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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 Non-International Armed Conflicts (Protocol II), 8 June 1977.
Commentary
of 1987
Material field of application
[p.1347] Article 1
-- Material field of application
[p.1348] General remarks
4446 As the heading indicates, Article 1 defines the material field of application of the Protocol, i.e., it determines the circumstances in
which it applies. This provision constitutes the keystone of the
instrument. It is the result of a delicate compromise, the product of
lengthy negotiations, and the fate of the Protocol as a whole
depended on it until it was finally adopted in the plenary meetings
of the Conference. (1)
4447 At first sight the article seems to be based on complicated concepts. In fact, the Protocol only applies to conflicts of a
certain degree of intensity and does not have exactly the same field
of application as common Article 3
, which applies in all situations
of non-international armed conflict. Why there are these different
steps in the applicable legal system can be more easily explained in
the light of a brief historical survey.
4448 Common Article 3
does not contain a definition of armed conflict. (2) In the absence of clarity of this concept, it gave rise
to a great variety of interpretations and in practice its
applicability was often denied. To improve the protection of the
victims on non-international armed conflicts it proved necessary not
only to develop the rules, but also to find more objective criteria
to determine whether they are applicable and to reduce the measure of
discretion left to each government.
4449 Initially two possibilities had been envisaged: either to establish a procedure for determining objectively whether an armed
conflict existed, or to clarify the concept of non-international
armed conflict, i.e., to select a number of concrete material
elements so that, when these elements are present, the authorities
concerned could no longer deny the existence of a conflict.
4450 It became apparent during the Conference of Government Experts that the first above-mentioned procedure would be too difficult to
achieve. (3) Therefore this left the second solution, i.e., to
formulate a definition, although everyone was fully aware of the
risks incurred by such an undertaking. The applicability of common
Article 3
was often not recognized because of the absence of a
definition, but too rigid or too restrictive a definition would
entail the risk of the Protocol not applying either. The work of the
Conference of Government Experts showed [p.1349] how many divergent
views and possible solutions existed. Six variants were formulated,
based on thirteen proposals. The first was based on the view that a
single Protocol should apply to all types of armed conflict without
distinguishing between them; the other five, which only applied to
non-international armed conflicts, ranged from the broadest
conceivable definition, covering all situations, including those
where the level of strife was very low, to the narrowest possible
definition, covering only very intense conflicts with all the
material characteristics of a war. (4) Taking the views that were
expressed into account, the ICRC attempted in its draft to propose a
formula defining the characteristics of non-international armed
conflicts, while remaining sufficiently general and flexible to be
able to apply to all such situations. (5)
4451 The draft endeavoured to meet three concerns:
1) to establish the upper and lower thresholds of non-international armed conflict;
2) to provide the elements of a definition;
3) to ensure that the achievements of common Article 3
would remain intact.
4452 The upper threshold was defined by reference to armed conflicts within the meaning of common Article 2
of the Conventions. This
formula was retained, but updated by referring instead to conflicts
as covered by Article 1
of Protocol I ' (General principles and scope
of application). '
4453 The exclusion of situations of internal disturbances and tensions from the Protocol's field of application determined the lower
threshold. This proposal, which corresponded with the views of the
majority of the experts consulted previously, was also adopted and is
now contained in paragraph 2 of the present text. The ICRC proposed a
broad definition based on material criteria: the existence of a
confrontation between armed forces or other organized armed groups
under responsible command, i.e., with a minimum degree of
organization. As its representative submitting the draft article in
Committee explained, the intention was "to specify the
characteristics of a non-international armed conflict by means of
objective criteria so that the Protocol could be applied when those
criteria were met and not be made subject to other
considerations". (6) Although the basic idea underlying the proposal
was approved, it turned out to be very difficult to achieve a
consensus as to what criteria should be used in the definition. Apart
from amendments, numerous proposals were put forward in the Working
Group and Sub-Group. It was in fact necessary to create a Sub-Group
of the Working Group and this had to meet six times before reaching
an agreement. (7) The three criteria that were finally adopted on the
side of the insurgents i.e. -- a responsible command, such control
over part of the territory as to enable them to carry out sustained
and concerted military operations, and the ability to implement the
Protocol -- restrict the applicability of the Protocol to conflicts
of a certain degree of intensity. This means that not all cases of
non-international armed conflict are covered, as is the case in
common Article 3
.
