad codificados, en particular, en los Convenios de Ginebra de 1949 para la protección de las víctimas de la guerra y en sus Protocolos adicionales de 1977, y generalmente denominados derecho internacional humanitario.
El quincuagésimo aniversario de la adopción de los Convenios de Ginebra, celebrado hace dos años, ha tenido un significado particular, ya que esos tratados representan un considerable progreso para la humanidad. A mi entender, formaran parte de su patrimonio.
Un balance cincuenta años después de la adopción de los Convenios de Ginebra, permite de comprobar que sus normas se han aceptado universalmente: 190 Estados son Partes, es decir, casi todos los países del mundo.
No obstante, cabe preguntarse si el derecho humanitario se adecua a las realidades actuales; si sigue respondiendo a las necesidades de protección. Al hacer esa evaluación, es importante de evitar de generalizar demasiado. Se debe destacar que desde que existen esos instrumentos millones han sido las personas que se han beneficiado de ellos. Se ha dispensado el trato que propugna el derecho internacional humanitario a prisioneros de guerra, no se ha atentado contra la vida de civiles, se ha reunido a familiares y se han respetado hospitales.
Sin lugar a dudas, son más las situaciones en las que se respetan los Convenios que casos en los que se infringen sus norm as. Sin embargo, los Convenios se respetan más en situaciones de conflictos armados internacionales que en las guerras civiles. La naturaleza de los conflictos cambia, hoy en día los conflictos armados no implican únicamente las fuerzas armadas y grupos rebeldes más o menos intensificados, sino que otros actores, como las compañías privadas de seguridad, intervienen o influencian esas situaciones. Ello constituye nuevos desafíos a los que hay que hacer frente y que necesitan une adaptación de la respuesta por parte de las organizaciones humanitarias y relativa a la interpretación del derecho. Hay además situaciones en las que el objetivo bélico es destruir o expulsar a grupos humanos enteros; se trata allí de conflictos identitarios. En ese caso, el objetivo bélico es, de por sí, incompatible con el espíritu y el texto de los Convenios. Todos conocemos las consecuencias trágicas engendradas por el no respeto de los tratados humanitarios. Es suficiente pensar en situaciones de conflictos armados internacionales, como la guerra en los Balcanes, e internos, por ejemplo Sierra Leone o Colombia; todos causan víctimas y sufrimientos que se podrían evitar.
Cómo prevenir esas atrocidades? Cuando se habla de prevención, es importante distinguir dos objetivos diferentes:
el que consiste en prevenir los conflictos, y
aquel de prevenir las violaciones al derecho internacional humanitario.
El primer objetivo reviste una importancia fundamental. Corresponde al conjunto de la sociedad de atacarse a las causas profundas del conflicto. Se trata de ocuparse de los factores sociales, económicos, políticos y culturales que provocan las tensiones en el seno de las sociedades. Esa finalidad no entra dentro del marco del derecho internacional humanitario. Sin embargo, los valores sobre los que se basa la acción humanitaria - la exigencia del respeto de la integridad física y de la dignidad de todo ser humano, mi smo si es enemigo - llevan consigo un mensaje de tolerancia y contribuyen a controlar las pulsiones de miedo y odio de las cuales se nutre la guerra.
La historia nos enseña que lamentablemente los conflictos no pueden siempre ser evitados. El derecho internacional humanitario está allí para recordar que cualesquiera sean las circunstancias, quienes no combaten, los heridos, los enfermos y los prisioneros deben ser protegidos.
La pregunta que cabe hacerse es de saber si la razón de tantas víctimas en los conflictos armados actuales es el resultado de la inadecuación entre el derecho y las situaciones en el terreno. La respuesta es definitivamente negativa. Estoy convencido que los preceptos básicos del derecho internacional humanitario siguen siendo pertinentes para prevenir las atrocidades a las que seguido estamos confrontados.
