REPORT AND RECOMMENDATIONS OF THE IPU AD HOC COMMITTEE
TO PROMOTE RESPECT FOR INTERNATIONAL HUMANITARIAN LAW
Presented to the 157th session of the Inter-Parliamentary Council
(Bucharest, 14 October 1995)

Rapporteur : Senator Hipolito Solari Yrigoyen (Argentina), Chairman of the Committee

I. TERMS OF REFERENCE

1. At its 155th session (Copenhagen, 17 September 1994), the Inter-Parliamentary Council unanimously decided to set up the Committee and defined its terms of reference as follows:

"In accordance with a recommendation contained in a resolution of the 90th Conference (Canberra, September 1993), the Committee was set up to follow, with the help of the International Committee of the Red Cross (ICRC), the question of respect for international humanitarian law, particularly the status of ratification of international instruments on this question and the implementation of measures at the national level, disseminate information and make observations with a view to promoting respect for international humanitarian law."

II. WORK OF THE COMMITTEE

2. The Committee members will be ex officio the officers of the IInd Committee (on Parliamentary, Juridical and Human Rights Questions): Mr. Hipolito Solari Yrigoyen (Argentina), Committee Chairman, and Mr. François Borel (Switzerland) and Mr. Paul Calvert (Australia), Committee Vice-Chairmen.

3. The Committee held its first meeting in Bucharest on Friday, 13 October. It was chaired by Senator Hipolito Solari Yrigoyen and benefitted from the co-operation of the ICRC representatives. Mr. F. Borel was unfortunately unable to attend.

4. Further to that meeting, the Committee presents hereafter a summary of the situation and invites the Inter-Parliamentary Council to adopt the draft resolution contained in document CL/157/11(f)-DR.1

III. INTERNATIONAL JURIDICAL FRAMEWORK

5. The Geneva Conventions (1949) and their Additional Protocols I and II (1977), for which Switzerland is the depositary State, set out the rules of international humanitarian law and establish the mechanisms for its implementation. The Conventions and Additional Protocol I apply in the context of international armed conflicts while Article 3 which is common to the Conventions and Additional Protocol II applies to non-international armed conflicts.

IV. CURRENT PROBLEMS IN THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW

6. Most contemporary armed conflicts are non-international armed conflicts. These conflicts often occur in countries which have been affected by the weakening or even collapse of State structures, thus making it particularly difficult to apply international humanitarian law. As a consequence, despite the efforts made by the United Nations and humanitarian organizations, the most elementary rules of international humanitarian law are constantly violated. The reports of ICRC delegates give an idea of the horror of events which take place in contemporary conflicts. These facts highlight the fragile and inadequate nature of the means made available and the results obtained, while the possibility of further deterioration cannot be ruled out.

V. PROMOTION OF THE UNIVERSAL RATIFICATION OF THE TREATIES OF INTERNATIONAL HUMANITARIAN LAW

7. The universality of international humanitarian law is a prerequisite for its proper application. The number of States Parties (SPs) was the following in June 1995:

(i) Geneva Conventions of 1949 for the protection of war victims: 185 SPs;

(ii) Additional Protocol I on the protection of victims of international armed conflicts: 138 SPs;

(iii) Additional Protocol II on the protection of victims of non-international armed conflicts: 128 SPs;

(iv) United Nations Convention of 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, and its three Additional Protocols: 50 SPs;

(v) The Hague Convention of 1954 on the Protection of Cultural Goods in the Event of Armed Conflict: 85 SPs.

8. Several States Parties have limited the scope of application of the Geneva Conventions and their Additional Protocols by reservations and interpretative declarations: periodical review of these reservations is necessary to determine to what extent they are still needed.

9. Article 90 of Additional Protocol I sets up an International Fact-finding Commission whose competence is to depend on formal declarations of acceptance by States: 46 States only had made this declaration by 30 June 1995.

VI. PROMOTION OF NATIONAL IMPLEMENTATION OF THE RULES OF INTERNATIONAL HUMANITARIAN LAW

1. National enabling laws and regulations

10. The application of the rules of international humanitarian law depend on the adoption and implementation of corresponding national laws and regulations. However, there is no getting round the fact that present national laws and enabling provisions, which cover extremely varied fields, such as the protection of the emblem of the Red Cross and Red Crescent, the punishment of war crimes, the revision of military manuals or the promotion of teaching and dissemination of international humanitarian law.

2. Punishment of infringements of the rules of international humanitarian law

11. All States Parties to the Geneva Conventions have an obligation to punish these infringements. Articles 50, 51, 130 and 147, which are common to the four Geneva Conventions of 1949, draw up a list of grave breaches, and Articles 11 (para 4) and 85 (paras 3 and 4) of Additional Protocol I qualify these breaches as "war crimes". The obligation to punish these breaches is independent of the perpetrator's nationality and the place in which the act was committed. It is of the utmost importance that the national legislation of each country, and more specifically the military and civil penal code and code of penal procedure, provide for the punishment of war crimes and other grave violations of international humanitarian law. However, it must be noted that to date, few States have adopted national measures to this effect.

