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Christopher Harland,

ICRC Advisory Service on IHL, Geneva,


Switzerland

The Domestic Implementation and Application of


International Humanitarian Law Norms

International Humanitarian Law, or IHL, is also known as the law of armed conflict. IHL
regulates the methods and means of armed conflict through both international treaties and
customary international law. The International Committee of the Red Cross, having a
mandate to promote the understanding and application of IHL, welcomes the opportunity
provided by this important event, to do so.

As this panel covers both human rights law and Humanitarian Law, it is perhaps appropriate
to say a few words about the difference between the two. IHL applies principally in times of
armed conflict, both international and non-international, while human rights norms apply
primarily in times of peace. Human rights norms provide individuals with fundamental rights,
many of which are also included in instruments such as national constitutions, including,
through the articles in Part II of the Constitution of the Islamic Republic of Pakistan. IHL, on
the other hand, seeks primarily to place restrictions on the actions of combatants in times of
armed conflict, in order to ensure protection for the rights of non-combatants, which include
soldiers no longer taking part in hostilities. Human rights norms also apply in times of armed
conflict, but countries may derogate from some of these norms in such times. IHL norms, on
the other hand, may never be derogated from.

Treaty law
The ICRC seeks the domestic implementation of 27 principal treaties. These treaties include
the 1949 Geneva Conventions and their Protocols of 1977 and 2005:

 Geneva Conventions I and II (covering armed forces in the field and at sea,
elements of which include treating the wounded and sick in armed conflict, protection
for medical establishments, emblems)
 Geneva Convention III (prisoners of war)
 Geneva Convention IV (civilians, including in times of occupation)
 Additional Protocol I (1977)– (update of GCs, including conduct of hostilities,
targeting, prisoners of war, emblems)
 Additional Protocol II (1977) – (Non-international armed conflict)
 Additional Protocol III (2005) – (Establishing a new emblem)

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In addition, weapons treaties, covering matters such as biological, chemical, conventional
weapons as well as landmines and environmental modification techniques are either
restricted or prohibited, depending on the class of weapon. These restrictions and
prohibitions need internal regulation through law, as do treaties covering cultural property in
armed conflict and child soldiers, as well as the International Criminal Court Statute.

Customary Law
In 2005, the ICRC published a nine-year study into the state of customary International
Humanitarian Law. The 5000-page study identifies opinio juris (state practice evidencing an
intention to be bound) for 161 rules of customary International Humanitarian Law. In
addition, 148 of these rules are applicable in non-international armed conflicts as well as
international armed conflicts. However, in order to be applied domestically, these rules of
custom will normally require national incorporation. As custom generally reflect the rules
found in treaty law, the ICRC seeks greater accession to treaties and domestic incorporation
as the primary means of ensuring respect for IHL.

Pakistan IHL Implementation


To date, Pakistan has fully implemented one International Humanitarian Law treaty, that
being the Chemical Weapons Convention. In addition, the Geneva Conventions have been
partially implemented by virtue of legislation in 1936 and 1963. However, it appears that one
of the most important sections of the Geneva Conventions, that dealing with grave breaches,
has not yet been incorporated. As there is a direct obligation to do so in Article 49,
paragraph 1 of the First Geneva Convention, it is recommended to consider the domestic
incorporation of these grave breaches as crimes:

Art. 49. 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 defined in the following Article.

In addition, work could be undertaken to incorporate the provisions of the 1972 Biological
Weapons Convention, as well as the Hague Cultural Property Convention. The ICRC has
model legislation for most of these treaties as well as sample legislation from many other
countries, available on our website, at www.icrc.org.

Other IHL treaties to which Pakistan could consider acceding include the Additional Protocols
to the Geneva Conventions (I through III), the Ottawa Anti-personnel landmines Convention,

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the International Criminal Court Statute, as well as the fifth protocol to the Convention on
Certain Conventional Weapons dealing with explosive remnants of war.

An additional question is whether IHL provisions, including the application of criminal


sanctions, may be applied in the absence of legislation incorporating these as crimes. Some
states have expressly provided for the application of customary international law before
domestic courts. Other states have generic "violations of international treaties" laws which
allow for their automatic incorporation into the criminal code following accession. Still others
prosecute for international customary law offences through general common law crimes.
While the use of custom to prosecute crimes may serve the cause of IHL implementation,
many states find it most useful to have express criminal provisions in legislation prohibiting
conduct amounting to serious violations of IHL.

National IHL Committee


Seventy-five States have established a National Inter-ministerial IHL Committee, in order to
increase national IHL implementation, knowledge and respect. Such committees normally
include representatives of ministries such as foreign affairs, law and justice, and defence,
among others. In order to assist in the process of IHL development, many other countries
are now considering the establishment of such a committee. The ICRC works with such
committees and provides publications including those offering guidelines and practical advice
for the running of National IHL Committees.

