ICRC databases on international humanitarian law
  • Print page
Commentary - Fundamental guarantees
    [p.1367] Article 4 -- Fundamental guarantee


    [p.1368] General remarks

    4515 Article 4, paragraphs 1 and 2, reiterates the essence of common Article 3 , in particular paragraph 1, sub-paragraph (1)(a), (b) and c) thereof. These rules [p.1369] were supplemented and reinforced by new provisions inspired by the Conventions and the International Covenant on Civil and Political Rights. (1)

    4516 The rule on quarter is given at the end of paragraph 1. This provision originates in Hague law and is based on Article 23, paragraph 1(d) , of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land.

    4517 Paragraph 3 is devoted more particularly to the protection of children and reiterates some principles already contained in the fourth Convention, especially in Articles 17 , 24 and 26 .

    4518 The diversity of the subject matter dealt with in this article can be explained in the light of a review of the history of the negotiations. The fundamental guarantees as provided in Article 6 of the ICRC draft correspond to paragraphs 1 and 2 of the present article, with the exception of the provision on giving quarter. The rule on quarter was contained in Article 22 of the draft, which also proposed some other rules on conduct in combat; (2) this was an abbreviated version of Part III, Section I, of Protocol I ' (Methods and means of warfare). ' These articles, which were adopted in Committee, were not retained when the Protocol was adopted in plenary meetings with the exception of the rule on giving quarter, which the Pakistani delegation had retained in its proposal for a simplified Protocol. (3) In the absence of any further rules in the Protocol for the conduct of combatants it seemed logical to include the rule on quarter amongst the fundamental guarantees, and this proposal did not encounter any opposition.

    4519 Protection of children was also included in a separate provision of the draft (Article 32). The article as such was not retained when the Protocol was adopted, but the most essential elements of its content were included in Article 4 in the form of the present paragraph 3. (4)

    Paragraph 1

    ' First two sentences -- General principle of humane treatment '

    4520 The scope of application as defined here applies not only to Article 4, but also to Part II as a whole. ' Ratione personae ' it covers all persons affected by armed conflict within the meaning of Article 2 of the Protocol ' (Personal field of [p.1370] application) ' when they do not, or no longer, participate directly in hostilities. ' Ratione temporis ' combatants are protected as soon as they are ' hors de combat. ' (5)

    4521 The right of protected persons to respect for their honour, convictions and religious practices is an element of humane treatment confirmed in this paragraph. The formula is taken, with slight modification, from Article 27 of the fourth Convention.

    "The right of respect for the person must be understood in
    its widest sense: it covers all the rights of the individual, that is, the rights and qualities which are inseparable from
    the human being by the very fact of his existence and his mental and physical powers." (6)

    4522 It should be noted that Article 27 of the fourth Convention refers to religious convictions and practices, while Article 4 of Protocol II refers to "convictions and religious practices". This slight drafting modification is not arbitrary and gave rise to lengthy debate. (7) It is aimed at making the adjective "religious" qualify only the word "practices"; convictions are not necessarily religious and it is important that philosophical and political convictions, which are not specifically part of a religion, are also ensured respect. This is why it was thought necessary to make this point. (8)

    4523 The term "treat humanely" is based on the Hague Regulations. (9) It was also used in the 1929 and 1949 Conventions. The word "treatment" should be understood in its broadest sense as applying to all the conditions of man's existence. (10)

    4524 The words "without any adverse distinction" can be explained in the light of Article 2 ' (Personal field of application), ' paragraph 1:

    "without any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national of social origin, wealth, [p.1371] birth or other status, or on any other similar criteria (hereinafter referred to as "adverse distinction")." (11)

    ' Third sentence -- The rule on quarter '

    4525 This is one of the fundamental rules on the conduct of combatants inspired by Hague law. (12) It is aimed at protecting combatants when they fall into the hands of the adversary by prohibiting a refusal to save their lives if they surrender or are captured, or a decision to exterminate them. (13) The text of the draft was more explicit and read as follows: "It is forbidden to order that there shall be no survivors, to threaten an adversary therewith and to conduct hostilities on such basis." (14) The present wording is briefer, but does not alter the essential content of the rule. Clearly respect for this rule is fundamental. It is a precondition governing the application of all the rules of protection laid down in the Protocol, for any guarantees of humane treatment, any rule on care to be given the wounded and sick, and any judicial guarantees would remain a dead letter if the struggle were conducted on the basis of orders to exterminate the enemy.

