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Commentary - Introduction to the Commentary on the Additional Protocols I and II of 8 June 1977

Claude PILLOUD - Jean DE PREUX -


Yves SANDOZ - Bruno ZIMMERMANN -
Philippe Eberlin - Hans-Peter Gasser - Claude F. Wenger
(Protocol I)
Philippe EBERLIN (Annex I)
Sylvie-S. JUNOD (Protocol II)

with the collaboration of
Jean PICTET

__

Commentary
on the Additional Protocols
of 8 June 1977
to the Geneva Conventions
of 12 August 1949

___

Editors
Yves SANDOZ - Christophe SWINARSKI -
Bruno ZIMMERMANN

____

International Committee of the Red Cross

___

Martinus Nijhoff Publishers

___

Geneva 1987



Distributors
____________________________________________________________________

for the United States and Canada: Kluwer Academic Publishers, 101 Philip Drive, Assinippi Park, Norwell, MA 02601, USA

for the United Kingdom and Ireland: Kluwer Academic Publishers, MTP Press Limited, Falcon House, Queen Square, Lancaster LA1 1 RN, UK

for all other countries: Kluwer Academic Publishers Group, Distribution Center, P.O. Box 322, 3300 AH Dordrecht, The Netherlands




ISBN 90-247-3460-6


Copyright

____________________________________________________________________


ã 1987 by International Committee of the Red Cross

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, mechanical, photocopying recording, or otherwise, without the prior written permission of the International Committee of the Red Cross.

PRINTED IN THE NETHERLANDS


Table of contents

Foreword xiii
Signatures xv
Abbreviations xvii
Editors' note xxv
General introduction xxix

Protocol I 3

Table of contents 5
Signatures 9
Abbreviations 11

Title of the Protocol 19

Preamble 23

Part I - General provisions 31
Article 1 - General principles and scope of application 33
Article 2 - Definitions 57
Article 3 - Beginning and end of application 65
Article 4 - Legal status of the Parties to the conflict 71
Article 5 - Appointment of Protecting Powers and of their substitute 75
Article 6 - Qualified persons 91
Article 7 - Meetings 103

Part II - Wounded, sick and shipwrecked 107
Section I - General protection 111
Article 8 - Terminology 113
Article 9 - Field of application 137
Article 10 - Protection and care 145
Article 11 - Protection of persons 149
Article 12 - Protection of medical units 165
Article 13 - Discontinuance of protection of civilian medical units 173
Article 14 - Limitations on requisition of civilian medical units 181
Article 15 - Protection of civilian medical and religious personnel 189
Article 16 - General protection of medical duties 197
Article 17 - Role of the civilian population and of aid societies 209
Article 18 - Identification 221
Article 19 - Neutral and other States not Parties to the conflict 237
Article 20 - Prohibition of reprisals 241
Section II - Medical transportation 245
Article 21 - Medical vehicles 249
Article 22 - Hospitals ships and coastal rescue craft 253
Article 23 - Other medical ships and craft 261
Article 24 - Protection of medical aircraft 279
Article 25 - Medical aircraft in areas not controlled by an adverse Party 283
Article 26 - Medical aircraft in contact or similar zones 287
Article 27 - Medical aircraft in areas controlled by an adverse Party 293
Article 28 - Restrictions on operations of medical aircraft 299
Article 29 - Notifications and agreements concerning medical aircraft 307
Article 30 - Landing and inspection of medical aircraft 315
Article 31 - Neutral or other States not Parties to the conflict 325
Section III - Missing and dead persons 339
Article 32 - General principle 343
Article 33 - Missing persons 349
Article 34 - Remains of deceased 365

Part III - Methods and means of warfare - Combatant and prisoner-
of-war status 381
Section I - Methods and means of warfare 387
Article 35 - Basic rules 389
Article 36 - New weapons 421
Article 37 - Prohibition of perfidy 429
Article 38 - Recognized emblems 445
Article 39 - Emblems of nationality 461
Article 40 - Quarter 473
Article 41 - Safeguard of an enemy hors de combat 479
Article 42 - Occupants of aircraft 493
Section II - Combatants and prisoner-of-war status 503
Article 43 - Armed forces 505
Article 44 - Combatants and prisoners of war 519
Article 45 - Protection of persons who have taken part in hostilities 543
Article 46 - Spies 561
Article 47 - Mercenaries 571

Part IV - Civilian population 583
Section I - General protection against effects of hostilities 585
Article 48 - Basic rule 597
Article 49 - Definition of attacks and scope of application 601
Article 50 - Definition of civilians and civilian population 609
Article 51 - Protection of the civilian population 613
Article 52 - General protection of civilian objects 629
Article 53 - Protection of cultural objects and of places of worship 639
Article 54 - Protection of objects indispensable to the survival of the
civilian population 651
Article 55 - Protection of the natural environment 661
Article 56 - Protection of works and installations containing dangerous
forces 665
Article 57 - Precautions in attack 677
Article 58 - Precautions against the effects of attacks 691
Chapter V - Localities and zones under special protection 697
Article 59 - Non-defended localities 699
Article 60 - Demilitarized zones 707
Chapter VI - Civil defence 713
Article 61 - Definitions and scope 717
Article 62 - General protection 737
Article 63 - Civil defence in occupied territories 745
Article 64 - Civilian civil defence organizations of neutral or other
States not Parties to the conflict and international
co-ordinating organizations 759
Article 65 - Cessation of protection 769
Article 66 - Identification 779
Article 67 - Members of the armed forces and military units assigned
to civil defence organizations 791
Section II - Relief in favour of the civilian population 805
Article 68 - Field of application 809
Article 69 - Basic needs in occupied territories 811
Article 70 - Relief actions 815
Article 71 - Personnel participating in relief actions 831
Section III - Treatment of persons in the power of a Party to the conflict 837
Chapter I - Field of application and protection of persons and objects 839
Article 72 - Field of application 841
Article 73 - Refugees and stateless persons 845
Article 74 - Reunion of dispersed families 857
Article 75 - Fundamental guarantees 861
Article 76 - Protection of women 891
Article 77 - Protection of children 897
Article 78 - Evacuation of children 907
Article 79 - Measures of protection for journalists 917