Summary
In summary, Pakistan has begun the task of domestic IHL implementation through the
adoption of the Chemical Weapons Convention Act in 2000, but work remains to be done on
other Conventions, including the core treaties of IHL, the Geneva Conventions. Pakistan
may wish to also consider accession to other treaties, such as the Additional Protocols to the
Geneva Conventions, as well as the future establishment of a National IHL Committee. The
ICRC stands ready to assist in this process.

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Annexure

The paper presented outlined possible future action to be undertaken by Pakistan in its
implementation of IHL. However, greater detail in these matters is included in this Annexure:

1 What is International Humanitarian Law?


2. International Humanitarian Law and International Human Rights Law, Similarities and
Differences
3. Implementing International Humanitarian Law: from Law to Action
4. Additional Protocols to the Geneva Conventions of 1949
5. National Committees for the Implementation of International Humanitarian Law

Further information may be found through the ICRC website, at www.icrc.org, or by


contacting the ICRC delegation in Islamabad.

1 What is International Humanitarian Law?

International Humanitarian Law is a set of rules which seeks, for humanitarian reasons, to
limit the effects of armed conflict. It protects persons who are not or are no longer
participating in the hostilities and restricts the means and methods of warfare. International
Humanitarian Law is also known as the law of war or the law of armed conflict.

International Humanitarian Law is part of international law, which is the body of rules
governing relations between States. International law is contained in agreements between
States – treaties or conventions – in customary rules, which consist of State practice
considered by them as legally binding, and in general principles.

International Humanitarian Law applies to armed conflicts. It does not regulate whether a
State may actually use force; this is governed by an important, but distinct, part of
international law set out in the United Nations Charter.

Where did International Humanitarian Law originate?

International Humanitarian Law is rooted in the rules of ancient civilizations and religions –
warfare has always been subject to certain principles and customs.

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Universal codification of International Humanitarian Law began in the nineteenth century.
Since then, States have agreed to a series of practical rules, based on the bitter experience
of modern warfare. These rules strike a careful balance between humanitarian concerns and
the military requirements of States.

As the international community has grown, an increasing number of States have contributed
to the development of those rules. International Humanitarian Law forms today a universal
body of law.

Where is International Humanitarian Law to be found?

A major part of International Humanitarian Law is contained in the four Geneva


Conventions of 1949. Nearly every State in the world has agreed to be bound by them. The
Conventions have been developed and supplemented by two further agreements: the
Additional Protocols of 1977 relating to the protection of victims of armed conflicts.

Other agreements prohibit the use of certain weapons and military tactics and protect certain
categories of people and goods. These agreements include:

y the 1954 Convention for the Protection of Cultural Property in the Event of Armed
Conflict, plus its two protocols;

y the 1972 Biological Weapons Convention;

y the 1980 Conventional Weapons Convention and its five protocols;

y the 1993 Chemical Weapons Convention;

y the 1997 Ottawa Convention on anti-personnel mines;

y the 2000 Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict.

Many provisions of International Humanitarian Law are now accepted as customary law –
that is, as general rules by which all States are bound.

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When does International Humanitarian Law apply?

International Humanitarian Law applies only to armed conflict; it does not cover internal
tensions or disturbances such as isolated acts of violence. The law applies only once a
conflict has begun, and then equally to all sides regardless of who started the fighting.

International Humanitarian Law distinguishes between international and non-international


armed conflict. International armed conflicts are those in which at least two States are
involved. They are subject to a wide range of rules, including those set out in the four
Geneva Conventions and Additional Protocol I.

Non-international armed conflicts are those restricted to the territory of a single State,
involving either regular armed forces fighting groups of armed dissidents, or armed groups
fighting each other. A more limited range of rules apply to internal armed conflicts and are
laid down in Article 3 common to the four Geneva Conventions as well as in Additional
Protocol II.

It is important to differentiate between International Humanitarian Law and human rights law.
While some of their rules are similar, these two bodies of law have developed separately and
are contained in different treaties. In particular, human rights law – unlike International
Humanitarian Law – applies in peacetime, and many of its provisions may be suspended
during an armed conflict.

What does International Humanitarian Law cover?

International Humanitarian Law covers two areas:

y the protection of those who are not, or no longer, taking part in fighting;

y restrictions on the means of warfare – in particular weapons – and the methods of


warfare, such as military tactics.

What is “protection”?

International Humanitarian Law protects those who do not take part in the fighting, such as
civilians and medical and religious military personnel. It also protects those who have ceased
to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war.

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These categories of person are entitled to respect for their lives and for their physical and
mental integrity. They also enjoy legal guarantees. They must be protected and treated
humanely in all circumstances, with no adverse distinction.

