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Biannual update on national implementation of international humanitarian law January–June 2017
Published online by Cambridge University Press: 14 February 2019
The biannual update on national legislation and case law is an important tool for promoting the exchange of information on national measures for the implementation of international humanitarian law (IHL).
This selection of national legislation and case law has been prepared by Silvia Scozia, Legal Attaché in the ICRC Advisory Service on International Humanitarian Law, with the collaboration of regional legal advisers.
1 In order to assist States, the ICRC Advisory Service proposes a multiplicity of tools, including thematic fact sheets, ratification kits, model laws and checklists, as well as reports from expert meetings, all available at: www.icrc.org/en/war-and-law/ihl-domestic-law (all internet references were accessed in January 2019).
2 For information on national implementation measures and case law, please visit the ICRC National Implementation Database, available at: www.icrc.org/ihl-nat.
3 To view the full list of IHL-related treaties, visit the ICRC Treaties, States Parties and Commentaries Database, available at: www.icrc.org/ihl.
4 See the ICRC National Implementation Database, available at: www.icrc.org/ihl-nat.
5 Available at: https://tinyurl.com/ycnqqoln.
6 Available at: https://tinyurl.com/ybtvs76b.
7 Available at: https://tinyurl.com/ycrvscxd.
8 As defined by Article 25, Law 17.012 containing the Code of Military Justice.
9 Ibid., as defined by Article 26.
10 The martial court is competent in criminal matters, while the military tribunal has jurisdiction in correctional matters. It should be noted that the Code of Criminal Procedure of 2010 applies in proceedings on correctional matters before the military tribunal, and in criminal proceedings before the martial court. Further differences between the two can be seen in the appeals procedure: for correctional matters (competence of the military tribunal), the appeal is made before the correctional chamber of the Court of Appeal, while for criminal matters (competence of the martial court), the appeal is made before the criminal chamber of the Court of Cassation. The Code of Criminal Procedure of 2010 is available at: https://tinyurl.com/y9h3u4uu.
11 Available at: https://tinyurl.com/yb75vrbv.
12 Available at: https://tinyurl.com/yaeew3qu.
13 Available at: https://tinyurl.com/ycxy6p96.
14 Available at: https://tinyurl.com/yctnejz8.
15 Available at: https://tinyurl.com/y8msj9u7.
16 Available at: https://tinyurl.com/ycwrtefq.
17 Available at: https://tinyurl.com/yaqxm5ee.
18 Available at: https://tinyurl.com/ybup8u7c.
19 Available at: https://tinyurl.com/y8fsjgjz.
20 See also Supreme Court of Chile, Wenzel Salas, Hugo and Others, 21 March 2017. First of all, the Court recalled that the jurisprudence – on the basis of the recognition of the international commitments of Chile enshrined in its Constitution – highlighted that human rights treaties to which Chile is a party take priority over national law. On the premises of the continuative nature of the crime of “permanent kidnapping” and its characterization as a crime against humanity, the Court ruled the inapplicability of statutes of limitations and condemned thirty-three former State agents for the illegal deprivation of liberty of five members of the Manuel Rodriguez Patriotic Front in 1987. The Court rejected the applicability of the defence of superior orders, on the basis that the act ordered could not be considered as belonging to the category of “official acts”, as required by the Code of Military Justice of Chile. Furthermore, with regard to some of the accused, the Court rejected the defence as it considered that they knew that the order was unlawful.
21 Available at: https://tinyurl.com/yaouqkkp.
22 See also Blekinge (Appeals) Court of Sweden, Judgment No. B 3187-16, 11 April 2017. The Court confirmed the first-instance judgment of 6 December 2016 against a former Iraqi soldier, but increased the penalty from six to nine months’ imprisonment. The defendant was found guilty of inhuman treatment against the dead for having posed for a picture with a decapitated head on a plate next to other bodies with severed heads, and having posted the picture online.
23 Available at: https://tinyurl.com/ycg6owxy.
24 Available at: https://tinyurl.com/ybpy78gn.
25 Available at: https://tinyurl.com/yd2dnnop.
26 The official name of Swaziland was changed to the Kingdom of Eswatini on 19 April 2018.
27 Arabic Regional Course, Beirut, Lebanon, February 2017; Arabic Regional Course, Tunis, Tunisia, April 2017; Third Workshop on IHL and Islamic Law, Nairobi, Kenya, May 2017.