Introduction
Respect for international humanitarian law (IHL) is contingent on the measures undertaken not only during war but also in peacetime. Commanders cannot abide by IHL if they are not properly instructed during peacetime; museums and cultural sites should display the blue shield to deter attacks during wartime; prosecutions against perpetrators of war crimes cannot take place without an adequate criminal legislation, competent tribunals and so on. Indeed, compliance at the battlefield rests in the implementation of measures crossing multiple spheres, including legislative, administrative and educational.Footnote 1 In peacetime, it is essential that governments and other relevant stakeholders coordinate these measures as a condictio sine qua non to attain, whenever necessary, the ideal of restraining war.
Article 1 common to the 1949 Geneva Conventions mandates States “to respect and to ensure respect for the present Convention in all circumstances.”Footnote 2 This wording is a reformulation of the principle pacta sunt servanda, which commands States to honour in good faith their international commitments.Footnote 3 According to Jean Pictet, “the Government must of necessity prepare in advance, that is to say in peace-time, the legal, material or other means of ensuring the faithful enforcement of the Convention when the occasion arises.”Footnote 4 In this context, one wonders about the nature and scope of the measures to be taken in order to translate international obligations into domestic actions.
In most latitudes, such measures are run by interministerial committees, generically known as “National Committees for the Implementation of International Humanitarian Law” (NCIHLs). Their core task is to facilitate domestic implementation of IHL by bringing together national authorities with other actors, including the International Committee of the Red Cross (ICRC), National Red Cross and Red Crescent Societies (National Societies) and legal academia. In this regard, the work of NCIHLs is cardinal to assess the status of IHL implementation around the globe.
Despite its importance, the binomial “IHL and implementation” is frequently overshadowed by the rules applicable to combat, particularly in publications and teaching. The present article pursues two objectives. The first is to facilitate understanding of IHL beyond the battlefield, with specific regard to the practice in Latin American. The second is to contribute to the scholarship dialogue concerning NCIHLs in regional contexts. Specific contextual circumstances and traits of Latin American countries make their practice particularly relevant regarding three categories of IHL implementation policies, namely, the protection of cultural property, capacity building in IHL and other relevant legal frameworks, and legislative measures orbiting armed conflicts.
The sources of information for this text include inter alia reports made by the ICRC's Advisory Service on IHL (“the Advisory Service”), public information from governments and the author's professional experiences as an IHL adviser.
National IHL committees
Domestic implementation through NCIHLs was a good practice recommended by a group of experts at the 26th International Conference of the Red Cross and Red Crescent.Footnote 5 These international summits take place every four years and bring governments together with the ICRC and National Societies, in order to find solutions for the existing challenges to humanitarian action. The influential recommendation suggested “the establishment of national committees to advise and assist governments in the implementation and dissemination of IHL, the exchange of information on implementation measures”.Footnote 6 Simultaneously, the ICRC responded with the creation of a special unit, namely the Advisory Service, among whose purposes is to partner with NCIHLs pertaining to the binomial “IHL and implementation”. Indeed, in support of States’ primary responsibility, according to the Statutes of the International Red Cross and Red Crescent Movement, the role of the ICRC includes propelling the understanding, dissemination and development of IHL.Footnote 7 On a regular basis, the Advisory Service, which operates worldwide through ICRC regional delegations, assist governments in their implementation and dissemination efforts. This global network of legal advisers also gathers information and publishes relevant working documents encapsulating experiences and insight from different latitudes. One remarkable tool is their document entitled National Committees and Similar Entities on International Humanitarian Law: Guidelines for Success (“Guidelines”), the most recent systemization of best practices from NCIHLs, complemented by other recommendations.Footnote 8 The advice provided therein stirs from composition and budgetary considerations, to working methods and international cooperation.
