curso 2do derecho internacional humanitario: comision de asuntos juridicos y politicos washington,...

Curso 2do Derecho Internacional Humanitario:Curso 2do Derecho Internacional Humanitario:Comision de Asuntos Juridicos y PoliticosComision de Asuntos Juridicos y Politicos

Washington, D.C.Washington, D.C.Enero 24, 2008Enero 24, 2008

John M. WilsonJohn M. Wilson

Oficina de Derecho Internacional Oficina de Derecho Internacional Departamento de Asuntos Jurídicos InternacionalesDepartamento de Asuntos Jurídicos Internacionales

Organization of American StatesOrganization of American States

National Application of IHL – General ObjectivesNational Application of IHL – General Objectives

Strengthen Application of IHLStrengthen Application of IHL

Promote Universal Acceptance of IHL Rules, Norms Promote Universal Acceptance of IHL Rules, Norms InstrumentsInstruments

Assist States in the Adoption of National MeasuresAssist States in the Adoption of National Measures

Promote Widest Dissemination of IHLPromote Widest Dissemination of IHL

Organization of AmericanAmerican States

General ObjectivesGeneral Objectives

Promotion - DisseminationPromotion - Dissemination

• General AssemblyGeneral Assembly: : political dialogue, resolutions, civil society, reports, mandates, budget

• Permanent CouncilPermanent Council:: political dialogue, follow-up, sessions, ICRC, civil society, work plan

• Committee on Juridical and Political AffairsCommittee on Juridical and Political Affairs:: special session on IHL, work session ICC, course, resolutions

• General SecretariatGeneral Secretariat:: Office of International Law: Inter-American Juridical Committee, coordination AG/CP/CAJP, course, workshops, internet, cooperation with ICRC


First IHL CourseFirst IHL Course

International Humanitarian LawInternational Humanitarian Law

• General Introduction to IHLGeneral Introduction to IHL

• Detailed summary of Geneva Conventions (1949)Detailed summary of Geneva Conventions (1949)

• Detailed summary of Additional Protocols (1977)Detailed summary of Additional Protocols (1977)

• Introduction to the way OAS organs, agencies, and Introduction to the way OAS organs, agencies, and entities should apply IHL in their respective areasentities should apply IHL in their respective areas


Course ObjectivesCourse Objectives

Political BodiesPolitical Bodies(GA/PC/CAJP/CHS)(GA/PC/CAJP/CHS)

• General KnowledgeGeneral Knowledge• Draft/Negotiation Gen. Draft/Negotiation Gen.

Assembly ResolutionsAssembly Resolutions• State Implementation of State Implementation of

IHL InstrumentsIHL Instruments• Development of LawsDevelopment of Laws

Technical BodiesTechnical Bodies(OAS:GS/CIM/IIN/CICAD/CICTE)(OAS:GS/CIM/IIN/CICAD/CICTE)

• General KnowledgeGeneral Knowledge• Implementation of Gen. Implementation of Gen.

Assembly ResolutionsAssembly Resolutions• Recognition of IHL Recognition of IHL

related topicsrelated topics• Incorporation of IHL Incorporation of IHL

into programs/projectsinto programs/projects

Second IHL CourseSecond IHL Course

International Humanitarian LawInternational Humanitarian Law

• Summary of introductory IHL courseSummary of introductory IHL course• Topic-specific application of Geneva Conventions / Topic-specific application of Geneva Conventions /

Protocols of 1977Protocols of 1977• Detailed analysis of IHL-related resolutions and Detailed analysis of IHL-related resolutions and

mandatesmandates• Foster Cooperation between Technical and Political Foster Cooperation between Technical and Political

Bodies in the implementation of IHL related Bodies in the implementation of IHL related mandatesmandates


G.A. Resolutions - Inter-American RoleG.A. Resolutions - Inter-American Role

OAS plays important Role in IHL in the AmericasOAS plays important Role in IHL in the Americas

Promotion and Protection of IHL Missing Persons Terrorism – War against Terror Mine Clearance (De-mining) Arms Availability/Small Weapons Detainees/Prison Policies Human Rights and IHL IHL and Gender Military Training and Functions Cooperation with ICRC


Inter-American ActorsInter-American Actors

• OASOAS:: Political and technical bodies committed to the promotion and respect of IHL in member states.

