icrc summary report 27-29 october 2010

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1Summary Report of the Third Universal Meeting of National Committees for the

Implementation of International Humanitarian LawGeneva, 27-29 October 2010

Summary Report of the Third Universal Meeting of National Committees for theImplementation of International Humanitarian Law,

Geneva, 27-29 October 2010

Introduction

The Third Universal Meeting of National Committees for the implementation of InternationalHumanitarian Law, organized by the Advisory Service on International Humanitarian Law of

the International Committee of the Red Cross (ICRC), took place from 27 to 29 October 2010at the International Conference Centre (CICG) in Geneva, Switzerland.

Participated 78 National Committees for the implementation of International HumanitarianLaw (IHL), government representatives from countries who have not yet established such astructure but have demonstrated interest in doing so, the representatives of international andregional organizations with expertise in the field of IHL, members of National Red Cross andRed Crescent Societies, along with various other experts and civil society members.

It was the third time that the ICRC Advisory Service on IHL brought together NationalCommittees for the implementation of IHL from all regions of the world – two similar meetingshad previously taken place in 2002 and 2007.

Objectives

The objectives of the meeting were twofold: practical and thematic. On the one hand, the aimof the meeting was to provide a forum for IHL National Committees to meet and exchange ontheir respective mandates, operations, and activities as well as to discuss the successes andthe challenges encountered in their efforts to implement IHL at a national level. On the otherhand, the meeting aimed to explore the important role of domestic law in preventing andresponding to serious violations of IHL. More particularly it addressed the legal measuresand mechanisms required to support an "integrative" system for the repression of theseviolations, with a particular emphasis on the role of the Statute of the International Criminal

Court (ICC).

Integrative Approach

The ICRC promotes an approach where the different national and international jurisdictionscomplement each other to ensure an effective fight against impunity of the most heinouscrimes of interest to the international community as a whole. This approach, which wasdiscussed during the Meeting, respects and reinforces the principle of complementarity uponwhich the ICC Statute is framed.





The objective is to encourage States to take into account all their international obligationsrelated to criminal repression - arising from both conventional and customary sources of IHL-when implementing the provisions of the Statute into their domestic law.

Work Schedule

The methodology chosen to conduct the work was participatory. This gave rise to numerousinterventions from the participants and therefore produced a fruitful and constructive debate.In each working group, panellists initially led the debates; interactions from participantsroused and nourished the discussions, which were guided by a moderator. The summaries ofthe discussions held in each working group were reported in plenary sessions by arapporteur .

The meeting was articulated around four working groups, which examined: 1) the methods ofincorporation of international obligations into domestic systems; 2) the ways and solutions toaddress challenges linked to such incorporation; 3) the jurisdictional perspective; and 4) the

preventive role of repression of violations and sanctions on individual behaviour.

Two plenary sessions allowed participants to exchange views on the role of NationalCommittees in the establishment of an effective system of repression of IHL violations andon the tools available to assist and support the efforts of these structures in the incorporationof IHL crimes.

Mr Philip Spoerri, Director for International Law and Cooperation at the ICRC, opened themeeting. Mr Yves Sandoz, Member of the Assembly of the ICRC, pronounced theconclusions of the meeting.

This summary report proposes a summary of the discussions that have taken place both inthe working groups and in the plenary sessions, in the order they have taken place.

Overview of Discussions

The Methods of Incorporation

The implementation of prosecution for war crimes (or other international crimes) into thedomestic legislation may be achieved in a number of different ways. Although there is nounique tailor-made solution, common trends in challenges and practices were shared.

The diversity of State practices reflects the fact that there are various methods for

implementing an effective system for the repression of IHL violations at a domestic level.However, there was consensus amongst participants that neither the sole application ofmilitary and ordinary criminal law, which is already in force, nor the direct application ofprovisions of international law into national law, offers a comprehensive and sustainablesolution for implementation. Since there is no perfect correlation between national systemsand international law, a minimal adaptation of the national criminal legal framework isnecessary (i.e. constitutive elements of international crimes, definitions of sanctions, etc.),with the view of sending a strong dissuasive message to all, including weapons' bearers.Criminal procedure also needs to be adapted in order to take into account the participation ofvictims and the protection of witnesses.





The ways and solutions to address challenges linked to incorporation

The participants then examined a number of challenges to the implementation of an effectivesystem for the repression of serious violations that can be encountered at a domestic level.

The participants largely agreed on the advantages of an integrative approach to theimplementation of the ICC obligations and other obligations related to the repression of IHLviolations at the domestic level. Such approach would take into account, not only theobligations deriving from the Statute itself, but also all of the States' obligations under IHLrelating to criminal repression (i.e. obligations related to all war crimes and internationalcrimes and the effective protection of the victims of armed conflict). However, this implies aprior exercise of stocktaking of all obligations arising from IHL, both conventional andcustomary, and a subsequent harmonization – by addition or clarification – of the nationallaws. For example, some constitutional obstacles might need to be lifted in order to ensurethat crimes are prosecuted and judged (i.e. immunities from prosecution for governmentofficials, prohibitions against extradition of nationals). The lack of political will and competing

priorities on the agenda were mentioned as factors hampering an effective implementation.Sensitizing and training both parliamentarians and judges to international law were identifiedas elements fostering an effective incorporation. Finally, some States pointed out thefinancial implications of implementation as a challenging reality.