More specifically: it is forbidden to kill or wound an enemy who surrenders or is unable to


fight; the sick and wounded must be collected and cared for by the party in whose power
they find themselves. Medical personnel, supplies, hospitals and ambulances must all be
protected.

There are also detailed rules governing the conditions of detention for prisoners of war and
the way in which civilians are to be treated when under the authority of an enemy power.
This includes the provision of food, shelter and medical care, and the right to exchange
messages with their families.

The law sets out a number of clearly recognizable symbols which can be used to identify
protected people, places and objects. The main emblems are the red cross, the red crescent
and the symbols identifying cultural property and civil defence facilities.

What restrictions are there on weapons and tactics?

International Humanitarian Law prohibits all means and methods of warfare which:

y fail to discriminate between those taking part in the fighting and those, such as civilians,
who are not, the purpose being to protect the civilian population, individual civilians and
civilian property;

y cause superfluous injury or unnecessary suffering;

y cause severe or long-term damage to the environment.

Humanitarian law has therefore banned the use of many weapons, including exploding
bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.

Is International Humanitarian Law actually complied with?

Sadly, there are countless examples of violation of International Humanitarian Law.


Increasingly, the victims of war are civilians. However, there are important cases where

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International Humanitarian Law has made a difference in protecting civilians, prisoners, the
sick and the wounded, and in restricting the use of barbaric weapons.

Given that this body of law applies during times of extreme violence, implementing the law
will always be a matter of great difficulty. That said, striving for effective compliance remains
as urgent as ever.

What should be done to implement the law?

Measures must be taken to ensure respect for International Humanitarian Law. States have
an obligation to teach its rules to their armed forces and the general public. They must
prevent violations or punish them if these nevertheless occur.

In particular, they must enact laws to punish the most serious violations of the Geneva
Conventions and Additional Protocols, which are regarded as war crimes. The States must
also pass laws protecting the red cross and red crescent emblems.

Measures have also been taken at an international level: tribunals have been created to
punish acts committed in two recent conflicts (the former Yugoslavia and Rwanda). An
international criminal court, with the responsibility of repressing inter alia war crimes, was
created by the 1998 Rome Statute.

Whether as individuals or through governments and various organizations, we can all


make an important contribution to compliance with International Humanitarian Law.

2. International Humanitarian Law and International Human Rights Law


Similarities and differences

Both International Humanitarian Law (IHL) and international human rights law (IHRL) strive to
protect the lives, health and dignity of individuals, albeit from a different angle. It is therefore
not surprising that, while very different in formulation, the essence of some of the rules is
similar, if not identical. For example, the two bodies of law aim to protect human life, prohibit
torture or cruel treatment, prescribe basic rights for persons subject to a criminal justice
process, prohibit discrimination, comprise provisions for the protection of women and
children, and regulate aspects of the right to food and health. On the other hand, rules of IHL
deal with many issues that are outside the purview of IHRL, such as the conduct of hostilities,

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combatant and prisoner of war status and the protection of the red cross and red crescent
emblems. Similarly, IHRL deals with aspects of life in peacetime that are not regulated by
IHL, such as freedom of the press, the right to assembly, to vote and to strike.

What is International Humanitarian Law?

IHL is a set of international rules, established by treaty or custom, which are specifically
intended to solve humanitarian problems directly arising from international or non-
international armed conflicts. It protects persons and property that are, or may be, affected
by an armed conflict and limits the rights of the parties to a conflict to use methods and
means of warfare of their choice.

IHL main treaty sources applicable in international armed conflict are the four Geneva
Conventions of 1949 and their Additional Protocol I of 1977. The main treaty sources
applicable in non-international armed conflict are article 3 common to the Geneva
Conventions and Additional Protocol II of 1977.

....and what is international human rights law?

IHRL is a set of international rules, established by treaty or custom, on the basis of which
individuals and groups can expect and/or claim certain behavior or benefits from
governments. Human rights are inherent entitlements which belong to every person as a
consequence of being human. Numerous non-treaty based principles and guidelines ("soft
law") also belong to the body of international human rights standards.

IHRL main treaty sources are the International Covenants on Civil and Political Rights and on
Economic, Social and Cultural Rights (1966), as well as Conventions on Genocide (1948),
Racial Discrimination (1965), Discrimination Against Women (1979), Torture (1984) and
Rights of the Child (1989). The main regional instruments are the European Convention for
the Protection of Human Rights and Fundamental Freedoms (1950), the American
Declaration of the Rights and Duties of Man (1948) and Convention on Human Rights
(1969), and the African Charter on Human and Peoples' Rights (1981).

