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Commentary - Denunciation
    [p.1501] Article 25 -- Denunciation


    General remarks

    4919 This provision is based on a proposal of Working Group C of Committee I. It was not contained in the ICRC draft. (1) It was adopted by consensus and became the present Article 25. (2)

    4920 This is a simplified version of Article 99 of Protocol I ' (Denunciation) ' adapted for the special context of situations of non-international armed conflicts. The Conventions all have a provision on denunciation (3) and therefore it was considered logical for Protocol I, which supplements and develops them, to also contain such a right. (4) On the other hand, the ICRC draft did not contain a denunciation provision for Protocol II. This approach was based on the fact that the instrument would only be applied in the territory of one High Contracting Party and would not concern relations between States. It seemed to the ICRC that a State which has undertaken to respect the fundamental humanitarian guarantees vis-à-vis its own nationals in the circumstances referred to in Article [p.1502] 1 of the Protocol ' (Materiel field of application) ' would have no reason at all to denounce such an instrument.

    4921 In fact, it was from a concern to maintain uniformity with Protocol I that such a provision was incorporated in the final provisions of Protocol II. It is to note that up to now there has been no case of denunciation of the Conventions, which leads one to hope that the right to take such step will remain theoretical.

    Paragraph 1

    4922 This paragraph constitutes a recognition of the right to denounce the Protocol, while limiting the effects of such denunciation. It is a unilateral right of the High Contracting Party. The denunciation takes effect six months after notification in writing to the depositary in accordance with paragraph 2. This period is shorter than that of one year, adopted for the Conventions and for Protocol I. The Official Records do not give a reason for this difference. No doubt it should be seen as a reflection of the intention of the Conference to reserve a broad prerogative for States in their internal sphere.

    4923 The effect of the denunciation is suspended when a Contracting Party is engaged in a situation referred to in Article 1 of the Protocol ' (Material field of application) ' at the time that it notifies its intent to denounce the Protocol or during the following six months. (5) In such a case, despite the denunciation by the State concerned, the Protocol will continue to be applicable until "the end of the armed conflict". This term should be understood in the same way as in Article 2 ' (Personal field of application), ' paragraph 2, i.e., the end of active hostilities, the point at which military operations on both sides cease.

    4924 Moreover, those who are still deprived of their liberty or whose liberty is still restricted for reasons related to the armed conflict, continue to enjoy the protection of the Protocol until their final release. This measure is virtually the same as that laid down in Article 2 of the Protocol ' (Personal field of application). '

    4925 The reference to persons deprived of their liberty, or whose liberty has been restricted, covers everyone whose liberty is restricted in any way. (6) Although the text does not specifically say so, the group of persons protected in this way includes those who are detained for reasons related to the conflict only at the end of hostilities, and not only those who had already been deprived of their liberty before and had not yet been released. (7)

    4926 The provisions of the Protocol which such persons continue to enjoy are those of Part II ' (Humane treatment), ' viz., Article 4 ' (Fundamental guarantees), ' Article 5 ' (Persons whose liberty has been restricted) ' and Article 6 ' (Penal prosecutions). '

    [p.1503] Paragraph 2

    4927 Any denunciation, like ratification and accession, should be made by a notification in writing to the depositary, which shall transmit it to all the High Contracting Parties.

    4928 Notification of a denunciation to the Parties to the Conventions and to the Secretariat of the United Nations is not provided for in Articles 26 ' (Notifications) ' and 27 ' (Registration). ' (8) This omission should be considered as a technical error resulting from the fact that the denunciation provision under consideration here was adopted only after the above-mentioned articles. (9)

    4929 Should the case ever arise, this omission should obviously be rectified and a notification made.

    ' S.J. '


    * (1) [(1) p.1501] O.R. IV, p. 118, CDDH/I/350/Rev.1 (Art. 44 bis);

    (2) [(2) p.1501] (2) O.R. IX, p. 475, CDDH/I/SR.76, para. 10;

    (3) [(3) p.1501] Arts. 63/62/142/158 common to the Conventions;

    (4) [(4) p.1501] ' Commentary Drafts ', p. 108 (Art. 87);

    (5) [(5) p.1502] Similarly, any denunciation of the Conventions would be kept in abeyance if the denouncing Party were in a situation as described in the common Articles 2 or 3 on the date when it denounces the Conventions, or at any time during the twelve months following that date (Arts. 63/62/142/158 common to the Conventions);

    (6) [(6) p.1502] See Art. 2, para. 2, and Art. 5, para. 3, and the commentary thereon, supra, pp. 1360 and 1393;

    (7) [(7) p.1502] See commentary Art. 2, para. 2, supra, p. 1360;

    (8) [(8) p.1503] Unlike the corresponding Articles 100 and 101 of Protocol I, cf. supra, p. 1113 and 1117;

    (9) [(9) p.1503] See introduction to this Part, supra, p. 1483;