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Implementation of
International
Humanitarian Law
Denpasar (2020)
• Detailed Introduction: Chapter 7, I, II, III, IV, V, VI, VII and VIII.
States are under a legal obligation to make the provisions of the Geneva Conventions
known and understood as broadly as possible within their own country. This obligation
is integrated in Common Article 47/48/127/144 in the Geneva Conventions of 1949 and
reiterated in Article 83 of Protocol I and Article 7 of Protocol III. The main audiences for
dissemination are the military, the Red Cross and Red Crescent National Societies,
governmental services (in particular within the ministries of Defense, Foreign Affairs,
Justice and Health), academic circles, elementary and secondary schools, medical
professions, the media, and the public in general.
Moreover, States have the obligation to train their troops on the provisions of the
Conventions. States also have the legal obligation to give orders and instructions for
the respect of IHL, and supervise the proper execution of such instructions, which
naturally also relates to military training and exercises (See Art. 1 of 1907 Hague
Convention IV and Art. 80(2) of Protocol I).
Finally, States also have an obligation to include legal advisors in their armed forces.
The purpose is to maximize the impact of the dissemination and training activities on
IHL, but also to provide immediate advice on how to apply IHL in the concrete conduct
of hostilities to commanders in the field, upon whom the enforcement of the
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Conventions rests in the first place, and taking into account the vast amount of legal
obligations contained in the Conventions. This derived from the obligation to “ensure
respect” of the Conventions of 1949, and since 1977, this is covered specifically by
Article 82 of Additional Protocol I.
b. Implementing legislation
States are under a strict legal obligation to enact domestic legal measures to import the
Geneva Conventions into the domestic laws of their own internal legal regimes, unless
of course their domestic legal regime considers that the international treaties concluded
by the State automatically form part of their domestic legal order (e.g. the case of
Switzerland). With this objective in mind, in 1996, the ICRC set up the Advisory Service
in order to assist States in their implementing efforts. This Advisory Service cooperates
with the governments and, taking into account their specific needs and their respective
political and legal systems, offers them legal and technical assistance in the field of IHL
incorporation in States’ internal laws.
Even if they are not themselves parties to an armed conflict, the High Contracting Parties
to the Geneva Conventions of 1949 undertook to not only respect the Conventions in all
circumstances, but also to “ensure respect” of IHL pursuant to Common Article 1 to the
Geneva Conventions of 1949. This obligation was reinforced by Article 1(1) of Additional
Protocol I of 1977, and is also considered to a certain extent to be part of customary
international law (see Rule 139 of ICRC Customary IHL Study). This obligation is also
binding upon non-State actors. The new Commentary to common Article 1 published in
2016 details in depth the obligations of common Article 1. It is also important to bear
in mind that international humanitarian law includes many other treaties in addition to
Geneva Conventions and their Additional Protocols, and some of these instruments
contain important mechanisms for their implementation outside the context of armed
conflicts. For example, the 1997 Ottawa Convention imposes a total ban on
antipersonnel landmines and creates a comprehensive mechanism in order to monitor
that State Parties comply with their obligations pursuant to the Convention.
It will not be sufficient for commanders to give a general instruction that their forces
must respect IHL. Specific orders regarding the respect of IHL must be given at every
stage of the planning and execution of military operations. High Contracting Parties and
commanders in the field also have a positive obligation to monitor that their orders are
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b. Protecting powers
Protecting powers can also extend their good offices to the parties to the conflict in
case of a disagreement on the application of the Conventions. Protecting powers are
also designed to be the recipients of a variety of information that the parties to the
conflict have the obligation to collect and transmit to the other parties, such as the
names and details of the detainees, the location of the detention places, etc.
It is also interesting to note in particular that protecting powers may also, in certain
circumstances, appoint a legal counsel to detainees under trial (see Art. 105
Convention III and 72 Convention IV), have the right to be present at the trial (see Art.