Part V - Execution of the Conventions and of this Protocol 925
Section I - General provisions 927
Article 80 - Measures for execution 929
Article 81 - Activities of the Red Cross and other humanitarian organi-
zations 935
Article 82 - Legal advisers in armed forces 947
Article 83 - Dissemination 959
Article 84 - Rules of application 969
Section II - Repression of breaches of the Conventions and of this
Protocol 973
Article 85 - Repression of breaches of this Protocol 989
Article 86 - Failure to act 1005
Article 87 - Duty of commanders 1017
Article 88 - Mutual assistance in criminal matters 1025
Article 89 - Co-operation 1031
Article 90 - International Fact-Finding Commission 1037
Article 91 - Responsibility 1053

Part VI - Final provisions 1059
Article 92 - Signature 1067
Article 93 - Ratification 1071
Article 94 - Accession 1075
Article 95 - Entry into force 1079
Article 96 - Treaty relations upon entry into force of this Protocol 1083
Article 97 - Amendment 1093
Article 98 - Revision of Annex I 1099
Article 99 - Denunciation 1107
Article 100 - Notifications 1113
Article 101 - Registration 1117
Article 102 - Authentic texts 1119

Annex I 1125

Table of contents 1127
Abbreviations 1129

General introduction to the Commentary on Annex I 1137

Chapter I - Identity cards 1151
Article 1 - Identity card for permanent civilian medical and religious
personnel 1153
Article 2 - Identity card for temporary civilian medical and religious
personnel 1161
Chapter II - The distinctive emblem 1167
Article 3 - Shape and nature 1173
Article 4 - Use 1179
Chapter III - Distinctive signals 1185
Article 5 - Optional use 1199
Article 6 - Light signal 1205
Article 7 - Radio signal 1215
Article 8 - Electronic identification 1247
Chapter IV - Communications 1257
Article 9 - Radiocommunications 1261
Article 10 - Use of international codes 1265
Article 11 - Other means of communication 1269
Article 12 - Flight plans 1273
Article 13 - Signals and procedures for the interception of medical
aircraft 1279
Chapter V - Civil defence 1283
Article 14 - Identity card 1285
Article 15 - International distinctive sign 1289
Chapter VI - Works and installations containing dangerous forces 1295
Article 16 - International special sign 1295

Annex II 1301

Protocol II 1307

Table of contents 1309
Abbreviations 1311

General introduction to the Commentary on Protocol II 1319

Preamble 1337

Part I - Scope of this Protocol 1343
Article I - Material field of application 1347
Article 2 - Personal field of application 1357
Article 3 -
Non-intervention 1361

Part II - Humane treatment 1365
Article 4 - Fundamental guarantees 1367
Article 5 - Persons whose liberty has been restricted 1383
Article 6 - Penal prosecutions 1395

Part III - Wounded, sick and shipwrecked 1403
Article 7 - Protection and care 1407
Article 8 - Search 1413
Article 9 - Protection of medical and religious personnel 1417
Article 10 - General protection of medical duties 1423
Article 11 - Protection of medical units and transports 1431
Article 12 - The distinctive emblem 1437

Part IV - Civilian population 1443
Article 13 - Protection of the civilian population 1447
Article 14 - Protection of objects indispensable to the survival of the
civilian population 1455
Article 15 - Protection of works and installations containing dangerous
forces 1461
Article 16 - Protection of cultural objects and of places of worship 1465
Article 17 - Prohibition of forced movement of civilians 1471
Article 18 - Relief societies and relief actions 1475

Part V - Final provisions 1483
Article 19 - Dissemination 1487
Article 20 - Signature 1491
Article 21 - Ratification 1493
Article 22 - Accession 1495
Article 23 - Entry into force 1497
Article 24 - Amendment 1499
Article 25 - Denunciation 1501
Article 26 - Notifications 1505
Article 27 - Registration 1507
Article 28 - Authentic texts 1509

Resolutions adopted at the fourth session of the Diplomatic Conference 1511

Resolution 17 1513

Resolution 18 1515

Resolution 19 1519

Resolution 20 1523

Resolution 21 1525

Resolution 22 1527

Resolution 24 1529

Extracts from the final Act 1531

Instruments 1533

Signatures, ratifications, accessions and successions to the major
relevant treaties 1549

Resolutions of the Red Cross and of the Diplomatic Conferences 1563

Resolutions adopted by international bodies 1569

Bibliography 1579

Index 1597



Foreword

With the publication of this Commentary, I am pleased to welcome the completion of a long task which is of particular importance to the ICRC. All those who made this achievement possible receive here the ICRC's sincere gratitude.

