International Committee of the Red Cross
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Commentary of 1987 
Definitions
[p.57] Article 2 -- Definitions


[p.58] General remarks

119 Article 31 (General rule of interpretation) of the Vienna Convention on the Law of Treaties of 23 May 1969 provides that: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (paragraph 1); it adds that: "A special meaning shall be given to a term if it is established that the parties so intended" (paragraph 4).

120 Thus the object of definitions is essentially to help the interpretation in cases of possible doubt regarding the meaning of terms in a treaty; it may also simply be to prevent the use of lengthy formulations by replacing them with more concise expressions; finally, a definition can itself contain a substantive rule. Whatever the case, the definitions laid down in a treaty for the purposes of that treaty bind the Parties with regard to its interpretation.

121 During the Diplomatic Conference the question was raised whether all the definitions given in the Protocol should be grouped together in Article 2 , or whether it should include only definitions of expressions used throughout the Protocol, as in the case of the draft. The latter solution was chosen, and other definitions were retained in parts, sections or chapters particularly concerned with them. (1)

[p.59] 122 Two major modifications were made to the draft. Sub-paragraph (b) was inserted in Article 2 although it had been developed and adopted by Committee III as an integral part of Article 43 (' Armed forces '). In addition, in view of the difficulty of establishing a general definition of such expressions as "protected persons" and "protected objects", Committee I decided not to provide definitions of these expressions; in fact, as these two expressions were to be used only in Articles 11 (' Protection of persons ') and 85 (' Repression of breaches of this Protocol '), it seemed best to include the appropriate information in these provisions.

123 The article was adopted by consensus by the Committee (2) and in plenary. (3)

Opening sentence

124 The six words preceding the sub-paragraphs are the standard wording also found in Articles 8 (' Terminology ') and 61 (' Definitions and scope '). Even though this might be considered to be self-evident, it means that the definitions given do not in any way affect another meaning that the expressions defined could have, for example, in another treaty (4) or in the domestic law of a State.

125 Nevertheless, with regard to sub-paragraph (c), it is clear that the definition given here applies not only to the Protocol but also to the Conventions.

Sub-paragraph (a)

126 The expressions "First Convention" etc. have become current usage for practical reasons, though up to now there has been no official recognition. (5) The same considerations applied for adopting the term "Protocol I" and "Protocol II", this time as an official abbreviated title.

127 The expression "for the protection of war victims" had already been officially approved in the resolutions of the Diplomatic Conference of 1949; subsequently it was used particularly by their depositary and by the United Nations. (6) Moreover, it is contained in Article 1 (' General principles and scope of application '), paragraph 3, of the Protocol.

[p.60]
Sub-paragraph (b)

128 The expression "rules of international law applicable in armed conflict" is used in a number of articles of the Protocol. (7) Other references relating generally or specifically to international law, (8) or to specific instruments, (9) can also be found.

129 The object of Article 43 (' Armed forces '), for which this definition was drafted, was not so much to list all the rules but to extend the fundamental obligation laid down in Article 1 of the Hague Convention IV of 1907 to the Protocol (10), and to all the armed forces. The commentary on the Draft specified that the expression related to customary law, as well as to treaty law, the latter comprising mainly the Hague Conventions of 1907, the Geneva Protocol of 1925, the Geneva Conventions of 1949, and the Hague Convention of 1954. (11) Since then, this Protocol and the Convention of 1980 on conventional weapons linter alia have been added to these.

130 As the Conference did not draw up a list of treaty rules or customary rules covered by this sub-paragraph either in Committee III or in plenary meetings, reference should be made to the various articles containing this formula to know to which rules each of them is referring. (12)

131 Essentially the treaty rules are contained in instruments especially intended to apply in armed conflicts, including the law of neutrality. The expression "applicable to armed conflict" used at the end of the sub-paragraph should not be interpreted to cover ' jus ad bellum ' as well, in the context of the Protocol. (13) On the other hand, the definition does cover instruments of more general applicability that continue to apply wholly or partially in a situation of armed conflict.

[p.61] 132 finally it should be noted that the limitation to "international agreements to which the Parties to the conflict are Parties" has no effect with regard to rules which have validity as customary law, whether or not they form part of a treaty.

Sub-paragraph (c)

133 The expression "Protecting Power", used in the Geneva Conventions since 1929, can be found in sub-paragraph (d) of this article, as well as in various other articles of the Protocol. (14)

134 The main particulars given in the Protocol on the characteristics and activities of the Protecting Power are given in the other articles of the Protocol referred to above. However, this sub-paragraph does contain some elements.

