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The 1977 Protocols: a landmark in the development of international humanitarian law

31-10-1997 Article, International Review of the Red Cross, No. 320, by René Kosirnik

 René Kosirnik  holds degrees in law and international political science and a Master of Arts in Law and Diplomacy. Currently Deputy Director of the Department of International Law and Policy at the ICRC, he previously carried out several field missions and held a number of senior positions at headquarters, including that of head of the legal division.  

 Drafting the 1977 Protocols: an arduous but successful task  

By adopting on 8 June 1977 the two Protocols additional to the 1949 Conventions, the States meeting in Geneva brought to a successful conclusion four years of arduous negotiations. The Protocols took four years, the Conventions only four months. Why such a huge difference?

In 1949, once the initial period of instinctive rejection of anything related to war had passed, a natural consensus emerged regarding the main evils which needed to be banned by law. Besides, the delicate subject of the rules governing the conduct of hostilities — the law of The Hague, as it is called, also part of humanitarian law — was left out of the discussions. It was also a time when the political map of the world was fairly monolithic, in the sense that the North still dominated the South, and East-West tensions had not yet escalated.

The idea of the Protocols was launched in a very different environment. The Third World had risen against the existing order, the decolonization process wa s well under way. The “capitalist” and “socialist” blocs were at each other’s throats. One instance was the painful war in Vietnam, both from the political point of view and as regards the atrocities that took place (especially mass bombardments, torture and summary executions). This ideological and political confrontation could also be seen in the clash between the defence of individual interests and those of the collectivity.

It is then easier to understand why the 1974-1977 Diplomatic Conference was so lengthy and laborious; also that it was a time of intense military, humanitarian, political and legal negotiation. We thus share Geoffrey Best’s opinion that “all law-making is at some level a political process” [1 ] . It is all the more political when it comes to drafting universal treaty law on matters dealing with war.

In view of the overall context at the time and of the issues and challenges that had to be addressed, the outcome merits unreserved praise. It was inevitably a compromise, however, and therefore could not satisfy each and every participating State equally in all respects.

 Strengths and weaknesses  

What was done to meet the needs left unfulfilled by the 1949 treaties, to respond to the new ways of conducting hostilities and to the consequences in humanitarian terms of civil wars and wars of national liberation? The answer came in the form of two treaties of unequal length — 102 articles in one and 28 in the other — but of comparable humanitarian scope: the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); two treaties which do not invalidate the 1949 C onventions, but supplement them by strengthening existing rules and introducing new protective provisions. Above all, the Protocols added a whole set of rules relating to the conduct of hostilities and behaviour in combat, which had remained untouched since the Hague Conventions of 1907.

    

When the idea of the Protocols was first put forward, the ICRC advocated a parallel approach to the rules governing internal and international conflicts [2 ] . But its hopes were dashed already at the first Preparatory Conference of Governmental Experts of 1971 [3 ] . The participants were not prepared to extend to rebel forces the same rights and obligations as those accorded to the regular forces of enemy States.

On the other hand, the newly independent countries pulled out all the stops in order to have it agreed that when it came to the applicability of humanitarian treaties, armed national liberation movements should be treated just like regular armed forces. Whence the much-debated content of Article 1, paras 3 and 4, of Protocol I [4 ] . This was also one of the main reasons for the drastic “scissoring” of Protocol II at the end of the negotiations phase. Once the problem of national liberation wars had been settled, there were not many voices left in favour of a full, coherent set of rules applicable to civil wars. This is undoubtedly a weakness, but fortunately it does not leave the victim bereft of protection under the law.

 Protocol I breaks new ground  

Let us look at the main innovatory features of Protocol I.

Special protection was extended to cover civilian medical personnel, transport and units, which represents a considerable improvement in medical assistance to victims. This is a good illustration of the significant breakthrough mad e by the Protocol, since it broadens the generic category of objects and persons protected by the 1864 Geneva Convention. In addition, the means of identification of medical transports (radio signals, radar, acoustic, etc.) were adapted to modern technology.

The second major innovation — and one of the most controversial — was the change in the conditions conferring combatant status, and consequently prisoner-of-war status in the event of capture. In order to take account of the specific circumstances prevailing in wars of national liberation, the wearing of the uniform at all times was no longer mandatory [5 ] . This was seen by some as a realistic and necessary measure, and by others as a regrettable blurring of the distinction between civilians and combatants. We feel that both opinions have merit, since there is undeniably a grey area, and hence a heightened risk of both blunders and abuse. There are three ways of limiting this risk:

— by applying strictly the other conditions required for combatant status, in particular the obligation to carry arms openly in an attack;

— by reaffirming and requiring respect for the rules of conduct in combat, and in particular precautionary measures;

— by constantly promoting the ethic underlying the principle of distinction so that, as Jean de Preux has rightly pointed out, the belligerents come to understand that “by protecting the civilian populations they protect themselves”. [6 ]

But the major breakthrough of Protocol I was the substantial progress achieved in t he rules relating to the conduct of hostilities, the authorized methods and means of warfare and the protection of the civilian population. [7 ]

 The three basic rules governing the conduct of hostilities were very clearly expressed and incorporated within a single, general text of law:  

    

1. “[T ] he right of the Parties to the conflict to choose methods or means of warfare is not unlimited.” (Article 35, para. 1)

2. “It is prohibited to employ weapons (…) and methods of warfare of a nature to cause superfluous injury.” (Article 35, para. 2)

3. Civilians and civilian objects must not to be the target of attack (Articles 48, 50 and 52); these articles set out the principle of the distinction between civilians and combatants and between civilian objects and military objectives.

