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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Commentary - Neutral and other States not Parties to the conflict

[p.237] Article 19

-- Neutral and other States not Parties to the conflict

General remarks

795 This article concerns the obligations of States which are not Parties to the conflict with respect to persons protected by Part II of the Protocol, and with respect to the dead of the Parties to the conflict. It supplements Article 4

of the first Convention, Article 5

of the Second Convention, and Article 4 B

(2) of the Third Convention, which deal with the same problem and it lays down the same rules as those laid down in the 1949 Conventions.

796 The question may arise whether this article might not have been better placed among the general provisions of the Protocol. However, as one delegate stated, [p.238] it is essentially the obligations contained in the provisions of Part II which are placed on States not Parties to the conflict:

"Part I laid down the basic obligations imposed on all High Contracting Parties, and Parts III and IV were concerned with the situation on the battlefield and with the relations between the belligerent Power, especially as an Occupying Power, and the population. None of the provisions of those three Parts was applicable to a third State, with the exception of Articles 60

to 62, which were concerned with relief; in those articles, however, the obligations of the third State were explicitly regulated. Finally, Part V imposed obligations on all High Contracting Parties, whether Parties to the conflict or not, and accordingly did not come within the scope of Article 19

." (1)

In addition, it should be noted that Article 9

' (Field of application), ' paragraph 2 (a), and Article 31

' (Neutral or other States not parties to the conflict) ' of the Protocol, which both also fall under Part II, are also directly concerned with the States mentioned in Article 19

. (2)

Text of the article

797 The States which are bound by obligations in pursuance of this article are "neutral and other States not Parties to the

conflict". (3)

798 This article does not cover liberation movements to which the Protocol may apply. (4) However, it would be desirable that if a

conflict in which they are not engaged takes place on the borders of

territory under their control, they should at least endeavour to act

in the spirit of the provisions which could relate to them.

799 The States concerned here are required to apply the "relevant provisions of this Protocol". Mentioning only the provisions of the

Protocol, without referring to those of the Conventions, shows that

the category of States covered by the provisions of this Protocol is

the same as that covered by the corresponding articles of the

Conventions. On the other hand, there was a preference for requiring

the application of the relevant provisions of the present Protocol,

rather than the application "by analogy [...] [of] the provisions of

the present Protocol", as provided in the draft, which in turn was

inspired by the Conventions. As one delegate stated, this expression:

"did not accurately reflect the true position of States not Parties to the conflict. Those words might seem to imply that

such States were being asked to apply the provisions relating

to the wounded, sick and shipwrecked as if they were Parties

to the conflict". (5)

[p.239] It is clear that many provisions of the Protocol cannot impose obligations on the States concerned here, even if they relate

to persons who are to be protected. (6) However, it is only a

question of wording, for basically it is quite clear that the

situation under the Conventions was precisely the same, as shown

indeed in the commentary on Article 4 of the first Convention: "The

Convention, having been drawn up with a view to determining the

treatment of enemies, contains a number of provisions which could

only apply to belligerents". (7)

800 In the Protocol, as in Articles 4

of the first Convention and 5

of the Second Convention, though unlike Article 4 B

(2) of the Third

Convention, there is no list of the articles which must be applied --

or those which need not be applied -- by the States concerned in

Article 19

. The reason, which also applies for Article 19

of the

Protocol, was clearly explained in the Commentary on the first

Convention:

"An enumeration is justified in the Third Convention, whose object is to lay down regulations for the treatment of men

who are interned; in the first Convention it would

necessarily have been somewhat rigid and arbitrary, some of

the articles being partially applicable. The application of

the Convention by neutral Powers is primarily a question of

common sense, guided by a humane spirit. The interests of the

wounded themselves will provide a touchstone in cases of

doubt." (8)

801 It should also be noted that there was even a proposal in one amendment to mention only "the provisions of this Part". (9) The

reason was that essentially only the provisions of this Part have to

be applied by the States covered here. We noted this above, to

explain the fact that Article 19

is included in Part II, and the

reasons we gave were also put forward by the sponsors of this

proposal. As the amendment was proposed rather late, and was

considered by a number of delegates as a matter of substance, (10) it

was withdrawn without any real discussion taking place. (11) In any

case the question is not of great importance. The States concerned

are required mainly to observe the general principles of respect and

protection for the wounded, sick and shipwrecked, as well as for

medical personnel. These principles are actually stated in Part

II. (12) However, these States could also seek inspiration in rules

contained elsewhere. An example that springs to mind is Article 76

' (Protection of women), ' paragraph 2, in Part IV, relating to

pregnant women, who are also covered by Part II as "wounded" or

"sick" in the sense of the Protocol. (13)

