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The penal repression of violations of international humanitarian law applicable in non-international armed conflicts

Published online by Cambridge University Press:  13 January 2010

Denise Plattner
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Extract

At a time when non-international armed conflicts are increasing in number, it may be interesting to examine the implementation of international humanitarian law (IHL) applicable in these conflicts. To ensure its respect in international armed conflict, this law provides for the penal repression of certain violations. Used with discernment, especially for preventive purposes, this is undoubtedly an effective measure. There is good reason, therefore, also in view of the work of the International Law Commission (ILC) on a draft code of crimes against the peace and security of mankind, to see whether penal repression of the violations of international humanitarian law applicable in non-international armed conflicts should be promoted.

Type
International humanitarian law and non-international armed conflicts
Information
International Review of the Red Cross (1961 - 1997) , Volume 30 , Issue 278 , October 1990 , pp. 409 - 420
Copyright
Copyright © International Committee of the Red Cross 1990

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References

1 Cf. Report of the International Law Commission at the forty-fourth session of the United Nations General Assembly, document A/44/10. It must be noted that the first draft of the provision relating to war crimes contained in this document deals only with international armed conflicts; assimilated to them are conflicts in terms of Art. 1, para. 4, of Additional Protocol I.

2 Cf. Art. 85, para. 1, of Additional Protocol I, which assimilates grave breaches to war crimes.

3 Status on 31 August 1990.

4 Yves, Sandoz, “Penal Aspects of International Humanitarian Law”, in International Criminal Law, vol. I, Crimes, Bassiouni, Chérif, ed., New York, 1986, pp. 209–232, at p. 225 ff.Google Scholar

5 Commentary published under the general editorship of Jean S. Pictet, IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 595.Google Scholar

6 Status on 31 August 1990.

7 Commentary published under the general editorship of Jean S. Pictet, III, Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, pp. 625–626.Google Scholar

8 Cf. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of August 12, 1949, ed. by Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno, ICRC, Geneva, 1987, p. 1345 Google Scholar, para. 4444; Abi-Saab, Georges, “Non-international armed conflicts”, in The International Dimensions of Humanitarian Law, UNESCO, Paris, 1988, pp. 217–239, at p. 231.Google Scholar

9 On this subject see the opinion of MrAgo, Roberto, special rapporteur, in his report on the responsibility of States, Yearbook of the International Law Commission, 1972, vol. II, p. 130, para. 156.Google Scholar

10 Cf. Veuthey, Michel, Guérilla et droit humanitaire, Geneva, 1983, p. 217.Google Scholar

11 Bassiouni, Chérif, “Characteristics of International Law Conventions”, in International Criminal Law, vol. I, Crimes, op. cit., pp. 1–3, at p. 7.Google Scholar

12 On this subject, see Sachariew, Kamen, “States' entitlement to take action to enforce international humanitarian law”, in International Review of the Red Cross, No. 270, 05–06 1989, pp. 177–195, at pp. 179–180.CrossRefGoogle Scholar

13 The International Court of Justice, in its judgment of 27 June 1986 concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), considered that the observance of rules of conduct laid down by Art. 1 was likewise mandatory in non-international armed conflicts (cf. Reports of Judgments, Advisory Opinions and Orders, 1986, p. 129, para. 255).Google Scholar

14 Sandoz, Yves, “Implementing international humanitarian law”, in The International Dimensions of Humanitarian Law, UNESCO, 1988. pp. 259–282, at pp. 261–262.Google Scholar

15 For a description of these duties, see in Sandoz, particular, op. cit. Google Scholar

16 In this respect the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, of 10 December 1984, is of particular interest.