• Member StatesMember States:: Individual efforts for the national application of IHL in accordance with their international obligations on the matter.

• ICRCICRC: : Lends assistance for persons affected by situations of conflict, coordinate activities of and principal promotor of international humanitarian law.

• National Commissions:National Commissions: Advisory bodies for the states in the adoption of nation al measures on IHL and efforts to promote and respect IHL (17 states)


IHL Rules: Treaty & CustomIHL Rules: Treaty & Custom

International International

Armed ConflictArmed Conflict

• protection of personsprotection of persons• protection of propertyprotection of property• limits methods of warfarelimits methods of warfare• limits means of warfarelimits means of warfare

Geneva Conventions Geneva Conventions (1949)(1949)

Additional Protocol I Additional Protocol I (1977)(1977)

Protects: Civilians / Wounded Protects: Civilians / Wounded

Combatants / Prisoners of WarCombatants / Prisoners of War

nonnon-International -International

Armed ConflictArmed Conflict

• protection of persons protection of persons • limits methods of warfarelimits methods of warfare• limits means of warfarelimits means of warfare

Common art. 3 Common art. 3 (1949)(1949)

Additional protocol II Additional protocol II (1977)(1977)

Protects: Civilians/Persons notProtects: Civilians/Persons not

no-longer engaged in hostilitiesno-longer engaged in hostilities

Contemporary Application of IHLContemporary Application of IHL

Application of IHLApplication of IHL

• Nature of Armed ConflictsNature of Armed Conflicts: Traditional Conflicts vs. Modern Conflicts.

• IHL ConceptsIHL Concepts: Concepts of armed conflict, combatants and prisoners of war have become increasingly difficult to define and characterize. CombatantsCombatants:: State and non-state / military and non-military / foreigners and nationals of targeted countries

• MethodsMethods: : Some acts and methods are principally aimed to harm civilian targets.

• TargetsTargets: : targets can also be local and/or international in nature.


OAS (IHL) ResolutionsOAS (IHL) ResolutionsCOMMITTEE ON JURIDICAL & POLITICAL AFFAIRSCOMMITTEE ON JURIDICAL & POLITICAL AFFAIRS

• AG/RES. 2293 (XXXVII O/07): AG/RES. 2293 (XXXVII O/07): Promotion of and Respect for International Humanitarian Law

• AG/RES. 2295 (XXXVII O/07): AG/RES. 2295 (XXXVII O/07): Persons who have Disappeared and Assistance to Members of their Families

• AG/RES. 2267 (XXXVII O/07): AG/RES. 2267 (XXXVII O/07): Right to the Truth

• AG/RES. 2271 (XXXVII O/07): AG/RES. 2271 (XXXVII O/07): Protecting Human Rights and Fundamental Freedoms while Countering Terrorism

• AG/RES. 2278 (XXXVII O/07): AG/RES. 2278 (XXXVII O/07): Study of the Rights and the Care of Persons under any form of Detention or Imprisonment

• AG/RES. 2279 (XXXVII O/07): AG/RES. 2279 (XXXVII O/07): Promotion of International Criminal Court

• AG/RES. 2296 (XXXVII O/07): AG/RES. 2296 (XXXVII O/07): Protection of Asylum Seekers and Refugees in the Americas

• AG/RES. 2277 (XXXVII O/07): AG/RES. 2277 (XXXVII O/07): Internally Displaced Persons


OAS (IHL) ResolutionsOAS (IHL) ResolutionsCAJP – CHS – GC CAJP – CHS – GC

• AG/RES. 2268 (XXXVII-O/07): Inter-American Convention On Transparency In Conventional Weapons Acquisitions

