27th International Conference
of the Red Cross and Red Crescent

ENSURING RESPECT FOR INTERNATIONAL HUMANITARIAN LAW

--TOWARDS APPROPRIATE MECHANISMS

Organisers : Swiss Government (DFAE) and German Red Cross

There are unfortunately many shortcomings in the implementation of international humanitarian law. The workshop was held to discuss potential mechanisms for ensuring greater respect for and more effective implementation of the law. The participants reviewed all the possible mechanisms in this respect, focusing on two specific issues: the creation of a mechanism for the exchange of information (periodic reports) on international humanitarian law and a re-examination of the role of Protecting Power. The exchange of views was both constructive and useful but too brief. The subject matter warranted more extensive debate.

1. Mechanisms for the implementation of international humanitarian law, in particular that of the Protecting Power.

By way of introduction, a summary presentation was given on the national and international mechanisms for the implementation of humanitarian law. The participants considered that these mechanisms should be examined in the light of Article 1 common to the Geneva Conventions, which sets out the obligation for the States Parties to respect and ensure respect for these instruments in all circumstances. They should therefore be given close consideration and an analysis should be made of other possible mechanisms. Any such analysis should take account of the different types of armed conflict, most of today's conflicts being either non-international or of a mixed character. Indeed, the mechanisms under consideration must be adapted to the different types of conflict. The comparative importance of prevention and repression were mentioned.

Some speakers considered that the two approaches were complementary while others thought that preventive measures were of primary importance. Some speakers considered it vital to move beyond a culture of impunity and stressed that it was essential to give an appropriate place to mechanisms designed to suppress violations of humanitarian law.

The central role of the ICRC in monitoring the application of humanitarian law was also highlighted and the suggestion was made that the Committee should play an exclusive role in this regard.

Several speakers referred to the institution of national committees for the implementation of humanitarian law and emphasized their importance. They also stressed the need for close cooperation between such committees, especially at regional level. It was proposed that the International Fact-Finding Commission established under Article 90 of Additional Protocol I to the Geneva Conventions be re-examined.

Given the nature of contemporary armed conflicts, it would be useful to explore the possibility of making greater use of that body. For such conflicts, could not the consent of the parties be given on a case-by-case basis? The exchange of views on mechanisms for the implementation of international humanitarian law showed that there should be a follow-up to the workshop in the form of a critical reflection on the existence and value of the various mechanisms.

The institution of Protecting Powers had proved its worth during the First and Second World Wars. Since then it had been little used. Several explanations were suggested: the nature of most of the conflicts since the end of the Second World War and the impossibility of transposing the concept of Protecting Powers to non-international armed conflicts; the refusal of the parties concerned to admit the existence of an armed conflict or to enter into official relations with an adversary whose existence they contested, or ignorance about the institution. This did not mean that the latter, as such, had no future. The subject would have to be studied in order to become more familiar with it and to make it better known. It was emphasized that the institution of Protecting Powers was the only mechanism that could ensure continuous monitoring of the application of international humanitarian law during an armed conflict. One participant underscored the importance of adopting an imaginative approach towards adapting the institution to internal conflicts.

The wish was expressed that a mechanism be found that could, in internal conflicts, perform the tasks entrusted to the Protecting Power in international conflicts.

2. A mechanism for exchange of information (periodic reports)

The Geneva Conventions assume, and in many instances require, that States Parties take legislative and administrative measures to guarantee and facilitate the proper implementation of humanitarian law. The penal and disciplinary provisions aimed at the repression of violations and the legal measures designed to protect the emblem are but examples.

Given the importance of this legal instrument it is desirable and even necessary to ensure that it meets all requirements. The system of periodic reports evaluated by committees of experts is a method well-established in international law to promote the proper implementation of international treaties.

The participants in the workshop welcomed the idea of instituting a mechanism for exchanging information on humanitarian law. Such a system had the advantage of promoting transparency and fostering dialogue that could ultimately lead to reform in States' systems for implementing humanitarian law. It could also constitute an independent mechanism for heightening awareness and for monitoring. In order to avoid any errors, the procedures ought to be laid down in the light of both positive and negative experience in the United Nations system.

The participants discussed several aspects of a possible mechanism, for example in regard to who would draft the reports and for whom, what the reports would cover, the nature of the information to be provided, the aims pursued, the composition of the "club" of States participating in a voluntary system set up as a pilot project, the way in which such a system should be set up and certain procedural aspects.

The speakers thought that the exchange of information and experiences should be carried out in a spirit of cooperation rather than in an climate of repression or denunciation of violations. The view was expressed that, at least at first, the national committees for the implementation of humanitarian law could make a valuable contribution to creating such a system.

The speakers confirmed the importance of pursuing the work on such a project.

 

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Workshops

The International Criminal Court

Volunteering 2000

People On War

Widowhood and armed conflict

Working in partnership

The humanitarian challenge of small arms proliferation

Fight against AIDS in developing countries

Ensuring respect for International Humanitarian Law

The SIrUS Project and reviewing the legality of new weapons

Use and development of SPHERE standards

Health and first aid training