    4526 The inclusion of this provision amongst the fundamental guarantees laid down in Article 4 is of special importance. In fact, it indirectly indicates the moment from which combatants who are no longer able to fight are protected by Part II, a function originally assigned in the draft to the rule on safeguarding enemies ' hors de combat '. (15) Protection of enemies ' hors de combat ' is in a way the final stage of the present rule on quarter, in the sense that the prohibition against ordering that there will be no survivors affects the concept of military operations even before the enemy is ' hors de combat. ' (16)

    Paragraph 2

    ' Opening sentence '

    4527 The general principle on humane treatment laid down in the preceding paragraph is illustrated with a non-exhaustive list of prohibited acts. The term "without prejudice to the generality of the "foregoing" means that none of the specific prohibitions can have the effect of reducing the scope of the general principle.

    [p.1372] 4528 The prohibitions are explicit and do not allow for any exception; they apply "at any time and in any place whatsoever". They are absolute obligations. (17)

    4529 For reasons of a legal and political nature, (18) there are no provisions prohibiting "reprisals" in Protocol II.

    4530 The list of prohibited acts is fuller than that of common Article 3 . That being so, and because of the absolute character of these prohibitions, which apply at all times and in all places, there is in fact no room left at all for carrying out "reprisals" against protected persons. Such an interpretation was already given in the commentary on common Article 3 . In the absence of an express reference to "reprisals", the ICRC considered that they were implicitly prohibited.

    [p.1373] 4531 The argument for this view was based on both the spirit and the letter of common Article 3 :

    "The acts referred to under items (a) to (d) are prohibited absolutely and permanently, no exception or excuse being tolerated. Consequently, any reprisal which entails one of these acts is prohibited, and so, speaking generally, is any reprisal incompatible with the "humane treatment" demanded unconditionally in the first clause of sub-paragraph (1)." (19)

    The strengthening of fundamental guarantees of humane treatment in Protocol II and, in particular, the inclusion of a prohibition on collective punishments (20) confirms this interpretation without calling into question the refusal of the negotiators to introduce the legal concept of reprisals in the context of non-international armed conflict.

    ' Sub-paragraph ' (a) -- ' Violence to the life, health and physical or mental well-being of persons '

    4532 This sub-paragraph reiterates paragraph 1, sub-paragraph (1)(a) of common Article 3 . The scope of the prohibition was considerably strengthened; "violence to the life, health, and physical or mental well-being" is further-reaching in protection than the sole mention of violence to life and person, as contained in Article 3 . The list is of course non-exhaustive, as shown by the words "in particular". Murder covers not only cases of homicide, but also intentional omissions which may lead to death; the prohibition of torture covers all forms of physical and mental torture.

    4533 The practice of torture is prohibited by international law, (21) and is universally condemned. It is one of the evils which the international community seeks to eradicate. Therefore, for many years torture has been one of the United Nations'concerns. The General Assembly of the Organization has adopted a number of resolutions which, although they do not create mandatory obligations, do have an important moral force; the Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 9 December 1975 (Resolution 3452 (XXX)) deserves particular mention. Finally, the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the General Assembly on 10 December 1984 (Resolution 39/46). The most widespread form of torture is practised by public officials for the purpose of obtaining confessions, but torture in not only condemned as a judicial institution; the act of torture is reprehensible [p.1374] in itself, regardless of its perpetrator, and cannot be justified in any circumstances. (22)

    4534 The mention of corporal punishment is new, as it did not appear in common Article 3 ; (23) it met the wish of a number of delegations that corporal punishment be explicitly mentioned in the text. (24)

    ' Sub-paragraph ' (b) -- ' Collective punishments '

    4535 The ICRC draft prohibited collective penalties in Article 9 relating to the ' principles of penal law ' as a corollary of individual penal responsibility. (25) On this point it was inspired by Article 33 of the fourth Convention. The ICRC intended to give this prohibition the same significance as the above-mentioned Article 33 , i.e., to prohibit "penalties of any kind inflicted on persons or entire groups of persons in defiance of the most elementary principles of humanity, for acts that these persons have not committed". (26)