From its experience of the Commentary on the Geneva Conventions the ICRC was not unaware of the magnitude of the assignment facing the authors, but it did not hesitate to undertake it. It invited its Honorary Vice-President, Jean Pictet, to preside over the Reading Committee to that it could benefit from his wide experience, as well as ensure the smooth transition from the Commentary on the Conventions, and it asked several members of its staff to devote a great deal of time to this work.

However, the ICRC also allowed the authors their academic freedom, considering the Commentary above all as a scholarly work, and not as a work intended to disseminate the views of the ICRC.

The ICRC decided to support this undertaking and publish the Commentary because it is conscious of its role as a guardian of international humanitarian law and is convinced of the importance of this work for those entrusted with implementing the Protocols or ensuring that they are widely disseminated, particularly among government and academic circles, and in Red Cross and Red Crescent circles. The Commentary on the Geneva Conventions gave ample proof and this respect of the value of such a work.

It is well known that without this work of implementation and dissemination, humanitarian law would remain a dead letter and would not be able to achieve its essential objective: the protection of the victims of armed conflicts. In this sense the publication of this Commentary is essentially considered by the ICRC as an effort on behalf of such victims.
Alexandre Hay
President of the ICRC



Signatures

Ph.E. Philippe Eberlin
H.P.G. Hans-Peter Gasser
S.J. Sylvie-Stoyanka Junod
J.P. Jean Pictet
C.P. Claude Pilloud
J. de P. Jean de Preux
Y.S. Yves Sandoz
Ch.S. Christophe Swinarski
C.F.W. Claude F. Wenger
B.Z. Bruno Zimmermann

Abbreviations


AFDI Annuaire français de droit international

AJIL American Journal of International Law

Annuaire IDI Annuaire de l'Institut de droit international

ASDI Annuaire suisse de droit international

ATS Air Traffic Services

BYJL British Year Book of international Law

CCD Conference of the Committee on Disarmament

CCIR International Radio Consultative Committee (Comité consultatif international des radiocommunications)

CDDH Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Conférence diplomatique sur la réaffirmation et le développement du droit international humanitaire applicable dans les conflits armés), 1974-1977

CE Conference of Government Experts

CE/1b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict Geneva, 24 May-12 June 1971, I, Introduction, Submitted by the ICRC, Geneva, January 1971

CE/2b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, II, Measures intended to reinforce the implementation of the existing law, Submitted by the ICRC, Geneva, January 1971

CE/3b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, III, Protection of the civilian population against dangers of hostilities, Submitted by the ICRC, Geneva, January 1971

CE/4b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, IV, Rules relative to behaviour of combatants, Submitted by the ICRC, Geneva, January 1971

CE/5b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, V, Protection of victims of non-international armed conflicts, Submitted by the ICRC, Geneva, January 1971

CE/6b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, VI, Rules applicable in guerrilla warfare, Submitted by the ICRC, Geneva, January 1971

CE/7b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, VII, Protection of the wounded and sick, Submitted by the ICRC, Geneva, January 1971

CE/8b Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, VIII, Annexes, Submitted by the ICRC, Geneva, January 1971

CE 1972, Conference of Government Experts on the Reaffirmation and
Basic Texts Development on International Humanitarian Law Applicable in Armed Conflicts, Geneva 3 May-3 June 1972 (second session), I, Texts, Documentary material submitted by the ICRC, Geneva, January 1972

CE 1972, Conference of Government Experts on the Reaffirmation and
Commentaries Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 3 May-3 June 1972 (second session), II, Commentaries, part one and part two, Documentary material submitted by the ICRC, Geneva, January 1972

CE 1971, Conference of Government Experts on the Reaffirmation and
Report Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May-12 June 1971, Report on the work of the Conference, ICRC, Geneva, August 1971

CE 1972, Conference of Government Experts on the Reaffirmation and
Report Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 3 May-3 June 1972 (second session), Report on the work of the Conference, volume I and volume II (Annexes), Geneva, July 1972

CE 1972, Conference of Government Experts on the Reaffirmation and
Technical Development of International Humanitarian Law Applicable in
Memorandum Armed Conflicts, Geneva, 3 May-3June 1972 (second session), Technical memorandum (Questionnaire and Commentary) on Medical Marking and Identification, Documentary material submitted by the ICRC, Geneva, January 1972

CIE International Commission on Illumination (Commission internationale de l’éclairage)

Commentary I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Commentary published under the general editorship of Jean S. Pictet, ICRC, Geneva, 1952

Commentary II Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Commentary published under the general editorship of Jean S. Pictet, ICRC Geneva, 1960

Commentary III Geneva Convention relative to the Treatment of Prisoners of War, Commentary published under the general editorship of Jean S. Pictet, ICRC, Geneva, 1960

Commentary lV Geneva Convention relative to the Protection of Civilian Persons in Time of War, Commentary published under the general editorship of Jean S. Pictet, ICRC, Geneva, 1958

Commentary Drafts Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentaries, ICRC, Geneva, October 1973

COSPAS/SARSAT Cosmos Spacecraft / Search and Rescue Satellite Aided Tracking

CRCE 1971, Conference of Red Cross Experts on the Reaffirmation and
Report Report Development of International Humanitarian Law Applicable in Armed Conflicts (The Hague, 1-6 March 1971), Report on the Works of the Conference, Geneva, April 1971

CRCE 1972, Conference of Red Cross Experts on the Reaffirmation and
Report Development of International Humanitarian Law Applicable in Armed Conflicts (Vienna, 20 March-24 March 1972, second session), Report on the Works of the Conference, Geneva, April 1972

CTA Central Tracing Agency

Draft(s) Draft Additional Protocols to the Geneva Conventions of August 12, 1949, ICRC, Geneva, June 1973

Draft Rules Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, ICRC, Geneva, 1956 (first ed.), 1958 (second ed.)