In addition to these three rules we should mention precautionary measures, obligatory both in attack and in defence (Articles 57 and 58 respectively). These key rules are accompanied by detailed rules of application.

    

All of the above adds up to one of the three major developments in the rules of international humanitarian law since the Second World War, the other two being the Fourth Convention of 1949 relative to the protection of civilian persons in times of war, and the adoption of treaty-based rules applicable to civil wars (i.e., Article 3 common to the 1949 Conventions; Protocol II).

In this connection, two other developments should be mentioned. The first is the obligation to determine whether the use of a new weapon being developed or adopted would be prohibited by humanitarian law (Article 36: “New weapons”). The second is the introduction in international humanitarian law of the institution of “civil defence”, a practical tool intended to protect and assist the civilian population; its scope and characteristics are defined in Articles 61 to 67. Twenty years after the adoption of the Protocols, it must be acknowledged that national “civil defence” systems have achieved mixed results, however, which means that the role and future development of civil defence should perhaps be reassessed.

The last major category of innovations contained in Protocol I concerns monitoring and implementation mechanisms. International humanitarian law is often criticized for its lack of muscle when it comes to mechanisms intended to ensure or even impose respect for its rules, and the criticism is justified. It illustrates the fact that this law, adherence to which is partly voluntary, can only have the means of implementation that the States are willing to give it. So long as the international community is made up of very independent members, loath to accept external constraints, implementation mechanisms are bound to be imperfect. This does not mean that progress is impossible or that the legitimate pressure of domestic and international “civil society” should not be maintained or even stepped up, as was the case in 1977. Some advances have in fact been made since then.

 Implementation mechanisms  

First of all, we have in mind Article 7 of Protocol I, which provides for meetings of the High Contracting Parties to consider problems concerning the application of the Conventions and of the Protocol. It was pursuant to this provision that Switzerland, the depositary of the Conventions and the Protocols, convened an International Conference for the Protection of War Victims, held in Geneva from 30 August to 1 September 1993. That extraordinary meeting, replacing in part the International Conference of the Red Cross and Red Crescent, which had been unable to meet since 1986 [8 ] , provided an opportunity to tackle the main implementation problems of the moment and to propose remedies. [9 ]

Another point is the greater degree of responsibility assigned to commanders. Under Article 87, commanders are required “to prevent and, where necessary, to suppress and report to competent authorities breaches of the Conventions and of this Protocol”. This is a just and heavy responsibility, but one which is not sufficiently well known and is therefore neither duly observed nor complied with.

Article 90 of Protocol I brings a new control mechanism to international humanitarian law: the International Fact-Finding Commission. The 1949 Conventions did include the idea of an enquiry, but it was never put into effect. The Fact-Finding Commission constitutes an effort to remedy the shortcomings of the Conventions system, making it mandatory in particular to accept an enquiry concerning any allegation of a serious violation of international humanitarian law. This is a new and powerful means of imposing respect for international humanitarian law. It still has two weaknesses, however: first, a State is not bound by simply acceding to the Protocol, it has to make a declaration specifically accepting the Commission’s competence. By 31 October 1997, out of 148 States party to Protocol I, only 50 had made such a declaration. This is why a major promotion effort still needs to be made. The other weakness concerns its material competence, for the Commission is empowered to enquire only into situations falling within the scope of Protocol I, that is international armed conflicts. Y et most of the tragedies of recent times have taken place in the course of civil wars or hybrid situations of violence. Therefore, an effort should now be made to extend the Commission’s field of competence.

The fourth and last development we would like to highlight is the extension of acts qualified as grave breaches or war crimes, defined in Articles 11 and 85 of Protocol I. These new war crimes include:

— attacks on the civilian population or on individual civilians;

— attacks against works or installations containing dangerous forces (such as nuclear plants);

— forced deportations or transfers of population;

— attacks against monuments constituting the cultural or spiritual heritage of peoples;

— denial of the right to a fair and regular trial.

The acts thus designated by the Protocols, together with the serious breaches listed in the Conventions, constitute an appropriate penal response to the most reprehensible acts committed in wartime.

And yet few criminals are ever prosecuted and convicted. This is first of all because States do not respect their obligation under the Conventions and the Protocol to search for all persons guilty of war crimes and to bring them before the competent national courts [10 ] . Second, under treaty law the acts concerned constitute war crimes only if they were perpetrated in situations of international armed conflict or those qualified as such. This is a serious handicap, given the nature of present-day conflicts in which the worst atrocities are being committed.

Nevertheless, both law and practice are moving towards qualifying all these acts as war crimes, whatever the nature of the armed conflict. A significant step forward in this regard is the Tadic decision of the Intern ational Tribunal for the Former Yugoslavia [11 ] . A similar trend may also be perceived in the work of the Preparatory Committee on the establishment of an international criminal court. It is crucial that this tendency be confirmed. The opposite would be a serious setback for the efforts aimed at strengthening the implementation mechanisms of international humanitarian law and a bad portent for much-needed developments in other areas of international humanitarian law.

