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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
General principles and scope of application
[p.33] Article 1
-- General principles and scope of application
[p.34] General remarks
35 This article lays down two general principles (paragraphs 1 and 2) and defines the material scope of application of the Protocol
(paragraphs 3 and 4). Because of the diversity of the nature and
historical background of these four paragraphs it seems justified to
discuss them for each one separately, rather than for all paragraphs
together. The article was adopted by roll call, both in Committee I
and in the plenary Conference. (1)
Paragraph 1
36 This paragraph literally repeats Article 1
common to the Conventions, in which only the words "the present Convention" have
been replaced by "this Protocol". As the Protocol is subject to the
general provisions and principles of the Conventions, by virtue of
the fact that it is an instrument additional to the Conventions, this
general principle would have applied for the Protocol even if it had
not been stated in so many words; for this reason the draft Protocol
did not repeat Article 1
of the Conventions, following the opinion of
the majority of [p.35] experts. (2) Nevertheless, the sponsors of the
relevant proposal, (3) followed by the Conference, considered that it
was appropriate to include a reminder of this principle.
37 The commentary on Article 1
of the Conventions (4) continues to apply fully, and the reader is referred to it. We will merely
reiterate the essential points below, adding a few new elements.
"The High Contracting Parties undertake to respect"
38 For the meaning of the expression "the High Contracting Parties", which, in the present context, differs from the usual meaning,
reference should be made to the commentary on this expression in the
Preamble. (5)
39 The mere fact of becoming a Party to a treaty implies the obligation to apply it in good faith from the moment that it enters
into force. This fundamental rule of international law originated in
customary law, expressed in the maxim ' pacta sunt servanda, ' and is
now set out in Article 26 of the Vienna Convention on the Law of
Treaties of 23 May 1969 which uses this maxim by way of a title; it
reads: "Every treaty in force is binding upon the parties to it and
must be performed by them in good faith".
40 Thus the import of this paragraph does not lie in the first part, but in the two elements which will be discussed below. As regards the
word "undertake", which appears only occasionally in the
Protocol, (6) this is a more solemn turn of phrase than the normal
usage of "shall".
"to ensure respect"
41 At first sight this might seem to be superfluous: the duty to respect implies that of ensuring respect by civilian and military
authorities, the members of the armed forces, and in general, by the
population as a whole. This means not only that preparatory measures
must be taken to permit the implementation of the Protocol, but also
that such implementation should be supervised. In this respect, the
phrase "to ensure respect" essentially anticipates the measures for
execution and supervision laid down in Article 80
(' Measures for
execution ').
42 Though the preceding obligation is in fact already included in ' pacta sunt servanda, ' or the words "to respect", the phrase "to
ensure respect" should also be considered to reflect another aspect,
which is described in the Commentary on the Conventions as follows:
[p.36] "In the event of a Power failing to fulfil its obligations, each of the other Contracting Parties, (neutral,
allied or enemy) should endeavour to bring it back to an
attitude of respect for the Convention. The proper working of
the system of protection provided by the Convention demands
in fact that the States which are parties to it should not be
content merely to apply its provisions themselves, but should
do everything in their power to ensure that it is respected
universally." (7)
43 This interpretation was not contested (8) and it is on this interpretation that the ICRC has taken a number of steps,
confidentially or publicly, individually or generally, to encourage
States, even those not Party to a conflict, to use their influence or
offer their cooperation to ensure respect for humanitarian law. (9)
Leaving aside any bilateral or multilateral measures taken by States,
which rarely become known, it should be pointed out that the
organized international community has frequently and emphatically
manifested its concern that humanitarian law should be
respected. (10)
44 Finally, and most importantly, the Diplomatic Conference fully understood and wished to impose this duty on each Party to the
Conventions, and therefore reaffirmed it in the Protocol as a general
principle, adding in particular to the already existing
implementation measures those of Articles 7
(' Meetings ') and 89
(' Co-operation ').
45 In this way the Conference clearly demonstrated that humanitarian law creates for each State obligations towards the international
community as a whole (' erga omnes '); in view of the importance of
the rights concerned, each State can be considered to have a legal
interest in the protection of such rights. (11)
46 Neither the Diplomatic Conferences which drafted the Conventions and the Protocol, nor these instruments, defined very closely the
measures which the Parties to these treaties should take to execute
the obligation to "ensure respect" [p.37] by the other Parties, other
than by means of the examples quoted above of Articles 7
(' Meetings ') and 89
(' Co-operation '). The limitations to such
actions are obviously those imposed by general international law,
particularly the prohibition on the use of force. (12) Even if the
United Nations were to take coercive measures involving the use of
armed force (13) in order to ensure respect for humanitarian law, the
limitation would be that of the very respect due to this law in all
circumstances. It suffices to say that whenever such measures are
necessary, each Party to humanitarian law instruments should examine
the wide range of diplomatic or legal measures which can be taken to
ensure respect for that law.
"in all circumstances"
47 The expression "in all circumstances" does not mean that the Protocol as a whole applies at all times: for the distinction between
provisions applicable at all times and those which become so only in
the situations referred to in paragraphs 3 and 4 of this article,
reference should be made to the commentary on Article 3
(' Beginning
and end of application '). (14)
48 "In all circumstances" prohibits all Parties from invoking any reason not to respect the Protocol as a whole, whether the reason is
of a legal or other nature. The question whether the war concerned is
"just" or "unjust", one of aggression or of self-defence, should not
affect the application of the Protocol -- this type of discrimination
is explicitly prohibited by the fifth paragraph of the Preamble. (15)
49 Any idea of reciprocity should also be discarded, viz., a Party should be prevented from claiming to be exempt from the obligation to
respect a particular provision, or the Protocol as a whole, because
an adversary had not respected this provision or the Protocol as
whole. As the Commentary to the Conventions states, treaties of
humanitarian law do not constitute:
"an e
ngagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented b
y the other Contracting Parties". (16)
50 Thus reciprocity invoked as an argument not to fulfil the obligations of humanitarian law is prohibited, but this does not
apply to the type of reciprocity which could be termed "positive", by
which the Parties mutually encourage each other to go beyond what is
laid down by humanitarian law. Further, the concept of reciprocity on
which the conclusion of any treaty is based also applies to the
Conventions and the Protocol: they apply between the Parties which
have [p.38] consented to be bound by them (17) -- and only in
exceptional cases to a Party's own nationals, or to the nationals of
a Party which is not bound. (18)
51 The prohibition against invoking reciprocity in order to shirk the obligations of humanitarian law is absolute. This applies
irrespective of the violation allegedly committed by the adversary.
It does not allow the suspension of the application of the law either
in part or as a whole, even if this is aimed at obtaining reparations
from the adversary or a return to a respect for the law from
him. (19) This was confirmed quite unambiguously in Article 60 of the
Vienna Convention on the Law of Treaties, which lays down under what
conditions a material breach of a treaty can permit its suspension or
termination; that article specifically exempts treaties of a
humanitarian character. (20)
Paragraph 2
52 Except for a few details, this paragraph is taken from the famous clause, known as the "Martens clause", after the Russian diplomat who
had proposed it; it was included by unanimous decision in the
Preamble of the Hague Conventions of 1899
and 1907
respecting the
laws and customs of war on land. (21)
53 The 1949 Conventions did not contain a preamble, (22) and it was therefore considered appropriate to include a similar clause in their
article on denunciation, in order to underline in a succint fashion
that even denunciation could not result in a legal void. (23) The
draft of the Protocol provided for a reaffirmation of this clause in
the Preamble, (24) but the Conference supported a proposal to include
it in Article 1. (25)
54 In the initial context of 1899 and 1907, the Martens clause was obviously justified, as the Peace Conferences were aware that the
Conventions that had been adopted had left a number of questions
unanswered. (26) We referred above to the reason why it was taken up
in the 1949 Conventions.