Government Replies Questionnaire concerning measures intended to reinforce the implementation of the Geneva Conventions of August 12, 1949, Replies sent by Governments, ICRC, Geneva, April 1972 (first ed.), 1973 (second ed.)

GYIL German Yearbook of International Law

Hague Recueil Recueil des cours de l’Académie de droit international

ICAO International Civil Aviation Organization

ICDO International Civil Defence Organization

ICRC International Committee of the Red Cross

ICRC Memorandum, Protection of Civilian Populations against the
Memorandum Dangers of Indiscriminate Warfare, to the Governments Parties to the 1949 Geneva Conventions for the Protection of War Victims and to the IVth Hague Convention of 1907 concerning the Laws and Customs of War on Land, ICRC, Geneva, May 1967

IEC International Electrotechnical Commission

IFALPA International Federation of Air Line Pilots Associations

IFF Identification Friend or Foe

IFRB International Frequency Registration Board

ILC International Lifeboat Conference

IMCO Inter-Governmental Maritime Consultative Organization

IMO International Maritime Organization

INMARSAT International Maritime Satellite Organization

IRRC International Review of the Red Cross

ISO International Organization for Standardization

ITU International Telecommunication Union

Law Reports Law Reports of Trials of War Criminals, Selected and prepared by the United Nations War Crimes Commission, 15 voIs., London, HMSO, 1948-1949

Lucerne Report Conference of Government Experts on the Use of Certain Conventional Weapons, (Lucerne, 24.9-18.10.1974), Report, ICRC, Geneva, 1975

Lugano Report Conference of Government Experts on the Use of Certain Conventional Weapons (second session - Lugano, 28.1-26.2.1976), Report, ICRC, Geneva, 1976

O.R. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974-1977

RBDI Revue Belge de Droit International

RDPMDG Revue de droit pénal militaire et de droit de la guerre

Reaffirmation XXIst International Conference of the Red Cross, Istanbul, 1969, Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, Report submitted by the ICRC, Geneva, May 1969

RGDIP Revue générale de droit international public

RICR Revue internationale de la Croix-Rouge

XXIst Int. Conf. XXIst International Conference of the Red Cross, Istanbul,
RC, Report September 1969, The Protection of Civilian Medical and Nursing Personnel in Time of Conflict (Item 4 d of the Draft Agenda of the Commission on International Humanitarian Law and Assistance to Civilian Population in the event of Armed Conflict), Report submitted by the ICRC, Geneva, February 1969 (D.S. 4d/1)

XXIInd Int. Conf. Report on the Study by the XXIInd International Conference of
RC, Report the Red Cross of the Draft Additional Protocols to the Geneva Conventions of August 12, 1949, ICRC, Geneva, January 1974

SIF Selective Identification Features

SSR Secondary Surveillance Radar

Studies and Essays Studies and Essays on International Humanitarian Law and
in Honour of Red Cross Principles in Honour of Jean Pictet, Ch. Swinarski
Jean Pictet (ed.) ICRC-Nijhoff, Geneva-The Hague, 1984

UNHCR United Nations High Commissioner for Refugees

UN United Nations

UNESCO United Nations Educational, Scientific and Cultural Organization

WARC 79 World Administrative Radio Conference, 1979

WARC Mob-83 World Administrative Radio Conference for the Mobile Services, 1983

WHO World Health Organization

ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht



Editors' note


The English version of the Commentary is taken from the French original published in 1986. The translation was undertaken by Martinus Nijhoff Publishers' team of translators: Mr. Tony Langham and Ms. Plym Peters, and Mr. Paul Peters, Ms. Suzanne Rossington translated Annex I to Protocol I. The important task of a thorough revision of the text as a whole was undertaken by Ms. Louise Doswald-Beck, presently member of the ICRC Legal Division.

The present Commentary is essentially concerned with explaining the provisions of the 1977 Protocols, primarily on the basis of the work of the Diplomatic Conference (CDDH) and other preparatory work. The authors were guided by existing international humanitarian law, general international law and legal literature.
If, nevertheless, the interpretation of the texts gives rise to some uncertainty, the opinions put forward are legal opinions, and not opinions of principle: it is not a question of saying what is just, but of stating the facts. Admittedly, more general considerations or points of principle have been put forward in some cases, but these have been presented as such and can clearly be identified. The responsibility for the text of this work essentially lies with its authors.

The ICRC contributed to this Commentary first of all by inviting Mr. Jean Pictet, its Honorary Vice-President, and several of its staff to devote a great deal of their time to it, and secondly, by the support of its Legal Commission, whose advice was sought on several points of law. However, strictly speaking, it is not a commentary of the ICRC.

