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Legal Management of Internal War: The 1977 Protocol on Non-International Armed Conflicts

Published online by Cambridge University Press:  27 February 2017

David P. Forsythe
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Extract

At the Diplomatic Conference on Humanitarian Law held in Geneva from 1974 to 1977, it was pointed out that eighty percent of the victims of armed conflict since World War II have been created in noninternational armed conflict. Whatever the precision of this estimate, as of the mid-1970’s a number of important actors in world affairs were concerned about destruction of human values in internal war and sought restraints on that form of violence. This concern produced, as of June 10, 1977, a Protocol to the Geneva Conventions of August 12, 1949 relating to the protection of victims of noninternational armed conflict.

Type
Research Article
Information
American Journal of International Law , Volume 72 , Issue 2 , April 1978 , pp. 272 - 295
Copyright
Copyright © American Society of International Law 1978

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References

1 See e.g., the statement by the delegate of the Federal Republic of Germany, quoting Red Cross sources, CDDH/I/SR.23, at 10. According to a Soviet delegate, the figure should be 90%. CDDH/I/SR.34, at 16.

2 Final Act, June 10, 1977. UN Doc. A/32/144 (1977). Protocol II. The text of Protocol II and Protocol I relating, to the protection of victims of international armed conflict is reprinted in Official Documents section, infra p. 457 and 16 ILM 1391 (1977).

3 Against the background of resolutions passed by the Red Cross Conference and greatly stimulated by state interest in humanitarian law at the UN Conference in Teheran and at the UN General Assembly, the International Committee of the Red Cross (ICRC) held a series of preparatory meetings with individual and governmental experts, then presented two draft Protocols—the first pertaining to international and the second to noninternational armed conflict—to a Diplomatic Conference convened by the Swiss Government in 1974.

4 Higgins, , International Law and Civil Conflict, in International Regulation of Civil Wars 169 (Luard ed. 1972)Google Scholar.

5 See especially The International Law of Civil War (R. Falk ed. 1971).

6 CDDH/III/286, at 30. This is the 1975 Draft Report of Committee HI of the Conference, written by R. R. Baxter and George Aldrich of the U.S. delegation and approved by that Committee.

7 In addition to Falk, see Law & Civil War in the Modern World (J. N. Moore ed. 1974) [hereinafter MOORE].

8 The subject is not exactly clarified by the Protocol&s Preamble which states, inter alia: “Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person, … Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience…. “

9 Farer, , The Laws of War 25 Years After Nuremberg, Int. Conciliation, No. 538, at 31 (1971)Google Scholar.

10 See especially James E. Bond, The Rules of Riot 51 and passim (1974). Certain acts, such as murder and the taking of hostages, are clearly prohibited.

11 CDDH/III/SR.32, at 9.

12 CDDH/I/SR.29, at 9.

13 Taubenfeld, The Applicability of the Laws of War in Civil War, in Moore, supra note 7, at 516.

14 Markham, “Cry Lebanon,” N. Y. Times, Nov. 9, 1975 (Magazine), at 21.

15 At the time of writing, 140 states have ratified or adhered to the 1949 Conventions with no reservations to Article 3. See C. Pilloud, Reservations to the Geneva Conventions of 1949, at 12-13 (1976).

16 See Greenberg, , Law and the Conduct of the Algerian Revolution, 11 Harv. Int. L.J. 37 (1970)Google Scholar.

17 Veuthey, , Les conflits armés de character non-internationals, in Current Problems of International Law (Cassese, A. ed. 1975)Google Scholar.

18 Letter to this author, dated April 14, 1975, from Major Gen. George S. Prugh, Judge Advocate General, USA. It was my good fortune to serve as the’ staff judge advocate at Headquarters, Military Assistance Command, Vietnam, from November 1964 until July 1986 … My office, as Staff Judge Advocate, US MACV, was charged with serving as technical adviser to my counterpart in the Army of the Republic of Vietnam. I initially endeavored to persuade him that the standards of Article 3 GPW [Geneva Prisoners of War Convention of 1949], should be applied and I believe that he was able to achieve this in large measure, although this was admittedly a difficult task … I observed the actions of the RVN [Republic of Viet Nam] Director of Military Justice and his substantial efforts to comply with the applicable law, even though it was not clear nor had it been announced officially by the RVN officials that Article 3 was applicable during this period before August 1965…

19 The information in the chart is based on ICRC publications, as well as on academic, newspaper, and interview sources. The author believes that subjects such as the formal acceptance of law and ICRC visits to detainees are fully accurate. The author admits that the subject of “possible Common Article 3 situations” is one on which there may be differences of opinion, certainly with regard to encompassing dates. The author presents this chart as a tentative step in a new direction of research, not as the final word on the subject.