55 There were two reasons why it was considered useful to include this clause yet again in the Protocol. First, despite the
considerable increase in the number of [p.39] subjects covered by the
law of armed conflicts, and despite the detail of its codification,
it is not possible for any codification to be complete at any given
moment; thus the Martens clause prevents the assumption that anything
which is not explicitly prohibited by the relevant treaties is
therefore permitted. (27) Secondly, it should be seen as a dynamic
factor proclaiming the applicability of the principles mentioned
regardless of subsequent developments of types of situation or
technology. (28)
56 In conclusion, the Martens clause, which itself applies independently of participation in the treaties containing it, states
that the principles of international law (29) apply in all armed
conflicts, (30) whether or not a particular case is provided for by
treaty law, and whether or not the relevant treaty law binds as such
the Parties to the conflict.
Paragraph 3
57 This paragraph corresponds to the draft of Article 1 of the ICRC: the "additional" character of the Protocol justifies the definition
of its scope of application in terms referring back to Article 2
,
common to the Conventions. As regards the term "supplements", this
reveals that there is a relation, though also a limitation imposed
upon the Diplomatic Conference which, by reason of its own title, had
the task of reaffirming and developing the pre-existing law, and not
of endangering it. (31)
58 The wording of this paragraph did not raise any difficulties in itself, but there was heated and lengthy debate regarding extending
its scope to the conflicts referred to in paragraph 4. We will
therefore deal separately with this aspect, including the question
whether its inclusion represented a development or a codification of
law (consequently whether or not such conflicts were already covered
by Article 2
, common to the Conventions, referred to by this
paragraph). With this reservation we will base our arguments below
essentially on the commentary on this common Article 2. (32)
59 ' Common Article 2
, paragraph 1, ' reads: "[...] the present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by
one of them".
60 War which has been declared, or otherwise recognized as such, entails the application of humanitarian law; even in the absence of
hostilities it can offer [p.40] valuable guarantees, in particular to
enemy nationals in the territory of a State at war.
61 Nevertheless, despite their title ("for the protection of war victims"), the Conventions are not applicable only in cases of
declared war: the institution of the declaration of war (33) has been
disregarded too often to make the application of humanitarian law
dependent on this act. It is not necessary either that the existence
of war be legally proved, as this concept is too prone to discussion,
and too many armed conflicts would therefore be at risk of eluding
humanitarian law. (34)
62 Thus, as will most often be the case in practice, humanitarian law also covers any dispute between two States involving the use of
their armed forces. Neither the duration of the conflict, nor its
intensity, play a role: the law must be applied to the fullest extent
required by the situation of the persons and the objects protected by
it. (35)
63 The Conventions cover the case in which one of the Parties to an armed conflict contests the state of war. The object and purpose of
humanitarian law mean that this rule must be given a wider scope:
even if the two Parties -- or all the Parties, if there are more than
two -- deny that there is a state of war, this cannot enable them to
impede the application of the law. It is aimed, above all, at
protecting individuals, and not at serving the interests of
States. (36)
64 ' Common Article 2
, paragraph 2, ' reads: "The Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation
meets with no armed resistance."
65 In fact, cases of occupation occurring in a war that has been declared or in another armed conflict are already covered by
paragraph 1, as the declaration of war or the commencement of
hostilities has rendered the humanitarian law applicable. The
inhabitants of occupied territory become protected persons as they
fall into the power of the enemy. Despite its wording, paragraph 2
only addresses itself to cases of occupation without a declaration of
war, and without hostilities. (37)
[p.41] Paragraph 4
' Origins of this rule '
66 Because the Protocol is additional to the Conventions, it was logical, as we saw above with regard to paragraph 3, to define the
scope of application of the Protocol by reference to Article 2
,
common to the Conventions. On the other hand, the explicit inclusion
within this scope of application of what is commonly known as "wars
of national liberation", by means of the present paragraph 4 (cf. the
word "included"), gave rise to heated controversy. A number of
different aspects arose with regard to this question.
67 Would the Protocol cover only the treatment of persons engaged in such a conflict and captured by the adverse Party, or would it
generally clarify the status of such conflicts and the status of
persons participating in them? The fact that international
humanitarian law provides rules in two separate parts, depending on
whether it concerns a situation limited to the territory of a single
State or, on the contrary, affecting two or more States, in itself
already gives rise to problems of interpretation in quite a number of
specific situations. What sort of problems would arise if this
distinction, based on a more or less objective criterion -- whether
or not the conflict is between States -- were suppressed, or if it
were made dependent also on factors which were considered by some to
be objective and by others to be subjective?
68 The 1949 Conference did not take up the idea of the ICRC which had been adopted by the XVIIth International Conference of the Red
Cross (Stockholm, 1948) that the four Conventions as a whole should
be declared applicable in all armed conflicts, whether internal or
international. (38) for internal conflicts it retained only Article
3
, common to the Conventions, which still created an unprecedented
inroad into the exclusive competence of governments to deal with
their internal affairs, in that they bound themselves in advance to
comply with certain fundamental rules. Gradually, however, what had
generally constituted a remarkable achievement at the time, turned
out to be incomplete (which led to the efforts resulting in Protocol
II), and above all, for political and legal reasons, unsuited to the
type of conflict which has characterized recent decades, i.e., wars
of national liberation.
' Right of self-determination '
1. ' Before the Charter of the United Nations '
69 The concept of the right of self-determination of peoples only gradually emerged during the course of the nineteenth and twentieth
centuries under a variety of names. Thus, at an early stage, what was
known as the right of nationalities was created only for the benefit
of peoples who described themselves [p.42] as "civilized". Similarly
it was considered that colonization and the domination exercised over
entire continents should permit them to be brought within the orbit
of "civilization", though without disguising the economic or military
interests at stake.
70 The principle, which was proclaimed by the French Revolution, and was subsequently often denied, has from the outset constantly come up
against the legal order; (39) this did not prevent it from being
applied with increasing frequency and from growing in strength. It
acquired a universal importance during the course of the First World
War and narrowly missed becoming incorporated in the Covenant of the
League of Nations on the proposal of the President of the United
States, Woodrow Wilson. Even without being explicitly mentioned in
this Covenant, the principle acquired the twofold value of a guiding
principle in politics and of a rule of exception in international
law. (40)
2. ' The Charter of the United Nations '
71 After a preamble laying down in particular "the equal rights [...] of nations large and small", the Charter defines the purposes
of the United Nations in Article 1. The wording of paragraph 2 is as
follows: "To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of
peoples, and to take other appropriate measures to strengthen
universal peace". The same principle is affirmed in Article 55 of the
Charter.
72 The progress achieved by the Charter of the United Nations therefore consisted of turning this principle of self-determination
of peoples into a right established in an instrument of universal
application, in which almost all States participate today.
73 The right of self-determination has been evoked a great many times, in the United Nations General Assembly, in Human Rights
Commission and in other bodies. We will restrict ourselves here to
the most important stages. (41)
3. ' The Declaration on the Granting of Independence '
74 A document which is considered as one of the most important is Resolution 1514 (XV) of 14 December 1960, entitled "Declaration on
the Granting of Independence to Colonial Countries and Peoples".
75 Following Resolutions 545 (VI) and 637 (VII) (42) in particular, this document reaffirms the right of all peoples and all nations to
self-determination, including Non-Self-Governing and Trust
Territories. (43)
4. ' The concept of the legitimate struggle '
76 With Resolution 2105 (XX) of 20 December 1965 the General Assembly recognized the legitimacy of the struggle of colonial
peoples against colonial domination in the exercise of their right to
self-determination and independence, and it invited all States to
provide material and moral support to national liberation movements
in colonial territories.