These opening remarks would not be complete without a tribute to the memory of Mr. Claude Pilloud. Former Director at the ICRC, Mr. Claude Pilloud retired after serving the Institution for more than forty years. Nevertheless, he very generously agreed to participate in the drawing up of this work. The contribution of his experience and dynamic approach was of great value up to the time of his death in November 1984.

As a collective work the Commentary was prepared within a framework of structures and procedures approved by the ICRC on the proposal of persons entrusted with that mandate.
Most of the authors participated in the work of the Diplomatic Conference (CDDH) as members of the ICRC delegation.

The first version, drafted by each author, was discussed, article by article, in the Reading Committee. Taking into account the remarks made during the sessions of that Committee, each author submitted a second version of his text. This second version was then examined by those responsible for editing and also coordination of the whole, and was then discussed with the author so that the substance - and to some extent, the form - could be harmonized with the other texts so as to ensure the greatest possible uniformity of the work. This discussion allowed the author to draft a third version of the text, which is in principle that contained in the work. During the revision of the English version some modifications and corrections were introduced to the text.

The texts bear the signature of their authors. After the premature death of Mr. Claude Pilloud the texts were taken over by Mr. Jean Pictet, who submitted the second and third versions.

The editorial layout of the work allows some parts to be made into separate volumes without the necessity of resetting.

The accompanying texts are aimed at collecting together all the references given in the body of the Commentary and to provide additional information for the user. With a few exceptions these references go up to 31 December 1984.

In the context of the Commentary, references to writings on international humanitarian law were only made to elucidate the texts being commented upon without claiming to reflect in any complete way the whole of existing literature; similarly, the authors chose to include only the most essential writings on general international law.

Each text is preceded by a collection of references to the preparatory work of and to the CDDH, and to the most important documents for finding the origin of the texts which were finally adopted.

In the same vein, the Index common to the two Protocols allows in particular the identification of their common features, as well as the relationship which existed during the drafting of these instruments, especially during the CDDH.

The continuous numbering of paragraphs in the work permits easy reference to a particular passage without necessarily having to give other information.

It is our pleasant duty to thank all those who contributed to the publication of the Commentary.
Our thanks go in the first place to Ms. Eliane Goy-Voyame, whose dedicated participation in the work of producing and editing the texts made it possible to complete the work in time. For a period she was aptly seconded by Ms. Mari-Carmen Jan Dechamps.
Ms. Sylvie Valaizon, editorial assistant, made a substantial contribution to editing the work.

Finally, our thanks go to Martinus Nijhoff Publishers, and in particular to Mr. Alan D. Stephens, Ms. Hannelore Brown-Knauff and Mr. Peter A. Schregardus for their efficient involvement.
* * *

For the purposes of this Commentary it seems useful to recall and define some expressions generally used throughout the work.

Protocol I defines the expression rules of international law applicable in armed conflict as "the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognized principles and rules of international law which are applicable to armed conflict" (Article 2, sub-paragraph (b)).

This expression covers all rules specifically intended to apply during armed conflict. In this Commentary it is abbreviated in some cases to the expression law of armed conflict.

In the present Commentary the expression international humanitarian law applicable in armed conflict means international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict. The expression "international humanitarian law applicable in armed conflict" is often abbreviated to international humanitarian law or humanitarian law.

In the legal literature, the expression Geneva law is used fairly commonly to designate the rules of humanitarian law laying down the right of victims to protection, and the expression Hague law to designate the rules of humanitarian law governing the conduct of hostilities.
Nowadays this is a rather artificial distinction as the Protocols contain rules of both types. Nevertheless, these expressions are used several times in the Commentary in the sense defined here.

The Conventions and the Protocols mention the three distinctive emblems of red cross, red crescent and red lion and sun. The latter has only ever been used by Iran.
According to a notification by the Swiss Federal Council acting as depositary of these treaties, dated 20 October 1980, the Islamic Republic of Iran notified it of its adoption of the red crescent emblem.
Taking this decision into account, the present Commentary restricts itself in principle, depending on the context, to using the expressions "distinctive emblem", "red cross" and "red crescent", or a combination of the three.

In accordance with the above-mentioned decision of the Islamic Republic of Iran, the Iranian Red Lion and Sun Society changed its name to "Iranian Red Crescent".
In principle the present Commentary will restrict itself, depending on the context. to the expressions National Societies, National Red Cross Societies, and National Red Cross and Red Crescent Societies.

On 12 October 1983 the League of Red Cross Societies changed its name to the League of Red Cross and Red Crescent Societies.
Thus in principle the present Commentary will use that name or simply the expression League.
Since 8 November 1986 the International Red Cross has the name of the International Red Cross and Red Crescent Movement (although it may continue to be named the International Red Cross). This is composed of the National Red Cross and Red Crescent Societies, the International Committee of the Red Cross and the League of Red Cross and Red Crescent Societies. At the same date, new Statutes of the Movement entered into force; this entailed some changes in the numbering of these Statutes’ Articles. As the Commentary generally gives information valid up to December 1984, none of these changes is reflected in the text

Y.s. Ch.S. B.Z.




General introduction

The task of the development of humanitarian law

From its inception, the International Committee of the Red Cross (ICRC) has taken the initiative, which has by now become a long-standing practice, of working for the development of international humanitarian law, which regulates the conduct of hostilities in order to mitigate their severity. Thus it was responsible for initiating the process which led to the conclusion, and later the revision of the Geneva Conventions for the protection of the victims of war of 1864, 1906, 1929 and 1949, while the Government of Switzerland, the depositary State of these basic instruments, convened and organized diplomatic conferences which brought into being these Conventions.