The jurisdictional perspective

Apart from the regime of "grave breaches" found in the four 1949 Geneva Conventions andtheir Additional Protocol I, discussions also addressed the extent of the bases of jurisdictionthat ought to be attached to ICC crimes in order to ensure full respect of the other IHLnational obligations at stake.

The majority of States have opted for approaches that focus on crimes committed on theirterritory or exercise the principle of active personality jurisdiction. In this regard, thediscussion revolved primarily around the exercise of some form of extra-territorial jurisdiction.Some participants, forerunners in exercising such jurisdiction, shared their experience. Insome cases, a broad reading of the approach was initially adopted, but practical difficultieswere encountered and the legislation was amended in order to introduce some limitations,such as the presence of the alleged offender on the State territory. Similarly, someparticipants included limitations in procedural law. The search of the right balance betweenan effective form of extra-territorial jurisdiction and the conditions that could be attached to itto ensure greater predictability was at the centre of discussions.

Participants agreed that the exercise of universal jurisdiction involves many technical,political and constitutional challenges. It also requires judicial cooperation, at the bilateral,regional and international levels; for example when dealing with extradition cases.Concerning the jurisdictional basis of IHL, the questions of civil or military jurisdictions and ofspecific or ordinary criminal jurisdictions have been evoked without being settled.Jurisdictions designated to deal with international crimes have to embody principles ofindependence, efficacy and fairness.





The preventive role of repression of violations/sanctions on individual behaviour

A discussion took place on the sanctions of behaviours that amount to international crimes,which revolved around three topics: knowledge, adherence and characteristics of sanctions.

Apart from its prescription in national law, the severity of the sanction (to be adapted to thegravity of the facts and the level of responsibility), its immediacy and its application in situ (where the crimes have been committed) have been pointed out as key elements of itsdissuasive effect.

Because the primary responsibility to prosecute and punish the suspected offenders isincumbent on the national authorities, the effectiveness of sanctions requires sensitizing andtraining both judges and political stakeholders. In that sense, the jurisprudential corpus of theinternational criminal tribunals should play an educational role.

Although the penal sanctions have generally been considered as adequate measures to

repress all violations of IHL, it has been widely recognized that they are not exclusive andthat other sanctions – disciplinary, financial or others – can have an important deterrenteffect. When crimes touch whole communities, penal sanctions should be part of a broaderapproach where the voices of those that have been affected are fully heard. Often, this isachieved through transitional justice processes. The participants pointed out that sanctionsand criminal repression cannot be dissociated from the efforts made in the field of reparationof victims.

First Plenary Session – Tools to assist the incorporation of IHL crimes

The first plenary session allowed the introduction of tools to assist and support the relevantstakeholders in their efforts to implement an efficient system for the repression of seriousviolations of IHL or ICC crimes.

Whatever the form it takes (i.e. model laws, guidelines or technical advices), the assistanceprovided to the organisations, intergovernmental bodies, the civil society or NationalCommittees in that regard has been praised. The ICRC remains conscious of its role infacilitating the National Committees’ work by the development of tools or other forms ofsupport depending on the specific needs of the Committees. There was a consensus on thefact that each situation had its own particularities, and that the measures to be adopted andmechanisms to be implemented have to be determined in function of these particularities. Onthat issue, National Committees have an important assessment role to play in order to find

solutions that correspond best to their State. Cooperation can certainly be established atnational level as it was widely demonstrated, but examples of cooperation betweenCommittees of different regions also raised some interest.

Second Plenary Session – Enhanced Role of National IHL Committees

The second plenary session tackled the question of the role of National IHL Committees insupporting the establishment of national mechanisms of repression of international crimesand violations of IHL.





The meeting confirmed the utility of the National IHL Committees, even if their composition,functions, mandates and activities vary. The numerous interventions of members of thesestructures on their experiences, best practices and the obstacles they have faced during their

work were appreciated. The complexity of the task of implementing the internationalobligations arising from IHL and international criminal law into the domestic jurisdiction wasunderlined, especially given the increasing number of subjects that a global implementationof IHL requires to tackle – including defence, justice, finances, external affairs, education,health, culture and even protection of infancy. In practice, these capacities are spreadthroughout different State organs and specialized institutions. Hence, it stands out from themeeting that the National Committees can play a role in ensuring the coordination, supportand training of concerned actors for an optimal allocation of the oftentimes scarce resources,but also in the dissemination of IHL. Committees can only do so if they are endowed with allthe competencies required, which includes a true political willingness. Discussions alsostressed the importance that Committees or similar structures remain both active anddynamic and act in the long term as national focal points of expertise in IHL.

Next Steps…

A report of the meeting is being prepared by the ICRC Advisory Service on IHL. It will includean overview on States’ best practices in the domains discussed.

ANNEXES:

- Agenda of the Meeting- List of participants

icrc summary report 27-29 october 2010

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