While IHL and IHRL have historically had a separate development, recent treaties include
provisions from both bodies of law. Examples are the Convention on the Rights of the Child,
its Optional Protocol on the Participation of Children in Armed Conflict, and the Rome Statute
of the International Criminal Court.

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When are they applicable?

IHL is applicable in times of armed conflict, whether international or non-international.


International conflicts are wars involving two or more states, and wars of liberation,
regardless of whether a declaration of war has been made or whether the parties involved
recognize that there is a state of war.

Non-international armed conflicts are those in which government forces are fighting against
armed insurgents, or rebel groups are fighting among themselves. Because IHL deals with
an exceptional situation – armed conflict – no derogations whatsoever from its provisions are
permitted.

In principle, IHRL applies at all times, i.e. both in peacetime and in situations of armed
conflict. However, some IHRL treaties permit governments to derogate from certain rights in
situations of public emergency threatening the life of the nation. Derogations must, however,
be proportional to the crisis at hand, must not be introduced on a discriminatory basis and
must not contravene other rules of international law – including rules of IHL.

Certain human rights are never derogable. Among them are the right to life, prohibition of
torture or cruel, inhuman or degrading treatment or punishment, prohibition of slavery and
servitude and the prohibition of retroactive criminal laws.

Who is bound by these bodies of law?

IHL binds all actors to an armed conflict: in international conflicts it must be observed by the
states involved, whereas in internal conflict it binds the government, as well the groups
fighting against it or among themselves. Thus, IHL lays down rules that are applicable to both
state and non-state actors.

IHRL lays down rules binding governments in their relations with individuals. While there is a
growing body of opinion according to which non-state actors – particularly if they exercise
government-like functions – must also be expected to respect human rights norms, the issue
remains unsettled.

Are individuals also bound?

IHL imposes obligations on individuals and also provides that persons may be held
individually criminally responsible for "grave breaches" of the Geneva Conventions and of
Additional Protocol I, and for other serious violations of the laws and customs of war (war
crimes). IHL establishes universal jurisdiction over persons suspected of having committed

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all such acts. With the entry into force of the International Criminal Court, individuals will also
be accountable for war crimes committed in non-international armed conflict.

While individuals do not have specific duties under IHRL treaties, IHRL also provides for
individual criminal responsibility for violations that may constitute international crimes, such
as genocide, crimes against humanity and torture. These crimes are also subject to universal
jurisdiction.

The ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, as well
as the International Criminal Court, have jurisdiction over violations of both IHL and IHRL.

Who is protected?

IHL aims to protect persons who do not, or are no longer taking part in hostilities. Applicable
in international armed conflicts, the Geneva Conventions deal with the treatment of the
wounded and sick in the armed forces in the field (Convention I), wounded, sick and
shipwrecked members of the armed forces at sea (Convention II), prisoners of war
(Convention III) and civilian persons (Convention IV). Civilian persons include internally
displaced persons, women, children, refugees, stateless persons, journalists and other
categories of individuals (Convention IV and Protocol I).

Similarly, the rules applicable in non-international armed conflict (article 3 common to the
Geneva Conventions and Protocol II) deal with the treatment of persons not taking, or no
longer taking, part in the hostilities.

IHL also protects civilians through rules on the conduct of hostilities. For example, parties to
a conflict must at all times distinguish between combatants and non-combatants and
between military and non military targets. Neither the civilian population as a whole nor
individual civilians may be the object of attack. It is also prohibited to attack military
objectives if that would cause disproportionate harm to civilians or civilian objects.

IHRL, being tailored primarily for peacetime, applies to all persons.

What is the system of implementation...

...at the national level?

The duty to implement both IHL and IHRL lies first and foremost with states.

States have a duty to take a number of legal and practical measures – both in peacetime and
in armed conflict situations – aimed at ensuring full compliance with IHL, including :

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y translating IHL treaties;
y preventing and punishing war crimes, through the enactment of penal legislation;
y protecting the red cross and red crescent emblems;
y applying fundamental and judicial guarantees;
y disseminating IHL;
y training personnel qualified in IHL and appointing legal advisers to the armed forces.

IHRL also contains provisions obliging states to implement its rules, whether immediately or
progressively. They must adopt a variety of legislative, administrative, judicial and other
measures that may be necessary to give effect to the rights provided for in the treaties. This
may include enacting criminal legislation to outlaw and repress acts prohibited under IHRL
treaties, or providing for a remedy before domestic courts for violations of specific rights and
ensuring that the remedy is effective.

...at the international level?

As regards international implementation, states have a collective responsibility under article 1


common to the Geneva Conventions to respect and to ensure respect for the Conventions in
all circumstances. The supervisory system also comprises the Protecting Power mechanism,
the enquiry procedure and the International Fact-Finding Commission envisaged in Article 90
of Protocol I. States parties to Protocol I also undertake to act in cooperation with the United
Nations in situations of serious violations of Protocol I or of the Geneva Conventions.