The Geneva Conventions, which have saved innumerable lives, were considerably enlarged in 1949: the three Conventions existing prior to that date relative to wounded and sick soldiers, to the shipwrecked and to prisoners of war, were reviewed and improved, and the Fourth Convention, which was almost entirely new and related to civilians, bridged a gap which was keenly felt during the Second World War. Yet this last mentioned Convention only protects civilians against arbitrary enemy action, and not - except in the specific case of the wounded, hospitals and medical personnel and material - against the effects of hostilities.

However, although humanitarian law had been developed and adapted to the needs of the time in 1949, the Geneva Conventions did not cover all aspects of human suffering in armed conflict. Moreover, by the 1970’s even these were already a quarter of a century old and on some points had exposed gaps and imperfections.

In addition, the law of The Hague, which is concerned with developing rules on hostilities and the use of weapons, had not undergone any significant revision since 1907. Consequently, agreement with the Government of the Netherlands, two subjects arising from the Hague Regulations Respecting the Laws and Customs of War on Land were placed on the agenda for future development the conduct of combatants and, even more important, the protection of the civilian population from the effects of hostilities.

On the latter point, which it considered essential, the ICRC had already presented Draft Rules to the XIXth International Conference of the Red Cross, which convened in New Delhi in 1957. Though these draft rules were approved in principle at the time, they did not achieve support from governments, mainly because they tackled directly the controversial question of nuclear weapons.

Subsequently the XXth International Conference of the Red Cross, which took place in Vienna in 1965, laid down in its resolution XXVIII four principles relating to the protection of the civilian population against the dangers of indiscriminate warfare. In addition, it urged the ICRC to pursue the development of International Humanitarian Law".

Considering this to be an encouraging sign, the ICRC then decided to move a stage further in trying to develop humanitarian law. It did not allow itself to become discouraged by the enormity and the difficulty of this task. In fact, it soon became apparent that this task was much more arduous than in 1949, when a single session of the Diplomatic Conference had been sufficient. This time, four were needed. As we have seen, the matter was more problematic with regard to some aspects, such as the protection of the civilian population against the effects of hostilities, a matter which the ICRC had previously decided not to include.

Soon thereafter, following the wishes of that Conference, the ICRC addressed a memorandum dated 19 May 1967 to all States Parties to the Geneva Conventions, raising the question of further developing the law of armed conflicts and including a list it had drawn up of the written and customary rules which could be considered to still be in force.

In May 1968 the International Conference on Human Rights, held in Teheran on the initiative of the United Nations, revealed its interest in this question and invited the United Nations Secretary-General to establish contact with the ICRC with a view to cooperating in a joint study. Consultations took place on this matter, and since then the ICRC has maintained close links with the Organization. Thus representatives of the UN have participated in the two sessions of the Conference of Government Experts called by the ICRC. Similarly, delegates from the ICRC have closely followed the debates of the UN General Assembly, which, after taking cognisance of extensively documented reports of the Secretary-General, adopted at each session resolutions on "respect for human rights in armed conflict", strongly encouraging the ICRC to continue in this task. In fact, it soon became apparent that by adopting the same method which so far had made the development of the Geneva Conventions possible i.e. resorting to the ICRC for the preparatory stage, then the Swiss government for convening the Conference - the best conditions for success would once more be created; by undertaking the task on neutral ground it was hoped to avoid, at least to some extent, that the discussions become politicized.

In September 1968 the ICRC put its plans to the National Societies of the Red Cross and the Red Crescent which were present at Geneva. There was no intention of trying to rewrite the Geneva Conventions, nor even of completely revising them, which would have entailed the risk of weakening them. When they are fully applied, these Conventions provide effective guarantees for the victims of conflicts. Thus it would be sufficient to extend them so as to cover certain supplementary matters and to clarify some important points. Consequently, since then, one has referred to "reaffirming and developing" humanitarian law. Similarly, the idea of adopting the form of protocols additional to the Geneva Conventions was soon conceived, and later approved by governments.

In September 1969 the XXIst International Conference of the Red Cross, held in Istanbul, was presented with an important report from the ICRC on this subject. It unanimously passed a Resolution of major importance, No. XIII, which gave the undertaking a decisive stimulus. In the terms of this resolution the ICRC was urged to actively pursue its efforts with a view to "proposing, as soon as possible, concrete rules which would supplement the existing humanitarian Iaw" and to invite experts for this purpose.

In order to carry out this task, the ICRC employed its usual method of collecting all the necessary documents, demonstrating on which points the law needed to be confirmed, supplemented or improved, and then drawing up draft treaties with the aid of government experts, National Societies and other humanitarian institutions.

Thus, with valuable cooperation from the Netherlands Red Cross, it convened experts from the National Societies in The Hague in March, 1971, and had the benefit of their views.

The ICRC next convened the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts from 24 May to 12 June 1971. About forty governments were invited to send participants to the Conference and these numbered almost 200. For this meeting the ICRC had drawn up documentation in eight volumes, numbering over 800 pages. As it was not able to cover the entire agenda, this meeting required a second session. This time it was open to all the States Parties to the Geneva Conventions.

