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Commentary - Personal field of application
    [p.1357] Article 2 -- Personal field of application


    [p.1358] General remarks

    4480 The provision defines the field of application ' ratione personae ' of the rules of the Protocol by indicating who benefits from them and for whom they are intended and how far they apply in place and time. Paragraph 1 affirms the principle of on-discrimination in the application of the Protocol to "all personsaffected by an armed conflict". The meaning to be given to this term will be indicated in the commentary on paragraph 1.

    4481 Paragraph 2 specifies ' ratione temporis ' the legal protection of persons deprived of their liberty, who will continue to enjoy the fundamental guarantees of humane treatment and of judicial guarantees the end of hostilities, not only if they were already detained, but also if they were arrested after the conflict came to an end. This rule reduces the risk of arbitrary behaviour by the victorious party.

    Paragraph 1

    ' Principle of non-discrimination '

    4482 First, paragraph 1 lays down that persons protected by application of the rules of the Protocol must be treated equally. This concept is based on the principle of non-discrimination which is nowadays universally recognized in international law. The list of the various criteria of discrimination is not exhaustive. It is contained in other provisions of the Conventions and of the Protocols in greater or lesser detail. (1) Its scope is always the same.

    4483 In Article 2 under consideration here, the list of criteria is very similar to that of the Covenant on Civil and Political Rights. (2) In this respect, it should be noted that a degree of correspondence in the terminology used in international instruments relating to human rights and those on humanitarian law makes for a certain measure of cohesion of the international rules for the protection of the human person, and is of help for their interpretation.

    4484 "This Protocol shall be applied without any adverse distinction": this formula is taken from common Article 3 of the Conventions. Th adjective "adverse" is used to make an important point. In fact, favourable distinctions may be made quite lawfully, such as differences of treatment which may be made to take into account the suffering or distress or natural weakness of people (such as a child or an old man, for example), which call for special measures related to the urgency and needs of the case in point. (3)

    [p.1359] ' Field of application ' ratione personae

    4485 Who are the people "affected by an armed conflict"? On the one hand, these are persons who do not, or no longer take part in hostilities and enjoy the rules of protection laid down by the Protocol for their benefit. On the other, they are those who must, within the meaning of the Protocol, conform to certain rules of conduct with respect to the adversary and the civilian population. (4)

    4486 The ICRC draft was more explicit and clearer. It took up a Canadian proposal submitted during the Conference of Government Experts in 1971, (5) and read as follows: "The present Protocol shall apply [...] to all persons, whether military or civilian, combatant or non-combatant, affected by an armed conflict." (6)

    4487 This proposal was based on two thoughts:

    -- by providing for a field of application that would cover everybody, combatants as well as non-combatants in the territory of the country where the conflict was taking place, there would be no need for the insurgent party to have a defined status;
    -- by extending the field of application of the rules applicable in case of non-international armed conflict to cover combatants, the fact that the Protocol contains provisions on how to behave in combat and on the conduct of hostilities would be properly taken into account. (7)

    4488 The final version of the article, as it now reads in the Protocol, is also the result of a Canadian amendment. (8) Although the wording of the text is less explicit, the original approach has been retained and was not contested.

    4489 The Protocol applies to all residents of the country engaged in a conflict, irrespective of their nationality, including refugees and stateless persons. It may happen that the authorities take special security measures with regard to aliens, and certain offences committed in connection with the conflict situation may be considered of greater or less severity, depending on whether they were committed by foreigners or nationals These are administrative or judicial measures which, although based on the nationality criterion, are without prejudice to the guarantees on the treatment of individuals. (9)

    ' Field of application ' ratione loci

    4490 Persons affected by the conflict within the meaning of this paragraph are covered by the Protocol wherever they are in the territory of the State engaged in conflict. The situation may only affect a small part of the territory; this is why the Diplomatic Conference did not provide that the Protocol should automatically [1360] apply to the territory as a whole. No criterion ' ratione loci ' was adopted. As we saw above, the applicability of the Protocol follows from a criteria related to persons, and not to places. (10)

    ' Field of application ' ratione temporis

    4491 The starting point of the application of the Protocol is determined by Article 1 , ' (Material field of application), ' paragraph 1, and corresponds to the moment when the criteria laid down in that article are objectively fulfilled.

    4492 The text does not contain any indication as regards the end of its applicability. (11) Logically this means that the rules relating to armed confrontation are no longer applicable after the end of hostilities, while the fundamental guarantees granted persons deprived of their liberty are dealt with in paragraph 2 commented on below.

    Paragraph 2

    4493 In principle, measures restricting people's liberty, taken for reasons related to the conflict, (12) should cease at the end of active hostilities, i.e., when military operations have ceased, except in cases of penal convictions. Nevertheless, if such measures were maintained with regard to some persons for security reasons, or if the victorious party were making arrests in order to restore public order and secure its authority, legal protection would continue to be necessary for those against whom such actions were taken.

    4494 That is the ' raison d'ĂȘtre ' of this paragraph, which provides that at the end of the armed conflict persons deprived of their liberty for reasons related to the conflict, either because they have not been released, or because they were arrested after the end of hostilities, continue to enjoy protection under the rules relating to detention (Article 5 -- ' Persons whose liberty has been restricted) ' and judicial guarantees (article 6 - ' Penal prosecutions). '

    4495 These fundamental guarantees remain valid at all times and without any restriction in time, until the deprivation or restriction of the liberty of those concerned has come to an end. In fact, this is an essential protection for the individual.

    4496 The article uses the terms "deprived of [...] liberty" and "whose liberty has been restricted" to ensure that there is no gap in protection. (13) In fact, these terms cover all possible situations, from release subject to police supervision (such as house arrest or assigned residence, for example), to imprisonment.

    ' S.J. '


    * (1) [(1) p.1358] In particular, Art. 13, Fourth Convention, common Art. 3, Art. 75, Protocol I, and Art. 4, Protocol II;

    (2) [(2) p.1358] Art. 2 of the Covenant;

    (3) [(3) p.1358] See ' Commentary IV, ' pp. 127-128 (Art. 13);

    (4) [(4) p.1359] See O.R. VIII, p. 210, CDDH/I/SR.22, para. 43;

    (5) [(5) p.1359] ' CE 1971, Report ', pp. 57 and 59-60 (Art. 1); CE 1972, ' Commentaries, ' Part II, p. 7;

    (6) [(6) p.1359] Draft Art. 2, ' Commentary Drafts ', p. 134;

    (7) [(7) p.1359] For example, quarter (Art. 4, para. 1 in fine), or the protection of the civilian population (Art. 13);

    (8) [(8) p.1359] O.R. IV, p. 11, CDDH/I/37; p. 13, CDDH/I/220;

    (9) [(9) p.1359] O.R. VIII, p. 210, CDDH/I/SR.22, para. 45;

    (10) [(10) p.1360] Ibid., p. 211, paras. 47-48;

    (11) [(11) p.1360] An amendment which was not adopted proposed that the application of the Protocol should cease "upon the general cessation of military operations"; cf. O.R. IV, p. 12, CDDH/I/79;

    (12) [(12) p.1360] On the meaning of the term "for reasons related to the armed conflict", cf. commentary Art. 5, para. 1, infra, p. 1385;

    (13) [(13) p.1360] Concerning the term "interned or detained" persons, cf. also ibid;