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Commentary - Non-intervention
    [p.1361] Article 3 -- Non-intervention

    [p.1362] General remarks

    4497 Article 3 is a response to the fear that Protocol II might be used as a pretext to violate the sovereignty of States and intervene in their internal or external affairs, i.e., that it might serve as a justification for intervention. Such fear became apparent at theConference of Government Experts. Some of the experts would even have liked to include a clause in the Preamble to the effect that respect for national sovereignty and for the principle of non-interference in internal affairs was a pre-requisite for applying the Protocol. (1)

    4498 In view of this recurring concern, the ICRC had already included such a provision in the draft submitted to the Diplomatic Conference. Although it had the same tenor, the proposed provision was nevertheless more succinct. (2)

    4499 This is a savings clause which brings to mind the two complementary principles of international law enshrined in the United Nations Charter: (3) the principle of inviolability of the national sovereignty and that of non-intervention in matters which are essentially within the domestic jurisdiction of a State. In fact, the ICRC draft contained yet another savings clause which recalled that the legal status of the parties to the conflict would not be affected by the application of the Protocol. (4) That article was deleted by consensus during the final stage of the adoption of the Protocol. (5) On the one hand, its ' raison d'être ' had disappeared since all mention of parties to the conflict had been deleted from the text, precisely so as not to give any semblance of recognition to any sort of international status of the insurgent party; (6) on the other hand, such a clause is already contained in common Article 3 , and therefore retains its full validity with regard to Protocol II. (7) Thus it is perfectly clear that the application of international humanitarian law in situations of non-international armed conflict has no effect whatever on the qualification of relations between the parties.

    Paragraph 1

    4500 Paragraph 1 reaffirms the principle of the inviolability of the national sovereignty of States. The Protocol has a purely humanitarian aim. Consequently it does not affect the right of States to take appropriate measures for maintaining or restoring law and order, defending their national unity and territorial integrity. This is the responsibility of governments and is expressly recognized here.

    [p.1363] 4501 If the State's authority had been totally reserved, that would have risked depriving the Protocol of its substance and meaning; for this reason it was of paramount importance to specify that only legitimate means may be used. Thus imperative needs of State security may not be invoked to justify breaches of the rules of the Protocol. In ratifying or acceding to the Protocol, a State accepts its terms by the unfettered exercise of its sovereign powers. Consequently, the obligation to respect the rules contained in it cannot later be considered as an infringement of its sovereignty, as the government's freedom of action is limited by the obligations it has itself freely agreed to. (8)

    Paragraph 2

    4502 Paragraph 2 reserves the principle of non-intervention. The Protocol cannot serve as a pretext or justification for direct or indirect intervention in an armed conflict or in the internal or external affairs of the High Contracting Party concerned.

    4503 The ICRC draft was concerned only with prohibiting intervention by third States. (9) In Committee a proposal was submitted orally to include "any other organization" in addition to States. This proposal was based on the allegation that in the past private organizations had been guilty of abuses in the name of humanitarian activities. (10) It did not meet with the agreement of the delegates. Some expressed the fear, which was unfounded, (11) that it could result in the competence of the United Nations being called into question, particularly that of the Security Council, to take appropriate measures in the event that international peace and security were endangered. (12) On the other hand, an amendment to the effect that the reference to States in the text should be deleted, was adopted. (13) The prohibition is therefore addressed not only to States, but also to other bodies, international or non-governmental organizations, which might use the Protocol as a pretext for interfering in the affairs of the State in whose territory the armed conflict is taking place.

    4504 In view of the fear to which we referred above, it seems appropriate to note that this provision does not call into question previously existing procedures of international organizations and particularly the United Nations.

    [p.1364] 4505 It should also be recalled here that common Article 3 provides that: "An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict." Such an offer of services, legitimate under common Article 3, cannot be considered as a hostile act. (14) Even in the absence of explicit reaffirmation, the position achieved in 1949 is not adversely affected by Protocol II, which, as specified in article 1 ' (Material field of application) ' supplements and develops common Article 3 without modifying its conditions of application. (15) Nor does it prohibit the offer by an impartial humanitarian organization such as the ICRC to provide assistance and protection to the victims of the armed conflict, and to contribute to the implementation of the Protocol. This possibility is expressly provided for with regard to assistance for persons who have been deprived of their liberty (16) and with regard to the organization of relief actions for the benefit of the civilian population. (17) However, there is no obligation to accept assistance from such an organization. Parties remain free to accept or refuse assistance offered them, precisely in order to retain their complete freedom of judgment and so as not be exposed to external interventions.

    4506 Finally, one delegation pointed out that a distinction is nowadays made between "intervention" and "interference"; "intervention" is applied to subversive or terrorist activities, whereas the word "interference" may be used for ordinary ' démarches ' or protests. (18)

    ' S. J. '

    * (1) [(1) p.1362] ' CE 1972, Report ', Vol. I, p. 120, paras. 2.534 and 2.539;

    (2) [(2) p.1362] Draft Art. 4;

    (3) [(3) p.1362] United Nations Charter, Art. 2, paras. 1 and 7;

    (4) [(4) p.1362] Draft Art. 3;

    (5) [(5) p.1362] See O.R. VII, p. 86, CDDH/SR.50, para. 9;

    (6) [(6) p.1362] See the introduction to this Part, supra, p. 1343;

    (7) [(7) p.1362] Common Art. 3, para. 4;

    (8) [(8) p.1363] On this question, see "The SS Wimbledon case", Reports of the Permanent Court of International Justice, Series A, No. 1, 17 August 1923: "The Court declines to see in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any Convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right to enter into international engagements is an attribute of State sovereignty." See also O.R. VIII, pp. 215-218, CDDH/I/SR.23, paras. 1-19;

    (9) [(9) p.1363] Draft Art. 4;

    (10) [(10) p.1363] O.R. VIII, p. 295, CDDH/I/SR.29, para. 49;

    (11) [(11) p.1363] See Art. 103 of the Charter;

    (12) [(12) p.1363] O.R. VIII, p. 295, CDDH/I/SR.29, para. 50;

    (13) [(13) p.1363] O.R. IV, p. 16, CDDH/I/239. See also O.R. VIII, p. 306, CDDH/I/SR.30, para. 36, and O.R. X, p. 43, CDDH/219/Rev.1, para. 108;

    (14) [(14) p.1364] See ' Commentary I, ' pp. 57-59 (Art. 3);

    (15) [(15) p.1364] The ICRC recalled this important point in a plenary meeting of the Conference. See O.R. VII, p. 151, CDDH/SR.53, para. 64;

    (16) [(16) p.1364] See Art. 5, para. 1(c), and the commentary thereon, infra, p. 1388;

    (17) [(17) p.1364] See Art. 18, para. 2, and the commentary thereon, infra, p. 1478;

    (18) [(18) p.1364] O.R. VIII, p. 300, CDDH/I/SR.30, para. 5. This remark is based on Resolution 2625 (XXV) of the United Nations on Principles of International Law concerning Friendly Relations and Co-operation among States, and Principle VI of the Final Act of Helsinki: ' Non-intervention '. See also on this point, R.J. Dupuy and A. Leonetti, "La notion de conflit armé à caractère non international", in A. Cassese (ed.), ' The New Humanitarian Law of Armed Conflicts, ' op. cit., pp. 272-274;