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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
Protection of the civilian population
[p.613] Article 51
-- Protection of the civilian population
[p.615] General remarks
1923 Article 51
is one of the most important articles in the Protocol. It explicitly confirms the customary rule that innocent civilians must be kept outside hostilities as far as possible and enjoy general protection against danger arising from hostilities. This general rule is accompanied by rules of application.
1924 Committee III of the Diplomatic Conference began examining this article in 1974 and referred it, with the ten amendments which had been submitted, to a Working Group. Committee III adopted the text of this article by consensus. Voting took place in a plenary meeting in 1977 and the article was adopted with 77 votes in favour, 1 against and 16 abstentions. (1)
1925 The delegation which voted against justified its vote by arguing that the article could seriously hinder the conduct of military operations against an invader and compromise the exercise of the right to self-defence recognized in Article 51 of the Charter of the United Nations. According to this delegation, the provisions relating to indiscriminate attacks should not be such as to prevent a State from defending its territory against an invader, even if this were to entail losses in its own population. Several delegations made similar statements. (2)
1926 Such fears do not seem justified. Article 51 of the Charter of the United Nations reads as follows:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed
attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain
international peace and security [...]"
1927 However, it seems clear that the right of self-defence does not include the use of measures which would be contrary to international
humanitarian law, even in a case where aggression has been
established and recognized as such by the Security Council. The
Geneva Conventions of 1949 and this Protocol must be applied in
accordance with their Article 1
"in all circumstances"; the Preamble
of the Protocol reaffirms that their application must be "without any
adverse [p.616] distinction based on the nature or origin of the
armed conflict or on the causes espoused by or attributed to the
Parties to the conflict".
1928 It is true that in the preparatory work and during the discussions in the Diplomatic Conference the possibility was referred
to of making a distinction between the rules applicable by an
aggressor, on the one hand, and by the victim of the aggression, on
the other. (3) However, several delegations opposed this point of
view. (4) In any case, the Conference did not adopt this suggestion;
on the contrary, in the above-mentioned paragraph of the Preamble of
the Protocol it confirmed the equality of the Parties to the conflict
with regard to the obligations laid down by humanitarian law. This is
wholly reasonable, as the distinction between ' jus ad bellum ' and
' jus in bello ' is fundamental and should always be respected.
1929 Several delegations made spoken or written statements, during the final debate, on the meaning to be given to some of the provisions
contained in this article. They will be examined with regard to the
paragraphs concerned.
1930 In the draft the ICRC had provided that Article 51
(46 of the draft) would be among the provisions to which no reservations could
be made. Finally the Conference deleted all provisions relating to
reservations, but in the discussions Article 51
had been included in
the list of articles to which reservations were prohibited. (5) In
the absence of a specific provision it is therefore general
international law that applies, in particular the Vienna Convention
on the Law of Treaties (Articles 19-23). It may be recalled that that
Convention prohibits reservations which are incompatible with the
object and purpose of the treaty. (6)
1931 During the course of the discussions and in the written statements some delegations indicated that in their view reservations
to this article would be incompatible with the object and purpose of
the treaty. (7) There is no doubt that, as stated above, Article 51
is a key article in the Protocol. It constitutes a reasonable balance
which was achieved with difficulty between the divergent views that
emerged in the Diplomatic Conference. That is why reservations, even
partial ones, could jeopardize this balance and in this way go
against the object and purpose of this indispensable provision.
1932 The importance attached by the Diplomatic Conference to this article is corroborated by the fact that violation of several of its
provisions is qualified as a grave breach. In fact
Article 85
' (Repression of breaches of this Protocol), ' paragraph 3, qualifies
as a grave breach the act of wilfully making the civilian population
or individual civilians the object of attack if this causes death or
serious injury to body or health.
1933 The same applies for wilful indiscriminate attacks affecting the civilian population or civilian objects (or against installations
containing dangerous [p.617] forces in the knowledge that such an
attack will cause excessive loss of life, injury to civilians or
damage to civilian objects, as defined in Article 57
' (Precautions
in attack), ' paragraph 2(a)(iii).
1934 Thus in relation to criminal law the Protocol requires intent and, moreover, with regard to indiscriminate attacks, the element of
prior knowledge of the predictable result.
Paragraph 1
1935 This is an introductory paragraph which confirms the principle of the general protection of civilians against dangers arising from
military operations. There is no doubt that armed conflicts entail
dangers for the civilian population, but these should be reduced to a
minimum. Such is the aim of the following paragraphs.