3. Establishment of a permanent international criminal court

12. The establishment of ad hoc tribunals, such as have been set up for the former Yugoslavia and Rwanda, should be only the first stage in the creation of a permanent international criminal court at which all crimes of war committed in all armed conflicts may be tried. The draft Statute for a future Permanent International Criminal Court have already been adopted by the United Nations International Law Commission, and this instrument should be promoted and gain universal acceptance.

4. National interministerial commissions

13. Interministerial national commissions responsible for ensuring the implementation of international humanitarian law are a powerful tool for promoting such law and facilitate the adoption of the above-mentioned measures. In order to carry out their co-ordinating role, these commissions must be composed of representatives of all the ministries concerned by the application of international humanitarian law: Foreign Affairs, Defence, Justice, Health, Interior, Education, Environment, etc. Usually, their function is to evaluate national legislation in the light of the obligations deriving from treaties of international humanitarian law, with a view to putting forward proposals to make its national application effective. They can also play an important part in ensuring that such law is properly applied when the time comes.

5. Parliamentary bodies

14. Some parliaments already have a parliamentary body responsible for ensuring respect for international humanitarian law: a committee, sub-committee or informal grouping of MPs. Such bodies can do effective work which should be encouraged and developed. The exchange of information and experience between these bodies could foster such development, and it would be appropriate in this connection if the Union were to establish a World Directory of such bodies.

6. Teaching and dissemination

15. The teaching and dissemination of the rules of international humanitarian law are among the most effective preventive measures because they guarantee that those who will be responsible for complying with and applying the rules are familiar with them, thus preventing excesses in armed conflicts. The ICRC, with the support of the National Societies of the Red Cross or Red Crescent and their International Federation, does important work in this field in the form of seminars, courses, events and displays as well as producing teaching material, but it is essential that States also contribute to such efforts.

7. 26th International Conference of the International Movement of the Red Cross and Red Crescent (Geneva, 3-7 December 1995)

16. These Conferences are the highest deliberating authority of the International Movement of the Red Cross and Red Crescent, and bring together representatives of the Movement's components of this Movement and of the States Parties to the Geneva Conventions. The 26th International Conference will be an extremely important occasion, and it is essential to ensure its success. It will have before it eight recommentations of the Intergovernmental Group of Experts on the Protection of War Victims (January 1995), which are the outcome of the consultation process between States.

VII. PROTECTION OF CIVILIAN POPULATIONS

17. Today, sometimes whole civilian populations have been caught in the trap of war, or have been the subject of war, constantly harassed, threatened by famine, bombing, and deliberately deprived of the wherewithal for survival- water and food, for example, exposed to violence such as systematic rape of women, and to forced displacements with their dramatic consequences, particularly for women and children, the most vulnerable groups of the civilian population.

18. Civilian populations are the most frequent - and lastingly affected - victims of anti-personnel mines, which are today used in a very indiscriminate fashion. The human, social and economic costs of the consequences of using mines is particularly high, both in terms of the number of victims and their effects above and beyond conflicts.

19. The Committee recalls the appeal to States by the 93rd IPU Conference (Madrid, April 1995) "to lay down a ban on anti-personnel mines and blinding laser weapons" during the review of the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, and, "pending their total prohibition: (a) to stipulate that all anti-personnel mines must be equipped with effective self-destruction devices; (b) to ban all mines which cannot be easily localized and to recommend specifications to this end; (c) to broaden the Convention to cover all internal conflicts; (d) to incorporate in the Convention effective mechanisms for implementation which rely on independent international monitoring; and (e) to ban blinding laser weapons in an additional protocol."

20. The Committee further recalls that at its special session held in New York on 30 August and 1 September last, the IPU Council stated : "When war has ended, anti-personnel mines continue to exact their toll. These are particularly insidious weapons which strike blindly, mainly at civilians. Each year tens of thousands are killed and several times that number are brutally maimed. Anti-personnel mines also constitute a serious impediment to development since millions of acres of arable land remain unusable. It is simply not possible today to accept the continued use of mines. Progress has been made in addressing the problem, and it is urgent to arrive at a total ban of land mines, their production, sale and use. Existing stocks must also be eliminated and appropriate techniques and large-scale programmes for effective mine clearance must be developed and adequately funded particularly as part of peace-building efforts."

RECOMMENDATIONS OF THE COMMITTEE

21. In view of the above considerations, the Committee invites the Inter-Parliamentary Council to adopt the resolution appearing in document CL/157/11(f)-DR.1.