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Commentary - Measures for execution
    [p.929] Article 80 -- Measures for execution


    [p.930] General remarks

    3286 Under Article 1 ' (General principles and scope of application), ' paragraph 1, the Contracting Parties undertake to respect and ensure respect for the Protocol in all circumstances; that provision is based on the customary rule ' pacta sunt servanda ' as enshrined in the Vienna Convention on the Law on Treaties of 23 May 1969. (1)

    3287 The present article emphasizes the duty of Parties to take all necessary measures to this end and to do so without delay, i.e., at the appropriate time for each of these measures, for they do not all have to be taken at the same time. Paragraph 1 lays down the principle; paragraph 2 covers measures which have been more precisely defined.

    3288 The concept of execution in this article should be understood at two different levels. The first level covers measures introducing all or the relevant parts of the treaty into the legal order of each Contracting Party in accordance with the rules of its constitution (which certainly in all cases prescribe the publication of such a treaty). (2) This is a legal measure and may, depending on the State, be carried out together with ratification or accession, or, on the other hand, separately from ratification or accession, whether this occurs simultaneously or at a later date.

    3289 In addition, the application of some provisions requires preparatory steps such as the designation or establishment of organizations and the introduction of procedures. Finally, some treaty provisions require development or clarification to be fully and uniformly effective. These various measures may be taken either at a legislative level or by the executive in its widest sense.

    3290 The second meaning of "execution", which is also contained in this article, is that of its actual application. Some measures must be taken continuously, for example, dissemination; (3) others a re only conceivable in situations falling within the material scope of application of the Protocol, as defined in Article 1 ' (General principles and scope of application), ' paragraphs 3 and 4. (4)

    3291 The reference to the Conventions first of all is a reminder of what the Parties to these instruments have already undertaken by accepting them; (5) such a reference is also and primarily justified by the fact that the new measures to be [p.931] taken will often have a supplementary function in view of the fact that the Protocol is additional to the Conventions.

    3292 Some of the articles of the Protocol, which impose obligations at all times, refer to the "High Contracting Parties"; others, which are concerned only with Contracting Parties involved in an armed conflict, are addressed to the "Parties to the Conflict". The two paragraphs of this article, like several other articles, refer to "the High Contracting Parties and the Parties to the conflict", in order to emphasize the crucial importance of ensuring that they will be complied with in time of armed conflict. (6)

    3293 Apart from the addition of the words "and the Parties to the conflict" the deletion of two passages from the draft has given the article a more general scope. Article 80 was adopted by consensus both in Committee I and in plenary. (7)

    Paragraph 1

    3294 This paragraph covers in a general way all necessary measures of a legislative, regulatory or simply practical nature -- paragraph 2 covers only one specific aspect of this. Official translations of the Protocol, as well as any laws and regulations that a Party may adopt to ensure its application, shall be communicated to all Parties to the Conventions in accordance with Articles 84 ' (Rules of application) ' and 100 ' (Notifications), ' sub-paragraph (c).

    3295 As shown by the expression "without delay", each Party must study the matter and take the necessary measures as soon as the Protocol enters into force for it. (8) Moreover, it is desirable that for this important task it should take advantage of the six months period between ratification or accession and entry into force; in fact, the consideration given to the Protocol prior to ratification or accession should already include a preliminary study of the necessary measures within the meaning of this article.

    3296 Carrying out this task will require the participation of many institutions such as government authorities and other organizations outside public administration. The study and preparation of measures to be taken could usefully be entrusted to an inter-departmental committee and the National Red Cross or Red Crescent Society, for example, could be associated with it.

