Implementation and
Enforcement of IHL
Pontus Winther
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Outline of the Lecture
• General mechanisms to ensure compliance with IHL
• Duty of States to repress violations of IHL
• Violations of IHL
• Individual responsibility
• Command responsibility
• Incorporation in domestic legal systems
• International criminal courts and tribunals
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Mechanisms to ensure compliance with IHL
Duty for States to respect IHL in armed conflict, GC CA 1 and AP I art. 1
•
•
Application of IHL in good faith – not subject to reciprocity
Responsibility for violations committed by the armed forces of the State,
by other State organs, or by anyone else under the State’s authority
Duty for States to ensure respect for IHL in armed conflict, ibid.
• Repression of breaches and grave breaches of IHL
• Supervision of its armed forces, of other State organs, and of anyone else
under the State’s authority
• Appointment of Legal advisers in its armed forces
• Training of its armed forces, other state organs and civilians in IHL
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Training in IHL
Dissemination, GC AP I, art. 83
Armed forces of the State:
• include the study of IHL in the programmes of military instruction
[In Sweden, the Armed Forces are responsible for the training of
its own personnel. However, the academic training is conducted by
SNDC. Each officer gets 16—20 academic credits throughout
his/her academic training]
Other organs of the State, the civilian population:
• encourage the study of IHL by the civilian population
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Appointment of Legal Advisers
Legal advisers in armed forces, GC AP I, art. 82
The High Contracting Parties at all times, and the Parties to the conflict in
time of armed conflict, shall ensure that legal advisers are available, when
necessary, to advise military commanders at the appropriate level on the
application of the Conventions and this Protocol and on the appropriate
instruction to be given to the armed forces on this subject.
[Swedish regulation on legal advisers, SFS 1990:12 §§ 27—32]
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Repression of breaches of IHL
General comments
• The rules presented below are not exhaustive – guidance must be
sought in each applicable treaty and in CIHL.
• Breaches of IHL applicable in NIAC are accounted for on a CIHL basis.
• Individuals are normally, except for the act, also responsible for i.e.
ordering, attempting, assisting, facilitating, and aiding or abetting a
criminal act (subject to court’s jurisdiction)
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Duty for States to Repress breaches of IHL
Penal sanctions, GC I—IV art. 49, 50, 129 and 146 respective
The High Contracting Parties undertake to enact any legislation necessary
to provide effective penal sanctions for persons committing, or ordering to
be committed, any of the grave breaches of the present Convention
defined in the following Article.
Each High Contracting Party shall take measures necessary for the
suppression of all acts contrary to the provisions of the present
Convention other than the grave breaches defined in the following Article.
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Individual Responsibility (1)
Penal sanctions, GC I—IV art. 50, 51, 130 and 147 respective
Grave breaches to which the preceding Article relates shall be those
involving any of the following acts, if committed against persons or
property protected by the Convention: wilful killing, torture or inhuman
treatment, including biological experiments, wilfully causing great
suffering or serious injury to body or health… [followed by conventionspecific regulations].
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Individual Responsibility (2)
Grave Breaches, GC AP I, art. 85(3)
… the following acts shall be regarded as grave breaches of this Protocol,
when committed wilfully, in violation of the relevant provisions of this
Protocol, and causing death or serious injury to body or health:
(a) making the civilian population or individual civilians the object of attack;
(b) launching an indiscriminate attack…;
(c) launching an attack against works or installations containing dangerous
forces …;
(d) making non-defended localities and demilitarized zones the object of
attack;
(e) making a person the object of attack in the knowledge that he is 'hors
de combat';
(f) the perfidious use, in violation of Article 37, of the distinctive emblem of
the red cross…
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Individual Responsibility (3)
Grave Breaches, GC AP I, art. 85(4)
4. In addition to the grave breaches defined in the preceding paragraphs
and in the Conventions, the following shall be regarded as grave breaches
of this Protocol, when committed wilfully and in violation of the Conventions
or the Protocol:
(a) the transfer by the Occupying Power of parts of its own civilian
population into the territory it occupies, or the deportation or transfer of all
or parts of the population of the occupied territory within or outside this
territory…;
(b) unjustifiable delay in the repatriation of prisoners of war or civilians;
(c) practices of ' apartheid ' and other inhuman and degrading practices…;
(d) making the clearly-recognized historic monuments, works of art or
places of worship … the object of attack…
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Command Responsibility (1)
Duty of commanders, GC AP I, art. 87
“Parties to the conflict shall require military commanders, with respect to
members of the armed forces under their command and other persons under
their control, to prevent and, where necessary, to suppress and to report to
competent authorities breaches of the Conventions and of this Protocol.
”Parties to the conflict shall require that, commensurate with their level of
responsibility, commanders ensure that members of the armed forces under
their command are aware of their obligations under the Conventions and this
Protocol.
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Command Responsibility (2)
Failure to act, GC AP I art. 86 para. 2
The fact that a breach of the Conventions or of this Protocol was
committed by a subordinate does not absolve his superiors from penal or
disciplinary responsibility, as the case may be, if they knew, or had
information which should have enabled them to conclude in the
circumstances at the time, that he was committing or was going to
commit such a breach and if they did not take all feasible measures within
their power to prevent or repress the breach.
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Incorporation in Domestic Law (Sweden)
• Dualistic legal tradition
• Incorporation of international law into Swedish law
• War crimes in Swedish law
• Swedish penal code (SFS 1962:700), chapter 22 paragraph 6
• Swedish jurisdiction
• Swedish penal code (SFS 1962:700), chapter 2 paragraph 1—5
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
International Criminal Courts and Tribunals
ICTY, the Hague (SCRES
827)
(Cf. ICJ, the Hague
(ICJ:s Statute)
ICCt, the Hague (Rome Statute)
ICTR, Arusha/the Hague (SCRES 955)
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05
Pontus Winther
pontus.winther@fhs.se
Pontus Winther/Implementation and Enforcement of IHL
2013-09-05