Implementation of International Humanitarian Law within the Commonwealth

Abstract

Commonwealth States have a reasonable record in their accession to international humanitarian law (IHL) treaties, however, ratification is only the first step. In order for countries to be able to fulfil the obligations that flow from IHL treaties, they must put in place the required national legal, regulatory and administrative measures, including the prohibition of certain acts and penalties for offenders. This article examines various of the IHL treaties, the obligations on States that they create, and the efforts undertaken by Commonwealth States to incorporate these instruments into national law. It also outlines the support available for States to ensure that IHL rules are fully respected.

Notes

1 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.

2 1980 Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects.

3 1954 Hague Convention for the Protection of Cultural Property in the event of Armed Conflict.

4 Geneva Conventions on the Protection of War Victims of 12 August 1949, Article 1.

5 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field of 12 August 1949, Article 49.

6 See Henckaerts, Jean‐Marie and Doswald‐Beck, Louise (2005) Customary International Humanitarian Law (Cambridge: Cambridge University Press), Vol. 1, Rule 158, p. 607.

7 Ibid.

8 Geneva Conventions I–IV 49/50/129/146, Additional Protocol I 85 (1).

9 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977.

10 Articles 50/51/130/147 common to the four Conventions; Articles 11 (4) and 85 of Protocol I.

11 Additional Protocol I, Article 86 (1).

12 Geneva Conventions I–IV 49/50/129/146, Additional Protocol I 85 (1).

13 Rome Statute of the International Criminal Court, 17 July 1998.

14 Rome Statute, Article 25 (2).

15 International Criminal Court (Consequential Amendments) Act 2002, no. 42 of 2002.

16 Information on the individual country legislation is based on ICRC archival information and individual country legislation websites.

17 Antigua and Barbuda, Australia, Bahamas, Barbados, Belize, Botswana, Canada, Cyprus, Dominica, Fiji, India, Jamaica, Kenya, Lesotho, Malawi, Malaysia, Nigeria, New Zealand, Papua New Guinea, Seychelles, Singapore, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Solomon Islands, Sri Lanka, Trinidad and Tobago, Tuvalu, Uganda, the United Kingdom, Vanuatu and Zambia.

18 Fiji, Mauritius and Nigeria.

19 Articles 11 (2) and 85 (2), (3) and (4).

20 Geneva Convention III, Articles 99–108.

21 GC I, Articles 38–44; GC II, Articles 41–44; and AP I, Article 38.

22 GC I, Article 54; GC II, Article 45.

23 Geneva Conventions Act 1970, Geneva Conventions (Amendment) Act 2003.

24 Geneva Conventions Act 2003, no. 3109.

25 International Criminal Court (Consequential Amendments) Act 2002, no. 42 of 2002.

26 Geneva Conventions Act 1957 as amended, Article 15.

27 Article 6 (1).

28 Belize, Canada, Cyprus, Fiji and Singapore.

29 Rome Statute of the International Criminal Court, 17 July 1998.

30 Rome Statute of the International Criminal Court, Article 17.

31 Australia, Canada, Cyprus, Malta, New Zealand, Samoa, South Africa, Trinidad and Tobago, and the United Kingdom.

32 See Australia, Criminal Code Act 1995.

33 Article 31.

34 See Article 28 of the ICC Statute.

35 Ibid.

36 International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966.

37 See Report of the Commonwealth Expert Group on Implementing Legislation for the Rome Statute of the International Criminal Court, Marlborough House, London, 7–9 July 2004.

38 For example Australia, Canada, Cyprus and New Zealand, universal jurisdiction; Malta and the United Kingdom, nationality and territoriality; South Africa, link to territory but including passive personality.

39 See Samoa International Criminal Court Act 2007, Act no. 26 of 2007.

40 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict.

41 1954 Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict; 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict.

42 Ibid., Article 16 (1).

43 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction.

44 Ibid., Article 1.

45 Ibid., Article IV.

46 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.

47 Australia, Mauritius, New Zealand, Singpore, St. Kitts and Nevis, and the United Kingdom.

48 UN Doc. S/RES/1540 (28 April 2004).

49 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.

50 Ibid., Article 7 (1).

51 Chemical Weapons (Prohibition) Act 1994, Act no. 26 of 1994 as amended.

52 Compare with the implementation rate within the Commonwealth of other IHL treaties.

53 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects.

54 Protocol on Prohibitions or Restrictions on the Use of Mines Booby Traps and Other Devices as Amended on 3 May 1996.

55 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti‐personnel Mines and on their Destruction.

56 Protocol on Laser Blinding Weapons (Protocol IV).

57 Protocol on Non‐Detectable Fragments (Protocol I).

58 Protocol on the Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III).

59 Article 7 refers to transparency measures and Article 8 to facilitation and clarification of compliance.

60 Prohibition of Anti‐personnel Mines Act 2003, no. 16 of 2003, Article 2.