135 First, the Protecting Power means "a neutral or other State not a Party to the conflict". Only the term "neutral" is used by the Conventions in a number of their provisions. The draft Protocol used the wording "not engaged in the conflict" instead of the word "neutral". In fact, other forms of non-participation in a conflict have been added to neutrality as defined by treaty (15) and customary law. Undoubtedly it would have sufficed to use the expression "not engaged in the conflict" or "not Party to the conflict" for the purposes of this sub-paragraph and other articles of the Protocol containing the same wording. (16)

136 Nevertheless, while assigning them equal significance, the Conference considered it appropriate to make a separate mention of non-participation in the conflict in general, and of neutrality in the true sense of the word -- whether this is neutrality in a particular conflict, or permanent neutrality. The fact that the Protocol thus gave restrictive meaning to the term "neutral" by using this new wording, does not affect the meaning of the term in the Conventions, where it should be interpreted as covering non-participation in conflicts in general, as well as neutrality in the proper sense of the word. (17)

137 The rest of the sub-paragraph expressly formulates what the concept of a Protecting Power means: to appoint such a Power there must be agreement between the State approached to be the Protecting Power and each of the two Parties to the conflict concerned. Although the consent of the two first is mentioned in Article 5 (' Appointment of protecting powers and of their substitute '), [p.62] the latter is not; although this does not matter, it would have been more logical if the third consent had also been mentioned. (18)

138 finally, the mention of "functions assigned [...] under the Conventions and this Protocol" results from the distinction established in Article 5 (' Appointment of protecting Powers and of their substitute '), paragraph 6, between the "Vienna mandate" and the "Genev mandate" -- as the same Protecting Power should not necessarily take upon itself both of these two mandates. (19)

Sub-paragraph (d)

139 The term "substitute" is used only in Article 5 (' Appointment of protecting Powers and of their substitute '), paragraphs 4 and 7. Paragraph 7 specifically dispenses with the need to mention the substitute each time reference is made to Protecting Powers. Although the term did not appear in the text itself of the Conventions, it had been used in the marginal notes (which were not adopted by the Conference in 1949), and it was widely used in practice.

140 Nevertheless, we will see below with regard to the above-mentioned Article 5 (' Appointment of protecting powers and of their substitute '), paragraphs 4 and 7, that the relevant article of the Conventions provides for various possible types of substitute -- a neutral State, an organization which offers every guarantee of impartiality and efficacy, a humanitarian organization such as the ICRC. As regards the Protocol, it refers only to the ICRC or any other organization which offers all guarantees of impartiality and efficacy.

141 The draft envisaged that a substitute might replace a Protecting Power "for the discharge of all or part of its functions". The Working Group decided to delete this expression. According to the commentary of the draft Protocol the words "all or part" in the draft referred to two possible situations: that in which the Protecting Power and the substitute shared the tasks, in accordance with the wishes of the designated Protecting Power and with the agreement of the Parties to the conflict; and that in which the substitute was prepared to assume only part of such activities, in the absence of a Protecting Power and with the agreement of the Parties to the conflict. The possibility of having several different substitutes at the same time had already been envisaged by the Commentary to the Conventions (20)

142 Although the Conference did not retain the words "all or part" in this subparagraph -- just as it did not adopt a proposal to us "substitutes" in the plural instead of "a substitute" in Article 5 (' Appointment of Protecting Powers and of their substitute '), paragraph 7 -- neither the summary records nor the reports of the Committee reveal any strong opposition to the notion of a possible division of [p.63] tasks. (21) On the contrary, several speakers argued in its favour, (22) and other proposed amendments did not affect the draft in this respect.

143 It must be concluded that the Conference did not wish to encourage the division of responsibilities between a Protecting Power and a substitute, or between a number of substitutes, by explicitly referring to such a possibility. However, neither did it wish to prohibit such a solution in exceptional cases where it was necessary for the sake of the victims, whose interests must prevail over practical considerations in favour of a unified approach. (23)

' B.Z. '


NOTES

(1) Thus other definitions or similar provisions can be found in the following articles: 8; 26, para. 2; 37; 41, para. 2; 43; 46, paras. 2-3; 47, para. 2; 49, para. 1; 50; 51, paras. 4-5; 52; 56, para. 1; 59, paras. 2-3; 60, para. 3-4; 61; 85, para. 5; 90, para. 1;

(2) ' O.R. ' VIII, p. 53, CDDH/I/SR.7, paras. 18-23; pp. 247-248, CDDH/I/SR.26, para. 4; ' O.R. ' XV, p. 91, CDDH/III/SR.47, para. 35 (' cf. ' also ' ibid., ' p. 390, CDDH/236/Rev. 1, para. 43);

(3) ' O.R. ' VI, p. 57, CDDH/SR.36, para. 129;