    4536 In the Working Group of the Committee some delegates considered that this prohibition should not be included amongst penal provisions since, in that context, it would appear to relate only to penalties imposed by the courts. The concept of collective punishment was discussed at great length. It should be understood in its widest sense, and concerns not only penalties imposed in the normal judicial process, but also any other kind of sanction (such as confiscation of property) as the ICRC had originally intended. (27) The prohibition of collective punishments was included in the article relating to fundamental guarantees by consensus. That decision was important because it is based on the intention to give the rule the widest possible scope, and to avoid any risk of a restrictive interpretation. (28) In fact, to include the prohibition on collective punishments amongst the acts unconditionally prohibited by Article 4 is virtually equivalent to prohibiting "reprisals" against protected persons.

    [p.1375] ' Sub-paragraph ' (c) -- ' The taking of hostages '

    4537 This sub-paragraph reaffirms a prohibition which is already contained in common Article 3, paragraph 1, sub-paragraph (1)(b) . (29) It should be noted that hostages are persons who are in the power of a party to the conflict or its agent, willingly or unwillingly, and who answer with their freedom, their physical integrity or their life for the execution of orders given by those in whose hands they have fallen, or for any hostile acts committed against them. (30)

    ' Sub-paragraph ' (d) -- ' Acts of terrorism '

    4538 The prohibition of acts of terrorism is based on Article 33 of the fourth Convention. The ICRC draft prohibited "acts of terrorism in the form of acts of violence committed against those persons" (i.e., against protected persons). (31) The formula which was finally adopted is simpler and more general and therefore extends the scope of the prohibition. In fact, the prohibition of acts of terrorism, with no further detail, covers not only acts directed against people, but also acts directed against installations which would cause victims as a side-effect. It should be mentioned that acts or threats of violence which are aimed at terrorizing the civilian population, constitute a special type of terrorism and are the object of a specific prohibition in Article 13 ' (Protection of the civilian population), ' paragraph 2.

    ' Sub-paragraph ' (e) -- ' Outrages upon personal dignity '

    4539 This sub-paragraph reaffirms and supplements common Article 3, paragraph 1, sub-paragraph (1)(c) . The ICRC draft contained a separate paragraph relating to the protection of women. (32) During the discussions it became clear that is was necessary to strengthen not only the protection of women, but in addition that of children and adolescents who may also be the victims of rape, enforced prostitution or indecent assault. Therefore a reference to such acts was added to sub-paragraph (e). Furthermore, a separate article specifically devoted to protection of women and children was adopted in the Working Group. (33)

    [p.1376] 4540 When the Protocol was adopted in plenary meetings, that article was deleted by consensus, as the subject matter is already covered by sub-paragraph (e) under consideration here. (34) It should be added that this particular aspect of protection gave rise to considerable interest in the Diplomatic Conference.

    ' Sub-paragraph ' (f) -- ' Slavery and the slave trade '

    4541 This sub-paragraph reiterates the tenor of Article 8, paragraph 1, of the Covenant. It is one of the "hard-core" fundamental guarantees, now reaffirmed in the Protocol. The prohibition of slavery is now universally accepted; therefore the adoption of this sub-paragraph did not give rise to any discussion. However, the question may arise what is meant by the phrase "slavery and the slave trade in all their forms". It was taken from the Slavery Convention, the first universal instrument on this subject, adopted in 1926 (Article 1). A Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practises Similar to Slavery, was adopted in 1956, and supplements and reinforces the prohibition; certain institutions and practices comparable to slavery, such as servitude for the payment of debts, serfdom, the purchase of wives and the exploitation of child labour are prohibited. (35) It may be useful to note these points in order to better understand the scope of the prohibition of slavery in all its forms.

    ' Sub-paragraph ' (g) -- ' Pillage '

    4542 The prohibition of pillage is based on Article 33, paragraph 2 , of the fourth Convention. It covers both organized pillage and pillage resulting from isolated acts of indiscipline. (36) It is prohibited to issue order whereby pillage is authorized. The prohibition has a general tenor and applies to all categories of property, both State-owned and private.

