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

Commentary - Personal field of application

[p.1357] Article 2

-- Personal field of application

[p.1358] General remarks

4480 The provision defines the field of application ' ratione personae ' of the rules of the Protocol by indicating who benefits

from them and for whom they are intended and how far they apply in

place and time. Paragraph 1 affirms the principle of

on-discrimination in the application of the Protocol to "all persons

affected by an armed conflict". The meaning to be given to this term

will be indicated in the commentary on paragraph 1.

4481 Paragraph 2 specifies ' ratione temporis ' the legal protection of persons deprived of their liberty, who will continue to enjoy the

fundamental guarantees of humane treatment and of judicial guarantees

the end of hostilities, not only if they were already detained,

but also if they were arrested after the conflict came to an end.

This rule reduces the risk of arbitrary behaviour by the victorious

party.

Paragraph 1

' Principle of non-discrimination '

4482 First, paragraph 1 lays down that persons protected by application of the rules of the Protocol must be treated equally. This concept is based on the principle of non-discrimination which is

nowadays universally recognized in international law. The list of the

various criteria of discrimination is not exhaustive. It is contained

in other provisions of the Conventions and of the Protocols in

greater or lesser detail. (1) Its scope is always the same.

4483 In Article 2 under consideration here, the list of criteria is very similar to that of the Covenant on Civil and Political

Rights. (2) In this respect, it should be noted that a degree of

correspondence in the terminology used in international instruments

relating to human rights and those on humanitarian law makes for a

certain measure of cohesion of the international rules for the

protection of the human person, and is of help for their

interpretation.

4484 "This Protocol shall be applied without any adverse distinction": this formula is taken from common Article 3

of the Conventions. Th

adjective "adverse" is used to make an important point. In fact,

favourable distinctions may be made quite lawfully, such as

differences of treatment which may be made to take into account the

suffering or distress or natural weakness of people (such as a child

or an old man, for example), which call for special measures related

to the urgency and needs of the case in point. (3)

[p.1359] ' Field of application ' ratione personae

4485 Who are the people "affected by an armed conflict"? On the one hand, these are persons who do not, or no longer take part in

hostilities and enjoy the rules of protection laid down by the

Protocol for their benefit. On the other, they are those who must,

within the meaning of the Protocol, conform to certain rules of

conduct with respect to the adversary and the civilian

population. (4)

4486 The ICRC draft was more explicit and clearer. It took up a Canadian proposal submitted during the Conference of Government

Experts in 1971, (5) and read as follows: "The present Protocol shall

apply [...] to all persons, whether military or civilian, combatant

or non-combatant, affected by an armed conflict." (6)

4487 This proposal was based on two thoughts:

-- by providing for a field of application that would cover everybody, combatants as well as non-combatants in the territory

of the country where the conflict was taking place, there would

be no need for the insurgent party to have a defined status;

-- by extending the field of application of the rules applicable in case of non-international armed conflict to cover combatants, the

fact that the Protocol contains provisions on how to behave in

combat and on the conduct of hostilities would be properly taken

into account. (7)

4488 The final version of the article, as it now reads in the Protocol, is also the result of a Canadian amendment. (8) Although

the wording of the text is less explicit, the original approach has

been retained and was not contested.

4489 The Protocol applies to all residents of the country engaged in a conflict, irrespective of their nationality, including refugees and

stateless persons. It may happen that the authorities take special

security measures with regard to aliens, and certain offences

committed in connection with the conflict situation may be considered

of greater or less severity, depending on whether they were committed

by foreigners or nationals These are administrative or judicial

measures which, although based on the nationality criterion, are

without prejudice to the guarantees on the treatment of

individuals. (9)

' Field of application ' ratione loci

4490 Persons affected by the conflict within the meaning of this paragraph are covered by the Protocol wherever they are in the

territory of the State engaged in conflict. The situation may only

affect a small part of the territory; this is why the Diplomatic

Conference did not provide that the Protocol should automatically

[1360] apply to the territory as a whole. No criterion ' ratione

loci ' was adopted. As we saw above, the applicability of the

Protocol follows from a criteria related to persons, and not to

places. (10)

' Field of application ' ratione temporis

4491 The starting point of the application of the Protocol is determined by Article 1

, ' (Material field of application), '

paragraph 1, and corresponds to the moment when the criteria laid

down in that article are objectively fulfilled.

4492 The text does not contain any indication as regards the end of its applicability. (11) Logically this means that the rules relating

to armed confrontation are no longer applicable after the end of

hostilities, while the fundamental guarantees granted persons

deprived of their liberty are dealt with in paragraph 2 commented on

below.

Paragraph 2

4493 In principle, measures restricting people's liberty, taken for reasons related to the conflict, (12) should cease at the end of

active hostilities, i.e., when military operations have ceased,

except in cases of penal convictions. Nevertheless, if such measures

were maintained with regard to some persons for security reasons, or

if the victorious party were making arrests in order to restore

public order and secure its authority, legal protection would

continue to be necessary for those against whom such actions were

taken.

4494 That is the ' raison d'être ' of this paragraph, which provides that at the end of the armed conflict persons deprived of their

liberty for reasons related to the conflict, either because they have

not been released, or because they were arrested after the end of

hostilities, continue to enjoy protection under the rules relating to

detention (Article 5

-- ' Persons whose liberty has been

restricted) ' and judicial guarantees (article 6

- ' Penal

prosecutions). '

4495 These fundamental guarantees remain valid at all times and without any restriction in time, until the deprivation or restriction

of the liberty of those concerned has come to an end. In fact, this

is an essential protection for the individual.

4496 The article uses the terms "deprived of [...] liberty" and "whose liberty has been restricted" to ensure that there is no gap in

protection. (13) In fact, these terms cover all possible situations,

from release subject to police supervision (such as house arrest or

assigned residence, for example), to imprisonment.

' S.J. '

* (1) [(1) p.1358] In particular, Art. 13, Fourth Convention, common Art. 3, Art. 75, Protocol I, and Art. 4, Protocol

II;

(2) [(2) p.1358] Art. 2 of the Covenant;

(3) [(3) p.1358] See ' Commentary IV, ' pp. 127-128 (Art. 13);

(4) [(4) p.1359] See O.R. VIII, p. 210, CDDH/I/SR.22, para. 43;

(5) [(5) p.1359] ' CE 1971, Report ', pp. 57 and 59-60 (Art. 1); CE 1972, ' Commentaries, ' Part II, p. 7;

(6) [(6) p.1359] Draft Art. 2, ' Commentary Drafts ', p. 134;

(7) [(7) p.1359] For example, quarter (Art. 4, para. 1 in fine), or the protection of the civilian population (Art.

13);

(8) [(8) p.1359] O.R. IV, p. 11, CDDH/I/37; p. 13, CDDH/I/220;

(9) [(9) p.1359] O.R. VIII, p. 210, CDDH/I/SR.22, para. 45;

(10) [(10) p.1360] Ibid., p. 211, paras. 47-48;

(11) [(11) p.1360] An amendment which was not adopted proposed that the application of the Protocol should cease "upon

the general cessation of military operations"; cf. O.R.

IV, p. 12, CDDH/I/79;

(12) [(12) p.1360] On the meaning of the term "for reasons related to the armed conflict", cf. commentary Art. 5,

para. 1, infra, p. 1385;

(13) [(13) p.1360] Concerning the term "interned or detained" persons, cf. also ibid;