Relevant and practical: The Additional Protocols at 40
40th Anniversary of the Additional Protocols: Setting the Scene
34th Annual Seminar for Diplomats Accredited to the UN, New York, Statement by Philip Spoerri, Permanent observer of the ICRC to the United Nations.
It is my pleasure to be here today to mark the anniversary of the 1977 Additional Protocols (APs) and the impact they have had on how armed conflicts are fought. Forty years ago, the Protocols codified basic principles and rules of international humanitarian law (IHL). They also developed new rules to reflect the changing face of modern conflicts. Today, these contributions still stand at the front line of contemporary conflicts, protecting civilians from the worst excesses of war and guiding parties to armed conflicts as they navigate new realities.
To set the scene for the 40th Anniversary of the APs, my remarks will cover four topics. I will first take you back to the geopolitical context leading to the adoption of the Protocols to reflect on the nature of the "new wars" and the gaps that the Protocols sought to regulate. With this in mind, I will then address the main features of the Protocols – in particular in light of the objectives they set out to achieve. Third, I will highlight some of the Protocols' key achievements since 1977 – many of which have daily significance in the lives of victims of armed conflict – and finally, I will set out the vital – and continued – relevance of the Protocols today.
1. Historical context
Turning to the historical context defining the Protocols, we will look at the following aspects: the decolonization conflicts, the proliferation of new States and non-international armed conflicts, and rapid advances in means and methods of warfare.
In the decades following the Second World War, wars of national liberation erupted throughout Africa and Asia. These conflicts were characterized by asymmetric warfare, where guerrilla fighters faced organized, well-equipped armies with superior weapons and so turned to leaders such as Mao Tse-Tung, who (symptomatically) advised that "a freedom fighter must be in the civilian population as a fish in water." Furthermore, the spike in the number of non-international conflicts (NIACs), which quickly overtook inter-State conflicts, left civilians as the main victims, largely beyond the protective scope of IHL with the exception of Common Article 3 of the 1949 Geneva Conventions.
The context was also marked by new realities on the battlefield. The development of new weapons technologies, for instance aerial weapons and rockets allowing strikes virtually anywhere and subject to few concrete regulations, as well as the Cold War arms race, threatened to extend the battlefield ad infinitum. In the face of this, clarification and consensus was needed regarding the authorized methods and means of warfare. Beyond this, the rules regulating the conduct of hostilities more generally cried out for codification. This conviction of the ICRC was shared by the United Nations (UN) General Assembly, which in 1968 emphasized the need for additional humanitarian conventions, or for revising existing law to better protect victims and to limit or prohibit the use of certain means and methods of warfare.
It was in this context and faced with these challenges that the development of IHL was seen as critical and that States adopted the APs in 1977. Indeed, as concluded by the ICRC's Presidency Council in 1968 when surveying the horrors of the Vietnam War "The Geneva Conventions, in the present circumstances, are like an island in the middle of a swamp and will continue to sink slowly but surely if the Committee does not react."
2. Objective of the Additional Protocols
I will now move to the second part of my presentation on the objectives and content of the Additional Protocols.This section will focus on four key aspects: the universal reaffirmation of IHL, the regulation of the conduct of hostilities and of non-international armed conflicts, and the new realities of warfare.
During the 1974-1977 Diplomatic Conference, one of the ICRC's main aims – yet one all too often overlooked – was to reaffirm existing principles of IHL which were already part of conventional and customary international law but which had been negotiated before the era of decolonization and the resultant tripling in the number of States.
