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Commentary - Beginning and end of application
    [p.65] Article 3 -- Beginning and end of application


    [p.66] General remarks

    144 The material scope of application of the Protocol is laid down in Article 1 (' General principles and scope of application '), and it may therefore seem self-evident at first sight that the application would extend from the beginning to the end of such situations as are referred to in that article.

    145 The real situation is more complicated: some provisions apply at all times; various types of situation require separate rules; finally, some persons may find themselves in a different situation from the general situation.

    146 The draft, which was extensively modified as regards its form, was also improved by the Conference with regard to its substance. First, as it also governs the Conventions and replaces their relevant provisions, (1) it avoids any discrepancy, simplifies the law and represents tangible progress with regard to occupied territories.

    147 On the other hand, the Protocol includes a provision which was already contained in the Conventions in order to extend the benefits thereof to the new categories of persons whom it protects: all protected persons will continue to enjoy the relevant provisions of the Conventions and the Protocol until their final release, repatriation or re-establishment -- that is to say, even after the general close of military operations or the termination of occupation. It should be noted that a similar clause is contained in paragraph 6 of Article 75 (' Fundamental guarantees '), which has a particular scope of application as regards the persons it covers.

    148 The article was adopted by consensus in Committee I (2) and in the plenary Conference. (3)

    Opening sentence

    149 The provisions which apply at all times can actually be divided into various degrees or groups:

    a) the Final Provisions (and Article 90 -- ' International Fact-Finding Commission '), some of which necessarily apply even before the Protocol enters into force;
    b) provisions which apply as soon as the Protocol enters into force, such as Articles 6 (' Qualifiied persons '), 36 (' New weapons '), 43 (' Armed forces '), 80 (' Measures for execution '), 81 (' Activities of the Red Cross and other [p.67] humanitarian organizations '), 82 (' Legal advisers in armed forces '), 83 (' Dissemination ') and 84 (' Rules of application ');
    c) provisions which may apply from the entry into force of the Protocol, such as Article 7 (' Meetings '), and articles which give grounds for taking preparatory measures (for example, Articles 18 -- ' Identification ', 56 -- ' Protection of works land installations containing dangerous forces ', 58 -- ' Precautions against the effects of attacks ', 66 -- ' Identification ', 79 -- ' Measures of protection for journalists ', and Annexes I and II);
    d) articles whose application in relation to a conflict may continue beyond the termination of this conflict, such as Articles 33 (' Missing persons '), 34 (' Remains of deceased '), 74 (' Reunion of dispersed families '), 78 (' Evacuation of children '), 85 (' Repression of breaches of this Protocol '), 86 (' Failure to act '), 87 (' Duty of commanders '), 88 (' Mutual assistance in criminal matters '), 89 (' Co-operation '), 90 (' International Fact-Finding Commission ') and 91 (' Responsibility '), in addition to the case of persons with whom sub-paragraph (b) of Article 3 is especially concerned.

    Sub-paragraph (a)

    150 Reference should be made to the commentary on Article 1 (' General principles and scope of application '), paragraphs 3 and 4, for the description of situations covered by the said article, including the time at which the beginning of such situations may be considered to take place. It is self-evident that the occurrence of such situations makes the Conventions and the Protocol applicable only for Parties bound by these instruments. (4)

    Sub-paragraph (b)

    151 This sub-paragraph takes up its various aspects of the provisions relating to the end of the application of the first Convention (Article 5 ), Third Convention (Article 5 ) and fourth Convention (Article 6 ). It replaces these provisions and its main effect is to extend the application in occupied territory beyond what is laid down in the fourth Convention.

    ' Territory of Parties to the conflict '

    152 "Military operations" means the movements, manoeuvres and actions of any sort, carried out by the armed forces with a view to combat. "The general close of military operations" is the same expression as that used in Article 6 of the fourth Convention, which, according to the commentary thereon, may be deemed in principle to be at the lime of a general armistice, capitulation or just when the occupation of the whole territory of a Party is completed, accompanied [p.68] by the effective cessation of all hostilities, without the necessity of a legal instrument of any kind. (5) When there are several States on one side or the other, the general close of military operations could mean the complete cessation of hostilities between all belligerents, (6) at least in a particular theatre of war.

    153 The general close of military operations may occur after the "cessation of active hostilities" referred to in Article 118 of the Third Convention: although a ceasefire, even a tacit ceasefire, may be sufficient for that Convention, military operations can often continue after such a ceasefire, even without confrontations. Whatever the moment of the general close of military operations, repercussions of the conflict may continue to affect some persons who will be dealt with below.

