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Commentary - Basic rule
    [p.597] Article 48 -- Basic rule


    [p.598] 1863 The basic rule of protection and distinction is confirmed in this article. It is the foundation on which the codification of the laws and customs of war rests: the civilian population and civilian objects must be respected and protected in armed conflict, and for this purpose they must be distinguished from combatants and military objectives. The entire system established in The Hague in 1899 and 1907 (1) and in Geneva from 1864 to 1977 (2) is founded on this rule of customary law. It was already implicitly recognized in the St. Petersburg Declaration of 1868 renouncing the use of certain projectiles, (3) which had stated that "the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy". Admittedly this was concerned with preventing superfluous injury or unnecessary suffering to combatants by prohibiting the use of all explosive projectiles under 400 grammes in weight, and was not aimed at specifically protecting the civilian population. However, in this instrument the immunity of the population was confirmed indirectly.

    1864 In the Hague Conventions of 1899 and 1907, like the Geneva Conventions of 1929 and 1949, the rule of protection is deemed to be generally accepted as a rule of law, though at that time it was not considered necessary to formulate it word for word in the texts themselves. The rule is included in this Protocol to verify the distinction required and the limitation of attacks on military objectives.

    1865 Up to the First World War there was little need for the practical implementation of this customary rule as the population barely suffered from the use of weapons, unless it was actually in the combat zone itself. The few measures adopted in The Hague in 1899 and 1907 seemed sufficient: a prohibition to attack places which are not defended, the protection of certain buildings, the fate of the population in occupied areas etc.

    1866 The situation altered radically already during the First World War as a result of the increased range of artillery and the arrival of the first aerial bombardments from aircraft or airships. However, it was above all the development of weaponry after this conflict and its use during the Second World War which radically changed the situation. As a result the customary rule was affected to such an extent that one might have wondered whether it still existed. (4)

    1867 By the repeated use of reprisals the point was reached where attacks were systematically directed at towns and their inhabitants.

    [p.599] 1868 From the beginning of its work the ICRC considered that it was necessary to explicitly confirm the concept of the distinction in a treaty. For this purpose it proposed the following:

    "in the conduct of military operations, a distinction should be made at all times between, on the one hand, persons who directly participate in military operations and, on the other, persons who belong to the civilian population, to the effect that the latter be spared as much as possible." (5)

    1869 Following the debates which took place during the two sessions of the Conference of Government Experts in 1971 (6) and 1972, (7) the ICRC introduced in the draft prepared for the Diplomatic Conference the following provision:

    "' Article 43 -- Basic rule '

    In order to ensure respect for the civilian population, the Parties to the conflict shall confine their operations to the destruction or weakening of the military resources of the adversary and shall make a distinction between the civilian population and combatants, and between civilian objects and military objectives."

    1870 After several amendments had been proposed, (8) Committee III finally decided on the present text of the article. The term "military resources" was the main object of criticism; it was thought that this was not quite appropriate in a purely humanitarian convention, and that in view of the imprecise scope of the term, this could be used to justify attacks against certain non-military objectives. (9)

    1871 As finally adopted, this article has the great advantage that it clearly establishes the rule that a distinction must always be made between the civilian population and combatants, on the one hand, and between civilian objects and military objectives, on the other, and that it proclaims the respect and protection to which the civilian population and civilian objects are entitled. It was not discussed in the plenary meetings and was adopted by consensus. However, it gave rise to two explanations of vote: one delegation simply stated: "if there had been a vote, it would have abstained therefrom", because it considered that that article "has direct implications as regards a State's organization and conduct of defence against an invader". (10) Another delegate considered that:

    "this article will apply within the capability and practical possibility of each party to the conflict. As the capability of the parties to distinguish will depend upon the means and methods available to each party generally or at a particular moment, this article does not require a party to do something which is not within its means or its capability." (11)

    [p.600] In this respect it should be noted that it is the duty of Parties to the conflict to have the means available to respect the rules of the Protocol. In any case, it is reprehensible for a Party possessing such means not to use them, and thus consciously prevent itself from making the required distinction.

