European Union Guidelines on promoting compliance with international humanitarian law (IHL)
Date: 2005-12-23
Institutions: Council of the European Union
Subjects: international human rights law, the EU's international role

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European Union Guidelines on promoting compliance with international humanitarian law (IHL)

(2005/C 327/04)

I. PURPOSE

1. The purpose of these Guidelines is to set out operational
tools for the European Union and its institutions and
bodies to promote compliance with international humani-
tarian law (IHL). They underline the European Union's
commitment to promote such compliance in a visible and
consistent manner. The Guidelines are addressed to all
those taking action within the framework of the European
Union to the extent that the matters raised fall within their
areas of responsibility and competence. They are comple-
mentary to Guidelines and other Common Positions
already adopted within the EU in relation to matters such
as human rights, torture and the protection of civilians (1).

2. These Guidelines are in line with the commitment of the
EU and its Member States to IHL, and aim to address
compliance with IHL by third States, and, as appropriate,
non-State actors operating in third States. Whilst the same
commitment extends to measures taken by the EU and its
Member States to ensure compliance with IHL in their
own conduct,
such
measures are not covered by these Guidelines (2).

including by their own forces,

II. INTERNATIONAL HUMANITARIAN LAW (IHL)

Introduction

3. The European Union is founded on the principles of
liberty, democracy, respect for human rights and funda-
mental freedoms and the rule of law. This includes the
goal of promoting compliance with IHL.

4. International Humanitarian Law (IHL) — also known as
the Law of Armed Conflict or the Law of War — is
intended to alleviate the effects of armed conflict by
protecting those not, or no longer taking part in conflict
and by regulating the means and methods of warfare.

5. States are obliged to comply with the rules of IHL to
which they are bound by treaty or which form part of
law. They may also apply to
customary international

(1) See EU Guidelines on Human Rights Dialogues (Economic and
Financial Affairs Council of 13 December 2001); Guidelines for EU
Policy towards Third Countries on Torture and other Cruel,
Inhuman or Degrading Punishment or Treatment (General Affairs
Council of 9 April 2001); EU Guidelines on Children and Armed
Conflict (General Affairs Council of 8 December 2003); and Council
Common Position 2003/444/CFSP of 16 June 2003 on the ICC
(Official Journal L 150 of 18.6.2003).

(2) All EU Member States are Parties to the Geneva Conventions and
their Additional Protocols and thus under the obligation to abide by
their rules.

non-State actors. Such compliance is a matter of interna-
tional concern. In addition, the suffering and destruction
caused by violations of IHL render post-conflict settlements
more difficult. There is therefore a political, as well as a
humanitarian interest, in improving compliance with IHL
throughout the world.

Evolution and Sources of IHL

6. The rules of IHL have evolved as a result of balancing mili-
tary necessity and humanitarian concerns. IHL comprises
rules that seek to protect persons who are not, or are no
longer, taking direct part in hostilities — such as civilians,
prisoners of war and other detainees, and the injured and
sick — as well as to restrict the means and methods of
warfare — including tactics and weaponry — in order to
avoid unnecessary suffering and destruction.

7. As with other parts of international law, IHL has two main
sources: international conventions (treaties) and customary
international law. Customary international law is formed
by the practice of States, which they accept as binding
upon them.
leading
authors are subsidiary means for determining the law.

Judicial decisions and writings of

8. The principal IHL Conventions are listed in the Annex to
these Guidelines. The most important are the 1907 Hague
Regulations, the four Geneva Conventions from 1949 and
their 1977 Additional Protocols. The Hague Regulation
and most of the provisions of the Geneva Conventions and
the 1977 Additional Protocols are generally recognised as
customary law.

Scope of application

9. IHL is applicable to any armed conflicts, both international
and non-international and irrespective of the origin of the
conflict. It also applies to situations of occupation arising
from an armed conflict. Different legal regimes apply to
international armed conflicts, which are between States,
and non-international (or internal) armed conflicts, which
take place within a State.

10. Whether situation amounts to an armed conflict and
whether it is an international or non-international armed
conflict are mixed questions of fact and law, the answers
to which depend on a range of factors. Appropriate legal
advice, together with sufficient information about the par-
ticular context, should always be sought in determining
whether a situation amounts to an armed conflict, and
thus whether international humanitarian law is applicable.

