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Strengthening compliance with IHL: The ICRC-Swiss initiative

Published online by Cambridge University Press:  13 December 2016

Jelena Pejic
Jelena Pejic*
Affiliation:
Jelena Pejic is Senior Legal Adviser in the ICRC's Legal Division.
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Abstract

Lack of compliance with international humanitarian law (IHL), or insufficient observance of its rules, is probably the greatest current challenge to the continued credibility of this body of international law. The need to strengthen respect for IHL led the ICRC and Switzerland to facilitate unprecedented consultations among States between 2012 and 2015 focused, specifically, on improving the efficiency of mechanisms of compliance with IHL. This note outlines the background of the initiative and summarizes its course and outcome. Ongoing work in the current phase of the process, agreed to at the 32nd International Conference of the Red Cross and Red Crescent held in late 2015, is also very briefly indicated.

Keywords

compliancerespectcompliance initiativemechanismIHLinternational humanitarian law
Type
Reports and documents
Information
International Review of the Red Cross , Volume 98 , Issue 901: War in cities , April 2016 , pp. 315 - 330
Copyright
Copyright © icrc 2016 

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References

1 International Conferences of the Red Cross and Red Crescent will hereafter be referred to simply as “International Conference” or “Conference”.

2 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August 1864.

3 A summary of the outcome of these consultations was annexed to the ICRC's report on IHL and the Challenges of Contemporary Armed Conflicts, presented to the 28th International Conference, available at: www.icrc.org/eng/assets/files/other/ihlcontemp_armedconflicts_final_ang.pdf.

4 Resolution 1, “Strengthening Legal Protection for Victims of Armed Conflicts”, 31st International Conference of the Red Cross and Red Crescent, 1 December 2011, available at: www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-1-2011.htm.

5 Ibid., para. 5.

6 Ibid., para. 6.

7 Ibid., para. 8.

8 Ibid., para. 7.

9 For a list of the participating delegations, see the Annex to the Concluding Report cited in note 12 below.

10 The relevant documents may be found on the ICRC's website at: www.icrc.org/en/document/strengthening-compliance-international-humanitarian-law-ihl-work-icrc-and-swiss-government. They are also available on the website of the Swiss Federal Department of Foreign Affairs at: www.eda.admin.ch/eda/en/home/topics/intla/humlaw/icrc.html.

11 Council of Delegates of the International Red Cross and Red Crescent Movement, Resolution 8, 17–18 November 2013, available at: www.icrc.org/eng/resources/documents/publication/p1140.htm.

12 International Committee of the Red Cross in conjunction with the Swiss Federal Department of Foreign Affairs, Strengthening Compliance with International Humanitarian Law, Concluding Report, document prepared for the 32nd International Conference of the Red Cross and Red Crescent, 32IC/15/19.2, Geneva, October 2015, available at: rcrcconference.org/wp-content/uploads/sites/3/2015/04/32IC-Concluding-report-on-Strengthening-Compliance-with-IHL_EN.pdf.

13 See Articles 8/8/8/9 of the four Geneva Conventions of 1949, respectively, and Article 5 of AP I.

14 See Articles 52/53/132/149 of the four Geneva Conventions of 1949, respectively.

15 See Article 90 of AP I.

16 The ICRC's mandate is provided for in the Geneva Conventions and AP I in international armed conflicts. The organization is also entitled to offer its services to the parties to non-international armed conflicts pursuant to common Article 3 to the Geneva Conventions.

17 An exception, according to some States, is the IHFFC, the triggering and mandate of which was believed to be deserving of further reflection.

18 See Background Document for the Second Meeting of States on Strengthening Compliance with IHL, June 2013, available at: www.icrc.org/en/document/strengthening-compliance-ihl-second-meeting-states-strengthening-compliance-ihl-june-2013.

19 Resolution 2, “Strengthening Compliance with International Humanitarian Law”, 32nd International Conference of the Red Cross and Red Crescent, 32IC/15/R2, available at: http://rcrcconference.org/wp-content/uploads/sites/3/2015/04/32IC-AR-Compliance_EN.pdf.

20 International Committee of the Red Cross in conjunction with the Swiss Federal Department of Foreign Affairs, “Strengthening Compliance with International Humanitarian Law”, official draft resolution, document prepared for the 32nd International Conference of the Red Cross and Red Crescent, 32IC/15/19.2DR, Geneva, October 2015. On file with the author.

21 Ibid., op. para. 7.

22 The consultations had confirmed that States not party to the Additional Protocols should be able to invoke them if they so wish. The same general view was expressed with respect to other sources of IHL, including norms of a customary nature: States that want to do so should feel free to rely on them in their engagements at the Meeting of States, i.e., in national reports on compliance with IHL or in thematic discussions on IHL issues. This is, inter alia, because a number of older IHL treaties, such as the 1907 Hague Conventions, are now considered to reflect customary IHL.

23 For the specifics on these two issues, see Concluding Report, above note 12, pp. 18–20.

24 The alternative draft resolution dated 2 December 2015, addressed to the Joint Organizing Committee of the 32nd International Conference of the Red Cross and Red Crescent, was submitted by the Permanent Mission of the Russian Federation on behalf of the Republic of Belarus, the Republic of Cuba, India, the Democratic People's Republic of Korea, the Republic of Nicaragua, the Russian Federation, the Syrian Arab Republic, the Republic of Tajikistan and the Bolivarian Republic of Venezuela. On file with the author.

25 Alternative draft resolution, above note 24, op. para. 5.

26 Official draft resolution, above note 20, op. para. 16.

27 Alternative draft resolution, above note 24, op. para. 6.

28 Ibid., op. para. 7.

29 The International Conference takes action by means of resolutions, which are habitually adopted by consensus. However, consensus is not a statutory requirement and the Conference may decide to vote on a resolution, in which case a simple majority suffices for its adoption. See Statutes of the International Red Cross and Red Crescent Movement, Articles 10(5) and 11(7).