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The International Committee of the Red Cross and the implementation of a system to repress breaches of international humanitarian law

Published online by Cambridge University Press:  13 January 2010

María Teresa Dutli  and
Cristina Pellandini
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Extract

The fundamental instruments of international humanitarian law are well known. They are principally the four Geneva Conventions of 1949 and their Additional Protocols of 1977, as well as an extensive framework of customary law. These instruments deal with issues of vital importance in times of armed conflict including protection of the wounded, sick and shipwrecked, prisoners of war and civilian internees, as well as the protection of the civilian population as a whole.

Type
Repression of Breaches of International Humanitarian Law
Information
International Review of the Red Cross (1961 - 1997) , Volume 34 , Issue 300 , June 1994 , pp. 240 - 254
Copyright
Copyright © International Committee of the Red Cross 1994

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Footnotes

*

Original: French — March 1994.

References

1 See, inter alia. Sandoz, Yves, “Mise en œuvre du droit international humanitaire”, in Les dimensions internationales du droit humanitaire, IHL-UNESCO, Paris, Pédone, 1986. pp. 229–326 Google Scholar. By the same author: “Penal Aspects of International Humanitarian Law”, in Bassiouni, Cherif, (ed.), International Criminal Law, Vol. 1, New York, 1986 Google Scholar. Also Baxter, Richard, “The Municipal and International Law Basis of Jurisdiction over War Crimes”, in the British Yearbook of International Law, Vol. 28, 1951.Google Scholar

2 Articles 49, 50, 129 and 146 common to the Geneva Convention.

3 Articles 50, 51, 130 and 147 common to the Geneva Conventions.

4 Articles 11, paragraph 4 and 85, paragraphs 3 and 4.

5 Article 85, paragraph 5.

6 See footnote 2.

7 Articles 51, 52, 131 and 148 common to the Geneva Conventions.

8 See footnote 2.

9 These other violations may be defined as conduct contrary to the instruments of international humanitarian law which is of a serious nature but which is not included as such in the list of “grave breaches”.

It is not necessary to have in mind exactly what conduct could fall under this definition to be able nevertheless to distinguish three categories that qualify:

— isolated instances of conduct, not included amongst the grave breaches, but nevertheless of a serious nature;

— conduct which is not included amongst the grave breaches, but which takes on a serious nature because of the frequency of the individual acts committed or because of the systematic repetition thereof or because of circumstances;

— “global” violations, for example, acts whereby a particular situation, a territory or a whole category of persons or objects is withdrawn from the application of the Conventions or the Protocol.

See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, M. Nijhoff/ICRC, Geneva, 1987, paras 3591 and 3592.Google Scholar

10 Plattner, Denise, “The penal repression of violations of international humanitarian law applicable in non-international armed conflicts”, IRRC, No. 278, 09–10 1990, p. 419.CrossRefGoogle Scholar

11 See Article 3 common to the Geneva Conventions and Article 4 of Protocol II.

12 The question of compensation for injury suffered in international conflicts is dealt with in Articles 51, 52, 131 and 148 common to the Geneva Conventions and in Article 91 of Protocol I.

13 See mainly Article 75 of Protocol I and Article 6 of Protocol II.

14 Convention on the Prevention and Punishment of the Crime of Genocide. Article VI and the Convention on the Suppression and Punishment of the Crime of Apartheid, Article V.

15 Security Council Resolutions 808 (1993) and 827 (1993).

16 Report on the Protection of War Victims submitted by the ICRC to the International Conference for the Protection of War Victims, held in Geneva under the auspices of the Government of Switzerland from 30 August to 1 September 1993. ICRC, Geneva. June 1993, para. 4.2.2. Report reproduced in IRRC, No. 296, September–October 1993, pp. 391–445.

17 Report of the International Law Commission to the forty-eighth Session of the General Assembly of the United Nations, doc. A/48/10.

18 Report of the International Law Commission to the forty-fourth Session of the General Assembly of the United Nations, doc. A/44/10.

19 See Article 5. para. 2, (c) of the Statutes of the International Red Cross and Red Crescent Movement.

20 The obligation to disseminate the law appears in Articles 47, 48, 127 and 144 common to the Geneva Conventions, in Article 83 of Protocol I and in Article 19 of Protocol II.

