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Domestic Law

29-10-2010 Overview

For the treaties of IHL to be universally accepted, they must be

formally adopted by all States through ratification or accession. States

must then enact national legislation and take practical measures in

order for the rules to be fully effective. The ICRCs Advisory Service

can help, by providing technical assistance and documentation.

IHL treaties cover a wide range of topics, from the protection of wounded and sick

military personnel, prisoners of war and civilians, to the prohibition of weapons such

as anti-personnel landmines, chemical and biological weapons and the restriction of

the use of other weapons. In order for the rules of IHL to be truly effective, it is

important that States consider becoming parties by ratification or accession to these

treaties that make up the body of IHL. Ratification of these treaties, however, is only

the first step.

Implementation

Most of these IHL treaties create obligations, which require States to undertake

certain actions of compliance, including undertaking legislative, regulatory and

administrative measures.

The core IHL treaties are the Geneva Conventions of 1949 and their Additional

Protocols. The Conventions have now achieved universal acceptance, imposing the

obligations they contain on every Government.

As a result, States must adopt legislative measures to prohibit and repress what are

called "grave breaches", regardless of the offender's nationality and regardless of

where the acts were committed. They should also provide for the punishment of

other serious violations of the Geneva Conventions and their Protocols.

The Geneva Conventions also oblige States to search for people alleged to have

committed grave breaches, and either bring them to trial or extradite them to

another State for prosecution. States are expected to provide judicial assistance to

each other in these matters.

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Prosecution for offences is on the basis of individual criminal responsibility and

military commanders have a particular responsibility for acts committed by people

under their command.

The Geneva Conventions and their Protocols also require States to enact laws to

protect the distinctive emblems, signs and symbols of the red cross, red crescent and

red crystal, as well as other protective signs, symbols and signals.

Weapons related treaties necessitate the implementation of measures to prohibit the

development, production, stockpiling or transfer of certain weapons.

States are also required to adopt more practical measures, such as the integration of

IHL in training, in military manuals, the marking of protected objects and the

delivery of identification cards.

The ICRC's role in implementation

The ICRC plays a key role in the national implementation and enforcement of IHL.

Its Advisory Service assists States in enacting domestic legislation, through the

provision of technical assistance as well as the provision of publications, including

ratification kits and model laws.

The ICRCs Advisory Service was created following a recommendation of the

Intergovernmental Group of Experts on the Protection of War Victims, endorsed by

the 26th International Conference of the Red Cross and Red Crescent in 1995, andprovides a specialized structure to tackle the issue of national implementation on a

systematic basis.

The service has set up a national implementation database, which provides a means

of exchanging information on national implementation. It covers a wide range of

subjects, including the punishment of IHL violations, regulating the use of distinctive

emblems, legal guarantees for protected persons, dissemination and training of IHL

and contains legislation and case law of States relating to IHL.

National IHL Committees

The ICRC also encourages the setting up of National inter-ministerial Committees on

IHL. Although not legally required, they have proven very effective in assisting States

in national implementation by acting as a focal point for the various Government

Departments that deal with IHL issues. There are 91 National IHL Committees to

date.

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National Committees advise governments on the ratification and application of IHL

treaties at the national level but also share, with ICRC encouragement, their

expertise and experience at the regional level.

Their creation and composition is entirely the prerogative of governments, but the

ICRC recommends the inclusion of representatives of relevant ministries such as

Defence, Foreign Affairs and Justice, Interior or Home affairs, Health and

Education ,specialist academics, international lawyers, military personnel,

representatives of the national Red Cross or Red Crescent society and relevant

NGOs.