Definition of International Humanitarian Law IHL

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Definition of International Humanitarian Law (IHL)

• "International humanitarian law is a set of
  rules which seek, for humanitarian reasons, to
  limit the effects of armed conflict. It protects
  persons who are not or are no longer
  participating in the hostilities, and regulates
  the conduct of hostilities."

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Complementarity of IHL and HRL

• COMPLEMENTARY
• PROVISIONS
• Right to Life
• Prohibition against Torture
• Prohibition against Ill-treatment
• Fair Trial

• IHL
• Protection of wounded, sick and shipwrecked
• Protection of POWs and civilian internees
• Conduct of Hostilities

• HUMAN
• RIGHTS
• Freedom of Expression
• Freedom of Assembly
• Right to Marry

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IHL obligations relevant to conventional arms
transfers

• To "respect and ensure respect" for humanitarian
  law (common Article 1, GC I-IV, API)
• Before authorizing an arms transfer, States
  should
• assess the recipient's likely respect for
  international humanitarian law
• not authorize a transfer if the weapons are
  likely to be used for serious violations of
  humanitarian law

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"States should make respect for international
humanitarian law one of the fundamental criteria
on which arms transfer decisions are assessed.
They are encouraged to incorporate such criteria
into national laws or policies and into regional
and global norms on arms transfers " States
party to the Geneva Conventions and RCRC
Movement, 2003.
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IHL criteria in existing arms transfer
instruments

• (EU Code of Conduct on Arms Exports -1998)
• OSCE Document on SALW (2000)
• Wassenaar Arrangement Best Practice Guidelines
  for SALW Exports (2002)
• OAS Model Regulations for the Control of Brokers
  of Firearms (2003)
• Nairobi Protocol Best Practice Guidelines (2005)
• Code of Conduct of the Central American States on
  the transfer of arms (2005)
• ECOWAS Convention on SALW (2006)

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IHL obligations relevant to conventional arms
transfers

• Treaty obligations, including
• 1980 Convention on Certain Conventional Weapons
  (Amended Protocol II and Protocol IV)
• 1997 Convention on the Prohibition of
  Anti-Personnel Mines
• (2008 Cluster Munitions Convention)
• Customary IHL prohibitions
• weapons that cause superfluous injury/unnecessary
  suffering
• weapons which are indiscriminate (incapable of
  distinguishing between civilians and military
  targets, whose effects cannot be limited as
  required)

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Elements of an ATT based on States' existing IHL
obligations

• A requirement not to transfer arms or ammunition
  likely to be used to commit serious violations of
  international humanitarian law
• A requirement not to transfer weapons or
  ammunition whose use has been prohibited
• A requirement not to transfer weapons or
  ammunition that are of a nature to cause
  superfluous injury or unnecessary suffering or
  that are by nature indiscriminate
• A reference to existing prohibitions on the
  transfer of specific weapons

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An assessment of the risk that arms will be used
to violate IHL should include an inquiry into

• the recipients record of respect for IHL
• the recipient's intentions as expressed through
  formal commitments
• the recipient's capacity to ensure that the arms
  or equipment transferred are used in a manner
  consistent with IHL and are not diverted or
  transferred to other destinations where they
  might be used for serious violations of this law

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Specific indicators - Record of respect for IHL

• 1. Whether a recipient which is, or has been,
  engaged in an armed conflict has committed
  serious violations of IHL.
• (responsibility of the recipient changed
  circumstances)
• 2. Whether a recipient which is, or has been,
  engaged in an armed conflict has taken all
  feasible measures to prevent violations of IHL or
  cause them to cease, including by punishing those
  responsible.
• (changed military orders penal sanctions
  actions to protect civilians expressions of
  regret reparations)

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Specific indicators - Formal commitments

• 3. Whether the recipient has made a formal
  commitment to apply the rules of IHL and taken
  appropriate measures for their implementation.
• (ratification of IHL instruments
  implementation)
• 4. Whether the recipient country has in place the
  legal, judicial and administrative measures
  necessary for the repression of serious
  violations of IHL.
• (national legislation that prohibit and punish
  violations cooperation in criminal proceedings
  relating to violations)

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Specific indicators - Formal commitments

• 5. Whether the recipient disseminates IHL, in
  particular to its armed forces and other arms
  bearers, and has integrated IHL into its military
  doctrine, manuals and instructions.
• (education and training mechanisms to prevent,
  suppress and punish violations)
• 6. Whether the recipient has taken relevant
  measures to prevent the recruitment of children
  into the armed forces or armed groups and their
  participation in hostilities.
• (known recruitment of children ratification of
  relevant legal instruments minimum age measures
  to prohibit and punish recruitment of children)

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Specific indicators - Capacity to ensure that
weapons will be used in accordance with IHL

• 7. Whether accountable authority structures exist
  with the capacity and will to ensure respect for
  IHL.
• (command and control structures functioning
  judicial system risk of change in
  government/authority structures)
• 8. Whether the arms or military equipment
  requested are commensurate with the operational
  requirements and capacities of the stated
  end-user.
• (capacity to use arms in accordance with IHL
  capacity to maintain and deploy equipment
  type/quantity of equipment commensurate with
  military requirements e.g. inventory and force
  structure)

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Specific indicators - Capacity to ensure that
weapons will be used in accordance with IHL

• 9. Whether the recipient maintains strict and
  effective control over its arms and military
  equipment and their further transfer.
• (previous known or suspected cases of
  unauthorized re-transfers or diversion adequate
  procedures for stockpile management and security
  known problems of theft, leakages, illicit
  trafficking effective arms transfer
  control system)