With this objective in mind, the universality of participation in the negotiation of the Protocols was unprecedented. While the 1949 Conventions were largely negotiated by European States, all States Parties to the Geneva Conventions or Members of the UN were invited to attend the Diplomatic Conference at which the Protocols were negotiated. Ultimately, 124 States participated, representing more than double the States that took part in the Diplomatic Conference to draft the 1949 Geneva Conventions (59). The concerns and priorities of newly independent States – including the classification of wars of independence, the treatment of guerrilla fighters, the illegality of apartheid, and the status of mercenaries – drove the negotiation agenda. These found expression in the Protocols while remaining true to a universally accepted humanitarian goal. Tellingly, although the authentic texts of the 1949 Geneva Conventions were English and French, the Protocols are authentic in English, Arabic, Chinese, Spanish, French, and Russian. Thus, new States gained a greater sense of ownership of IHL, and the reaffirmation of basic IHL principles by the wider international community of the 1970s was an important goal in itself.
As a second objective of the ICRC, the APs aimed to codify and progressively develop essential rules on the conduct of hostilities. In 1949, States were not able to agree on these rules, in particular due to the irreconcilable differences on nuclear weapons. In addition, Hague Law dealing with hostilities and the use of weapons had not undergone any significant revision since 1907. Thus, the rules on the conduct of hostilities were due a healthy dose of universal scrutiny, codification and development.
Among the most important rules contained in the Protocols are those on the protection of the civilian population and objects against the effects of hostilities. For instance, Additional Protocol I (API) includes definitions of the key notions of "combatant", "armed forces", "military objectives" as well as of "civilians" and "civilian objects." It articulates key principles to guide military targeting, including the principles of distinction, proportionality and precautions – all of which save lives on battlefields around the world every day. It also prohibits attacks on the civilian population and on civilian objects.
Thirdly, recognizing the increase in NIACs, another important contribution of the Protocols was to secure greater protection for civilians affected by these situations. As the first-ever treaty devoted exclusively to the protection of people affected by NIACs, APII elaborated upon Common Article 3 and expressly extended essential rules of IHL to these conflicts. For example, APII strengthens the fundamental guarantees enjoyed by all persons not, or no longer, taking part in the hostilities; prohibits attacks on civilians; regulates the forced movement of civilians; and protects all medical personnel, units and means of transport, whether civilian or military. While less developed than the law applicable to IACs, and despite its circumscribed field of application, APII was adopted by consensus and represents a paradigmatic step forward towards ensuring that civilians affected by NIACs benefit from the fundamental protections in place in IACs.
Finally, the Additional Protocols sought to take account of new realities of warfare in an era marked by wars of liberation, guerrilla tactics and acts of terror. At the 1974-1977 Diplomatic Conference, newly independent States argued for greater protections for guerrilla fighters who, in opposition to better-equipped State armies, would be handicapped if they were to employ traditional methods of set-piece battle and uniform. A compromise solution was found: guerrilla warfare was accommodated in the formulation of Article 44 of API, which contains the exigency that those fighters must carry arms openly when attacking their opposition.
The Protocols also strengthen the rules addressing terrorism in armed conflicts. In addition to an express prohibition of all acts aimed at spreading terror among the civilian population, the Protocols proscribe a number of acts that could be considered terrorist attacks. These include attacks on civilians and civilian objects; indiscriminate attacks; attacks on places of worship; attacks on works and installations containing dangerous forces; and the taking of hostages.
3. The success and achievements of the Additional Protocols
After addressing some of the Protocol's main features, I want to highlight some of their concrete successes over the last decades. Specifically, I will focus on the APs ratification record, their contribution to customary international law formation, and their catalytic impact on the development of international law and on the fight against impunity. Finally, I will provide some tangible examples of how we at the ICRC see the Protocols in action, saving lives on the ground, day in and day out.
Regarding ratifications – the Protocols are amongst the most widely ratified or acceded to international instruments, with 174 States Parties to API and 168 to APII. As such – together with the Geneva Conventions – they form IHL's foundations and are cornerstones for the protection and respect of human dignity in armed conflict. Unlike the 1949 Geneva Conventions however, the Protocols are not universally ratified. On this 40th anniversary, we would thus like to take the opportunity to invite States not yet Party to accede to Protocols I and II. The universal ratification of these instruments is an important step to improve the protection of persons affected by armed conflicts worldwide.