The ICRC is a key component of the system, by virtue of the mandate entrusted to it under
the Geneva Conventions, their Additional Protocols and the Statutes of the International Red
Cross and Red Crescent Movement. It ensures protection and assistance to victims of war,
encourages states to implement their IHL obligations and promotes and develops IHL.
ICRC's right of initiative allows it to offer its services or to undertake any action which it
deems necessary to ensure the faithful application of IHL.

The IHRL supervisory system consists of bodies established either by the United Nations
Charter or by the main IHRL treaties. The principal UN Charter-based organ is the UN
Commission on Human Rights and its Sub-Commission on the Promotion and Protection of
Human Rights. "Special procedures" have also been developed by the Commission over the
last two decades, i.e. thematic or country-specific special rapporteurs, and working groups
entrusted with monitoring and reporting on the human rights situations within their mandates.

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Six of the main IHRL treaties also provide for the establishment of committees of
independent experts charged with monitoring their implementation.

A key role is played by the Office of the High Commissioner for Human Rights which has
primary responsibility for the overall protection and promotion of human rights. The Office
aims to enhance the effectiveness of the UN's human rights machinery, to increase UN
system-wide implementation and coordination of human rights, to build national, regional and
international capacity to promote and protect human rights and to disseminate human rights
texts and information.

...at the regional level?

The work of regional human rights courts and commissions established under the main
regional human rights treaties in Europe, the Americas and Africa is a distinct feature of
IHRL, with no equivalent in IHL. Regional human rights mechanisms are, however,
increasingly examining violations of IHL.

The European Court of Human Rights is the centrepiece of the European system of human
rights protection under the 1950 European Convention. The main regional supervisory
bodies in the Americas are the Inter-American Commission on Human Rights and the Inter-
American Court of Human Rights. The African Commission on Human and Peoples' Rights is
the supervisory body established under the 1981 African Charter. A treaty establishing an
African human rights court has not yet come into force.

3. Implementing International Humanitarian Law:


from Law to Action

International Humanitarian Law – also called the law of war – sets out detailed rules
that seek to limit the effects of armed conflict. In particular, it protects those who are
not, or no longer, taking part in the fighting, and sets limits on the means and
methods of warfare. Humanitarian law is a universal set of rules. Its main treaties
have been accepted by nearly every State in the world. However, becoming party to
these agreements is only a first step. Efforts must be made to implement
humanitarian law – to turn the rules into action.

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What is implementation?

The term implementation covers all measures that must be taken to ensure that the rules of
International Humanitarian Law are fully respected. However, it is not sufficient merely to
apply these rules once fighting has begun. There are also measures that must be taken in
both wartime and peacetime. These measures are necessary to ensure that:

y both civilians and the military personnel are familiar with the rules of humanitarian law;

y the structures, administrative arrangements and personnel required for compliance with
the law are in place;

y violations of humanitarian law are prevented, and punished when they do occur.

Such measures are essential to ensure that the law is truly respected.

Who should implement?

All States have a clear obligation to adopt and carry out measures implementing
humanitarian law. These measures may need to be taken by one or more government
ministries, the legislature, the courts, the armed forces, or other State bodies.

There may also be a role for professional and educational bodies, the National Red Cross or
Red Crescent Society or other voluntary organizations.

Measures have also been taken at an international level to deal with violations of
humanitarian law. An International Fact-Finding Commission has been set up and States are
encouraged to use its services. Tribunals have been set up to deal with violations committed
during the recent conflicts in Rwanda and in the former Yugoslavia. An international criminal
court was created by the 1998 Rome Statute.

However, it is the States which continue to bear primary responsibility for effectively
implementing the law, and which must adopt measures at a national level.

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What needs to be done?

Under International Humanitarian Law – that is, the 1949 Geneva Conventions, their
Additional Protocols of 1977 relating to the protection of victims of armed conflicts, the 1954
Hague Convention on Cultural Property and the latter's Second Protocol of 1999 – a range of
measures must be taken. The main ones are:

1) to have the Conventions and Protocols translated into the national language(s);

2) to spread knowledge of their provisions as widely as possible both within the armed
forces and the general population;

3) to repress all violations listed as such in the above-mentioned instruments and, in


particular, to adopt criminal legislation that punishes war crimes;

4) to ensure that persons, property and places protected by the law are properly identified,
marked and protected;

5) to adopt measures to prevent the misuse of the red cross, the red crescent and other
symbols and emblems provided for in the Conventions and Protocols;

6) to ensure that protected persons enjoy judicial and other fundamental guarantees during
armed conflict;

7) to appoint and train persons qualified in International Humanitarian Law, in particular


legal advisers within the armed forces;

8) to provide for the establishment and/or regulation of:


y National Red Cross and Red Crescent Societies and other voluntary aid societies,
y civil defence organizations,
y National Information Bureaux;
9) to take account of International Humanitarian Law when selecting military sites and in
developing and adopting weapons and military tactics;

10) to provide for the establishment of hospital zones, neutralized zones, security zones and
demilitarized zones.

