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National Implementation Measures of International Humanitarian Law: Some Practical Aspects*

Published online by Cambridge University Press:  17 February 2009

María Teresa Dutli
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Extract

From one perspective, the modern development of international humanitarian law has been a remarkable success. Its rules are among the most detailed and extensive of international law. Its principal treaties enjoy almost universal acceptance. For the other side of the picture, one has only to look at what is happening in most recent armed conflicts to realize that serious violations of humanitarian law are rife all over the world. This leads to the conclusion that it is compliance — respect for the rules — which is the major challenge facing humanitarian law today rather than its very existence or the adequacy of its provisions.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 245 - 261
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. 188 States Parties as of 31 January 1998.

2. 150 and 142 States Parties respectively, as of 31 January 1998.

3. This obligation is stated in Article 1 common to the four 1949 Geneva Conventions and, more generally, has been considered by the International Court of Justice to constitute one of the ‘general principles of humanitarian law to which the Conventions merely give specific expression’. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Rep. (1986) p. 114Google Scholar.

4. Arts. 48/49/128/145 of the four Geneva Conventions respectively and Art. 84 of 1977 Additional Protocol I.

5. Arts. 47/48/127/144 of the four Geneva Conventions respectively and Arts. 87 and 19 of Additional Protocols I and II respectively.

6. Arts. 49–50/50–51/129–132/146–149 of the four Geneva Conventions respectively and Arts. 85–91 of Additional Protocol I.

7. Arts. 40 and 41, First Geneva Convention; Art. 42 and Annex, Second Geneva Convention; Arts. 17, 70–71 and 120 and Annex IV, Third Geneva Convention; Arts. 20, 106–107 and Annex III, Fourth Geneva Convention; Arts. 53, 56, 58 and 79, Additional Protocol I.

8. Arts. 44 and 53–54, First Geneva Convention; Arts. 43–45, Second Geneva Convention.

9. Arts. 5, 15–17, 41, 82–90 and 95–108, Third Geneva Convention; Arts. 31–33, 35, 37, 43, 64–78, 99–101 and 117–126, Fourth Geneva Convention; Arts. 11, 44–45, 75–77, Additional Protocol I; and Arts. 4–6, Additional Protocol II.

10. Arts. 6 and 82, Additional Protocol I.

11. National Societies: Arts. 26 and 44, First Geneva Convention and Art. 63, Fourth Geneva Convention; Arts. 81 and 18, Additional Protocols I and II respectively; Civil Defence: Art. 63, Fourth Geneva Convention and Arts. 61–67, Additional Protocol I; National Information Bureaux: Arts. 122–124, Third Geneva Convention and Arts. 136–141, Fourth Geneva Convention.

12. Arts. 36 (weapons), 56 and 58 (military sites). Additional Protocol I.

13. Art. 23 and Annex I, First Geneva Convention; Arts. 14 and 15, Fourth Geneva Convention; Art. 60 and Annex I, Additional Protocol I.

14. On the protection and use of the emblem, see Bugnion, F., ‘The red cross and red crescent emblems’, 272 International Review of the Red Cross (IRRC) (1989) pp. 408–419CrossRefGoogle Scholar. See also ‘Model law concerning the use and protection of the emblem of the red cross or red crescent’, 313 IRRC (1996) pp. 486–495Google Scholar.

15. ‘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…’ (Arts. 49/40/129/146 of the four Geneva Conventions respectively).

16. Arts. 50/51/129/147 of the four Geneva Conventions respectively and Art. 85 of Additional Protocol I.

17. Art. 85 of Additional Protocol I.

18. See David, E., Principes du droit des conflits armés (Brussels, Bruylant 1994) pp. 642–665Google Scholar; Meron, T., ‘International criminalization of internal atrocities’, 89 AJIL (1995) pp. 554–577CrossRefGoogle Scholar.

19. National Repression of Violations of International Humanitarian Law: Meeting of Experts (Geneva, 23–25 09 1997)Google Scholar ICRC Advisory Service on International Humanitarian Law, Introduction to preparatory documents.