• AG/RES. 2272 (XXXVII-O/07): Support for the Work of the Inter-American Committee Against Terrorism

• AG/RES. 2283 (XXXVII-O/07): Study of the Rights and the Care of Persons Under Any Form of Detention or Imprisonment

• AG/RES. 2300 (XXXVII-O/07): Support for the Activities of the Inter-American Defense Board

• AG/RES. 2330 (XXXVII-O/07): Convention on the Prevention, Punishment, and Eradication of Violence Against Women

• AG/RES. 2297 (XXXVII-O/07): Addressing Illicit Trafficking In Small Arms and Light Weapons: Stockpile Management And Security

• AG/RES. 2269 (XXXVII-O/07): Americas as Antipersonnel-Land-Mine-Free Zone• AG/RES. 2261 (XXXVII-O/07): Action vs. Antipersonnel Mines in Ecuador & Peru• AG/RES. 2341 (XXXVII-O/07): Inter-American Convention against Illicit

Manufacturing Of And Trafficking In Firearms, Ammunition, Explosives

Res. 2293: Promotion/Respect for IHLRes. 2293: Promotion/Respect for IHL

Promotion and Respect of IHL in the AmericasPromotion and Respect of IHL in the Americas

• IHL ResolutionIHL Resolution: OAS bodies made implementation and enforcement of IHL Principles an important priority (10 years of resolution).

• InstrumentsInstruments: call States to ratify (if not party) to fundamental IHL treaties and conventions

• ComplianceCompliance:: Respect International legal norms and obligations in times of war (Geneva Conventions I-IV (1949) and Additional Protocols I-II (1977).

• Other InstrumentsOther Instruments: : Highlights / endorses IHL measures: ICC Rome Statute (1998), Convention against Anti-Personnel Mines (1997) and Convention on Chemical Weapons (1993),



• Promote IHL by urging Members States to consider taking the necessary steps of signing and ratifying instruments of International Humanitarian Law / promulgating domestic laws designed to bring these instruments into force.

• Promote coordinate between Permanent Council, General Secretariat and the International Committee of the Red Cross

• Organize annual meeting of the Committee on Juridical and Political Affairs on the promotion of and respect for international humanitarian law.

• Educate OAS Member States, political organs and general secretariat on topics of importance on International Humanitarian Law

• Provide valuable input for the drafting and negotiation of General Assembly resolutions on the promotion and protection of IHL in the Americas



InstrumentsInstruments

1954:1954: Hague Convention for Protection of Cultural Property in Event of Armed Conflict (1954 & 1999 Protocols)

1972: 1972: Biological Weapons Convention

1977: 1977: Additional Protocols I - II & 2005 Additional Protocol III

1980: 1980: Convention on Prohibition / Restrictions on Use of Certain Conventional Weapons (Excessively Injurious / Indiscriminate Effects) (Five Protocols)

1989: 1989: Convention on Rights Child / 2000 Protocol Children in Armed Conflicts

1993: 1993: Chemical Weapons Convention

1997: 1997: Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their Destruction

1997: 1997: Inter-American Convention against Illicit Manufacturing and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials (CIFTA)

1998: 1998: Rome Statute of the International Criminal Court

1999: 1999: Inter-American Conv Transparency in Conventional Weapons Acquisition

1994: 1994: Convention on the Safety of United Nations and Associated Personnel



Political Mandates

• Urge states / parties in armed conflict to honor IHL obligation

• Enact laws to protect (regulate use / prevent - punish misuse) of protection emblems

• Protect cultural property from effects of armed conflict

• Comply obligations recruitment of children in armed forces

• Determine / respect obligations in developing / acquiring new weapon or methods of warfare

• Consequences of cluster munitions

Technical Mandates

• Invite states to disseminate IHL among military and civilians

• Support work (create) national IHL committees / commissions

• Cooperation b/w OAS, States and ICRC

• Attend to the needs of victims of antipersonnel mines

• Request IAJC to drafts model laws on implementation of IHL

• Instruct CAJP to hold Special Session on IHL

• Instruct Gen/Sec to hold courses seminars


War CrimesWar CrimesProtection of PersonsProtection of Persons

States / CommissionsStates / Commissions• Geneva ConventionsGeneva Conventions: Require legislative measures for criminal sanctions that apply

against persons that have committeed, or sanctioned, grave infractions against the Geneva Conventions.

