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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 3 |
UMESH KADAM[*]
International humanitarian law seeks to alleviate suffering of victims of armed conflicts. Today its principal instruments, namely, the Four Geneva Conventions of 1949, have been accepted by nearly every State. But still there is a large number of States who are not yet parties to some other important instruments of international humanitarian law, such as the Additional Protocols of 1977, the Ottawa Anti-personnel Landmines Treaty of 1997, the Rome Statute of the International Criminal Court of 1998, etc. States must be encouraged to ratify the instruments they have drawn up at diplomatic conferences. Indeed it is vital, especially where armed conflicts are concerned, that all parties should be governed by the same rules. However, adhering to these instruments is only a first step. It must also be ensured that they are effectively implemented by putting the rules into action. Promotion of international humanitarian law with concerted and consistent efforts is crucial to its success. Humanitarian law can be promoted by adopting specific steps at the international level as well as by encouraging individual States to adopt certain national measures to this effect. Within a State, humanitarian law can be promoted by implementing the relevant conventions effectively by adopting appropriate measures, by taking timely decisions on the question of participation in other humanitarian law instruments and by widely disseminating them to military personnel, governmental authorities and in the civil society.
International humanitarian law can be effectively implemented with co-operation of States. Over the years, several mechanisms have been devised to ensure and facilitate its implementation. Some of them are international in character and some national. In keeping with the general practice in international law of relying heavily on domestic legal systems for implementation, international humanitarian law as well depends to a great extent on national measures to ensure its implementation. In conformity with this practice, international humanitarian law conventions impose a number of obligations on their States Party. There are various ways in which these obligations can be fulfilled by the States Party. For example, the Geneva Conventions of 1949 and their Additional Protocols of 1977 require the States Party to enact a national legislation to make serious violations of these treaties punishable offences[1]. In case of some obligations, administrative measures are also required. Implementation of international humanitarian law is an ongoing process which encompasses a wide range of efforts involving very many different fields of government activity and numerous sectors of public life. It requires the co-ordination and co-operation of various ministries, government administrative departments, state bodies, public service establishments and other national institutions. The same is true regarding taking decisions on issues concerning ratification of or accession to humanitarian law instruments to which the concerned states are not parties. All States Party to the Geneva Conventions and their Additional Protocols have assumed an obligation to disseminate the text of these treaties as widely as possible in their respective countries and to include their study in programmes of military instruction[2]. Dissemination of humanitarian law is essential to ensure respect to its principles at all times.
In order to facilitate these processes, some States have set up special bodies which are in the form of national committees or inter-ministerial working groups on international humanitarian law. Their functions are specifically defined in terms of promoting humanitarian law and devising measures for its application. Generally, their objective is to advise and assist governments on matters pertaining to participation in the humanitarian law treaties, adoption of measures for their implementation and dissemination of their provisions. Although there is no legal obligation to set up such bodies, their creation has been recognised as an important step towards the effective application of humanitarian law.
In countries where bodies of this kind have been established, they have proven useful in encouraging measures for application of the humanitarian treaties and in facilitating contact and co-operation between the authorities and other entities concerned. Experience has also shown that it is often in countries where such bodies have been set up that real headway has been made in this field.
The ICRC has strongly encouraged the establishment of committees or other bodies as internal mechanisms to ensure the effective application of humanitarian law. From the beginning of its recent efforts in the sphere of implementation it has promoted and supported the creation of a national inter-ministerial committee in every State Party to the Geneva Conventions[3]. These moves were recently supported and strengthened by the Recommendations of the Inter-Governmental Group of Experts, which were subsequently adopted by the 26th International Conference[4]. Recommendation V reads as follows :
States be encouraged to create national committees, with the possible support of National Societies, to advise and assist governments in implementing and disseminating IHL;
States be encouraged to facilitate co-operation between national committees and the ICRC in their efforts to implement and disseminate IHL; and
the ICRC organise a meeting of experts from States having already established national committees and from other interested States, and report on the meeting’s conclusions to States interested in the establishment of such committees.
A number of committees or bodies set up specifically to deal with matters relating to humanitarian law already exist. According to the information available to the ICRC, some sixty countries currently have a body specifically mandated to deal with matters relating to humanitarian law or actually dealing with such matters[5]. Several more states have considered the possibility of establishing such national bodies, and in some cases have embarked on the necessary procedure. Furthermore, a number of commissions, committees or state bodies in charge of human rights issues often deal with the promotion and application of the humanitarian law treaties. So far, the committees and other bodies established to deal with international humanitarian law have been quite varied; their structures, mandates and activities differ significantly from one country to another, often according to the country’s constitutional make-up. They nonetheless share certain specific characteristics which distinguish them from other public or private entities.