20. See supra n. 15.

21. Recommendation V of the Intergovernmental Group of Experts for the Protection of War Victims (January 1995). See Resolution 1 of the 26th International Conference of the Red Cross and Red Crescent, entitled International humanitarian law — from law to action. Report on the follow-up to the International Conference for the Protection of War Victims, in 310 IRRC (01–02 1996) p. 58Google Scholar.

22. See Pellandini, C., ed., Committees or other national bodies for international humanitarian law. Meeting of experts (Geneva, ICRC Advisory Service on International Humanitarian Law 1997)Google Scholar.

23. National implementation of international humanitarian law: Annual Report 1996 (Geneva, ICRC Advisory Service on International Humanitarian Law 1997) pp. 78–98Google Scholar.

24. Ibid.

25. These guidelines appear in National implementation of international humanitarian law: Annual Report 1996, ibid. pp. 63–68.

26. Ibid. See also 319 IRRC (07–08 1997) pp. 456–457Google Scholar.

27. Kornblum, E., Implementation of international humanitarian law. National measures: Zimbabwe, Internal report (Harare, 8 02 1996)Google Scholar. This document can be consulted at the Documentation Centre of the ICRC Advisory Service.

28. Constitution of Zimbabwe, Section 111B (amended by the Constitution of Zimbabwe Amendment Act, No. 12, 1993).

29. Assignment of Functions (Minister of Defence) (Amendment) Notice, 1996 (No. 1).

30. See Arts. 49/50/129/146 of the four Geneva Conventions respectively.

31. Art. 3, para. 1, of the Geneva Conventions Amendment Act, 1996.

32. Ibid., Art. 3, para. 2(a).

33. Ibid., Art. 3, para. 2(b).

34. Ibid., Section 3(5).

35. Ibid., Section 3(6).

36. See n. 29.

37. No. 36, 1981, Section 8(3).

38. Ibid., Art. 8, paras 1(a) and 2(a), (b).

39. Ibid., Art. 8, para. 3, as amended by Section 4 of the Amendment Act, 1996.

40. Ibid., Art. 8, para. 4, as amended by Section 4 of the Amendment Act, 1996.

41. Ibid., Section 8(6), which refers to Section 3(6).

42. See Chiwese, G., Medidas nationals para a Implementação do direito internacional humanitário: apresentaão da experiência do Zimbabwe, paper submitted for the National Seminar on Implementation of International Humanitarian Law (Maputo, 18–20 03 1997)Google Scholar.

43. War Crimes Prosecution, SEC 583, Section 2401 of Title 18, United States Code (Public Law 104–192; the War Crimes Act of 1996). Reprinted infra at p. 643.

44. [Expanded War Crimes Act] Public Law: 105–119 (11/26/97) (H.R.2159). See infra p. 643.

45. Section II, Chapter I: Means of Injuring the Enemy, Sieges and Bombardments.

46. See Alien Tort Claims Act [originally enacted as section 9 of the Judicial Act of 1789] and Torture Victims Protection Act of 1991 (Public Law 102–256 [HR2092], 106 Stat. 73, approved 12 March 1992.

47. ‘FYI: The Administration also favours expanding jurisdiction over war criminals who come within US jurisdiction, an approach included in the Senate version of this legislation. We understand that this approach, however, will be considered as a follow-on step after approval of this legislation.’ HR 1348 – The Expanded War Crimes Act of 1997.

48. Subcommittee of the Immigration and Claims Committee of the Judiciary, US House of Representatives. Statement of the ICRC, June 1996.

49. ‘[E]xpansions should address (…) (1) any case in which a person who commits a grave breach of the Geneva Conventions is found within the US…’. Statement made by President Clinton on signature of the War Crimes Act.

50. Arts. 224 and 283 of the Penal Code of Georgia on the illegal use of the red cross/red crescent emblem.

51. It entered into force on 24 October 1997, the date of its publication.

52. See Table of national bodies for international humanitarian law, ICRC internal document (regularly updated) which may be consulted at the Documentation Centre of the ICRC Advisory Service.

53. Ibid.