[p.1350] 4454 Finally, the ICRC draft endeavoured to keep intact the achievements of common Article 3
by providing that the conditions of
application of that article would not be modified. Keeping the
conditions of application of common Article 3
as they are, and
stipulating that the proposed definition will not apply to that
article, meant that the Protocol was conceived as a self-contained
instrument, additional to the four Conventions and applicable to all
armed conflicts which comply with the definition and are not covered
by common Article 2
. Keeping the Protocol separate from common
Article 3
was intended to prevent undercutting the scope of Article 3
itself by laying down precise rules. In this way common Article 3
retains an independent existence.
4455 As adopted, Article 1 of the Protocol takes into account most of these proposals, which are explicitly set out in paragraph 1.
Paragraph 1
4456 On the one hand, paragraph 1 establishes the link between the Protocol and common Article 3
; on the other, it distinguishes
international armed conflicts from non-international armed conflicts
by means of a negative reference to Article 1
of Protocol I
' (General principles and scope of application). ' Finally, it lays
down the material criteria determining the circumstances in which the
Protocol is applicable.
1. ' The link with common Article 3
'
4457 Formally, the Protocol is additional to the four Conventions. In order to reinforce and increase the protection granted to victims of
non-international armed conflict -- the ' raison d'être ' of Protocol
II -- it develops and supplements the brief rules contained in common
Article 3
"without modifying its existing conditions of application".
This explicit reference constitutes one of the bases of the
compromise which made the adoption of Article 1 possible. In fact,
the Conference chose in favour of the solution which makes the scope
of protection dependent on intensity of the conflict. Thus, in
circumstances where the conditions of application of the Protocol are
met, the Protocol and common Article 3
will apply simultaneously, as
the Protocol's field of application is included in the broader one of
common Article 3
. On the other hand, in a conflict where the level of
strife if low, and which does not contain the characteristic features
required by the Protocol, only common Article 3
will apply. (8) In
fact, common Article 3
retains an autonomous existence, i.e., its
applicability is neither limited nor affected by the material field
of application of the Protocol. This formula, though legally rather
complicated, has the advantage of furnishing a guarantee against any
reduction of the level of protection long since provided by common
Article 3
.
[p.1351]
2. ' The distinction between international and non-international
conflicts '
4458 Taking into account the link established with common Article 3
, the Protocol applies to all armed conflicts which are not covered by
Article 1
of Protocol I ' (General principles and scope of
application). ' By excluding situations covered by Protocol I, this definition creates the distinction between international and
non-international armed conflicts. The entities confronting each
other differ, depending on which category the conflict falls under;
in a non-international armed conflict the legal status of the parties
involved in the struggle is fundamentally unequal. Insurgents
(usually part of the population), fight against the government in
power acting in the exercise of the public authority vested in
it. (9) This distinction sets the upper threshold for the
applicability of the Protocol.
3. ' The objective criteria '
4459 This paragraph lays down a number of objective criteria for determining the field of application of the Protocol. Its application
should not depend on the discretionary judgment of the parties. The
Protocol applies automatically as soon as the material conditions as
defined in the article are fulfilled. The aim of this system is that
the protection of the victims of armed conflict should not depend on
an arbitrary decision of the authorities concerned -- this is one of
the cornerstones of international humanitarian law and already
applied to Articles 2
and 3
common to the 1949 Conventions.
3.1.' The parties confronting each other '
4460 The Protocol applies on the one hand in a situation where the armed forces of the government confront dissident armed forces, i.e.,
where there is a rebellion by part of the government army or where
the government's armed forces fight against insurgents who are
organized in armed groups, which is more often the case. This
criterion illustrates the collective character of the confrontation;
it can hardly consist of isolated individuals without co-ordination.
