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Commentary of 1987 
[p.1319] General introduction to the Commentary on Protocol II

4337 Except for Article 3 common to the Geneva Conventions of 1949, which is often rightly called a "mini-convention", Protocol II constitutes the first real legal instrument for the protection of victims of non-international armed conflicts. Why did it take until1977 for this instrument to be adopted? On the one hand, this introduction is aimed at briefly recalling the nature of this particular type of conflict; on the other hand, it attempts to trace in broad lines the development of the law which resulted in the drawing up of these still rather modest rules.

The concept of non-international armed conflict

4338 In the absence of a general definition of non-international armed conflict, which may take very different forms, an attempt should be made to describe situations of this type in relation to the objective facts characterizing them.

4339 First, a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, (1) but the government of a single State in conflict with one or more armed factions within its territory. (2)

4340 It is therefore appropriate to raise the question whether all forms of violent opposition to a government, from simple localized rioting to a general confrontation with all the characteristics of a war, can be considered as non-international armed conflicts.

4341 The expression "armed conflict" gives an important indication in this respect since it introduces a material criterion: the existence of open hostilities between armed forces which are organized to a greater or lesser degree. Internal disturbances and tensions, (3) characterized by isolated or sporadic acts of violence, do not therefore constitute armed conflict in a legal sense, even if the government [p.1320] is forced to resort to police forces or even to armed units for the purpose of restoring law and order. Within these limits, non-international armed conflict seems to be a situation in which hostilities break out between armed forces or organized armed groups within the territory of a single State. (4) Insurgents fighting against the established order would normally seek to overthrow the government in power or alternatively to bring about a secession so as to set up a new State.

The legal situation before 1949

4342 Positive law has very largely abstained from laying down rules governing non-international armed conflict. According to traditional doctrine, States were the only sovereign entities considered to be subjects of international law; thus the laws of war, which were conceived to govern international relations, were not applicable in internal conflicts.

4343 Emmer de Vattel was a pioneer in this field. In fact, for the first time he raised the question whether the Sovereign must observe the ordinary laws of war towards rebellious subjects who openly take up arms against him, (5) and attempted to answer this affirmatively. However, it was only during the nineteenth century that the first attempts were made to make the laws of war applicable to the relations between the established government of a State and insurgents fighting against it. For this purpose, insurgents were put on a par with belligerents, i.e., with a party to an inter-State war, and this was done by means of a legal construction: the recognition of belligerency.

' Recognition of belligerency '

4344 This concept appears under two aspects:

1. ' Recognition of belligerency by the legitimate government of the State '

4345 This is a juridical act which is both unilateral and discretionary and may take either an explicit (6) or a tacit form. Tacit recognition of belligerency, which covers [p.1321] the majority of cases, can be deduced from government measures or attitudes towards an internal situation of conflict (for example, a blockade). Such an act creates a new legal situation. The relationship between the established government and the insurgents follows from the state of war which makes the law of armed conflict as a whole applicable between them. Recognition is a manifestation of the competence of a State to wage war, which keeps its national sovereignty. (7) It grants insurgents merely a sort of legal personality as subjects of rights and duties within the confines of the laws of war.

2. ' Recognition of belligerency by a third State '

4346 A third State may also be induced to recognize a situation of belligerency. Such recognition cannot be given tacitly. It has legal consequences only for the relations of that State with the parties to the non-international armed conflict. It prohibits the recognizing State from unilaterally aiding either the government party or the insurgent party to the conflict. (8) Does not such a declaration constitute interference in the internal affairs of the State in whose territory the conflict is taking place? This would certainly be the case if a third State recognized a situation of belligerency which did not objectively exist. The search for objective criteria led to the legal concept of civil war; thus certain de facto elements must all be present for third States to be able to recognize a situation of belligerency without committing the inadmissible act of interfering with the internal affairs of the other State.

' The concept of civil war '

4347 The Institute of International Law studied this question at length and in 1900 finally established Regulations for civil war; Article 8 of these Regulations lays down three conditions which make it possible to that whether there is a genuine civil war and therefore that it is possible for a third State to recognize the belligerency of the insurgents. This article provides that:

"Third States may not give recognition to the belligerency of the insurgent party:

1.if it has not won for itself a territorial existence by taking possession of a given part of the national territory;
2. it does not fulfil the conditions which must be met to constitute a regular government de facto exercising in that part of the territory the ostensible rights belonging to sovereignty; and; [p.1322]
3. if the struggle waged in its name is not conducted by organized forces subject to military discipline and complying with the laws and customs of war." (9)

4348 The work of the Institute is considered as having legal weight in its capacity as representing the meetings of highly qualified publicists. Moreover, according to the article itself, third States are not obliged to recognize belligerency when the conditions listed above are fulfilled. The States remain completely free to act as they see fit in this respect and even to withdraw recognition later if they consider it appropriate to do so. (10)

4349 The institution of recognition of belligerency has proved to be extremely difficult to apply in practice and has given rise to many controversies. We will not go into these here. (11) Nevertheless, this brief historical summary seems necessary, on the one hand, because recognition of belligerency constituted the first step in the regulation of non-international armed conflicts, and on the other hand, because it is often, though incorrectly, invoked as a consequence of the application of common Article 3 and of Protocol II. Furthermore, confusion also often arises between the legal effects of recognition by an established government and those resulting from recognition by third States.