The bodies established to deal with humanitarian law vary widely in their structure. Some have permanent mandates, while others have set up on an ad hoc basis to perform a given task and may cease to exist once that task has been accomplished. They may have any of the following types of structure:
Inter-ministerial or inter-departmental commissions, committees or working groups[6].
Commissions or committees established within National Red Cross or Red Crescent Societies, with government[7].
Commissions, committees or working groups set up to study a specific issue or to deal with a given task - for instance, the drafting of a bill for consideration by the legislature - or to take action in a particular field of humanitarian law, such as dissemination. These bodies may have an ad hoc or a permanent structure depending on the circumstances. They may be formally mandated by the government, or may simply consist of informal groups of experts[8].
National human rights commissions whose mandates have been extended to cover humanitarian law or which deal with matters relating to this field[9].
The way in which the body is set up and its legal status depend on the constitutional structure and the procedures followed in the state concerned. Permanent commissions, committees or working groups have usually been established pursuant to a law or an executive or presidential decree. The mandate of those established within a National Society may be based upon a delegation of authority by the government, or upon a simple exchange of correspondence or a written or tacit agreement between the National Society and the government.
With the exception of those established within National Societies, the committees and other types of bodies are in one way or another linked to the executive branch and are independent of other state bodies, although they may sometimes be called upon to report to parliamentary groups. The ministries responsible for them vary from one country to the other, but most often they are the ministries of foreign affairs, defence or law and justice.
As for the powers conferred on them in regard to humanitarian law, the committees and bodies generally have advisory authority. They either pursue their objectives in general terms, by taking the initiative of submitting opinions and recommendations, often drawn up in no particular form, to the authorities or to the legislature, or manage and monitor certain specific activities. They may also act under a specific mandate given to them by a particular ministry or by the government as a whole. This may involve a request for an opinion regarding a particular subject of interest, the drafting of a bill or the modification of existing legislation. In addition, these bodies are often assigned the task of preparing their respective governments’ participation in International Conferences of the Red Cross and Red Crescent. According to the available information, none of these bodies has decision-making or judicial powers.
The committees and other national bodies which already exist generally comprise government representatives, especially from the ministries most closely concerned with the application of humanitarian law, such as foreign affairs, defence, the home or interior, law and justice, health and social security and education. They may also include, either as permanent members or as observers, representatives of the judicial or legislative branch, professional organisations and academic circles, as well as specialists such as lawyers, doctors, teachers and military experts. In practically all, National Red Cross or Red Crescent Society is represented in these national bodies or committees or is associated with their work.
The chairmanship of such a body varies according to its type, whether it is permanent or non-permanent and the ministry responsible for it. In some cases the chair may be permanent post, and in others it may rotate among the members. Secretariat services are often provided by the ministries of defence or justice, other government administrative services or the National Red Cross or Red Crescent Society. In nearly all cases, permanent commissions, committees and working groups have adopted internal operating rules or terms of reference. They hold periodic meetings (monthly, quarterly etc.) or may be convened when the need arises.
The committees and other bodies have very different mandates, which range from broad competence in a large number of fields relating to humanitarian law to mandates limited to a single task and/or a given sphere of activity. Permanent bodies generally have more extensive mandates than do ad hoc ones. The mandates given vary according to the degree to which the State is bound by the humanitarian treaties concerned and the implementation measures already adopted or currently being adopted.
The committees or other bodies may be called upon to carry out a whole range of activities, from simply advising the authorities on participation in the humanitarian treaties to studying and even actual drafting of national measures - whether legislative, regulatory or practical - for their application. Some of these bodies have concentrated mainly on the dissemination of humanitarian law and the training of qualified personnel in one of the areas (medical, military, educational, etc.) covered by the Geneva Conventions and their Additional Protocols. With the passage of time some of the committees have virtually become permanent advisory bodies for the ministries of foreign affairs and/or defence on any issue relating to the humanitarian treaties.