Today a total of 116 governments craft their implementation policies through NCIHLs. According to the ICRC database, the first of these entities was created in Germany in 1973, whereas the latest are in Kiribati and Bulgaria during 2019.Footnote 9 There are sui generis cases, like Sweden and Poland, which have two entities each that resemble NCIHLs which work in coordination with different governmental agencies.Footnote 10
The composition of NCIHLs varies. Traditional formations include the ministries of defence, foreign affairs, interior and justice. Less frequent compositions include other ministries, such as education, health, culture, along with representatives from the legislative and judicial branches. Most NCIHLs allow regional delegations of the ICRC and National Societies to participate, either as members or observers upon invitation. A noteworthy trait of some NIHLCs is the permanent participation of universities or representatives from legal academia. This is particularly relevant since educational commends are a common feature present in the constituting documents of NCIHLs around the world.Footnote 11
Latin American NCIHLs
NCIHLs are rather recent in the region. Uruguay and Bolivia were the first countries to create them in 1992, whereas the Colombian and Venezuelan are the latest, in 2011 and 2015, respectively.Footnote 12 In 2021, a total of twenty countries in the Americas have such committees.Footnote 13
Almost every NCIHL in the region was created through an executive/presidential decree.Footnote 14 Such decrees define their integration and mandate. Concerning their integration, Latin American NCIHLs exhibit different schemes of composition. Take the cases of Costa Rica and Argentina as examples. Whereas the membership of the former includes ministries, a university, other government branches and civil society, the latter is integrated exclusively by ministries.Footnote 15 However, narrow integrations do not necessarily exclude dialogue with other actors. As a matter of fact, NCIHLs composed exclusively by ministries often operate through specialized working groups, which include, upon invitation, active participation from the ICRC in the furtherance of common objectives, academia and other national authorities.
Regarding their mandates, despite some minor variations in language, there are common features that can be summarized in the following terms: (1) reviewing domestic legal frameworks; (2) suggesting accession/ratification of IHL treaties; (3) developing policies to fulfil existing IHL treaty obligations; (4) undertaking dissemination and academic activities; (5) providing legal advice to different branches of government concerning IHL and policy.Footnote 16
Having explained what NCIHLs are, how they are formed and their objectives, the following section highlights some successful instances of implementation measures taken by NCIHLs in Latin America.
IHL dissemination and capacity building
Dissemination is a necessary condition for compliance.Footnote 17 It represents a corollary species of the obligation spelled out in common Article 1 and consists not only in the provision of information, but also in a substantial educational prerequisite for an effective implementation.Footnote 18 In fact, the four Geneva Conventions and other relevant IHL treaties contain express obligations aimed at spreading their regulations among armed forces and civilian population both in times of peace and war.Footnote 19 Other conventional obligations consist of integrating IHL into programmes of military instruction and training.Footnote 20 In sum, dissemination covers a wide spectrum of measures that should be tailored based on different recipients’ profiles.
Regarding the dissemination of IHL materials among civilians, common regional practices include the organization of IHL courses, seminars with academics and moot courts. As an example, the strategy of the Mexican NCIHL (CIDIH-México) consists of at least two IHL courses on a yearly basis. One is open to all audiences with a mandatory participation from members of the armed forces, whereas the second is directed exclusively at university professors.Footnote 21 Since the first course is intended to supplement regular military training, it addresses the latest developments in IHL. In 2018, for instance, that course included sessions on IHL and cyber operations as well as on urban warfare, two topics identified by the ICRC as challenges to contemporary armed conflicts.Footnote 22 Similar courses take place on a yearly basis in Peru, Bolivia, Colombia, Costa Rica and Ecuador.Footnote 23 The second course undertaken by the CIDIH-México intends to facilitate teaching materials to be further disseminated among students. In this course, university professors get to know the teaching tools developed by the Advisory Service and other departments of the ICRC. Such tools include a digital application, ready-to-use workshops and a syllabus for remote teaching.Footnote 24 The underlying purpose is to promote the inclusion of IHL in university programmes and help professors in the process.
Collaboration schemes with academia facilitate the organization of periodical activities, not affected by changes in government. In countries like Argentina, Costa Rica, Peru and Ecuador, the ICRC regional delegations maintain partnerships with universities, sometimes through academic cooperation agreements.Footnote 25 From the author's experience, the reasoning behind partnering with academic institutions is to lean on their infrastructure, network and expertise in conducting educational exercises. One clear example is the creation of the Anuario Iberoamericano de Derecho Internacional Humantiario, an annual yearbook edited by the University of La Sabana with the support of the ICRC Delegation in Colombia.Footnote 26
A second regional good practice is the organization of simulation exercises and moot courts for students. These academic activities demand students to argue from different roles including advocates for a country or advisers for different actors. By participating in moot courts or simulations, students get a better sense of advocacy itself and the concrete application of international rules. Such experiences encourage the emergence of passionate professionals looking forward to building a career in IHL or other international law disciplines. This could be illustrated by the results of a survey conducted among former participants of moot courts and simulations in Mexico. The results were transparent: 95% of them considered their experiences in moot courts and simulations as “highly influential” in their professional careers and 91% regarded them as “essential” for law students. Almost 90% maintained that such experiences increased their job opportunities. Also, 65% declared that they contributed to the discipline with either a thesis or a publication.Footnote 27
As mentioned above, dissemination efforts should be designed depending on the audience. Concerning IHL training to the military, good practices maintain that exercises for the military should involve real dilemmas which soldiers would encounter in combat. The objective is to familiarize such dilemmas, so they can be lawfully addressed in the battlefield.Footnote 28 In this regard, the ICRC's department in charge of relations with Armed Forces has experience conducting training to the military. For instance, the Senior Workshop on International Rules Governing Military Operations (SWIRMO) is an international training programme oriented to military personnel from different countries.