The Protocols also contributed to the formation of customary law. Although these elements alone are not sufficient for a customary rule to come into effect, the broad participation in the negotiation of the APs and the fact that the majority of its provisions were adopted by consensus were crucial factors. In fact, of the 150 articles in the Protocols on substantive matters, only 14 required a formal vote. Many of the rules adopted by consensus contributed to the formation of customary IHL rules which bind all States – including those not party to the treaties. Significantly, the crystallization of customary law has particularly impacted the law applicable to NIACs. For example, the ICRC's Study on Customary IHL identifies 161 rules – 149 of which also apply in NIACs.
Furthermore, the Protocols established the groundwork for, and inspired the development of, multiple weapons treaties. During discussions at the 1974-77 Diplomatic Conference on Article 35 of API, which establishes that the right to choose methods and means of warfare is not unlimited, delegates decided to convene a special conference under the UN framework. Its aim would be to elaborate what ultimately became the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, which prohibits several particularly cruel weapons or restricts their use. A range of other treaties have since been concluded to prescribe certain weapons, including the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines (1997). There is no doubt that the adoption of the Additional Protocols contributed to these processes, and that the weapons treaties that have proliferated since 1977 reduce the pain and suffering of victims of war every year.
On a related note, the Protocols also made milestone contributions to international criminal law and the fight against impunity. API expanded the list of grave breaches of IHL incurring individual criminal liability in IACs. APII blazed a trail for international law in the realm of NIACs, clearing a path for the fight against impunity that is of particular relevance given the prevalence of NIACs today. Although APII does not contain a provision stipulating individual criminal liability for war crimes, in 1994 the Security Council considered that criminal responsibility for violations of this Protocol was implicit in the obligations it established, and gave the International Criminal Tribunal for Rwanda jurisdiction over such violations. One year later, the ICTY in its momentous Tadic decision held that individual criminal responsibility existed in respect of violations of the customary law of NIACs. Today, the statute of the International Criminal Court details a list of serious violations of the laws and customs of NIACs. Finally, many States have adopted normative frameworks (over 50 States criminalize violations of API) and created strong juridical mechanisms and effective measures to prevent serious violations of IHL committed in both types of conflicts and to prosecute those responsible for committing them. Some States have also harmonized legal obligations relating to repression, regardless of whether serious violations of IHL are committed in IACs or NIACs.
Finally, and perhaps most concretely, the real triumph of the APs has been their ability to translate in practice: the last forty years have proven that – far from ivory tower idealism – they are battle-worn tools that make a tangible difference on the ground. I would like to share just a few examples of this.
As peace was negotiated in Colombia at the close of last year, the Final Agreement between the State and the FARC, and the subsequent Amnesty Law, largely drew from Article 6(5) of Additional Protocol II (APII). This is a striking example of national integration of the "widest possible amnesty" recommended by APII for persons who participated in the conflict (but in doing so incurred no liability for international crimes). This experience may serve to inform other peace processes when assessing how transitional justice can facilitate the road to peace. The prospect of using amnesties in the future is also a strong – and perhaps the most persuasive – incentive for combatants in other conflicts in Colombia (and beyond) to comply with IHL.
In addition, in conflicts today, the conduct of hostilities is frequently improved as armed forces work to apply IHL in their targeting. For example, many military manuals, including those of States not, or not at the time, party to API, lay down the principle of proportionality – including those of Indonesia, Israel, Kenya, the Philippines, the United Kingdom, and the United States. The rules in the APs related to relief actions and civilian medical personnel, facilities and transports have contributed to the provisions of vital assistance to victims of armed conflicts. Today, the ICRC is present in more than 80 countries worldwide. Over the course of a year the ICRC can support upwards of 50,000 weapon-wounded patients, as well as 148 emergency first-aid posts located near combat zones. These are all examples of the Protocols in action.
4. The continued relevance of the Additional Protocols
In my final point today, as we mark the 40th anniversary of the Protocols, I want to discuss their continued relevance to modern armed conflicts (as they say – life begins at 40!).