1936 According to dictionaries, the term "military operations", which is also used in several other articles in the Protocol, means all the
movements and activities carried out by armed forces related to
hostilities. (8) A mixed group of the Diplomatic Conference gave the
following definition of the expression "zone of military operations":
"in an armed conflict, the territory where the armed forces of the
adverse Parties taking a direct or an indirect part in current
military operations, are located". (9)
1937 The second sentence refers to the "other applicable rules of international law": (10) apart from some customary rules and, of
course, the other relevant provisions of the Protocol, these are
mainly the Hague Regulations annexed to Hague Convention IV of 1907
and the fourth Geneva Convention of 1949. In addition, mention could
be made of the rules contained in the Geneva Protocol of 1925 for the
Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and
of Bacteriological Methods of Warfare, as well as the Hague
Convention of 1954 for the Protection of Cultural Property. Although
they are not aimed directly at the protection of the civilian
population, these two treaties can have a positive influence on the
fate of the civilian population in time of armed conflict. The
Convention concluded in 1980 on the Prohibition or Restrictions on
the Use of Certain Conventional Weapons contains corresponding
provisions with respect to the civilian population. (11)
[p.618] Paragraph 2
1938 The first sentence gives substance to the principle of general immunity formulated in the preceding paragraph by explicitly
prohibiting attacks directed against the civilian population as such,
as well as against individual civilians. By using the words
"directed" and "as such" it emphasizes that the population must never
be used as a target or as a tactical objective.
1939 It should be noted that "attacks" are defined in Article 49
' (Definition of attacks and scope of application), ' paragraph 1.
1940 In the second sentence the Conference wished to indicate that the prohibition covers acts intended to spread terror; there is no doubt
that acts of violence related to a state of war almost always give
rise to some degree of terror among the population and sometimes also
among the armed forces. It also happens that attacks on armed forces
are purposely conducted brutally in order to intimidate the enemy
soldiers and persuade them to surrender. This is not the sort of
terror envisaged here. (12) This provision is intended to prohibit
acts of violence the primary purpose of which is to spread terror
among the civilian population without offering substantial military
advantage. It is interesting to note that threats of such acts are
also prohibited. This calls to mind some of the proclamations made in
the past threatening the annihilation of civilian populations.
1941 Finally, it is worthy of note that Article 85
' (Repression of breaches of this Protocol), ' paragraph 3(a), defines the act of
making the civilian population or individual civilians the object of
attack as a grave breach, when it results in death or serious injury
to body or health.
Paragraph 3
1942 The immunity afforded individual civilians is subject to an overriding condition, namely, on their abstaining from all hostile
acts. Hostile acts should be understood to be acts which by their
nature and purpose are intended to cause actual harm to the personnel
and equipment of the armed forces. Thus a civilian who takes part in
armed combat, either individually or as part of a group, thereby
becomes a legitimate target, though only for as long as he takes part
in hostilities. If the civilian is captured while he is committing
hostile acts, the rules governing his fate are laid down in Article
45 ' (Protection of persons who have taken part in hostilities). '
1943 During the course of the discussions several delegations indicated that the expression "hostilities" used in this article
included preparations for combat and the return from combat. (13)
Similar problems arose in Article 44
' (Combatants and prisoners of
war) ' with regard to the expression "military deployment preceding
the launching of an attack". It seems that the word "hostilities"
covers not only the time that the civilian actually makes use of a
weapon, but also, for example, [p.619] the time that he is carrying
it, as well as situations in which he undertakes hostile acts without
using a weapon. If a civilian is captured or arrested in such
circumstances, he may have recourse to paragraph 1 of Article 45
' (Protection of persons who have taken part in hostilities) ' and
claim prisoner-of-war status; he must be treated as such pending
determination of his status by a competent tribunal.
1944 What is the exact meaning of the term "direct" in the expression "take a direct part in hostilities"? A similar expression is already
used in paragraph 2 of Article 43
' (Armed forces). ' In general the
immunity afforded civilians is subject to a very stringent condition:
that they do not participate directly in hostilities, i.e., that they
do not become combatants, on pain of losing their protection. Thus
"direct" participation means acts of war which by their nature or
purpose are likely to cause actual harm to the personnel and
equipment of the enemy armed forces. It is only during such
participation that a civilian loses his immunity and becomes a
legitimate target. Once he ceases to participate, the civilian
regains his right to the protection under this Section, i.e., against
the effects of hostilities, and he may no longer be attacked.
