Enhancing respect for international humanitarian law (IHL): Exploring sanctions and the work of national IHL committees

Side Event to the 30th International Conference of the Red Cross and Red Crescent

27 November 2007

Information and practice sharing event related to the domestic implementation of IHL Treaties. Discussion of trends and challenges at national, regional and international levels.

Aim - examine the contribution of the national IHL Committees to the reform of national criminal justice systems in order to create the conditions needed to prosecute and punish war crimes and to incorporate provisions of the Rome Statute of the International Criminal Court (ICC) into domestic law. Further, explore how national committees act as a catalyst for consultations, providing technical advice and recommendations on draft laws.

1) Ambassador Laura Thompson Chacón, Permanent Representative of Costa Rica in Geneva, reported on the experience of the national IHL committee of Costa Rica.

She explained that the main objective of the committee is to fight impunity and to raise awareness in the society. The IHL committee is composed of public institutions and NGOs and provides recommendations on IHL implementation measures (ex: law drafts). Further, it disseminates information to civil society and works closely together with universities. It also contributes to the debate on conflict-prevention and non-violence.

In its tasks, the national committee is creating regional and international links, in order to benefit from experience sharing with the committees of the neighbouring countries and to be able to act concertedly.

2) Mr. Xavier Philippe, Prof of public law, explained the findings of the interregional ICRC group of experts on sanctions.

The group of experts had as objective to clarify whether there is the need of a sanction other than criminal in order to achieve greater compliance with IHL. The conclusions are manifold and it should be kept in mind that sanctions have to be deterrent, which is achieved through visible and publicized justice.

Disciplinary sanctions (administrative acts) have the advantage to be expedient, to send an effective signal and therefore to be a more likely deterrent. Deterrence, according to the experts group, comes less from the severity of a sanction than from the predictability of the punishment. Predictability depends on the clarity of the rules and on the target groups’ knowledge about it.

However, and in particular from the victims’ point of view, disciplinary sanctions are not sufficient and should not replace criminal sanctions. Moreover, experts agreed that, beyond a punishment, the stigmatization of a criminal was of paramount importance. Open and public arrest and trial of the accused do have this stigmatizing effect.

Further, the speaker recalled the principles stating that gross violations of IHL imperatively have to trigger sanctions. He also revoked that states should condemn systems of “exceptional justice” during conflicts (e.g. “exceptional prisons”).

It was underlined that national justice had to incorporate IHL and that national legislation, even the constitution if needed, has to be modified for full implementation of IHL. Here, a link can be drawn to the establishment of national IHL committees. Reference was also made to the proportionality of the punishment and it was encouraged to take into consideration cultural and traditional aspects of the society in question, particularly when it comes to alternative, i.e. traditional tribunals.

The experts also considered the situations in which justice is to be made while the conflict is ongoing. In this respect, it is important to cover all the parties to the conflict in order to cover all the violations and the victims of all sides.

Regarding the victims’ roles, different situations have been recognized: victims might have one only advocate; or they might be in the centre of the process, treated individually with a view to reparations; or the situations might be a mix of the two. It is important, however, that the victims do not have too high expectations in order to avoid disappointments and ultimately revenge issues.

Transitional justice and its place have also been discussed. Agreement is that this is a complementary mechanism and that it should not substitute the criminal mechanisms. Especially in this context, the range of sanctions can go well beyond privation of liberty.

The group of experts also found that the impact of sanctions varies depending on whether the post-conflict society has just started a reconciliation process or whether it is already in an advanced stage of reconciliation.

Noelia Díaz