    3297 The following is a non-exhaustive list of provisions which, although not necessarily fully applying to every Contracting Party, may require preparatory action to be taken upon entry into force of the Protocol: (9)

    [p.932]
    -- ' Article 6 -- Qualified persons '
    The training of qualified personnel as envisaged by this article constitutes a permanent task for the Contracting Parties and National Red Cross and Red Crescent Societies.
    -- ' Article 12 -- Protection of medical units '
    ' Paragraph 2 '(b): Civilian medical units must be recognized and authorized as soon as possible.
    ' Paragraph 4 ': It is necessary to ensure at all times that permanent medical units are so sited that attacks against military objectives will not endanger them.
    -- ' Article 16 -- General protection of medical duties '
    Only appropriate legislation will make it possible to effectively ensure the protection of medical duties.
    -- ' Article 18 -- Identification '
    Measures to ensure the identification of medical personnel, units and transports should be taken as soon as possible.
    -- ' Article 22 -- Hospital ships and coastal rescue craft ' and
    -- ' Article 23 -- Other medical ships and craft '
    Any rules and regulations issued in application of Chapter III of the Second Convention should be adapted and extended to the ships and craft covered by these articles of the Protocol.
    -- ' Articles 24 -31 -- Protection of medical aircraft '
    The method of notification and of entering into agreements relating to medical aircraft within the meaning of Article 29 must be decided upon in peacetime (see also Article 12 of Annex I). It is in the interests of medical aviation that measures for the identification of medical aircraft be taken (see Articles 5 -13 of Annex I).
    -- ' Article 33 -- Missing persons '
    Preparatory steps should be taken for organizing searches, registration and transmission of information.
    -- ' Article 34 -- Remains of deceased '
    An organization should be set up to carry out the provisions of this article or an existing organization should be assigned this task.
    -- ' Article 36 -- New weapons '
    Measures should be taken, in the study, development, acquisition or adoption of a new weapon or of a new means or method of warfare, to determine whether its employment would, in some or all circumstances, be prohibited by the Protocol or by any other rule of international law applicable to the Contracting Party concerned.
    -- ' Article 43 -- Armed forces '
    The armed forces must have an internal disciplinary system ensuring compliance with the rules of international law applicable in armed conflict. The notification in paragraph 3 may be already made in peacetime.
    -- ' Article 45 -- Protection of persons who have taken part in hostilities '
    A judicial procedure must be established to determine the possible prisoner-of-war status of persons who are not detained as prisoners of war and who are to be tried for offences arising out of the hostilities.
    [p.933]
    -- ' Article 56 -- Protection of works and installations containing dangerous forces '
    The following rules in particular are applicable at all times: to avoid locating military objectives at or in the vicinity of such works; efforts should be made to improve their protection by means of agreements between the Contracting Parties; the works should be marked with the special sign (see Article 16 of Annex I).
    -- ' Article 58 -- Precautions against the effects of attacks '
    Fixed military objectives should be constructed as far away as possible from densely populated areas and the necessary measures should be planned to protect the civilian population (the definition of the word "attack" is given in paragraph 1 of Article 49 -- ' Definition of attacks and scope of application ').
    -- ' Article 60 -- Demilitarized zones '
    Agreements may be concluded for establishing demilitarized zones even in time of peace.
    -- ' Articles 61 -67 -- Civil defence '
    For civil defence to enjoy the guarantees provided by the Protocol it must be organized in accordance with the requirements of Articles 61 -67. Attention should be paid in particular to the problem of identification.
    -- ' Article 74 -- Reunion of dispersed families '
    Care should be taken to ensure that security regulations that are to apply in time of armed conflict do not impede the reunion of dispersed families.
    -- ' Article 75 -- Fundamental guarantees '
    Guarantees for humane treatment and judicial guarantees as required by this article must be established at the national level by adequate legislation which will be applicable in time of armed conflict.
    -- ' Article 76 -- Protection of women '
    The same applies as for Article 75 .
    -- ' Article 77 -- Protection of children '
    The same applies as for Article 75 . In particular, all possible measures should be taken in practice to prevent children under 15 from participating directly in hostilities.
    -- ' Article 78 -- Evacuation of children '
    An organization to be entrusted with this task in time of armed conflict should be designated.
    -- ' Article 79 -- Measures of protection for journalists '
    Measures should be taken to create the identity card here described, which should be available as soon as the Protocol enters into force.
    -- ' Article 80 -- Measures for execution '
    This list indicates the measures to be taken in peacetime. In addition, orders and instructions to ensure observance of the Conventions and the Protocol should be dealt with by regulations and military manuals.
    - ' Article 82 -- Legal advisers in armed forces '
    Legal advisers should be trained and available already in peacetime.
    -- ' Article 83 -- Dissemination '
    The dissemination of the Conventions and the Protocol is a permanent obligation. The Contracting Parties should incorporate the study of this in [p.934] programmes of military instruction and encourage the civilian population to study these instruments.
    -- ' Article 84 -- Rules of application '
    Translations of the Protocol, as well as laws and regulations adopted to ensure its application, should be communicated as soon as possible.
    -- ' Article 85 -- Repression of breaches of this Protocol '
    The national penal legislation must ensure that the breaches listed in this article can be repressed.
    -- ' Article 86 -- Failure to act '
    National legislation must be adapted in accordance with this provision insofar as necessary.
    -- ' Article 87 -- Duty of commanders '
    Already in peacetime Contracting Parties must give military commanders appropriate instructions to ensure that the measures laid down in this article are taken, particularly with regard to compliance with the Conventions and the Protocol by their subordinates.
    -- ' Article 88 -- Mutual assistance in criminal matters '
    Legislation necessary to implement mutual assistance and co-operation on extradition must be passed already in peacetime.
    -- ' Article 90 -- International Fact-Finding Commission '
    The declaration recognizing the competence of the Commission laid down in paragraph 2(a) and (b) may be made at any time.
    -- ' Article 97 -- Amendment ' and
    -- ' Article 98 -- Revision of Annex I '
    Necessary measures should be taken to give effect to any amendment to the Protocol or its Annex I accepted by the Contracting Party concerned.
    -- ' Annex I -- Regulations concerning identification '
    See the remarks made with regard to Articles 18 , 24 -31, 56 , 61 -67 and 98 .
    -- ' Annex II -- Identity card for journalists on dangerous professional missions '
    See the remark made with regard to Article 79 .

