increasing respect for international humanitarian law in non-international armed conflicts

7/30/2019 IncreasIng respect for InternatIonal HumanItarIan law In non-InternatIonal armed conflicts

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IncreasIng respect for

InternatIonal HumanItarIan law In

non-InternatIonal armed conflIcts


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Author: Michelle Mack, with contributions by Jelena Pejic

International Committee of the Red Cross

19, avenue de la Paix

1202 Geneva, Switzerland

T + 41 22 734 60 01 F + 41 22 733 20 57E-mail: [email protected]

www.icrc.org

ICRC


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IncreasIng respect for

InternatIonal HumanItarIan law In

non-InternatIonal armed conflIcts

International Committee of the Red Cross

Geneva

February 2008


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FOREWORD

Te most widely prevalent type o armed conict today is non-international in nature. It involves hostilities

between government armed orces and organized non-State armed groups or is carried on among members o

such groups themselves. A dening eature o non-international armed conict is that it is usually waged by

persons amiliar with each others political and economic history, social organization, culture and customs.

Unortunately, it is characterized also by the extreme brutality that so oen accompanies ghting among those

with a common or shared background.

International humanitarian law (IHL) provides the normative ramework against which the behaviour o parties

to non-international armed conicts must be assessed. As ar back as 1949, States agreed, in Article 3 common to

the our Geneva Conventions, to abide by certain minimum standards in such wars. Te provisions o common

Article 3 bind all parties to non-international armed conicts, including organized non-State armed groups.

Common Article 3, which is said to reect elementary considerations o humanity, has since been supplemented

by a number o other treaty provisions, and by customary humanitarian law governing the conduct o parties to

non-international armed conicts.

Draing laws is just the rst step in ensuring protection or those who do not take part in hostilities, such

as civilians, or those who no longer do so, such as wounded or sick members o the armed orces and armed

groups. Te real challenge has always been to make the rules known to the opposing sides and to ensure that

they are applied. Tis publication aims to provide States and armed groups, as well as humanitarian and other

actors working with parties to non-international armed conicts, with suggestions or ways in which the law

could be better implemented.

One should have no illusions that there are any legal tools or policy arguments that can avail in those instances

when the law is being systematically outed, i the political will to abide by it is lacking. Te many dierent

causes o non-international armed conicts, and the diversity o the participants, also means that those hoping

to assist the parties involved in respecting the law must bring to their task patience, wisdom and knowledge.

Experience has shown, however, that where the requisite conditions exist, certain legal tools and policy

arguments may help to persuade conicting parties to better comply with the rules.

Tis publication sets out a range o legal tools and policy arguments that the International Committee o the

Red Cross (ICRC), and others, have employed with both States and organized armed groups to improve their

compliance with the law. We recommend them to a wider audience not because they have always worked but

because under appropriate conditions some, or all o them, can and should be tried. In addition to its own

continuing endeavours to increase respect or the law by applying the strategies outlined in this text the

ICRC remains rmly committed to urther exploring ways in which persons aected by non-international armed

conicts can be better protected.

Dr Jakob Kellenberger

President

International Committee o the Red Cross


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Introduction 5

Specic Challenges 11

International Humanitarian Law in Non-International Armed Conficts 7

Lessons Learnt 13

Increasing Respect by Making the Rules Known 15

Increasing Respect through Legal Tools 16

Increasing Respect through Strategic Argumentation 30

Final Remarks 32

1. Special Agreements 16

2. Unilateral Declarations 19

3. Inclusion o Humanitarian Law in Codes o Conduct or Armed Groups 22

4. Inclusion o Humanitarian Law in Ceasere or Peace Agreements 24

5. Grants o Amnesty or Mere Participation in Hostilities 28

TABLE OF CONTENTS


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1 Statutes o the International Red Cross and Red Crescent Movement, adopted by the 25th International Conerence

o the Red Cross and Red Crescent in Geneva in October 1986, Article 5(2)(d).2 Id., Article 5(2)(c).3 Id., Article 5(2)(g).

Icrc :

pi ih ii IHl

Article 3 common to the our Geneva Conventions o 1949 provides that, in non-

international armed conicts, an impartial humanitarian body, such as the International

Committee o the Red Cross, may oer its services to the Parties to the conict. By making

this ormal oer o services, the ICRC declares itsel available or carrying out the tasks

assigned to it under humanitarian law.

Te ICRCs eorts in non-international armed conicts are guided by its institutional

mission: to protect the lives and dignity o victims o armed conict and to endeavour to

prevent suering by promoting and strengthening humanitarian law. IHL is an essential tool

in discharging this mission. I respected by the parties to a conict, this body o law provides

essential protection or those who are aected by situations o armed conict.

Within the ICRCs broad role in armed conicts to ensure the protection o and assistance

to military and civilian victims o such events1 respect or IHL is crucial. Tis is afrmed

by the Statutes o the International Red Cross and Red Crescent Movement, which describe

the ICRCs mandate as working or the aithul application o international humanitarian

law2 and towards the understanding and dissemination o international humanitarian law.3

4


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INCREASING RESPECT FOR IHL

INTRODUCTION

Most armed conicts today are non-international in

nature. Tey take place within the borders o States,

and are waged between a State and organized non-State

armed group(s) or among such groups themselves.

Te daily lie o many civilians caught up in these

situations is ruled by ear or the threat o destruction

and extreme suering. Te deliberate targeting o

civilians, the destruction o civilian property and

looting, the orced displacement o populations, the

use o civilians as human shields, the destruction

o inrastructure vital to civilian populations, rape

and other orms o sexual violence, torture, indis-

criminate attacks: these and other acts o violence are

unortunately all too common in non-international

armed conicts throughout the world.

International humanitarian law (IHL) is a body o law

that provides essential protection or those directly

aected by an armed conict, i it is respected by the

parties to that conict. Where IHL is not respected,

human suering increases and the consequences o the

conict become more difcult to repair.

What can be done to bridge this gap between good

intentions as embodied by the law and the reality o

suering? What can be done to inuence the behaviour

o warring parties? What are the challenges? What

strategies or approaches have proven successul? What

lessons can be learnt rom practice?

In its eld operations, the International Committee o

the Red Cross (ICRC) seeks to alleviate and prevent

human suering by among other means urging

parties to armed conicts to act in accordance with

humanitarian law. Tis includes regular condential

dialogue with, and representations to, both States and

armed groups.

Tis publication is based on ICRC practice in non-

international armed conicts. It summarizes some o

the considerable challenges the ICRC has aced and the

lessons it has learnt in its eorts to increase respect or

IHL. It also includes an overview o the dissemination

activities, the legal tools, and the methods o persuasion

that the ICRC has used or improving compliance with

humanitarian law.

Te parties reerred to throughout are States or

organized non-State armed groups that are party to

non-international armed conicts and thereore bound

by international humanitarian law.


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B

orisHeger

/ICR

C


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Te rules o IHL applicable in situations o non-

international armed conict are ound in both treaty

and customary law.

Common Article 3 o the 1949 Geneva Conventions

specically applies in the case o conicts not o an

international character. Tis means armed conicts

between governments and organized armed groups, or

those that take place among such groups themselves.

Common Article 3 does not dene armed conict.

However, several criteria have been developed through

practice, such as the ollowing:

Te parties to the conict have to be identiable,

i.e. they must have a minimum o organization and

structure, and a chain o command.

Te armed conict must have a minimum level o

intensity. Te parties would usually have recourse

to their armed orces or to military means. Te

duration o the violence is another element that has

to be taken into consideration.

Tereore, common Article 3 does not apply to

situations o internal disturbances and tensions, such as

riots and other isolated and sporadic acts o violence.

It is also important to note that common Article 3

expressly states that its application does not aect the

legal status o the parties to a conict.

