What measures are available for implementing humanitarian law?
Extract from ICRC publication International humanitarian law: answers to your questions
The following implementation measures must be taken.
Preventive measures, based on the duty of States to comply with humanitarian law.They include:
spreading knowledge of IHL;
training qualified personnel to facilitate the implementation of IHL, and the appointment of legal advisers in the armed forces;
adopting legislative and statutory provisions to ensure compliance with IHL;
translating the texts of the Conventions.
Measures for monitoring compliance with the provisions of humanitarian law for the duration of the conflict:
action by the Protecting Powers or their substitutes;
ICRC action (see Q15).
Repressive measures, based on the duty of the parties to the conflict to prevent and put a halt to all violations. Mechanisms for repression include:
the obligation for the national courts to repress grave breaches considered as war crimes (for international tribunals, see Q16);
the criminal liability and disciplinary responsibility of superiors, and the duty of military commanders to repress and denounce offences;
mutual assistance between States on criminal matters.
Apart from the fact that they are inherent in any consistent legal construct, these repressive measures also serve as a deterrent.
There are other implementation measures, which encomp ass prevention, control and repression; the last two are derived chiefly from the duty of States to ensure respect for humanitarian law. They include:
the enquiry procedure;
the International Fact-Finding Commission;
the examination procedures concerning the application and interpretation of legal provisions;
cooperation with the United Nations.
Diplomatic efforts and pressure from the media and public opinion also help ensure implementation of IHL.
" The High Contracting Parties shall (...) in peacetime endeavour (...) to train qualified personnel to facilitate the application of the Conventions and of this Protocol (...) " . (Art. 6, Protocol I)
" The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances " . (Article 1 common to the four Conventions)
" The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject " . (Art. 82, Protocol I)
" The High Contracting Parties shall, if their legislation is not already adequate, take the measures necessary for the prevention and repression, at all times, of any abuse of the distinctive signs (...) " . (Art. 45, Second Convention)
" The High Contracting Parties shall communicate to one another through the Swiss Federal Council and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as the laws and regulations which they may adopt to ensure the application thereof " . (Art. 48/49/128/145 common to the four Conventions)
" The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention (...). Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts " . (Art. 49/50/129/146 common to the four Conventions)
" The present Convention shall be applied with the cooperation and the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers " . (Art. 8, GC I, II, III; and Art. 9, GC IV)
" The High Contracting Parties may at any time agree to entrust to an international organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention (...). If protection cannot be arranged accordingly, the Detaining Power shall request or shal l accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers under the present Convention " . (Art. 10, GC I, II, III; and Art. 11, GC IV)
" The depositary of this Protocol shall convene a meeting of the High Contracting Parties, at the request of one or more of the said Parties and upon the approval of the majority of the said Parties, to consider general problems concerning the application of the Conventions and of the Protocol " . (Art. 7, Protocol I)
" The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of wounded and sick, medical personnel and chaplains, and for their relief " . (Art. 9/9/9/10 common to the four Conventions)
" In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter " . (Art. 89, Protocol I)
" The High Contracting Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of grave breaches of the Conventions or of this Protocol (...). When circumstances permit, the High Contracting Parties shall cooperate in the matter of extradition (...) " . (Art. 88, Protocol I)
" An International Fact-Finding Commission (...) consisting of 15 members of high moral standing and acknowledged impartiality shall be established. (...) The Commission shall be competent to: i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol (...) " . (Art. 90, Protocol I)