Today, we often hear three main concerns about IHL:
- "The law is not adequate to the nature of armed conflict today."
- "The law is not applicable in the context of fighting terrorism."
- "The law imposes unfair symmetric obligations on parties in asymmetric conflicts with proliferating armed non-state actors."
These should not be mistaken as new. In fact, the existing challenges to IHL, including the increase in NIACs and rapid advances of modern technology, are precisely issues that the Protocols sought to address. Similarly, the challenges posed by asymmetric conflicts and the fight against terror, which we regularly hear invoked today, also drove the negotiations of the Protocols. With this in mind, efforts to dismiss the APs as a touchstone in armed conflicts today – including in certain counter-terrorism operations – is often a tactic to move the goalposts and masks an unwillingness to apply time-tested rules and principles to contemporary armed challenges. Our experience shows that the failure to impose limits on means and methods of warfare may prompt excesses in return, and in this way contribute to continuing cycles of armed conflict that will spiral through generations.
As a result, the ICRC remains convinced that the fundamental challenge facing us today is not the relevance of the existing rules of IHL, but rather improving the implementation of these. We therefore call on States to ensure that the laws of war, as they are found on paper, are systematically translated into improved behaviour on the ground by parties to armed conflicts.
In this spirit, I would like to recall that the ICRC and Switzerland have been facilitating a process with States aimed at strengthening IHL implementation mechanisms. In the first, consultative phase, which took place from 2011-2015, it became clear that IHL is a very rare body of law that does not provide a forum in which States could meet regularly to discuss IHL application and that this gap persists. In the current, inter-governmental phase, which started last year, States are revisiting the idea of a potential forum of States and will also examine how the International Conference of the Red Cross and Red Crescent and regional forums could also be better utilized to improve respect for IHL. These avenues should be considered as complementary. We invite States to take an active part in the inter-governmental process that is being co-facilitated by the ICRC and Switzerland, to share their views, and to invest the necessary political will to achieve a common understanding on what would be an effective way forward.
Finally, although achieving greater respect for the APs is crucial, this does not mean that there is no scope for further clarification or development. For instance, despite the existence of rules pertaining to NIACs in Common Article 3 and APII, there is still a disparity between IHL governing these situations as compared to IACs, for instance with regard to the deprivation of liberty. Furthermore, difficulties remain in the application and interpretation of the law, in particular in response to new threats, new actors and new means and methods of warfare. Notably, debates continue on the interpretation of certain key legal concepts crucial for the protection of civilians and civilian objects, such as the principle of proportionality. Differing interpretations ultimately result in decreased protection. As a result, it is necessary to continue reflecting on these, and other, issues, in order to reaffirm, clarify or develop IHL, where needed.
In closing, I wish to leave you with a final observation. The Additional Protocols were negotiated and agreed in the thick of Cold War polarization, amid nuclear-level anxiety, and at a table where newly independent States sat facing their recent colonial powers. The atmosphere, ladies and gentlemen, was not an easy one, and remembering this is crucial as we discuss the relevance of the Protocols to contemporary conflicts. Despite the geopolitical landscape, States in the 1970s worked hard to clarify the principles of IHL in practice. The Protocols, and the body of law they have contributed to, are thus not the product of humanitarian idealism – they strike a balance between military necessity and humanity. Furthermore, the Protocols are not relics of a bygone, simpler time in history – rather, they are carefully-negotiated products of experience and hard-won compromise, based on the complexities of combat, and they remain very much relevant today. So I ask you and your governments three things: First, please accede to the Protocols if you have not done so already, or encourage other States to do so. Second, please work to implement, apply and enforce the APs in today's armed conflicts because they help combatants and civilians alike. Please respect and ensure respect for these important laws. And, third, please speak up for the Additional Protocols and their rules - for their very practical relevance to today's conflicts and for the humanitarian impact they have on people affected by armed conflict every single day.