Dissemination and capacity building are never-ending, yet core obligations for IHL implementation. Educational efforts continue to be a solid and cost-effective investment to strengthen respect for IHL. These exercises are ideal spaces for all actors to receive feedback from each other and to partner in the consolidation of regional IHL perspectives. This body of the law evolves mutually with the means and methods of warfare; it is essential to keep weaving the intellectual fabric to support adequate policymaking.
Protection of cultural property
Under treaty and customary IHL, cultural buildings and places of religious importance are protected as civilian objects unless they lose that protection.Footnote 29 In the same way, it is prohibited to use cultural property for military purposes. The Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (the 1954 Hague Convention) and its two additional protocols envisage a system of protection based on a distinctive emblem: the blue shield and its derivatives. Accordingly, States Parties must prepare, during peacetime, safeguarding measures against foreseeable effects of armed conflicts. Appropriate measures include the signalization of relevant sites, dissemination of the 1954 Hague Convention and bringing the topic of protection of cultural property into military manuals and training.Footnote 30
The 1954 Hague Convention and its two additional protocols provide three categories of protection: general, special and enhanced. The first two are contained in the 1954 Convention. The general protection only requires the unilateral signalization by the State, and it is designated to identify: (a) cultural property not under special protection; (b) the persons responsible for the duties of control for the execution of the Convention; (c) the personnel engaged in the protection of cultural property; and (d) the identity cards mentioned in the Regulations for the execution of the Convention.Footnote 31
Differently, the regime of special protection demands a process of registration before a third party, namely the International Register of Cultural Property under Special Protection.Footnote 32 The emblem consists of the blue shield repeated three times in a triangular formation (one shield below). This category of protection was designed for “a limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centers containing monuments and other immovable cultural property of very great importance”. In order to be designated as specially protected, the 1954 Hague Convention demands that the cultural property must be “situated at an adequate distance from any large industrial center or from any important military objective constituting a vulnerable point”.Footnote 33
The last category of protection, namely enhanced protection, was created by the 1999 Second Protocol and innovated by removing the distance criterion.Footnote 34 For an object to be listed as property under enhanced protection, the request for inscription shall include a declaration by the State which has control over it, confirming that it will not be used to support military endeavours.Footnote 35 As a matter of fact, enhanced protection was adopted as a consequence of the criticisms against the 1954 Hague Convention when the Gulf War and the war in the former Yugoslavia witnessed severe instances of destruction and bombardments of monuments, museums and entire historical cities.Footnote 36 A strong criticism advanced against the previous regime was precisely the requirement of location. Besides the ambiguity of notions such as “adequate distance” and “important military objective”, the distance requirement was hardly met, so the number of sites or buildings specially protected was rather limited.Footnote 37
Latin American heritage is incredibly rich. The region harbours the material and immaterial legacies of ancient civilizations, whose preservation is a priority. Through their NCIHLs, Latin American governments have taken different measures to signal and ensure respect to cultural sites, in accordance with the 1954 Hague Convention and its two protocols. The work of the NCIHLs from El Salvador, Argentina and Mexico offers important references.
The cases of El Salvador and Argentina constitute illustrative instances of signalization under general protection. In this respect, El Salvador has been working intensively since its ratification of the 1954 Hague Convention in 2001. From 2002 to 2013, the NCIHL ran a programme, which consisted of three phases, in order to signal multiple historical buildings throughout the country. To execute this programme, El Salvador received funding and orientation from the United Nations Educational, Scientific and Cultural Organization (UNESCO).Footnote 38
El Salvador articulated its signalization process in a guide for national authorities. The document lays out a scheme of cooperation between different levels of government in order to institutionalize the process of signalization. Instructive references from the guide include the establishment of a network of local governmental officials through committees aimed at identifying relevant cultural property and to operate their signalization. Also, the guide includes the logistic details involved in placing the blue shield as a plaque or as a pedestal.Footnote 39 The case of El Salvador illustrates how States can adapt and professionalize their institutions to permanently implement IHL.
