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Commentary - Legal status of the Parties to the conflict
    [p.71] Article 4 -- Legal status of the Parties to the conflict


    General remarks

    161 Article 4 is essentially the affirmation, for international armed conflict, of a rule which had only been explicitly formulated in the Conventions for armed conflict not of an international character. (1) Though this had seemed necessary in [p.72] 1949 only with regard to the latter category of conflicts, experience has shown that Parties to an armed conflict of which the international character is disputed may fear -- though this would be unjustified -- that the application of the law of international armed conflict could have a detrimental effect on their legal status or that of another Party to the conflict. To prevent such fears from affecting the application of the Conventions and the Protocol it was therefore necessary to state unequivocally that their sole aim is a humanitarian one.

    162 The Conference considered it appropriate to reaffirm in the same article the undisputed principle of international law that the occupation of a territory does not affect its status. With this exception the Conference retained the draft, though the form was changed to avoid any incorrect interpretation.

    163 The draft and the proposed amendments (2) were examined by Committee I, and then by its Working Group A; the latter failed to come to a unanimous agreement, and in its report (3) it put forward two possible texts. The Committee chose one of these by voting, and then adopted the article as a whole by consensus. (4) The article was adopted by consensus in the plenary Conference. (5)

    Text of the article

    164 In fact, this article deals with two separate, though related, questions: on the one hand, with the application of humanitarian law in both sentences; on the other hand, with occupation, in the second sentence. Up to this time the first question had only been codified for conflicts not of an international character; the second had already been codified outside humanitarian law.

    ' Application of humanitarian law '

    165 As stated in the Commentary to the Conventions, (6) paragraph 4 of common Article 3 is essential; without it, neither Article 3 nor any other in its place would ever have been adopted, because it was necessary to indicate in the clearest possible way that the article is exclusively of a humanitarian nature, and cannot confer any special protection or immunity on a Party, or increase its authority or power in any way. (7)

    166 A corresponding provision was not considered necessary in 1949 for international armed conflict, but from the time of the Conference of Government Experts, those concerned have revised their views. In fact, it is possible for a Party to contest the international character of a conflict, because it considers that the other Party to the conflict is neither a State, nor a people referred to in Article [p.73] 1 (' General principles and scope of application '), paragraph 4. It is also possible that, without contesting the fact that the conflict is of the type described in Article 1 (' General principles and scope of application '), paragraph 4, a Party to the conflict would contest the quality of an authority claiming to represent a people engaged infighting in the sense of Article 96 (' Treaty relations upon entry into force of this Protocol '), paragraph 3. (8)

    167 In such situations a Party to the conflict could fear that by applying humanitarian law -- no matter how justified this might actually be -- it could imply, or seem to imply recognition of the very quality it is contesting with regard to the adverse Party. Fears of this nature will in future be quite unfounded because of the explicit wording of this provision.

    168 Thus, as humanitarian law has no effects beyond those it has itself prescribed on the legal status of Parties to the conflict, two situations may arise. In the first case, the application of humanitarian law does not change the legal status of the State, of a people fighting for self-determination, or of an authority representing such a people, this being the status which the contested Party effectively possessed; in the other case, it neither creates nor reinforces a quality which did not exist. Such a change does not result from the application of humanitarian law.

    169 The validity of this rule was not doubted by anyone as far as the principle is concerned, but there were difficulties in its formulation. And this was not with regard to the Parties to the conflict themselves, but, according to the terms of the draft, regarding the "territories over which they exercise authority". (9) This will be dealt with in the following section.

    ' Occupation of a territory '

    170 The experience of a number of specific situations had led the ICRC to formulate a draft according to which the principle of the absence of legal effect of the application of humanitarian law should not only apply for the Parties to the conflict, but also for the "territories over which they exercise authority"; (10) in particular, occupied territories.

    171 Though there was no opposition to this either, two remarks were made. On the one hand, according to some interpretations, this wording could lead to the idea that humanitarian law would sanction situations conflicting with international law; (11) on the other hand, the majority wished to reiterate the principle that occupation does not affect the legal status of occupied territory beyond what is laid down in the Hague Regulations, the fourth Convention and the present Protocol for the duration of the occupation.