    1872 The wording used in this article requires some explanation. First, respect and protection are terms which have long been used in the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. In the last version of that Convention (1949) these terms are used with regard to the wounded and sick (Article 12 ), medical units and establishments (Article 19 ), and medical personnel (Article 24 ). In general the word "respect" implies the concept of sparing the persons and objects concerned, and not attacking them, while the word "protection" implies an act of positive aid and support. (12)

    1873 The civilian population is defined in Article 50 ' (Definition of civilians and civilian population), ' paragraph 2; it comprises all persons who are civilians. According to Article 52 ' (General protection of civilian objects), ' paragraph 1, civilian objects are all objects which are not military objectives as defined in paragraph 2 of the same article. In the sense of Article 43 ' (Armed forces), ' paragraph 2, combatants are members of the armed forces with the exception of medical personnel and chaplains.

    1874 As regards military objectives, these include the armed forces and their installations and transports. As far as objects are concerned, military objectives are limited, according to Article 52 ' (General protection of civilian objects), ' paragraph 2:

    "to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage".

    1875 Finally, the word "operations" should be understood in the context of the whole of the Section; it refers to military operations during which violence is used, and not to ideological, political or religious campaigns. For reasons which have nothing to do with the discussions in the Diplomatic Conference, the adjective "military" was not used with the term "operations", but this is certainly how the word should be understood. According to the dictionary, "military operations" refers to all movements and acts related to hostilities that are undertaken by armed forces. (13) This term is used in several articles in this Section, particularly in paragraph 1 of Article 51 ' (Protection of the civilian population) ' and it may be useful to refer to the commentary thereon.

    ' C.P./ J.P. '


    NOTES

    (1) [(1) p.598] The Conventions and Declarations adopted on 29 July 1899 and 18 October 1907 by the two International Peace Conferences in The Hague include the following:
    -- Conventions concerning the laws and customs of war on land (II of 1899, IV of 1907);
    -- Declarations prohibiting the discharge of protectiles and explosives from balloons (1899 and 1907);
    -- Convention Respecting Bombardment by Naval Forces in Time of War (IX of 1907);

    (2) [(2) p.598] Cf. General introduction;

    (3) [(3) p.598] Declaration to the Effect of Prohibiting the Use of certain Projectiles in Wartime, signed in St. Petersburg, 29 November -- 11 December 1868;

    (4) [(4) p.598] See H. Meyrowitz, "Le Protocole additionnel I et le droit général de la guerre", in "Forces armées et développement du droit de la guerre", ' Recueil de la Société internationale de droit pénal militaire et de droit de la guerre. ' Brussels, 1982, p. 119, in particular p. 124 (with notes);

    (5) [(5) p.599] CE/3b, p. 24-25; see also pp. 11-16;

    (6) [(6) p.599] ' CE 1971, Report ', pp. 75-77, paras. 424-439;

    (7) [(7) p.599] ' CE 1972, Report ', Vol. I, pp. 141-144. paras. 3.97-3.124;

    (8) [(8) p.599] Cf. O.R. III, pp. 193-195;

    (9) [(9) p.599] See O.R. XIV, p. 15, CDDH/III/SR.2, para. 18; p. 20, CDDH/III/SR.3, para. 8; pp. 26-27, CDDH/III/SR.4, paras. 8-9; pp. 31-32, paras. 53 and 57;

    (10) [(10) p.599] O.R. VI, p. 186, CDDH/SR.41, Annex (France);

    (11) [(11) p.599] Ibid., p. 188 (India);

    (12) [(12) p.600] For more details, cf. commentary on the articles mentioned and on Art. 10, supra, p. 145;

    (13) [(13) p.600] ' The Shorter Oxford Dictionary ', 1973, p. 1452 defines "military operations" as a "series of warlike or strategic acts". Cf. also the ' Grand Dictionnaire encyclopédique Larousse ', 1984, Vol. 7, p. 7592: "ensemble des combats et des manoeuvres de toute sorte exécutés par des forces militaires dans une région déterminée en vue d'atteindre un objectif précis" (battles and manoeuvres of all kinds, taken as a whole, as carried out by armed forces in a defined area, with a view to gaining a specific objective) (translated by the ICRC);