4461 In its draft the ICRC had provided that the Protocol would be applicable in the case of several factions confronting each other
without involvement of the government's armed forces, for example, if
the established government had disappeared or was too weak to
intervene. (10) Such a situation, it appeared to the Conference, was
merely a theoretical textbook example and the provision was dropped,
even though the ICRC had already been confronted with this type of
situation. Thus unfortunately the definition does not cover such
cases and only common Article 3
will apply to them. Of course, the
possibility will always exist [p.1352] of putting the Protocol into
force by special agreement, as provided by common Article 3
. (11)
4462 The term "armed forces" of the High Contracting Party should be understood in the broadest sense. In fact, this term was chosen in
preference to others suggested such as, for example, "regular armed
forces", in order to cover all the armed forces, including those not
included in the definition of the army in the national legislation of
some countries (national guard, customs, police forces or any other
similar force). (12)
3.2.' The responsible command '
4463 The existence of a responsible command implies some degree of organization of the insurgent armed group or dissident armed forces,
but this does not necessarily mean that there is a hierarchical
system of military organization similar to that of regular armed
forces. It means an organization capable, on the one hand, of
planning and carrying out sustained and concerted military
operations, and on the other, of imposing discipline in the name of a
de facto authority.
3.3.' Control over a part of the territory '
4464 The article provides that the armed groups of the opposition must be able to exercise "such control over a part of [the High
Contracting Party's] territory as to enable them to carry out
sustained and concerted military operations and to implement this
Protocol".
4465 These various criteria are closely related. Control over a part of the territory requires that the insurgent armed groups are
organized. (13) What part of the territory should be controlled is
not specified. In fact, several proposals were made with a view to
specifying that this should be "a non-negligible part of the
territory" (14) or a "substantial part of the territory", (15) but
they were not adopted by the Conference.
4466 The word "such" provides the key to the interpretation. The control must be sufficient to allow sustained and concerted military
operations to be carried out. (16) and for the Protocol to be
applied, i.e., for example, caring for the wounded and the sick, or
detaining prisoners and treating them decently, as provided in
Articles 4
' (Fundamental guarantees) ' and 5
' (Persons whose
liberty has been restricted). '
4467 In many conflicts there is considerable movement in the theatre of hostilities; it often happens that territorial control changes
hands rapidly. Sometimes domination of a territory will be relative,
for example, when urban centres remain [p.1353] in government hands
while rural areas escape their authority. In practical terms, if the
insurgent armed groups are organized in accordance with the
requirements of the Protocol, the extent of territory they can claim
to control will be that which escapes the control of the government
armed forces. However, there must be some degree of stability in the
control of even a modest area of land for them to be capable of
effectively applying the rules of the Protocol.
3.4.' The sustained and concerted character of military operations '
4468 In fact, it is the "sustained and concerted military operations" which effectively determine control of a territory. What does this
mean exactly?
4469 "Sustained" (in French the reference is to "opérations continues") means that the operations are kept going or kept up
continuously. (17) The emphasis is therefore on continuity an
persistence. "Concerted" (in French: "concertées") means agreed upon,
planned and contrived, done in agreement according to a plan. (18)
Thus we are talking about military operations conceived and planned
by organized armed groups. The criteria of duration and
intensity (19) were not retained as such in the definition because
they would have introduced a subjective element. The applicability of
the rules of protection of the Protocol must not in fact depend on
the subjective judgment of the parties. On the other hand, the
criterion whether military operations are sustained and concerted,
while implying the element of continuity and intensity, complies with
an objective assessment of the situation. At the beginning of a
conflict military operations rarely have such a character; thus it is
likely that only common Article 3
will apply to the first stage of
hostilities.
3.5.' Ability to implement the Protocol '
4470 This is the fundamental criterion which justifies the other elements of the definition: being under responsible command and in
control of a part of the territory concerned, the insurgents must be
in a position to implement the Protocol. The threshold for
application therefore seems fairly high. Yet, apart from the fact
that it reflects the desire of the Diplomatic Conference, it must be
admitted that this threshold has a degree of realism. The conditions
laid down in this paragraph 1, as analysed above, correspond with
actual circumstances in which the parties may reasonably be expected
to apply the rules developed in the Protocol, since they have the
minimum infrastructure required therefor.
[p.1354] Paragraph 2
4471 This paragraph expressly excludes situations of internal disturbances and tensions from the Protocol's field of application,
as these are not considered as armed conflicts. (20)
4472 It should be stressed that the criteria laid down in paragraph 1, taken by themselves, are clearly sufficient to exclude internal
disturbances and, a fortiori, internal tensions.