77 These views were to be reiterated, in particular in Resolution 2621 (XXV) of 12 October 1970, claiming prisoner-of-war treatment
under the Third Convention for freedom fighters under detention.
5. ' The Human Rights Covenants '
78 In a series of successive resolutions relating to the drafts of International Covenants on Human Rights, the General Assembly
requested that an article should be included on the right of peoples
to self-determination, which would also provide that all States
should contribute to ensuring the exercise of this right: in fact,
the right to self-determination is a precondition for the enjoyment
of all fundamental human rights. (44)
79 The International Covenants on Human Rights, viz., the International Covenant on Economic, Social and Cultural Rights, and
the International Covenant on Civil and Political Rights complied
with this request. (45)
[p.44] 6. ' Human Rights Conference '
80 The International Conference on Human Rights held in Teheran in 1968 under the auspices of the United Nations considered in its
Resolution XXIII that persons fighting against minority racist
régimes or colonial régimes should, if they were detained, be treated
as prisoners of war or as political prisoners, in accordance with
international law. (46)
7. ' Friendly Relations Declaration '(47)
81 On 24 October 1970, on the occasion of the 25th anniversary of the United Nations, the General Assembly adopted by consensus the
Declaration on Principles of International Law concerning friendly
Relations and Co-operation among States in accordance with the
Charter of the United Nations. (48) The preparatory negotiations on
this declaration had taken place in the General Assembly and a
Special Committee, (49) and contained, in particular, the examination
of the principle of equal rights and self-determination of peoples.
From the beginning the General Assembly was concerned with tackling
the progressive development and codification of principles already
contained in the Charter in order to ensure that they would be
applied more effectively.
82 In the eight paragraphs devoted to "the principle of equal rights and self-determination of peoples", the Declaration states in
particular that:
a) all peoples have the right freely to determine their political status;
b) every State has the duty to respect this right and to promote its realization;
c) every State has the duty to refrain from any forcible action which deprives peoples of this right;
d) in their actions against, and resistance to, such forcible action, peoples are entitled lo seek and receive support in
accordance with the purposes and principles of the Charter;
e) under the Charter, the territory of a colony or other
non-self-governing territory has a status separate and distinct
from that of the State administering it. (50)
8. ' The basic principles '
83 The last resolution adopted by the United Nations General Assembly before the opening of the CDDH was Resolution 3103 (XXVIII)
of 12 December 1973 entitled "Basic principles of the legal status of
the combatants struggling against colonial and alien domination and
racist régimes". (51)
84 The preamble referred to a large number of previous statements on this issue (52). it states in particular that:
-- combatants struggling for freedom and self-determination are entitled to the application of the provisions of the Third and
Fourth Geneva Conventions of 1949 (the resolutions referred to
were formulated in more precise terms, requiring, on the one
hand, the application of the Third Convention to combatants, and
on the other hand, compliance with the fourth Convention relative
to the protection of civilians);
-- it is necessary to draft "additional instruments and norms envisaging, inter alia, the increase of the protection of persons
struggling for freedom against colonial and alien domination and
racist régimes".
85 The principles laid down in the operative paragraphs of the resolution, though this was to be "without prejudice to their
elaboration in future within the framework of the development of
international law applying to the the protection of human rights in
armed conflicts", may be summarized as follows:
[p.46]
-- the struggle of peoples under colonial and alien domination and racist régimes for the implementation of their right to
self-determination is legitimate; (53)
-- any attempt to suppress such a struggle is incompatible with the Charter, the friendly Relations Declaration, the Universal
Declaration of Human Rights, and the Declaration on the Granting
of Independence, and constitutes a threat to international peace
an security;
-- armed conflicts resulting from such a struggle are international armed conflicts in the sense of the Geneva Conventions;
-- combatants engaged in such struggles should enjoy prisoner-of-war status in the sense of the Third Convention;
-- violation of such status entails the full responsibility of those committing it.
' Historical background of this paragraph '
1. ' The 1949 Conventions '
86 Article 2 of the draft Conventions, adopted by the XVIIth International Conference of the Red Cross (Stockholm, 1948), provided
that the Conventions would apply in all cases of armed conflict which
did not have an international character, and which arose in the
territory of one or more of the High Contracting Parties. This was
stated in the text of the draft submitted to the Conference by the
ICRC, except that one phrase relating to "cases of civil war,
colonial conflicts, or wars of religion" had been deleted; this
enumeration was intended to be illustrative, not exhaustive.
87 After lengthy debates, the Diplomatic Conference adopted common Article 3
to deal with conflicts not of an international character.
This article enumerates a restricted number of rules applicable in
all conflicts of this kind. In accordance with the intention of its
authors, common Article 3
would cover all armed conflicts not of an
international (inter States) character, i.e., in accordance with the
ideas prevailing at the time, particularly colonial wars. The main
arguments advanced against the mandatory application of the
Conventions as a whole to all conflicts were less concerned with the
practical impossibility of such a task than with the risk, in
conflicts not of an international character, of granting such rebels
a degree of recognition de facto, or of undermining government action
aimed at defending the existing structure of the State. (54)
[p.47] 2. ' Evolution until 1969 '
88 The progressive development of the concept of the right of self-determination and its various consequences took place
essentially within the framework of the United Nations, given the
responsibilities of this organization. For its part, the Red Cross
movement evinced its concern for the fate of victims of armed
struggles for self-determination. In this respect resolution XVIII of
the XXIst International Conference of the Red Cross (Istanbul, 1969)
should be noted. This gave priority to pragmatic measures but also
expressed the need for a thorough legal examination of the question.
3. ' Reaffirmation and development -- preliminary discussions '
89 During the various meetings of experts devoted specifically to the reaffirmation and development of international humanitarian law
applicable in armed conflicts, whether these were consultations in
groups with restricted participation or the Conferences of Government
Experts or Red Cross experts, the majority of experts considered that
wars of national liberation were conflicts not of an international
character. Indeed, although they all recognized the need for
improving the protection provided by humanitarian law to victims of
the armed conflicts for self-determination -- and those of other
conflicts qualified as not having an international character -- only
a minority advocated the extension of the mandatory legal application
of the whole of the Conventions and of Protocol I to such conflicts.
