Treaties, States Parties and Commentaries
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Commentary of 1987 
[p.1343] Part I -- Scope of this Protocol

4436 At the basis of the Protocol, Part I lays down the conditions of its application (Article 1 -- ' Material field of application ') and defines the beneficiaries of the rules it contains and those for whom they are intended (Article 2 -- ' Field of personal application '). As the Protocol is the result of a compromise between humanitarian requirements and those of State security, the negotiators also considered it necessary to include a clause safeguarding the inviolability of the national sovereignty of States (Article 3 -- ' Non-intervention ').

4437 The content and scope of all of these articles will be analysed in the respective comments on them. Before doing this it seems useful to have a closer look at the basic pattern of Part I, which reveals the similarity of the ideas which inspired Protocol II and common Article 3 . To understand the scope of the Protocol one should indeed always bear in mind the fact that this instrument supplements and develops common Article 3 ; it is an extension of it, and is based on the same structure. (1) Their common characteristics find expression, explicitly or implicitly, in Part I. These can be summarized as follows:

1. Protocol II and common Article 3 apply automatically once there is a de facto situation of armed conflict (2)

4438 The threshold where Protocol II becomes applicable is determined by the criteria expressed in Article 1 ' (Material field of application), ' (3) which means that it is intended to apply only to conflicts of a certain degree of intensity. The principle that it will automatically apply is based on humanitarian requirements, for the implementation of rules for the protection of victims should not be dependent on the subjective judgment of the parties. (4) Good faith in the application of these instruments remains a basic element.


2. The application of Protocol II and common Article 3 does not in any way confer international recognition on the insurgent party (5)

4439 Common Article 3 expressly provides that the application of its provisions will have no effect on the legal status of the parties to the conflict. The ICRC draft contained a reaffirmation of that clause. (6) As every mention of "parties to the conflict" had been deleted, that article was no longer relevant, and consequently it was dropped. According to some delegations, the mere mention of parties to the conflict in the text of the Protocol could have implied a semblance of recognition of an insurgent party. (7)

4440 Like common Article 3 , Protocol II has a purely humanitarian purpose and is aimed at securing fundamental guarantees for individuals in all circumstances. Thus, its implementation does not constitute recognition of belligerency even implicitly (8) nor does it change the legal nature of the relations between the parties engaged in the conflict. In this respect it is interesting to note that up to now neither common Article 3 , nor Protocol II, has ever been used for the purpose of claiming recognition.

3. Protocol II and common Article 3 do not grant a special status to members of the armed forces or armed groups captured by the adversary

4441 Following the example of common Article 3 , Protocol II does not establish any special category of protected persons, nor does it create any special legal status. A member of the armed forces in the power of the adverse party and a civilian deprived of his liberty for a reason related to the conflict enjoy the same legal protection (Article 4 -- ' Fundamental guarantees, ' Article 5 -- ' Persons whose liberty has been restricted, ' and Article 6 -- ' Penal prosecutions '). National law remains in force, i.e., the authorities retain the right to prosecute and, when necessary, to sentence persons who have been found guilty of offences related to the conflict. In particular the Protocol does not prevent bringing to justice a member of an insurgent armed group for the act of taking up arms. It does not confer upon him either combatant or prisoner-of-war status. (9)


4. Protocol 11 and common Article 3 are based on the principle of the equality of the parties to the conflict

4442 The deletion from the text of all mention of "parties to the conflict" only affects the drafting of the instrument, and does not change its structure from a legal point of view. All the rules are based on the existence of two or more parties confronting each other. These rules grant the same rights and impose the same duties on both the established government and the insurgent party, and all such rights and duties have a purely humanitarian character.