4473 This paragraph was taken from the ICRC draft (21) and made sense in the context of the original draft article. Its purpose was to
define the lower threshold of the concept of armed conflict, assuming
that the field of application of common Article 3
and the Protocol
would be identical. (22) The paragraph was not questioned and was
retained and adopted without lengthy debates. (23)
4474 No real definitions are given. The concept of internal disturbances and tensions may be illustrated by giving a list of
examples of such situations without any attempt to be exhaustive:
riots, such as demonstrations without a concerted plan from the
outset; isolated and sporadic acts of violence, as opposed to
military operations carried out by armed forces or armed groups;
other acts of a similar nature, including, in particular, large scale
arrests of people for their activities or opinions. (24)
4475 As the ICRC has a legally recognized right of initiative to offer its services with a view to assisting and protecting the victims in
such situations, (25) it has for a long [p.1355] time been attempting
to define them in order to better guide its activities. Originally
draw up for internal use, some definitions were submitted in
particular to a group of government experts in 1970. (26) On the
basis of their comments the ICRC gave the following description of
internal disturbances during the first session of the Conference of
Government Experts in 1971: (27)
"This involves situations in which there is no non-international armed conflict as such, but there exists a
confrontation within the country, which is characterized by a
certain seriousness or duration and which involves acts of
violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the
struggle between more or less organized groups and the
authorities in power. In these situations, which do not
necessarily degenerate into open struggle, the authorities in
power call upon extensive police forces, or even armed
forces, to restore internal order. The high number of victims
has made necessary the application of a minimum of
humanitarian rules."
4476 As regards ' internal tensions, ' (28) these could be said to include in particular situations of serious tension (political,
religious, racial, social, economic, etc.), but also the sequels of
armed conflict or of internal disturbances. Such situations have one
or more of the following characteristics, if not all at the same
time:
-- large scale arrests;
-- a large number of "political" prisoners; (29)
-- the probable existence of ill-treatment or inhumane conditions of detention;
-- the suspension of fundamental judicial guarantees, either as part of the promulgation of a state of emergency or simply as a matter
of fact;
-- allegations of disappearances.
4477 In short, as stated above, there are internal disturbances, without being an armed conflict, when the State uses armed force to
maintain order; there are internal tensions, without being internal
disturbances, when force is used as a preventive measure to maintain
respect for law and order.
4478 These definitions are not contained in a convention but form part of ICRC doctrine (supra and note 27). While designed for practical
use, they may serve to shed some light on these terms, which appear
in an international law instrument for the first time.
[p.1356] 4479 Internal disturbances and tensions are not at present within the field of application of international humanitarian law; the ICRC has
carried out activities in this field on an ad hoc basis. (30)
However, this does not mean that there is no international legal
protection applicable to such situations, as they are covered by
universal and regional human rights instruments. (31) It is not
within the scope of this commentary, however, to go into that
subject.
' S. J. '
* (1) [(1) p.1348] See O.R. VII, pp. 66-73, CDDH/SR.49, paras. 37-83. Article 1 was adopted as the result of a vote by roll-call (by 58 votes to 5, with 29 abstentions);
(2) [(2) p.1348] See ' Commentary I ', pp. 49-51, and the
introduction to this Part, supra, p. 1343;
(3) [(3) p.1348] ' See CE 1971, Report ', p. 37;
(4) [(4) p.1349] ' See CE 1972, Report ', Vol. I, p. 71. O.R. VIII, p. 203, CDDH/I/SR.22, para. 11;
(5) [(5) p.1349] Draft Art. 1;
(6) [(6) p.1349] See O.R. VIII. p. 203, CDDH/I/SR.22, para. 12;
(7) [(7) p.1349] See O.R. X, pp. 93-94, CDDH/I/238/Rev.1;
(8) [(8) p.1350] Mention should also be made of the possibility that armed factions confront each other