105 Convention III and 72 Convention IV), and to make financial allowances to the
detainees (see Art. 39 Convention IV). Since its insertion into the legal corpus, this
system only operated on five occasions, the last one being the Malvinas – Falkland
conflict when Argentina and the United Kingdom appointed Brazil and Switzerland,
respectively, as Protecting Powers. Anticipating the failure of the system, the Geneva
Conventions of 1949 established a substitute for Protecting Powers. This was meant to
offer all guarantees of impartiality and efficacy and the substitute would be either a
neutral State or an organization appointed by the Detaining Power. In the absence of a
substitute, the Detaining Power shall ask a humanitarian organization, such as the
International Committee of the Red Cross, to undertake the humanitarian functions
entrusted to the Protecting Powers under the Convention or shall accept offers of
services from such an organization. This role of quasi-substitute does not entail the
performance of all functions entrusted to Protecting Powers, but only the humanitarian
tasks (that is to say the essential functions).
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Naturally, the obligation resting upon all 194 State Parties to the Geneva Conventions to
“ensure respect of the Conventions in all circumstances” as per Common Article 1
continues to apply during situations of armed conflicts, be it on their own or other States’
territories. See Section A.c above for a short summary of what this obligation entails.
Being certainly the most visible contemporary element of what is commonly referred to
as “implementation of IHL”, the idea that serious violations of the laws of war entail the
individual criminal responsibility of their authors and those who order such violations is
not a new concept. Conventions list a series of behaviors (murder, torture, ill-treatment,
destruction, etc.) for which all High Contracting Parties are under a positive obligation
to search possible authors of such grave breaches and either prosecute them in their
own domestic courts or extradite them to be prosecuted by another High Contracting
Party (See Common Article 50/51/130/147 GC1949).
The grave breaches system thus had an immense advantage over the previous attempts
to hold war criminals accountable for their acts: the trials did not depend on the setting-
up of an international tribunal. The domestic courts of all High Contracting Parties not
only could, but were also obliged to either prosecute or extradite for prosecution (aut
dedere aut judicare) war criminals.
The grave breaches system established by the Geneva Conventions was however only
used for the first time in 1994, that is almost 50 years after its adoption. We will not go
back here to the history of the emergence of international criminal justice as we know
it today. It will simply be noted that it is now recognized that individual criminal
responsibility relates to the following persons: 1) those who directly commit war crimes
(by action or omission); 2) their accomplices (including aiding and abetting and other
forms of participation); and 3) commanders and superiors. The postulate that direct
authors and participants in war crimes will be held criminally responsible is not
conceptually difficult to understand. Similarly, command – and superior – criminal
responsibility results from the fact that the Geneva Conventions are designed to be
applied first and foremost by the commander in the field.
International criminal law also regulates very strictly the excuses (or defenses) which
may be put forward by the accused in order to exclude their individual criminal
responsibility. For example, the defence of superior orders will only be admissible when
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the accused was under a legal obligation to follow the order, there was a subordination
relationship with the person who gave the order, the person did not know that the order
was not lawful, and the order was not manifestly unlawful (see for example Art. 33 ICC
Statute). By the same token, combatants are under a strict legal obligation to disobey
manifestly unlawful orders (see Rule 154 of ICRC Customary IHL Study). The order to
commit crimes against humanity or crimes of genocide is always considered to be
manifestly unlawful.
Finally, it is worth mentioning that although the ICC has jurisdiction only over individuals,
many national courts have jurisdiction over legal persons, including companies and
private companies, for war crimes, crimes against humanity and genocide (see in this
respect the report of the expert committee of the International Commission of Jurists:
Corporate complicity & Legal accountability, 2008, 3 volumes, available at:
http://www.icj.org/report-of-the-international-commission-of-jurists-expert-legal-
panel-on-corporate-complicity-in-international-crimes/.
In addition to the jurisdictional measures offered by international criminal law, and those
which fall within the competence of the national courts responsible for implementing
the provisions of International Humanitarian Law treaties, other bodies may have been
led to pronounce.
Finally, the International Court of Justice (ICJ) is also one of the important jurisdictional
mechanisms for the implementation of international humanitarian law. It has shaped the
implementation of IHL, in particular by ruling on the responsibility of States for
violations of IHL committed by their agents see in particular the 1986 Nicaragua Case,3
the 2005 Uganda Case,4 and the 2007 Serbia and Montenegro Case5). The ICJ also issued
important decisions regarding IHL in advisory opinions (see in particular the 1996
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Advisory Opinion on Nuclear Weapons6 and the 2004 Advisory Opinion on the Wall7).