• Crimes/InfractionsCrimes/Infractions:: Intentional homicide, tortute/inhumane treatment, deliberate suffering, grave infractions against health, destruction/appropriation of property no justified by military necessities, intentional deprivatio of a persons right to legitimate and impartial trial, illegal deportatio/detention, taking of hostages, etc. (Conv. I art. 50, II art. 51,

III art. 130, IV art. 147)

• Penal SanctionsPenal Sanctions: Take legislative actions to determine the criminal sanctions appropriate against those persons that have committed, or commissioned, these mentioned crimes/infractions

• Coordination b/w IHL/ICCCoordination b/w IHL/ICC: : Necesidad de emprender una implementación coordinada entre los crímenes de guerra contenidos en el art.8 del Estatuto de Roma y los art. 50, 51, 130 y 147de los Convenios de Ginebra.n


War CrimesWar CrimesProtection of PersonsProtection of Persons

OASOAS

• Grave Violations of IHLGrave Violations of IHL: in cases of IHL violations that constitute crimes under international law, exhorts State obligations to investigate, trial, determine guil and punish (AG/RES 2293)

• Criminal Legislation on IHLCriminal Legislation on IHL: Requires States to adapt thie penal legislation to comply with their obligations under the Geneva COnventions and Aditional Protocol I: on the tipification of war crimes, universal jurisdiction and responsibility (id)

• International Criminal CourtInternational Criminal Court: : Call states to consider ratification or adhesion to the Rome Statute of the International Criminal Court

• Criminal Legislation on ICCCriminal Legislation on ICC: : Requests States party to the Rome Statute to make the changes necessary to their internal legislation for its full and effective implementation and requires that States cooperate with the ICC in order to end impunity of those responsible of war crimes and genocide (AG/RES 2279)


Missing PersonsMissing PersonsProtection of PersonsProtection of Persons

Definition / InstrumentsDefinition / Instruments• Missing PersonsMissing Persons: : tragedy of people unaccounted for as a result of

armed conflict or internal violence. Expressly prohibited by IHL.

• Enforced disappearanceEnforced disappearance: : abduction/deprivation of liberty by state authorities, followed by denial to disclose whereabouts/fate

• International conventionsInternational conventions: : Inter-American Convention on Forced Disappearance of Persons; UN Convention for the Protection of All Persons from Enforced Disappearance.

• SafeguardsSafeguards:: Prevent people from going missing in the first place; kept in official place; registered; movements registered; allowed to contact outside world; communicate with family and counsel; family right to information on detention and whereabouts.


Missing PersonsMissing PersonsProtection of PersonsProtection of Persons

Legal ObligationsLegal Obligations• Families have right to be informed of the fate of missing relatives:

Additional Protocol I, Art. 32.• Parties to a conflict must search for persons reported missing (by

adverse party); facilitate inquiries made by family members dispersed as result of conflict; help restore contact; bring together: Additional Protocol I, Art. 33.

• Parties to a conflict must encourage work of organizations engaged in this task, ICRC: Geneva Convention IV of 1949, Art. 26.

• Responsibilities of parties to a conflict concerning deceased persons; lists showing exact location and markings of the graves, together with particulars of the dead interred therein: Additional Protocol I, Art. 34.