For its part, in 2012, Argentina created a working group inside the NCIHL aimed at the identification and signalization of cultural property.Footnote 40 This working group has launched an integral campaign which comprises the signalling of several historical places, including memorials, museums, academic institutions and natural sites. By 2019, a total of fifty sites were exhibiting the blue shield across the country.Footnote 41
A noteworthy trait of Argentinian signalization efforts is its diffusion component. Their strategy consisted of a documentary series entitled Motivados por la historia (Inspired by history), which focuses on a route of sites to be signalled with the blue shield. The series narrates the journey of an elementary school professor, alongside a group of young enthusiasts, in an expedition in the Crossing of the Andes, a transcendent route for the independence of the region in the 19th century. In the series, experts from the Argentinian NCIHL explain the importance of enhancing compliance of IHL, even in contexts outside of armed conflicts, whereas the professor emphasizes the historical resonance of the route. The campaign was produced with the support from UNESCO and Google.Footnote 42
Another good example of this practice is the one of Mexico, which is the only country in the region that has registered cultural property under special protection and is undergoing a process to register cultural sites under enhanced protection. In 2012, a specialized working group within the NCIHL began a process of identification and application for the registration of cultural property under special protection. The working group included technical institutions such as the National Institute of Anthropology and History and the National Institute of Statistics and Geography.Footnote 43 In February 2015, UNESCO confirmed the registration of nine Mexican archaeological sites in the International Register of Cultural Property under Special Protection.Footnote 44
In addition, in 2020 Mexico began the registration of the National Museum of Anthropology in Mexico City in the List of Cultural Property under Enhanced Protection. To facilitate the process, the Mexican government sought technical and financial support from the Secretariat of the 1954 Hague Convention. In fact, Article 29 of the 1999 Second Protocol envisages a fund to provide financial or other assistance in support of preparatory measures to be taken in peacetime.Footnote 45 In the case of the National Museum of Anthropology, the financial support was employed in the development of a risk management plan to ensure that the pieces and the museum itself are protected against any foreseeable risk.Footnote 46
The historical development of the applicable conventions is instructive for adequate policies. After the adoption of the 1999 Second Protocol and enhanced protection, the older framework of special protection can be considered as not being suitable for most cases. Enhanced protection also entails criminal repression for war crimes against cultural property and it ensures that the domestic legal system provides adequate means of protection. Authorities and officials working on IHL should focus on the registration of relevant property in the List of Cultural Property under Enhanced Protection, which to date contains only twelve sites in six countries.Footnote 47
Legislative work
Adequate legal frameworks are essential preconditions for compliance. After ratification, States are obliged to take all necessary legislative and administrative steps to ensure full implementation of IHL treaties. For example, the Geneva Conventions contain provisions requiring States to create the necessary legislation “[…] to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches.”Footnote 48 In addition, Customary Rule 158 from the ICRC's customary law database establishes that States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory.Footnote 49 Moreover, according to the principle of complementarity as defined in the Rome Statute of the International Criminal Court, national judiciaries hold primary jurisdiction to prosecute international crimes, including war crimes.Footnote 50 For all these reasons, it is important that States enact the necessary legislation to allow national authorities to act according to their international obligations: only.Footnote 51
According to Dieter Fleck, legislative work for the domestic implementation of IHL can be divided into three categories: (1) laws and regulations providing the application of the Geneva Conventions; (2) legislation to ensure appropriate penal sanctions for grave breaches of IHL; (3) legislative measures to prevent and suppress misuse of the protective emblems.Footnote 52 In addition to that typology, there is also legislation implementing (4) treaties regulating or prohibiting the use of certain weapons. Each of these points can be explained by reference to the work of NCIHLs in Latin America. As mentioned before, the advisory function is a common feature of such committees. This element in their mandates enables them to suggest modifications to national legal architecture.