In November 1971, the ICRC gathered the opinions of various non governmental organizations. In March 1972, it once again consulted the National Societies, who had been cordially invited to convene in Vienna by the Austrian Red Cross, and submitted the first draft texts to them.

The second session of the Conference of Government Experts was held in Geneva from 3 May to 3 June 1972. It comprised over 400 experts sent by 77 governments. This extensive participation, the sustained work carried out in several committees, and the constructive atmosphere in which the discussions took place made it possible to achieve significant progress.

Following these sessions the ICRC drew up the complete text of two draft Protocols additional to the Geneva Conventions, one for cases of international armed conflict, the other for conflicts which were not of an international nature. These were to serve as a basis for discussion in the future Diplomatic Conference which the Swiss Government had decided to convene.

The drafts took into account most of the views given by those consulted, though they did not follow them entirely, as the ICRC could not with’them on all points. In some cases proposals put forward were contradictory, and it was necessary to make a choice. In other cases, when the requirements of the Red Cross so dictated, the ICRC had to take the initiative itself and assume responsibility. In elaborating the basic texts, the ICRC endeavoured to remain true to the spirit in which it had always sought guarantees for the benefit of victims of conflicts, ever since 1864, as required by humanitarian considerations, but also, in order to be realistic, taking into account military and political constraints.

The drafts were sent to all governments in June 1973, accompanied by a detailed commentary and a report of the Conference which contained, in particular, the various proposals put forward by government experts. These were again presented at the XXIInd International Conference of the Red Cross, which was held in Teheran in November of the same year. Resolution XIII of this Conference welcomed the draft Protocols, wished the forthcoming Diplomatic Conference every success, and recommended that governments should do all they could for the texts to become applicable worldwide.

Thus the texts passed out of the hands of the Red Cross to enter a new phase in which States would have the power of decision. It is States which conclude international conventions and take on obligations thereunder.

In the introduction to the draft Protocols the ICRC had stated that: "Problems relating to atomic, bacteriological and chemical warfare are subjects of international agreements or negotiations by governments, and in submitting these draft Additional Protocols the ICRC does not intend to broach those problems."

As regards so-called "conventional" weapons which cause superfluous injury or unnecessary suffering or strike indiscriminately civilian population and combatants alike, the ICRC did not include in the drafts any prohibitions or specific limitations as this subject seemed to be such a delicate one. It limited itself to reiterating the fundamental principles of The Hague and St. Petersburg, which had in fact become customary law. However, on the initiative of the Swedish delegation, during the second session of the Conference of Government Experts, a group of experts requested that the question of conventional weapons should also be considered.

The ICRC carried out this request and convened two sessions of a Conference of Government Experts, in Lucerne in 1974, and in Lugano in 1976. However, the results achieved at that stage did not make it possible to draw up draft treaty provisions or even to arrive at agreement on the main points, so that this subject remained one step behind the Protocols. All the documentation gathered on this important question was presented to the Diplomatic Conference, which set up an ad hoc committee to examine it. This committee met at each session. It did not deal with the basic aspects of the problem in any detail, but the discussions resulted in a resolution of the Conference (No. 22), expressing the wish that the matter should be dealt with within the framework of the United Nations, and calling for a special diplomatic conference "with a view to reaching agreements on prohibitions or restrictions on the use of specific conventional weapons".

This procedure was successful, and it led, on 10 October 1980, under the auspices of the United Nations, to the adoption of the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects.


The Diplomatic Conference from 1974 to 1977

The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was convened and organized by the Swiss Government in its capacity as the depositary of the Geneva Conventions and in accordance with a hundred year-old tradition. The Conference met in Geneva at the International Conference Centre in four sessions. The first session was held from 20 February to 29 March 1974, the second from 3 February to 18 April 1975, the third from 21 April to 11 June 1976 and the fourth from 17 March to 10 June 1977.

All States which were Parties to the Geneva Conventions or Members of the United Nations were invited to attend, in all numbering 155 nations. The number of those participating in the Conference varied from 107 to 124 in the various sessions. In addition, 11 national liberation movements and 51 intergovernmental or non-governmental organizations participated as observers, so that the total number of delegates fluctuated around 700.

Under the terms of the Rules of Procedure, the ICRC representatives were involved in the work of the Conference as experts and called upon to participate continuously, in particular to orally present the articles of the draft Protocols which the ICRC had drawn up, and which were used as a basis for discussion.

The presidency of the Diplomatic Conference was held by Pierre Graber, Federal Councillor, Head of the Federal Political Department, and in 1975 President of the Swiss Confederation. He presided over the plenary meetings of the Conference and the meetings of the bureau. Jean Humbert (Switzerland) held the office of Secretary-General. The Conference also appointed 19 vice presidents.

The Conference was sub-divided into three main plenary committees, one ad hoc committee on "conventional weapons", also plenary, to which were added the Credentials Committee and the Drafting Committee, as well as numerous working groups. Each committee appointed its own chairman, viz., Edvard Hambro (Norway) and Einar-Frederik Ofstad (Norway) for Committee I; Tadeusz Mailik (Poland) and Stanislaw-Edward Nahlik (Poland) for Committee II; Hamed Sultan (Egypt) for Committee III; Diego Garcés (Colombia) and Héctor Charry Samper (Colombia) for the Ad Hoc Committee; Abu Sayed Chowdhury (Bangladesh) and Iqbal Abdui Quarim Al-Fallouji (Iraq) for the Drafting Committee. The Rapporteurs were: Miguel Marin Bosch (Mexico) and Antonio Eusebio de Icaza (Mexico) for Committee I; Djibrilla Maiga (Mali) and El Hussein El Hassan (Sudan) for Committee II; Richard Baxter (United States of Amenca) and George H. Aldrich (United States of America) for Committee III; Frits Kaishoven (Netherlands), Robert J. Akkerman (Netherlands), John G. Taylor (United Kingdom of Great Britain and Northern Ireland) and Martin R. Eaton (United Kingdom of Great Britain and Northern Ireland) for the Ad Hoc Committee.