AG/RES. 2295: Disappeared Persons AG/RES. 2295: Disappeared Persons and Assistance to their Familiesand Assistance to their Families

Political Mandates

• Urge parties to armed conflict to prevent disappearances

• Encourage states to adopt laws/regulations for official registries of detained persons

• Permit communications b/w detainees and their families

• Urge states to shed light on the fate of disappeared persons

• Urge states to punish those found guilty of violating IHL and international HR law

Technical Mandates

• Urge states to ratify conventions

• Encourage states to request support from international and civil society organizations

• Invite states to continue cooperation with ICRC and facilitate its work


Anti-TerrorismAnti-TerrorismProtection of PersonsProtection of Persons

Definition / InstrumentsDefinition / Instruments• TerrorismTerrorism: : Terrorism understood to mean attacks directed against

civilians / acts historically carried out by non-state actors.• State SponsoredState Sponsored: : Terrorist acts may be carried out (sponsored/

sanctioned) by State directly or indirectly, even when own police or military forces not involved.

• International conventionInternational convention: : Inter-American Conv against Terrorism • ApplicationApplication: : Acts of terrorism banned by IHL treaties and treaties

establishing international crimes, both international and non-international armed conflict (GC IV and AP I & II). Express prohibition on all acts aimed at spreading terror among civilian population. Art. 51 (2), Protocol I; Art. 13 (2) Protocol II.



Legal Obligations – IHL Proscribes:Legal Obligations – IHL Proscribes:

• Attacks on civilians and civilian objects: (Arts. 51 (2), and 52, PI; Art. 13, PII)

• Indiscriminate attacks: (Art. 51 (4) PI). Attacks on places of worship (Art. 53, PI; and Art. 16, PII).

• Attacks on works and installations containing dangerous forces: (Art. 56, PI; and Art. 15, PII).

• The taking of hostages: (Art. 75, PI; Art. 3 common to the four Conventions; and Art. 4., (2b) PII).

• Murder of persons not or no longer taking part in hostilities: (Art. 75, PI, common Art. 3 GC, Art. 4 (2a) PII).



IHL and TerrorismIHL and Terrorism

• IHL AppliesIHL Applies: International and non-international armed conflicts -- hostilities between government armed forces and organized armed groups (within a state).

• Domestic/HR/Criminal Law AppliesDomestic/HR/Criminal Law Applies: Armed violence outside an armed conflict or terrorist suspect not detained in connection with an armed conflict.

• Combatant/Enemy CombatantCombatant/Enemy Combatant:: Lawful Combatants cannot be prosecuted if they respect international humanitarian law – and entitled to prisoner of war status.

• DetaineesDetainees: : Lawful and unlawful combatants that are detained, may be interrogated and prosecuted for war crimes, but are entitled to humane treatment by enemy.

• Terrorists vs. SoldiersTerrorists vs. Soldiers: : Protocol I protects civilians by limiting methods and means of warfare, including unequivocal prohibition of terrorism: 1) attacks against civilians or civilian objects and 2) threats of violence to spread terror among civilians.



Inter-American Committee against TerrorismInter-American Committee against Terrorism

• CICTE:CICTE:OAS organism for protecting member states from terrorism via information exchange b/w national policy-makers.

• Mar del Plata Commitments:Mar del Plata Commitments:Exchange information / draft counterterrorism legislation / promote adherence to international counterterrorism conventions / enhance border cooperation and security / develop training and crisis management.

• CICTE Programs:CICTE Programs:Cyber Security / Port Security / Airport Security / Legislation against terrorism / Customs and Border Protection / Terrorism Financing / Terrorism Policy.


AG/RES. 2271: Protect HRs & Fund AG/RES. 2271: Protect HRs & Fund Freedoms while countering TerrorismFreedoms while countering Terrorism

Political Mandates

• Fight against terrorism waged w/ full respect for int’l law (including due process, IHL, Human Rights, and Refugee Law)

• Ratify/accede/implement IAC against Terrorism and American Convention on Human Rights

• Respect legal rights of all persons deprived of their liberty

• Uphold dignity of individuals, fundamental freedoms, democratic practices, rule of law

Technical Mandates

• Dialogue: CICTE, IACHR, OAS areas to strengthen collaboration on protecting HRs & fundamental freedoms countering terrorism.