Common Article 3, which is sometimes reerred to

as a treaty in miniature, stipulates the minimum

protection that must be aorded to all those who are

not, or who are no longer, taking an active part in

hostilities (e.g. civilians, members o armed orces o

the parties to the conict who have been captured, are

wounded, or have surrendered). It provides or humane

and non-discriminatory treatment or all such persons,

in particular by prohibiting acts o violence to lie and

person (specically murder, mutilation, cruel treatment

and torture), the taking o hostages, and outrages

upon personal dignity, in particular humiliating and

degrading treatment. It prohibits also the passing o

sentences and the carrying out o executions without

judgment being pronounced by a regularly constituted

court providing all judicial guarantees recognized as

indispensable. Finally, it imposes an obligation on the

parties to collect the wounded and sick and to care or

them.

As afrmed by the International Court o Justice

in 1986, the provisions o common Article 3 reect

customary international law and represent a minimum

standard rom which the parties to any type o armed

conict must not depart.4


INTERNATIONAL HUMANITARIAN LAW

IN NON-INTERNATIONAL ARMED CONFLICTS

7

What rules of IHL are applicable innon-international armed conflicts?

4 SeeMilitary and Paramilitary Activities In and Against Nicaragua, 1986 I.C.J. Reports p.114, paras 218 and 219.

Dominic

Sansoni/ICR

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In the case o armed conict not o an international character occurring in the territory o

one o the High Contracting Parties, each Party to the conict shall be bound to apply, as a

minimum, the ollowing provisions:

Persons taking no active part in the hostilities, including members o armed orces1.

who have laid down their arms and those placed hors de combatby sickness, wounds,

detention, or any other cause, shall in all circumstances be treated humanely, without

any adverse distinction ounded on race, colour, religion or aith, sex, birth or wealth,

or any other similar criteria.

o this end, the ollowing acts are and shall remain prohibited at any time and in any

place whatsoever with respect to the above-mentioned persons:

(a) violence to lie and person, in particular murder o all kinds, mutilation, cruel

treatment and torture;

(b) taking o hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading

treatment;

(d) the passing o sentences and the carrying out o executions without previous

judgment pronounced by regularly constituted court, aording all the judicialguarantees which are recognized as indispensable by civilized peoples.

Te wounded and sick shall be collected and cared or.2.

An impartial humanitarian body, such as the International Committee o the Red Cross,

may oer its services to the Parties to the conict.

Te Parties to the conict should urther endeavour to bring into orce, by means o special

agreements, all or part o the other provisions o the present Convention.

Te application o the preceding provisions shall not aect the legal status o the Parties to the

conict.

Common Article 3


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Protocol II additional to the our GenevaConventions, adopted on 8 June 1977, was

specically enacted to apply to certain situations o

non-international armed conict; it strengthened

protection beyond the minimum standards contained

in common Article 3. Additional Protocol II applies

only where it has been ratied by the State. Its scope

is more restricted than that o common Article 3: it

applies only to conicts between a States armed orce

and dissident armed orces or other organized armed

groups which, under responsible command, exercise

such control over a part o its territory as to enable

them to carry out sustained and concerted military

operations and to implement this Protocol (Article 1,

para. 1, o Additional Protocol II).

Like common Article 3, Additional Protocol II

provides or the humane and non-discriminatory

treatment o all those who are not, or who are no

longer, taking a direct part in hostilities. It expands

the protection provided by common Article 3, by

including prohibitions on collective punishment,

acts o terrorism, rape, enorced prostitution and

indecent assault, slavery and pillage. It sets out specic

provisions and protections or certain categories o

persons such as children, persons deprived o liberty

or reasons related to the conict, persons prosecuted

or criminal oences related to the conict, persons

who are wounded, sick and shipwrecked, medical

and religious personnel, and the civilian population

(attacks on civilian populations, starvation as a method

o combat, and orced displacement are all prohibited).

A number o other treaties of humanitarian law

also apply to situations o non-international armed

conict. Among them are the ollowing: the Protocol

on Prohibitions or Restrictions on the Use o Mines,

Booby-raps and Other Devices, as amended on 3 May

1996 (amended Protocol II to the 1980 Convention

on Prohibitions or Restrictions on the Use o Certain

Conventional Weapons (CCW)); Protocols I, III, IV

and V o the CCW, through paragraph 6 o Article 1

o the CCW, as adopted on 21 December 2001; the

Convention or the Protection o Cultural Property in

the Event o Armed Conict, 14 May 1954; and the

Second Protocol to the Hague Convention o 1954

or the Protection o Cultural Property in the Event o

Armed Conict, 26 March 1999.

Although the existence o so many provisions and

treaties may appear to be sufcient, the treaty rules

applicable in non-international armed conicts are,

in act, rudimentary compared to those applicable in

international armed conicts. Not only are there ewer

o these treaty rules, but they are also less detailed and,

in the case o Additional Protocol II, their application

is dependent on the specic situations described

above.

Te rules o customary international humanitarian

law,however, ll some important gaps in the regulationo non-international armed conicts.5 First, many

o the provisions o Additional Protocol II are now

considered to be part o customary international law

and, thus, binding on all parties to non-international

armed conicts. Tese rules include the prohibition

o attacks on civilians, the obligation to respect and

protect medical and religious personnel, medical

units and transports, the prohibition o starvation, the

prohibition o attacks on objects indispensable to the

survival o the civilian population, the obligation to

respect the undamental guarantees o persons who

are not taking a direct part, or who have ceased to take

a direct part, in hostilities, the obligation to search

or and respect and protect the wounded, sick and

shipwrecked, the obligation to search or and collect

the dead, the obligation to protect persons deprived o

their liberty, the prohibition o the orced movement

o civilians, and specic protection or women and

children.


5 For more inormation on customary law, and or a complete description o the rules o IHL applicable in non-international armed

conict as a matter o customary law, see the ICRC study on customary international humanitarian law: Jean-Marie Henckaerts,

Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, Cambridge, 2005.


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IHL IN NON-INTERNATIONAL ARMED CONFLICTS

Customary international humanitarian law also

goes beyond the rudimentary provisions o common

Article 3 and Additional Protocol II. Practice has

created a substantial number o additional customary

rules relating to the conduct o hostilities (e.g. the

distinction between civilian objects and military

objectives, the prohibition o indiscriminate

attacks and attacks in violation o the principle o

proportionality), rules on specically protected

persons and objects (e.g. humanitarian relie personnel

and objects, journalists, and protected zones), and

rules on specic methods o warare (e.g. prohibitions

o denial o quarter and perdy).

However, IHL is not the only body o law that

guarantees protection or persons in situations o

non-international armed conict. Te provisions o

international human rights law particularly, non-

derogable human rights are complementary to IHL

and also protect those who are vulnerable in such

situations. Moreover, domestic law in the State

in which a conict is taking place oen provides

additional protections and limits on behaviour, and

may provide a ramework o saeguards that have to

be respected in situations o non-international armed

conict.

All parties to non-international armed conicts

whether State actors or armed groups are bound by

the relevant rules o IHL.

States are explicitly bound by the treaties to which

they are party and by applicable customary law.

In addition, Article 1 common to the our Geneva

Conventions requires that States Parties must, in all

circumstances, not only respect, but also ensure

respect or humanitarian law.

Although only States may ormally ratiy or become

party to the various international treaties, armed

groups party to a non-international armed conict

also must comply with common Article 3, customary

IHL, and, where applicable, Additional Protocol II.

Te extensive practice o international courts and

tribunals and other international bodies afrms this

obligation.

As a matter o customary law binding on both States

and armed groups, the obligation to respect and

ensure respect or international humanitarian law

extends to ensuring respect by other persons or groups

acting in act on their instructions, or under their

direction or control.6

States not party to an armed conict are required by

common Article 1 to neither encourage a party to

violate IHL nor to take action that would assist in such

violations. Furthermore, common Article 1 is generally

interpreted as requiring States not party to an armed

conict to endeavour by means o positive action

to ensure respect or IHL by parties to a conict.