 Protocol II: the first treaty relating to civil wars  

The first thing to say about Protocol II is that at least it exists. This is not at all meant to be a disparaging statement. Indeed, it was far from easy to adopt the first-ever universal treaty devoted exclusively to the protection of the individual and restriction on the use of force in civil wars or non-international armed conflicts. In this sense, Protocol II is a remarkable complement to Article 3 common to the four Conventions, which was until then the only provision applicable to such situations.

    

There is a reverse side to the coin, however: in order to pass the consensus test, the draft submitted to the negotiators had to suffer a number of cuts and deletions [12 ] . Although the issue of a privileged status for combatants had been disposed of at an earlier stage of the proceedings, the rules on the conduct of hostilities, assistance, medical missions and implementation mechanisms were dropped only during the last diplomatic round.

Nevertheless, even after those cuts Protocol II represents a new milestone in the protection of victims of civil wars. For instance, there is the detailed enumeration of fundamental guarantees (Article 4), of the rights of persons whose liberty has been restricted (Article 5) and of judicial guarantees (Art icle 6), which all go far beyond those contained in the “hard core” of human rights law. [13 ]

While it is true that the chapter on the conduct of hostilities was radically curtailed, the principle of prohibiting attacks against the civilian population was fortunately retained (Article 13). It is a considerable improvement on common Article 3 which did not — or at least not explicitly — protect civilians against the effects of hostilities. In addition to that basic rule, we might also mention the crucial new rules on the “Protection of objects indispensable to the survival of the civilian population” (Article 14) and the “Prohibition of forced movement of civilians” (Article 17).

 Global assessment  

As far as the substantive rules of conduct are concerned, the overall result is therefore very satisfactory. The value of the Protocols also resides in their multicultural backdrop; indeed, all of the world’s main powers took part in drafting the texts. The adoption of the Protocols drew the curtain on a whole chapter of international humanitarian law which had in the past often come under attack as being too Western-oriented.

    

The assessment is less favourable, however, where the monitoring and implementation mechanisms are concerned. This demonstrates the lack of sufficient will on the part of States to respect and to do everything to “ensure respect for” international humanitarian law.

Another criticism often levelled at these texts is that they are very complicated, sometimes excessively so. This may be a slight drawback, but it does not amount to a real weakness, for no one expects officers or soldiers to move around the battle zone carrying a copy of the Protocols. As General A.P.V. Rogers recently wrote quite rightly: “Protocol I cannot stand by itself as a document issued to military personnel. It has to be incorporated into military manuals with explanatory commentaries, cross-references and practical guidance, but it does form the foundation of those manuals”.[14 ]

Lastly, in our view the main contribution of the Protocols is the clear reaffirmation of the three basic functional principles of international humanitarian law, applicable in all situations of armed conflict. [15 ]

    

— Humanity: non-combatants enjoy general protection against the effects of hostilities; they must be respected, protected and treated humanely.

— Military necessity: military personnel and objects may be attacked, but the injury and damage inflicted must be as limited as possible.

— Proportionality: when protection is not absolute, the requirements of “humanity” and “military necessity” [16 ]  should be weighed against each other in good faith.

 Advancing towards universality  

 What the state of participation tells us  

As at 31 October 1997, 148 States were party to Protocol I and 140 to Protocol II; this puts the Protocols among the most widely accepted legal instruments, though still quite far behind the 1949 Conventions, which are practically universal (188 States Parties). But given that nearly three-quarters of the States making up the international community have adh ered to the Protocols, any fundamental reconsideration of the treaties is no longer conceivable.

    

In order to see what lessons may be drawn from the state of participation, let us look at the facts and figures more closely. What does the world map of the Protocols tell us?

Africa: one of the top two continents where participation is concerned, though there are a few notable absentees, namely Ethiopia, Somalia and Sudan. Two countries recently involved in civil wars — Angola and Mozambique — have not yet acceded to Protocol II.

The Americas: the continent of extremes. The South has accepted the Protocols completely, while the North features a major absentee — the United States — and one participating State, Canada.

Asia and Oceania: this is the region with the highest number of non-participating countries, with some encouraging exceptions such as Australia, China and Vietnam (Protocol I only).

Europe: very satisfactory on the whole, though with three major absentees — the United Kingdom, France (party

to Protocol II) and Turkey.

Middle East and North Africa: participation in Protocol I is generally satisfactory, despite four important exceptions — Iran, Iraq, Israel and Morocco; several other countries are not party to Protocol II.

The above picture prompts three observations.

First, there is a group of non-participating countries which are currently or were recently involved in an active or latent armed conflict.

Second, the major and medium-sized powers which have not yet acceded to the treaties do not have or no longer have any declared reservations regarding the substance of the texts. Their reasons therefore lie outside intern ational humanitarian law itself. Do they relate to any political or strategic considerations, or is it more a matter of bureaucratic inertia or low ranking on the scale of priorities?

Third, should Asia’s poor record be ascribed to the attitude of the powers from other continents, or is it due to an endemic distrust of all universal treaties?

Despite constant reminders in legal texts and in the treaties themselves that international humanitarian law does not “create” armed conflict and that it has no effect on the belligerents’ legal status, it is clear that many countries that find themselves close to ongoing conflicts or involved in them are reluctant to adhere to the Protocols because of such fears. The community of States Parties should make a much greater effort to counter these interpretations by taking every available opportunity to specify the exact role and true scope of international humanitarian law.