    172 Everyone recognized this principle as an uncontested principle of international law which was, moreover, underlying both the Hague Regulations and the fourth Convention. Nowadays it follows from the inadmissibility of the use of force, as laid down in the Charter of the United Nations, and elaborated in the Declaration [p.74] on Principles of International Law concerning friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (Resolution 2625 (XXV) of the United Nations General Assembly). The only question that was disputed by a minority was whether it was appropriate and necessary to repeat this principle in the present article. (12)

    173 It should be recalled at this point that with regard to persons protected by it in occupied territory, Article 47 of the fourth Convention prohibits any deprivation of protection which could be the consequence, in particular, of "any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory", or from the annexation by the Occupying Power of the whole or part of the occupied territory. (13)

    ' Conclusion of agreements '

    174 The Conventions and the Protocol provide that a certain number of questions should be resolved by agreements to be concluded between Parties to the conflict; some may also be concluded outside a conflict situation or, in relation to a conflict, may equally concern neutral States or other States not Party to the conflict. (14)

    175 The statement that the conclusion of agreements provided for by the Conventions and the Protocol does not have any effect either on the legal status of those concerned, should be considered to be superfluous: the conclusion of such agreements actually represents no more than one aspect of the application of these instruments. This becomes all the more significant because while the Conference has elaborated the present text using two sentences instead of the one sentence contained in the draft, it did not explicitly refer to the conclusion of such agreements in the second sentence. That does not alter the fact that the rule as a whole applies to the two sentences of the article.

    176 Common Article 6/6/6/7 of the Conventions states that, apart from the agreements expressly provided for, the Contracting Parties "may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision". There is no doubt that this possibility also exists for matters more specifically governed by the Protocol, and that the same restriction applies: no special agreement can adversely affect the situation of protected persons as regulated by the Conventions and this Protocol. (15)

    ' B.Z. '


    NOTES

    (1) "The application of the preceding provisions shall not affect the legal status of the Parties to the conflict" (common Art. 3, para. 4);

    (2) O.R. III, pp. 19-21;

    (3) O.R. X, pp. 67 and 69, CDDH/I/235/Rev.1 (Art. 4);

    (4) 46 votes in favour, 11 against and 14 abstentions; cf. O.R. VIII, pp. 248-250, CDDH/I/SR.26, paras. 5-21;

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

    (6) For example, ' Commentary I, ' pp. 60-61;

    (7) As regards Powers not taking part in the conflict, reference should also be made to Resolution 10 of 1949;

    (8) On the meaning of the expression "a government or an authority not recognized by an adverse Party", contained in Article 43, para. 1, cf. the commentary thereon, infra, pp. 506-508;

    (9) Cf. in particular O.R. VIII, pp. 60-65, CDDH/I/SR.8, paras. 15-46;

    (10) Ibid., p. 61, para. 19;

    (11) Cf. in particular ibid., p. 62, para. 25; pp. 199-200, CDDH/I/SR.21, paras. 55 and 61;

    (12) Ibid., p. 63, CDDH/I/SR.8, para. 34; pp. 166-167, CDDH/I/SR.18, para. 72; p. 199, CDDH/I/SR.21, para. 58; pp. 248-250, CDDH/I/SR.26, paras. 10-21;

    (13) The mention of such situations in Article 47 of the Fourth Convention has the aim of preventing them more effectively and in no way of legitimizing acts which are contrary to international law; cf. ' Commentary IV ', pp. 272-276;

    (14) In the Protocol the following articles should be noted in this respect: 6, para. 4; 26, para. 1; 27, paras. 1-2; 28, para. 4; 29; 30, paras. 3 (c) and 4 (c); 31, paras. 1-4; 33, para. 4; 34, paras. 2-3; 56, para. 4; 59, paras. 5-7; 60, paras. 1-3 and 5-7; 66, para. 5; 90, paras. 2 (d) and 3 (a); Annex I, Arts. 6, para. 3; 7, para. 3; 8, paras. 1-2; 12;

    (15) The rule of this common article is repeated for occupied territories in the above-mentioned Article 47 of the Fourth Convention;