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1949 Conventions and Additional Protocols, and their Commentaries
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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 -
Non-intervention
[p.1361] Article 3
-- Non-intervention
[p.1362] General remarks
4497 Article 3 is a response to the fear that Protocol II might be used as a pretext to violate the sovereignty of States and intervene
in their internal or external affairs, i.e., that it might serve as a
justification for intervention. Such fear became apparent at the
Conference of Government Experts. Some of the experts would even have
liked to include a clause in the Preamble to the effect that respect
for national sovereignty and for the principle of non-interference in
internal affairs was a pre-requisite for applying the Protocol. (1)
4498 In view of this recurring concern, the ICRC had already included such a provision in the draft submitted to the Diplomatic Conference.
Although it had the same tenor, the proposed provision was
nevertheless more succinct. (2)
4499 This is a savings clause which brings to mind the two complementary principles of international law enshrined in the United
Nations Charter: (3) the principle of inviolability of the national
sovereignty and that of non-intervention in matters which are
essentially within the domestic jurisdiction of a State. In fact, the
ICRC draft contained yet another savings clause which recalled that
the legal status of the parties to the conflict would not be affected
by the application of the Protocol. (4) That article was deleted by
consensus during the final stage of the adoption of the Protocol. (5)
On the one hand, its ' raison d'être ' had disappeared since all
mention of parties to the conflict had been deleted from the text,
precisely so as not to give any semblance of recognition to any sort
of international status of the insurgent party; (6) on the other
hand, such a clause is already contained in common Article 3
, and
therefore retains its full validity with regard to Protocol II. (7)
Thus it is perfectly clear that the application of international
humanitarian law in situations of non-international armed conflict
has no effect whatever on the qualification of relations between the
parties.
Paragraph 1
4500 Paragraph 1 reaffirms the principle of the inviolability of the national sovereignty of States. The Protocol has a purely
humanitarian aim. Consequently it does not affect the right of States
to take appropriate measures for maintaining or restoring law and
order, defending their national unity and territorial integrity. This
is the responsibility of governments and is expressly recognized
here.
[p.1363] 4501 If the State's authority had been totally reserved, that would have risked depriving the Protocol of its substance and meaning; for
this reason it was of paramount importance to specify that only
legitimate means may be used. Thus imperative needs of State security
may not be invoked to justify breaches of the rules of the Protocol.
In ratifying or acceding to the Protocol, a State accepts its terms
by the unfettered exercise of its sovereign powers. Consequently, the
obligation to respect the rules contained in it cannot later be
considered as an infringement of its sovereignty, as the government's
freedom of action is limited by the obligations it has itself freely
agreed to. (8)
Paragraph 2
4502 Paragraph 2 reserves the principle of non-intervention. The Protocol cannot serve as a pretext or justification for direct or
indirect intervention in an armed conflict or in the internal or
external affairs of the High Contracting Party concerned.
4503 The ICRC draft was concerned only with prohibiting intervention by third States. (9) In Committee a proposal was submitted orally to
include "any other organization" in addition to States. This proposal
was based on the allegation that in the past private organizations
had been guilty of abuses in the name of humanitarian
activities. (10) It did not meet with the agreement of the delegates.
Some expressed the fear, which was unfounded, (11) that it could
result in the competence of the United Nations being called into
question, particularly that of the Security Council, to take
appropriate measures in the event that international peace and
security were endangered. (12) On the other hand, an amendment to the
effect that the reference to States in the text should be deleted,
was adopted. (13) The prohibition is therefore addressed not only to
States, but also to other bodies, international or non-governmental
organizations, which might use the Protocol as a pretext for
interfering in the affairs of the State in whose territory the armed
conflict is taking place.
4504 In view of the fear to which we referred above, it seems appropriate to note that this provision does not call into question
previously existing procedures of international organizations and
particularly the United Nations.