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11. The treaty provisions on international armed conflicts are
more detailed and extensive. Non-international armed
conflicts are subject to the provisions in Article 3 common
to the Geneva Conventions and, where the State concerned
in the 1977 Additional Protocol II. Rules of
is a Party,
customary international
law apply to both international
and internal armed conflicts but again there are differences
between the two regimes.

International Human Rights Law and IHL

12. It is important to distinguish between international human
rights law and IHL. They are distinct bodies of law and,
while both are principally aimed at protecting individuals,
there are important differences between them. In particular
IHL is applicable in time of armed conflict and occupation.
Conversely, human rights law is applicable to everyone
within the jurisdiction of the State concerned in time of
peace as well as in time of armed conflict. Thus while
distinct, the two sets of rules may both be applicable to a
particular situation and it is therefore sometimes necessary
to consider the relationship between them. However these
Guidelines do not deal with human rights law.

Individual responsibility

13. Certain serious violations of IHL are defined as war crimes.
War crimes may occur in the same circumstances as geno-
cide and crimes against humanity but the latter, unlike war
linked to the existence of an armed
crimes, are not
conflict.

14. Individuals bear personal responsibility for war crimes.
States must, in accordance with their national law, ensure
that alleged perpetrators are brought before their own
domestic courts or handed over for trial by the courts of
another State or by an international criminal tribunal, such
as the International Criminal Court (1).

III. OPERATIONAL GUIDELINES

responsible EU bodies, including appropriate Council
Working Groups, should monitor situations within
their areas of responsibility where IHL may be applic-
able, drawing on advice, as necessary, regarding IHL
and its applicability. Where appropriate they should
identify and recommend action to promote compliance
with IHL in accordance with these Guidelines. Consul-
tations and exchange of information with knowledge-
including the ICRC and other relevant
able actors,
organisations such as the UN and regional organisa-
tions, should be considered when appropriate. Consid-
eration should also be given, where appropriate, to
drawing on the services of the International Humani-
tarian Fact-Finding Commission (IHFFC) established
under Article 90 of the Additional Protocol I to the
Geneva Conventions of 1949, which can assist
in
promoting respect
for IHL through its fact-finding
capacity and its good offices function.

(b) Whenever relevant, EU Heads of Mission, and appro-
priate EU representatives, including Heads of EU Civi-
lian Operations, Commanders of EU Military Opera-
tions and EU Special Representatives, should include
an assessment of the IHL situation in their reports
about a given State or conflict. Special attention should
indicates that serious
be given to information that
violations of IHL may have been committed. Where
feasible, such reports should also include an analysis
and suggestions of possible measures to be taken by
the EU.

(c) Background papers for EU meetings should include,
where appropriate, an analysis on the applicability of
IHL and Member States participating in such meetings
should also ensure that they are able to draw on advice
as necessary on IHL issues arising. In a situation where
an armed conflict may be at hand,
the Council
Working Group on International Law (COJUR) should
be informed along with other
relevant Working
Groups. If appropriate and feasible, COJUR could be
tasked to make suggestions of future EU action to rele-
vant EU bodies.

A. REPORTING, ASSESSMENT AND RECOMMENDATIONS FOR

ACTION

B. MEANS OF ACTION AT THE DISPOSAL OF THE EU IN ITS RELA-

TIONS WITH THIRD COUNTRIES

15. Action under this heading includes:

(a) In order to enable effective action, situations where
IHL may apply must be identified without delay. The

(1) See the Union's Common Position on the ICC (2003/444/CFSP) and
the EU's Action Plan on the ICC. See further Decision of 13 June
2002 (2002/494/JHA) by which the Council set up a European
network of contact points in respect of persons responsible for
genocide, crimes against humanity and war crimes; the Framework
Decision (2002/584/JHA) on the European arrest warrant and the
procedures between Member States; the Decision of 8 May 2003
(2003/335/JHA) concerning the investigation and prosecution of
genocide, crimes against humanity and war crimes.

16. The EU has a variety of means of action at its disposal.

These include, but are not limited to, the following:

(a) Political dialogue: Where relevant the issue of compli-
ance with IHL should be brought up in dialogues with
third States. This is particularly important
in the
context of on-going armed conflicts where there have
been reports of widespread IHL violations. However,

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the EU should also, in peace-time, call upon States that
have not yet done so to adhere to, and fully imple-
ment,
important IHL instruments, such as the 1977
Additional Protocols and the ICC Statute. Full imple-
mentation includes enactment of any necessary imple-
menting legislation and training of relevant personnel
in IHL.