Notes to the Chart: a The author makes no attempt to assess the duration of applicability. b Explicit inference, see text, supra.

c Explicit claim to action by individual officials, see text, supra

The author has made no attempt to establish whether the ICRC stated its view on applicability to the government or to establish the relevance of the four Conventions of 1949 in colonial situations. In some cases ICRC visits may have preceded or continued after the dates given. Thus the visits were not always coterminous with a situation possibly governed by Common Article 3. The information on ICRC visits comes through the courtesy of that organization.

e ICRC assistance, but no detention visits.

f ICRC barred from visits 1967-69.

g Portugal fully recognized the applicability of the Conventions after 1974.

h ICRC visits interrupted during major violence.

i ICRC visits not permitted in Kurdistan.

i ICRC visits not permitted in Asmara during certain periods. There is at least one possible situation falling under Common Article 3 in which the ICRC has not made any official visits, viz. the Sudan

20 Bond, supra note 10, at 60.

21 Veuthey, supra note 17, at 233-34.

22 On this score the facts are not in doubt. See, inter alia, H. Thomas, The Spanish Civil War (1961).

23 See Greenberg, supra note 16 and Forsythe, Humanitarian Politics: The International Committee of the Red Cross 147-52 (1977).

24 See Taubenfeld, supra note 13; Veuthey, supra note 17; Bond, supra note 10; Falk, supra note 5; Luard, supra note 4; and Forsythe, , Law, Morality, and War After Vietnam, 28 World Politics 450 (1976)CrossRefGoogle Scholar.

25 “If it were not regarded as wrong to bomb military hospitals, they would be bombed all of the time instead of only some of the time.” Nuremherg and Vietnam 40 (1970).

26 ICRC, Draft Additional Protocols: Commentary (1973)

27 CDDH/402.

28 CDDH/SR.49, at 4.

29 Canada had submitted a simplified protocol in 1975, CDDH/212.

30 CDDH/SR.49, at 5.

31 S1 Id.

32 See Forsythe, ; The 1974 Diplomatic Conference on Humanitarian Law, 69 AJIL 77 (1975)CrossRefGoogle Scholar. Cf. Baxter, Humanitarian Law or Humanitarian Politics, 16 HAHV. INT. L.J. 1 (1975).

33 CDDH/I/SR.23, at 16.

34 CDDH/I/SR.29, at 18.

35 CDDH/I/SR.24, at 10.

36 The Norwegian statement as heard by the author did not find its way into the official records of the meeting as found in CCDH/SR.49.

37 CDDH/I/SR.34, at 16.

38 CDDH/SR.49, at 7. There was a view among certain Western delegates, including American ones, that the Soviet Union only pretended to be a “friend” of Protocol II and was really interested in loading on to the Protocol so many obligations that it would be rejected. The author does not subscribe to this view in the light of these statements plus others. See infra notes 45 and 87. It is true that the Soviet Union wanted a high threshold and no strong means of supervision. But in the last analysis the Soviet Union went out of its way to engage in public debate with Third World opponentsProtocol, action indicating clear support for the Protocol especially when compared with the more general Soviet pattern of supporting the Third World on many issues related to Protocol I (e.g., Article 1 on material scope and Article 47 on mercenaries).

39 CDDH/SR. 49, Annex, 6-7.

40 CDDH/I/SR.29, at 9. Iraq endorsed the second Protocol at the 1977 session. CDDH/SR.56, at 10_11.

41 See CDDH/SR.56 and SR.58. Approximately twenty Third World states indicated they would have abstained had the adoption of Protocol II, even in the Pakistani version, been put to a vote.