Tis means taking appropriate steps unilaterally

or collectively against parties to a conict who are

violating IHL and, particularly, intervening with States

or armed groups over whom they might have some

inuence. Tis is not an obligation to reach a specic

result, but rather an obligation o means to take all

possible appropriate measures in an attempt to prevent

or end violations o IHL.

6 See ICRC study, op.cit., Rule 139.

Who is bound by humanitarian law in

non-international armed conflicts?


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Actors who seek to engage with the parties to non-

international armed conicts, to improve their

compliance with IHL, may ace a number o specic

challenges.

Non-international armed conicts dier enormously.

Tey range rom those that resemble conventional

warare, similar to international armed conicts, to

others that are essentially unstructured. Tis diversity,

in conicts and in those party to them, makes it very

difcult to ormulate standard approaches or plans o

action or increasing respect or humanitarian law.

Te parties whether States or organized armed

groups also vary widely in character. Depth o

knowledge o the law, motives or taking part in an

armed conict, interest in or need or international

recognition or political legitimacy: these and other

actors will aect the prospects or engaging with a

party to increase its respect or the law. Willingness

to discuss the law and the conict, or to allow third

parties (e.g. the ICRC, other humanitarian actors,

United Nations (UN) bodies, neutral third States) to

get involved, will also dier in degree.

Organized armed groups, in particular, are extremely

diverse. Tey range rom those that are highly

centralized (with a strong hierarchy, eective chain

o command, communication capabilities, etc.) to

those that are decentralized (with semi-autonomous

or splinter actions operating under an ill-dened

leadership structure). Groups may also dier in

the extent o their territorial control, their capacity

to train members, and the disciplinary or punitive

measures that are taken against members who violate

humanitarian law.

Te eorts o humanitarian actors or organizations

that seek to engage with the parties to a non-

international armed conict to increase respect

or the law will be aected by a number o other

actors as well. Tese include the degree o access to

the territory in which a conict is taking place, the

availability o reliable inormation concerning the

conict, as well as the level and quality o contact with

the leadership o the parties.

Any attempt to engage with the parties to a non-

international armed conict, to increase respect or

the law, must take these and other relevant actors into

consideration.

Not inrequently, a party to a non-international armed

conict either a State or an armed group will

deny the applicability o humanitarian law, making it

difcult to engage in a discussion on respect or the

law.

Governmental authorities, or example, might disagree

that a particular situation qualies as an armed

conict. Tey might claim instead that it is a situation

o tension or mere banditry and does not amount

to non-international armed conict. On this basis, a

State might attempt to hinder or block contact with an

armed group or access to the geographical area under

its control. A State might also be reluctant to permit

any negotiations or engagement that, in its view, would

grant legitimacy to the armed group.

Non-State groups might also deny the applicability o

humanitarian law by reusing to recognize a body o

law created by States, or by claiming that they cannot

be bound by obligations ratied by the government

against whom they are ghting. In such cases, the law

will seldom be a relevant rame o reerence, especially

or groups whose actions are shaped by a strong

ideology.

SPECIFIC CHALLENGES

Diversity of conflicts and parties

Denial of applicability ofhumanitarian law


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SPECIFIC CHALLENGES

Any actor attempting to increase respect or the law

might ace another signicant challenge: a party may

not have enough political will, or none at all, to comply

with the provisions o humanitarian law. Te strength

o political will in a particular situation is likely to be

difcult to ascertain, but a thorough understanding o

the context, as well as good contacts and dialogue with

appropriate gures in the leadership o the party, will

help.

Even within one party, the attitudes o dierent actions

might dier. For example, the military wing o a party

might recognize the importance o respecting the law,

while its political representatives neither concede the

applicability o humanitarian law nor support the

implementation o its provisions. Te reverse is also

possible.

Where the objective o a party to a non-international

armed conict is itsel contrary to the principles,

rules and spirit o humanitarian law there will be

no political will to implement the law. Consider, or

example, parties who perorm certain acts as part o

a widespread or systematic attack against a specic

civilian population, or parties who are interested only

in seizing control o economic resources or wealth. In

such cases, violations o IHL are the means by which

objectives are pursued.

Security threats in non-international armed

conicts are common, especially in conicts that are

unstructured or where the parties to the conict are

unable to provide eective security guarantees. Treats

to security or lack o security guarantees can prevent

access to certain areas or to the parties to the conict.

Tis will present a general obstacle to dialogue on any

subject, including humanitarian law.

In many non-international armed conicts, bearers

o arms with little or no training in IHL are directly

involved in the ghting. Tis ignorance o the law

signicantly impedes eorts to increase respect or IHL

and to regulate the behaviour o the parties to conicts.

Indeed, there is little likelihood that a body o law will

be observed unless those whose duty it is to respect

and apply it are instructed and trained to respect its

obligations.

Lack of political will to

implement humanitarian law

Security and access

Ignorance of the law

BorisHeger

/ICR

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Te ICRCs long experience in situations o non-

international armed conict conrms that IHL i

respected helps prevent and alleviate suering by

providing a ramework o behaviour to which the

parties must conorm. A number o experiences drawn

rom ICRC practice are included in this section.

Tis is ollowed by a description o legal tools that can

be relied on, as appropriate, to improve compliance

with the law. Tese tools are inter-related and mutually

supportive.

Merely making the parties to an armed conict aware

o the law or o their specic obligations is not enough

to ensure compliance.

Te law should be presented and discussed

strategically, in a manner that is relevant and adapted

to the context, and as part o a deliberate plan o

engagement with the parties. Tis is necessary i parties

are to develop a positive attitude towards the law, a rst

step towards respecting it.

Although it should always be presented accurately

and without compromising existing provisions,

presentations o the law should not be theoretical

or academic. Te law should be discussed in terms

that are concrete and operational. Discussions o

the law should also be persuasive and relevant to the

circumstances. It is especially important to bear in

mind the motivation and the perceptions o the parties

to a conict.

Te legal complexity o a dialogue must also be in

keeping with the level o knowledge and competence

o those with whom it is being conducted.

Given the great diversity o armed conicts and parties,

there is no uniorm approach to the problem o lack o

respect or humanitarian law. Any eort to increase

respect or the law will be more eective i it takes

into account the unique characteristics o a specic

situation.

Tis is especially true regarding the parties themselves.

It will be particularly helpul to know and to

understand a partys motivations and interests in order

to explain why it is in the partys interest to comply

with the law (see Increasing Respect through Strategic

Argumentation, p. 30).

Only by devoting time and resources to learning about

the conict and the parties will it be possible to assess

what approaches might be most eective or promising.

LESSONS LEARNT

Present the law strategically

Understand and adapt to the uniquecharacteristics of the conflict andthe parties


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Attempts to inuence the behaviour o parties to a non-

international armed conict will be most eective in

the context o a process o engagement and relationship

with each party to the conict.

A long-term process o engagement will provide

opportunities or negotiating access, or developing

good contacts with appropriately placed persons,

and or gaining reliable inormation about the

circumstances surrounding the conict; it will also

provide opportunities or acquiring insights into the

characteristics o a party, on the basis o which the law

can be discussed strategically. In addition, it will, over

time, lead to opportunities or addressing issues o the

partys political will and capacity, and its compliance.

A long-term perspective also includes essential

ollow-up initiatives. Tis is especially true where

it has been possible to secure a commitment rom

the party to comply with the law (see ools o

Express Commitment, p. 27). Te parties should

be encouraged and helped to put their commitments

into practice. Te ICRC does this through an

ongoing process o condential bilateral dialogue and

representations, which includes reminding the party

o its obligations and commitments, monitoring and

reporting, as well as training and capacity-building.