' Role of the Red Cross -- A review of Resolutions '

4350 The Red Cross Movement as a whole, and the ICRC in particular, were concerned with the fate of victims of non-international armed conflicts well before 1949. In 1912, during the IXth International Conference of the Red Cross (Washington), a first attempt was made to specify its role in civil wars. This was unsuccessful.

4351 It was only in 1921 that the Xth International Conference of the Red Cross (Geneva) adopted a first resolution relating to civil war (12) which established the right of all victims of civil wars, social or revolutionary disturbances to receive aid in accordance with the general principles of the Red Cross, and gave the ICRC a mandate to intervene in a supporting role in relief matters. This Resolution represented an important step forward as it reflected a consciousness of the humanitarian needs engendered in situations of internal conflict. It is relevant to [p.1323] note that it covers both civil wars and internal strifes. In particular it served as a basis for ICRC activities during the Spanish Civil War. For that matter, that conflict had a decisive impact on the development of rules for non-international armed conflicts.

4352 In 1938 the XVIth International Conference of the Red Cross (London) supplemented the 1921 Resolution on civil war with a new resolution (13) relating to the role and the activities of the Red Cross in time of civil war. For the first time this provided for the, if not of the Conventions themselves, at least of implementation the principles underlying them.

4353 With this encouragement, the ICRC had studied since 1945, how to include provisions relating to non-international armed conflicts in the Conventions in preparation.

Non-international armed conflict and the Charter of the United Nations

4354 The United Nations Charter is basically aimed at ensuring the maintenance of international peace and security; therefore resorting to the threat or the use of force is expressly condemned in the international relations of Member States (Article 2, paragraph 4). This does not mean that States are any less sovereign within their own territory and, to put it differently, civil war is not prohibited as such.

4355 In addition, the same Article 2 which lays down the principle of the sovereign equality of Members States in paragraph 1, lays down the following provisions in paragraph 7:

"Nothing contained in the present Charter shall authorize theUnited Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter [...]"

4356 Thus a State may resort to the use of force in order to restore public order in its own territory without incurring the risk of being condemned by the United Nations. The principle of respect for the sovereignty of Member States and of non-interference in their internal affairs is, however, subject to an exception when international peace and security are threatened. In fact, if armed action undertaken by a State in its own territory endangers international peace, it is no longer only an internal matter. That is why the same Article 2, paragraph 7, specifies in fine that recognition of national jurisdiction "shall not prejudice the application of enforcement measures under Chapter VII".

4357 Wars known as "wars of national liberation" form an exception in this respect. Initially they were considered as internal armed conflicts, but is has gradually been accepted that they have an international character. The Charter is based on the principle or the self-determination of peoples (Article 1, paragraph 2). On the basis of this principle the United Nations has been induced to adopt [p.1324] a supportive position towards peoples fighting in the exercise of their right of self-determination. This point of view, which has repeatedly been confirmed in resolutions and declarations, (14) is now universally recognized.

4358 Recent developments in international humanitarian law have followed this evolution; therefore, armed conflicts in which peoples are fighting in the exercise of their right of self-determination have been included amongst international armed conflicts. (15)

Article 3 common to the four Conventions

4359 Common Article 3 of the Conventions constitutes the keystone of humanitarian law applicable in non-international armed conflicts. It is the first major achievement with regard to this law which is still to be developed (we refer the reader to the commentary on the Conventions). (16) Protocol II supplements and develops amplifies Article 3 without changing the conditions of its application, (17) and in this sense the two instruments are indissociable. (18) As the commentary on the Protocol repeatedly refers to common Article 3 , it is appropriate to include the text in this general introduction. It reads as follows:

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular, humiliating and degrading treatment; [p.1325]
d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict shall further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."

Historical background to Protocol II

' The reasons for the development of the law applicable in non-international armed conflicts '

4360 Since the Second World War the majority of armed conflicts -- of which there have unfortunately been a deplorably large number -- have had a non-international character. Such fratricidal conflicts have caused great suffering and have resulted in numerous victims.

4361 Although common Article 3 lays down the fundamental principles of protection, difficulties of application have emerged in practice, and this brief set of rules has not always made it possible to deal adequately with urgent humanitarian needs.

4362 It has sometimes been said -- quite incorrectly -- that this article has never been applied. In fact, it often has, even if his application has been delayed to when hostilities between the parties to the conflict had reached a certain state of equilibrium. Despite the fact that Article 3 is based on the principle that the rules apply automatically whenever a situation is objectively characterized as an armed conflict, the fact remains that the High Contracting Party concerned still has a wide area of discretion and has in some cases abused it.

4363 Article 3 merely expresses a minimum of basic rules. The concise wording lays down the principles without developing them, which has sometimes given rise to restrictive interpretations. This particularly applies to the scope of judicial guarantees (paragraph 1(1)(d)) which does not go into details. The precarious position in which insurgent combatants find themselves requires that such guarantees should be clarified and reinforced for their benefit, particularly with regard to matters of judicial procedure. In fact, an insurgent combatant does not enjoy immunity when charged with having taken up arms, as do members of the armed forces in a conflict between States; on the contrary, he may be punished for having violated the national law.