The treaty provisions that could or do require such measures are set out in the table below.

Some of these measures will require the adoption of legislation or regulations. Others will
require the development of educational programmes, the recruitment and/or training of
personnel, the production of identity cards and other documents, the setting up of special
structures, and the introduction of planning and administrative procedures.

All these measures are essential to ensuring effective implementation of Humanitarian Law.

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How can this be done?

Careful planning and regular consultation are the key to effective implementation. Many
States have established National Humanitarian Law committees or similar bodies for this
purpose. They bring together government ministries, national organizations, professional
bodies and others with responsibilities or expertise in the field of implementation. Such
bodies have generally proved to be an effective means of promoting national
implementation.

In some countries, the National Red Cross and Red Crescent Societies may also be able to
offer assistance with implementation.

Through its Advisory Service on International Humanitarian Law, the International Committee
of the Red Cross provides advice and documentation to governments on national
implementation. It can be contacted through the nearest ICRC delegation, or at the address
below.

4. Additional Protocols to
the Geneva Conventions of 1949

International Humanitarian Law is the set of rules which, in time of war, protect those who are
not, or no longer, taking an active part in hostilities, and limit the choice of methods and
means of warfare. It applies both in situations of international and non-international armed
conflict. The main instruments of International Humanitarian Law are the Geneva
Conventions of 12 August 1949 for the protection of war victims. These treaties, which
are universally accepted, protect the wounded, the sick, the shipwrecked, prisoners of war
and civilians who find themselves in enemy hands. They also protect medical duties, medical
personnel, medical units and facilities, and the means of medical transport. However, the
Conventions leave gaps in important areas, such as the conduct of combatants and
protection of civilians from the effects of hostilities. To remedy these shortcomings, two
Protocols were adopted in 1977. They supplement, but do not replace, the Geneva
Conventions of 1949. They are:

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• Protocol additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol I);

• Protocol additional to the Geneva Conventions of 12 August 1949, and relating


to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

What is the purpose of Protocol I?

Protocol I applies to international armed conflicts, imposing constraints on the way in which
military operations may be conducted. The obligations laid down in this instrument do not
impose an intolerable burden on those in charge of military operations since they do not
affect the right of each State to defend itself by any legitimate means.

This treaty came into being because new methods of combat had been developed and the
rules applicable to the conduct of hostilities had become outdated. Civilians are now entitled
to protection from the effects of war.

Protocol I provides a reminder that the right of the parties to conflict to choose methods and
means of warfare is not unlimited and that it is prohibited to employ weapons, projectiles,
material or tactics of a nature to cause superfluous injury or unnecessary suffering (Art. 35).

What new provisions does Protocol I contain?

Protocol I extends the Geneva Conventions' definition of international armed conflict to


include wars of national liberation (Art. 1) and specifies what constitutes a legitimate target of
military attack. Specifically, Protocol I:

a) prohibits indiscriminate attacks and attacks or reprisals directed against:

y the civilian population and individual civilians (Art. 48 and 51);

y civilian objects (Art. 48 and 52);

y objects indispensable to the survival of the civilian population (Art. 54);

y cultural objects and places of worship (Art. 53);

y works and installations containing dangerous forces (Art. 56);

y the natural environment (Art. 55);

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b) extends the protection accorded under the Geneva Conventions to all medical
personnel, units and means of transport, both civilian and military (Art. 8-31);

c) lays down an obligation to search for missing persons (Art. 33);

d) strengthens the provisions concerning relief for the civilian population (Art. 68-71);

e) protects the activities of civil defence organizations (Art. 61-67);

f) specifies measures that must be taken by the States to facilitate the implementation of
Humanitarian Law (Art 80-91).

Most attacks or other acts carried out in violation of point a) above are, subject to certain
provisos, considered grave breaches of humanitarian law and classified as war crimes.

Article 90 of Protocol I provides for the establishment of an International Fact-Finding


Commission to investigate alleged grave breaches or other serious violations of the
Conventions and of Protocol I. All States Parties to Protocol I may accept the competence of
this Commission.

What is the purpose of Protocol II?

Most conflicts since the Second World War have been non-international. The only provision
in the Geneva Conventions of 1949 which is applicable in this type of conflict is Article 3
common to all four Conventions. Although it sets out basic principles for protecting people in
wartime, Article 3 is not enough to solve the serious problems of humanitarian concern that
arise in internal conflicts.