Que hacer entonces para remediar esta situación? Una respuesta que se impone es: " implementar el derecho internacional humanitario a nivel internacional y en el plan nacional " . Para lograrlo la participación universal a todos los tratados de derecho humanitario, su difusión y la adopción de medidas nacionales de aplicación es indispensable.
Difusión del derecho internacional humanitario
El CICR despliega importantes esfuerzos para hacer conocer el derecho internacional humanitario. Esos esfuerzos se realizan tanto en tiempo de paz como en período de conflicto armado.
Para que el derecho humanitario sea respetado, es indispensable que los combatientes sean instruidos para ello de manera a que su comportamiento esté en consonancia con las normas de ese derecho. No sólo los combatientes, sino que todos los interesados han de estar familiarizados con él. Los funcionarios, quienes ocupan cargos públicos, los estudiantes y profesores, el personal m édico y profesionales de los medios de comunicación deben además también conocer sus principios.
La enseñanza del derecho humanitario a los miembros de las fuerzas armadas a seguido sido relegada. Para que la instrucción sea efectiva es necesario que ella sea parte del entrenamiento militar e incluida a todos los niveles de la jerarquía. La jerarquía debe estar convencida que el conocimiento del derecho humanitario es importante no solo porque es un imperativo, sino que porque ella participa a la eficacia de la acción militar. A solicitud de los Estados Mayores el CICR participa en la instrucción de las fuerzas armadas. Desde más recientemente también se contribuye a la formación de fuerzas de policía y públicos como los profesores y los niños en las escuelas.
De manera general, la difusión del derecho internacional humanitario a las fuerzas armadas y otros grupos, y la promoción de la instrucción de sus principios es un elemento vital dentro de la estrategia del CICR en miras a un mejor respeto del derecho humanitario. Cabe recordar a ese respecto que en situaciones de conflictos armados internos todas las partes en conflicto, incluso los grupos armados, tienen la obligación de respetar, como mínimo, las obligaciones dimanantes del artículo 3 común a los Convenios de Ginebra. Esa norma constituye el mínimo de normas humanitarias aplicables en esas situaciones.
La aplicación del derecho internacional humanitario a nivel nacional e internacional
Para garantizar el respeto del derecho internacional humanitario es fundamental que sus violaciones sean reprimidas.
El enjuiciamiento de los autores de las infracciones contra el derecho internacional humanitario y el derecho de los derechos humanos por los tribunales nacionales responde a obligaciones convencionales contratadas por los Estados partes y constituye el mecanismo tra dicional para aplicar la ley y combatir la impunidad. Asimismo, la aplicación de la justicia criminal nacional obvia formalmente la necesidad de una intervención externa y goza - por lo general - de la confianza de los ciudadanos. Cuando funciona, tiene un efecto preventivo pues los potenciales criminales conocen el riesgo que incoarán a través su conducta ilegal.
No obstante, la realidad nos ha mostrado que la justicia nacional como mecanismo de sanción para los crímenes del derecho internacional tiene limitaciones serias. La mayoría de los Estados que han sido confrontados en el pasado con crímenes de guerra, de genocidio o con graves violaciones de los derechos humanos han sido incapaces de cumplir con sus obligaciones de represión o quizás no han tenido la voluntad política de hacerlo.
La creación de una Corte Penal Internacional Permanente viene a completar los mecanismos existentes para la aplicación del derecho humanitario y de los derechos humanos y la represión de sus violaciones. Con la aprobación del Estatuto de Roma los Estados han hecho un paso sumamente importante y valiente, pues han manifestado su firme determinación a no tolerar más la impunidad de los crímenes particularmente reprensibles y muchas veces odiosos !
El CICR está convencido que además de garantizar la penalización de los crímenes más graves para la comunidad internacional, la existencia de una Corte Penal Internacional pre-existente tendrá un fuerte poder de disuasión, pues enviará una advertencia a los potenciales criminales.