There is a second, more disturbing interpretation regarding the first group of countries, namely that some of them are staying away to avoid being bound by certain humanitarian obligations, or even to be in a position to invoke them as and when they please, or else to use them as bargaining counters. Such arguments should be abandoned once and for all.

The world’s great powers undeniably bear a heavy responsibility in this connection. As leaders, they send out signals which are followed by the smaller countries. A strenuous promotion effort should therefore be undertaken by all those who share the belief that the victims of armed conflicts would enjoy better protection if the Protocols enjoyed undisputed universal recognition, without any ambiguities or insinuations. As for any remaining substantive objections, most of these could probably be dealt with by issuing interpretative declarations or reservations.

 Law and practice  

Despite the various obstacles encountered during the four years of negotiations, at the end of the Diplomatic Conference there was little criticism of the Protocols. Most observers described the texts as positive and realistic. This opinion was even shared by most of those who in the United States some few years later came out against the Protocols, at times vehemently. [17 ]

    

The great period of criticism, especially French and American, reached its peak in 1987, when President Reagan recommended that the Senate ratify Protocol II, but not Protocol I.18 True, military experts had drawn up a list of practical and editorial shortcomings, which in their view were as many arguments against ratification. Apart from the sensitive issue of the ban on reprisals, however, the weightiest arguments were mainly of a political and ideological nature. This was true in particular of the claim that incorporating wars of national liberation would legitimize foreign intervention and politicize international humanitarian law, or that granting recognition to guerrilla forces would open the door to terrorism [19 ] . France’s main objection turned out to be the issue of the use of nuclear weapons, as it made clear in a statement sent to the depositary on the occasion of the ratification of Protocol II in 1984. [20 ]

At the end of the 1980s, the tide began to turn. This was mainly due to the following three reasons: the gradual decline and subsequent fall of the socialist bloc; requirements and practice in operational zones, particularly during the Gulf war, in Somalia and in the former Yugoslavia; and the rapprochement between Arab countries and Israel. Once those political and strategic obstacles had been removed completely or in part, the real nature and value of the Protocols re-emerged.

Meanwhile, the gener al staff and legal experts of the main Western armies — in Germany, the United States and the United Kingdom in particular — had, both individually and within the framework of NATO, re-examined the content of the Protocols clause by clause in order to redefine their soundness, their usefulness, the appropriate interpretations or reservations and/or their customary nature.

This paved the way for Germany’s ratification of the Protocols in 1991 and the publication of a military manual adapted accordingly [21 ] , for the incorporation of most of the clauses in instructions for the United States armed forces [22 ] and the 1995 approval of the Protocols by the government and Parliament of the United Kingdom [23 ] .

 The ICRC’s action  

In its capacity (conferred upon it by the States) as the institution responsible for promoting and implementing international humanitarian law [24 ] , in recent years the ICRC recalled the main rules of the law and called for their observance whenever a serious internal or international armed conflict broke out. On no occasion did the belligerents refuse to be bound by certain rules invoked by the ICRC, even if they were not party to the Protocols. This tends to confirm that the main rules of the Protocols have acquired a binding force that transcends the texts themselves.

To illustrate this, we think it useful to comment on the following three situations:

    

— the Gulf war: an international armed conflict;

— conflicts in the former Yugoslavia: mixed conflicts;

— the Angolan conflict: non-international armed conflict.

The main protagonists of the Gulf war, in particular Iraq, the United States, France and the United Kingdom, were not party to Protocol I. In view of this, and in order to ensure a common understanding of and respect for the essential rules applicable to the conflict, on 14 December 1990 the ICRC sent a memorandum to all the parties involved. Apart from the provisions regarding the protection of civilians and persons hors de combat , the ICRC highlighted the pertinent rules of Protocol I relating to the conduct of hostilities, referring to them as “general rules (…) recognized as binding on any party to an armed conflict”. [25 ]

In the case of the conflicts in the former Yugoslavia , in the initial stages the ICRC played a very active role in order to establish with the belligerents the body of rules applicable to the different conflictual relations. This was necessary since, although Yugoslavia had been bound by the Protocols since 1979, there was some uncertainty regarding succession to the treaties by the new emerging States and the internal or international nature of the conflicts. It was therefore important to define a “hard core” of rules acceptable to all.

This led to an agreement between the representatives of Croatia and SFRY, signed on 27 November 1991 [26 ] , in which reference was made to all four Conventions and to Protocol I. With regard to the latter, specific references were made to provisions on the treatment of persons in the power of a party to the conflict (Articles 72-79), on methods and means of warfare (Articles 35-42), and on the protection of the civilian population (Articles 48-58). Although many of these rules were violated in the course of the conflict, their applicability was never contested by the parties.