without the armed forces of the government being involved;
see infra, p. 1351;
(9) [(9) p.1351] See O.R. VIII, pp. 203-204, CDDH/I/SR.22, paras. 13-14;
(10) [(10) p.1351] ' Commentary Drafts, ' pp. 132-133;
(11) [(11) p.1352] Common Art. 3, para. 3;
(12) [(12) p.1352] O.R. X, p. 94, CDDH/I/238/Rev.1;
(13) [(13) p.1352] In this context "control" is synonymous with domination. Cf. Shorter Oxford English Dictionary (1978),
pp. 416 and 594;
(14) [(14) p.1352] O.R. IV, p. 8, CDDH/I/79;
(15) [(15) p.1352] Ibid., p. 7, CDDH/I/32;
(16) [(16) p.1352] See infra;
(17) [(17) p.1353] Shorter Oxford English Dictionary (1978), p. 2205;
(18) [(18) p.1353] Ibid. p. 389;
(19) [(19) p.1353] See O.R. IV, pp. 6-7, CDDH/I/26, CDDH/I/32, amendments which proposed formulae such as "the
hostilities are o some intensity and continue for a
reasonable period of time" and "over a prolonged period";
(20) [(20) p.1354] The English phrase "as not being" is rendered in French as "qui ne sont pas considérés" (which
are not considered as). This has no effect on the meaning;
(21) [(21) p.1354] Draft Art. 1, para. 2;
(22) [(22) p.1354] Art. 1, para. 1, of the draft read as follows: "The present Protocol shall apply to all armed
conflicts not covered by Article 2 common to the Geneva
Conventions of August 12, 1949, taking place between armed
forces or other organized armed groups under responsible
command"; see commentary para. 1, supra, p. 1350;
(23) [(23) p.1354] In this respect the delegation of the Federal Republic of Germany stated: "This article
constitutes a compromise solution which was difficult to
reach. An essential element of this compromise is the fact
that the existing conditions of application of Article 3
common to the Geneva Conventions are not modified. This is
clearly expressed in Article 1, paragraph 1, of Protocol
II. It also applies to paragraph 2 of the same article.
Consequently, the negative definition of the term armed
conflict in paragraph 2 applies only to Protocol II, not
to Article 3 common to the Geneva Conventions.Thi is the
understanding of the Federal Republic of Germany as to the
interpretation of Article 1 of Protocol II. It does not,
however, intend to express any view, be it only by
implication, on the meaning of the term armed conflict as
used in Article 3 common to the Geneva Conventions." See
O.R. VII, pp. 79-80, CDDH/SR.49, Annex (FRG);
(24) [(24) p.1354] See ' Commentary Drafts, ' p. 133;
(25) [(25) p.1354] The Statutes of the International Red Cross, Art. VI, para. 5: "neutral institution whose humanitarian
work is carried out particularly in time of war, civil
war, or internal strife, it endeavours at all times to
ensure the protection of and assistance to military and
civilian victims of such conflicts and of their direct
results [...]"; para 6: "It takes any humanitarian
initiative which comes within its role as a specifically
neutral and independent institution and intermediary and
considers any question requiring examination by such an
institution."
It should be noted that not only the constituent
bodies of the Red Cross Movement (ICRC, League, the
National Red Cross and Red Crescent Societies), but also
States Parties to the Geneva Conventions are members of
the International Conference of the Red Cross, the body
which adopted the Statutes and which can modify them. Cf.
also supra, Editors' note;
(26) [(26) p.1355] Cf. ' Preliminary Report on the Consultation of Experts Concerning Non-International Conflict and
Guerrilla Warfare, ' ICRC, Geneva, 1970, p. 2;
(27) [(27) p.1355] ' CE/5b ', p. 79, reproduced in ' The ICRC, the League and the Report on the Re-Appraisal of the Role
of the Red Cross ', ICRC, Geneva, 1979, pp. 24-25
(offprint first published in the IRRC of July-August 1978,
pp. 210-211);
(28) [(28) p.1355] Ibid;
(29) [(29) p.1355] It should be noted that there is no legal definition of so-called "political" prisoners. They may be
referred to in very different ways depending on national
legislation, for example, "persons detained for security
reasons", "persons detained by order of the executive",
etc;
(30) [(30) p.1356] On this point reference may be made to J. Moreillon, ' Le Comité international de la Croix-Rouge et
la protection des détenus politiques, ' Lausanne, 1973, p.
303;
(31) [(31) p.1357] See commentary Preamble, supra, p. 1337;
GVALNWB1/ICRC
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