El CICR ha apoyado activamente la preparación del Estatuto para esa nueva jurisdicción, y se tiene además a la disposición de las autoridades competentes y de los legisladores para brindarles, a través de su Servicio de Asesoramiento en derecho internacional humanitario, un apoyo técnico en el proceso de ratificación del Estatuto de Roma, así como para la adaptación de sus leyes penales para conformarl as a las exigencias dictadas por el derecho humanitario.
Que se trate de la necesaria adaptación de las legislaciones penales a las exigencias del derecho internacional o de las otras medidas de aplicación necesarias, tales como la protección debida a los niños en los conflictos armados, la consideración de los derechos de las mujeres en esas situaciones, la protección de los emblemas y signos reconocidos por el derecho humanitario o el estudio de toda nueva arma para asegurar su conformidad con los principios humanitarios, el Servicio de Asesoramiento está a disposición para brindar asistencia técnica o toda información que pudiera requerirse.
Permítanme une mención especial a los derechos de las mujeres durante los conflictos armados ya que el 8 de marzo, día en que estaremos aquí reunidos, se celebrará el Día internacional de la Mujer. En ocasión de la XXVII Conferencia Internacional de la Cruz Roja y de la Media Luna Roja, que se reunió en Ginebra del 31 de octubre al 6 de noviembre de 1999 el CICR se comprometió a promover en todas sus actividades el respeto debido a las mujeres y a las niñas. En su compromiso, el CICR se compromete a prestar particular atención a difundir activamente la prohibición de todas las formas de violencia sexual entre las partes en un conflicto armado. Además, el CICR promete garantizar que las necesidades específicas de protección, salud y asistencia de las mujeres y las niñas afectadas por los conflictos armados se tendrán debidamente en cuenta en sus operaciones con la finalidad de aliviar el sufrimiento de los grupos más vulnerables. Reconociendo la necesidad de entender mejor cómo el conflicto armado afecta de diferentes maneras a las mujeres, el CICR inició en 1998 un estudio. Gracias al resultado de ese estudio, el CICR podrá formular directrices para una mejor protección a su favor . Esas líneas directrices tendrán además como fundamento la protección reconocida a las mujeres por el derecho internacional humanitario en tanto que miembros de la población civil, así como las varias disposiciones de ese derecho que versan sobre las necesidades específicas de las mujeres.
Cabe señalar asimismo que el CICR ha observado con satisfacción los recientes progresos en la aplicación del derecho internacional humanitario a escala nacional, no sólo en con respecto a la universalidad de sus tratados, sino en la incorporación al derecho penal nacional de disposiciones que permite la persecución de los crímenes de guerra por los tribunales nacionales y en la adopción de leyes que protegen los emblemas de la cruz roja y de la media luna roja. Otro hecho notable es el considerable aumento del número de comisiones nacionales que se han establecido para la aplicación del derecho humanitario. Cerca de 60 comisiones existen en el mundo, de las cuales 14 se sitúan en América.
In conclusion, I would like to stress
that today, international humanitarian law really reflects core human values. This assertion is supported by the universal adherence to its norms. These norms are by no means static; the international community has clearly demonstrated in recent years its desire and ability to develop new norms to respond to current challenges (for example Ottawa treaty, Statute of International Criminal Court).
these positive developments must not however conceal the fact that the respect of these norms in situations of armed conflicts by all weapon carriers still poses great challenges.
Responding to these challenges requires enhanced co-operation at the national, regional and inte rnational levels. This Conference is a very encouraging indication of the commitment of the Members of the OAS and of their regional institutions to meet these challenges.
It goes without saying that, confronted to these challenges, the ICRC will continue to do its utmost to promote the implementation of international humanitarian law and to provide protection and assistance to persons affected by armed conflict.
As the guardian of international humanitarian law, we shall continue to constantly remind belligerents of their obligation to respect the fundamental principles of international humanitarian law and to work tirelessly towards the dissemination and promotion of international humanitarian law.
We look forward to the perspective of strengthening our co-operation with States in these different areas. I want you to know that you can count on us.
Thank you / Muchas gracias