However, there is nothing to prevent the authorities, capturing him
in the act or arresting him at a later stage, from taking repressive
or punitive security measures with regard to him in accordance with
the provisions of Article 45
' (Protection of persons who have taken
part in hostilities) ' or on the basis of the provisions of the
fourth Convention (assigned residence, internment etc.) if his
civilian status is recognized. Further it may be noted that members
of the armed forces feigning civilian non-combatant status are guilty
of perfidy under Article 37
' (Prohibition of perfidy), ' paragraph
1(c).
1945 There should be a clear distinction between direct participation in hostilities and participation in the war effort. The latter is
often required from the population as a whole to various degrees.
Without such a distinction the efforts made to reaffirm and develop
international humanitarian law could become meaningless. In fact, in
modern conflicts, many activities of the nation contribute to the
conduct of hostilities, directly or indirectly; even the morale of
the population plays a role in this context.
Paragraph 4
1946 This provision is very important; it confirms the unlawful character of certain regrettable practices during the Second World
War and subsequent armed conflicts. Far too often the purpose of
attacks was to destroy all life in a particular area or to raze a
town to the ground without this resulting, in most cases, in any
substantial military advantages.
1947 On this subject the general rule was formulated in Article 48
' (Basic rule): ' belligerents may direct their operations only
against military objectives. The first specification is added in
paragraph 2 of the present Article 51
: attacks against the civilian
population as such and against individual civilians are prohibited.
1948 Up to now the matter is fairly clear in theory, but it is less so in practice. In fact, civilians may be inside or in the immediate
proximity of military objectives, whether these consist of persons or
objects; moreover, purely civilian objects may in combat conditions
become military objectives, thereby endangering the [p.620] persons
near them. Paragraphs 4 and 5 attempt to cover such situations. The
need to achieve a consensus has led those drafting these provisions
to formulate them in a way that is sometimes ambiguous. Several
delegates remarked on this when the article was adopted. (14)
1949 At a more general level, other delegations pointed out that, like the whole of the Section, this provision should not be such as to
inhibit the capacity for defence of a State which has to counter
aggression. Yet it is well-known how difficult it is in armed
conflict to determine objectively who is the aggressor. Moreover, it
should be recalled that the State which is a victim of aggression is
in no way exempted from the obligations incumbent upon it under
treaty or customary rules of law.
1950 The provision begins with a general prohibition on indiscriminate attacks, i.e., attacks in which no distinction is made. Some may
think that this general rule should have sufficed, but the Conference
considered that it should define the three types of attack covered by
the general expression "indiscriminate attacks".
' Sub-paragraph (a) '
1951 This refers in the first place to attacks which are not directed at a specific military objective. Article 52
' (General protection of
civilian objects), ' paragraph 2, defines military objectives, as far
as objects are concerned, limiting them
"to those objects which by their nature, location, purpose or use make an effective contribution to military action and
whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time,
offers a definite military advantage".
Obviously military objectives also include, indeed principally so, the armed forces, their members, installations, equipment and
transports.
1952 The military character of an objective can sometimes be recognized visually, but most frequently those who give the order or
take the decision to attack will do so on information provided by the
competent services of the army. In the majority of cases they will
not themselves have the opportunity to check the accuracy of such
information; they should at least make sure that the information is
precise and recent, and that the precautions and restrictions laid
down in Article 57
' (Precautions in attack) ' are observed. In case
of doubt, additional information must be requested.
1953 The armed forces and their installations are objectives that may be attacked wherever they are, except when the attack could
incidentally result in loss of human life among the civilian
population, injuries to civilians, and damage to civilian objects
which would be excessive in relation to the expected direct and
specific military advantage. In combat areas (15) it often happens
that purely civilian [p.621] buildings or installations are occupied
or used by the armed forces and such objectives may be attacked,
provided that this does not result in excessive losses among the
civilian population. For example, it is clear that if fighting
between armed forces takes place in a town which is defended house by
house, these buildings -- for which Article 52
' (General protection
of civilian objects), ' paragraph 3, lays down a presumption
regarding their civilian use -- will inevitably become military
objectives because they offer a definite contribution to the military
action. However, this is still subject to the prohibition of an
attack causing excessive civilian losses.