    ' Occupied territories '

    154 Article 6 of the fourth Convention provided that its application in occupied territory would cease one year after the general close of military operations, except for some articles to the extent that the Occupying Power continued to exercise the functions of government in such territory.

    155 The extension of the application up to the termination of occupation, as laid down in this sub-paragraph (b), actually takes up again the draft which the Diplomatic Conference in 1949 rejected. (7) However good the reasons advanced against this solution at that time may have been, despite the possible extension of the application for some articles as just mentioned, and despite the existence in Article 6 of the fourth Convention of a clause corresponding to that to be studied below under the next heading, obvious progress has been made and any future controversy regarding the exact moment of the general close of military operations will be pointless.

    156 The termination of occupation may occur a long time after the beginning of that occupation, and can come about in various ways, de facto or de jure, depending on whether it ends in the liberation of the territory or in its incorporation in one or more States in accordance with the right of the people or peoples of that territory to self-determination. (8) The occupation as such does not affect the legal status of the occupied territory, as confirmed by Article 4 (' Legal status of the Parties to the conflict ').

    ' Continued application to particular persons '

    157 Taking up a clause from the above-mentioned articles of the first, Third and fourth Conventions for the purposes of the Protocol, the end of the first sentence and the second sentence fulfil a necessary function. In fact, no matter at what [p.69] time humanitarian law may cease to apply generally, the situation of a number of people requires that they should continue to benefit from such application beyond that time.

    158 The expression "final release" means the end of captivity, detention or other measures restricting a person's liberty as a result of armed conflict or occupation; "repatriation" refers to the return to the country of which a person is a national, or in some cases, to the country where he was normally resident; "reestablishment" means being established in another country, for whatever reason. (9)

    159 The provision refers mainly to persons in a situation requiring continued protection after the Conventions and the Protocol have ceased to be applied generally. It also covers of course persons who do not get into a situation requiring protection until after the end of the period when humanitarian law applies generally. (10)

    160 Finally, it should be noted again that Article 75 (' Fundamental guarantees '), paragraph 6, contains a provision similar to the present one, for the purposes of that article alone. (11)

    ' B.Z. '


    NOTES

    (1) Article 2 common to the Conventions and Arts. 5/-/5/6. The absence of an article on when the Second Convention ceases to apply to persons remaining in the power of the enemy after the general close of military operations is justified, because such long-lasting detention would take place on land, which means that, depending on the situation, the First, Third or Fourth Conventions would apply (cf. ' Commentary II ', p. 41);

    (2) O.R. VIII, pp. 247-248, CDDH/I/SR.26, para. 4;

    (3) O.R. VI, p.57, CDDH/SR.36, para. 129;

    (4) Cf. remarks relating to the expression "High Contracting Parties", commentary Preamble, supra, p. 25;

    (5) Some of the literature refers to this situation as ' debellatio ', but this is a narrower interpretation of the term than other publicists ascribe to it. On the concept of ' debellatio ' and the various definitions of this term, cf. K.U. Meyn, ' "Debellatio" ', in R. Bernhardt (ed.), op. cit., Instalment 3, p. 145;

    (6) ' Commentary IV ', p. 62;

    (7) Ibid., pp. 61-63;

    (8) Cf. commentary Art. 1, para. 4, supra , pp. 44 and 52, and Art. 4, infra, pp. 72-73;

    (9) For these various situations, cf. mainly Art. 118, Third Convention and Arts. 133-135, Fourth Convention; for grave breaches relating to these situations, cf. Art. 147, Fourth Convention ("unlawful confinement") and 85, para. 4(b), of this Protocol (a delay, which is unjustifiable, wilful and in violation of the law, in the repatriation of prisoners of war or civilians);

    (10) This question was raised in relation to Art. 41 (then 38 bis) by Committee III, which considered that such persons were effectively covered by the present wording; cf. O.R. XV, pp. 384-385, CDDH/236/Rev. 1, para. 25, and commentary Art. 41, infra, p. 438;

    (11) Some thought that Art. 75, para. 6 (Art. 65, para. 5, of the draft), could render the corresponding part of Art. 3, sub-para. (b), superfluous. This view was, justifiably, not maintained; cf. O.R. VIII, p. 60, CDDH/SR.8, para. 11; pp. 67-68, CDDH/I/SR.9, paras. 1 and 4; see also O.R. III, p. 17, CDDH/I/49, para. 2 and note;