90 The following trends can be discerned from the many different views: (55)
a) common Article 2
can, and should be interpreted as covering wars of liberation, since, although they do not take place between
States, they are certainly of an international character,
according to the United Nations; thus the term "Power" does not
refer only to States, but also to non-State entities which enjoy
the right to self-determination; (56)
b) the international character of wars of liberation should be proclaimed by the Preamble
or by Article 1
of Protocol I; (57)
c) it is not possible to dismiss the fundamental distinction between international conflicts (in the sense of inter-State conflicts)
and conflicts not of an international character, i.e., the sole
distinction that rests on the basis of objective and legal
criteria, in order to take into account the reasons underlying
the armed conflict. (58)
[p.48]
d) wars of national liberation are conflicts not of an international character, but some of these conflicts should involve the
application of the law of armed conflicts as a whole because of
their intensity or because of certain other characteristics. (59)
91 The various successive proposals of the ICRC can be summarized as follows:
a) In 1969 the ICRC reaffirmed, on the one hand, that when hostilities were such that they resembled a war, it has always
attempted to obtain in actual practice treatment for captured
combatants as similar as possible to that accorded prisoners of
war under the Third Convention; on the other hand, it noted
resolutions of the United Nations General Assembly proclaiming
the right of "freedom fighters" to be treated as prisoners of war
in case of capture, and the international character of their
struggle. The ICRC suggested that an attempt should be made to
obtain the treatment, but not the status of prisoner of war. This
solution seemed to have the best chances of being accepted, as it
operated on a strictly humanitarian basis, without political or
legal repercussions. (60)
b) The ICRC was aware of the fact that, if the struggle for self-determination were to be declared international, the problem
would still arise how to establish whether any particular
conflict should be designated as such a struggle; the ICRC in
1971 therefore proposed developing rules of humanitarian law that
would apply in situations where the law of armed conflicts as a
whole would not automatically and incontrovertibly apply. (61)
c) In 1972 the question of the struggle for self-determination was broached in two ways:
-- Article 1 of the draft of Protocol I defined the scope of the Protocol by referring to Article 2
of the Conventions, but
Article 38 laid down prisoner-of-war treatment for combatants
of organized independence movements, provided in particular
that they belonged to a Party to the conflict, even if this
were a government or an authority not recognized by the
Detaining Power; (62)
-- a preliminary draft of a Declaration on the Application of International Humanitarian Law in Armed Struggles for
Self-Determination proclaimed that international humanitarian
law as a whole should apply to such struggles; failing which,
the Parties involved in such struggles should at least
[p.49] apply by analogy Article 3
, common to the Conventions,
and Protocol II, or otherwise they should comply with a set
of special rules which were to be annexed to the
Declaration. (63)
4. ' The Diplomatic Conference '
92 The draft of Article 1 submitted by the ICRC to the CDDH, though worded differently, repeated the substance of the 1972 draft: the
Protocol would apply in the situations referred to in Article 2
common to the Conventions. The commentary on this draft reveals that
the majority of experts were opposed to the inclusion of a paragraph
to the effect that the situations referred to in the said common
Article 2
would include armed struggles by peoples for the exercise
of their right to self-determination. The opposition was based on
various different and contradictory reasons: a refusal to qualify
specific conflicts; the desire to retain this type of conflict within
the scope of application of common Article 3
, and of the draft of
Protocol II; a preference for other solutions, such as the
proclamation of the international character of such conflicts in the
Preamble, or by mentioning members of movements struggling for
self-determination in draft Article 42 (New category of prisoners of
war). One remark relating to this draft article, as well as the
commentary thereon, suggested that if the CDDH wished to comply with
the desire of numerous governments, it should add a third paragraph
covering members of organized liberation movements; this was intended
to grant them prisoner-of-war treatment, and not prisoner-of-war
status, so as to avoid the problem of qualifying specific conflicts.
93 The problem of struggles for self-determination was raised mainly with respect to four questions:
-- during the initial plenary meetings of the CDDH the question arose whether national liberation movements should be invited to
participate in the Conference. (64) In its resolution 3 (I) the
CDDH decided by consensus (65) "to [p.50] invite the national
liberation movements, which are recognized by the regional
intergovernmental organizations concerned, to participate fully
in the deliberations of the Conference and its Main
Committees". (66)
-- a close relationship linked the rules on such struggles to Part III of Protocol I;
-- if liberation struggles were to fall under Protocol I, it would be appropriate to lay down how liberation movements could
undertake to apply this Protocol and the Conventions; the
solution adopted is Article 96
(' Treaty relations upon entry
into force of this Protocol '), paragraph 3; (67)
-- finally, and this was a fundamental point, it had to be determined whether such struggles were international conflicts,
and as such required the application of the Conventions and of
Protocol I as a whole. This is the point with which we are
concerned here.
94 After its introduction by the ICRC, (68) the draft of Article 1 formed the object of various proposals for amendments. (69) Most of
these proposals were more or less directly linked to paragraph 4, and
it was because of this paragraph that the article was adopted by a
vote and not by consensus. (70)
' Analysis of paragraph 4 '
95 In describing the historical background of this paragraph it was not possible to give a detailed account of each of the arguments
advanced for and against the wording that was finally adopted, or of
each of the proposals submitted in the Conference: the sum total
would have been out of proportion. The same applies with regard to
the extent of information found in legal and other literature, either
[p.51] in general on the right of peoples to self-determination, or
on the struggles conducted in excercising this right. (71)
96 Despite the many instruments and texts available, it should be noted that some discrepancies remain, and that the general character
of texts which were unanimously approved does not always lead to
undisputed conclusions.
1. ' International instruments invoked '
97 The majority of delegations emphasized the need for ensuring the unity of international law and refused to accept or to maintain a
humanitarian law which did not take into account existing general
international law. In this respect reference was made to the Charter
of the United Nations, the International Covenants on Human Rights,
and to resolutions of the United Nations General Assembly, especially
to Nos. 1514 (XV), 2625 (XXV), and 3103 (XXVIII). Recommendations
were made to adapt the law expressly, without prejudice to an
interpretation of existing instruments in the light of the subsequent
development of the law and the entire legal system in force at the
time of interpretation, in accordance with the principles expressed
by the International Court of Justice with regard to Namibia. (72)
for one delegation the adaptation of humanitarian law was essential:
it could not remain an isolated branch of law, and had to conform to
general international law, including ' jus cogens '. (73)
[p.52] 98 In contrast, some delegations intervened to claim that the right of peoples to self-determination was not a right but a
principle; (74) some contested that one could properly refer to
instruments which were not treaties, such as resolutions, even those
which had been adopted unanimously. (75)
2. ' The meaning of the right of peoples to self-determination '
99 As shown above, this right is, according to the International Covenants on Human Rights, the right of all peoples to "freely
determine their political status and freely pursue their economic,
social and cultural development". (76)
100 The struggle of peoples against any forcible action aimed at depriving them of their right to self-determination is legitimate; in
this case they are entitled to seek and receive support in accordance
with the purposes and principles of the Charter of the United
Nations. (77)
101 Any non-self-governing territory possesses a status separate and distinct from that of the territory of the State administering
it. (78)
3. ' Those entitled to the right of peoples to self-determination '
102 The only unanimously agreed certainty is that those who are entitled to this right are "all peoples", but what is uncertain is
the definition of the term "people". For some, the term is defined in
the Charter and the International Covenants on Human Rights; (79) for
others it is an elastic concept, as various examples have shown. (80)
103 In international law there is no definition of what constitutes a people; there are only instruments listing the rights it is
recognized all peoples hold. Nor is there an objective or infallible
criterion which makes it possible to recognize a group as a people:
apart from a defined territory, other criteria could be taken into
account such as that of a common language, common culture or ethnic
lies. The territory may not be a single unit geographically or
politically, and a people can comprise various linguistic, cultural
or ethnic groups. The essential factor is a common sentiment of
forming a people, and a political will to live together as such. Such
a sentiment and will are the result of one or more of the criteria
indicated, and are generally highlighted and reinforced by a common
history. This means simultaneously that there is a bond between the
persons belonging to this people and something that separates them
from other peoples: there is a common element and a distinctive
element.
[p.53] 104 The definition of a group as a people does not arise from a decision by a regional or worldwide intergovernmental organization:
by their declarations such organizations can take note of and
proclaim the existence of peoples, but they cannot create them. While
a group of population declared to be a "people" by an
intergovernmental organization may in fact be considered to be such,
the contrary conclusion does not necessarily follow from the absence
of such a declaration, as the reasons for the absence may vary. (81)
105 The idea that a national liberation movement must be recognized by the regional intergovernmental organization concerned (82) for
paragraph 4 to apply was advanced but was not adopted. (83)
106 It should be noted that, under the Charter and the Covenants, only peoples have the right to self-determination as defined by these
instruments. This is not the case for ethnic, religious or linguistic
minorities which, for example, under the Covenant on Civil and
Political Rights, are merely entitled to enjoy their own culture, to
profess and practise their own religion, or to use their own language
(Article 27). Thus it is clear that the difficulty in individual
cases lies entirely in the qualification that is chosen: is the case
in question one of a people, with a right to self-determination and
all the attendant consequences, or is it a minority entitled to
protection, but not to self-determination?