The purpose of Protocol II is hence to ensure the application to internal conflicts of the main
rules of the law of war. It nevertheless in no way restricts the rights of the States or the
means available to them to maintain or restore law and order; nor can it be used to justify
foreign intervention (Art. 3 of Protocol II).

Compliance with the provisions of Protocol II does not, therefore, imply recognition of any
particular status for armed rebels.

What new provisions does Protocol II contain?

Unlike Article 3 common to the four Conventions, which fails to set criteria for the definition of
internal conflict to which it applies, Protocol II describes its own field of application in
considerable detail, excluding such low-intensity conflicts as internal tensions and rioting.

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The situations covered by Protocol II are non-international conflicts that take place on the
territory of a State between the armed forces of that State and rebel armed forces that are
under responsible command and control part of the national territory.

Common Article 3 planted the seed of humanitarian considerations in law relating to civil war.
Protocol II takes this modest beginning much further. Specifically, Protocol II:

a) strengthens the fundamental guarantees enjoyed by all persons not, or no longer, taking
part in the hostilities (Art. 4);

b) lays down rights for persons deprived of their freedom and provides judicial guarantees
for those prosecuted in connection with an armed conflict (Art. 5-6);

c) prohibits attacks on:

y the civilian population and individual civilians (Art. 13);

y objects indispensable to the survival of the civilian population (Art. 14);

y works and installations containing dangerous forces (Art. 15);

y cultural objects and places of worship (Art. 16);

d) regulates the forced movement of civilians (Art. 17);

e) protects the wounded, sick and shipwrecked (Art. 7);

f) protects religious personnel and all medical personnel, units and means of transport
(Art. 9-11);

g) limits the use of the red cross and red crescent emblems to those persons and objects
duly authorized to display it.

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Why adhere to the Additional Protocols?

Additional Protocols I and II of 1977 are binding on a large number of States, but not all. It is
essential that they attain universal recognition, as this is a vital step toward fulfilment by all
parties to conflict of the obligations laid down in the Protocols.

Only when all States have pledged compliance with all the instruments that make up
International Humanitarian Law will it be possible to ensure equal protection for all victims of
armed conflict.

Through its Advisory Service on International Humanitarian Law, the ICRC stands ready to
provide States interested in ratifying the Additional Protocols with any assistance and
information. In particular, the Advisory Service can supply a Protocol Ratification Kit to
facilitate the process.

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Table: Key articles requiring the adoption of IHL national implementation measures

1954 1999
1949 Geneva Conventions 1977 Protocols Hague Protoc
Conv. ol
First Second Third Fourth I II
Translation 48 49 41, 128 99, 145 84 26 37
Dissemination & 80, 82-83,
47 48 41, 127 99, 144 19 7, 25 30
training 87
Violations
General provisions 49-54 50-53 129-132 146-149 85-91 28 15-21
War crimes 49-50 50-51 129-130 146-147 11, 85-90
Compensation 91
Protection
Fundamental guarantees 3, 12 3, 13-17 3, 27-34 11, 75-77 4-5,7
Judicial and disciplinary 3, 5, 17, 3, 5, 31-35,
guarantees; rights of 82-90, 43, 64-78,
3 3 44-45, 75 6
prisoners and detainees 95-108, 99-100, 117-
129 126
Medical and religious
40, 41 42 20 15-16, 18 10, 12
personnel
Medical transports and 22, 24-
19, 36,
facilities 27, 38- 12, 18, 21-
39, 42- 18, 21-22 12
39, 41, 23
43
43
Cultural property 3, 6, 10,
53 16 5
12
Dangerous forces 56 15
Identity cards 18, 66-67,
27, 40,
42, 17, 78-79,
41, 20
Annex Annex IV Annexes
Annex II
I&II
Capture and internment 70, 106, Annex
cards Annex IV III
Use/misuse of emblems 18, 37-38,
44, 53- 6, 10, 12,
and symbols 44-45 66, 85, 12
54 17
Annex I
Experts and advisers
Qualified persons 6 7, 25
Legal advisers 82
Organizations
National Societies 26 63 81 18
Civil defence 63 61-67
Information bureaux 122-124 136-141
Mixed medical 112,
commissions Annex II
Military planning
Weapons/tactics 36
Military sites 57-58 8
Protected zones and 23, 59-60,
14, 15
localities Annex I Annex I

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5. National Committees for the
Implementation of International Humanitarian Law

The Geneva Conventions of 1949 and their Additional Protocols of 1977 are the principal
treaties governing aid to and protection of the victims of armed conflict. In order to secure the
guarantees provided by these instruments, it is essential that the States implement their
provisions to the fullest possible extent. Implementation requires the States to adopt a
number of internal laws and regulations. They must, for example, establish rules on the
punishment of violations, the use and protection of the red cross and red crescent emblems
and the fundamental rights for protected persons. In addition, the States are obliged to
spread knowledge of the Conventions and Protocols as widely as possible. Owing to the
broad range of issues associated with these responsibilities, comprehensive implementation
of the rules of International Humanitarian Law (IHL) requires coordination and support from
all the government departments and other entities concerned.