LESSONS LEARNT

Work in the context of a long-term

process of engagement

GuntarPrimagotama

/ICR

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Dissemination and training activities are part o the

ICRCs eorts to make the rules o humanitarian

law known and to build a oundation or discussions

concerning respect or the law. Tese activities are

aimed, in particular, at those individuals or groups

whose actions and behaviour can aect victims o

armed conicts or who can acilitate ICRC action.

Tey include armed orces, police, security orces and

others bearing arms, as well as decision-makers and

opinion-leaders at the local and the international level.

Te ICRCs strategy is carried out on three levels:

awareness-building, promotion o humanitarian law

through teaching and training, and the integration o

humanitarian law into ofcial, legal, educational and

operational curricula. Te ultimate aim is to inuence

attitudes and behaviour so as to improve protection

or civilians and other victims o armed conict,

to acilitate access to these victims, and to improve

security or humanitarian personnel.

Te ICRC encourages the parties to armed conicts

to ull their duty to integrate IHL into their doctrine,

training, and rules o engagement, and assists them

where necessary. Tis duty stems rom the obligation

o all parties to respect and ensure respect or IHL.

Te duty to train members in IHL is recognized, in

customary law, as binding both States and armed

groups party to non-international armed conicts.7

In treaty law, the duty o States to provide instruction

in IHL to their armed orces is ound in Articles

47/48/127/144, respectively, o the our Geneva

Conventions, and in Article 83 o Protocol I

additional to the our Geneva Conventions. Tis treaty

obligation is applicable both in peacetime and in

times o international armed conict. Specic to non-

international armed conicts, Additional Protocol

II requires, in Article 19, that the Protocol shall be

disseminated as widely as possible.

It is important also to promote and teach IHL to

the civilian population. As provided or in the our

Geneva Conventions (Articles 47/48/127/144) and

in Additional Protocol I (Article 83), the teaching o

humanitarian law to the civilian population should be

undertaken even in peacetime.


INCREASING RESPECT BY MAKING

THE RULES KNOWN

th Icrc i

ii i hi bii

When an armed conict breaks out, it is important to ormally inorm all parties States

and armed groups o the legal characterization o the situation and to remind them o the

applicable rules, that is, o their obligations under humanitarian law.

Te ICRC most oen makes this communication by way o a letter or memorandum submitted

directly to the parties to a conict, in a bilateral and condential manner. Where contact with

one or more o the parties is not possible, it could be done through a public press release.

Te ICRC sends its communication at the beginning o a conict, or during a conict i a

particular situation warrants it. Tis provides a basis or beginning a dialogue to encourage

compliance with the law. Without this preliminary communication, it will be considerably

more difcult to invoke specic protective rules later, aer violations have occurred.

7 See ICRC study, op. cit., Rule 142.


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INCREASING RESPECT THROUGH LEGAL TOOLS

INCREASING RESPECT THROUGH

LEGAL TOOLS

Te ollowing are a number o legal tools that have been used by the ICRC and other humanitarian actors in their

eorts to improve compliance with humanitarian law by parties to non-international armed conicts.

It must be recognized that such tools do not themselves guarantee increased respect, but they nevertheless

provide a basis on which legal representations can be made and on which accountability can be required.

1. specIal agreements

As provided or in common Article 3, special

agreements enable the parties to non-international

armed conicts (either between a State and armed

group(s) or among armed groups) to make an explicit

commitment to comply with humanitarian law.

A special agreement might either create new legal

obligations by going beyond the provisions o IHL

already applicable in the specic circumstances

(a constitutive agreement), or it might simply

restate the law that is already binding on the parties,

independent o the agreement (a declaratory

agreement). It may also be limited to specic rules that

are particularly relevant to an ongoing conict; in that

case, it should be made clear that the limited scope o

the agreement is without prejudice to other applicable

rules not mentioned in the agreement.

Parties should be encouraged to include both treaty

and customary rules in a special agreement; the ICRC

study, Customary International Humanitarian Law,

may be o use in determining what rules all into the

latter category.

A special agreement can provide a plain statement o

the law applicable in the context or o an expanded

set o provisions o IHL beyond the law that is already

applicable and secure a clear commitment rom the

parties to uphold that law.

A special agreement will provide an important basis

or ollow-up interventions to address violations o

the law. Te act that an identiable leader or each

party has signed a special agreement, thereby taking

on responsibility to ensure that the agreement is

Basic description

Utility

Special agreements between the parties to non-international armed conicts enable

the parties to make an explicit commitment to comply with humanitarian law.

Because they are based on the mutual consent o the parties and make clear that

the parties have the same IHL obligations special agreements might also provide

added incentive to comply.

Common Article 3 explicitly states that concluding a special agreement will in no way

aect the legal status o the parties to a conict.


19/3617


adhered to, will not only provide a contact person and

reerence point or uture representations, but also

send a clear signal to his orces. Furthermore, given

that a special agreement is very likely to be made

public, a wide range o actors in the international

community will be aware o it and may be able to help

in holding the parties to their commitments.

Te benets o a special agreement go beyond the

ormal terms in the document. Tat the parties to a

conict have been brought together to negotiate the

agreement may itsel be o value. Also, unlike the

unilateral orms o express commitment made by an

individual party (see Unilateral Declarations, p. 19,

and Inclusion o Humanitarian Law in Codes o

Conduct or Armed Groups, p. 22), special agreements

based on mutual consent and commitment, which

clearly allots equal IHL obligations to all parties can

provide added incentive to comply.

A special agreement can also be helpul when the

legal characterization o a conict appears uncertain

or when the parties to the conict disagree about it.

A special agreement does not necessarily require

the parties to agree on the issue; provisions o

humanitarian law are agreed upon, and come into

eect, through the express commitment contained in

the agreement.

Examples o special agreements are less common in

practice than some other legal tools. One explanation

is that States might be concerned that entering into

such an agreement will grant a degree o legitimacy to

an armed group. However, common Article 3 makes

it clear that concluding a special agreement in no way

aects the legal status o the parties to the conict.

In practice, special agreements could be more

successully attempted when a conict is either

seemingly intractable and/or taking place on more

or less equal terms between the State and armed

group(s), i.e. when an armed group exercises

signicant territorial control, has an eective chain o

command, etc.

An additional obstacle to the conclusion o a special

agreement might be the unwillingness o the parties

to commit themselves to a broader range o legal

obligations than would otherwise be the case.

Sometimes, the parties to a non-international armed

conict are approached directly by a third party, who

suggests and helps to negotiate the terms o a special

agreement.

In 1992, or example, at the invitation o the ICRC, the

various parties to the conict within the Republic o

Bosnia and Herzegovina (BiH) concluded a special

agreement. While the agreement was o limited

impact in terms o preventing violations o the law,

its contents are instructive. Te text o the agreement

began with a commitment by the parties to respect

and to ensure respect or the provisions o common

Article 3, which was quoted in ull. Te parties also

agreed to bring into orce additional provisions

concerning the protection o the wounded, sick and

shipwrecked, o hospitals and other medical units, o

the civilian population; these additional provisions

also covered the treatment o captured ghters,

the conduct o hostilities, assistance to the civilian

population, and respect or the Red Cross. Specic

articles o the Geneva Conventions or their Additional

Protocols, where relevant, were cited.

In addition to its comprehensive substantive

commitments, the BiH agreement included a number

o other provisions. First, its terms stipulated that

the agreement neither aected the legal status o the

Limitations / Obstacles

Practice


20/3618

parties, nor prejudiced the international law o armed

conict in orce. Secondly, the agreement included a

commitment to disseminate both IHL and the terms o

the agreement itsel. Furthermore, specic provisions

were made as to the implementation o the agreement;

they included a commitment to conduct inquiries into

alleged violations o IHL and to take the necessary

steps to put an end to the violations and punish those

responsible, as well as to appoint liaison ofcers and

provide security guarantees to the ICRC.