[p.1364] 4505 It should also be recalled here that common Article 3
provides that: "An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the Parties to
the conflict." Such an offer of services, legitimate under common
Article 3, cannot be considered as a hostile act. (14) Even in the
absence of explicit reaffirmation, the position achieved in 1949 is
not adversely affected by Protocol II, which, as specified in article
1
' (Material field of application) ' supplements and develops common
Article 3 without modifying its conditions of application. (15) Nor
does it prohibit the offer by an impartial humanitarian organization
such as the ICRC to provide assistance and protection to the victims
of the armed conflict, and to contribute to the implementation of the
Protocol. This possibility is expressly provided for with regard to
assistance for persons who have been deprived of their liberty (16)
and with regard to the organization of relief actions for the benefit
of the civilian population. (17) However, there is no obligation to
accept assistance from such an organization. Parties remain free to
accept or refuse assistance offered them, precisely in order to
retain their complete freedom of judgment and so as not be exposed to
external interventions.
4506 Finally, one delegation pointed out that a distinction is nowadays made between "intervention" and "interference";
"intervention" is applied to subversive or terrorist activities,
whereas the word "interference" may be used for ordinary
' démarches ' or protests. (18)
' S. J. '
* (1) [(1) p.1362] ' CE 1972, Report ', Vol. I, p. 120, paras. 2.534 and 2.539;
(2) [(2) p.1362] Draft Art. 4;
(3) [(3) p.1362] United Nations Charter, Art. 2, paras. 1 and 7;
(4) [(4) p.1362] Draft Art. 3;
(5) [(5) p.1362] See O.R. VII, p. 86, CDDH/SR.50, para. 9;
(6) [(6) p.1362] See the introduction to this Part, supra, p. 1343;
(7) [(7) p.1362] Common Art. 3, para. 4;
(8) [(8) p.1363] On this question, see "The SS Wimbledon case", Reports of the Permanent Court of International
Justice, Series A, No. 1, 17 August 1923: "The Court
declines to see in the conclusion of any treaty by which a
State undertakes to perform or refrain from performing a
particular act an abandonment of its sovereignty. No doubt
any Convention creating an obligation of this kind places
a restriction upon the exercise of the sovereign rights of
the State, in the sense that it requires them to be
exercised in a certain way. But the right to enter into
international engagements is an attribute of State
sovereignty." See also O.R. VIII, pp. 215-218,
CDDH/I/SR.23, paras. 1-19;
(9) [(9) p.1363] Draft Art. 4;
(10) [(10) p.1363] O.R. VIII, p. 295, CDDH/I/SR.29, para. 49;
(11) [(11) p.1363] See Art. 103 of the Charter;
(12) [(12) p.1363] O.R. VIII, p. 295, CDDH/I/SR.29, para. 50;
(13) [(13) p.1363] O.R. IV, p. 16, CDDH/I/239. See also O.R. VIII, p. 306, CDDH/I/SR.30, para. 36, and O.R. X, p. 43,
CDDH/219/Rev.1, para. 108;
(14) [(14) p.1364] See ' Commentary I, ' pp. 57-59 (Art. 3);
(15) [(15) p.1364] The ICRC recalled this important point in a plenary meeting of the Conference. See O.R. VII, p. 151,
CDDH/SR.53, para. 64;
(16) [(16) p.1364] See Art. 5, para. 1(c), and the commentary thereon, infra, p. 1388;
(17) [(17) p.1364] See Art. 18, para. 2, and the commentary thereon, infra, p. 1478;
(18) [(18) p.1364] O.R. VIII, p. 300, CDDH/I/SR.30, para. 5. This remark is based on Resolution 2625 (XXV) of the
United Nations on Principles of International Law
concerning Friendly Relations and Co-operation among
States, and Principle VI of the Final Act of Helsinki:
' Non-intervention '. See also on this point, R.J. Dupuy
and A. Leonetti, "La notion de conflit armé à caractère
non international", in A. Cassese (ed.), ' The New
Humanitarian Law of Armed Conflicts, ' op. cit., pp.
272-274;