4. ' The peoples covered by paragraph 4 '
107 A twofold requirement results from the merging of the various amendments proposed, for the paragraph to apply:
-- there must be an armed conflict in which a people is struggling against colonial domination, alien occupation or a racist régime;
[p.54]
-- the struggle of that people must be in order to exercise its right to self-determination.
108 However, one delegation considered that in interpreting the word "include" literally, the list following it is not exhaustive. (84) In
contrast, another delegation expressed regret that the paragraph
remained selective and does not cover all situations entering the
concept of the right of peoples to self-determination. (85)
109 As no delegation had specified what armed conflicts for self-determination would be implicitly included or excluded
(depending on which of the two above-mentioned interpretations is
chosen) by the formulation of the paragraph, it is necessary to study
the paragraph and the texts on which it is based.
110 The Charter of the United Nations and the friendly Relations Declaration, which were examined above, grant the right to
self-determination to all peoples equally and in every respect.
111 As regards the wording of the paragraph, what meaning should be ascribed to the word "include"? We consider that it should be
interpreted as introducing an exhaustive list of cases which are
considered to form part of the situations covered by the preceding
paragraph.
112 However, do the cases listed essentially cover all possible circumstances in which peoples are struggling for the exercise of
their right to self-determination? The expression "colonial
domination" certainly covers the most frequently occurring case in
recent years, where a people has had to take up arms to free itself
from the domination of another people; it is not necessary to explain
this in greater detail here. The expression "alien occupation" in the
sense of this paragraph -- as distinct from belligerent occupation in
the traditional sense of all or part of the territory of one State
being occupied by another State (86) -- covers cases of partial or
total occupation of a territory which has not yet been fully formed
as a State (87) finally, the expression "racist régimes" covers cases
of régimes founded on racist criteria. The first two situations imply
the existence of distinct peoples. The third implies, if not the
existence of two completely distinct peoples, at least a rift within
a people which ensures hegemony of one section in accordance with
racist ideas. It should be added that a specific situation may
correspond simultaneously with two of the situations listed, or even
with all three. (88)
113 In our opinion, it must be concluded that the list is exhaustive and complete: it certainly covers all cases in which a people, in
order to exercise its right of self-determination, must resort to the
use of armed force against the interference [p.55] of another people,
or against a racist régime. On the other hand, it does not include
cases in which, without one of these elements, a people takes up arms
against authorities which it contests, as such a situation is not
considered to be international.
5. ' The application of humanitarian law '
114 At what moment does humanitarian law as a whole become applicable in pursuance of this paragraph? This is not stated here, but the
preceding paragraph, which it supplements, refers to Article 2
common
to the Conventions in this respect. The latter is as concise as it is
clear: application is required in all cases of armed conflict which
may arise between two or more High Contracting Parties, or in case of
the total or partial occupation of the territory of a High
Contracting Party -- even if it meets with no armed resistance. The
same rule applies here, in accordance with Article 96 (' Treaty
relations upon entry into force of this Protocol '), paragraph 3,
which provides for the way in which an authority representing a
people engaged in a struggle may undertake to apply the Conventions
and the Protocol and make them applicable to the conflict.
115 Although some considered that in the absence of a definition of the concept of armed conflict, reference should be made to Article 1
of Protocol II (89) (' Material field of application '), which could
be applied by analogy, or a certain degree of intensity should be
required, (90) this is not expressed in either paragraph 4 or the
Conventions: according to the Conventions and the Protocol, the only
real requirements for the correct application of the law when persons
in such a conflict are protected persons within the meaning of these
instruments are an authority representing the people engaged in the
struggle and an organized structure of its armed forces, including a
responsible command, in accordance with the requirements of Article
43
(' Armed forces '). (91)
116 The objection that only States would be capable of applying such heavy norms (92) was not taken into account for the same reasons:
apart from the innovations introduced in Part III, the only
requirement considered truly necessary was the setting up in Article
96
(' Treaty relations upon entry into force of this Protocol ') of
an ad hoc mechanism by which an authority representing a people
engaged in a struggle may make an undertaking. (93)
[p.56] 117 The actual adoption of this last provision, and of the paragraph under consideration here, suffices to entail the obligation in the
situations referred to of interpreting certain criteria used in
humanitarian law, such as that of nationality, in a new way. In fact,
to insist on the "official" nationality would result in depriving
these provisions of a large part of their purpose, and it is
therefore necessary to resort to concepts such as "belonging" or
"allegiance".
118 One thing is certain: the characteristics of a conflict, especially its intensity or its length, may justify the application
of the Conventions and of the Protocol as a whole, or a part of these
instruments, but this is merely a question of common sense, which
also applies to any conflict between States. It should also be
emphasized that contrary to the fears expressed by certain
delegations, (94) all the Parties to the conflict will have the same
obligations and enjoy the same rights, (95) without any adverse
distinction: neither the fifth paragraph of the Preamble
nor
paragraph 3 of Article 96
(' Treaty relations upon entry into force
of this protocol ') leaves any room for doubt on this point. As
regards the crucial question of the inevitable disputes regarding the
qualification of a specific conflict, one must assume that the
Parties concerned will carry out their obligations in good faith, and
count on the positive influence of all the High Contracting
Parties. (96)
' B.Z. '
NOTES
(1) Vote in Committee: 70-21-13, cf. O.R. VIII, p.
102, CDDH/I/SR. 13, para. 42; vote in plenary Conference,
87-1-11, cf. O.R. VI, pp. 40-41, CDDH/SR.36, para. 58;
(2) O.R. VIII, p. 48, CDDH/I/SR.6, para. 28. On the additional character and its consequences, cf. mainly
infra, commentary para. 3 (p. 39) and Art. 96, para. 1
(pp. 1085-1086) and supra, commentary on the title (pp.
20-21) and the Preamble, third paragraph (p. 27);
(3) O.R. III, p. 6, CDDH/I/12 and Corr. 1 and Add. 1;
(4) The best researched study of Article 1 of the Conventions and of this paragraph is by L. Condorelli and
L. Boisson de Chazournes, "Quelques remarques à propos de
l'obligation de "respecter et faire respecter" le droit
international humanitaire "en toutes circonstances"", in
in ' Studies and Essays in Honour of Jean Pictet ',
Geneva-The Hague, 1984, p. 18;
(5) Supra, p. 25;
(6) In addition to this article, cf. Arts. 83, para. 1; 89 and 96, para. 3;
(7) ' Commentary III ', p. 18 (Art. 1);
(8) The International Conference on Human Rights (Teheran, 1968) adopted it in Resolution XXIII. The
Preamble of this resolution reminds States Parties to the
Geneva Conventions of their responsibility "to take the
necessary measures to ensure respect for such rules of
humanitarian law by other States in all circumstances,
even if they are not themselves directly involved in armed
conflict". The same applies to almost all governments
which made a statement on this subject during the
reaffirmation and development procedure; cf. ' Government
replies ', 2nd ed., pp. 19-33 ("Question 2"). For recent
literature, cf. L. Condorelli and L. Boisson de
Chazournes, op. cit., pp. 26-32 and K. Obradovic, "Que
faire face aux violations du droit humanitaire? Quelques
réflexions sur le rôle possible du CICR", in ' Studies and
Essays in Honour of Jean Pictet, ' op. cit., p. 483,
especially pp. 487-490;
(9) For the policy of the ICRC on its action in the event of breaches of humanitarian law, see ' IRRC ',
March-April 1981, pp. 76-83. For a diplomatic appeal by
the ICRC to all the Parties to the Conventions, cf. ibid.,
July-August 1983, pp. 220-223. This same appeal is
examined in the study of L. Condorelli and L. Boisson de
Chazournes, op. cit., p. 28, and K. Obradovic, op. cit.,
p. 493, and also by Y. Sandoz, "Appel du CICR dans le
cadre du conflit entre l'Irak et l'Iran", 29 ' AFDI ',
1983, p. 161;
(10) See also commentary Art. 89, infra, p. 1034;
(11) For a general description of these norms which formed the inspiration for this passage, cf. the judgment
of the International Court of Justice in the ' Barcelona
Traction ' case, second phase, ' ICJ Reports ', 1970, p.