1954 Outside the combat area the military character of objectives that are to be attacked must be clearly established and verified.
Similarly the limits of such objectives must be precisely determined.
1955 The question arose what the situation would be if a belligerent in a combat area wished to prevent the enemy army from establishing
itself in a particular area or from passing through that area, for
example, by means of barrage fire. There can be little doubt in such
a case that the area must be considered as a military objective and
treated as such. Yet, during the Diplomatic Conference several
delegations insisted on confirming this interpretation in their
statements. (16) Of course, such a situation could only concern
limited areas and not vast stretches of territory. It applies
primarily to narrow passages, bridgeheads or strategic points such as
hills or mountain passes.
' Sub-paragraph (b) '
1956 This concerns attacks which employ a method or means of combat which cannot be directed at a specific military objective. (17)
1957 The term "means of combat" or "means of warfare" (cf. Article 35
-- ' Basic rules ') generally refers to the weapons being used, while
the expression "methods of combat" generally refers to the way in
which such weapons are used.
1958 As regards the weapons, those relevant here are primarily long-range missiles which cannot be aimed exactly at the objective.
The V2 rockets used at the end of the Second World War are an example
of this. It should be noted that most armies endeavour to use
accurate weapons as attacks which do not strike the intended
objective result in a loss of time and equipment without giving a
corresponding advantage. Thereby the margin of error of missiles is
gradually reduced. Here, military interests and humanitarian
requirements coincide.
1959 From the point of view of the protection of civilians, the use of land or sea mines raises some problems. There were lengthy
discussions in the Ad Hoc Committee on Conventional Weapons of the
Conference. The work of this Committee (18) served as a basis for the
Conference convened by the United [p.622] Nations in 1979 and 1980.
That Conference adopted a Convention (10 October 1980) and three
Protocols, one of which was on the prohibition or restrictions on the
use of mines, booby-traps and other devices. (19) Briefly, this
Protocol requires Parties to take measures to keep adequate records
and to give proper warning when minefields are laid, so that the
population is not endangered. As regards mine-laying by aircraft or
remotely-delivered mines, such operations are prohibited in principle
unless such mines are only used in an area that constitutes a
military objective or that contains military objectives; even in that
situation the location of mines that are laid must be recorded, or
the mines must be equipped with a remotely-controlled mechanism to
detonate then or must self-destruct when they have lost their
military value. (20)
1960 However, the question may arise at what point the use of mines constitutes an attack in the sense of this provision. Is it when the
mine is laid, when it is armed, when a person is endangered by it, or
when it finally explodes? The participants at the meeting of the
International Society of Military Law and the Law of War (Lausanne,
1982) conceded that from the legal point of view the use of mines
constituted an attack in the sense of the Protocol when a person was
directly endangered by such a mine. (21) It may be considered that
mines also come within the scope of sub-paragraph (c) discussed
below.
' Sub-paragraph (c) '
1961 This sub-paragraph concerns attacks which employ a method or means of combat the effects of which cannot be limited as required by
this Protocol. Like sub-paragraph (b) this provision was not
contained in such a precise manner in the ICRC draft; the Working
Group of Committee III presented a more elaborate text which was
referred back to the Working Group, and finally Committee III adopted
an article which contains all the elements of the present
article (22) although the wording has been revised and modified
reasonably successfully by the Drafting Committee of the Conference.
1962 On this provision the report of Committee III contains the following passage:
"The main problem was that of defining the term ' indiscriminate attacks '. There was general agreement that
a proper definition would include the act of not directing an
attack at a military objective, the use of means or methods
of combat which cannot be directed at a specific military
objective, and the use of means or methods of combat the
effects of which cannot be limited as required by the
Protocol. Many but not all of those who commented were of the
view that the definition was not intended to mean that there
are means [p.623] or methods of combat whose use would
involve an indiscriminate attack in all circumstances. Rather
it was intended to take account of the fact that means or
methods of combat which can be used perfectly legitimately in
some situations could, in other circumstances, have effects
that would be contrary to some limitations contained in the
Protocol, in which event their use in those circumstances
would involve an indiscriminate attack." (23)
1963 However, there are some means of warfare of which the effects cannot be limited in any circumstances. It is different with regard
to other means, such as fire (24) or water (25) which, depending on
the circumstances of their use, can have either a restricted effect
or, on the contrary, be completely out of the control of those using
them, causing significant losses among the civilian population and
extensive damage to civilian objects. The nature of the means used is
not the only criterion: the power of the weapons used can have the
same consequences. For example, if a 10 ton bomb is used to destroy a
single building, it is inevitable that the effects will be very
extensive and will annihilate or damage neighbouring buildings, while
a less powerful missile would suffice to destroy the building. There
are also methods which by their very nature have an indiscriminate
character, such as poisoning wells.
