The role of States in prosecuting violations of international humanitarian law

Ahead of the Third Universal Meeting of National Committees for the Implementation of International Humanitarian Law, Cristina Pellandini, who heads the ICRC's Advisory Service on International Humanitarian Law, explains the role of States in prosecuting war crimes.

The meeting has two main goals. The first is to bring together all national committees to promote discussion and the sharing of experiences and best practice. The second is to strengthen the role of the national committees in implementing international humanitarian law domestically, especially as far as criminal punishment is concerned. We will encourage discussion of an approach enabling States to effectively punish all war crimes, and to find complementary support from the international tribunals, particularly the International Criminal Court.

We also encourage States, when enacting criminal legislation for war crimes, to take into account all of their obligations requiring them to ensure respect for international humanitarian law. With around 230 participants from more than 100 countries, we are convinced that the meeting will contribute to greater compliance with that body of law and enhanced prosecution mechanisms throughout the world.

What is a violation of international humanitarian law?

First of all, we should explain that international humanitarian law, also known as the law of armed conflict, is the body of law that sets out detailed rules aimed at protecting the victims of armed conflict and restricting the means and methods of warfare. Some of the most serious violations of these rules, called "grave breaches", are listed in the Geneva Conventions of 1949 and in Additional Protocol I of 1977. Wilful killing or torture of a person protected under international humanitarian law, or making the civilian population the object of attack, are examples of these types of violations of international humanitarian law. Other serious violations, such as the forceful conscription of children under 18 years of age, and the use of certain weapons, may be found in other international instruments and in customary law. All of these violations are so serious that they entail individual criminal responsibility for those who commit them, or order others to do so, and are thus termed "war crimes."

Who is in charge of prosecuting those responsible for violations of international humanitarian law?

The responsibility for prosecuting serious violations of international humanitarian law falls primarily on States.

This is particularly clear in the case of "grave breaches," where the requirement goes so far as to oblige States to search for and punish all those who have themselves committed or issued orders to others to commit a grave breach, regardless of the nationality of the perpetrator or where the crime was committed.

More recently, the responsibility of States has been complemented by the establishment of international (for the former Yugoslavia and Rwanda) and "mixed" criminal tribunals. (The "mixed" tribunals, such as the ones for Cambodia and Sierra Leone, are half-international and half-domestic.) The Rome Statute - the treaty that established the International Criminal Court, a permanent tribunal to prosecute individuals for genocide, crimes against humanity and war crimes - was adopted at a diplomatic conference in 1998.

These efforts represent a major step forward in efforts to prevent and punish serious violations of international humanitarian law and thus enhance respect for this body of law.

What is the role of States in enforcing the law?

A necessary first step toward fulfilling the obligation to prosecute and punish serious violations is to enact national legislation penalizing the conduct prohibited under international humanitarian law. Ideally, such legislation should cover all serious violations of this law, regardless of the nature of the armed conflict in which they were committed. Conduct that is considered inhuman in an inter-State conflict cannot be anything but inhuman in all other situations of armed conflict, including those that take place within the territory of one State.

Any process incorporating criminal offences into domestic law should grant domestic courts jurisdiction over the crimes.

Pushing forward the enactment of such legislation requires close cooperation between many different entities, both within the government and civil society. National committees for the implementation of international humanitarian law, because they are inter-ministerial or inter-institutional working groups, bringing together various national agencies with responsibilities in the field of international humanitarian law, have proved to be a very useful mechanism. Their main purpose is to advise and assist the government in implementing and spreading knowledge of international humanitarian law.