The purpose of these bodies is to promote humanitarian law at the national level. So far, experience has shown that they should possess certain characteristics concerning their role and structure. They should deal with four important functions. Firstly, they should be in a position to evaluate existing national legislation, judicial decisions and administrative provisions in the light of the obligations stemming from the Geneva Conventions and their Additional Protocols and from other instruments of humanitarian law. Secondly, they should have competence to submit to the government, and specifically to the authorities concerned and the legislature, advisory opinions on issues relating to the application of humanitarian law treaties and ratification of or accession to those treaties to which the State is not yet a party and to formulate recommendations on this subject. Thirdly, they should be in a position to fulfil any other function relating to humanitarian law that the government may assign. And finally, they should be able to play a significant role in encouraging dissemination of humanitarian law and, to that end, have the necessary authority to carry out studies, propose activities and assist in spreading knowledge of the law; they should also be involved in instruction in humanitarian law for the armed forces and security forces, and in the teaching and dissemination of the law at all levels of civil society.
Because it is convinced of the usefulness of these bodies in ensuring effective application of humanitarian law, the ICRC has encouraged and supported their creation in every State Party to the 1949 Geneva Conventions. As mentioned earlier, its efforts were endorsed by the Recommendations of the Inter-Governmental Group of Experts for the Protection of War Victims (January 1995), which were adopted in Resolution 1 of the 26th International Conference of the Red Cross and Red Crescent (Geneva, December 1995)[10]. Pursuant to Recommendation V, the ICRC Advisory Service on International Humanitarian Law convened a meeting of experts on committees or other bodies for the national implementation of international humanitarian law, which took place from 23 to 25 October 1996. Over seventy States were represented, including some forty which sent one or more experts from national committees, ministries or the judiciary in their respective countries. Representatives of thirty five National Red Cross or Red Crescent Societies, the International Federation of Red Cross and Red Crescent Societies and the Standing Commission of the Red Cross and Red Crescent also took part. As the meeting was primarily an informal gathering focusing on technical matters, the intention was not to reach conclusions binding on the participants, or even to take decisions on matters of principle.
The proceedings were divided into plenary sessions and smaller working group sessions. They provided participants with an opportunity to discuss various issues arising in connection with national implementation bodies, e.g., the establishment of such bodies and their structure, legal status, composition and fields of activity. The topics covered also included the role which National Societies can play in this regard and forms of regional and inter-state co-operation.
The establishment of this type of mechanism is in no way a legal requirement. It is merely a means to an end, which is to achieve effective application of international humanitarian law. States may, of course, fulfil their obligations without setting up any formal implementation body. Most participants in the meeting emphasised, however, that the approach was much more systematic when there was an implementation mechanism. The experts agreed that this mechanism should be of permanent nature, as implementation was an ever-evolving process. Similarly, it should have general competence in its field and should be empowered to take initiatives to deal with any question related to its sphere of activity. Extending the mandate of a national human rights committee to matters pertaining to the implementation of international humanitarian law was generally not considered a satisfactory solution, since the objectives and working methods of the two branches of law were quite different. The participants stressed that implementation bodies should play a stimulating role and serve as forums where the officials concerned gave regular reports on the headway they had made. It was also emphasised that National Red Cross and Red Crescent Societies had an important function to fulfil in encouraging the creation of national committees and in supporting the authorities’ efforts.
National implementation mechanisms are composed of officials or representatives from the relevant ministries. Ideally, the government representatives should hold positions senior enough to enable them to implement the measures recommended by the national committees. Some National Red Cross and Red Crescent Societies have established their own bodies to monitor implementation issues. Their efforts should not, however, be restricted to those internal mechanisms. One or more National Society representatives may serve on national committees as ex officio members or permanent observers, or they may simply be invited to take part in their proceedings. The participants in the meeting considered that the co-operation of National Societies was crucial to the committees’ work, by virtue of the Societies’ mandate to spread knowledge relating to the law. National bodies often have experts serving as full members or assisting them in their activities. Other components of civil society, including non-government organisations, may also join in their work.
The information provided by the experts showed that national bodies are engaged in a wide variety of activities - ranging from simple advice to the authorities on the ratification of international treaties to the more general task of drawing up lists of steps to be taken to adapt national legislation to the provisions of international law. Several of these bodies have drawn up bills or draft regulations and have proposed practical measures for the implementation of international treaties. National committees are also involved in spreading knowledge of humanitarian law and in training qualified personnel (medical, military or teaching staff) in areas relating to the Geneva Conventions and their Additional Protocols. Some committees have become permanent advisory bodies for their governments, offering guidance on any issue pertaining to the humanitarian treaties, or even on humanitarian operations conducted by the State. One of the questions arising in this connection is the role that such committees could play in the event of internal violence.