Among other examples o special agreements are

a 1962 agreement in Yemen and a 1967 agreement

in Nigeria, both negotiated by the ICRC and both

containing commitments to abide by the 1949 Geneva

Conventions.

Some agreements between the parties to a non-

international armed conict reer to both IHL and

human rights law and are thereore not common

Article 3 agreements in the strict sense. For example,

the San Jos Agreement on Human Rights, concluded

between the government o El Salvador and the

Frente Farabundo Mart para la Liberacin Nacional

(FMLN) in 1990, included commitments to comply

with common Article 3 and Additional Protocol II,

and with various human rights norms as well. Te

Comprehensive Agreement on Respect or Human

Rights and International Humanitarian Law concluded

between the government o the Philippines and the

National Democratic Front o the Philippines (NDFP)

in 1998 is another example.

Commitments made in special agreements have

provided a basis or ollow-up interventions with

parties to a conict, either concerning respect or IHL

in general or related to a specic issue or operational

objective. For example, the ICRC reerred to the

1992 BiH agreement, asking the parties to put their

commitments into eect and to allow the ICRC to

provide relie and protection to the victims o the

conict. Similarly, the ICRC based its representations

on the 1998 special agreement in the Philippines.

Other humanitarian actors have also based various

actions on special agreements, such as the UN

observer mission in El Salvador (ONUSAL) that

reerred to the 1990 agreement in El Salvador.

Tere are examples o conicts where attempts to

negotiate a special agreement did not result in one

comprehensive document, but in several separate

agreements. Tis was the case in ajikistan, or

example, where negotiations took place under the

auspices o the UN between 1995 and 1997. Te ICRC

attended the meetings as an observer and used this

orum to express its humanitarian concerns.

A special agreement could contain some o the

ollowing: rst, an accurate and straightorward

statement o the applicable IHL provisions, both treaty

and customary; second, a commitment by the parties

to respect and ensure respect or these provisions o

IHL; third, words to the eect that the agreement does

not change the legal status o the parties to the conict;

ourth, the responsibility o the parties to disseminate

IHL and the terms o the special agreement itsel;

and, nally, provisions or the implementation o the

special agreement.

Security guarantees and assurances concerning

humanitarian work in the areas under the parties

control could be included as well, i appropriate.

In the case o a special agreement that contains some,

but not all o the relevant provisions o IHL, it should

be made clear whenever possible, in the agreement

itsel, that this limited scope is without prejudice

to other applicable rules not mentioned in the

agreement.


Contents of special agreements


21/3619


Armed groups party to non-international armed conicts may make a unilateral

declaration (or declaration o intention) in which they state their commitment to

comply with international humanitarian law.

Some armed groups take the initiative themselves and declare their commitment

through public statements. At other times, the ICRC or another humanitarian actor

or organization initiates, negotiates and/or receives the declarations.

Although it is clear that all parties to non-international

armed conicts are legally bound by IHL, armed

groups cannot ratiy or ormally become party to

IHL treaties; only States can do so. As a result, armed

groups may consider themselves technically not bound

by the international obligations specied in treaty law.

Furthermore, the lack o express commitment by an

armed group may hamper eorts to disseminate the

rules and encourage compliance.

Tus, a unilateral declarations main purpose is to

provide armed groups with an opportunity to express

their commitment to abide by the rules o IHL.

It should be emphasized that armed groups remain

bound by the provisions and rules o IHL applicable

in a specic conict including common Article 3,

customary IHL and, where applicable, Additional

Protocol II regardless o whether they make a

unilateral declaration.

While there is no standard practice or dealing with it,

a unilateral declaration should be acknowledged and

its implementation encouraged. It can later be used

as a basis or ollow-up activities. Te ICRC has cited

unilateral declarations while making representations

concerning violations o humanitarian law or oers o

support or dissemination activities.

Unilateral declarations provide armed groups with an

opportunity to explicitly express their commitment to

abide by the rules o humanitarian law. Tis gives the

hierarchy o an armed group an opportunity to assume

responsibility or ensuring that its members respect the

law. Furthermore, unilateral declarations can be useul

to an armed groups leadership or disseminating IHL

to the groups members.

As with the other orms o express commitment

(see p. 27), the signicance o a universal declaration

is not merely that it has been made. Te process o

negotiating such a declaration can be helpul in the

ongoing engagement and dialogue with an armed

group. Unilateral declarations, aer they have been

made, can provide valuable leverage in ollow-up

eorts to encourage compliance with the law.

It is sometimes suggested that unilateral declarations

are made by armed groups or political reasons

and, thereore, that there is little chance that the

commitments they contain will be successully

implemented. It is also sometimes eared that by

accepting such declarations, the ICRC or other

humanitarian actors might be instrumentalized in an

armed groups attempt to gain political legitimacy.

Basic description Utility

2. unIlateral declaratIons



22/3620

While this might be the case, political considerations

oen also drive States to ratiy treaties or enter

into other commitments. Tis does not stop the

international community rom accepting such

commitments or rom attempting to hold States to

them.

As regards armed groups, practice indicates that,

even i its motivation appears to be political, one

may nonetheless be able to capitalize on the express

commitment made by an armed group.

Concerns have sometimes been raised about the legal

impact o unilateral declarations; it has even been

said that encouraging such declarations might call

into question whether the law is at all binding. Tis

is not so: armed groups IHL obligations, which are

applicable independently o any declaration, remain

unchanged, even i an armed group submits an

incomplete declaration or ultimately reuses to make

any declaration whatsoever. Nonetheless, every eort

should be made to ensure that unilateral declarations

contain all existing obligations. I a declaration

contains only some o the applicable rules, the terms

o the declaration should, whenever possible, indicate

that this is without prejudice to other applicable rules

not mentioned.

Tere is a long history o armed groups making

unilateral declarations o their intention to comply

with provisions o IHL.

Te contents o unilateral declarations may reer

to common Article 3 (e.g. in 1956 by the Front de

Libration Nationale (FLN) in Algeria) or to both

common Article 3 and Additional Protocol II (e.g.

in 1988 by the FMLN in El Salvador, in 1991 by the

NDFP in the Philippines). Declarations may also state

the provisions o IHL to which the armed group is

committing itsel, without reerence to specic treaty

provisions (e.g. Ejrcito de Liberacin Nacional (ELN)

in Colombia in 1995).

Besides the unilateral declarations made at the

initiative o armed groups themselves, the ICRC or

other actors have themselves sometimes asked armed

groups or a written declaration o their willingness

to comply with IHL. ICRC requests are usually

bilateral and condential, whereas other actors

and organizations sometimes make their requests

publicly. Te ICRC or other organizations have made

such requests in Colombia, Indonesia, Liberia, and

Sudan, among other countries. Geneva Call is a non-

governmental organization that encourages armed

groups to sign a Deed o Commitment or Adherence

to a otal Ban on Anti-Personnel Mines and or

Cooperation in Mine Action.

On receiving a unilateral declaration, the ICRC will

usually acknowledge it and then encourage the group

to take all measures necessary or implementing

the commitments it contains. Tis was the case, or

example, in September 1987 when the Coordinadora

Guerrillera Simon Bolivar (CGSB) an umbrella

organization including several armed groups party

to the conict in Colombia declared its intention

to respect IHL; it was also the case with unilateral

declarations received rom the NDFP in the

Philippines in both 1991 and 1996.

In addition, the ICRC will use unilateral declarations

as the basis or ollow-up interventions, either

to discuss allegations o violations o the law or

to provide a general reminder to a group o the

commitment it has made to adhere to IHL. Such

interventions with armed groups occurred in Angola,

Colombia, Nicaragua, Rwanda, South Arica, Sri

Lanka, and other countries.