    ' Sub-paragraph ' (h) -- ' Threats to commit any of the foregoing acts '

    4543 This offence concludes the list of prohibited acts and enlarges its scope. In practice threats may in themselves constitute a formidable means of pressure and undercut the other prohibitions. The use of threats will generally constitute violence to mental well-being within the meaning of sub-paragraph (a).

    [p.1377] Paragraph 3

    ' Opening sentence -- The principle of aid and protection for children '

    4544 Children are particularly vulnerable; they require privileged treatment in comparison with the rest of the civilian population. This is why they enjoy specific legal protection. (37)

    4545 The general principle of protection laid down at the beginning of the paragraph is illustrated with a list of obligations implied by it (sub-paragraphs (a)-(e)). As indicated by the words "in particular", this list is illustrative only and does not in any way prejudice other measures which may be taken.

    4546 In the territory under their control, the authorities, both de jure and de facto, have the duty to protect children from the consequences of hostilities by providing the care and aid they require, preventing physical injury or mental trauma, and ensuring that they develop as normally as circumstances permit. (38)

    4547 This duty is expressed by the use of the word "shall": "children shall be provided" (the French equivalent is "les enfants recevront"). (39)

    4548 The words "they require" were chosen in accordance with a proposal by a delegation. This flexible formula means that all the factors relevant for determining the aid required must be taken into account in each individual case. (40)

    4549 The Conference intentionally did not give a precise definition of the term "child". (41) The moment at which a person ceases to be a child and becomes an adult is not judged in the same way everywhere in the world. Depending on the culture, the age may vary between about fifteen and eighteen years. Subparagraph (c) determines the lower limit of fifteen years for recruitment into the armed forces. The text refers to "children who have not attained the age of fifteen years", which suggests that there may be children over fifteen years. This age was chosen as a realistic basis, and because the Conventions had already taken it into account to ensure that children should have the benefit of priority measures. (42)

    [p.1378]

    4550 However, this is only an indication and should not be seen as a definition. (43) Biological and psychological maturity varies, and it is important not to exclude the possibility that aid is required by children over the age of fifteen.

    4551 Therefore the question immediately arises whether children over the age of fifteen who have been recruited in the armed forces are actually no longer considered as children. The problem rarely arises in concrete terms when they participate in hostilities, but rather when they are deprived of their liberty. The very young may require special attention (such as extra food, for example, because they are growing). It is desirable and normal practice in many countries to hold them in separate quarters. (44) Thus the fact of having been recruited does not in itself automatically deprive a child of the aid required by his age. As regards judicial proceedings, it must be recalled that the death penalty for an offence related to the conflict cannot be pronounced on a person under the age of eighteen years, in accordance with the provisions of Article 6 ' (Penal prosecutions), ' paragraph 4, of the Protocol.

    ' Sub-paragraph ' (a) -- ' Education '

    4552 This sub-paragraph was not contained in the ICRC draft, which was limited to the material aspect of protection, (45) and it is the result of an amendment. (46) It answers the concern to ensure continuity of education so that children retain their cultural identity and a link with their roots. This rule is aimed at removing the risk that children separated from their family by the conflict might be uprooted by being initiated into a culture, religion or moral code which may not correspond with the wishes of their parents, and in addition could in this way become political pawns. Religion and morality are an integral part of education, but is was considered preferable to specify "including religious and moral education" so that the word "education" should be understood in its broadest sense, and not be interpreted restrictively. (47)

    [p.1379] ' Sub-paragraph ' (b) -- ' Reunion of families '

    4553 This sub-paragraph is inspired by article 26 of the fourth Convention. (48) Parties to the conflict must do their best to restore family ties, i.e., they should not only permit searches undertaken by members of dispersed families, but they should even facilitate them. The ICRC draft prescribed that children should be identified in the conflict zone whenever possible and necessary, and that information bureaux should be established. (49) Such measures, which are contained in the Conventions, (50) were not adopted in the text of Protocol II from a fear that it might not be possible to apply them materially; nevertheless, they continue to be a guideline indicating "appropriate measures". It should be noted that the Central Tracing Agency (CTA) of the ICRC is an excellent example of a humanitarian organization specialized in the field of bringing about the reunion of dispersed families. In practice its services are often called upon in situations of international or internal conflicts. In fact, ICRC delegations usually include an "Agency" section staffed with delegates who are seconded, if necessary, by the National Red Cross or Red Crescent Society. The function of the Agency consists of keeping families together or bringing them together. Its main tasks are: the transmission of messages between families when means of communication have been broken, the communication to families of information regarding the fate of members of the family (notification of where the wounded and sick have been hospitalized and their state of health; information on places of internment or detention of persons deprived of their liberty, and on their transfer or release; notification of death), registration of the civilian population, particularly children, in case of evacuation.