(b) General public statements:

In public statements on
issues related to IHL, the EU should, whenever appro-
priate, emphasise the need to ensure compliance with
IHL.

(c) Demarches and/or public statements about specific
conflicts: When violations of IHL are reported the EU
should consider making demarches and issuing public
statements, as appropriate, condemning such acts and
demanding that
their obligations
under IHL and undertake effective measures to prevent
further violations.

the parties

fulfil

(d) Restrictive measures/sanctions: The use of restrictive
measures (sanctions) may be an effective means of
promoting compliance with IHL. Such measures
should therefore be considered against State and non-
state parties to a conflict, as well as individuals, when
they are appropriate and in accordance with interna-
tional law.

(e) Cooperation with other international bodies: Where
appropriate, the EU should cooperate with the UN and
relevant regional organisations for the promotion of
compliance with IHL. EU Member States should also,
whenever
as
act
members in other organisations, including the United
Nations. The International Committee of the Red Cross
(ICRC) has a treaty-based, recognised and long-estab-
lished role as a neutral,
independent humanitarian
organisation, in promoting compliance with IHL.

appropriate,

that goal

towards

(f) Crisis-management operations: The

importance of
preventing and suppressing violations of IHL by third
parties should be considered, where appropriate, in the
drafting of mandates of EU crisis-management opera-
tions. In appropriate cases, this may include collecting
information which may be of use for the ICC (1) or in
other investigations of war crimes.

(g) Individual responsibility: While, in post-conflict situa-
tions it is sometimes difficult to balance the overall
aim of establishing peace and the need to combat
impunity,
the European Union should ensure that
there is no impunity for war crimes. To have a deter-
rent effect during an armed conflict the prosecution of
war crimes must be visible, and should,
if possible,
take place in the State were the violations have
occurred. The EU should therefore encourage third
legislation to punish
States to enact national penal
violations of IHL. The EU's support of the ICC and
measures to prosecute war criminals should also be
seen in this context.

(h) Training: Training in IHL is necessary to ensure
compliance with IHL in time of armed conflict.
Training and education must also be undertaken in
peacetime. This applies
to the whole population,
although special attention should be given to relevant
groups such as law enforcement officials. Additional
obligations apply to the training of military personnel.
The EU should consider providing or funding training
and education in IHL in third countries including
within the
to
promote the rule of law.

framework of wider programmes

(i) Export of arms: The European Code of Conduct on
Arms Export (2) provides that an importing country's
compliance with IHL should be considered before
licences to export to that country are granted.

(1) See the Agreement on Cooperation and Assistance between the

European Union and the International Criminal Court.

(2) Adopted on 8 June 1998, doc 8675/2/98 REV 2.

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PRINCIPAL LEGAL INSTRUMENTS ON INTERNATIONAL HUMANITARIAN LAW

ANNEX

— 1907 Hague Convention IV Respecting the Laws and Customs of War

— Annex to the Convention: Regulations Respecting the Laws and Customs of War

— 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological

Methods of Warfare

— 1949 Geneva Convention I for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the

Field

— 1949 Geneva Convention II for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked

Members of Armed Forces at Sea

— 1949 Geneva Convention III Relative to the Treatment of Prisoners of War

— 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War

— 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of

Victims of International Armed Conflicts

— 1977 Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection

of Victims of Non-International Armed Conflicts

— 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

— Regulations for the Execution of Convention for the Protection of Cultural Property in the Event of Armed Conflict

— 1954 First Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict

— 1999 Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict

— 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological)

and Toxin Weapons and on their Destruction

— 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be

Deemed to be Excessively Injurious or to Have Indiscriminate Effects

— 1980 Protocol I on Non-Detectable Fragments

— 1980 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices

— 1996 Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices

— 1980 Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons

— 1995 Protocol IV on Blinding Laser Weapons

— 2003 Protocol V on Explosive Remnants of War

— 1993 Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons

and on their Destruction

— 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel

Mines and on their Destruction

— 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Inter-

national Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

— 1994 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and
Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan
Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States,
between 1 January 1994 and 31 December 1994

— 1998 Rome Statute of the International Criminal Court