42 Some final statements were extreme. The Philippine delegation said that it “adheres strongly to the principle that it is the sovereign right of every State to deal with rebel movements within its territory in any manner it deems fit… .” CDDH/SR.56, Annex, 11.

43 CDDH/SR.52, at 17.

44 CDDH/402.

45 Switzerland, Italy, and Cyprus sought retention of draft Article 10(5), as did Norway and the Holy See. The Soviet coalition fought for the retention of Article 10(7) concerning amnesty at the end of hostilities for those participating in the conflict. CDDH/SR.50, at 9ff.

46 CDDH/402. For background, see ICRC, Draft Additional Protocols: Commentary 140 (1973). And ICRC, Conference of Government Experts, I, Basic Texts 41 (1972).

47 There was considerable debate in committee as to whether the ICRC or NationalRed Cross Societies should be the visiting agency. This debate has relevance for the future, for it is possible some Eastern European or Third World governments in an internal war might utilize National Red Cross Societies to inspect places of detention. See CDDH/I/235, CDDH/I/323, CDDH/I/324, CDDH/I/SR.32, at 31ff. This would cause concern by others, who would view that Society as progovernmental, not impartial, and thus an impediment to ICRC visits. See the Mexican statement in CDDH/I/SR.32, at 32. The author shares the Mexican concern. See Forsythe, , The Red Cross as Transnational Actor, 30 Int. Org. 607 (1976)CrossRefGoogle Scholar.

48 CDDH/402 (emphasis added).

49 Several delegations believed that, on the subject of civilian protection and assistance, something important had been lost in the shrinking exercise; but the dominant view was that, the important legal principles were contained in the broad language of the Pakistani draft. See the debates in CDDH/SR.51 and SR.52, reflecting the unhappiness of Norway and the Holy See, among others.

50 CDDH/I/SR.23, at 13, statement by the Dutch delegation.

51 There is also a personal field of application for the Protocol, found in Article 2. The scope is thus defined in both material and personal terms. The significance of the personal field is two-fold. First, the protection of the Protocol is afforded to “all persons affected by an armed conflict” of an internal nature, without “adverse distinction.” Second, persons “restricted for reasons relating to such conflict” retain the protection of the Protocol not just until the end of the violence but “until the end of such restriction.“

52 ICRC, Draft Additional Protocols: Commentary 132-33 (1973);

53 ICRC statement in CDDH/I/GT/33, at 3-4. s3 ICRC, Draft Additional Protocols 33 (1973).

54 CDDH/I/SR.24, at 10, 12

55 For-Brazil's position in Committee I and a record of those supporting Brazil, see CDDH/I/SR.29, at 4ff., and CDDH/I/238. In plenary, Colombia raised the same point and picked up support before deciding not to press for an amendment. CDDH/ SR.49, at 11-ff.

56 CDDH/I/SR.23, at 7-8.

57 See the statement to this effect by Pakistan in CDDH/I/SR.23, at 20. While Pakistan did not press certain early amendments to a vote, the proposals and statements are indicative of reasoning and dispositions found in parts of the Third World.

58 The formal legal argument is well presented by the ICRC spokesman in CDDH/ SR.49, at 13-14. The argument persuaded the Colombian delegate to yield. Id. 14-15.

59 According to Ecuador, “it is for the States not involved in the conflict to qualify such circumstances.” CDDH/SR.49, Annex, 5.

60 CDDH/I/SR.23, at 17.

61 This view was expressed only in private, not officially at the Conference. Interview data.

62 Views differ on the answer to this question. Interview data. A relevant document is CCDH/GT/33, at 1-2.

63 On confused comments, see the statements in CDDH/I/SR.23, at 2-9.

64 CDDH/I/SR.23, at 17.

65 CDDH/II/SR.40, at 25.

66 See CDDH/I/SR.59, especially at 15-17.

67 Id., at 20.

68 Id., at 17-18.

69 A spokesman for the Dutch delegation, one of the more progressive, said “his delegation welcomed the fact that [the Protocol] did not provide for any implementation machinery.” CDDH/I/SR.23, at 14.