32; reference is made to this case in the studies by L.
Condorelli and L. Boisson de Chazournes, op. cit., p. 29,
and K. Obradovic, op. cit., p. 489;
(12) Including "humanitarian intervention", generally considered to be covered by this prohibition; on
this subject, cf. U. Beyerlin, "Humanitarian
Intervention", in R. Bernhardt (ed.), ' Encyclopedia of
Public International Law ', Instalment 3, 1982, p. 211;
(13) On this subject, cf. commentary Art. 89, infra, pp. 1034-1035;
(14) Infra, pp. 66-67;
(15) Cf. the commentary thereon, supra, pp. 28-29;
(16) ' Commentary I ', p. 25 (Art. 1);
(17) For the meaning of the expression "the High Contracting Parties", cf. commentary Preamble, supra, p.
25. Also see the study by J. de Preux,"The Geneva
Conventions and Reciprocity", ' IRRC ', January-February
1985, p. 25, especially pp. 25-26;
(18) Cf. in particular, Fourth Convention, Part II (Art. 13 in contrast with Art. 4), and Protocol I, Art.
75;
(19) Cf. the passage relating to reprisals, introduction to Part V, Section II, infra, pp. 981-987;
(20) Cf. para. 5 and also para. 4, which has a more general scope, of this article, entitled "Termination or
suspension of the operation of a treaty as a consequence
of its breach";
(21) On the subject o this clause, cf. H. Strebel, "Martens' clause", in R. Bernhardt (ed.), op. cit.,
Instalment 3, pp. 252-253 (and references cited); S.
Miyazaki, "The Martens Clause and International
Humanitarian Law", in ' Studies and Essays in Honour of
Jean Pictet ', op. cit., p. 433;
(22) Cf. commentary Preamble, supra, p. 24;
(23) Cf. para. 4 of common Art. 63/62/142/158 and the commentary thereon, on pp. 413, 282, 648 and 625-626
respectively;
(24) ' Commentary Drafts ', p. 5 (Preamble, third paragraph);
(25) Cf. supra, note 3. The 1980 Convention on conventional weapons also reaffirms this clause (Preamble,
fifth paragraph);
(26) Cf. H. Strebel, op. cit., p. 252, and F. Kalshoven, ' Belligerent Reprisals ', Leyden, 1971, p. 58;
(27) Cf. H. Strebel, op. cit.; also O.R. VIII, p. 18, CDDH/I/SR.3, para. 11;
(28) Cf. H. Strebel, op. cit., p. 252, and S. Miyazaki, op. cit., p. 441;
(29) Similar to the expression "general principles of law" used in Art. 38, para. 1(c) of the Statute of the
International Court of Justice;
(30) It should be noted that Protocol II uses different wording (cf. its Preamble, fourth paragraph, and
the commentary thereon, infra, p. 1341);
(31) ' Commentary Drafts ', p. 6 (Art. 1). On the general relationship between the Conventions and the
Protocol, cf. commentary on the title and on the Preamble,
third paragraph, supra, pp. 20-21 and 27, and in
particular, commentary Art. 96, para. 1, infra, pp.
1085-1086;
(32) Pp. 27-33, 26-29, 19-23, and 17-22 respectively (without para. 3, which corresponds to Art.
96, para. 2, of the Protocol);
(33) Required by the Hague Convention Relative to the Opening of Hostilities (Convention III of 1907);
(34) For definitions of "war" and "armed conflict", cf. in particular D. Schindler, "The Different Types of
Armed Conflicts According to the Geneva Conventions and
Protocols", 163 ' Hague Recueil ', 1979/II, p. 128; K.J.
Partsch, "Armed Conflict" in R. Bernhardt (ed.), op. cit.,
Instalment 3, p. 25; K. Skubiszewski, "Peace and War",
ibid., Instalment 4, p. 74; W. Meng, "War", ibid., p. 282;
Ch. Rousseau, ' Le droit des conflits armés ', Paris,
1983, pp. 2-16;
(35) ' Cf. Commentaries I, II, III ' and ' IV ', pp. 34, 27-28, 22-23 and 21 respectively;
(36) ' Cf. Commentaries III ' and ' IV ', pp. 22-23 and 21 respectively;
(37) ' Cf. Commentary IV ', pp. 21-22. It should be noted that the definition of occupation given in Article
42 of the Hague Regulations of 1907 Concerning the Laws
and Customs of War on Land reads:
"Territory is considered occupied when it is actually
placed under the authority of the hostile army.
The occupation extends only to the territory where
such authority has been established and can be
exercised.";
(38) Cf. infra, p. 46;
(39) S. Calogeropoulos-Stratis, ' Le droit des peuples à disposer d'eux-mêmes ', Brussels, 1973, p. 11;
(40) Ibid., p. 11; K.J. Partsch, "Fundamental Principles of Human Rights, Self-Determination, Equality
and Non-Discrimination", in ' The International Dimensions
of Human Rights ', Paris, 1982, pp. 63-64, gives some
examples;
(41) For a more detailed historical background, cf. i.a., A. Cristescu, ' The Right to Self-Determination --
Historical and Current Development on the Basis of United
Nations Instruments ', United Nations publication, 1981,
paras. 14-87;
(42) Cf. infra, point 5;
(43) The last preambular paragraph and operative paras. 1 and 4 of this resolution read as follows:
"[...] all peoples have an inalienable right to
complete freedom, the exercise of their sovereignty and
the integrity of their national territory."
"1. The subjection of peoples to alien subjugation,
domination and exploitation constitutes a denial of
fundamental human rights, is contrary to the Charter of
the United Nations and is an impediment to the promotion
of world peace and co-operation."