The Rules of Procedure reflect the rules of procedure generally accepted in codification conferences. All decisions on matters of substance taken by the plenary Assembly, and particularly the definitive adoption of articles, were subject to a two-thirds majority whenever there was no consensus. In the Committees only a simple majority was required.

The languages of the Conference were English, French, Russian, Spanish, as well as Arabic (from the third session) and Chinese (for the first session).

The Protocols were adopted on 8 June 1977, and the Diplomatic Conference ended two days later with the formal signature of the Final Act. Almost all delegations signed this. The Final Act contains in an Annex the text of the two Protocols Additional to the Geneva Conventions of 12 August 1949, representing the results of the Conference. Some resolutions were added.

Following the ratification deposited by Ghana, and the accession by Libya, these instruments, which are of such fundamental importance for humanity, entered into force on 7 December 1978.
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The 1977 codification is surely an achievement comparable to the revisions achieved in 1949. Supplemented in this way, borrowing copiously from the Hague Iaw - which itself had been in great need of updating since 1907 - the Geneva Conventions henceforth constitute an impressive monument of 600 articles of which almost 150 are new. This codification brings great hope to so many victims, as the Powers have agreed to reaffirm and develop their obligations arising from the conduct of hostilities. It will allow the national and the international Red Cross to save even more lives and to help those in distress who would otherwise have remained unassisted. Finally, throughout the world it will spread an ideal of mutual aid and cooperation, and in this way it will advance the cause of peace - the wish of all men of goodwill.

Although the aim was only described as "reaffirming and developing humanitarian law" in order to emphasize the "additional and complementary character of the Protocols, there is no doubt that on certain points the 1977 instruments modify previous law and sometimes even introduce fairly bold innovations.

Despite all efforts, it was not possible to entirely avoid some politics being brought into the debates. This should not come as a great surprise, for, though treaties of this nature have humanitarian aims, their implementation raises political and military problems, to begin with, that of the survival of the State. Thus it was not possible to escape this tension between political and humanitarian requirements. Such tension is in the nature of the law of armed conflict, which is based, as we know, on compromise.

However, the legislative work is accomplished, and this represents an achievement of great significance. It is also remarkable that almost all the provisions were adopted by consensus. In fact, of the 150 articles on matters of substance contained in the two Protocols, only 14 required a formal vote, not counting of course those draft articles, proposals and amendments that were rejected after a vote.

It should be a matter of great satisfaction that for the first time, all the nations of the world participated in this codification. Thus it reflects a universal sentiment which is not merely a façade, but is very real and founded on a feeling of solidarity. This should encourage all States who have not yet done so to ratify the instruments produced by such representative sessions in the very near future, or to accede to them.

It is too early to assess the true value of these new instruments — a period of time will be necessary to do this. However, there is every reason to think that they will follow the course of the Geneva Conventions, that they will be worthy of this long tradition, and that they will allow safeguards for human beings to be improved, which is their raison d’être.

In the final analysis, Protocol I very largely meets the concerns and wishes of the Red Cross. Amongst the results achieved, we should like to mention first the protection of the civilian population against the dangers of hostilities. The reaffirmation and development of norms in this field, which had been neglected since 1907, was the primary reason for the Diplomatic Conference, and the Conference would have been considered a failure if the legislative work had not been successful on this point.

Civilian medical personnel and the personnel of civil defence services will in future enjoy safeguards comparable to those which military medical personnel have enjoyed for a long time. The medical service has acquired a better status, and there is hope that immunity will be achieved for medical aviation, thanks to modem identification techniques.

A major area is constituted by the complex subject of wars of liberation and guerrilla fighters; this has raised difficult questions and has led to a number of controversies, but it is probably because of the solutions that were finally adopted, which pay great attention to humanitarian considerations, that many contemporary conflicts will be governed by law.

Another noteworthy chapter relates to the conduct of combatants, a subject which was dealt with in the Hague law. This field was in great need of updating, and most of the customary rules have now been codified. The provisions for the reinforcement of the supervision over the application of the Conventions are also significant. They include the development of sanctions and a stronger position of the Red Cross; it is not possible to mention all the provisions here.

As regards Protocol II, relating to non-international armed conflicts, this was adopted by consensus and represents considerable progress, despite its rather restricted field of application.

At the close of the Diplomatic Conference of 1974-1977, the ICRC made a point of once more expressing its profound gratitude to all those who, either in public or in private, had encouraged it in its determination, had given it their trust and had helped it to carry out a task which required many years of work.

It has been said that the texts drawn up in Geneva are often complex and difficult. Thus it is all the more necessary to explain them and ensure that they are understood at all levels, and most of all by those who will be responsible for putting them into practice. It is to be hoped that the present Commentary, which is intended primarily as a working tool, may be a useful contribution to this task.


J. P