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Strengthening Compliance with IHL: Back to Square One

Published on February 14, 2019        Author: 

Between 2012-2015 a series of meetings with states were organised by the ICRC and the Swiss government in the framework of a consultation process aimed at Strengthening Compliance with IHL. This consultation process (discussed here) was based on Resolution 1 of the 31st International Conference of the Red Cross and Red Crescent (IC), which invited the ICRC to undertake research, consultation and discussion with states in order to identify ways and means to ‘enhance and ensure the effectiveness of mechanisms of compliance with IHL’. During the meetings, consensus appeared to emerge on the possibility to create a new IHL compliance mechanism; a voluntary and non-politicized Meeting of States. This mechanism would provide a forum for dialogue and cooperation among states relating to IHL implementation and could serve as the institutional structure for other elements of a future compliance system, e.g. voluntary periodic reporting and thematic discussions. Unfortunately, states failed to agree on this new mechanism during the 32nd IC in 2015. Resolution 2 of the Conference therefore recommended that the intergovernmental process be continued in order to seek agreement on the features and functions of a potential forum of states.

The latest meeting of states in the context of this consultation process took place between the 3rd-5th December 2018, where states failed to reach consensus on the elements of this new IHL mechanism. States agreed that the ICRC and the Swiss Government will produce a ‘factual report’ on the progress of the inter-governmental process and will present it in the final formal meeting of States in March 2019. After that, the consultation process will be concluded bringing us back to square one. Given these developments, this blog post will discuss the existing compliance mechanisms under the 1949 Geneva Conventions (GCs) and Additional Protocol I (API) and assess their ability to monitor compliance with IHL.

First of all, it should be noted that there are no reporting obligations for states parties to the GCs and API, while meetings of the High Contracting Parties are only provided in API. Such meetings, which can be set up once approved by the majority of states parties to the Protocol, have never been convened. This is unfortunate considering that forums of exchange among states have proven pivotal to the adoption of additional supervisory mechanisms, particularly in the case of treaties with weak systems of compliance. This is the case for the 1980 Convention on Certain Conventional Weapons, which only provided for a Review Conference designed to take place every five years; its Conferences were successful in establishing meetings of the High Contracting Parties and reporting obligations as additional layers of treaty supervision. Read the rest of this entry…

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