21 See, inter alia, “National measures to implement international humanitarian law”, Resolution V of the 25th International Conference (Geneva, 1986)Google Scholar; “Written representations by the International Committee of the Red Cross”, ICRC, Geneva, 10 1991 Google Scholar; “Implementation of international humanitarian law – national measures”, ICRC, Geneva, 1991. doc. C.I/4.1/1.Google Scholar

22 See, “Action by the ICRC in the event of breaches of international humanitarian law”, IRRC, No. 221, 03–04 1981, pp. 76–83 Google Scholar.

The ICRC reserves the right to make public statements concerning violations of international humanitarian law if the following conditions are fulfilled:

— the violations are major and repeated;

— the steps taken confidentially have not succeeded in putting an end to the violations;

— such publicity is in the interest of the persons or populations affected or threatened;

— the ICRC delegates have witnessed the violations with their own eyes, or the existence and extent of those breaches have been established by reliable and verifiable sources.

The purpose of public representations is to say what the ICRC is doing in a specific situation, to raise awareness and sometimes to remind the States concerned of their responsibilities under IHL. They may take various forms (solemn appeal, public statement, press release, etc.) and may be addressed to the State involved, to all parties to a conflict or to the community of States as a whole, or even to public opinion as a means of pressure that may have an effect on the State or States concerned.

The ICRC has issued many appeals to belligerent parties and public declarations, for example, in the context of conflicts in the former Yugoslavia; see in this regard ICRC declarations and press releases.

23 See footnote 22.

24 The present article does not examine the role that the ICRC could be called upon to play with respect to judicial guarantees when it assumes, de jure or de facto, the functions incumbent on a Protecting Power. In this regard, see: Gasser, Hans Peter, “Respect for fundamental humanitarian guarantees in time of armed conflict — The part played by ICRC delegates”. IRRC, No. 287, 03–04 1992, pp. 121–142.CrossRefGoogle Scholar

25 For example, those brought by the ad hoc International Tribunal set up by the United Nations Security Council with a view to “prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace”. See footnote 15.

26 See footnote 22.

27 Article 5, para. 2, c), d) and e) of the Statutes of the International Red Cross and Red Crescent Movement.

28 Article 126 of the Third Convention and Article 143 of the Fourth Convention.

29 Articles 10/10/10/11, para. 3 common to the Conventions.

30 Articles 9/9/9/10 and Article 3, para. 2 common to the Conventions, Article 5. para. 3 of the Statutes.

31 See Blondel, J.-L., “Assistance to protected persons”, IRRC, No. 260, 09–10 1987, pp. 451–468.CrossRefGoogle Scholar

32 Pursuant to the principle of neutrality, the ICRC “may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature”. The strict observance of this principle by the ICRC is a sine qua non for it to be able to pursue its humanitarian activities under optimum conditions in cases of armed conflict or disturbances.

33 See footnote 22.

34 Such participation is furthermore excluded when the ICRC is engaged in proceedings in the course of its duties as a substitute for a Protecting Power, especially as a neutral observer; Article 99 ff. of the Third Geneva Convention and Article 71 ff. of the Fourth Convention; see footnote 24.

35 See footnote 22.

36 See, by way of example, Barberis, Julio A., “El Comité International de la Cruz Roja como sujeto del derecho de gentes” in Swinarski, Christophe (ed.), Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet, Geneva-The Hague, ICRC/Nijhoff 1984, pp. 635–641 Google Scholar; Dominic, Christiané, “La personnalité juridique international du CICR”Google Scholar, idem, pp. 663–673; Reuter, Paul, “La personnalité juridique internationale du Comité international de la Croix-Rouge”Google Scholar, idem, pp. 783–791.

37 The granting of observer status to the ICRC in consideration of the special role and mandates conferred upon it by the Geneva Conventions of 1949, resolution A/45/6 of the United Nations General Assembly, adopted during its forty-fifth session at its thirtyfirst plenary meeting, on 16 October 1990. General Assembly, Official Records: 45th Session, Supplement No. 49 (A/45/49).

38 The ICRC has hitherto concluded headquarters agreements in 49 countries.

39 See Article 6 of the Movement's Statutes, in particular, para. 3 and para. 4, d) and i), as well as the Agreement between the ICRC and the League (Federation) of 20 October 1989.

40 Fundamental Principles adopted in 1965 and ratified by the States party to the Geneva Conventions of 1949, and at the 25th International Conference of the Red Cross and Red Crescent in 1986.