Treaties, States Parties and Commentaries
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Commentary of 1987 
[p.1337] Preamble

[p.1338] General remarks

4419 This very brief preamble expresses several fundamental viewpoints which will serve as guidelines for the interpretation of the rules of the Protocol, explain the reasons which inspired them and help to provide for cases for which there are no provisions. (1) In contrast with the 1949 Conference, which had to abandon the idea of including a preamble for the Conventions because it was unable to come up with a formula which met with agreement, (2) and contrary to some negative views expressed during the Conference of Government Experts, on the basis of which difficulties in this respect might have been anticipated, (3) the ICRC draft was adopted by consensus without any amendment being submitted to the proposed text. (4)

"The High Contracting Parties"

4420 The High Contracting Parties are those States for which the Protocol is in force in the sense of Article 23 ' (Entry into force), ' either because they have ratified it, because the have acceded to it, or because they have expressed their will to be bound by it by means of a notification of succession.

4421 The term "High Contracting Party" should be understood to mea "Party" in the sense of the Vienna Convention on the Law of Treaties of 23 May 1969, i.e., "a State which has consented to be bound by the treaty and for which the treaty is in force". (5)

4422 The expression is frequently used throughout the Conventions and the Protocols. It has the same meaning and the same scope whenever used in these various instruments. (6)

4423 The regulation of non-international armed conflicts, i.e., common Article 3 of the Conventions and Protocol II, is based on the existence of two or more parties confronting each other. However, only the legal government, or the government in power, of the State Party to common Article 3 , or to Protocol II, is a "High Contracting Party"; in fact, even if the de facto authority leading the struggle against the government exercises the same rights and undertakes the same humanitarian obligations (7) in the context of those instruments, it is not a High Contracting Party in the eyes of the law. Following common Article 3 on [p.1339] this point, (8) the ICRC draft used the expression "parties to the conflict" to describe the entities involved in the conflict. (9) Every mention of parties to the conflict was subsequently deleted from the text from a concern that it might be interpreted as a recognition of the insurgent party. (10) As the Official Records of the Conference refer "parties to the conflict" with a lower case "p",(11) the Commentary follows the same course if only for the purpose of giving the necessary explanations for a better comprehension of the text.

First paragraph

4424 This paragraph reaffirms the great importance of common Article 3 , the "parent provision", thus presenting Protocol II as an extension of it.

4425 The humanitarian principles enshrined in that article are recognized as the foundation of the protection of the human person in cases of non-international armed conflict. What are these principles?

4426 They can be summarized by stating that they are fundamental guarantees of humane treatment (physical and mental integrity) for all those who do not, or who no longer participate in hostilities, and of the right to a fair trial. Respect for such humanitarian principles implies in particular protection of the civilian population, respect for the enemy ' hors de combat, ' assistance for the wounded and sick, and humane treatment for those deprived of their liberty. Protocol II reaffirms or develops these principles on the basis of these fundamental tenets which remain unchanged. The conditions under which they are to be applied are laid down in Article 1 ' (Material field of application). '

Second paragraph

4427 This paragraph establishes the link between Protocol II and the international instruments on human rights. The paragraph is based on a proposal made by the experts which was then included in the ICRC draft. (12)

4428 The term "international instruments relating to human rights" means the instruments adopted by the United Nations, i.e., on the one hand, the Universal Declaration of Human Rights and the Covenants derived from it, (13) in particular the Covenant on Civil and Political Rights, and on the other, the instruments concerning specific aspects of the protection of human rights, such as the [p.1340] Convention on genocide (14) and the Convention on the elimination of racial discrimination, (15) which are often invoked in situations of non-international armed conflict, and also the recent Convention on torture, (16) to mention only a few of the most important ones. Regional instruments relating to human rights also fall under this term. (17) It is the first time that the term is explicitly used in a treaty on humanitarian law.

4429 The Conventions and their additional Protocols have the same purpose as international instruments relating to human rights, i.e., the protection of the human person. However, these are two distinct legal systems, each with its own foundations and mechanisms, and international humanitarian law applies in situations of armed conflict. Human rights continue to apply concurrently in time of armed conflict. (18) The human rights treaties provide that some rights may be suspended "in time of public emergency which threatens the life of the nation", (19) i.e., when there is serious strife or conflict, and then only insofar as is strictly required by the exigencies of the situation. However, the provisions made in this respect do not allow for derogation from so-called fundamental rights protecting the human person, which guarantee respect for the physical and mental integrity of the person.

4430 This irreducible core of human rights, also known as "non-derogable rights", corresponds to the lowest level of protection which can be claimed by anyone at any time. Protocol II contains virtually all the irreducible rights of the Covenant on Civil and Political Rights, (20) which constitute the basic protection mentioned in the paragraph under consideration here. These rights are based on rules of universal validity to which States can be held, even in the absence of any treaty obligation or any explicit commitment on their part. It may be accepted that they form part of ' jus cogens. ' (21) This view may be controversial for some of these rights, but there is no doubt whatsoever as regards, for example, the prohibition of [p.1341] slavery and torture, even without entering into a discussion whether ' jus cogens ' exists at all. (22)

Third paragraph

4431 This paragraph underlines the ' raison d'être ' of the Protocol, i.e., the need to ensure a better protection for victims of non-international armed conflict. (23)

Fourth paragraph

4432 This is inspired by the so-called Martens clause, named after its author, which is contained in the Preambles of the 1899 and 1907 Conventions respecting the laws and customs of war on land.

