Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I).

This article is a commentary, see for full text.

Introduction

Protocol I is an amendment to the Geneva Conventions.

Adopted on June 8, 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts presided over by Pierre Graber of Switzerland. The protocol enters into force on either December 7, 1979 (six months after its adoption by the conference), or six months after each party's ratification.

It has not been adopted by several nations, including the United States, Afghanistan and Iraq, and is thus not universally applicable. The U.S. objection is on the basis that it would extend Geneva Conventions protection to some unlawful combatants (see Part III Article 44).

Part I GENERAL PROVISIONS

Article 1. Paragraph 4 ... in which peoples are fighting against colonial domination and alien occupation and against racist regimes... could cause legal problems under international law:

• It does not state that the people who are fighting, have to be fighting within the laws and customs of war and any foreign military occupation (Including that of UN mandated occupations) are alien occupations.
• As there is no definition of what constitutes a racist regime, personnel to the party to the conflict which is later defined as a racist regime by an international court, may have followed orders in good faith with no coercion, which they at the time thought to be within international law, that turn out not to be. For example if a person is arrested and treated as a common criminal under the jurisdiction of a racist regime for baring arms against that regime, then the people involved in the imprisonment of that person will have broken international law, because they have not treated that person as a prisoner of war under this protocol.

Article 2.-Definitions

For the purposes of this Protocol:

(a) "First Convention", "Second Convention", "Third Convention" and "Fourth Convention"...

(b) "Rules of international law applicable in armed conflict"...

(c) "Protecting Power" means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol;...

Article 5. states that parties to the conflict must make sure that there is supervision by a "Protecting Power". This article makes sure that in a conflict there are people, not part of the conflict, to monitor the implementation of the Geneva Conventions by the Parties to the conflict. Before this article was introduced the Geneva Conventions implied that this should be done, but there was no explicit treaty obligation for the parties to allow monitoring.

Part II WOUNDED, SICK AND SHIPWRECKED

• Section I.-General protection
• Section II.-Medical transportation
• Section III.-Missing and dead persons

Part III METHODS AND MEANS OF WARFARE COMBATANT AND PRISONER-OF-WAR STATUS

Section I.-Methods and means of warfare

Article 35.-Basic rules

paragraph 3. states It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. In the case of threatening to retaliate in kind to weapons of mass destruction, this would seem to limit the use of atomic weapons to neutron bombs.

The United Kingdom, one of the declared nuclear powers, in a "Declaration made upon signature" stated "(i) That the new rules introduced by the Protocol are not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons;".

Article 44. -Combatants and prisoners of war

This is the most controversial section of Protocol I. More specifically the paragraphs 3 through to 5. It is the primary cause for US administrations not adopt this protocol.

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

( a ) During each military engagement, and

( b ) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 ( c ).

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.

This is a large extension of the laws of war because of the second sentence of paragraph 3. It has been generally accepted that to be a belligerent in a conflict one must be recognisable as such. As is stated in the first sentence, without such identification not only are belligerent occupation forces open to attack from combatants posing as civilians, but enemy civilians are more likely to be attacked by belligerent occupying forces who can use the legitimate legal defence that they thought they were engaging an enemy combatant. In general police are trained to asses the situation and only to fire if certain of their target's hostile intent, while soldiers are trained to asses a target and to fire if not certain of their targets peaceful intent.

Section II.-Combatant and prisoner-of-war status

Article 47.-Mercenaries

See the article Mercenary for a detailed discussion on "Article 47"

Article 47 is a good indication of international community's view on what constitutes a mercenary.

Declaration made upon signature

On signing an international treaty or convention, countries frequently enter reservations, or words to clarify their understanding of the document. For example the United Kingdom's declaration^{1977 Additional Protocols — short bibliography (by ICRC)}

• "New rules for victims of armed conflicts, Commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949", by M. Bothe, K.J.Partsch, W.A. Solf, Pub: Martinus Nijhoff The Hague/Boston/London, 1982, ISBN 9024725372
• "[ http://www.cicr.org/web/eng/siteeng0.nsf/iwpList526/AA9FC0E89F054EA6C1256C55004213D8 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949]" (eds) Sandoz Y., Swinarski C., Zimmermann B.; with the collaboration of Jean Pictet, C. Pilloud, J. de Preux, H. P. Gasser, C. F. Wenger, P. Eberlin and S. Junod, Pub ICRC/Martinus Nijhoff, Geneva, 1987, ISBN 9024734606

External links

• International Review of the Red Cross, 1997 - No. 320 Special issue: 20th anniversary of the 1977 Additional Protocols
• U.N. document on Protocol I
• President Reagan's message to the Senate on Protocols I & II

Footnotes

see Wikipedia:Footnote3

1. UK Declaration made upon signature - 12/12/1977 SOURCE: Corrected Letter of 28 January 1998 sent to the Swiss Government by Christopher Hulse, HM Ambassador of the United Kingdom. Link is to the web site Queen's University Belfast
2. ⇧ dito