ICRC databases on international humanitarian law
  • Print page
Commentary - Neutral and other States not Parties to the conflict
    [p.237] Article 19 -- Neutral and other States not Parties to the conflict


    General remarks

    795 This article concerns the obligations of States which are not Parties to the conflict with respect to persons protected by Part II of the Protocol, and with respect to the dead of the Parties to the conflict. It supplements Article 4 of the first Convention, Article 5 of the Second Convention, and Article 4 B (2) of the Third Convention, which deal with the same problem and it lays down the same rules as those laid down in the 1949 Conventions.

    796 The question may arise whether this article might not have been better placed among the general provisions of the Protocol. However, as one delegate stated, [p.238] it is essentially the obligations contained in the provisions of Part II which are placed on States not Parties to the conflict:

    "Part I laid down the basic obligations imposed on all High Contracting Parties, and Parts III and IV were concerned with the situation on the battlefield and with the relations between the belligerent Power, especially as an Occupying Power, and the population. None of the provisions of those three Parts was applicable to a third State, with the exception of Articles 60 to 62, which were concerned with relief; in those articles, however, the obligations of the third State were explicitly regulated. Finally, Part V imposed obligations on all High Contracting Parties, whether Parties to the conflict or not, and accordingly did not come within the scope of Article 19 ." (1)

    In addition, it should be noted that Article 9 ' (Field of application), ' paragraph 2 (a), and Article 31 ' (Neutral or other States not parties to the conflict) ' of the Protocol, which both also fall under Part II, are also directly concerned with the States mentioned in Article 19 . (2)

    Text of the article

    797 The States which are bound by obligations in pursuance of this article are "neutral and other States not Parties to the conflict". (3)

    798 This article does not cover liberation movements to which the Protocol may apply. (4) However, it would be desirable that if a conflict in which they are not engaged takes place on the borders of territory under their control, they should at least endeavour to act in the spirit of the provisions which could relate to them.

    799 The States concerned here are required to apply the "relevant provisions of this Protocol". Mentioning only the provisions of the Protocol, without referring to those of the Conventions, shows that the category of States covered by the provisions of this Protocol is the same as that covered by the corresponding articles of the Conventions. On the other hand, there was a preference for requiring the application of the relevant provisions of the present Protocol, rather than the application "by analogy [...] [of] the provisions of the present Protocol", as provided in the draft, which in turn was inspired by the Conventions. As one delegate stated, this expression:

    "did not accurately reflect the true position of States not Parties to the conflict. Those words might seem to imply that such States were being asked to apply the provisions relating to the wounded, sick and shipwrecked as if they were Parties to the conflict". (5)

    [p.239] It is clear that many provisions of the Protocol cannot impose obligations on the States concerned here, even if they relate to persons who are to be protected. (6) However, it is only a question of wording, for basically it is quite clear that the situation under the Conventions was precisely the same, as shown indeed in the commentary on Article 4 of the first Convention: "The Convention, having been drawn up with a view to determining the treatment of enemies, contains a number of provisions which could only apply to belligerents". (7)

    800 In the Protocol, as in Articles 4 of the first Convention and 5 of the Second Convention, though unlike Article 4 B (2) of the Third Convention, there is no list of the articles which must be applied -- or those which need not be applied -- by the States concerned in Article 19 . The reason, which also applies for Article 19 of the Protocol, was clearly explained in the Commentary on the first Convention:

    "An enumeration is justified in the Third Convention, whose object is to lay down regulations for the treatment of men who are interned; in the first Convention it would necessarily have been somewhat rigid and arbitrary, some of the articles being partially applicable. The application of the Convention by neutral Powers is primarily a question of common sense, guided by a humane spirit. The interests of the wounded themselves will provide a touchstone in cases of doubt." (8)

    801 It should also be noted that there was even a proposal in one amendment to mention only "the provisions of this Part". (9) The reason was that essentially only the provisions of this Part have to be applied by the States covered here. We noted this above, to explain the fact that Article 19 is included in Part II, and the reasons we gave were also put forward by the sponsors of this proposal. As the amendment was proposed rather late, and was considered by a number of delegates as a matter of substance, (10) it was withdrawn without any real discussion taking place. (11) In any case the question is not of great importance. The States concerned are required mainly to observe the general principles of respect and protection for the wounded, sick and shipwrecked, as well as for medical personnel. These principles are actually stated in Part II. (12) However, these States could also seek inspiration in rules contained elsewhere. An example that springs to mind is Article 76 ' (Protection of women), ' paragraph 2, in Part IV, relating to pregnant women, who are also covered by Part II as "wounded" or "sick" in the sense of the Protocol. (13)