70 CDDH/I/SR.59, at 18. It had been the Western group that was most strongly in favor of a strong Protecting Power system to help supervise the law of international armed conflict at the second session. See Forsythe, Who Guards the Guardians, 70 AJIL41 (1976).

71 CCDH/I/SR.59, at 19.

72 See CDDH/I/SR.62. The vote in committee was 34-17-2. See also CDDH/I/ 323, at 3-4.

73 See Fohsythe, supra note 23, at 8, 29, 57-108.

74 Committee draft Art. 34, CDDH/402.

75 Adopted Art. 19; Conference Resolution 21 (IV). Dynamic checking on dissemination by the ICRC could be an effective form of indirect supervision of the law's application.

76 See especially Moore, supra note 7.

77 See further, Humanitarian Intervention and the United Nations (R. Lillich ed. 1973).

78 N.Y. Times, Nov. 2, 1975, at 14.

79 See CDDH/I/SR.29, at 23-24 and CDDH/I/SR.30, at 2-3, 11.

80 Both Poland and Mexico, supportive of India on other subjects, spoke out against the Indian view on suspending the Protocol as a sanction for interference. CDDH/I/ SR.30, at 8, 9.

81 The subject is concisely reviewed in Baxter, Jus in Bello Interne, in MOORE, supra note 7, at 526-27. It is a subject that pertains to Article 1, as well as to the norms discussed here.

82 See BOND, supra note 10, at 60.

83 For background, see CDDH/I/317/Rev.2, at 2-3.

84 ICRC, Draft Additional Protocols 38 (1973).

85 CDDH/II/SR.41, at 3.

86 CDDH/II/SR.40, at 27.

87 CDDH/II/SR.41, at 16-17. 88 CDDH/I/SR.34, at 6. Regarding draft Article 10 and penal provisions, India proposed that: “The application of the present article shall not prejudice the right of a State to apply its national laws.“

88 The general subject has been well treated by Coplin, William D., International Law and Assumptions About the State System, 17 World Politics 615 (1965)CrossRefGoogle Scholar. Relevant is the comment at the Conference by a West German delegate: “[T]he legal position of the individual had also changed … it was only now becoming clear that the individual had a part to play as a subject of the new legal order.”

88 CDDH/I/SR.23, at 10. But according to an Iraqi spokesman: “It must be left to municipal law to organize the relationship between citizen and State.” CDDH/II/SR.32, at 17.

90 CDDH/I/SR.24, at 17, for example.

91 CDDH/IH/SR.32, at 12.

92 See Forsythe, supra note 23, at 156.

93 Both France and Switzerland challenged efforts by the Provisional Revolutionary Government of Algeria to adhere to the Conventions. See Greenberg, supra note 16, at 64-66. Switzerland also challenged the attempted adherence by the Smith government in Rhodesia.

94 For a list of these “approved” organizations, see Final Act 6. Israel refused to sign the Final Act, apparently because the PLO could also sign.

95 George Habash, leader of the Popular Front for the Liberation of Palestine, was so quoted in N.Y. Times, Sept. 11, 1970, at 15. But more generally, see J. Fheymond & T. Hentsch, Limites a La Violence (1973).

96 See further Amnesty International, Report on Torture (1975).

97 CDDH/I/SR.23, at 13.

98 CDDH/I/SR.24, at 14.

99 CDDH/I/SR.22, at 4. This document contains a concise and useful overview of ICRC views toward its draft Protocol.

100 Many states regard enforcement mechanisms as either undesirable or unobtainable. The view of some Western delegations, notably Canada and to a lesser extent the United States, was that this problem could be counteracted by producing a Protocol with a very low threshold—viz., a very broad scope. This was thought to make it very difficult for a government to avoid applying the Protocol in appropriate factual situations. See the Canadian draft Protocol and explanatory notes in CDDH/212. But see the list supra p. 275 of “possible Common Article 3 situations” in which the government had not admitted the relevance of the law.

101 Bond, supra note 10, at 49..

102 Norway and the Philippines were supportive of this idea. Such an idea not only reduces jurisdictional complexity but also simplifies the law that must be taught to battlefield participants if legal regulation is to be effective.