(4) Along the same lines, ' cf. ' commentary Art. 35, para. 3, ' infra, ' pp. 415-420, for the different meanings of almost identical expressions in two treaties;

(5) One or other of the expressions defined is used in the following arts. of the Protocol: 2-9, 12, 15, 16, 18, 21-23, 30, 33, 34, 38, 41, 43-46, 49, 50, 58-60, 68-70, 72, 75, 79-83, 85-100, 102, and Art. 1 of Annex 1;

(6) ' United Nations Treaty Series ', 1950, Nos. 970-973;

(7) Arts. 31, 37, 43, 44, 57, 59 and 60;

(8) Art. 1, para. 2: "principles of international law"; Art. 5: "rules of international law relating to diplomatic relations"; Art. 36: "any other rule of international law applicable to the High Contracting Party"; Art. 39, para. 3: "existing generally recognized rules of international law applicable to espionage or to the use of flags in the conduct of armed conflict at sea"; Art. 49, para. 3: "rules of international law applicable in armed conflict at sea or in the air"; Art. 49, para. 4: "other international agreements binding upon the High Contracting Parties, as well as to other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air against the effects of hostilities"; Art. 51, para. 1: "other applicable rules of international law"; Art. 56, para. 3; "international law"; Art. 72: "other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict"; Art. 75, para. 7(' a '), and para. 8: "applicable rules of international law";

(9) Preamble, second and fourth paragraphs: "charter of the United Nations"; Art. 89: ' idem '; Art. 102: ' idem '; Annex I, Art. 7, para. 3: "International Telecommunication Convention"; Art. 8, para. 1: "Chicago Convention on International Civil Aviation of 7 December 1944"; Art. 10: "standards [...] established by [the ITU, ICAO and IMCO]"; Art. 11: "International Code of Signals", above-mentioned Chicago Convention; Art. 13: same Convention;

(10) "The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations Respecting the Laws and Customs of War on Land, annexed to the present Convention". For this Protocol various provisions of Parts I and V have the same aim;

(11) ' Commentary Drafts ', p. 47 (Art. 41);

(12) Also see ' supra, ' Editors' Note (definitions);

(13) In this respect, ' cf. ' commentary Preamble, first, fourth and fifth paras., ' supra, ' pp. 26 and 28;

(14) Arts. 5, 33, 45, 70, 78 and 84;

(15) Essentially the Hague Conventions V and XIII of 1907;

(16) Art. 9, para. 2(' d '); 19; 22, para. 2(' a '); 30, para. 3; 31; 37, para. 1(' a '); 39, para. 1; 64, paras. 2-3;

(17) On the theme of the CDDH and neutrality, ' cf. ' in particular, E. Kussbach, "Protocol I and Neutral States", ' IRRC, ' September-October 1980, p. 231; J. Monnier, "Développement du droit international humanitaire et droit de la neutralité", a study presented at the Tenth Round Table of the International Institute of Humanitarian Law (San Remo, September, 1984) in ' Quatre études du droit international humanitaire ', Geneva, 1985, p. 5. On neutrality in a more general sense, ' cf. ' D. Schindler, "Aspects contemporains de la neutralité", 121 ' Hague Recueil ', 1967/II, p. 221; Bernhardt (ed.), ' op. cit., ' Instalment 4: R. Bindschedler, "Neutrality, Concept and General Rules" (p. 9); K.J. Madders, "Neutrality in Air Warfare" (p. 14); K. Zemanek, "Neutrality in Land Warfare" (p. 16); Y. Dinstein, "Neutrality in Sea Warfare" (p. 19); E. Kussbach, "Neutrality Laws" (p. 28); R. Bindschedler, "Permanent Neutrality of States" (p. 133);

(18) In this sense, ' cf. O.R. ' VIII, p. 56, CDDH/I/SR.7, para. 45;

(19) ' Cf. ' commentary Art. 5, para. 6, ' infra, ' pp. 87-88;

(20) E.g., ' Commentary I ', pp. 134-135 (Art. 10, para. 3);

(21) Even in the introduction of the amendment proposing deleting the words "all or part"; ' cf. O.R. 'III, p. 11, CDDH/I/44, and Corr. 1; ' O.R. ' VIII, p. 85, CDDH/I/SR.11, para. 49;

(22) ' O.R. ' VIII, p. 84, CDDH/I/SR.11, paras. 41 and 46; p. 162, CDDH/I/SR.18, paras. 45 and 46 ' in fine ';

(23) ' Cf. ' also ' infra, ' pp. 87-88, commentary Art. 5, para. 6, regarding the possibility of having one or two Protecting Powers for the "Vienna mandate" and the "Geneva mandate";



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