    4554 The Agency is an active instrument in this field. Depending on the circumstances, other initiatives may be useful, such as, for example, the transmission of family messages by radio. The most important thing is that the right of families to be informed of the fate of their relatives and to be reunited should be fully recognized, and that steps to this end should be facilitated.

    ' Sub-paragraph ' (c) -- ' The principle that children should not be recruited into the armed forces '

    4555 The prohibition against using children in military operations is a fundamental element of their protection. Unfortunately this happens frequently, and children are all too often ready to follow adults without weighing up the consequences of their acts.

    4556 The setting of an age-limit gave rise to lengthy discussion; a number of delegations considered that the age of fifteen was too low, and would have [p.1380] preferred eighteen. The great divergence of national legislations on this question did not make it possible to arrive at a unanimous decision. The age of fifteen proposed on the basis of realistic considerations in the ICRC draft was ultimately adopted. (51) To enhance the chances of this proposal being accepted the ICRC had followed the age limit laid down in the fourth Convention to ensure that children enjoy privileged treatment. (52)

    4557 The principle of non-recruitment also prohibits accepting voluntary enlistment. Not only can a child not be recruited, or enlist himself, but furthermore he will not be "allowed to take part in hostilities", i.e., to participate in military operations such as gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage. (53)

    ' Sub-paragraph ' (d) -- ' Continued protection in the case that sub-paragraph (c) is not applied '

    4558 This sub-paragraph is the result of the parallel negotiation of the drafts of both Protocols in Committee, which, in this particular case, ended in an apparent weakening of the text, though this should have no practical consequences. In fact, it should be noted that the preceding sub-paragraph (c) contains an absolute obligation, while Article 77 ' (Protection of children), ' paragraph 2, of Protocol I, which corresponds to it, is less constraining and reads as follows: "The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities"; the term "all feasible measures" leaves the door open to exceptions which justify the provision that if children under fifteen nevertheless participate in hostilities, they still continue to enjoy the special protection laid down for children. (54) On the other hand, in Protocol II the text is worded in such a way that there is no escape clause: "Children [...] shall neither be recruited in the armed forces or groups, nor allowed to take part in hostilities."

    4559 It should be recalled that the aim of this provision is to guarantee children special protection in the turmoil caused by situations of conflict. For this reason it seemed useful to specify in this sub-paragraph that children will continue to enjoy privileged rights in case the age limit of fifteen years laid down in subparagraph (c) is not respected. In this case making provision for the consequences of any possible violation tends to strengthen the protection.

    [p.1381] ' Sub-paragraph ' (e) -- ' Temporary evacuation '

    4560 The evacuation of children, as provided in this sub-paragraph, must have an exceptional and temporary character. It should be noted that the possibility of evacuation to a foreign country was not retained; the text refers to "a safer area within the country." (55)

    4561 The consent of parents or persons primarily responsible is required "whenever possible". As one delegation argued, it would be unrealistic to make the consent of parents a mandatory requirement as the parents might have disappeared or it may be impossible to contact them. (56)

    4562 The question may arise what is meant by persons who "are primarily responsible for their care". It would seem that this term covers not only cases in which the care of the child has been legally entrusted to a guardian (such as in the case of orphans, or of irresponsible parents), but also cases in which a person materially takes care of a child and is responsible for it, whether related or not to the child.