4364 The obligation to collect and care for the wounded and sick also remains a very general one; the text of Article 3 is silent on the protection to be given doctors and other members of medical personnel, as well as to medical units and [p.1326] transports. The protection of the emblem is not provided for. Already in 1957 the XIXth International Conference of the Red Cross (New Delhi) had expressed the wish, in a resolution relating to medical care, (19) that Article 3 should be supplemented on this point, and made an urgent appeal to governments to take all necessary measures to guarantee effective care for the wounded, and to prevent doctors from being hindered in the performance of their task.

4365 The rules of Article 3 therefore needed to be confirmed and clarified. Furthermore, this provision contains gaps. Although it expresses the principle that persons who do not or no longer participate in hostilities should be protected, there are, on the other hand, no rules on the conduct of hostilities aimed at sparing the civilian population as such. And yet the civilian population is particularly exposed in such conflicts. Often civilians are even the main victims, particularly because they may be used as a shelter by insurgents. (20)

4366 There is another important point on which Article 3 is silent: namely, relief actions. Great difficulties involved in setting up relief actions have often been experienced in practice, and the question has been raised whether it would not be useful to specify the modalities for such actions in order to ensure that relief will reach its destination without meeting obstacles.

4367 Concerned with the need to ensure the efficacy of relief actions as far as possible, the above-mentioned XIXth International Conference of the Red Cross as early as 1957 adopted a resolution establishing some fundamental principles. (21)

4368 The preceding considerations may illustrate that the need for developing rules relating to situations of non-international armed conflict did not arise from one day to the next. More than twenty years of practical experience have gradually made it clear that the position gained in 1949 in the form of common Article 3 has, together with its positive points, its imperfections and shortcomings. ' Travaux préparatoires '

4369 This work was spread out over almost ten years.

4370 The XXth International Conference of the Red Cross (Vienna) noted in 1965 the inadequacy of the protection of victims of non-international armed conflicts, and adopted two Resolutions which constitute the beginning of the development of rules in this area. (22)

4371 In 1968 the International Conference on Human Rights, which convened in Teheran under the auspices of the United Nations, marked an important turning [p.1327] point by establishing the relationship between human rights and international humanitarian law. By adopting a resolution on human rights in armed conflicts, (23) which encouraged the development of new rules, the Conference qualified humanitarian law as an extension of human rights and included it amongst the matters of concern the United Nations. Henceforth, the rules of international law on human rights, and in particular the International Covenant on Civil and Political Rights, would be used as a point of reference to bring into focus the fundamental guarantees given in Protocol II for the way in which human beings should be treated. (24)

4372 In 1969 the ICRC privately invited a group of experts to examine the development of humanitarian law in the context of non-international armed conflict; their conclusions were to serve asa basis for the drawing up of the first documentation for the benefit of the XXIst International Conference of the Red Cross (Istanbul, 1969). (25) That Conference requested the ICRC to devote special attention to the problem, and broadly recognized the necessity for supplementing and clarifying common Article 3 . (26) The question of the specific protection of combatants of an armed opposition was raised for the first time and a resolution was put forward proposing, under certain conditions, to grant them prisoner-of-war treatment. (27)

4373 In 1970 the ICRC arranged further meetings of experts (28) in order to draw up, on the basis of the views obtained, concrete proposals to be presented to the Conference of Government Experts which was to take place the following year. (29)

4374 The first session of the Conference of Government Experts took place in 1971. The ICRC did not present the experts with an actual draft, but with a list of the most important problems forming the key to any subsequent development of the law. (30)

4375 We will indicate the main results of this meeting here, which show the evolution of ideas and controversies which arose with regard to the subject of non-international armed conflicts.

[p.1328] 4376 The actual principle that common Article 3 should be developed was almost unanimously agreed. The debates showed that such a development could be envisaged in various ways, and different approaches were put forward, such as:

-- an overall approach to the development of humanitarian law which would no longer distinguish international armed conflicts from non-international armed conflicts and which would be characterized by the drafting of a single international instrument. This concept was based on purely humanitarian ideas, i.e., that victims in all situations of armed conflict, whatever their nature, are subject to the same suffering and should be helped in the same way; (31)
-- the preparation of model agreements (in the sense of common Article 3 ) with a view to the application of all or some of the 1949 Conventions, so that the parties to the conflict could implement in any particular case the appropriate agreement, given a situation of large-scale non-international armed conflict. (32)
-- development of the law based on a clear definition of the concept of non-international armed conflict, drawn up by means of objective criteria.

4377 This last point found favour with the majority of experts, who recommended, on the one hand, a separate régime for non-international armed conflict and, on the other, establishing a definition. In order to reduce States' discretionary power of judgment, the ICRC proposed that the definition should not be exhaustive, but a flexible formula illustrated by examples of situations in which the régime would be applicable. (33) In general this proposal was considered to be a good working basis.

4378 At this stage no conclusion was reached, except on one point, which was supported by a majority, namely, to leave out situations of internal disturbances, as these were considered to be covered by the instruments dealing with human rights.

4379 In the end a number of experts expressed the view that wars of national liberation should be considered as international conflicts,in particular on the basis of the principle of self-determination enshrined in the United Nations Charter, while others, on the contrary, considered that only the existence of objective facts and not the reasons underlying the conflict, could be used to qualify the conflict as international or as non-international.

