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Introductory Course on International Humanitarian Law IHL in the Inter-American System. John M. Wilson OAS – Office of International Law. Organization of American States. Organization of American States . International Humanitarian Law

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Introductory Course on International Humanitarian LawIHL in the Inter-American System

John M. Wilson

OAS – Office of International Law

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Organization of American States

Organization of American States

International Humanitarian Law

This module will cover the way OAS organs, agencies, and entities apply (and should apply) IHL in their respective areas and the impact of these efforts in the region

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Organization of American States

OAS Role in IHL

OAS plays important Role in IHL in the Americas

  • Terrorism

  • Mine Clearance (Demining)

  • Arms Availability/Small Weapons

  • Detainees/Prison Policies

  • Human Rights and IHL

  • IHL and Gender

  • Military Training and Functions

  • OAS General Assembly

  • Cooperation with ICRC

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Organization of American States


IHL and Terrorism

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

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

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

  • Detainees: 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. 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.

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Organization of American States


Inter-American Committee against Terrorism

  • CICTE:

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

  • 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:

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

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Organization of American States

Mine Clearance (Demining)

Office of Humanitarian Mine Action / CHS

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

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

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

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

  • Ottawa 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.

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Organization of American States

Arms Availability/Small Weapons

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

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

  • Inadequate 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: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.

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

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Organization of American States

Arms Availability/Small Weapons

  • Committee on Hemispheric Security:

    Provides framework for judicial cooperation in requesting service of process, summonses or subpoenas abroad.

  • 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:

    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:

    Model Regs to Control Int’l Movement of Firearms/ Model Regs to Control Brokers / Training Programs.

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Organization of American States

Detainees/Prison Policies

Types of Detainees

Prisoners 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 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 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.

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Organization of American States

Detainees/Prison Policies

Ministers of Justice: REMJA

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

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

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

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

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Int’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 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

Organization of American States

Human Rights and IHL

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Organization of American States


Inter-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 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 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.

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Organization of American States

IHL and Gender

Inter-American Commission on Women

International 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.

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Organization of American States

Inter-American Commission on Women

Inter-American Program for Promotion of Women’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

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Organization of American States

Military Training and Functions

Inter-American Defense Board and College

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

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

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

  • Demining: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.

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Organization of American States

OAS General Assembly

Promotion of and Respect for International Humanitarian Law

  • 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

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Organization of American States

Other OAS Areas

  • Legal Cooperation

  • Mutual Assistance and Extradition

  • Democracy and Governability

  • Secretary General’s Office

  • Assistant Secretary General’s Office

  • Access to Information

  • Corruption

  • Inter-American Children’s Institute

  • Treaties and Agreements

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Organization of American States

Cooperation with ICRC

Promote the Respect and Education of IHL

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

  • Dialogue: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.

  • Dissemination: GA mandates the dissemination of IHL / related inter-American conventions / and OAS – ICRC joint programs and webpage: