Practice Relating to Rule 139. Respect for International Humanitarian Law
Spain’s LOAC Manual (1996) notes: “Each State undertakes to respect and to ensure respect for the Law of War in all circumstances.”
Spain’s LOAC Manual (2007) notes: “States are under an obligation … to respect and ensure respect [for the law of armed conflict] in all circumstances.”
The manual also states:
In fulfilling their international obligations, the States Parties transfer a significant part of their responsibility to respect and ensure respect for the laws and customs of law to their armed forces. It is the duty of the armed forces, acting through their commanders-in-chief, to undertake the detailed application of the law of armed conflict.
Spain’s Royal Decree Establishing the Spanish IHL Commission (2007) states that this Commission is to:
Ensure the effective application of and respect for norms of international humanitarian law through the elaboration of proposals to the Government regarding draft legislation or concerning the adoption of regulations or other measures within the domestic legal framework or at the international level.
Spain’s Law on the Military Career (2007) states:
The following essential rules define military conduct:
First. [He or she] shall make his/her conduct comply … with the international law applicable to armed conflicts.
Spain’s Royal Ordinances for the Armed Forces (2009) states that members of the armed forces “[m]ust adjust their conduct to the respect … of international law applicable in armed conflicts.”
The Ordinances also states in the article on duties with regard to international humanitarian law:
Members of the armed forces must have knowledge of and … apply in the conduct of any armed conflict or military operation, the international conventions ratified by Spain relating to alleviating the plight of the wounded, sick and shipwrecked [members] of the armed forces, to the treatment of prisoners and the protection of civilians, as well as those concerning the protection of cultural property and the prohibition or restriction of the use of certain weapons.
Spain’s Law on the Rights and Duties of Members of the Armed Forces (2011) states:
Article 2. Scope of application
1. This law applies to all members of the Armed Forces who acquire the status of military personnel in accordance with Law 39/2007, of 19 November, on Military Career. Accordingly, it applies to official members of the armed forces, except for those persons in administrative roles whose status as military personnel is suspended and students undergoing military training.
2. This status applies to members of the reserves and aspirants when they are incorporated into the armed forces …
Article 6. Rules of conduct of military personnel
1. The essential rules governing the conduct of military personnel are the following:
To act in accordance with respect for the person, the common good, and international law applicable during armed conflict.
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
The Royal Ordinances for the Armed Forces, adopted by Royal Decree No. 96/2009 of 6 February 2009, a compendium of rules that not only regulate military service but also comprise an ethical code governing the conduct of members of the armed forces, were a qualitative leap forward inasmuch as they introduced ethics, and, in particular, international humanitarian law, into military operations. An entire chapter of this code of ethics for all the armed forces is devoted to ethics in operations. That chapter, chapter VI, sets out the obligation to become familiar with … and apply the content of the international conventions ratified by Spain relative to the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces, to the treatment of prisoners of war and to the protection of civilian persons, as well as those relative to the protection of cultural property and to prohibitions or restrictions on the use of certain weapons.
In its report, Spain further stated:
Spain has applied the Additional Protocols relating to the protection of victims of armed conflicts and taken measures to strengthen the existing body of international humanitarian law, as follows:
The Basic Act on National Defence, the Act on the Military Career and the Royal Ordinances for the Armed Forces comprise a compendium of the ethical principles and rules of conduct that serves as guidelines for all members of the Spanish armed forces.
This body of regulations incorporating the rules of conduct established in the international conventions ratified by Spain and the principles of international humanitarian law is comprehensive and completely up to date, as the relevant implementing legislation – namely, Basic Act No. 5/2005 on National Defence (17 November 2005); Act No. 39/2007 on the Military Career (19 November 2007); and Royal Decree No. 96/2009: “Royal Ordinances for the Armed Forces” (6 February 2009) – was adopted recently.
It is highly significant that the Royal Ordinances for the Armed Forces give precedence to international humanitarian law. Article 11 of the Preliminary Title provides that members of the armed forces “shall conduct themselves in a manner that guarantees respect for individuals, the common good and international law applicable in armed conflicts”.