4433 In the absence of a preamble, this clause had already been included in the Conventions in the article on denunciation. (24) Article 1 ' (General principles and scope of application), ' paragraph 2, of Protocol I uses a similar formula. (25) The wording of the paragraph under consideration here is shorter and takes into account the specific nature of non-international armed conflicts.

4434 If a case is "not covered by the law in force", whether this is because of a gap in the law or because the parties do not consider themselves to be bound by common Article 3 , or are not bound by Protocol II, this does not mean that anything is permitted. "The human person remains under the protection of the principles of humanity and the dictates of the public conscience": this clarification prevents an a contrario interpretation. Since they reflect public conscience, the principles of humanity actually constitute a universal reference point and apply independently of the Protocol.

4435 It should be noted that in contrast to Article 1 ' (General principles and scope of application), ' paragraph 2, of Protocol I, there is no mention of established custom. This should not be interpreted as a rejection on the part of the Conference, as the ICRC had not made a proposal to that effect in its initial draft. It was apparently felt that the regulation of non-international armed conflicts was too recent a matter for State practice to have sufficiently developed in this field. In our opinion this cautious point of view requires some clarification as there is more to it than that. Even though customary practices are traditionally only recognized as playing a role in international relations, the existence of customary norms in internal armed conflicts should not be totally denied. An example that might be given is the respect for and protection of the wounded. Irrespective of [p.1342] the qualification of the conflict as an internal or international conflict, the codes of conduct are not fundamentally different. (26) This is shown by the Lieber Code, (27) as it was developed for a civil war, based on the existing principles of the laws of war. In their turn the negotiators of the 1899 and 1907 Conventions did not hesitate to seek inspiration from it.

' S. J. '

* (1) [(1) p.1338] See the Vienna Convention on the Law of Treaties, Art. 31, para. 2;

(2) [(2) p.1338] Official Records of the 1949 Diplomatic Conference of Geneva, Vol. II, Section A, pp. 777-782; Vol. III, Annexes, pp. 95-99 and ' Commentary I, ' pp. 18-23;

(3) [(3) p.1338] ' CE 1972, Report ', Vol. I, p. 120, para. 2.535;

(4) [(4) p.1338] O.R. VII, p. 170, CDDH/SR.54, para. 43;

(5) [(5) p.1338] Vienna Convention, Art. 2 (Use of terms), para. 1(g);

(6) [(6) p.1338] See the more detailed commentary on the Preamble of Protocol I, supra, p. 25;

(7) [(7) p.1338] See the introduction to Part I of Protocol II, infra, p. 1343;

(8) [(8) p.1339] Common Art. 3, para. 4;

(9) [(9) p.1339] See in particular draft Art. 5;

(10) [(10) p.1339] O.R. IV p. 16, CDDH//427; O.R. VII, p. 61, CDDH/SR.49, para. 11;

(11) [(11) p.1339] At the suggestion of one delegation; see O.R. VIII, pp. 213-214, CDDH/I/SR.22, paras. 62-64;

(12) [(12) p.1339] ' CE 1972, Report ', Vol. I, p. 120, paras. 2.536-2.537 and 2.539;

(13) [(13) p.1339] The Universal Declaration was adopted by the United Nations in 1948; the International Covenants on Economic, Social and Cultural Rights, and on Civil and Political Rights, were both adopted on 16 December 1966 and entered into force on 3 January 1976 and 23 March 1976, respectively;

(14) [(14) p.1340] Convention on the Prevention and Punishment of the Crime of Genocide, adopted on 9 December 1948;

(15) [(15) p.1340] International Convention on the Elimination of All Forms of Racial Discrimination, adopted on 21 December 1965;

(16) [(16) p.1340] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984;

(17) [(17) p.1340] The European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted on 4 November 1950; American Convention on Human Rights, adopted on 22 November 1969; African Charter on Human and People's Rights, adopted on 26 June 1981; Arab Charter on human rights being prepared;

(18) [(18) p.1340] See Resolution 2675 (XXV) of the United Nations General Assembly;

(19) [(19) p.1340] See Art. 4 of the Covenant on Civil and Political Rights;

(20) [(20) p.1340] See Part II Protocol II and the introduction thereto, infra, p. 1365;

(21) [(21) p.1340] Vienna Convention on the Law of Treaties, Art. 53 -- Treaties conflicting with a peremptory norm of general international law (jus cogens): "[...] a peremptory norm of general international 1aw is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character";

(22) [(22) p.1341] Reference may be made in particular to: E. Suy, "The Concept of Jus Cogens in Public International Law", ' Carnegie Endowment for International Peace, ' 1967, "Convenance of International Law", Lagonissi, Greece, 3-8 April 1966; K. Marek, "Contribution à l'étude du jus cogens en droit international", ' Recueil d'études de droit international en hommage à P. Guggenheim, ' Geneva, 1968, p. 426; G. Perrin, "La nécessité et les dangers du jus cogens". in ' Studies and Essays in Honour of Jean Pictet, ' op. cit., p. 751;

(23) [(23) p.1341] See the general introduction to Protocol II, supra, p. 1325;

(24) [(24) p.1341] Art. 63/62/142/158. See Commentary I, p. 464 (Art. 63);

(25) [(25) p.1341] See the commentary thereon, supra, p. 38;

(26) [(26) p.1342] See F. Kalshoven, "Applicability of Customary International Law in Non-International Armed Conflicts" in A. Cassese (ed.), ' Current Problems of International Law, ' Milan, 1975, p. 268;

(27) [(27) p.1342] F. Lieber, op. cit;