Protocol I
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
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[edit] 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 entered into force on December 7, 1979 (six months after its adoption by the conference) and is binding for a country six months after it has ratified it. As of 14 January 2007 it had been ratified by 167 countries, with the United States, Israel, Iran, Pakistan and Afghanistan and Iraq being notable exceptions. However, the United States, Iran and Pakistan signed it on 12 December 1977 with the intention of ratifying it.
The international community outside of the U.S., generally accepts that the additional Geneva Conventions protocols are obligatory on all parties worldwide, as they have become part of customary law.[citation needed] The U.S. main objection is that the protocol extends Geneva Conventions protection to those it regards being "unlawful combatants" and terrorists. The U.S. has to date not ratified Protocol I although much of its central precepts have been incorporated into the U.S. Army's Field Manual, The Law of Land Warfare. For a list of current Protocol I signatories see: http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P (also see Part III Article 44).
[edit] 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 bearing 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.
[edit] Part II WOUNDED, SICK AND SHIPWRECKED
- Section I.-General protection
- Section II.-Medical transportation
- Section III.-Missing and dead persons
[edit] Part III METHODS AND MEANS OF WARFARE COMBATANT AND PRISONER-OF-WAR STATUS
[edit] Section I.-Methods and means of warfare
[edit] 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"[1] 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;".
[edit] Article 44.-Combatants and prisoners of war
The most controversial section of Protocol 1 is Article 44, especially Paragraphs 3 - 5. It is the primary cause for several United States of America administrations not ratifying this protocol, due to its treatment of captured insurgents as prisoners of war.
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. This sentence appears to give lawful combatant status to guerrillas who are not wearing a military uniform that distinguishes them from the civilian population. 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.
It should be noted that many nations were founded by revolutionaries or insurgents, who, up until the adoption of Protocol I by civilized nations, could be treated as unlawful combatants, and subjected to military tribunals, or summary execution. One example of a such a nation founded by freedom fighters might be the United States of America, which was founded in the American Revolutionary War. In particular, American revolutionaries (viewed by the United Kingdom as insurgents and traitors) often wore civilian clothes and retired to their homes after battles. Due to this, they were subjected to the outrages of Hessian mercenaries, and were even the victims of the brutalities of British commanders such as Banastre Tarleton, who summarily executed American rebels as traitors, and is known to American history as "Bloody Ban" or "Ban the Butcher". This Protocol prevents such outrages against guerrillas who generally obey the laws of war (refraining from attacks against civilians & treating prisoners of war appropriately) but lack the official status of being members of the military of an internationally recognized government.
[edit] Section II.-Combatant and prisoner-of-war status
[edit] 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.
[edit] 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[1] not only excluded nuclear weapons, (see above), but it also included clarification on many points including one which states that In relation to Article 44 that the situation described in the second sentence of paragraph 3 of the Article can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1, and ... [that] the word 'deployment' in paragraph 3(b) of the Article as meaning 'any movement towards a place from which an attack is to be launched';
[edit] Further reading
- 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 90-247-2537-2
- "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 90-247-3460-6
[edit] See also
- Command responsibility
- Geneva Conventions
- First Geneva Convention of 1864 on the treatment of battlefield casualties
- Jus in bello
- Second Geneva Convention of 1906 on the treatment of casualties in war at sea
- Third Geneva Convention of 1929 on the treatment of prisoners of war
- Fourth Geneva Convention of 1949 on the treatment of civilians during wartime
- Protocol II, 1977 Geneva Convention amendment about the protection of victims in non-international armed conflicts
- Protocol III, 2005 Geneva Convention amendment about the adoption of the Red Crystal emblem
[edit] External links
- Committee of the Red Cross: Full text of Protocol I with commentaries
- List of countries that have ratified Protocol I
- List of countries that have signed but not yet ratified Protocol I
- International Review of the Red Cross, 1997 - No. 320 Special issue: 20th anniversary of the 1977 Additional Protocols
- President Reagan's message to the Senate on Protocols I & II
[edit] Footnotes
- ^ a b 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 ICRC
