International Humanitarian Law (IHL)

AuthorInternational Committee of the Red Cross

Page 135

  1. International Humanitiarian Law regulates armed conflict to limit adverse humanitarian effects on both combatants and civilians, and includes, inter alia, the 1949 Geneva Conventions and their 1977 Additional Protocols, weapons treaties, the International Criminal Court Statute, and the Child Soldiers Protocol.

  2. This policy paper covers three aspects of IHL:

* encouraging better IHL implementation through national implementation;

* promoting Commonwealth work on controlling the transfer of small arms and light weapons to IHL violators;

* announcing the Customary IHL Study.

Encouraging improved ihl implementation
  1. Commonwealth States have a reasonably good record of treaty accession in matters of IHL.1For example, 52 of the 53 countries of the Commonwealth have ratified the 1949 Geneva Conventions,2 and a number of other IHL treaties have over 40 accessions from among the 53 Commonwealth states.

  2. However, recent years have shown that in many countries the legislation needed to implement the obligations arising from these Conventions is missing. While not all of the principal 25 IHL treaties require implementation, many do. This is all the more true in common law states, where treaties are not normally directly applicable in the domestic law of States Parties. However, even in states where direct applicability may be possible, the nature of many of the obligations which require implementation means that legislation is still necessary to give effect to these obligations. For example, to give effect to an obligation to enact criminal provisions that incorporate grave breaches of the Geneva Conventions it would be necessary to provide for the nature of the punishment to be imposed in the event of a breach.

(a) Treaty accession
  1. The Advisory Service on IHL of the International Committee of the Red Cross (ICRC) was established in 1996. Its aim is not only to encourage and support states in ratifying or acceding to IHL treaties, but also to assist states in adopting appropriate national legislation in order to give effect to their IHL treaty obligations. The table that will be distributed to states gives an overview of treaty accession and legislative incorporation of the IHL obligations undertaken. Also highlighted isPage 136 the progress that states have made since 1999, when the ICRC last presented an overview to Commonwealth Law Ministers, at their Port-of-Spain, Trinidad and Tobago Meeting.

  2. As will be seen from the table to be presented, the 145 treaty accessions of the 53 Commonwealth states since 1999 is impressive. This represents 15 per cent of all treaty accessions ever undertaken by Commonwealth members.

(b) Legislative implementation
  1. However, legislative action lags behind. Of the nine major legislative measures that may be taken by each state, there have been a total of only about 30 such laws adopted since 1999. Meanwhile, according to the ICRC's records, some 175 laws for which treaty obligations appear to require adopting legislation remain unadopted by Commonwealth states. Without such legislation, one consequence is that states may not be able effectively to punish or deter the commission of grave breaches of IHL. Following the publication of the ICRC's Roots of Behaviour in War study, it appears more important than ever to ensure that national laws and regulations reflect international obligations.3 We hope that...

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