Practice


23/3621

Te terms o a unilateral declaration may, inter alia,

contain an accurate and straightorward statement o

the IHL provisions applicable in the specic conict,

as well as an express commitment by the armed group

to respect and ensure respect or these provisions

o IHL, which could be both treaty and customary

norms.

I a declaration is issue-specic rather than a

commitment to adhere to the ull range o applicable

IHL, then it could reer only to provisions o

IHL related to that issue. I possible, such narrow

declarations should include a clarication that this

is without prejudice to other applicable rules not

mentioned in the declaration.

It may also be helpul to include in a unilateral

declaration a commitment by the armed group to

disseminate both IHL and the terms o the unilateral

declaration. I appropriate, security guarantees and

assurances concerning humanitarian work in the areas

under the armed groups control could be included as

well.


Contents of unilateral declarations

Christop

hVonToggenburg

/ICR

C


24/3622


Codes o conduct that are consistent with IHL provide

a concrete mechanism or enabling persons to respect

the law. Te undamental rules o IHL should be

presented in a orm that is easy to understand by the

members o the armed group. Te code o conduct

should also contain a description o the means

necessary to implement IHL, including internal

sanctions.

Similar mechanisms are common in State practice

(through doctrine, military manuals, etc.). Although

less well-known, there are instances o armed groups

that have taken the initiative to develop codes o

conduct, or that have agreed to distribute a code o

conduct provided by the ICRC or another actor.

In addition to serving as a orm o express

commitment to the law (see p. 27), on the basis

o which interventions can be made concerning

compliance, this legal tool can have a direct impact on

the dissemination o the rules and on the training o

armed group members.

Te act that the hierarchy o an armed group initiates

or agrees to a code o conduct indicates a degree o

ownership and o commitment to ensure respect or

the law. Tis is likely to inuence the behaviour o

members o the armed group more than something

they may perceive as having been imposed on them

rom the outside.

Discussions with the hierarchy o an armed group

either on the development o a code o conduct or on

including IHL in a code that already exists can be

helpul in the process o engagement with the group.

Te period o negotiations and discussions concerning

a code o conduct can be used to inorm the armed

groups leadership about IHL, and also to gain an

understanding o the political will and the attitudes o

the armed group regarding adherence to the law.

I an armed group has made a unilateral declaration

(see p. 19), the development o a code o conduct that

includes IHL can be suggested as a logical next step.

By oering assistance in developing a code o conduct

or in including IHL in a code that already exists, one

can also help the group to put its unilateral declaration

commitments into action.

One obstacle to successul negotiations concerning

a code o conduct will be insufcient contacts with

an armed group as a whole, or with the appropriate

members o its hierarchy. For example, contacts that

are conned to the political representatives o a group

Basic description

Utility


By adopting and distributing a code o conduct that is consistent with IHL, the

hierarchy o an armed group sets up a mechanism that enables its members to respect

this law.

Such indication o commitment to adhere to the rules o IHL, although less public

than a declaration o intention or a special agreement, can nonetheless lead to better

implementation o IHL norms by an armed group. It can also have a direct impact on

its members training in IHL and on the dissemination o the law.

3. InclusIon of HumanItarIan law

In codes of conduct for armed groups


25/3623


and dont take into account the operational or

military authorities responsible or the adoption and

distribution o codes o conduct might limit the

scope o negotiations.

Furthermore, an armed group might lack the necessary

control and organization to be eective in putting a

code o conduct into place.

Actors oen call or armed groups to develop or

adopt codes o conduct or rules o engagement or

their members. Whereas the ICRC most oen does so

bilaterally and condentially, other actors might make

such calls publicly.

Armed groups have developed internal codes o

conduct at their own initiative at one time or another

in Algeria, Colombia, El Salvador, Cte dIvoire,

Liberia, Nepal, the Philippines, Sierra Leone, Sri

Lanka, and other countries. Codes o conduct vary

in the way they reect IHL, sometimes reerring only

to local traditions or cultural norms. Nevertheless,

where contact and dialogue have been possible, codes

o conduct have provided a basis or discussing the

law. In some cases (e.g. in Colombia, El Salvador and

Nicaragua), the ICRC or other actors have oered to

review and comment on existing codes o conduct.

Armed groups have sometimes distributed codes o

conduct received rom the ICRC or another actor.

In the mid-1990s, ollowing discussions with the

ICRC, the Sudan Allied Forces (SAF) distributed a

10-point code o conduct consistent with IHL. Te

discussions concerning the code o conduct also led

to dissemination sessions and IHL training or the

members o the SAF.

Practice

Thomas

Pizer

/ICR

C


26/3624


Ceasere and peace agreements requently contain

reerences to humanitarian law. o clearly understand

the signicance o these reerences, it is necessary to

distinguish between the two types o agreements.

Trough ceasere agreements, the parties to a conict

agree to suspend hostilities oen, but not always,

in order to acilitate peace negotiations. In addition,

ceasere agreements requently contain commitments

by the parties to implement specic IHL obligations or

to rerain rom violating IHL.

Peace agreements, by contrast, are usually entered

into with the expectation that a conict is over and

that hostilities will not resume. Reerences to IHL in

peace agreements commonly pertain to the provisions

o the law that continue to apply or come into orce

aer the cessation o hostilities (see below), and are

accompanied by a commitment by the parties to ull

these post-conict obligations.

In either case, every eort should be made to ensure

that humanitarian law is accurately expressed in such

agreements.

As ceasere agreements do not necessarily guarantee

the end o hostilities, the suspension o hostilities

might be an opportunity to remind the parties o their

obligations under IHL and secure a commitment to

compliance, should hostilities be taken up again. Tese

commitments can then provide a basis or uture

interventions to encourage compliance with the law i

the conict continues.

In peace agreements, a precise statement o the

provisions o IHL that continue to apply or come

into orce aer the cessation o hostilities will

acilitate interventions to ensure the ullment o these

obligations.

Ceasere agreements and peace agreements in non-

international armed conicts are negotiated between

the parties (States and armed groups), usually by

third States or neutral intermediaries. Te ability o

humanitarian agencies or organizations to inuence

the design and the contents o such agreements can

be limited. It must be stressed that humanitarian

obligations should not be overlooked or negotiated

away or the sake o achieving political objectives.



Te inclusion o IHL commitments in ceasere or peace agreements entered into

by parties to non-international armed conicts helps to ensure respect or IHL

provisions that continue to apply or come into orce aer the cessation o hostilities.

Additionally, the inclusion o IHL commitments in a ceasere agreement can also

be useul i hostilities are renewed, to remind the parties o their obligations under

this law.

4. InclusIon of HumanItarIan law

In ceasefIre or peace agreements


27/3625


Ceasere agreements sometimes include a general

commitment by the parties to ensure respect or IHL,

as was the case in a 1999 ceasere agreement between

the parties to the conict in the Democratic Republic

o the Congo.

Ceasere agreements will oen specically enumerate

the various acts, violations o humanitarian law, rom

which the parties pledge to abstain. For example, in a

2002 agreement, the parties to the conict in Angola

agreed to guarantee the protection o persons and

their property and not to conduct orced movements

o the civilian population, commit acts o violence

against the civilian population or destroy property.

A 2002 ceasere agreement between the parties to

the conict in Sri Lanka included a commitment

to abstain rom torture and intimidation. Instances

o the commitment to rerain rom acts o violence

include the ollowing: the 2002 Cessation o Hostilities

Framework Agreement between the government

o Indonesia and the Free Aceh Movement (GAM),

and the 2002 Agreement o Cessation o Hostilities

between the government o Sudan and the Sudan

Peoples Liberation Movement/Army (SPLM/A).