More information on the ICJ and its cases can be found at www.icj-cij.org
United Nations bodies have also played an important role in the implementation of
International Humanitarian Law. Not only have UN Special Rapporteurs often issued
reports on concrete situations of IHL violations, but the UN General Assembly and the
UN Security Council have issued numerous resolutions calling for the implementation of
International Humanitarian Law in concrete cases.
IHL has very few mechanisms for monitoring compliance with it and suffers from many
weaknesses in the implementation of its provisions, and above all, no effective
mechanism of its own. This is why the ICRC and the Swiss government launched in 2011
a series of negotiations and discussions in order to set up more effective mechanisms
for monitoring and respecting IHL. This initiative was based on a resolution adopted the
same year by the 31st International Conference of the Red Cross and Red Crescent. After
four years of consultations and discussions with States, a draft resolution was submitted
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2 Bibliographic references
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BERNARD, V. et NIKOLOVA, M.C., “Generating respect for the law: The need for
persistence and imagination” in Hommage à Jean Pictet par le Concours de
droit international humanitaire Jean-Pictet, sous la direction de Grignon, Julia.
Cowansville, Éditions Yvon Blais, 2016, pp. 545-
578: https://www.icrc.org/en/document/generating-respect-law-need-
persistence-and-imagination
BOUTRUCHE, T., “The Role of United Nations Commissions of Inquiry in the
Implementation of IHL: Potential and Challenges” in The Companion to
International Humanitarian Law, Leiden; Boston: Brill Nijhoff, 2018, pp. 98-114.
HEINSCH, R., “The future of the international humanitarian fact-finding
commission: a possibility to overcome the weakness of IHL compliance
mechanisms ?” in The companion to international humanitarian law., Leiden,
Boston : Brill Nijhoff, 2018, pp. 79-97.
JINKS, D., MAOGOTO, J.N. et SOLOMON, S., “Introducing international
humanitarian law to judicial and quasi-judicial bodies” in Applying
International Humanitarian Law in Judicial and Quasi-Judicial Bodies, The
Hague, Asser Press, 2014, pp. 1-27.
KAPUR, A. et RASSI, C.M., “Landmarks and developments in international
criminal institutions and their contributions to international humanitarian law”
in Hommage à Jean Pictet par le Concours de droit international humanitaire
Jean-Pictet, sous la direction de Grignon, Julia. Cowansville, Éditions Yvon Blais,
2016, pp. 435.
MCINTYRE G., « The International Residual Mechanism and the Legacy of the
International Criminal Tribunals for the Former Yugoslavia and Rwanda »,
Goettingen Journal of International Law, Vol. 3, No. 3, 2011, pp. 923-983 :
http://www.gojil.eu/issues/33/33_article_mcintyre.pdf.
MERON, T. et BENSOUDA, F., « Twenty Years of International Criminal Law: From
the ICTY to the ICC and Beyond », Proceedings of the Annual Meeting, American
Society of International Law, Vol. 107, Avril 2013, pp. 407-420 :
https://www.questia.com/library/journal/1G1-366728224/twenty-years-of-
international-criminal-law-from-the.
RODRIGUEZ, P.B., “Does an Armed Group have an Obligation to Provide
Reparations to Its Victims? Construing an Obligation to Provide Reparations for
Violations of International Humanitarian Law” in Non-State Actors and
International Obligations, Leiden, Boston: Brill Nijhoff, 2018, pp. 406- 428.
SCHABAS, W.A., « Entrevue avec William A. Schabas, quelques réflexions sur les
commissions d’enquête » in Hommage à Jean Pictet par le Concours de droit
international humanitaire Jean-Pictet, sous la direction de Grignon, Julia.
Cowansville, Éditions Yvon Blais, 2016, pp. 485-492.
STEPHEN, D. et WOODEN, T., “War Crimes: Increasing Compliance with
International Humanitarian Law through International Criminal Law ?” in
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International Criminal Law in Context, London ; New York, Routledge, 2018, pp.
109-129.
MOIR. L., « Grave breaches and internal armed conflicts », Journal of
International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 763-787.
FLECK, D., « Shortcomings of the grave breaches regime », Journal of
International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 833-854.
HENCKAERTS, J-M., “The grave breaches regime as customary international
law”, Journal of international criminal justice, Vol. 7, No. 4, September 2009,
pp. 683-702.
3 Do I…
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5 Exercice
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