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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
INCREASING RESPECT FOR IHL
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
C
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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.
INCREASING RESPECT FOR IHL
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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INCREASING RESPECT FOR IHL
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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INCREASING RESPECT FOR IHL
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 FOR IHL
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.
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INCREASING RESPECT FOR IHL
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
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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.
INCREASING RESPECT THROUGH LEGAL TOOLS
Contents of special agreements
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INCREASING RESPECT FOR IHL
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
Limitations / Obstacles
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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.
INCREASING RESPECT THROUGH LEGAL TOOLS
Practice
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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.
INCREASING RESPECT FOR IHL
Contents of unilateral declarations
Christop
hVonToggenburg
/ICR
C
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INCREASING RESPECT THROUGH LEGAL TOOLS
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
Limitations / Obstacles
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
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INCREASING RESPECT FOR IHL
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
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INCREASING RESPECT THROUGH LEGAL TOOLS
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.
Basic description Utility
Limitations / Obstacles
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
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INCREASING RESPECT FOR IHL
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
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INCREASING RESPECT THROUGH LEGAL TOOLS
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
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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.
INCREASING RESPECT FOR IHL
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INCREASING RESPECT THROUGH LEGAL TOOLS
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
Basic description Utility
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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INCREASING RESPECT FOR IHL
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.
Limitations / Obstacles
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.
INCREASING RESPECT FOR IHL
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