4380 In 1971 it was not yet clear precisely what form the envisaged development of the law would take; therefore the possibility of supplementing Article 3 by adopting some additional chapters (such as, for example, on the wounded and sick) was not excluded in the event that a comprehensive instrument could not be successfully drafted.

4381 It should be noted that a first draft for a Protocol was submitted during these consultations by the Canadian delegation. (34) The proposals contained in this draft provided a valuable basis, particularly concerning the field of application ' ratione personae, ' as it covered anyone affected by the armed conflict and was present in [p.1329] the territory of the Contracting Party, whether or not he was a combatant. In this way there was no need to assign any particular status to the insurgent party. This solution was subsequently to be maintained in substance.

4382 The second element of this draft to be highlighted is the suggestion to treat all persons deprived of their liberty for reasons related to the conflict in the same way. This was again to avoid having to grant a particular status to an armed opponent when he would be taken prisoner. This solution, too, would prevail.

4383 The second session of the Conference of Government Experts met in 1972. The ICRC submitted to it a draft Protocol additional to common Article 3 , taking into account the different opinions expressed in 1971. 1972 was characterized by a change in the way in which Protocol II was conceived, and we comment on this below.

' The main points of the 1972 draft ' (35)

' Material field of application '

4384 The draft followed the line of common Article 3 , i.e., the Protocol would apply in all situations of non-international armed conflict in the sense of Article 3 . Thus the ICRC's proposal (36) had the same tenor as that which it had put forward in 1971.

' Personal field of application '

4385 The ICRC largely followed the Canadian draft presented to the Conference of Experts in 1971. (37)

' Proposals relating to members of the armed forces or armed groups who have fallen into the power of the adverse party '

4386 In order to guarantee such persons humane treatment in case of capture the ICRC made a proposal in two parts: (38)

a) Members of regular armed forces or of insurgent armed groups fulfilling the conditions stipulated in Article 4A(2) of the Third Convention, who fall into the power of the adversary,should receive a treatment similar to that provided for prisoners of war in the same Convention. (39) It should be noted that such treatment only applies for the duration of captivity, without necessarily conferring immunity for the fact of having taken up arms. [p.1330] Those who fulfil the conditions of Article 4 of the Third Convention, or who have at least distinguished themselves from the civilian population and have respected the rules of the Protocol in their operations, should no longer be liable to the death penalty for the sole fact of having taken part in hostilities or of having formed part of armed forces.
b) Those who do not fulfil these conditions, and in general all persons deprived of their freedom for reasons related to the armed conflict, should be guaranteed decent conditions of detention.

' Protection of the civilian population ' (40)

4387 In 1971 the possibility of creating a single protocol relating to the protection of the civilian population in all types of conflict was still envisaged. As the majority of experts expressed a preference for maintaining the distinction between international armed conflict and non-international armed conflict because of the characteristic features of each of these cases, the ICRC abandoned the idea of a single protocol on this point and introduced into the draft of Protocol II a part on the protection of the civilian population, following the example of draft Protocol I. A definition of the civilian population was proposed, together with the general principle of protection and rules of conduct to be applied during hostilities. Finally, it was provided that objects indispensable to survival should be protected and safeguarded.

' Relief ' (41)

4388 The draft laid down the principle that supplies should be provided for the population, even in case of blockade, and the principle that the ICRC and National Societies of other countries should act for the benefit of the population.

' Special cases ' (42)

4389 In addition, the ICRC proposed regulations to be annexed to the Protocol for special situations which, in its opinion, would justify the application of the entire body of Geneva law in the interests of the victims (conflicts on a large scale; outside aid by another State). (43)

[p.1331] ' Work of the experts ' (44)

4390 Without meaning in any way to underrate the importance of other matters, it should be noted that the experts were particularly concerned with two questions, viz., the scope of application and the problem of the treatment of captured combatants.

4391 As regards the scope of application, two broad trends emerged from thirteen different proposals: (45)

-- to provide for clauses whereby the scope of application would be clearly defined and for substantive rules in great detail; or
-- to opt for a general definition and to provide only some general rules.

4392 Objective and subjective criteria (territory, duration, intensity) were advanced, and some experts considered that is was up to governments to decide when the instrument would be applicable. (46) However, this suggestion was dismissed because a majority considered that the State should not have direct powers of discretion with regard to the qualification of a conflict situation, and they adhered to the principle that the Protocol should automatically apply when a particular situation objectively exists.

4393 The experts wanted to establish upper and lower thresholds for conflicts. As regards the upper threshold, the divergent views regarding wars of national liberation, which had been rampant since 1971, were confirmed. Some tended to consider wars of liberation as international armed conflicts, basing their case on the practice of the United Nations, while others rejected the idea of taking the purposes of the struggle into consideration in order to qualify the conflict. As regards the lower threshold, a certain number of experts were in favour of explicitly excluding internal disturbances.