"4. All armed action and repressive measures of all kinds directed against dependent peoples shall cease in
order to enable them to exercise peacefully and freely
their right to complete independence and the integrity of
their national territory shall be respected.";
(44) Cf. in particular. Resolutions 545 (VI) and 637 (VII) mentioned above;
(45) Adopted by Resolution 2200 (XXI) of the General Assembly of 16 December 1966, the Covenants have
been in force since 1976, binding 80 and 83 States
respectively as of 31 December 1984. Their common Article
1 reads as follows:
"1. All peoples have the right of self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social
and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international
economic co-operation, based on the principle of mutual
benefit, and international law. In no case may a people be
deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of
self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the
United Nations.";
(46) The same Conference had formerly adopted Resolution VIII in which, with particular reference to two
specific cases, it claimed similarly that captured freedom
fighters should be treated as prisoners of war in the
sense of the Third Geneva Convention of 1949. The
objectives of Resolution XXIII were reiterated in
Resolution 2444 (XXIII) of the General Assembly, the first
of a long series devoted to the "Respect for human rights
in armed conflicts" (cf. infra, pp. 1573-1576);
(47) ' Resolution 2625 (XXV), Annex ';
(48) ' For an account of the preparatory work of this Declaration and its evaluation ', cf. in particular,
M. Sahovic, "Codification des principes du droit
international des relations amicales et de la coopération
entre les Etats", 137 ' Hague Recueil. ' 1972/III, p. 243;
G. Arangio-Ruiz, "Codification of the Principles of
International Law on Friendly Relations and Co-operation
Between States", ibid., p. 419;
(49) Cf. Resolution 1815 (XVII), based on Article 13 of the Charter. The Special Committee on the principles
of international law on friendly relations and
co-operation among States, created pursuant to Resolution
1966 (XVIII), and reconstituted pursuant to Resolution
2103 A (XX), met for seven sessions. The idea of a
declaration on this subject was suggested by the Second
Conference of Heads of State or Government of Non-Aligned
Countries, held in Cairo in 1964 (cf. the fifth preambular
paragraph of Resolution 2103 A (XX));
(50) The 7th paragraph is quoted in full: "Nothing
in the foregoing paragraphs shall be construed as
authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent
States conducting themselves in compliance with the
principle of equal rights and self-determination of
peoples as described above and thus possessed of a
government representing the whole people belonging to the
territory without distinction as to race, creed or
colour.";
(51) It was adopted with 83 votes for, 13 against
and 19 abstentions;
(52) The contents of the Resolutions mentioned are
briefly outlined here: 2383 (XXIII): Third Convention,
Southern Rhodesia; 2508 (XXIV): Third and Fourth
Conventions, Southern Rhodesia; 2547 (XXIV): Third and
Fourth Conventions, Southern Rhodesia, territories under
Portuguese administration, Namibia; 2652 (XXV): Third and
Fourth Conventions, Southern Rhodesia; 2678 (XXV): Third
and Fourth Conventions, Namibia; 2707 (XXV): Third and
Fourth Conventions, territories under Portuguese
administration; 2795 (XXVI): Third and Fourth Conventions,
territories under Portuguese administration; 2796 (XXVI):
Third and Fourth Conventions, Southern Rhodesia; 2871
(XXVI): Third and Fourth Conventions, Namibia. Amongst
other relevant resolutions not mentioned above, but
alluded to by the words "inter alia", we would recall, for
example, Resolution 2396 (XXIII) which demands that the
population of South Africa as a whole should be able to
exercise its right of self-determination and that, as
their struggle is legitimate, the freedom fighters there
should be treated as prisoners of war under the terms of
international law, particularly the Third Geneva
Convention of 1949;
(53) On 14 December 1974, viz., after the adoption
of Article 1 by the relevant Committee of the CDDH, the
General Assembly once again confirmed its views with
regard to the concept of aggression. Article 7 of the
Definition of Aggression, adopted by consensus (Resolution
3314 (XXIX), Annex) reserves the right of peoples
forcefully deprived of their right to self-determination
to struggle to that end; the right to self-determination
is also mentioned in the Preamble to this definition;
(54) For further information on the historical
background to common Art. 3, and on its scope, see
' Commentaries I, II, III ' and ' IV ';
(55) The first two trends underlined the need for
preventing the creation of two separate legal orders,
United Nations law and humanitarian law, as there can only
be one international law. With respect to the negotiations
as a whole, this view was upheld particularly by the
representative of the United Nations Secretary-General:
Secretary-General: ' CE 1971, Report ', p. 119, para. 601;
(56) Cf. for example, ' CE 1972, Report ', Vol. I,
p. 175, para. 4.25;
(57) Cf. for example, ' Preliminary Report on the
Consultation of Experts concerning Non-International
Conflicts and Guerilla Warfare ', Geneva, 1970, 1st part,
pp. 19-20; ' CE 1971, Report ', p. 35, para. 113; p. 36,
para. 133, ' CE 1972, Report ', Vol I, p. 175, para. 4.26;
p. 200, para. 4.215; p. 205, para. 5.22;
(58) Cf. for example, ' CE 1972, Report ', Vol. I,
p. 64, para. 2.26; p. 66, para. 2.38;
(59) Cf. for example, ' CRCE 1971, Report ', p. 43
(para. 2); ' CE 1971, Report ', pp. 48-50, paras. 282-289;
282-289; ' CE 1972, Report ', Vol. I, pp. 97-100, Chapter
VIII;
(60) ' Protection of Victims of Non-International
Conflicts ', Report submitted at the XXIst International
Conference of the Red Cross (Istanbul, 1969), ICRC,
Geneva, pp. 7-8;
(61) ' CE/5b ', pp. 30-35 (Conclusions and
proposals);
(62) ' CE 1972, Report ', Vol. II, p. 1 (Art. 1,
para. 2) and p. 6 (Art. 38, para. 1) of the draft Protocol
I of the ICRC. The French text reads "non reconnue", using
the feminine form of the adjective, which may seem to
refer only to the authority; this seems to be an error;
the report does not refer to any discussion on this point,
but the 1973 draft uses the plural adjective "no reconnus"
(Art. 42), as indeed does Art. 4 A(3) of the Third
Convention;
(63) For the text of this preliminary draft of the
Declaration, ' cf. CE 1972, Report ', Vol. II, p. 23. The
great majority of experts were opposed to such a
declaration for various contradictory reasons, some
considering it to be insufficient, while others considered
that the cases covered came under common Art. 3 and the
draft of Protocol II; for the text of the preliminary
draft and the report on the discussions, cf. ibid., Vol.
I, pp. 200-201, paras. 4.216-4.224;
(64) The wish to invite them had been expressed by
the XXIInd International Conference of the Red Cross
(Teheran, 1973) in its Resolution XIII, operative para. 3;
similarly, the United Nations General Assembly in its
Resolution 3102 (XXVIII), operative para. 2;
(65) O.R. V, p. 65, CDDH/SR.7, para. 4. The list of
movements invited for this purpose can be found in O.R. V,
p. 56, CDDH/SR.6, para. 11; the list of movements that
participated can be found in O.R. II, pp. 351-358; the
list of movements which signed the Final Act is in O.R.
VII, p. 336, CDDH/SR.59, para. 5; the status of these
movements in the Conference was governed by Chapter X of
the Rules of Procedure: cf. O.R. II, p. 15, CDDH/2/Rev. 3,
Art. 58;
(66) Para. 1, cf. O.R. I, Part II, p. 5, CDDH/55,
Resolution 3 (I);
(67) Paragraph added to draft Art. 84;
(68) O.R. VIII, p. 7, CDDH/I/SR.2, paras. 2-6;
(69) O.R. III, pp. 5-9, CDDH/I/5, and Add. 1-2
(withdrawn in favour of document CDDH/I/41), CDDH/I/11 and
Add. 1-3, CDDH/I/12 and Corr. 1 and Add. 1, CDDH/I/13
(withdrawn in favour of document CDDH/I/41), CDDH/I/41 and
Add. 1-7, CDDH/I/42, CDDH/I/71. A draft resolution
requesting that an intersessional working group should be
entrusted with examining the question was not passed
(CDDH/I/78, not reproduced in the Official Records;
introduction: O.R. VIII, pp. 97-98, CDDH/I/SR.13, paras.
1-5). The text finally adopted for paragraph 4 is that of
paragraph 2 of CDDH/I/71, a revision of the corresponding
paragraph of CDDH/I/41, which was itself a merger of
CDDH/I/5 and 11. The order of paragraphs was modified by
the Drafting Committee: paras. 1 and 2 became 3 and 4, and
paras. 3 and 4 became 1 and 2. In the French text,
"populations" was replaced by "peuples", and "de leur
droit à l'auto-détermination" by "du droit des peuples à
disposer d'eux-mêmes": cf. O.R. VIII, p. 100,
CDDH/I/SR.13, paras. 19-20. In all the versions "colonial
and alien occupation" was replaced by "colonial domination
and alien occupation"; cf ibid., paras. 18 and 20;
(70) Cf. supra, note 1;
(71) For further details, reference may be made in
the first place to the bibliographies of S.
Calogeropoulous-Stratis, op. cit., and of H. Gros Espiell,
Espiell, ' The Right to Self-Determination --
Implementation of United Nations' Resolutions ', United
Nations publication, 1979. The numerous publications
relating to paragraph 4 include: W.T. Mallison and S.V.