Paragraph 2 of Recommendation V mentioned above encourages States to facilitate co-operation between the national committees and the ICRC. This co-operation may take various forms and is only now beginning to take shape. The meeting held in October 1996 was one of the first international events that brought people involved in the national implementation of humanitarian law together to exchange views and share experiences in this field. The participants discussed various possibilities for co-operation between national committees, e.g., sharing information, setting up joint activities, exchanging experts, and holding bilateral or multilateral meetings between bodies from countries in a given region or with a common legal system. For instance, a meeting of committees in Latin America took place in 1997.
Much attention was devoted to co-operation with the ICRC, and in particular the Advisory Service on International Humanitarian Law, which has provided constant support to countries establishing national committees. Numerous seminars on implementation have been organised at the national and regional levels for the authorities of various countries. The presence of ICRC legal advisers in the countries or regions concerned helps to promote direct and in-depth dialogue with the officials in charge of implementation. The experts attending the October meeting expressed interest in the plan to set up a database on humanitarian law, containing information on national implementation measures and related case law.
The meeting did not attempt to define the future activities of national humanitarian law bodies in any detail, for fear of placing artificial constraints on their development. National committees will have to create their own working momentum as they evolve. It is not enough simply to establish a committee. Drawing up a list of measures to be taken is a step in the right direction, but the adoption of a law does not necessarily mean that its provisions will be applied. The meeting clearly revealed a growing interest on the part of States in the creation of national mechanisms for promotion of international humanitarian law. Each of the countries engaged in this process has thus undertaken a long-term task that reflects a new impetus towards full incorporation of the humanitarian treaties in the legal system of every State. That impetus marks a step forward in ensuring effective respect for humanitarian law.
It is very clear from the foregoing that national bodies created to promote humanitarian law will be instrumental in facilitating ratification, implementation and dissemination of humanitarian law conventions. Although there is no legal obligation to create such bodies, a number of states have deemed it convenient to create such mechanisms in different parts of the world, often in close collaboration with the ICRC. In so far as the South Asian countries are concerned, it is indeed heartening to note that some positive developments are taking place in this region. In March 2000, a national humanitarian law committee was established by the Government of Sri Lanka for which the Ministry of Foreign Affairs took initiative. The ICRC has also discussed the possibility of establishing such bodies in Bangladesh, India and Nepal. The authorities in these countries are closely examining the issue and are likely to initiate the process. Undoubtedly, this will go a long way in promoting humanitarian law in this part of the world.
[*]Regional Legal Adviser, ICRC New Delhi. The present article is based on a report prepared by the ICRC Advisory Service on International Humanitarian Law titled National Mechanisms for the Implementation of International Humanitarian Law, Geneva, October 1996.
[1] Articles 49-50-129-146 of the First, Second, Third and Fourth Geneva Conventions of 1949, respectively; Article 80 of Additional Protocol I, 1977.
[2] Articles 47-48-127-144 of the First, Second, Third and Fourth Geneva Conventions of 1949, respectively; Article 83 of Additional Protocol I, and Article 19 of Additional Protocol II, 1977.
[3] See “National Measures to implement international humanitarian law, Resolution V of the 25th International Conference of the Red Cross (Geneva, 1986). Written representations by the ICRC”, ICRC, Geneva, October 1991; “Implementation of international humanitarian law: National Measures”, ICRC, Doc. C.1/4. 1/1.
[4] Report of the President of the Inter-Governmental Group of Experts for the Protection of War Victims (Geneva, 23-27 January 1995), 26th International Conference of the Red Cross and Red Crescent, Geneva, 3-7 December 1995, Doc. 95/C. 1/2/1.
[5] This information is not exhaustive and is based on reports made by States to the ICRC and on details collected by the ICRC itself.
[6] For example, Albania, Argentina, Belgium, Bolivia, Bulgaria, Chile, Colombia, Finland, Indonesia, Norway, Panama, Paraguay, South Africa, Uruguay.
[7] For example, Australia, Denmark, Germany, Republic of Korea, Yugoslavia.
[8] For example, Austria, Israel, Italy, New Zealand, Sweden, Thailand, United Kingdom.
[9] For example, France, Namibia, Zimbabwe
[10] International humanitarian law: From Law to Action - Report on the Follow-up to the International Conference for the Protection of War Victims, ICRC, (Geneva, 1995).
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