1964 Several delegations considered that it was necessary to confirm the views expressed by the Rapporteur (26) in their explanations of
vote. According to these delegations the provision does not mean that
there are means of combat of which the use would constitute an
indiscriminate attack in all circumstances.
1965 This point was discussed above; it is true that in most cases the indiscriminate character of an attack does not depend on the nature
of the weapons concerned, but on the way in which they are used.
However, as stated above, there are some weapons which by their very
nature have an indiscriminate effect. The example of bacteriological
means of warfare is an obvious illustration of this point. There are
also other weapons which have similar indiscriminate effects, such as
poisoning sources of drinking water. Of course, bacteriological means
of warfare have been prohibited since 1925, and the use of poison was
prohibited in 1899 by the Hague Regulations.
1966 Nevertheless, States in making such statements were more concerned with nuclear weapons. A thorough analysis of the connection
between the Protocol and the use that may be made of nuclear weapons
is included in the introduction to this Section, and we refer the
reader to that text. (27)
Paragraph 5
1967 The attacks which form the subject of this paragraph fall under the general prohibition of indiscriminate attacks laid down at the
beginning of paragraph 4. Two types of attack in particular are
envisaged here.
[p.624] 1968 The ' first type ' includes area bombardment, sometimes known as carpet bombing or saturation bombing. It is characteristic of such
bombing that it destroys all life in a specific area and razes to the
ground all buildings situated there. There were many examples of such
bombing during the Second World War, and also during some more recent
conflicts. Such types of attack have given rise to strong public
criticism in many countries, and it is understandable that the
drafters of the Protocol wished to mention it specifically, even
though such attacks already fall under the general prohibition
contained in paragraph 4. According to the report of Committee III,
the expression "bombardment by any method or means" means all attacks
by fire-arms or projectiles (except for direct fire by small arms)
and the use of any type of projectile. (28)
1969 This paragraph was adopted with some difficulty; the expression "clearly separated and distinct" in particular led to lengthy
discussions. In their first report the Working Group had given
Committee III a choice between various proposals: "widely separated",
"distinct"; or alternatively the introduction of a final phrase,
"unless the objectives are too close together to be capable of being
attacked separately". (29)
1970 Rather than going on to vote on these various proposals, Committee III decided to refer the subject back to the Working Group
and requested it to try and come up with an expression that might
meet with general approval. The Group presented the Committee with a
new draft which had been accepted by consensus within the Group. (30)
Committee III adopted this proposal without further discussion and it
forms the present text of paragraph 5.
1971 It will be noted that the Conference adopted a wording very similar to that which the ICRC had proposed, namely, "at some
distance from each other". It was decided not to add the phrase cited
above, no doubt through fear of encouraging area bombardment, for in
such a case the attacking forces could use their own judgment, taking
into account the weapons available and the circumstances, as to
whether the individual objectives were too close together to be
attacked separately.
1972 Having said that, the interpretation of the words "clearly separated and distinct" leaves some degree of latitude to those
mounting an attack; in case of doubt they can refer to sub-paragraph
(b) and assess whether the attack is of a nature to cause losses and
damage which would be excessive in relation to the military advantage
anticipated.
1973 The question may also arise whether the prohibition formulated here is not already covered by paragraph 4(a), which prohibits
attacks not directed at a specific military objective. In fact, areas
of land between military objectives are not themselves military
objectives. It must be accepted that in open areas which are sparsely
populated, such as forests, attacks may be mounted against the whole
of the area if it has been established that enemy armed forces ar
e
present. On the other hand, in a town, village or any other area
where there is a similar [p.625] concentration of civilian persons
and objects, the military objectives in that area may only be
attacked separately without leading to civilian losses outside the
military objectives themselves. This also applies for temporary
concentrations of civilians, such as refugee camps.
1974 As stated above, the size of the area over which military objectives are spread and the distance separating them are relatively
subjective notions. In case of doubt, the general rule of respect for
the civilian population must always be observed.