For instance, the National Committee for the Study and Implementation of International Humanitarian Law from Peru has played an active role in the governmental approach to IHL. This NCIHL has provided recommendations and analysis during the adoption of Law 29166 on the Rules of Use of Force by Armed Forces in National TerritoryFootnote 53 and subsequent Legislative Decree 1095.Footnote 54 Both instruments provide the conditions for the use of force during military operations against armed groups in Peruvian territory. The decree includes notions anchored to IHL, namely, “military objective”, “incidental damage”, “proportionality”, among others. Besides, the same committee promoted the legislation to prohibit child recruitment.Footnote 55
Similarly, the Ecuadorian NCIHL propelled the inclusion of grave breaches to IHL in the national criminal code (Código Orgánico Integral Penal Ecuatoriano).Footnote 56 Consequently, this instrument criminalizes grave violations to IHL and other serious violations of IHL such as the murder of protected persons, use of prohibited weapons, environmental modifications for military purposes, attacks against protected objects and property, among other violations to IHL.Footnote 57
Lastly, regarding the misuse of protected/distinctive emblems, both the Geneva Conventions and customary law prohibit the use of the Red Cross and Red Crescent for purposes unrelated to “the identification of medical and religious personnel, medical units and medical transports, as well as personnel and property of the components of the International Movement of the Red Cross and Red Crescent”.Footnote 58 This rule applies in peacetime as well. Latin American NCIHLs have undertaken the task to assist law making by drafting regulations to ensure respect for distinctive emblems. In the case of Mexico, the NCIHL prepared the initial draft of what later became the Regulation to Implement the Law Concerning the Use and Protection of the Red Cross Name and Emblem, which lays down possible authorized uses of the emblems, which created a system of administrative sanctions in charge of the Ministry of the Interior.Footnote 59 Likewise, Ecuador's NCIHL presented an initiative to modify Regulations of the Law of Land Transportation, Traffic and Road Safety, in order to set the conditions for use of the Red Cross emblem in private and public ambulances.Footnote 60
Perspectives and final remarks
In December 2019, representatives from different countries met in Geneva for the 33th International Conference of the Red Cross and the Red Crescent Movement. Back then, representatives adopted a resolution entitled “Bringing IHL home: A road map for better national implementation of international humanitarian law”. The resolution calls for strengthening cooperation between NCIHLs on the international, regional and cross-regional levels, by attending and actively participating in the universal, regional and other regular meetings of such entities.Footnote 61 In the same summit, Ecuador and Peru presented a pledge to promote and strengthen the work of NCIHLs, and the exchange of information among them.Footnote 62
Furthermore, in February 2021 NCIHLs met online to reflect about the horizons for the implementation of IHL in the region.Footnote 63 The representatives adopted a declaration recognizing the importance of the measures undertaken so far. Equally, the need to develop more effective methods of international networking was again highlighted.Footnote 64 A strong network of NCIHLs is an accessible alternative to enhance their work and IHL itself.
In addition, the ICRC facilitates interactions between NCHILs around the world through an online community. In this platform, governments can voluntarily share information and engage in discussions about different implementation measures. However, by June 2021 only six Latin American countries were members of the community.
Another effective route to enhance IHL implementation is voluntary reporting. This measure “is intended to help to improve understanding of IHL, and to encourage and inform dialogue on IHL issues both at home and abroad”.Footnote 65 There are many States that issue public reports documenting the multiplicity of measures undertaken during a specific period. The creation of this information produces important materials and references for all actors involved in IHL and policy: academia, governments and civil society. With such elements at hand, States and the ICRC can keep better track of their progress, develop indicators, follow up commitments and define further objectives.
Regarding the measures mentioned in this article, three good practices should be highlighted. Firstly, permanent schemes of partnerships with academic institutions ensure better and far-reaching educational activities. Secondly, UNESCO represents an important ally in the fulfilment of the obligations contained in the 1954 Hague Convention and its two additional protocols. In fact, States can resort to the organization for technical advice and economic support. Lastly, NCIHLs hold an enormous potential to make legislative improvements. The interplay between human rights law and IHL allows these committees to provide advice and assist policymaking in a variety of topics, including arms control, law enforcement and criminal law.
In conclusion, the successful implementation of IHL is the product of specialized machinery of governments. The previous sections illustrate how compliance at the battlefield is prepared in peacetime and the role that NCIHLs play in this equation. The Geneva Conventions and customary IHL require States to institutionalize IHL within the military establishment and government itself. In this sense, the creation of NCIHLs is a testimony of the governmental efforts behind respecting and ensuring respect for IHL in all circumstances. In Latin America and elsewhere, the institutionalization of IHL through NCIHLs has demonstrated to be an effective way to comply with multiple international obligations anchored to IHL and the ideal of limiting the consequences of war.