    802 The persons covered by Article 19 are "persons protected by this Part". This concise formulation was ultimately preferred to an enumeration of protected persons, (14) as contained in the 1973 draft and the report of the Drafting Committee [p.240] of Committee II. (15) The persons covered here are the wounded, sick and shipwrecked, civilian medical personnel and civilian religious personnel, in the sense of the Protocol. (16) Medical and religious personnel not protected by Part II, and consequently not covered by this article, are protected by the Conventions and are therefore covered by the analagous articles in the Conventions mentioned above. These several instruments together cover all such personnel, leaving no gaps.

    803 It should be noted that some provisions apply partially to persons whose protection is explicitly provided, and partially to other persons. This applies in particular to Article 16 ' (General protection of medical duties). ' Ordinary common sense should dictate to neutral or other States not Parties to the conflict that they should generally apply these articles, or at least, the principles on which they are based.

    804 However, persons protected by this Part are only covered by Article 19 if they are "received or interned" within the territory of a neutral or other State not Party to the conflict. Indeed, their relationship to such a State becomes important only in this case. The text refers to persons who "may" be received or interned. This should be understood to mean "any persons who are actually received or interned when the occasion arises". The article does not impose obligations on the States concerned with regard to persons they would be able to (but do not in fact) receive or intern. As regards the expression "received or interned", it is taken from similar articles in the Conventions. These terms were deliberately selected in 1949 "in order to cover all cases which might arise through the application of the fifth Hague Convention of 1907". (17) Reference should be made to this Convention, as well as to Articles 4 and 37 , paragraph 3, of the first Convention and to the relevant Commentaries to ascertain in detail what persons must be interned. With regard to persons protected by this Part, it can simply be stated that in any case no obligation is imposed by international law on neutral or other States not Parties to the conflict to intern or detain civilians. (18)

    805 Finally, neutral States and other States not Parties to the conflict must also apply the relevant provisions of the Protocol "to any dead of the Parties to that conflict whom they may find". Basically this concerns the provisions of Article 34 ' (Remains of deceased), ' which in turn refers to some provisions of the Conventions. (19) However, the States concerned could also refer to Article 17 ' (Role of the civilian population and of aid societies), ' paragraph 2, in cases where large numbers of dead are found in their territory.

    ' Y. S. '


    NOTES

    (1) O.R. XI, p. 259, CDDH/II/SR.26, para. 11. The articles relating to relief actions have become Articles 68-71 in the final version of the Protocol;

    (2) For further details on this subject, cf. commentary Art. 9, para. 2, point 1, supra, p. 142, and Art. 31, infra, p. 325;

    (3) On the meaning of this expression, cf. commentary Art. 2, sub-para. (c), supra, p. 61;

    (4) Cf. Art. 1, para. 4, and its commentary, supra, pp. 41-56;

    (5) O.R. XI, pp. 258-259, CDDH/II/SR.26, para. 9;

    (6) Cf., for example, Art. 15, paras. 2-4;

    (7) ' Commentary I, ' p. 63;

    (8) Ibid;

    (9) Cf. O.R. III, p. 95, CDDH/II/242;

    (10) Cf. O.R. XI, p. 260, CDDH/II/SR. 26, paras. 18, 20-21;

    (11) Ibid., p. 260, para. 22;

    (12) Cf. in particular, Arts. 10 and 15;

    (13) Cf. Art. 8, sub-para. (a);

    (14) Cf. O.R. XI, p. 262, CDDH/II/SR.26, para. 35;

    (15) Cf. CDDH/II/240 of 21 February 1975 (not published in the ' Official Records. ');

    (16) Cf. Art. 8, sub-paras. (a), (b), (c) and (d);

    (17) ' Commentary I, ' p. 62. This refers to the Convention respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land;

    (18) However, there are a few exceptions, as in the case when such a person has committed an offence covered by an extradition treaty or a grave breach of the Conventions or the Protocol;

    (19) For further details on this subject, cf. commentary Art. 34, infra, p. 365;