4394 These debates, which were very intense, revealed a tendency to move towards a rather restrictive definition of non-international armed conflict which was in danger of no longer being fully in line with common Article 3 . In order to avoid the risk of the scope of Article 3 being reduced by an excessively narrow definition, one delegation proposed a separate definition in order that the Protocol should become complete in itself; (47) in the way, thanks to the autonomy of the respective instruments, Article 3 would retain an independent existence. This proposal is important, for up to then the scope of application of the instrument in preparation had always been envisaged as derived from common Article 3 , i.e., a Protocol applicable in all situations covered by Article 3 .

4395 As regards the treatment of persons who have participated in hostilities and have fallen into the power of the adverse party, and the penal prosecutions to which they may be subject, the ICRC proposals were not always well received, because they granted more extensive guarantees to those who complied with the [p.1332] rules of the Protocol. (48) Some experts favoured specific protection for combatants captured in armed conflicts of a particular degree of severity; thus their position was linked with the definition of conflicts (as contained in Article 1 of the draft). The special case of a combatant in a war of liberation was raised on this occasion, with the same stands taken as for the definition of the scope of application.

4396 In the end some would have wished to broaden the range of persons entitled to prisoner-of-war treatment in case of capture by analogy with Article 4 of the Third Convention with appropriately flexible conditions, following the example of those laid down in draft Protocol I (guerrilla combatants). (49)

4397 In general it seems unrealistic to establish combatant status for persons who have participated in hostilities and have been captured in non-international armed conflicts. In fact, such status would be incompatible, first, with respect for the principle of sovereignty of States, and secondly, with national legislation which makes rebellion a crime. On the other hand, a trend emerged among the experts in favour of granting captured insurgents not so much a treatment sui generis, but a treatment in accordance with the requirements of humanitarian law, identical for all persons deprived of their liberty for reasons related to the conflict. Such a solution would make it possible to avoid a reference to Article 4 of the Third Convention or to Protocol I. The same idea had already been advanced by the experts from Canada in 1971. (50)

4398 The same difference of opinion regarding the extent to which guarantees should actually be granted those captured, also arose with regard to penal prosecution, and particularly with regard to the death penalty. (51)

4399 The ICRC's proposal that members of armed forces or of armed groups who had acted in accordance with the law of armed conflict should no longer be liable to the death penalty for the sole fact of having taken part in hostilities, led to heated debates. That proposal was modest enough as it applied only to that particular case and did not prejudice the prosecution of criminal offences in any way. However, the experts found it difficult to reconcile the elimination of the death penalty with the imperative needs of internal security; therefore some considered that it would be better to deal with the matter by procedural means and by granting a reprieve.

4400 The experts from the United States advanced a proposal to this effect, recommending: (52)

a) the granting of fundamental judicial guarantees;
b) the right of appeal or petition from any sentence;
c) a death sentence imposed on any person belonging to armed forces or armed groups, whose guilt arises only by reason of his having taken part in the combat, shall not be carried out until the hostilities have ceased;
d) endeavouring to grant a general amnesty at the conclusion of the hostilities.

[p.1333] This compromise proposal was subsequently largely adopted.

4401 Other important problems, such as the protection of the civilian population or humanitarian assistance (53) were studied. These were matters related to the ICRC draft as a whole. It should be underlined in this respect that, as far as the protection of the civilian population is concerned, the discussion was not about the principle itself, which was universally admitted, but about the substance of the rules to be included in Protocol II. The question was up to what point it should be kept on parallel lines with Protocol I in this field. Finally, it should be noted that the exchange of views on relief foreshadowed serious difficulties in reaching an agreement, and raised many problems, for example, on the question of how to ensure that the principle of non-interference would be observed. An expert went so far as to raise the question of the extent to which the duration of a conflict might even be prolonged by providing relief necessary for the survival of the civilian population, and this in turn brought up the problem of blockades. (54)

' The Diplomatic Conference '

' The 1973 draft '

4402 This draft, which formed the basis for the work of the Diplomatic Conference, was drawn up by the ICRC, and very largely took into account the views expressed by the experts in 1972; it considerably differs therefore from the preceding draft.

4403 It contains forty-nine provisions, divided into eight parts and has four main features:

-- the structure is similar to that of draft Protocol I, due to the fact that the subject matter of the two instruments is closely connected;
-- rules are formulated more simply and succinctly from a concern to adapt them to the special context of non-international armed conflict;
-- co-existence with common Article 3 , each remaining autonomous. This is a fundamental change in comparison with the 1972 draft. The ICRC accepted the point of view expressed by numerous experts, that it is desirable that common Article 3 and Protocol II should co-exist autonomously: in fact, to link the Protocol to common Article 3 would have resulted in restricting the latter's scope of application. But it is important that, on the contrary, the scope of common Article 3 remains unchanged, since it confers fundamental guarantees upon the victims of all non-international armed conflicts. (55) According to this point of view, draft Protocol II is no longer additional only to common Article 3 , but to the Geneva Conventions as a whole. Article 3 , which has a broad scope of application, will continue to apply in all non-international armed conflicts, while Protocol II would apply to situations specified in the definition given in its Article 1 ;


-- the draft does not specify special categories of protected persons who would be entitled to particular treatment, but lays down a certain number of fundamental guarantees for the benefit of all persons in the power of parties to the conflict.