802 The persons covered by Article 19

are "persons protected by this Part". This concise formulation was ultimately preferred to an

enumeration of protected persons, (14) as contained in the 1973 draft

and the report of the Drafting Committee [p.240] of Committee

II. (15) The persons covered here are the wounded, sick and

shipwrecked, civilian medical personnel and civilian religious

personnel, in the sense of the Protocol. (16) Medical and religious

personnel not protected by Part II, and consequently not covered by

this article, are protected by the Conventions and are therefore

covered by the analagous articles in the Conventions mentioned above.

These several instruments together cover all such personnel, leaving

no gaps.

803 It should be noted that some provisions apply partially to persons whose protection is explicitly provided, and partially to

other persons. This applies in particular to Article 16

' (General

protection of medical duties). ' Ordinary common sense should dictate

to neutral or other States not Parties to the conflict that they

should generally apply these articles, or at least, the principles on

which they are based.

804 However, persons protected by this Part are only covered by Article 19

if they are "received or interned" within the territory of

a neutral or other State not Party to the conflict. Indeed, their

relationship to such a State becomes important only in this case. The

text refers to persons who "may" be received or interned. This should

be understood to mean "any persons who are actually received or

interned when the occasion arises". The article does not impose

obligations on the States concerned with regard to persons they would

be able to (but do not in fact) receive or intern. As regards the

expression "received or interned", it is taken from similar articles

in the Conventions. These terms were deliberately selected in 1949

"in order to cover all cases which might arise through the

application of the fifth Hague Convention of 1907". (17) Reference

should be made to this Convention, as well as to Articles 4

and 37

paragraph 3, of the first Convention and to the relevant Commentaries

to ascertain in detail what persons must be interned. With regard to

persons protected by this Part, it can simply be stated that in any

case no obligation is imposed by international law on neutral or

other States not Parties to the conflict to intern or detain

civilians. (18)

805 Finally, neutral States and other States not Parties to the conflict must also apply the relevant provisions of the Protocol "to

any dead of the Parties to that conflict whom they may find".

Basically this concerns the provisions of Article 34

' (Remains of

deceased), ' which in turn refers to some provisions of the

Conventions. (19) However, the States concerned could also refer to

Article 17

' (Role of the civilian population and of aid

societies), ' paragraph 2, in cases where large numbers of dead are

found in their territory.

' Y. S. '

NOTES

(1) O.R. XI, p. 259, CDDH/II/SR.26, para. 11. The

articles relating to relief actions have become Articles

68-71 in the final version of the Protocol;

(2) For further details on this subject, cf. commentary Art. 9, para. 2, point 1, supra, p. 142, and

Art. 31, infra, p. 325;

(3) On the meaning of this expression, cf. commentary Art. 2, sub-para. (c), supra, p. 61;

(4) Cf. Art. 1, para. 4, and its commentary, supra, pp. 41-56;

(5) O.R. XI, pp. 258-259, CDDH/II/SR.26, para. 9;

(6) Cf., for example, Art. 15, paras. 2-4;

(7) ' Commentary I, ' p. 63;

(8) Ibid;

(9) Cf. O.R. III, p. 95, CDDH/II/242;

(10) Cf. O.R. XI, p. 260, CDDH/II/SR. 26, paras. 18, 20-21;

(11) Ibid., p. 260, para. 22;

(12) Cf. in particular, Arts. 10 and 15;

(13) Cf. Art. 8, sub-para. (a);

(14) Cf. O.R. XI, p. 262, CDDH/II/SR.26, para. 35;

(15) Cf. CDDH/II/240 of 21 February 1975 (not published in the ' Official Records. ');

(16) Cf. Art. 8, sub-paras. (a), (b), (c) and (d);

(17) ' Commentary I, ' p. 62. This refers to the Convention respecting the Rights and Duties of Neutral

Powers and Persons in Case of War on Land;

(18) However, there are a few exceptions, as in the case when such a person has committed an offence

covered by an extradition treaty or a grave breach of the

Conventions or the Protocol;

(19) For further details on this subject, cf. commentary Art. 34, infra, p. 365;