1975 When the distance separating two military objectives is sufficient for them to be attacked separately, taking into account
the means available, the rule should be fully applied. However, even
if the distance is insufficient, excessive losses that might result
from the attack should be taken into account.
1976 The ' second type of attack ' envisaged in paragraph 5 includes those which have excessive effects in relation to the concrete and
direct military advantage anticipated. Once again there were long
discussions in the Diplomatic Conference and it was difficult to come
to an agreement. The formula that was adopted is very similar to that
proposed by the ICRC. (31) It is based on the wording of Article 57
' (Precautions in attack) ' relating to precautionary measures.
Committee III had suggested either a straightforward reference to
Article 57
' (Precautions in attack) ' or reproducing the formula
used in that article. Finally, the Drafting Committee, which was
requested to resolve the question, opted for the second solution.
Thus reference may be made to Article 57
' (Precautions in attack) '
for further details.
1977 Paragraphs 4 and 5 were criticized in the Diplomatic Conference and subsequently. The criticism was directed particularly at the
imprecise wording and terminology. For example, according to some,
the Protocol fails to specify the size of the area over which
military objectives may be spread and the distance which must
separate them. It was also pointed out that modern electronic means
made it possible to locate military objectives, but that they did not
provide information on the presence of civilian elements within or in
the vicinity of such objectives.
1978 Such criticisms are justified, at least to some extent. Putting these provisions into practice, or, for that matter, any others in
Part IV, will require complete good faith on the part of the
belligerents, as well as the desire to conform with the general
principle of respect for the civilian population.
1979 Comments were also made in various quarters that paragraph 5(b) authorized any type of attack, provided that this did not result in
losses or damage which were excessive in relation to the military
advantage anticipated. This theory is manifestly incorrect. In order
to comply with the conditions, the attack must be directed against a
military objective with means which are not disproportionate in
relation to the objective, but are suited to destroying only that
objective, and the effects of the attacks must be limited in the way
required by the Protocol; ' moreover, ' even after those conditions
are fulfilled, the incidental civilian losses [p.626] and damages
must not be excessive. Of course, the disproportion between losses
and damages caused and the military advantages anticipated raises a
delicate problem; in some situations there will be no room for doubt,
while in other situations there may be reason for hesitation. In such
situations the interests of the civilian population should prevail,
as stated above.
1980 The idea has also been put forward that even if they are very high, civilian losses and damages may be justified if the military
advantage at stake is of great importance. This idea is contrary to
the fundamental rules of the Protocol; in particular it conflicts
with Article 48
' (Basic rule) ' and with paragraphs 1 and 2 of the
present Article 51
. The Protocol does not provide any justification
for attacks which cause extensive civilian losses and damages.
Incidental losses and damages should never be extensive.
1981 This clearly shows the importance attached by the drafters of the Protocol to this article; these provisions should therefore lead
those responsible for such attacks to take all necessary precautions
before making their decision, even in the difficult constraints of
battle conditions.
Paragraph 6
1982 This provision is very important. In fact, the belligerents in the Second World War recognized in their public declarations that
attacks may be directed only at military objectives, but on the
pretext that their own population had been hit by attacks carried out
by the adversary, they went so far, by way of reprisals, as to wage
war almost indiscriminately, and this resulted in countless civilian
victims. (32)
1983 The text is that proposed by the ICRC. During the discussions in the Conference the question of reprisals was examined with regard to
several articles and in each of these a clause prohibiting reprisals
was included (see also Articles 20
-- ' Prohibition of reprisals; '
52
, ' General protection of civilian objects; ' 53
-- ' Protection of
cultural objects and of places of worship; ' 54
-- ' Protection of
objects indispensable to the survival of the civilian population; '
55
-- ' Protection of the natural environment ' and 56
--
' Protection of works and installations containing dangerous
forces). ' This is why several delegates raised the question during
the discussions whether a single general provision might not suffice,
while others considered that it was not very realistic to prohibit
all reprisals, and that it was better to try and restrain them by
laying down specific rules. Finally Committee I was charged with
examining the general problem. (33) It decided to leave the specific
clauses prohibiting reprisals in the articles where they occured, and
not to draft a general prohibition. (34)
1984 The prohibition contained in this article is not subject to any conditions and it therefore has a peremptory character; in particular
it leaves out the possibility of derogating from this rule by
invoking military necessity. As in the 1949 [p.627] Conventions, this
provision confirms the right of an individual not to be punished for
acts which he has not himself committed.