    4563 A child may also be entrusted to someone on the basis of the local custom. This is why in addition to the reference to the law there is also a reference to custom as regards the responsibility for the children's care. Custom was included in the text following a proposal in the Working Group which discussed the draft. In fact, in some countries family structure is governed not only by law but also and especially by custom, and it is important to take this into account. (57)

    ' S. J. '


    * (1) [(1) p.1369] Hereafter referred to as "the Covenant";

    (2) [(2) p.1369] ' Draft ', Part IV: Methods and means of combat (Arts. 20-23);

    (3) [(3) p.1369] See O.R. IV, p. 20, CDDH/427 and CDDH/430. Cf. also general introduction to the Protocol, supra, p. 1333;

    (4) [(4) p.1369] O.R. IV, p. 20, CDDH/427;

    (5) [(5) p.1370] Common Art. 3, para. 1, sub-para. (1), already provides for protection of "those placed hors de combat by sickness, wounds, detention, or any other cause", but the ICRC considered that it was logical and sensible to specify the time from which a combatant who has ceased to participate in hostilities is entitled to the protection of Part II; it had therefore proposed to include in that Part a rule on protection of enemies ' hors de combat '. Such a provision, which led to some discussion because of its position in the Protocol, was not finally retained (adopted in Committee as Article 22 bis among the rules on methods and means of combat). See O.R. IV, p. 68, CDDH/427; O.R. VIII, pp. 332-336, CDDH/I/SR.32, paras. 47-67. A similar rule is contained in Article 41 of Protocol I;

    (6) [(6) p.1370] ' Commentary IV, ' p. 201 (Art. 27);

    (7) [(7) p.1370] O.R. X, pp. 186-187, CDDH/405/Rev.1, paras. 35 and 36; O.R. XV, p. 461, CDDH/407/Rev.1, para. 43;

    (8) [(8) p.1370] The Covenant, very often called upon as an instrument of reference, contains in Art. 18, para. 3, the words "freedom to manifest one's religion or beliefs". It should be noted that this is a provision from which there can be no derogation, even in time of public emergency. The 1949 commentators naturally interpreted the expression "religious convictions and practices" broadly as evidenced by ' Commentary IV ', p. 203, ad Art. 27, which reads:
    "This safeguard relates to any system of philosophical or religious beliefs";

    (9) [(9) p.1370] See Art. 4 of the above-mentioned Hague Regulations;

    (10) [(10) p.1370] ' Commentary IV ', p. 204 (Art. 27);

    (11) [(11) p.1371] See commentary Art. 2, supra, p. 1357;

    (12) [(12) p.1371] Article 23, paragraph 1(d), of the above-mentioned Hague Regulations reads as follows: "It is especially forbidden to declare that no quarter will be given." This is why this prohibition is known as the rule on quarter. Originally a quarter (in French: ' quartier ') was a place of shelter and safety;

    (13) [(13) p.1371] ' See Commentary Drafts ', p. 154 (Art. 22);

    (14) [(14) p.1371] Art. 22 of the draft, which corresponds to Art. 40 of Protocol I. Reference can be made to the commentary thereon, supra, p. 473;

    (15) [(15) p.1371] Draft Art. 7. See general remarks, supra, p. 1368;

    (16) [(16) p.1371] See Art. 41, Protocol I, and the commentary thereon, supra, p. 479;

    (17) [(17) p.1372] The absolute character of these obligations is the same as that of a large number of rules in the Protocols and in international humanitarian law in general. On considering the nature of absolute obligations, the International Law Commission stated that: neither juridically, nor from the practical point of view, is the obligation of any party dependent on a corresponding performance by the others. The obligation has an absolute rather than a reciprocal character." (Cf. ' ILC Yearbook ', 1957, Vol. II, p. 54, paras. 125-126). It also means that no derogation is allowed, in line with the rule on derogations in the Covenant, in particular with regard to arbitrary deprivation of life (Art. 6), torture and cruel, inhuman or degrading treatment or punishment (Art. 7) and slavery (Art. 8);

