State Obligation for the Enforcement of International Humanitarian

State Obligation for the Enforcement of International Humanitarian Law KARNA THAPA FACULTY OF LAW T. U

Preventive measures � Respect for the Convention �Pacta sunt servanda ( principle of fulfilling the treaty obligation in good faith) � General Dissemination �The High Contracting Parties undertake to respect and to ensure respect for the presentation in all circumstances (Art. 1 common to Four GCs)

States have obligation both in time of peace and war, �To disseminate the text of the Convention as widely as possible as in their respective countries �To include the study thereof in their programs of military instructions �Dissemination of the Convention among the population, particularly to the armed forces, medical and religious personnel (Art. 47 GC I, Art 48 GC II, Art 127 GC III, Art 144 GC IV)

�The High Contracting parties and the parties to the conflict shall without delay take all necessary measures for the execution or their obligation under the Convention and this Protocol (Art. 80, para. 1 Protocol I) �The High Contracting parties and the parties to the conflict shall give orders and instructions to ensure observation of the Convention and this Protocol (Art. 80, para. 2 Protocol I)

�The High Contracting Party undertake, in time of peace as in time of armed conflict to disseminate the Convention and this Protocol as widely as possible in their respective countries and in particular to include thereof in their program of military instruction by the civilian and to encourage the study by the civilian population, so that those instruments may become known to armed forces and civilian population (Art. 83 AP I (1)

�Any Military and civilian authority who in the time of armed conflict assume responsibility, shall be fully acquainted with the text thereof. Special instruction for the authorities directly concerned �Any military or other authority who in time of war assume responsibility in respect of POW must possess the text of this convention and be specially instructed as to its provision. (Art. 127, GC III)

�Any civilian, military, police or other authority who in time of war assume responsibility in respect of protected persons must possess the text of this convention and be specially instructed as to its provision. (Art. 144, GC IV) Duties of the commanders �Parties to the conflict require their military commanders to ensure that members of the armed forces are aware of their obligation under the convention and this protocol (Art. 87 (2) AP I)

Training qualified personnel High contracting parties are required to train qualified personnel to facilitate the application of the convention and of this protocol and in particular the activities of protecting power (Art. 6(1) AP I)

Legal Advisors to the Armed forces �Appoint legal advisors to advise military commanders on application of this Convention and Protocol (Art. 82, AP I) Translation of Convention and Protocols

Repressive Measures 1. state obligation on parties to the conflict to put an end to breach a. General obligation - State parties have permanent obligation to respect convention - to exercise supervisory role to ensure that the laws are respected - to enact any legislation necessary to provide effective penal sanction for person committing or ordering any of the grave breach of the present convention

- To search for persons alleged to have committed, or ordered to be committed such grave breach and to bring such persons, regardless their nationality before its own court - To take necessary measures for the suppression of all acts contrary to the provision of the present convention

The grave breach includes - Willful killing, - Torture or inhuman treatment - biological experiments - Willfully causing great suffering or serious injury to body or health - Extensive destruction or appropriation of property not justified by military necessity and carried out unlawfully and wantonly

b. Obligation of military commanders - Parties to the conflict shall require military commanders to prevent and, where necessary to suppress and to rep[ort competent authority the breach of the convention and protocols with respect of the members of armed forces under their command - Parties to the conflict shall require any commander who is aware that any subordinates under his control are going to commit or have committed a breach of the convention and the protocol, to initiate such steps as are necessary to prevent violation of the convention and the protocol, disciplinary or penal sanctions against the violators thereof

Appointment of Protecting powers �Appointment through trilateral agreement between the determining party, opposing party and the protecting power ( Belligerents appoint the state not a party to the conflict to safeguards its interest in view of the other parties engaged in the conflict �Appointment of the protecting power will be accomplished through the mediation efforts of the ICRC After the trilateral method fails

�ICRC may summon the parties to the conflict to present with the list of at least five states which they would recognize them as protecting powers and ICRC may request the consent of the states specified in the both list to act as protecting powers �Final possibility is that the parties to the conflict recognize ICRC or any other impartial organization as substitute protecting power

Mutual assistance in criminal matters �War crimes and grave breach of the Conventions or Protocols are punishable everywhere �High contracting parties have to afford greatest measure of assistance in connection of criminal proceedings

Other Measures � International enquiry �Application of aut judicare aut didere (contracting parties have choice of referring the perpetrators of such breach to it’s courts or hand over them to another high contracting parties for trial) �International Fact Finding Commission (Art. 90 AP I) �Cooperation with United Nations(Art. 89 AP I)