4443 The ICRC draft clarified this point in an article which reads as follows: "The rights and duties of the parties to the conflict under the present Protocol are equally valid for all of them." (10) The Conference decided not to include it during the final stage of the adoption of the Protocol. (11)

4444 The question is often raised how the insurgent party can be bound by a treaty to which it is not a High Contracting Party. (12) It may therefore be appropriate to recall here the explanation given in 1949: the commitment made by a State not only applies to the government but also to any established authorities and private individuals within the national territory of that State and certain obligations are therefore imposed upon them. The extent of rights and duties of private individuals is therefore the same as that of the rights and duties of the State. Although this argument has occasionally been questioned in legal literature, the validity of the obligation imposed upon insurgents has never been contested. (13)

5. The offer of services by an impartial humanitarian organization, such as the ICRC, cannot be considered as interference in the conflict or in the internal affairs of the State.

4445 Common Article 3 gave the ICRC the right of initiative in situations of non-international armed conflict. (14) Even in the absence of explicit reaffirmation, it continues to apply, since Protocol II has an "additional" character. (15) The parties to the conflict retain complete freedom to refuse or accept such an offer of services, but it may not in itself be considered as a hostile act or as intervention; [p.1346] moreover, the Protocol provides for the possibility of appealing to a humanitarian organization, in particular by mentioning the possibility of undertaking international relief actions. (16)

' S. J. '

* (1) [(1) p.1343] Several delegations stressed what one delegate referred to as the "essential identity" between common Article 3 and Protocol II. See, in particular, O.R. VIII, p. 234, CDDH/I/SR.24, para. 27;

(2) [(2) p.1343] On the concept of armed conflict, cf. ' Commentary I ', pp. 51-52 (common Art. 3) and the general introduction to the Commentary on Protocol II, supra, p. 1319;

(3) [(3) p.1343] See Art. 1 of Protocol II and the commentary thereon, infra, p. 1347;

(4) [(4) p.1343] One delegation proposed that the State should determine whether the conditions of application were fulfilled. This proposal was not supported since it would have constituted a step backwards compared to 1949. See O.R. VII, pp. 66-68, CDDH/SR.49, in particular paras. 39, 51-52;

(5) [(5) p.1344] To describe armed opposition to the government we adopt the term "insurgents", which will be used throughout the Commentary on Protocol II;

(6) [(6) p.1344] Draft Art. 3 (Legal status of the parties to the conflict);

(7) [(7) p.1344] O.R. VII, p. 85, CDDH/SR.50, para. 3. See also ibid., p. 61, CDDH/SR.49, para. 11;

(8) [(8) p.1344] See the general introduction to Protocol II, supra, p. 1320 (recognition of belligerency);

(9) [(9) p.1344] It should be recalled that: "the death penalty shall not be pronounced on person who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children" (Art. 6, para. 4), and that the authorities in power shall endeavour to grant the broadest
possible amnesty at the end of hostilities (ibid., para 5). In addition, the ICRC has always attempted in practice to recommend measures of clemency both to protect persons and to prevent the escalation of violence;

(10) [(10) p.1345] Draft Art. 5 (Rights and duties of the parties to the conflict);

(11) [(11) p.1345] O.R. VII, p. 86, CDDH/SR.50, para. 9. See also ibid., p. 76, CDDH/SR.49, Annex (Belgium). This explanation of vote reaffirms the philosophy of common Article 3, and in particular "the basic sovereign principle that the obligations of the Protocol are equally binding on both Parties to the conflict";

(12) [(12) p.1345] For the meaning of "High Contracting Party", see the commentary on the Preamble to Protocols I and II, supra, pp. 25 and 1338;

(13) [(13) p.1345] See ' Commentary I, ' pp. 52-53 (common Art. 3). See also CE 1971, Report, p. 44, para. 223;

(14) [(14) p.1345] Common Art. 3, para. 4. See Y. Sandoz, "Le droit d'initiative humanitaire", 22 ' GYIL ', 1979, p. 352;

(15) [(15) p.1345] Cf. commentary Art. 3, para. 2, infra, p. 1363. On the statement by the ICRC: see O.R. VII, p. 151, CDDH/SR.53. para. 64;

(16) [(16) p.1346] See Art. 18, para. 2, Protocol II and the commentary thereon, infra, p. 1478;