• IACHR promote respect for / defense HRs / facilitate efforts to comply with int’l obligations for anti-terrorism measures

• Request PC consider drafting recommendations in consultations with CICTE / States/ IACHR to protect fund freedoms and Human Rights


Arms Availability/Small WeaponsArms Availability/Small WeaponsProtection of Persons / PropertyProtection of Persons / Property

• ProblemProblem:: Arms and ammunition are major factors in facilitating violations against civilians during and after armed conflict.

• Proliferation of ArmsProliferation of Arms:: Availability during armed conflict and post-conflict situations around the world.

• Inadequate ControlsInadequate Controls: : Availability and frequent use of weapons in violation of humanitarian law / civilians at increased risk of abuse during and after conflicts / undermines legal norms designed to protect civilians.

• Post-Conflict:Post-Conflict: Ensuring IHL norms becomes difficult when weapons are widely dispersed and easily accessible / humanitarian agencies are subject to attack and forced to suspend operations / end of armed conflict seldom means end to violence if arms and ammunition remain at large.

• WeaponsWeapons:: Assault rifles, machine guns, grenades, mortar bombs (small arms) / most commonly used in armed conflicts / availability subject to few international rules.


Arms Availability/Small Weapons Arms Availability/Small Weapons Protection of Persons / PropertyProtection of Persons / Property

OAS / Member StatesOAS / Member States• Legislative MeasuresLegislative Measures:: Call to states to adopt legislative measures against the

grave humanitarian consequenses of the availability of uncontrolled arms / legislation directed against the manufacturing and illitcit traffic of arms

• Anti-personal MinesAnti-personal Mines:: Programa para la destrucción de minas y asistencia medica y profesional a las víctimas.

• Cluster MunitionsCluster Munitions:: recognizes the humanitarian consequences of the use of cluster munitions and invites the States to participate in on-going discussion in the pertinent forums (Oslo Process on Cluster Munitions) on how to attend these consequenses.

• ConventionsConventions:: Universal Ratifications: Convención I-A contra Fabricación y Tráfico Ilícito de Armas (CIFTA); C Transparencia en Adquisiciones de Armas Convencionales; C Prohibición de Empleo, Almacen, Producción y Transferencia de Minas Antipersonal; Cs Armas Biológicas y Químicas; C Prohibiciones de empleo Ciertas Armas Convencionales Excesivamente Nocivas/Efectos Indis-criminados y sus cinco Protocolos


Arms Availability/Small WeaponsArms Availability/Small WeaponsProtection of Persons / PropertyProtection of Persons / Property

• Committee on Hemispheric Security:Committee on Hemispheric Security:Provides framework for judicial cooperation in requesting service of process, summonses or subpoenas abroad.

• General Assembly:General Assembly:Study I.D. trafficking-brokering trends / support UN Program to Prevent, Combat & Eradicate Illicit Trade in Small Arms / follow-up state reports on implementation of national/regional/global activities for UN Program

• CIFTA Convention:CIFTA Convention:Convention Against Illicit Mfg &Trafficking In Firearms, Ammo, Explosives &

Related Materials 26 states Parties/National Authorities/Mutual Assistance/Model Legislation

• CICAD Inter-American Drug Abuse Control Commission:CICAD Inter-American Drug Abuse Control Commission:Model Regs to Control Int’l Movement of Firearms/ Model Regs to Control Brokers

/ Training Programs.


Mine Clearance (Demining)Mine Clearance (Demining)Protection of PersonsProtection of Persons

Office of Humanitarian Mine Action / CHSOffice of Humanitarian Mine Action / CHS

• Humanitarian DeminingHumanitarian Demining: mine-field surveying, mapping, marking, and clearance.

• Mine EducationMine Education:: OAS supports mine awareness programs supported to reduce the risk of death and injury by promoting safe behavior among affected communities.