4404 These few basic features are intended merely "to place" the draft in context. For the rest, the reader should refer to the text itself. (56)

' Negotiations during the Diplomatic Conference '

4405 The organization of the Conference and the rules of procedure are outlined in the general introduction. (57) However, we should mention here a decision which, in this field, had important consequences for the ' travaux préparatoires ' of Protocol II.

4406 The two draft Protocols submitted to the Conference were based on the same structure; for that matter, the interrelation of the subject matter led the Conference to consider the two drafts in parallel on the President's proposal.

4407 Opting for this procedure had the advantage of avoiding the risk that Protocol II should be treated as a "poor relation". In fact, there may have been reason to fear that consideration of Protocol II could have been left or postponed until the last minute. On the other hand, the simultaneous consideration of the two drafts entailed the disadvantage of the text becoming rather more ponderous in comparison with the initial draft. In fact, what might be called a "maximalist tendency" -- the opinion of delegates who were in favour of a Protocol with the same tenor for both categories of conflicts, i.e., international and non-international conflicts -- in some cases resulted in the adoption of rules which were more detailed than they had been initially.

4408 In the first session it was not really possible to deal with the substance of Protocol II (with the exception of Committee III), but the work was divided amongst the various Committees, each of which was given a certain number of articles to consider. Furthermore, this first session marked an important turning point, because wars known as "wars of liberation" were excluded from Protocol II and were henceforth included among international conflicts by the adoption of Article 1 of draft Protocol I.

4409 Negotiations on Protocol II really got underway during the second session of the Conference. The procedure of parallel consideration of the two drafts was followed up to the end of the work of the Conference.

4410 When the Committees had completed their work, approximately two weeks before the end of the Conference, the draft Protocol II resulting therefrom was more complete and detailed than the ICRC draft. By analogy with draft Protocol I, some provisions had been added, such as the protection of cultural objects and places of worship and the general protection of civilian objects; other articles which were contained in the initial draft in a simplified form, had been transposed from draft Protocol I to draft Protocol II in such a way that the wording was no [p.1335] longer restricted only to basic rules, but also covered the various ways of implementing them.

4411 The more comprehensive character of the draft resulting from the work of the Committees is a consequence of the parallel consideration given to the two instruments, and of the interrelation of their subject matter. However, it can also be explained by the scope of application which is clearly defined in Article 1 of the draft, and which could have allowed for the adoption of more detailed rules.

4412 A few days before the beginning of the final plenary meetings it became clear that the draft produced by the Committees would not be acceptable to everyone, and in any case would not be adopted by consensus. A number of delegations revealed their reluctance and again expressed the fears which they had shown since the beginning of the undertaking. These fears were related to two aspects: on the one hand, they did not believe that the draft provided sufficient guarantees for respect due to national sovereignty and for non-interference with internal affairs; on the other hand, some of the rules seemed to be too detailed to be realistic or to be able genuinely to be applied in the specific context of internal armed conflicts.

4413 After a number of unofficial consultations, the head of the Pakistani delegation took the initiative of producing a simplified draft of Protocol II, which could meet the concerns which had been expressed. (58)

4414 What was the tenor of this draft? Reduced by half (24 articlesinstead of 48), it retained the same structure as the initial draft and did not include any drafting modifications in the articles that were retained. The new proposal did not intend that the formulae which had slowly come to fruition in the Committees should be renegotiated, but consisted of deletions in the text of the draft in order to remove the obstacles to adopting it.

4415 Thus all the elements considered to contain any possibility at all of being interpreted in the sense of a recognition of insurgent parties were deleted. This was the case with regard to the provision on the equality of the rights and duties of the parties to the conflict as, according to some, it could have given rise to beginnings of recognition. Such extreme caution also led to the deletion of the the "parties to the conflict" throughout the draft. (59)

4416 The strictly humanitarian rules were retained, with simplified wording: for example, as the protection of children, which was dealt with in very detailed provision, seemed unrealistic, it was retained as a principle only and inserted in the article relating lo fundamental guarantees. In the end all the rules dealing with the conduct of hostilities, except for the question of quarter, were left out of the draft, but is nevertheless retained the general principle that the civilian population and works and installations containing dangerous forces should be protected. It should be noted that a simplified set of rules of this type had already been recommended by the Canadian delegation during the second session, [p.1336] though this had not taken the form of an amendment. (60) There is little doubt that to some extent the Pakistani delegate followed this Canadian draft. As regards the scope of application, the proposal for the simplified Protocol included Article 1 of the draft as adopted by the Committee; the proposal, with its high threshold of application and greatly simplified rules, left common Article 3 intact.

4417 Numerous unofficial negotiations took place during the following days and meetings of regional groups were held. In record time, about four days, the fate of Protocol II was sealed, with an agreement which may not have satisfied everyone, but which did allow it to be adopted by consensus.