The purpose of National Humanitarian Law committees

To facilitate this process, some States have created either national inter-ministerial working
groups, often called committees for the implementation of IHL or National Humanitarian Law
committees. Their purpose is to advise and assist the government in implementing and
spreading knowledge of IHL.

Setting up such committees is recognized as an important step in ensuring the effective


application of IHL, and has been advocated by the International Committee of the Red Cross,
the Intergovernmental Group of Experts for the Protection of War Victims and the 26th
International Conference of the Red Cross and Red Crescent (Geneva, 1995).

The functions of a National Humanitarian Law committee

The organization and objectives of a national committee must be determined by the State at
the time of the committee's formation. However, since its purpose is to further the
implementation and promote knowledge of IHL at the national level, the committee should
have the following characteristics:

y It should be able to evaluate existing national law in the light of the obligations created by
the Conventions, Protocols, and other instruments of IHL.

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y It should be in a position to make recommendations for further implementation, to monitor
the law and ensure it is applied. This may involve proposing new legislation or
amendments to existing law, coordinating the adoption and content of administrative
regulations, or providing guidance on the interpretation and application of humanitarian
rules.

y The committee should play an important role in promoting activities to spread knowledge
of IHL. It should have the authority to conduct studies, propose activities, and assist in
making IHL more widely known. The committee should therefore be involved in
instructing the armed forces in this domain, teaching it at various levels of the public
education system and promoting the basic principles of IHL amongst the general
population.

The composition of the Committee

Given its functions, a National Humanitarian Law committee requires a wide range of
expertise.

The committee must include representatives of the government ministries concerned with
implementing IHL. Precisely which ministries are relevant will depend on the committee’s
mandate, but they are likely to include Defence, Foreign Affairs, Internal Affairs, Justice,
Finance, Education and Culture.

It may also be useful to have representatives of legislative committees, members of the


judiciary and personnel from the headquarters of the armed forces.

It is important that such a committee include other qualified persons. These may be
individuals not associated with government ministries but who are appointed for their legal,
educational, communications or other expertise. The committee should therefore consider
inviting IHL specialists from universities (especially law faculties), humanitarian organizations
and possibly the electronic and print media.

The Role of the National Red Cross or Red Crescent Society

It is likely that the National Red Cross or Red Crescent Society will already be involved in
some of the activities and functions mentioned above.

The National Society often possesses valuable knowledge and experience, which can help
achieve the committee's objectives. In some States where such committees exist, it was the
National Society that requested its setting up and hence was instrumental in its formation. In
many States, the National Society provides the committee’s secretariat.

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Considering the position and experience of a National Society, it is important that a national
committee include representatives of the Society.

Setting up a National Humanitarian Law Committee

A national committee for the implementation of IHL need not have a specific structure. The
process by which it is set up will depend on the structure and procedures of the State
concerned. Generally, the executive power will have authority to establish such a body.
Implementing International Humanitarian Law

Creating a national committee can be a useful and indeed decisive step in ensuring the
comprehensive implementation of International Humanitarian Law. It represents a
commitment to securing the essential guarantees laid down for the victims of armed conflict,
demonstrating that the State is taking steps towards fulfilling its fundamental obligation to
respect and ensure respect for IHL.

Neither the Geneva Conventions nor their Additional Protocols require such a committee to
be set up. It is therefore entirely up to the State concerned to determine how it is created,
how it functions, and who are its members.

As a result, there is considerable flexibility as to the role and characteristics of such


committees. Some of the most important features have been outlined above, but any State is
free to add others.

It is important to emphasize that the full implementation of IHL is an ongoing process and is
not completed solely by passing laws and issuing regulations. Comprehensive
implementation involves monitoring the application and promotion of the law, as well as
keeping informed of and contributing to its development. It is therefore recommended that a
National Humanitarian Law committee be a permanent and not an ad hoc body.

It is also recommended that, once created, the committee establish relations with other
national committees and the International Committee of the Red Cross. Representatives of
the national committees should meet regularly and share information concerning current
activities and past experiences. This is particularly important among States within the same
geographic region or with similar political or legal systems.

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Through its Advisory Service on International Humanitarian Law, the International Committee
of the Red Cross works on a regular basis with national committees for the implementation of
IHL. It also stands ready to assist and provide further information to States interested in
forming committees.

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