    Paragraph 2

    3298 As we have seen, this concerns a more specific level of immediate and direct application of the Protocol, i.e., orders and instructions given in particular circumstances to specific addressees. In fact, permanent orders and instructions may be deemed to come under paragraph 1. The duty of Parties to supervise their execution is an obligation which would apply even without being stated explicitly and applies equally to paragraph 1, since it follows from the duty to "respect and ensure respect" which, as stated above, forms the basis of this article.

    ' B.Z. '


    NOTES

    (1) [(1) p.930] For further details and for the text of the article concerned of the Vienna Convention, cf. commentary Art. 1, para. 1, supra, pp. 35-38. On the scope of the expression "High Contracting Parties" in the Protocol, cf. commentary Preamble, supra, p. 25;

    (2) [(2) p.930] Respect for the constitutional order of each Contracting Party is without prejudice to the rule laid down in the first sentence of Article 27 ("Internal law and observance of treaties") of the above-mentioned Vienna Convention: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.";

    (3) [(3) p.930] Cf. the explicit wording of Art. 83, para. 1, and the commentary thereon, infra, p. 961;

    (4) [(4) p.930] With regard to the point in time at which various groups of provisions of the Protocol will become or may become applicable, cf. commentary Art. 3, supra, pp. 66-67;

    (5) [(5) p.930] Cf. common Article 1 of the Conventions and, in relation to the present Article 80 and to Art. 84 of the Protocol, Arts. 45, 48/46, 49/128/145 of the Conventions;

    (6) [(6) p.931] Even although this is no longer necessary in view of the wording of Article 96, para. 3, the expression "and the Parties to the conflict" was also intended to cover the authorities to which that paragraph applies; cf. the commentary thereon, infra, p. 1090. Cf. also supra, note 1, second sentence;

    (7) [(7) p.931] Cf. respectively O.R. VIII, p. 403, CDDH/I/SR.38, para. 2 (supplemented by O.R. IX, p. 474, CDDH/I/SR.76, para. 5); O.R. VI, p. 253, CDDH/SR.43, para. 93;

    (8) [(8) p.931] Cf. Art. 95;

    (9) [(9) p.931] This list is taken from a memorandum addressed by the ICRC to the Parties to the Protocols, entitled "Implementation of the Protocols" (' IRRC ', July-August 1980, pp. 198-204). Fuller information can be found in the commentary on the provisions cited;