Mallison, "The Juridical Status of Privileged Combatants
under the Geneva Protocol of 1977 concerning International
Conflicts", 62 ' Law and Contemporary Problems ' 2, Duke
University, 1978, p. 10; W.D. Verwey, "Decolonization and
Ius ad Bellum: A Case Study on the Impact of the United
Nations General Assembly on International Law", in
in ' Declarations of Principles -- A Quest for Universal
Peace ', Leyden, 1977, p. 121; J.J.A. Salmon, "Les guerres
de libération nationale", in A. Cassese (ed.), ' The New
Humanitarian Law of Armed Conflict ', Naples, 1979, p. 55;
D. Schindler, "The Different Types of Armed Conflicts...",
op. cit., pp. 118-119, 132-145, 152-157; G. Abi-Saab,
"Wars of National Liberation in the Geneva Conventions and
Protocols", 165 ' Hague Recueil ', 1979/IV, p. 357; E.
Kussbach, "Die Rechtsstellung nationaler
Befreiungsbewegungen im humanitären Völkerrecht", in ' Ius
Humanitatis, Festschrift zum 90. Geburtstag von Alfred
Verdross ', Berlin, 1980, p. 499; J.A. Barberis,
"Nouvelles questions concernant la personnalité juridique
internationale", 179 ' Hague Recueil ', 1983/I, p. 239; A.
Cassese, "Wars of National Liberation and Humanitarian
Law", in ' Studies and Essays in Honour of Jean Pictet ',
op. cit., p. 313;
(72) Cf. "Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West
Africa), notwithstanding Security Council Resolution 276
(1970), Advisory Opinion", ' ICJ Reports ', 1971, p. 16
(particularly pp. 31-32, para. 53). Similarly the Vienna
Convention on the Law of Treaties, Art. 31 (General rule
of interpretation), para. 3, particularly sub-para. (c);
(73) O.R. VIII, p. 21, CDDH/I/SR.3, para. 30. For
H. Gros Espiell, op. cit., paras. 70-87, the right of
peoples to self-determination is ' jus cogens ', even
though this view still meets with some opposition;
(74) O.R. VIII, pp. 13-14, CDDH/I/SR.2, para. 46;
pp. 28-29, CDDH/I/SR.4, para. 25;
(75) For example, ibid, p. 26, CDDH/I/SR.4, para.
7; p. 28, para. 21; p. 39, CDDH/I/SR.5, para. 43;
(76) Art. 1, para. 1; cf. supra, p. 43, point 5;
(77) Resolutions 2105 (XX), 2625 (XXV), and 3103
(XXVIII), cf. supra, pp. 43 and 44, points 4, 7 and 8;
(78) Resolution 2625 (XXVIII), cf. supra, p. 44,
point 7;
(79) For example, O.R. VIII, p. 15, CDDH/I/SR.2,
para. 53;
(80) For example, ibid., pp. 13-14, para. 46;
(81) Chapter III (paras. 251-261) in H. Gros
Espiell, op. cit., is entitled "Specific situations
concerning the right of peoples under colonial and alien
domination to self-determination which have been or are
being dealt with the United Nations". Here is the list of
States and territories in alphabetical order: Algeria,
American Samoa, Angola, Antigua, Bahamas, Barbados,
Belize, Bermuda, Botswana, British Virgin Islands, Brunei,
Burundi, Cambodia, Cameroon, Cape Verde, Cayman Islands,
Central African Republic, Chad, Cocos (Keeling) Islands,
Comoro Archipelago, Congo, Cook Islands, Cyprus, Dahomey,
Djibouti, Dominica, Equatorial Guinea, Eritrea, Falkland
Islands (Malvinas), Fiji, Gabon, Gambia, Ghana, Gibraltar,
Gilbert and Ellis Islands, Grenada, Guam, Guinea,
Guinea-Bissau, Guyana, Hungary, Ifni, Indonesia, Ivory
Coast, Jamaica, Kenya, Laos, Lesotho, Libya, Madagascar,
Malaysia, Malawi, Mali, Malta, Mariana Islands,
Mauritania, Mauritius, Montserrat, Morocco, Mozambique,
Namibia, Nauru, New Hebrides, Niger, Nigeria, Niue, Oman,
Palestine, Papua New Guinea, Pitcairn, Puerto Rico,
Rwanda, St. Kitts-Nevis-Anguilla, St. Helena, St. Lucia,
St. Vincent, Sao Tome and Principe, Senegal, Seychelles,
Sierra Leone, Singapore, Solomon Islands, Somalia, South
Africa, Southern Rhodesia, Southern Yemen, Suriname,
Swaziland, Tanzania, Tibet, Timor, Togo, Tokelau Islands,
Trinidad and Tobago, Tunisia, Turks and Caicos Islands,
Tuvalu, Uganda, United States Virgin Islands, Upper Volta,
Western Sahara, Western Samoa, West New Guinea (West
Irian), Zaire, Zambia;
(82) Criterion used for inviting liberation
movements to the CDDH, cf. supra, pp. 49-50, and note 66.
Cf. also commentary Art. 96, infra, p. 1089 and note 29;
(83) O.R. III, p. 8, CDDH/I/42, quoted above. In
favour of this proposal, in addition to its sponsor: O.R.
VI, pp. 62-63, CDDH/SR.36, Annex (Indonesia); O.R. VII, p.
324, CDDH/SR.58, Annex (Mauritania) (after adoption in the
Plenary Conference); against: cf. O.R. VIII, p. 105,
CDDH/I/SR.14, para. 4 (after adoption by Committee I);
(84) O.R. V, p. 228, CDDH/SR.22, para. 14;
(85) O.R. VII, p. 246, CDDH/SR.56, Annex (Syria).
Other declarations can also be noted which are less
conclusive with regard to the question whether the
paragraph covers only one of the aspects of the right of
peoples to self-determination: O.R. VIII, p. 11,
CDDH/I/SR.2, para. 34; p. 20, CDDH/I/SR.3, para. 21; p.
106, CDDH/I/SR.14, para. 8;
(86) A situation already covered by the law of The
Hague and Geneva; cf. commentary para. 3, supra, p. 40;
(87) Cf. for example, O.R. V, pp. 314-315,
CDDH/SR.27, paras. 5 and 14, with regard to resolution 7
(II);
(88) In this sense, cf. O.R. VI, p. 53, CDDH/SR.36,
para. 114;
(89) Ibid., p. 47, CDDH/SR.36, paras. 87-88; such a
requirement was formulated in a declaration made by the
United Kingdom upon signing the Protocol;
(90) Cf. O.R. VI, pp. 59-60, CDDH/SR.36, Annex
(Australia);
(91) Cf. the comparison with organized resistance
movements in totally occupied countries: O.R. VIII, p. 34,
CDDH/I/SR.5, para. 7; O.R. VI, p. 354, CDDH/SR.46, para.
77;
(92) Amongst other statements, cf. O.R. VIII, p.
11, CDDH/I/SR.2, para. 32; pp. 28-29, CDDH/I/SR.4, para.
25; after the adoption of Art. 1 in plenary: O.R. VII, p.
217, CDDH/SR.56, para. 114;
(93) Cf. the indication that an unofficial working
group in which all the regional groups were represented
unanimously arrived at this conclusion during the second
session, while studying the repercussions of Art. 1: O.R.
VI, pp. 43-44, CDDDH/SR.36, para. 69;
(94) For example O.R. V, p. 101, CDDH/SR.11, para.
5; pp. 109-110, paras. 46-47;
(95) For example O.R. VIII, p. 32, CDDH/I/SR.4,
para. 45; O.R. VI, p. 354, CDDH/SR.46, paras. 76-77;
(96) Cf. in particular Art. 1, common to the
Conventions, para. 1 of this article, as well as Art. 89
of Protocol I;
GVALNWB1/ICRC
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