    (18) [(18) p.1372] Aware of the fact that the lack of any mention of reprisals in common Article 3 could give rise to a contrario interpretations, the ICRC had proposed in its draft specific prohibitions in the different Parts whenever this seemed necessary for the protection of the persons and objects concerned. This question gave rise to discussions in the three Committees concerned of the Conference. Discussion focused on the scope of such prohibitions, the best place to include one or several references to such prohibitions in the text of the Protocol, and the terminology to be used. Several delegations argued that rules on reprisals concerned only relations between States, as subjects of international law possessing ' facultas bellandi '. However, it was recognized that analogous measures, such as acts of retortion (this term, which is incorrect in law, was repeatedly used during the debates) or punitive measures, could be taken by parties to a non-international armed conflict, though such acts would always lack the element of enforcing the law which characterizes reprisals in international armed conflict. For its part, the ICRC based its proposals on the following legal arguments: application of common Article 3 has no legal effect on the status of the parties confronting each other, and consequently does not imply in any way recognition of belligerency. The same applies for application of Protocol II. But that does not take away the fact that the parties to the conflict are still subjects of international law in the limited context of humanitarian rights and obligations resting upon them under these two instruments. Whenever there is a possibility of rules of international law not being respected, there may be reprisals. A Working Group of Committee I worked at length on drawing up a formula which from the humanitarian point of view would be equivalent to a prohibition of reprisals without using the actual word "reprisals". Its endeavours resulted in the adoption in Committee of an article on unconditional respect in which it was provided that the provisions of Parts II and III and those of Articles 26, 26 bis, 27 and 28 should not in any circumstances be contravened, not even in response to a breach of the provisions of the Protocol (Articles 26, 26 bis, 27 and 28 dealt with protection of the civilian population, of civilian objects, of objects indispensable to the survival of the civilian population and of works and installations containing dangerous forces). The proposed simplified version of the Protocol recommended deleting this article. The decision to delete it was not carried out by consensus; the article was the object of a vote and was rejected by 41 votes to 20, with 22 abstentions. See, in particular, O.R. IV, p. 37, CDDH/I/302 and CDDH/427. O.R. X, pp. 107-109, CDDH/I/287/Rev.1 and Annex; pp. 231-235, CDDH/SR.51, paras. 4-16; pp. 119-123, CDDH/SR.51, Annex (ad Art. 10 bis). Draft Articles 8, 19 and 26. ' Commentary Drafts, ' pp. 139, 151 and 157;

    (19) [(19) p.1373] ' See Commentary IV ', pp. 39-40 (Art. 3);

    (20) [(20) p.1373] See commentary para. 2(b), infra, p. 1374;

    (21) [(21) p.1373] International Covenant on Civil and Political Rights, Art. 7; European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3; American Convention on Human Rights, Art. 5; African Charter on Human and People's Rights, Art. 5; Geneva Conventions, common Art. 12/12/17//32; Protocol I, Art. 75, para. 2(a);

    (22) [(22) p.1374] The Convention refers to torture or other punishments inflicted by a public official or any other person acting on official orders, but Art. 1, which defines its scope of application, also provides that that article is without prejudice to any other international instrument or any national law which contains or might contain provisions with a broader scope;

    (23) [(23) p.1374] The terminology is taken from Art. 32 of the Fourth Convention, which mentions corporal punishment. See ' Commentary IV ', p. 221;

    (24) [(24) p.1374] See O.R. X, p. 104, CDDH/I/287, Rev. 1;

    (25) [(25) p.1374] Draft Art. 9, para. 1. See commentary Art. 6, para. 2(b), infra, p. 1398;

    (26) [(26) p.1374] ' Commentary IV ', p. 225 (Art. 33);

    (27) [(27) p.1374] The term "collective punishment" (in French "punitions collectives", in Spanish "castigos colectivos")was adopted in preference to the original text of the draft, which referred to "collective penalties". In fact, the word "penalty" is a term used in penal law, and according to some delegates it could have been interpreted restrictively to cover only judicial sentences. See O.R. VII, pp. 87-88, CDDH/SR.50, paras. 18-29;

    (28) [(28) p.1374] See O.R. X, p. 130, CDDH/234/Rev.1, para. 86; p. 201, CDDH/405/Rev.1, paras. 118-119;

    (29) [(29) p.1375] See ' Commentary IV, ' p. 39 (Art. 3);

    (30) [(30) p.1375] See ' Commentary Drafts, ' p. 137;

    (31) [(31) p.1375] Draft Art. 6, para. 2(c);

    (32) [(32) p.1375] Draft Art. 6, para. 3, which read as follows: "Women shall be the object of special respect and shall be protected in particular against rape, enforced prostitution and any other form of indecent assault.";

