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Implementation and Enforcement of IHL Pontus Winther

Implementation and Enforcement of IHL Pontus Winther. Outline of the Lecture. General m echanisms to ensure compliance with IHL Duty of States to repress violations of IHL Violations of IHL Individual responsibility Command responsibility Incorporation in domestic legal systems

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Implementation and Enforcement of IHL Pontus Winther

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  1. Implementation and Enforcementof IHL Pontus Winther

  2. Outline of the Lecture • General mechanismstoensurecompliancewith IHL • Dutyof States torepressviolationsof IHL • Violationsof IHL • Individualresponsibility • Commandresponsibility • Incorporation in domestic legal systems • International criminalcourts and tribunals

  3. Mechanismstoensurecompliancewith IHL Duty for States torespect IHL in armedconflict, GC CA 1 and AP I art. 1 • Applicationof IHL in goodfaith– not subjecttoreciprocity • Responsibility for violationscommitted by the armedforcesof the State, by other State organs, or by anyoneelse under the State’sauthority Duty for States toensurerespect for IHL in armedconflict, ibid. • Repression ofbreaches and grave breachesofIHL • Supervision ofitsarmedforces, ofotherState organs, and ofanyoneelse under the State’sauthority • Appointmentof Legal advisersin itsarmedforces • Trainingofitsarmedforces, otherstate organs and civilians in IHL

  4. Training in IHL Dissemination, GC AP I, art. 83 Armedforcesof the State: • include the study of IHL in the programmes of military instruction [In Sweden, the ArmedForcesareresponsible for the trainingofitsownpersonnel. However, the academictraining is conducted by SNDC. Each officer gets 16—20 academiccreditsthroughouthis/heracademictraining] Other organs of the State, the civilian population: • encourage the study of IHL by the civilian population

  5. Appointmentof Legal Advisers Legal advisers in armedforces, GC AP I, art. 82 The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject. [Swedish regulation on legal advisers, SFS 1990:12 §§ 27—32]

  6. Repression ofbreachesof IHL General comments • The rules presented beloware not exhaustive – guidance must be sought in eachapplicabletreaty and in CIHL. • Breachesof IHL applicable in NIAC areaccounted for on a CIHL basis. • Individualsarenormally, except for the act, alsoresponsible for i.e. ordering, attempting, assisting, facilitating, and aiding or abetting a criminalact (subjecttocourt’sjurisdiction)

  7. Duty for States toRepressbreachesof IHL Penal sanctions, GC I—IV art. 49, 50, 129 and 146 respective The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

  8. IndividualResponsibility (1) Penal sanctions, GC I—IV art. 50, 51, 130 and 147 respective Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health… [followed by convention-specific regulations].

  9. IndividualResponsibility (2) Grave Breaches, GC AP I, art. 85(3) … the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:(a) making the civilian population or individual civilians the object of attack;(b) launching an indiscriminate attack…;(c) launching an attack against works or installations containing dangerous forces …;(d) making non-defended localities and demilitarized zones the object of attack;(e) making a person the object of attack in the knowledge that he is 'hors de combat';(f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross…

  10. IndividualResponsibility (3) Grave Breaches, GC AP I, art. 85(4) 4. In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol:(a) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory…;(b) unjustifiable delay in the repatriation of prisoners of war or civilians;(c) practices of ' apartheid ' and other inhuman and degrading practices…;(d) making the clearly-recognized historic monuments, works of art or places of worship… the object of attack…

  11. CommandResponsibility (1) Dutyofcommanders, GC AP I, art. 87 “Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. ”Partiesto the conflictshallrequirethat, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.

  12. CommandResponsibility (2) Failuretoact, GC AP I art. 86 para. 2 The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

  13. Incorporation in DomesticLaw (Sweden) • Dualistic legal tradition • Incorporationof international lawinto Swedish law • Warcrimes in Swedish law • Swedish penal code (SFS 1962:700), chapter 22 paragraph 6 • Swedish jurisdiction • Swedish penal code (SFS 1962:700), chapter 2 paragraph 1—5

  14. International Criminal Courts and Tribunals ICTY, the Hague (SCRES 827) (Cf. ICJ, the Hague (ICJ:s Statute) ICCt, the Hague (RomeStatute) ICTR, Arusha/the Hague (SCRES 955)

  15. Pontus Winther pontus.winther@fhs.se

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