4418 One important procedural point remained for the Conference to settle: what was the status of the new draft in relation to that prepared by the Committees? The President of the Conference suggested that the simplified version of the text adopted in Committee should be considered as an amendment to the latter. (61) That proposal was accepted. The draft prepared by the Committees was therefore retained as a working basis, while the simplified draft was submitted as an amendment, article by article, as each article was dealt with. The prior agreements were instrumental in the plenary meeting to resolve the matter. Protocol II, in the form it was adopted, corresponds to the proposal put forward by Pakistan as supplemented on various points. In fact, some rules which the Pakistani draft wanted to be deleted were nevertheless retained, following a vote. In this respect the protection of objects necessary for the survival of the civilian population can be quoted, as well as the protection of cultural objects and places of worship and a much abbreviated provision on relief. After an article by article examination in plenary meetings, Protocol II was adopted as a whole by consensus on 8 June 1977. (62) Some delegations were rather disappointed, for the result fell short of their hopes, especially because of the high threshold for applying the instrument. Such regrets should not be disregarded, but nevertheless it should not be forgotten that Protocol II constitutes a body of minimum rules developed and accepted by the international community as a whole. Although it was not possible to go as far as one might have wished, the consensus in this particular case, apart from its intrinsic value, indicates an undeniable moral weight.

' S.J. '

* (1) [(1) p.1319] We should mention the exception created by armed conflicts in which peoples fight against colonial domination and alien occupation, and against racist régimes, as these are considered as international armed conflicts. See Art. 1, para. 4, Protocol I, and Art. 1, para. 1, Protocol II, as well as the commentary thereon, supra, p. 41 and infra, p. 1347;

(2) [(2) p.1319] A situation of armed conflict may also exist in which armed factions fight against each other without intervention by the armed forces of the established government. See commentary Art. 1, infra, p. 1351;

(3) [(3) p.1319] See commentary Art. 1, para. 2, infra, p. 1354;

(4) [(4) p.1320] On this point, see CE/5b, pp 36-37;

(5) [(5) p.1320] E. de Vattel, ' Le droit des gens ou principes du droit naturel, ' Neuchâtel, 1758, Edition Carnegie, 1916, book III, chapter XVIII, p. 238;

(6) [(6) p.1320] See J. Siotis, ' Le droit de la guerre et les conflits armés d'un caractère non international, ' Paris, 1958. According to that author the only examples of express recognition that can be given took place:
a) on the occasion of the American Civil War when a decision of Congress intervened (pp. 78-90);
b) during the American War of Independence, when the British parliament adopted a law governing trade with the
insurgent colonies (p. 56);
c) during the Colombian War of Independence when a treaty was signed by Simon Bolivar and the Spanish General Murillo, to legalize the war (p. 68);

(7) [(7) p.1321] On this point reference may be made to Ch. Zorgbibe, La guerre civile, Paris, 1958, pp. 45-51;

(8) [(8) p.1321] Such an act of recognition is equivalent to a declaration of neutrality and creates the same obligations for the third State as if it were a neutral State in an international conflict;

(9) [(9) p.1322] Translated by the ICRC. Original French: "Les tierces puissances ne peuvent reconnaître au parti révolté la qualité de belligérant:
1. s'il n'a pas conquis une existence territorial distincte par la possession d'une partie déterminée du territoire national;
2. s'il n'a pas réuni les éléments d'un gouvernement régulier exerçant en fait, sur cette partie du
territoire, les droits apparents de la souveraineté;
3. si la lutte n'est pas conduite, en son nom, par des troupes organisées, soumises à la discipline militaire et se conformant aux lois et coutumes de la guerre." ' Annuaire IDI, ' 1897-1904, p. 639;

(10) [(10) p.1322] See Ch. Zorgbibe, op. cit., pp. 71-97;

(11) [(11) p.1322] J. Siotis, op. cit., pp. 116-117, details the reasons for these controversies;

(12) [(12) p.1322] Resolution XIV, "Civil War", ' International Red Cross Handbook, ' 12th ed., Geneva, 1984, pp. 641-642;

(13) [(13) p.1323] Resolution XIV, "Role and Activity of the Red Cross in Time of Civil War", ' International Red Cross Handbook, ' op. cit., pp. 642-643;

(14) [(14) p.1324] Resolution 1514 (XV) and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States (Resolution 2625 XXV)) are the most important of these;

(15) [(15) p.1324] See commentary Arts. 1, para. 4, and 96, para. 3, of Protocol I, supra, p. 41 and p. 1088, which deal with this question in detail. Mentioning it in this introduction has the sole object of broadly outlining the development of the rules governing non-international armed conflicts;

(16) [(16) p.1324] ' Commentaries I, II, III and IV, ' respectively, pp. 37-61, 31-39, 27-43 and 25-44;

(17) [(17) p.1324] See commentary Art. 1, para. 1, Protocol II, infra, p. 1350;

(18) [(18) p.1324] The characteristic features of common Article 3 and of Protocol II are referred to in the introduction to Part I, Protocol II, infra, p. 1343;

(19) [(19) p.1326] Resolution XIX, "Relief in the Event of Internal Disturbances";

(20) [(20) p.1326] Aware of this important omission, in its Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, the ICRC had provided for those Rules to apply in all armed conflicts, both international and interna; (Art. 2, para. (b)). See also introduction to Part IV, Protocol II, infra, p. 1443;

(21) [(21) p.1326] Resolution XIX, "Relief in the Event of Internal Disturbances";

(22) [(22) p.1326] Resolution XVIII, "Protection of Civilian Population against the Dangers of Indiscriminate Warfare"; Resolution XXXI, "Protection of Victims of Non-International Conflicts", ' International Red Cross Handbook ', op. cit., pp. 626-627 and 643-645;