The ICRC has been present in Angola almost uninterruptedly since the country became independent in 1975. The hostilities taking place there clearly constituted a non-international armed conflict, to which an international dimension was added through the actions of third powers. The provision of international humanitarian law applicable to the relation between government and UNITA forces was therefore Article 3 common to the Conventions, and customary rules relating to civil wars. In the last phase of hostilities, the ICRC thought it useful to remind the parties of the humanitarian rules they should observe (memorandum of 8 June 1994). [27 ]

This text is remarkable in that, referring to no other treaties than the Geneva Conventions and their common Article 3, it provides a fairly complete list of customary rules derived from the Protocols and applicable to non-international armed conflicts. We are thinking in particular of:

— the prohibition on children under 15 from taking part in combat;

— the prohibition of attacks against civilian persons and objects;

— the prohibition of indiscriminate attacks or attacks causing excessive civilian damage;

— the prohibition on destroying supplies essential to the survival of the civilian population;

— precautions in attack and defence.

It is interesting to note that these rules of conduct, which the ICRC regards as customary, had already been interpreted as such in the San Remo Declaration of 7 April 1990. [28 ]

 Steady progress  

The high number of States which have accepted Protocol I and, to a lesser extent, Protocol II, as well as the undeniable influence which some of their rules have exerted and will continue to exert on the conduct of non-participating States, clearly show that today the essence of these treaties reflects the state of universal customary law. Since there are only a few tr eaty-based rules applicable to internal conflicts, customary rules cannot be determined by direct reference to pertinent legal provisions. Instead, they must be inferred from a teleological interpretation of general rules and principles and by reference to treaty rules applicable to international armed conflicts. This reveals both the usefulness and the intrinsic precariousness of customary rules [29 ] . This factor of instability is obvious in the case of law applicable to civil wars, but it is also apparent, though to a lesser degree, when it comes to humanitarian law governing international conflicts.

    

One of the arguments quite justifiably put forward by certain analysts, concerned that the United States has not ratified Protocol I, is that there is a risk of seeing the establishment of a form of “American” customary law, somewhat different from the treaty-based law adhered to by most of the international community. On the other hand, these authors go on to say, if the United States acceded to the Protocol, it would be able to make whatever interpretative declarations and reservations it considered necessary. In view of the country’s weight on the international scene, these would be instrumental in shaping customary rules for the universal application of treaty-based norms within a single coherent framework, that of the Protocol [30 ] . Theodor Meron goes even further when he says that “by remaining aloof, the United States may be abdicating its historical leadership in the shaping of the law of war” [31 ] . His remarks about the United States appear to us equally relevant with regard to some other non-participating powers. These include the United Kingdom, of course, which we hope will soon be depositing instruments of ratification, and especially the major Asian countries, such as India, Indonesia and Japan. If international humanitarian law is to achieve a greater degree of stability and universa lity, a commitment on their part to the Protocols is a must.

Twenty years on, the Protocols are doing well. They are undoubtedly part of the general positive law; the gist of their rules was put into practice, for instance, by the coalition members during the Gulf war. They are still not universal, however, which is essential if this area of law, which governs a sizeable part of international relations in periods of crisis, is to enjoy full credit and authority.

 Looking beyond the Protocols  

Most scholars engaged in analysing present-day conflicts or endeavouring to curtail their harmful effects are of the opinion that the rules on conduct and protection as expressed in the basic treaties of international humanitarian law, namely the 1949 Geneva Conventions and the 1977 Additional Protocols, meet the basic needs of individuals and peoples caught up in the maelstrom of today’s wars. We believe that these rules will be just as pertinent in the wars of tomorrow, since the fundamental values which need to be safeguarded are timeless.

    

Why is it then that, despite the existence of appropriate rules, the sum of unbearable suffering is not decreasing? To a large extent, the answer lies in the changing nature and context of armed conflicts.

Contemporary conflicts reflect less and less the traditional objectives of warfare, namely the struggle for political power or territorial conquest. The main causes of violence encountered today are: the weakening of authority and of the State, economic hardship, and the assertion of ethnic identity. Oscillating between the absence of ethics, the disappearance of traditional values and the rise of an ethic of exclusion, these situations are often in themselves a negation of the law. Even international humanitarian law has very little, or no place there at all.

But the fault does not lie with international humanitarian law. The real problem is rather one of a “missing link”, namely some connection between the law and the moral values of the group concerned. In this respect we agree with Alain Papaux and Alain Wyler, for whom the acceptance of a solution indispensable to the stability of a social group depends on it becoming part of the prevailing ethic [32 ] . Therefore, from now on this should be the main focus of the efforts of all those working for the application of and respect for international humanitarian law.

In practical terms, this would entail:

— redefining or reasserting and upholding the moral standards of communities that are adrift;

— finding the right channels of communication and influencing the perpetrators of the new forms of violence;

— putting across the universal values enshrined in international humanitarian law in a way that can be understood by those groups or communities;

— educating or re-educating those concerned.

We would like to believe that violence is not inevitable and that, even if it were, it may be mastered and controlled. This requires an enormous effort of awareness-raising and education, to which the International Red Cross and Red Crescent Movement, and the National Societies in particular, can and should make agreater contribution. This was the message of the main resolutions adopted by the latest International Conference of the Red Cross and Red Crescent, held in 1995. [33 ]

    

These measures do not require any changes in the law, they go hand in hand with it.

It must be recognized, however, that the existing definitions of the traditional subject s of international humanitarian law, namely authorities and individuals, and the implementing mechanisms offered by international treaties and institutions are no longer appropriate when it comes to the protagonists of new types of conflict — especially unstructured groups — or to the new power bases represented by private economic and financial giants.