In addition to specic IHL provisions, ceasere

agreements oen include commitments by the parties

to permit unimpeded movement o humanitarian

assistance or access by humanitarian agencies. Such

agreements have been signed in Guinea-Bissau,

Liberia, Sudan, and other countries.

Te ICRC and other actors, although not directly

involved in negotiating the agreements themselves,

have used the provisions in ceasere agreements to

remind parties o their IHL obligations, to encourage

compliance with the law, or to negotiate or access.

Some instances o this are the representations made

on the basis o the 1999 ceasere agreement in the

Democratic Republic o the Congo, and on the basis o

the 2002 agreement on cessation o hostilities between

the government o Indonesia and GAM.

In practice, ceasere agreements might contain

commitments by parties to respect and ensure respect

or the provisions o IHL applicable in the specic

conict. In addition to merely listing the various acts

and violations to be abstained rom, agreements might

explicitly reer to specic provisions o relevant IHL

treaties and customary international humanitarian

law. Ceasere agreements might also include a

commitment regarding the unimpeded movement o

humanitarian assistance or access by humanitarian

agencies, in particular or providing services that are

likely to be needed during the cessation o hostilities.

Practice Ceasefire agreements

IHL in ceasefire agreements


28/3626


As has already been noted, reerences to IHL in

peace agreements most commonly pertain to the

provisions o the law that continue to apply, or that

come into orce, aer the cessation o hostilities, and

are accompanied by a commitment by the parties

to ull their post-conict obligations. In practice,

such commitments have included the ollowing: the

release o prisoners o war or detainees belonging

to the respective parties (e.g. in Angola, Bosnia and

Herzegovina, Cambodia, Cte dIvoire, Liberia,

and Sierra Leone), the duties o the parties towards

evacuated, displaced and interned civilians (e.g. in

Cambodia), the respective duties o military and

civilian authorities to account or missing and

dead members o armed ormations and civilians

(e.g. Rwanda, Bosnia and Herzegovina), and the duty

o the parties to report the location o landmines

(e.g. Rwanda).

In addition to the post-conict commitments

described above, peace agreements have also included

other provisions related to IHL, such as commitments

to promote ull respect or IHL (e.g. Liberia and

Sierra Leone), to train deence and security orces in

IHL (e.g. Burundi), and to acilitate humanitarian

operations (e.g. Cte dIvoire, Liberia, Sierra Leone

and Somalia).

Although negotiations concerning peace agreements

are usually condential and involve the relevant

parties and a third-party negotiator, other actors are

sometimes able to review and comment on the IHL

provisions in a dra agreement. For example, the

ICRC was able to comment on IHL-related terms

during the negotiations or agreements concluded in

Sierra Leone, Burundi and Cte dIvoire.

Based on practice, the ollowing post-conict IHL

provisions may be considered or inclusion in the

terms o a peace agreement: the release o detained

members o the parties to the conict, the duties o

the parties toward evacuated, displaced and interned

civilians, the respective duties o military and civilian

authorities to account or the missing and dead, the

requirement that the parties report the location o

landmines.

In addition, it might be helpul i peace agreements

included the ollowing IHL-related provisions:

promoting ull respect or IHL, training in IHL or

deence and security orces (especially where members

o an armed group are being integrated into national

armed orces), and the acilitation o humanitarian

operations.

Practice Peace agreements

IHL in peace agreements

Johan

Sohlberg

/ICR

C


29/3627

t ex ciFour o the legal tools described in this publication special agreements, unilateral

declarations, inclusion o IHL in armed groups codes o conduct, and reerences to IHL in

ceasere agreements or peace agreements share a common eature: they provide a party

to a conict with an opportunity to make an express commitment o its willingness or

intention to comply with IHL.

Trough any o these our tools, the hierarchy o a party to an armed conict takes an

afrmative step: it signs, or agrees with, a statement o the applicable law, thereby taking

ownership and making a commitment to ensure respect or the pertinent provisions o IHL.

Tis express commitment is evidence that the party recognizes its obligations under the law.

Any o the tools o express commitment can serve as a useul basis or ollow-up action to

address violations o the law, providing additional leverage or representations. Tey can also

be used as a basis or disseminating the law.

In addition, any o the tools can have a positive impact on the long-term process o

engagement and relationship-building with a party to a conict. Special agreements,

unilateral declarations, ceasere agreements or peace agreements: any one o these can

serve as a starting point or establishing contact and beginning a dialogue. Te negotiations

or discussions can then provide opportunities to identiy a responsible gure, learn more

about the party, and carry on a dialogue concerning respect or humanitarian law.

Te tools o express commitment, in particular, provide a unique opportunity or armed

groups to declare their willingness and commitment to abide by provisions o IHL, given that

they cannot ormally sign or ratiy IHL treaties.

Tere are no legal consequences or a party that does not make an express commitment when

asked to do so. A party to the conict will be bound by the relevant rules o humanitarian law

regardless o whether it agrees to make an express commitment.

In addition to written commitments, parties might make verbal commitments to adhere to

the rules o humanitarian law. Although such verbal commitments do not have the same

weight as the tools o express commitment mentioned above, they can nonetheless be useul

in ollow-up representations. Wherever possible, verbal commitments should be recorded

or example, in minutes o meetings or uture reerence.



30/3628


Article 6, para. 5, o Additional Protocol II states: At

the end o hostilities, the authorities in power shall

endeavour to grant the broadest possible amnesty to

persons who have participated in the armed conict,

or those deprived o their liberty or reasons related

to the armed conict, whether they are interned or

detained.

Such an amnesty is intended only or acts o mere

participation in hostilities, not or war crimes or other

crimes under international law. Tus, it may be granted

only to persons taking part in the hostilities who have

conducted themselves in accordance with the rules

o IHL. Tis restriction on grants o amnesty is clear

rom the travaux prparatoires o Article 6, para. 5, o

Additional Protocol II and is also logically inevitable,

given that the underlying objective o IHL is to ensure

lawul behaviour by parties to armed conicts. Te

same restriction is recognized in customary law:

Rule 159 o the ICRC study, Customary International

Humanitarian Law, states that the authorities must

endeavour to grant the broadest possible amnesty,

with the exception o persons suspected o, accused

o, or sentenced or, war crimes.

wo distinct unctions may be served by a possible

grant o amnesty or mere participation in hostilities.

Te rst is directly linked to the main issue o

improving compliance with humanitarian law by

parties to non-international armed conicts. Members

o armed groups party to such conicts have little

legal incentive to adhere to IHL, given the act that

unless they prevail in the conict they are likely to

ace domestic criminal prosecution and maximum

penalties or having participated in the conict, even

i they comply with IHL. A grant o amnesty or mere

participation in hostilities which is comparable to

the position o a combatant entitled to prisoner-o-war

status in international armed conict (such persons

cannot be tried by the enemy or mere participation

in hostilities) i oered during the armed conict

itsel, could serve to encourage better compliance with

IHL by members o armed groups.

Te second unction, although not directly related to

improving compliance with humanitarian law, is that

the granting o amnesties may also help to acilitate

peace negotiations or contribute to post-conict


Members o armed groups party to non-international armed conicts have little

legal incentive to adhere to IHL, given the act that they are likely, eventually, to ace

domestic criminal prosecution and serious penalties or having taken part in the

conict, even i they comply with IHL.

Granting amnesty or participation in hostilities may help to provide armed group

members with a legal incentive to comply with IHL.

Amnesties may also help to acilitate peace negotiations or enable a process o post-

conict national reconciliation.

It must be remembered that amnesties may not be granted or war crimes or other

crimes under international law.

5. grants of amnestY for mere

partIcIpatIon In HostIlItIes


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national reconciliation. Indeed, most amnesties

or acts committed by members o parties to non-

international armed conicts, as ound in peace

agreements or post-conict national legislation, have

this secondary intent.