1985 This prohibition of attacks by way of reprisals and other prohibitions of the same type contained in the Protocol and in the
Conventions have considerably reduced the scope for reprisals in time
of war. At most, such measures could now be envisaged in the choice
of weapons and in methods of combat used against military objectives.
Paragraph 7
1986 This provision affords measures of protection to the whole of the civilian population and all civilians, thus extending to them
measures which already exist for two categories of persons: prisoners
of war and civilians protected by the fourth Convention. In fact,
according to Article 23
of the Third Convention, prisoners of war may
not be used to render certain points or areas immune from military
operations.
1987 As regards persons protected by the fourth Convention, Article 28
of the latter provides that they may not be used to render certain
points or areas immune from military operations. Article 19
of the
first Convention and Article 12
of the present Protocol ' (Protection
of medical units) ' contain a similar rule with regard to medical
units. For its part, Article 58
of the Protocol ' (Precautions
against the effects of attack) ' also deals with measures to be taken
to remove the population from the vicinity of military objectives,
and we refer the reader to the commentary thereon.
1988 This paragraph develops and clarifies these various rules. The term "movements" in particular is a new one; this is intended to
cover cases where the civilian population moves of its own accord.
The second sentence concerns cases where the movement of the
population takes place in accordance with instructions from the
competent authorities, and is particularly concerned with movements
ordered by an Occupying Power, although it certainly also applies to
transfers of prisoners of war, and civilian enemy subjects ordered by
the authorities of a belligerent Power to move within its own
territory.
Paragraph 8
1989 The ICRC had proposed in its draft the following provision which related to the provision contained in paragraph 7:
"If a Party to the conflict, in violation of the foregoing provision, uses civilians with the aim of shielding military
objectives from attack, the other Party to the conflict shall
take the precautionary measures provided for in Article
50." (35)
[p.628] 1990 It is fairly clear from the deliberations and the report of Committee III (36) that the prohibitions referred to in paragraph 8
are those contained in paragraph 7. Military objectives are defined
as far as objects are concerned in Article 52
' (General protection
of civilian objects), ' paragraph 2. Thus, even if civilians were
intentionally brought or kept in the vicinity of military objectives,
the attacker should take the measures provided for in Article 57
' (Precautions in attack), ' especially those set out in paragraph 2
(a)(ii) and (iii) and (c). It is clear that in such cases a warning
to the population is particularly appropriate as civilians are
themselves rarely capable of assessing the danger in which they are
placed.
1991 This provision is concerned with the situation in which other provisions of the Protocol are not complied with. It is an attempt to
safeguard the population even when the appropriate authorities do not
take the required measures of protection with regard to them.
1992 Article 60 of the Vienna Convention on the Law of Treaties provides that a material breach of a multilateral treaty entitles a
Party especially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the
relations between itself and the defaulting State. Without even going
into the question whether non-compliance with paragraph 7 constitutes
a material breach of the Protocol, it is pleasing to note the tenor
of the last paragraph of the same Article 60:
"5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a
humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons protected
by such treaties." (37)
1993 Thus, in the case of this Protocol, it is compulsory to apply it, even if another Party has committed a violation. It should be noted
that provisions protecting the human person now bear the stamp of
customary law.
' C.P./J.P. '
NOTES
(1) [(1) p.615] O.R. VI, pp. 165-166, CDDH/SR.41, para. 118;
(2) [(2) p.615] Ibid., p. 162. One delegation emphasized that the Charter of the United Nations recognizes the right of
individual or collective self-defence in the case of armed
attack and that international 1aw cannot restrict the
legitimate right of a victim of aggression and occupation
to defend itself (ibid., p. 196, Annex (Romania));
(3) [(3) p.616] See, for example, O.R. V, pp. 119-121, CDDH/SR.12, paras. 13-21, and O.R. VI, p. 196, CDDH/SR.41,
Annex (Romania);
(4) [(4) p.616] See, for example, O.R. V, pp. 109-110, CDDH/SR.11, paras. 44-50; pp. 137-138, CDDH/SR.13,
paras.51-57;
(5) [(5) p.616] O.R. X, p. 251, CDDH/405/Rev.1;
(6) [(6) p.616] Cf. introduction to Part VI, infra, p. 1061;
(7) [(7) p.616] O.R. VI, p. 167, CDDH/SR.41, paras. 135-137; p. 187, ibid., Annex (GDR); pp. 192-193 (Mexico);
(8) [(8) p.617] Cf. the definitions given supra, commentary Art. 48, note 13, p. 600;
(9) [(9) p.617] O.R. XV, p. 338, CDDH/II/266-CDDH/III/255, Annex A;
(10) [(10) p.617] We also refer to the commentary Art. 49, para. 4, supra, p. 606, and Art. 2, sub-para. (b), supra,
p. 60;
(11) [(11) p.617] Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
which may be deemed to be Excessively Injurious or to have
Indiscriminate Effects.
- Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol
II), Art. 3, paras. 2, 3(c) and 4; Art. 4, para. 2;
Art. 5, para. 2; Art. 7, para. 3(a)(i).
- Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), Art. 2.
For participation in this Convention, cf. infra, p. 1549;
(12) [(12) p.618] O.R. XV, p. 274, CDDH/215/Rev.1, para. 51;
(13) [(13) p.618] Ibid., p. 330, CDDH /III/224;
(14) [(14) p.620] See, for example, O.R. VI, pp. 164-165, CDDH/SR.41, para. 122;
(15) [(15) p.620] The Mixed Group defined this concept as follows: "In an armed conflict, that area where the armed
forces of the adverse Parties actually engaged in combat,
and those directly supporting them, are located". O.R. XV,
p. 338, CDDH/II/266-CDDH/III/255, Annex A;
(16) [(16) p.621] See commentary Art. 52, para. 2, infra, p. 635;
(17) [(17) p.621] A note on the drafting of the French text: the use of the pronoun "on" is unusual in French legal
draftsmanship as it is rather indeterminate. This is
avoided in the English wording where the word "attacks" is
the subject of the sentence;
(18) [(18) p.621] See O.R. XVI;
(19) [(19) p.622] Cf. supra, note 11;
(20) [(20) p.622] Art. 5 of the above-mentioned Protocol II.
Also see Y. Sandoz, "A New Step Forward in International Law -- Prohibition and Restrictions on the Use of Certain
Conventional Weapons", ' IRRC, ' January-February 1981, p.
3 (offprint available with the text of the Final Act of
the said United Nations Conference, originally published
ibid., pp. 41-55);
(21) [(21) p.622] See "Forces armées et développement du droit de la guerre", op.cit., p. 303;
(22) [(22) p.622] O.R. XV pp. 304-305, CDDH/215/Rev.1, Annex;
(23) [(23) p.623] Ibid., p. 274, para. 55;
(24) [(24) p.623] Cf. the Protocol II referred to supra, note 11;
(25) [(25) p.623] On this subject reference may be made to Article 56 of this Protocol;
(26) [(26) p.623] See O.R. VI, pp. 168-172, CDDH/SR.41;
(27) [(27) p.623] See supra, p. 589;
(28) [(28) p.624] Cf. O.R. XV, p. 275, CDDH/215/Rev.1, para. 56;
(29) [(29) p.624] Ibid, p. 329, CDDH/III/224;
(30) [(30) p.624] O.R. XIV, p. 30, CDDH/III/SR.31, para. 5;
(31) [(31) p.625] "to launch attacks which may be expected to entail incidental losses among the civilian population and
cause the destruction of civilian objects to an extent
disproportionate to the direct and substantial military
advantage anticipated" (draft, Art. 46, para. 3 (b));
(32) [(32) p.626] Cf. G. Best, ' Humanity in Warfare, ' London, 1980, pp. 273-277;
(33) [(33) p.626] O.R. XIV, p. 414, CDDH/III/SR.38, para. 65; O.R. V, p. 375, CDDH/SR.31, paras. 20-23; O.R. X, pp.
184-185, CDDH/405/Rev.1, paras. 21-30;
(34) [(34) p.626] On the general question of reprisals, cf. infra, p. 981, introduction to Part V, Section II;
(35) [(35) p.627] Now Art. 57 of the Protocol;
(36) [(36) p.628] O.R. XV, p. 275, CDDH/215/Rev.1, para. 59;
(37) [(37) p.628] For more details, see commentary Art. 1, para. 1, supra p. 34, and the introduction to Part V,
Section II (section concerning reprisals), infra, p. 981;
GVALNWB1/ICRC
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