Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
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.
[p.1365] Part II -- Humane treatment
4507 This Part is aimed at protecting persons who do not, or no longer, participate in hostilities against abuses of power and
against inhuman and cruel treatment which may be inflicted upon them
by the military or civilian authorities into whose hands they have
fallen. (1) As the Protocol does not provide for different categories
of persons who enjoy a special status, such as prisoners of war in
international armed conflicts, the rules laid down here apply equally
to all persons affected (2) by the armed conflict who are in the
power of the enemy (the wounded and sick, persons deprived of their
liberty, or whose liberty has been restricted), whether they are
military or civilians.
4508 Such rules are already contained, implicitly or explicitly, in common Article 3
; they are developed and supplemented in the
Protocol. These are inalienable (3) and fundamental rights, inherent
in the respect due to the human person: guarantees of humane
treatment (Article 4
-- ' Fundamental guarantees '), minimum
standards during detention (Article 5
-- ' Persons whose liberty has
been restricted ') and judicial guarantees (Article 6
-- ' Penal
4509 The above-mentioned articles bear the mark of international human rights law. In fact the ICRC, in drawing up its draft articles, and
subsequently the Conference, were inspired by the Covenant on Civil
and Political Rights.
4510 These fundamental guarantees constitute a minimum standard of protection which anyone can claim at any time, and they underlie the
whole system of human rights. As the Protocol has its own field of
application, it was important that it should include these
guarantees, properly adapted and supplemented to match the
circumstances for which the Protocol is intended.
4511 This Part contains virtually all the irreducible rights of the Covenant, i.e., those from which there is no possibility of
derogation, even in time of public emergency threatening the life of
the nation. (4) It also reiterates the judicial guarantees which are
not part of that minimum protection, but which are of particular
importance in situations of armed conflict; it was therefore all the
more important to include [p.1366] these in the Protocol. They
include the presumption of innocence, the right of the accused to be
present at his trial, and the principle that no one can be compelled
to testify against himself (Article 6
-- ' Penal prosecutions, '
paragraph 2(d), (e) and (f)). Thus there is some homogeneity as to
both form and substance between these fundamental rules of protection in the Protocol and in the Covenant.
4512 During the debates in the Diplomatic Conference a great many delegates systematically referred to the corresponding rules of the
Covenant which they wanted to include in the Protocol as they were.
This concern met the desire to establish guarantees at least
equivalent to those granted by human rights instruments, so as not to
be out of line. It played an important part with regard to the form
and substance of Part II. It was responsible for bringing about a
degree of uniformity between international rules of protection which
impose limitations on national legal systems.
4513 In addition, human rights and humanitarian law, which are separate legal systems each with its own field of application and
mechanisms, exist concurrently. (5) This uniformity and convergence
serve to reinforce the protection of the human person.
4514 Finally, it should be noted that the same non-derogable core of rights contained in this Part is also contained in Article 75
Protocol I ' (Fundamental guarantees). ' All persons who do not
benefit from more favourable treatment under the Conventions or that
Protocol enjoy the protection of that article.
' S.J. '
* (1) [(1) p.1365] These may be ' de jure ' or ' de facto ' authorities;
(2) [(2) p.1365] See commentary Art. 2, para. 1, supra, p. 1359;
(3) [(3) p.1365] The term "inalienable" means not only that the rights cannot be taken away, but also that they cannot
be renounced. See ' Commentary I, ' pp. 77-85 (Art. 7);
(4) [(4) p.1365] Covenant, Art. 4, para. 1;
(5) [(5) p.1366] See Resolution 2675 (XXV) of the United Nations General Assembly. See also the commentary on the
second paragraph of the Preamble, supra, p. 1339. Such
concurrent application is of course a factor which has to
be taken into account to the extent States are bound by
the various instruments;