Similarly, the field of application of humanitarian treaties is too restrictive to encompass all situations of armed violence. The protection of the individual under international law is therefore uneven and depends on the nature of the violent act concerned.

This brings us to our final remarks and our proposals for action.

The two Protocols of 1977 are an essential complement to the 1949 Conventions. Nowadays, the rules of Geneva and those of The Hague make up an indissociable whole. The essence of these treaties provides an adequate basis for the protection of human beings in time of war. We therefore need to ensure that the Protocols attain the same degree of universality as that enjoyed by the Conventions. If we hope to reach the new perpetrators of violence, one precondition is that all the traditional partners, especially the major States, should at least have made the same profession of faith.

Together, the Conventions and the Protocols make up a consistent set of rules of conduct. In the last 20 years, partly owing to the growing number of States party to the Protocols, and partly owing to the application of their content by States which are not party to them, a body of universal customary rules has emerged, reflecting the treaty-based norms. This customary law offers a measure of security in situations where the treaties do not formally apply [34 ] . Thanks to the Protocols, the fundamental principles have been reaffirmed and crystallized. They constitute an intangible basis for the protection of the individual whenever armed force is us ed.

The gains achieved by the Protocols provide a starting point for further developments in areas where they are still required, such as situations of violence which are not covered by international humanitarian law, implementation mechanisms, or applicability of the law to the new protagonists.

It is true that international humanitarian law, and more particularly the Protocols, did not prevent the massacres in Rwanda or in the former Yugoslavia, in Liberia or Chechnya. But, to paraphrase Geoffrey Best [35 ] , these dramatic cases reflect not so much the failure of international humanitarian law as the failure of civilization. The message of international humanitarian law as developed by the Protocols is that warfare can and must be brought under control.

 Annex  

 International Committee of the Red Cross  

 Memorandum on respect for international humanitarian law in Angola [36 ]

8 June 1994

Since the resumption of hostilities in the last quarter of 1992, the armed conflict in Angola has claimed countless victims, essentially among the civilian population. Hundreds of thousands, if not millions, of people have been killed, wounded, mutilated or displaced, are suffering from hunger or deprived of essential goods and services, or are without news of their families.

The plight of much of the civilian population calls for an increase in impartial humanitarian assistance so as to meet the victims’ basic needs as a matter of urgency throughout the country, regardless of the tu rn of events from the political and military standpoint.

The International Committee of the Red Cross (ICRC) has established that a great many violations of international humanitarian law, mainly of its fundamental rules, are perpetrated regularly across the country.

As the promoter and custodian of international humanitarian law, the ICRC considers it absolutely necessary to recall the basic rules and principles of that law, which the parties to the conflict opposing the government forces and UNITA are bound to observe in all circumstances.

In the event, Article 3 common to the four Geneva Conventions of 1949 and customary rules relating to conflicts not of an international character are applicable to the hostilities in Angola.

The parties to the conflict must take all necessary steps to respect and ensure respect for international humanitarian law, in the following areas in particular.

 I. Protection of persons not or no longer taking part in hostilities  

Persons not or no longer taking part in hostilities, such as the wounded, the sick, prisoners and civilians, shall be protected and respected in all circumstances, regardless of the party to which they belong:

— civilians do not constitute a military danger and must be respected and humanely treated; the following acts in particular are prohibited: attacks on civilians’ life, on their physical integrity or personal dignity, hostage-taking, summary executions, sentencing without a fair trial, and forced displacements not justified by imperative reasons of security;

— all the wounded and sick, both civilian and military, must be collected and cared for, without distinction; when such persons cannot receive the care needed for their survival on the s pot, their evacuation shall be organized and facilitated, insofar as the security situation permits;

— captured combatants and persons who have laid down their arms no longer represent any danger and must be respected; they shall be handed over to the immediate military hierarchical superior; killing such persons constitutes a crime and is absolutely forbidden; subjecting them or threatening to subject them to ill-treatment, particularly acts aimed at forcing them to take up arms against the party to which they belonged prior to capture , is a violation of international humanitarian law at all times;

— persons deprived of their freedom, both civilians and military personnel, must always be treated humanely and shall never be tortured; they must not be detained in the vicinity of combat zones;

— children and adolescents shall be granted favoured treatment at all times; those under the age of 15 shall not be recruited, nor authorized to take a direct or indirect part in hostilities.

 II. Conduct of military operations  

Military forces do not have an unlimited right regarding the choice of methods and means of warfare; a clear distinction must be made in all circumstances between civilians and civilian objects on the one hand and combatants and military objectives on the other:

— attacks on civilians or civilian objects are prohibited; all acts or threats of violence the main purpose of which is to spread terror among the civilian population are also prohibited;

— all feasible precautions shall be taken to avoid injuries, loss and damage to the civilian population; such precautions shall also concern protection from attacks using mines; civilians must, in particular, be kept out of dangers resulting from military oper ations and shall never be used as shields against attacks; their evacuation shall be organized or facilitated, whenever required and insofar as the security situation permits;

— all attacks directed indiscriminately at military and civilian objectives and those which may be expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated are prohibited;

— it is prohibited to employ weapons, munitions or methods of warfare of a nature to cause unnecessary suffering to persons hors de combat or which render their death inevitable; no order shall ever be given that there should be no survivors; in particular, the use of chemical or bacteriological weapons and of poison is prohibited;

— it is prohibited to attack, destroy or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, crops, livestock, drinking water installations and supplies;

— installations containing dangerous forces, such as dams and dykes, shall not be made the object of attack, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.