(23) [(23) p.1327] This was followed in the same year by Resolution 2444 (XXIII) with the same title, adopted by the United Nations General Assembly. See also supra, general introduction to the Commentary on the Protocols;

(24) [(24) p.1327] See commentary Preamble and introduction to Part II, infra, p. 1337 and 1365;

(25) [(25) p.1327] See the XXIst International Conference of the Red Cross, 1969, "Reaffirmation and development of the laws and customs applicable in armed conflict" (Doc. D.S.4), pp. 97 ff. and "Protection of victims of non-international conflicts" (Doc. D.S.5);

(26) [(26) p.1327] Resolution XVII, "Protection of Victims of Non-International Armed Conflicts";

(27) [(27) p.1327] Resolution XVIII, "Status of Combatants in Non-International Armed Conflicts": "Combatants and members of resistance movements who participate in non-international armed conflicts and who conform to the provisions of Article 4 of the Third Geneva Convention of 12 August 1949 should when captured be protected against any inhumanity and brutality and receive treatment similar to that which that Convention lays down for prisoners of war;

(28) [(28) p.1327] Cf. ICRC, ' Preliminary, Report on the Consultation of Experts concerning Non-International Conflict and Guerrilla Warfare ', Geneva, 1970 (D 1153b);

(29) [(29) p.1327] ' CE/5b ', 1971;

(30) [(30) p.1327] ' CE 1971, Report ', pp. 33-65, paras. 93-356 and Annexes;

(31) [(31) p.1328] Ibid., p. 61, CE/COM II/1. Norway, which put forward this proposal, maintained this position throughout
the work of the Diplomatic Conference;

(32) [(32) p.1328] Ibid., p. 62, CE/COM II/5;

(33) [(33) p.1328] ' CE/5b ', p. 43;

(34) [(34) p.1328] ' CE 1971, Report ', p. 57, CE/Plen/2 bis;

(35) [(35) p.1329] ' CE 1972, Basic texts ', pp. 35-45;

(36) [(36) p.1329] Ibid., p. 33;

37) [(37) p.1329] See infra, p. 1359. ' CE 1971, Report ', p. 57, CE/Plen/2 bis;

38) [(38) p.1329] ' CE 1972, Basic Texts ', pp. 40-42 (Chapters VI and VII); ' CE 1972, Commentaries ', Part II, pp. 48-62;

(39) [(39) p.1329] This proposal reiterates that of Resolution XVIII of the XXIst International Conference of the Red Cross, quoted supra, p. 1327 and note 27;

(40) [(40) p.1330] ' CE 1972, Basic Texts ', pp. 38-39 (Chapter IV); ' CE 1972, Commentaries ', Part II, pp. 31-44;

(41) [(41) p.1330] ' CE 1972, Basic Texts ', pp. 42-43 (Chapter VIII); ' CE 1972, Commentaries ', Part II, pp. 63-73;

(42) [(42) p.1330] ' CE 1972, Basic Texts ', p. 46;

(43) [(43) p.1330] Ibid;

(44) [(44) p.1331] ' CE 1972, Report ', Vol. I, pp. 53-99, paras. 2.1-2.350;

(45) [(45) p.1331] Ibid., pp. 70-72, paras. 2.71-2.106;

(46) [(46) p.1331] Ibid., Vol. II, pp. 35-36, CE/COM II/14;

(47) [(47) p.1331] Ibid., p. 33, CE/COM II/1 (United States);

(48) [(48) p.1332] ' CE 1972, Basic Texts ', pp. 40-42 (Arts. 25, 26, 28);

(49) [(49) p.1332] Ibid., p. 14 (draft Protocol 1, Art. 38);

(50) [(50) p.1332] ' CE 1971, Report ', p. 57, CE/Plen/2 bis, Art. 19;

(51) [(51) p.1332] ' CE 1972, Report ', Vol. I, pp. 84-87, paras. 2.209-2.235;

(52) [(52) p.1332] Ibid. Vol. II, p. 41, CE/COM II/49;

(53) [(53) p.1333] Ibid., Vol. I, pp. 72-73, paras. 2.107-2.113; pp. 84-87, paras. 2.236-2.278;

(54) [(54) p.1333] See commentary Art. 14, infra, p. 1455;

(55) [(55) p.1333] O.R. VIII, p. 204, CDDH/I/SR.22, para. 16;

(56) [(56) p.1334] The draft is contained in O.R. I, Part III, pp. 33-46;

(57) [(57) p.1334] See supra, general introduction to the Commentary;

(58) [(58) p.1335] This project was submitted to the Conference under number CDDH/427. It is included in O.R. IV in the form of an amendment to each Article of Protocol II;

(59) [(59) p.1335] See commentary Preamble, infra, p. 1337;

(60) [(60) p.1336] Draft (CDDH/212) contained in O.R. IV with respect to various articles;

(61) [(61) p.1336] O.R. VII pp. 64-65, CDDH/SR.49, paras. 26-36;

(62) [(62) p.1336] Ibid., p. 205 CDDH/SR.56, para. 62; This was the case with regard to the provision on the equality of the rights and duties of the parties to the conflict as, according to some, it could have given rise to beginnings of recognition. Such extreme caution also led to the deletion of the the "parties to the conflict" throughout the draft. (59)