• Victim AssistanceVictim Assistance:: Support survivors in OAS member states and provide transportation, lodging, meals, prostheses, therapy, and medication.

• Stockpile DestructionStockpile Destruction:: One million landmines stockpiled by OAS member states have been destroyed since 1999 with assistance from the program.

• Ottawa ConventionOttawa Convention:: The Convention provides for a total ban on the land mines and provides demining requirements for numerous states parities. The OAS has called on its member states to ratify and comply with the Convention.


Mine Clearance (Demining)Mine Clearance (Demining)Protection of PersonsProtection of Persons

• AG/RES. 2269 (XXXVII-O/07)AG/RES. 2269 (XXXVII-O/07)::THE AMERICAS AS AN ANTIPERSONNEL-LAND-MINE-FREE ZONE

rid America of landmines and destroy stockpiles / Central America mine-free by 2008 / states cooperate in mine action as a national and regional priority / collaborate with the OAS Mine Action Team / Guatemala, El Salvador, Chile, Colombia, Ecuador, Nicaragua, and Peru / condemn, under IHL norms, use, stockpiling, production, and transfer of antipersonnel mines by non-state actors / support of 33 member states of Ottawa Convention / urge member states which have not yet done so to ratify or consider acceding to the Ottawa Convention

• AG/RES. 2261 (XXXVII-O/07)AG/RES. 2261 (XXXVII-O/07) :: SUPPORT FOR ACTION AGAINST ANTIPERSONNEL MINES IN ECUADOR AND PERU

land mines in border b/w Ecuador / Peru serious threat to civilian populations & economic development / progress made in mine-clearing, the destruction of stockpiles, and measures to enhance transparency, and the special importance of humanitarian demining / fulfills commitments under Ottawa Convention


Detainees/Prison PoliciesDetainees/Prison PoliciesProtection of PersonsProtection of Persons

Types of DetaineesTypes of DetaineesPrisoners of WarPrisoners of War:: Geneva Convention relative to the Treatment of Prisoners of War (1949): POW is a captured combatant (i.e. member of armed forces) in an international armed conflict (individual enjoying equivalent legal status). In any doubt, person taken part in hostilities is presumed POW (Add Protocol I 1977)

War on TerrorWar on Terror:: Armed Conflicts vs. War on Terror / Clear and Appropriate Legal Framework / Procedural Safeguards / Persons cannot be detained and interrogated outside of an appropriate legal framework Detainees outside armed conflict have rights afforded by int’l human rights law & domestic law.

Divergent PositionsDivergent Positions: : Two positions concerning detainees on war on terror: 1) criminal suspects handled by local law and int’l standards; 2) prisoners of war handled by IHL law and standards.


Detainees/Prison PoliciesDetainees/Prison PoliciesProtection of PersonsProtection of Persons

Ministers of Justice: REMJAMinisters of Justice: REMJA

• REMJA IVREMJA IV: : Recommended proposals for the protection of the fundamental rights and freedoms of detained persons in the Americas

• REMJA-VREMJA-V: : Recommended modernization of prison infrastructure, functions, standards and the review of penitentiary policies

• Official MeetingsOfficial Meetings:: Held meetings of Officials Responsible for Penitentiary and Prison Policies of OAS Member States

• Follow-upFollow-up:: “Study of the Rights and the Care of Persons under Any Form of Detention or Imprisonment”


Human Rights and IHLHuman Rights and IHL

Int’l Humanitarian LawInt’l Humanitarian Law

• Protects life/health/dignity of individuals

• Duty falls on States• Protection applies to situations

of armed conflict• Permit no derogations, armed

conflict is a pub emergency• Humanitarian law tailored for

war • Protect people who don’t / no

longer take part in hostilities

Human Rights LawHuman Rights Law

• Protects life/health/dignity of individuals

• Duty Falls on States• Protection applies at all times

(war and peace) • Tailored for peacetime to

protect everyone • Treaties can permit derogation

of rights in public emergencies • Protect persons primarily from

their own governments


IACHR / IA-COURTIACHR / IA-COURT

Inter-American Commission and CourtInter-American Commission and Court: : Apply basic principles (Articles 1 (1) and 2 of American Convention) to prohibiting State Parties from violating protected rights and freedoms; require States to take measures necessary to ensure individuals effectively enjoy those rights and freedoms / held that right to fair trial and judicial protection (Articles 8 and 25) entail right of victims to the justice system of the state concerned.