 III. Respect for the red cross emblem and medical activities  

Medical and religious personnel, hospitals, ambulances and other medical units and means of transport shall be protected and respected; the red cross emblem, which is the symbol of that protection, must be respected in all circumstances:

— hospitals and medical units and means of transport shall not be the object of attack; they shall be used exclusively to give or to facilitate care and shall not be used to prepare or commit hostile acts;

— all Red Cross personnel and medical personnel assisting the civilian population and persons hors de combat shall be allowed whatever freedom of movement they require and their security shall be guaranteed;

— all improper use of the red cross emblem is prohibited and must be punished.

    

 IV. Relief operations  

The parties to the conflict have a duty to ensure the provision of supplies essential to the survival of the civilian population in the territory under their control and to allow unimpeded passage of assistance for the civilian population in territories under the control of the adverse party:

— if the civilian population is not adequately provided for, relief actions which are exclusively humanitarian and impartial in character and conducted without any adverse distinction, such as those undertaken by the ICRC, shall be authorized, facilitated and respected;

— the personnel, vehicles and premises of relief agencies shall be protected.

 V. Dissemination of international humanitarian law  

The parties to the conflict must ensure that the members of their armed forces as well as all military and paramilitary forces acting under their responsibility are aware of their obligations under international humanitarian law. To that effect, it is essential that specific instructions to ensure respect for such obligations be issued.

 VI. Role of the ICRC  

The I CRC, whose primary function is to protect and assist the victims of armed conflicts, reaffirms its willingness to contribute, in agreement with the parties concerned and as far as its means allow, to the implementation of humanitarian rules and to perform the tasks entrusted to it by international humanitarian law.

The 1949 Geneva Conventions stipulate that the parties to a non-international armed conflict should endeavour to bring into force, by means of special agreements, all or part of the other provisions of international humanitarian law which do not formally apply to the situation. In its capacity as a specifically neutral and independent intermediary, the ICRC remains at the disposal of the Government of the Republic of Angola and of UNITA to facilitate the conclusion of such agreements, especially concerning the establishment of medical or neutral zones which can provide shelter from the fighting for the wounded and sick and for part of the civilian population, in particular the most vulnerable persons.

 Notes:  

Original: French

1. Geoffrey Best, War and law since 1945 , Clarendon Press, Oxford, 1994, p. 342. The author is joint winner of the 1997 Paul Reuter Prize.

2. See the report submitted by the ICRC to the 21st International Conference of the Red Cross (Istanbul, 1969), published in the International Review of the Red Cross (IRRC) , No. 100, July 1969, pp. 343-352.

3. See in particul ar the comments by François Bugnion, Le CICR et la protection des victimes de la guerre , ICRC, Geneva, 1994, pp. 386-387.

4. Paragraphs 3 and 4 of Article 1 of Protocol I read as follows:

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations.

5. See Articles 43 and 44, Protocol I.

6. IRRC , No. 258, May-June 1987, p. 250.

7. See Protocol I, Part III, Section I: “Methods and means of warfare” (Articles 35-42); Part IV: “Civilian population”, Section I: “General protection against effects of hostilities” (Articles 48-60).

8. On the role of the Conference, see Articles 8-11 of the Statutes of the International Red Cross and Red Crescent Movement.

9. See the Final Declaration of the Conference and the ICRC’s Report on the protection of war victims, IRRC , No. 296, September-October 1993, pp. 377-381 and 391-445.

10. See the Fourth Convention, Articles 1, 2, 3 and 146.

11. See the decision by the International Criminal Tribunal for the Former Yugoslavia: The Prosecutor v. Dusko Tadic a.k.a. “Dule”: Decision on the defence motion for interlocutory appeal on jurisdiction, of 2 October 1995, Case No. IT-94-1-AR72 ; and the article on the same subject by Marco Sassòli, “La première décision de la chambre d’appel du Tribunal pénal international pour l’ex-Yougoslavie: Tadic (compétence)”, Revue générale de droit international public (RGDIP) , No. 1, January-February 1996, pp. 101-134.

12. M. Bothe, K.J. Partsch, W.A. Solf, New rules for victims of armed conflicts. Commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949, Nijhoff, The Hague/Boston/London, 1982, pp. 604 ff.

13. See, for example, Karel Vasak (ed.), The international dimensions of human rights, 2 volumes, UNESCO/Greenwood Press, Paris/Westport, 1982.

14. A.P.V. Rogers, Law on the battlefield , Manchester University Press, 1996, p. 156. The author is joint winner of the 1997 Paul Reuter Prize.

15. Principles qualified as customary law in the Tadic decision, see supra, note 11.

16. Many authors link the principle of “proportionality” to that of “military necessity” or incorporate it into the latter. We prefer to draw a distinction between them since, on the one hand, “proportionality” does not apply only to the rules on the conduct of hostilities, and, on the other, the basic opposition between the notions of “humanity” and “military necessity” can be understood properly only when the “proportionality” factor is taken into account. See in particular Eric David, Principes de droit des conflits armés, Bruylant, Brussels, 1994, pp. 205-208.