    (33) [(33) p.1375] Art. 6 bis: "In addition to the protection conferred by Article 6 [present Art. 4], women and children shall be the object of special respect and shall be protected against rape, enforced prostitution, and any
    other form of indecent assault." See O.R. X, p. 105, CDDH/I/287/Rev.1; O.R. VIII, p. 413, CDDH/I/SR.39, paras. 15-18;

    (34) [(34) p.1376] O.R. VII, p. 91, CDDH/SR.50, paras. 45-47;

    (35) [(35) p.1376] See "The United Nations and Human Rights", New York, 1973, p. 17;

    (36) [(36) p.1376] ' Commentary Drafts, ' p. 137;

    (37) [(37) p.1377] See in particular the Declaration of the Rights of the Child, United Nations, GA/Res/1386 (XIV), Principle 8: "The child shall in all circumstances be among the first to receive protection and relief". See also the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, United Nations, GA/Res/3318 (XXIX). Articles relating to the protection of children in Protocol I: Arts. 75, 77 and 78, supra, pp. 861, 897, 907;

    (38) [(38) p.1377] See O.R. XV, pp. 63-71, CDDH/III/SR.45, paras. 3-40;

    (39) [(39) p.1377] It should be noted that in other articles of the Protocols "shall" is sometimes translated in French by the future of the verb "devoir" followed by another verb: "Les enfants devront recevoir". Example: Art. 12, Protocol I. These are merely questions of drafting and have no effect on the nature of the obligation;

    (40) [(40) p.1377] See O.R. IV, p. 101, CDDH/III/28; O.R. XV, p. 65, CDDH/III/SR.45, para. 9. In the draft the ICRC proposed "the care and aid their age and situation require" (Art. 32);

    (41) [(41) p.1377] See O.R. XV, p. 465, CDDH/407/Rev.1, para. 63;

    (42) [(42) p.1377] See Arts. 14, 23, 24, 38 and 50 of the Fourth Convention;

    (43) [(43) p.1378] The commentary on Art. 24 of the Fourth Convention gives the following explanations: "An age limit of fifteen was chosen because from that age onwards a child's faculties have generally reached a stage of development at which there is no longer the same necessity for special measures" (' Commentary IV ', p. 186);

    (44) [(44) p.1378] This measure is stipulated in Art. 77, para. 4, Protocol I. The prohibition on indecent assault laid down in para. 2(e) of the present article should also be called to mind;

    (45) [(45) p.1378] See draft Art. 32;

    (46) [(46) p.1378] O.R. IV, p. 162, CDDH/III/309 and Add.1 and 2. This amendment is based in particular on Art. 18, para. 4, of the Covenant on Civil and Political Rights, which provides that: "The States Parties to the present Covenant
    undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions". This provision is one of the articles from which no derogation can be made within the meaning of Art. 4, para. 2;

    (47) [(47) p.1378] See O.R. XV, p. 79, CDDH/III/SR.46, para. 11;

    (48) [(48) p.1379] See ' Commentary IV ', pp. 195-198 (Art. 26). This sub-paragraph corresponds to Art. 74 of Protocol I: Reunion of dispersed families, supra, p. 857;

    (49) [(49) p.1379] Draft Art. 32, para. 2(d), and Art. 34: Recording and information;

    (50) [(50) p.1379] Arts. 26/19/122/24, 136, 137 and 138;

    (51) [(51) p.1380] See ' Commentary Drafts ', p. 163 (Art. 32, para. 2(e));

    (52) [(52) p.1380] See Arts. 14, 23, 24 and 38 of the Fourth Convention;

    (53) [(53) p.1380] See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31;

    (54) [(54) p.1380] This solution is a compromise which the Committee adopted for Protocol I on the basis of the fact
    that sometimes, especially in occupied territories and in wars of national liberation, it would not be realistic to totally prohibit participation of children aged under fifteen. O.R. XV, p. 465, CDDH/407/Rev.1, para. 61;

    (55) [(55) p.1381] See commentary Art. 78, Protocol I, supra, p. 907;

    (56) [(56) p.1381] O.R. XV, p. 82, CDDH/III/SR.46, para. 23;

    (57) [(57) p.1381] This proposal was directly integrated in the text submitted by the Rapporteur to the Committee, without an amendment having been submitted. It was accepted by consensus and no special statements were made thereon in the plenary meetings of Committee III;