• International Humanitarian LawInternational Humanitarian Law:: Court and Commission held that states must investigate, prosecute and punish persons who commit or order the commission of gross violations of both human rights or humanitarian law. (Velásquez Rodríguez Case, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988).

• Precautionary MeasuresPrecautionary Measures:: Precautionary measures adopted by the Commission (Art. 25 Rules of Procedure) form part of the domestic legal order / Country is required to comply with the measures as a function of its international obligations to respect and protect fundamental human rights. Also provided precautionary measures for Guantanamo even thought U.S. not party to convention.


IHL and GenderIHL and GenderProtection of PersonsProtection of Persons

Inter-American Commission on WomenInter-American Commission on Women

International Humanitarian Law and Gender CrimesInternational Humanitarian Law and Gender Crimes

• Sex and gender crimes are exceedingly commonplace during periods of international and internal armed conflict

• Crimes committed both opportunistically and purposefully, randomly and calculatedly, and by persons in control or those out of control

• Sexual violence is committed by military personnel and civilians alike on all sides of armed conflict

• Once considered a by-product of war, it is now recognized that women and girls are regularly and intentionally targeted for abuse

• Rarely are perpetrators of sexual violence held accountable for their crimes.


Inter-American Commission on Inter-American Commission on WomenWomen

Inter-American Program for Promotion of Inter-American Program for Promotion of Women’s Human Rights and Gender EqualityWomen’s Human Rights and Gender Equality

Follow-up to the 2001 Summit of the Americas

Implementation of the CIM Strategic Plan of Action - Areas for priority action

Human Rights and the Elimination of Violence against Women


Military Training and FunctionsMilitary Training and Functions

Inter-American Defense Board and CollegeInter-American Defense Board and College

• StructureStructure: : The Inter-American Defense Board is an OAS organ of nationally appointed defense officials

• FunctionFunction:: Develop collaborative approaches on common defense and security issues.

• TrainingTraining:: IADB maintains the Inter-American Defense College to offer training to senior military and government officials covers various military & security issues.

• DeminingDemining:: IADB coordinates the technical assistance through international teams of supervisors and monitors who work closely with the OAS and the demining units of affected countries.


Other OAS AreasOther OAS Areas

• Legal Cooperation Legal Cooperation • Mutual Assistance and ExtraditionMutual Assistance and Extradition• Democracy and GovernabilityDemocracy and Governability• Secretary General’s OfficeSecretary General’s Office• Assistant Secretary General’s OfficeAssistant Secretary General’s Office• Access to Information Access to Information • CorruptionCorruption• Inter-American Children’s InstituteInter-American Children’s Institute• Treaties and AgreementsTreaties and Agreements


Cooperation with ICRCCooperation with ICRC

Promote the Respect and Education of IHLPromote the Respect and Education of IHL

• EducationEducation: : The GA promotes cooperation between ICRC and General Secretariat (Office of International Law / Department of International Legal Affairs) to organize governmental conferences / courses / seminars

• DialogueDialogue:: General Assembly instructs the Permanent Council to continue, with support from the Office of International Law and in cooperation with the ICRC, to organize special meetings on topics of current interest in international humanitarian law.

• DisseminationDissemination:: GA mandates the dissemination of IHL / related inter-American conventions / and OAS – ICRC joint programs and webpage: http://www.oas.org/dil/international_humanitarian_law.htm


http://www.oas.org/dil/international_humanitarian_law.htm

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