17. W. Hays Parks, “The 1977 Protocols to the Geneva Convention of 1949”, in International Law Studies 1995 (Vol. 68), Readings on International Law from the Naval War College Review , 1978-1994 , pp. 467-478.

18. See “Letter of transmittal from President Ronald Reagan to the Senate of the United States”, reprinted in American Journal of International Law , Vol. 81, No. 4 (1987), p. 910, and the reaction by Hans-Peter Gasser, “An appeal for ratification by the United States”, ibid. , pp. 912 ff.

19. See Guy B. Roberts, “The new rules for waging war: the case against ratification of Additional Protocol I”, Virginia Journal of International Law (VJIL) , Vol. 26, No. 1 (1985), pp. 109-170; see also the reaction by George H. Aldrich, “Progressive development of the laws of war: a reply to criticisms of the 1977 Geneva Protocol I”, VJIL , Vol. 26, No. 3 (1986), pp. 693-720, and by the same author: “Prospects for United States ratification of additional Protocol I to the 1949 Geneva Conventions”, AJIL, Vol. 85, No. 1 (1991), pp. 1-20.

20. See Dietrich Schindler and Jiri Toman (eds), The laws of armed conflicts , HDI/Nijhoff, Geneva/Dordrecht, 1988, p. 709.

21. See Humanitarian law in armed conflicts : Manual , edited by the Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, and the commentary thereon, Dieter Fleck (ed.) et al. , The Handbook ofHumanitarian Law in Armed Conflicts , Oxford University Press, 1995.

22. See International Law — The conduct of armed conflict and air operations, Air Force Pamphlet (AFP 110-31), Department of the Air Force, Washington, D.C., 1976, and The commander’s handbook on the law of naval operations , NWP 9, Department of the Navy, Office of the Chief of Naval Operations, Washington, D.C., 1989.

23. Peter Rowe and Michael A. Meyer, “Ratification by the UK of the 1977 Protocols additional to the Geneva Conventions of 1949”, Northern Ireland Legal Quarterly , Vol. 45, No. 4 (1994), pp. 343-363.

24. See the ICRC’s mandate as defined in Article 5 of the Statutes of the International Red Cross and Red Crescent Movement.

25. Extract from the Memorandum of 14 December 1990 on the applicability of international humanitarian law, IRRC , No. 280, January-February 1991, pp. 24-25:

“Conduct of hostilities (...)

— the parties to a conflict do not have an unlimited right to choose methods and means of injuring the enemy;

— a distinction must be made in all circumstances between combatants and military objectives on the one hand, and civilians and civilian objects on the other. It is forbidden to attack civilian persons or objects or to launch indiscriminate attacks;

— all feasible precautions must be taken to avoid loss of civilian life or damage to civilian objects, and attacks that would cause incidental loss of life or damage which would be excessive in relation to the direct military advantage anticipated are prohibited.

With regard to the use of certain weapons, the following rules are in particular a pplicable in an armed conflict:

— the use of chemical or bacteriological weapons is prohibited (1925 Geneva Protocol);

— the rules of the law of armed conflict also apply to weapons of mass destruction.

The ICRC invites States which are not party to 1977 Protocol I to respect, in the event of armed conflict, the following articles of the Protocol, which stem from the basic principle of civilian immunity from attack:

— Article 54: protection of objects indispensable to the survival of the civilian population;

— Article 55: protection of the natural environment;

— Article 56: protection of works and installations containing dangerous forces.”

26. Reproduced in Michèle Mercier, Crimes without punishment , Pluto Press, London/East Haven, Conn., 1995, pp. 195-198.

27. See Annex.

28. Declaration on the Rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts, IRRC , No. 278, September-October 1990, pp. 404-408.

29. Marco Sassòli, Bedeutung einer Kodifikation für das allgemeine Völkerrecht: mit besonderer Betrachtung der Regeln zum Schutze der Zivilbevölkerung vor den Auswirkungen von Feindseligkeiten , Helbing & Lichtenhahn, Basel/Frankfurt, 1990.

30. See George H. Aldrich, “Prospects for United States ratification of additional Protocol I to the 1949 Geneva Conventions”, AJIL , Vol. 85, No. 1 (1991), pp. 1-20; Theodor Meron, “The time has come for the United States to ratify Geneva Protocol I”, AJIL , Vol. 88, No. 4 (1994), pp. 678-686.

31. Idem , p. 682.

32. Alain Papaux and Alain Wyler, L’éthique du droit international , Collection Que sais-je? , No. 3185, PUF, Paris, 1997, p. 86.

33. See Resolutions 1, 2, 4 and 5 of the 26th International Conference of the Red Cross and Red Crescent, IRRC , No. 310, January-February 1996, pp. 55-77.

34. Christopher Greenwood, “Customary law status of the 1977 Additional Protocols”, in Humanitarian law of armed conflict: essays in honour of Frits Kalshoven , Martinus Nijhoff Publishers, Dordrecht/Boston/Leiden, 1991, pp. 93-144; Theodor Meron, Human rights and humanitarian norms as customary law, Clarendon Press, Oxford, 1989.

35. Geoffrey Best, op. cit. (note 1), p. 422: “If the failure to moderate war marks the vanishing-point of international humanitarian law, the persistence of immoderate war could mark the vanishing-point of civilization.”

36. Text not yet published.




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