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Commentary - Field of application
    [p.841] Article 72 -- Field of application


    2921 The ICRC draft contained a corresponding provision (Article 63), which was largely adopted by the Diplomatic Conference. The purpose is simply to clarify the general rule formulated in paragraph 3 of Article 1 of the Protocol ' (General principles and scope of application). '

    [p.842] 2922 This article did not lead to much discussion, and only one amendment was submitted. (1) Its purpose was to determine the exact group of people covered in each of the articles in this Section, and in so doing to exclude nationals.

    2923 The Conference preferred a different formula based on the solution adopted in paragraph 4 of Article 49 ' (Definition of attacks and scope of application), ' which defines the applicability of Section I ' (General protection against effects of hostilities) ' by reference to the Fourth Convention, in particular Part II thereof. In Article 72 the reference is especially to Parts I and III of the fourth Convention, as we are concerned with protecting individuals against arbitrary and oppressive actions of the authority into whose power they have fallen.

    2924 This similarity to Article 49 ' (Definition of attacks and scope of application) ' led to the inclusion of civilian objects in the wording used although, as we saw above, objects are hardly referred to in the Section.

    2925 The adoption of the above-mentioned amendment might have shed more light with regard to those who are beneficiaries of the articles of this Section; however, it should be noted that each of the articles contains a brief definition of the persons to whom it applies (Article 73 -- ' Refugees and stateless persons '; Article 74 -- ' Reunion of dispersed families '; Article 75 -- ' Fundamental guarantees, ' for persons affected by situations referred to in Article 1 -- ' General principles and scope of application '; Article 76 -- ' Protection of women '; Article 77 -- ' Protection of children '; Article 78 -- ' Evacuation of children '; Article 79 -- ' Measures of protection for journalists').

    2926 The reference to Parts I and III of the fourth Convention shows that civilians confronting the authorities of a country of which they are not nationals were intended to be covered in particular, but the reference to other rules of international law suggests that some provisions of the Section, especially Article 75 ' (Fundamental guarantees), ' apply to nationals of a State Party to the conflict vis-à-vis that State. At any rate this is the interpretation given of this provision by the Finnish government in the above-mentioned declaration. (2)

    2927 What is meant by "other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict"? As we have seen, this concerns only the protection of persons, and not the protection of objects or property. Thus the various instruments relating to human rights spring to mind first of all. In the first place, there is the Universal Declaration of 1948, but that Declaration represents, in its own words, "a common standard of achievement for all peoples and al nations" and does not constitute a legal obligation upon States.

    [p.843] 2928 In the field under consideration here, there are three instruments binding the States which are Parties to them:

    a) the International Covenant on Civil and Political Rights (1966);
    b) the European Convention for the Protection of Human Rights and fundamental freedoms (1950);
    c) the American Convention on Human Rights (1969). (3)

    2929 These three treaties, of which the first has universal membership while the others are regional, contain fairly similar clauses, although they are sometimes formulated differently. Moreover, they have one point in common: a clause which allows States Parties to suspend application in time of public emergency which threatens the life of the nation (Covenant, Article 4), in time of war or other public emergency threatening the life of the nation (European Convention, Article 15), in time of war, public danger, or other emergency that threatens the independence or security of a State Party (American Convention, Article 27).

    2930 Such suspension allows measures to be taken only if they are justified by the circumstances and in no event measures which would be incompatible with other obligations imposed by international law. Moreover, there are exceptions for certain fundamental rights and with regard to these no derogation is permitted.

    2931 The enumeration of these inalienable fundamental human rights is different in each of the three agreements.

    2932 In the Covenant no derogation is permitted from Articles 6 (right to life), 7 (torture), 8, paragraphs 1 and 2 (slavery and servitude), 11 (imprisonment for debt), 15 (retroactive effect of criminal laws), 16 (recognition as a person), 18 (freedom of thought, conscience and religion).

    2933 The agreements listed above continue to apply in the situations referred to in Article 1 of the Protocol ' (General principles and scope of application), ' but these situations are such as to permit derogation. Therefore it is to be foreseen that States will frequently use the possibility available to them to suspend the application of these agreements for the duration of the armed conflict; thus only the clauses which permit no derogation remain applicable. These are important guarantees, and, as we will see below, Article 75 ' (Fundamental guarantees) ' introduces a series of additional guarantees which apply, as stated in Article 1 ' (General principles and scope of application) ' in all circumstances. There is no possibility of derogation.

    2934 Finally, we should mention the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968). In fact, according to the Preamble of this Convention, the effective punishment of war crimes is an important element in the protection of human rights and fundamental freedoms. Paragraph 7 of Article 75 ' (Fundamental guarantees) ' is, for that matter, dedicated to the prosecution and trial of war crimes and crimes against humanity.

    [p.844] 2935 As we will see below, in many cases the provisions of this Section were based on those of the Covenant on Civil and Political Rights. The inclusion of these provisions in this Section has the great advantage that there is no derogation possible in the context of the Protocol.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.842] The text of this amendment (O.R. III, p. 286, CDDH/III/313) was as follows: "Revise the article to read:
    1. Articles 64, 66, 67 and 69 supplement Parts I and III of the Fourth Convention with respect to the protection of civilians and civilian objects in the power of a Party to the conflict of which they are not nationals.
    2. Articles 65 and 68 supplement Part II of the Fourth Convention with respect to the whole of the populations of the Parties to the conflict.";

    (2) [(2) p.842] Cf. supra, introduction to this Section, p. 838;

    (3) [(3) p.843] There is also the African Charter on Human and Peoples' Rights which entered in force on 21 October 1986. In addition, an Arab Charter on Human Rights is in preparation;