Amnesties or acts o mere participation in hostilities

are likely to be a realistic option only in a limited

number o non-international armed conicts.

Negotiations concerning an amnesty should be

approached with great sensitivity to the political

context and to the attitudes o the parties involved.

Under international law, grants o amnesty may not

include war crimes or other crimes under international

law.

Since the adoption o Additional Protocol II, many

States have granted amnesty to persons who have

taken part in a non-international armed conict. Most

o these amnesties are ound in peace agreements or in

post-conict national legislation.

Teir main purpose has been to acilitate peace

negotiations or to contribute to post-conict national

reconciliation. Although the subject is beyond the

scope o this publication, the impermissibility o

amnesties or war crimes or other crimes under

international law must be underscored.

For example, the international community very

publicly criticized an impermissible amnesty provision

contained in the 1999 Lom Peace Agreement between

the government o Sierra Leone and the Revolutionary

United Front (RUF). Te terms o the agreement

granted an absolute and ree pardon to all combatants

and collaborators in respect o anything done by them

in pursuit o their objectives. Te UN Secretary-

Generals Special Representative or Sierra Leone was

instructed to add, along with his signature on behal

o the UN, a disclaimer stating that the amnesty

provision shall not apply to international crimes o

genocide, crimes against humanity, war crimes, and

other serious violations o international humanitarian

law.8 Te UN Secretary-General later reafrmed that

the granting o amnesties to those who committed

serious violations o international humanitarian and

criminal law is not acceptable. Te experience o Sierra

Leone has conrmed that such amnesties do not bring

about lasting peace and reconciliation. 9

Te war in Algeria is one o the earliest examples o

amnesties granted with a view to encouraging better

compliance with IHL. In 1958, ollowing the ICRCs

representations to the French government concerning

places o detention, special camps were created or

combatants o theArme de libration nationale (ALN)

who carried arms openly. Detained ALN members

were not prosecuted or having participated in the

hostilities, unless they were suspected o having

committed atrocities. Tis approach to members o

an armed group resembles an amnesty: it achieves the

same result by removing the threat o prosecution or

those who participate in hostilities in compliance with

the law.

Amnesties aimed at encouraging better respect or

humanitarian law continue to be suggested in several

non-international armed conicts taking place

throughout the world today.


Practice

8 UN Secretary-General, Report on the establishment o a Special Court or Sierra Leone, UN Doc. S/2000/915, 4 October 2000, paras 22-24.9 UN Secretary-General, Report on the protection o civilians in armed conict, UN Doc. S/2001/331, 30 March 2001, para. 10.


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It is reasonable to conclude that attempts to explain

why it is in a partys interest to comply with the

law might be eective in encouraging compliance.

Such strategic argumentation will have a greater

likelihood o success than simply stating the law and

admonishing a party to comply.

o be eective, any strategic argumentation will

have to be adapted to the characteristics o both

the party and the conict. Tus, wherever possible,

arguments have to be based on a sound understanding

o the motivations and interests o the party to the

conict, acilitated by good contacts and a process o

engagement with the party.

Strategic argumentation should be used careully, as it

carries a risk o backlash. It should not lead to setting

aside respect or IHL in avour o pragmatic concerns

or opportunistic outcomes. Furthermore, strategic

argumentation should be employed with discretion

and with an awareness o the political sensitivity o

some arguments.

Te ollowing examples o strategic argumentation

have been used in dialogue and engagement with

parties to non-international armed conicts.

Parties to a conict should be made aware that the

provisions o IHL were originally developed by

military commanders who took into consideration

the necessary balance between military needs and

the dictates o humanity. Te rules were designed in

part to preserve military interests. Members o armed

orces (and, in particular, armed groups) might be

receptive to the argument that the law was craed

by those who understood the useulness o these

principles in armed conict.

It has been successully put to commanders o parties

to a conict that it is in their interest to have well-

disciplined troops who obey the command structure

and do not indulge in behaviour that violates the law.

Further, it can be argued that ollowing the rules o

IHL will provide some practical benets. For example,

it has been suggested to a party that i it treats its

prisoners well, people might surrender to it more

easily.

Arguments o military efcacy and discipline might

be helpul in persuading one party to respect the law

unilaterally, regardless o how its adversary behaves.

Although the obligation to respect IHL is not based

on reciprocity a party is required to comply with

its obligations regardless o the conduct o the other

side it can nonetheless be argued, as a point o

pragmatism, that it is in the common interest o both

parties to a conict to adhere to the rules o IHL.

Parties to a non-international armed conict can,

or example, be reminded that i they treat enemy

detainees humanely, it is more likely that their own

members who are being held by the other side will be

treated in a similar manner.

INCREASING RESPECT THROUGH STRATEGIC ARGUMENTATION

INCREASING RESPECT THROUGH

STRATEGIC ARGUMENTATION

Military efficacy and discipline

Reciprocal respect and mutualinterest


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Most parties to an armed conict are concerned about

their reputation among their constituency, their

allies, and internationally and thus it is sometimes

helpul to explain how adherence to IHL can improve

their image or public standing. At the local level, this

is particularly true where a party is dependent upon,

or seeks to win, the support o the civilian population.

In addition, a reputation or being law-abiding might

help a party gain the moral high ground and might

also lead to political gains.

Te undamental principles o humanitarian law are

oen mirrored in the values, ethics or morality o

local cultures and traditions. Pointing out how certain

rules or principles ound in IHL also exist within

the culture o a party to a conict can help lead to

increased compliance.

Tere are a number o dierent long-term strategic

arguments that might help persuade parties to a

conict to adhere to humanitarian law.

First, it can be argued that, although violations might

yield a short-term advantage, the consequences in

the long run could be sel-deeating (including long-

term damage to reputation, loss o support, or even

ostracism by the population). Examples could be given

o parties to a conict who have acted lawlessly and

been sanctioned aerwards, or who have suered rom

national or international criticism and condemnation.

Examples o the reverse case can also be given, o

parties who have complied with IHL and beneted as

a result.

Secondly, it can be pointed out that the legitimacy o a

partys power in the uture either in government or

in the opposition might be weakened i it accedes

to lawlessness. A partys actions during the conict

could have an eect on the perceptions o those whom

it seeks to govern aer the conict.

Tirdly, adherence to IHL will help acilitate post-

conict national reconciliation and a return to peace,

which are likely long-term goals o most parties to

non-international armed conicts.

Having in mind signicant recent developments in

international criminal justice and in the repression o

war crimes, parties to a conict should be made aware

o the possibility o prosecution or serious violations

o IHL. Te creation o the ad hoc tribunals or the

ormer Yugoslavia (ICY) and Rwanda (ICR),

and o the International Criminal Court (ICC), has

strengthened the ramework or prosecuting war

crimes in non-international armed conicts.

Parties to a conict might respond to the economic

argument that adherence to IHL could save resources.

For example, compliance with IHL might limit

needless destruction to inrastructure or personal

property.


Appealing to core values

Long-term interests

Reputation

Criminal prosecution

Economy


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Tis publication seeks to contribute to a better understanding o the ways in which one can eectively engage

with parties to non-international armed conicts to increase respect or international humanitarian law.

Te lessons, the legal tools, and the means o persuasion described here have, at various times and in

dierent conicts, been used by the ICRC or other actors in their eorts to increase respect or international

humanitarian law. It is hoped that the contents o this publication could serve to inorm and assist others who

might be contemplating a similar endeavour.

FINAL REMARKS

FINAL REMARKS

BorisHeger

/ICR

C


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MISSION

The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent

organization whose exclusively humanitarian mission is to protect the lives and dignity of victims

of war and internal violence and to provide them with assistance. It directs and coordinates the

international relief activities conducted by the Movement in situations o

increasing respect for international humanitarian law in non-international armed conflicts

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