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Biannual update on national implementation of international humanitarian law* January–June 2013
Published online by Cambridge University Press: 23 September 2014
The biannual update on national legislation and case law is an important tool in promoting the exchange of information on national measures for the implementation of international humanitarian law (IHL).
This selection of national legislation and case law has been prepared by Julian Jaccard, Legal Attaché of the ICRC Advisory Service on International Humanitarian Law.
1 For further information regarding IHL national implementation, see the section ‘IHL and Domestic Law’, available at: www.icrc.org/eng/war-and-law/ihl-domestic-law/index.jsp. All internet references were last accessed in June 2013.
2 Further information on the ICRC's Health Care in Danger project is available at: www.icrc.org/eng/what-we-do/safeguarding-health-care/solution/2013-04-26-hcid-health-care-in-danger-project.htm.
3 For further information, see the fact sheet on ‘Penal Repression: Punishing War Crimes’, available at: www.icrc.org/eng/assets/files/other/penal_repression.pdf.
4 To view the full list of IHL-related treaties, see the ICRC's Treaty Database, available at: www.icrc.org/ihl.
5 See the ICRC Database on National Implementation of IHL, available at: www.icrc.org/ihl-nat.
6 Ley 22.924, Ley de Pacificación Nacional, 22 September 1983, Boletín Oficial de la República Argentina, 27 September 1983.
7 On June 1983 the Argentinian Supreme Court declared that the self-amnesty law enacted by Bignone was unconstitutional. However, between December 1986 and May 1987, the Argentinian Parliament approved two new amnesty laws, one called ‘final point’, which set a sixty-day limitation for prosecuting crimes against international law committed during the military junta. The other was called the ‘due obedience’ law, which exempted from prosecution all members of the armed forces who committed crimes as a result of following given orders. These were the laws that the Argentinian Supreme Court declared to be unconstitutional on 14 June 2005.
8 For further information, see: ‘What's New in Law and Case Law across the World? Biannual Update on National Legislation Implementing Humanitarian Law and Relevant Case Law, January–June 2012’, in International Review of the Red Cross, Vol. 94, No. 887, 2012, p. 1151, available at: www.icrc.org/eng/assets/files/review/2012/irrc-887-national-implementation.pdf.
9 BACRIM (bandas criminales), or ‘criminal bands’, is an expression used by the Colombian government.
10 ‘The Law defines “victims” as those who, individually or collectively, have suffered harm in acts that occurred on or after 10 January 1985, as a consequence of violations of international humanitarian law or international human rights law, occurring in the midst of the internal armed conflict. The term extends to family members and partners of those killed or disappeared.’ See ‘What's New in Law and Case Law across the World: Biannual Update on National Legislation and Case Law January–June 2011’, in International Review of the Red Cross, Vol.93, No. 883, September 2011, p. 859, available at: www.icrc.org/eng/assets/files/review/2011/irrc-883-reports-documents.pdf.
11 For the Court, an enforced displaced person is anyone who had a well-founded fear, resulting from widespread violence, which led him to abandon his place of residence or the place where he was developing his economic activity.
12 For the Court, the vertical effect of treaties relates to those situations where a treaty is sufficiently clear and explicit to create direct obligations for nationals of the country which ratified the treaty. In this case, the Court concluded that the Fourth Geneva Convention did not create direct obligations for French corporations.
13 For the Court, ‘horizontal effect’ means that only when a corporation is a signatory of an international agreement will this agreement be binding for it. Furthermore, the Court affirms that as corporations are not subjects of international law, they cannot sign an international agreement and, as such, cannot be directly bound by it.
14 Statute of the International Court of Justice, Art. 38(1) (b): ‘the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: … b. international custom, as evidence of a general practice accepted as law’.
15 International Criminal Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu, ICTR 97-23-S, Trial Chamber I, 2 September 1998.
16 Prior to 1 October 2003, the Netherlands’ criminal code established a penalty of not more than five years’ imprisonment for the crime of incitement to genocide. Because the facts of this case occurred in 1994 and given the principles of most favourable legislation, non-retroactivity and legality, the District Court of The Hague had to apply the past provisions of the Netherlands’ criminal code.
17 On 19 December 2013 the Peshawar High Court began contempt proceedings against the government of Pakistan due to its failure to obey the orders given by the Court.
18 According to the decision of the Peshawar High Court, ‘896 Pakistani civilians, residents of the said Agency, were killed during the last five (05) years till December 2012 while 209 were seriously injured. … Many houses & vehicles of different category, make & model, worth millions dollars, were destroyed during these attacks. Besides, many cattle heads of different kinds were torn into pieces & charred, belonging to the local residents. Similarly, in South Waziristan Agency 70 drone strikes were carried out during last five (05) years till June 2012 in which 553 local civilians were killed, 126 were injured, 03 houses were destroyed and 23 vehicles were badly damaged.’
19 See UNGA Res. 2625 (XXV), 24 October 1970, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. In particular, the Peshawar High Court states that these drone strikes violated the principle according to which ‘every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues’ (op. para. 1).
20 Peshawar High Court, Peshawar Judicial Department, Writ Petition No. 1551-P/2012, Judgment, 11 March 2013, para. 22(vii).
21 Peshawar High Court, Peshawar Judicial Department, Writ Petition No. 1551-P/2012, Judgment, 11 March 2013, para. 22(ix).
22 The Gacaca Courts were an alternative judicial authority that was created by the Rwandan presidency. These courts were intended to try low- and middle-level perpetrators of the Rwandan genocide, while the International Criminal Tribunal for Rwanda was to try higher-ranked responsible persons. On 18 June 2012, the Rwandan president announced the end of the Gacaca Courts.
23 United Kingdom Supreme Court, Smith and others (Appellants) v. The Ministry of Defence (Respondent); Ellis (Respondent) v. The Ministry of Defence (Appellant); and Allbutt and others (Respondents) v. The Ministry of Defence (Appellant), Judgment, 19 June 2013, para. 76.