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The 1977 Protocols: a landmark in the development of international humanitarian law

Published online by Cambridge University Press:  13 January 2010

René Kosirnik
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Extract

By adopting on 8 June 1977 the two Protocols additional to the 1949 Conventions, the States meeting in Geneva brought to a successful conclusion four years of arduous negotiations. The Protocols took four years, the Conventions only four months. Why such a huge difference?

In 1949, once the initial period of instinctive rejection of anything related to war had passed, a natural consensus emerged regarding the main evils which needed to be banned by law. Besides, the delicate subject of the rules governing the conduct of hostilities — the law of The Hague, as it is called, also part of humanitarian law — was left out of the discussions. It was also a time when the political map of the world was fairly monolithic, in the sense that the North still dominated the South, and East-West tensions had not yet escalated.

Type
20th anniversary of the 1977 Additional Protocols
Information
International Review of the Red Cross (1961 - 1997) , Volume 37 , Special Issue 320: 20th anniversary of the 1977 Additional Protocols , October 1997 , pp. 483 - 505
Copyright
Copyright © International Committee of the Red Cross 1997

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References

1 Best, Geoffrey, War and law since 1945, Clarendon Press, Oxford, 1994, p. 342 Google Scholar. The author is joint winner of the 1997 Paul Reuter Prize.

2 See the report submitted by the ICRC to the 21st International Conference of the Red Cross (Istanbul, 1969), published in the International Review of the Red Cross (IRRC), No. 100, 07 1969, pp. 343–352.Google Scholar

3 See in particular the comments by François Bugnion, Le CICR et la protection des victimes de la guerre, ICRC, Geneva, 1994, pp. 386–387.Google Scholar

4 Paragraphs 3 and 4 of Article 1 of Protocol I read as follows:

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations.

5 See Articles 43 and 44, Protocol I.

6 IRRC, No. 258, 05–06 1987, p. 250.Google Scholar

7 See Protocol I, Part III, Section I: “Methods and means of warfare” (Articles 35–42); Part IV: “Civilian population”, Section I: “General protection against effects of hostilities” (Articles 48–60).

8 On the role of the Conference, see Articles 8–11 of the Statutes of the International Red Cross and Red Crescent Movement.

9 See the Final Declaration of the Conference and the ICRC's Report on the protection of war victims, IRRC, No. 296, 09–10 1993, pp. 377–381 and 391–445.Google Scholar

10 See the Fourth Convention, Articles 1, 2, 3 and 146.

11 See the decision by the International Criminal Tribunal for the Former Yugoslavia: The Prosecutor v. Dusko Tadic a.k.a. “Dule”: Decision on the defence motion for interlocutory appeal on jurisdiction, of 2 October 1995, Case No. IT-94–1-AR72; and the article on the same subject by Marco Sassòli, “La première décision de la chambre d'appel du Tribunal pénal international pour l'ex-Yougoslavie: Tadic (compétence)”, Revue générale de droit international public (RGDIP), No. 1, 01–02 1996, pp. 101–134 Google Scholar

12 Bothe, M., Partsch, K.J., Solf, W.A., New rules for victims of armed conflicts. Commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949, Nijhoff, The Hague/Boston/London, 1982, pp. 604 ff.Google Scholar

13 See, for example, Vasak, Karel (ed.), The international dimensions of human rights, 2 volumes, UNESCO/Greenwood Press, Paris/Westport, 1982.Google Scholar

14 Rogers, A.P.V., Law on the battlefield, Manchester University Press, 1996, p. 156 Google Scholar. The author is joint winner of the 1997 Paul Reuter Prize.

15 Principles qualified as customary law in the Tadic decision, see supra, note 11.

16 Many authors link the principle of “proportionality” to that of “military necessity” or incorporate it into the latter. We prefer to draw a distinction between them since, on the one hand, “proportionality” does not apply only to the rules on the conduct of hostilities, and, on the other, the basic opposition between the notions of “humanity” and “military necessity” can be understood properly only when the “proportionality” factor is taken into account. See in particular David, Eric, Principes de droit des conflits armés, Bruylant, Brussels, 1994, pp. 205–208.Google Scholar

17 Parks, W. Hays, “The 1977 Protocols to the Geneva Convention of 1949”, in International Law Studies 1995 (Vol. 68), Readings on International Law from the Naval War College Review, 1978–1994, pp. 467–478.Google Scholar

18 See “Letter of transmittal from President Ronald Reagan to the Senate of the United States”, reprinted in American Journal of International Law, Vol. 81, No. 4 (1987), p. 910 Google Scholar, and the reaction by Gasser, Hans-Peter, “An appeal for ratification by the United States”Google Scholar, ibid., pp. 912 ff.

19 See Roberts, Guy B., “The new rules for waging war: the case against ratification of Additional Protocol I”, Virginia Journal of International Law (VJIL), Vol. 26, No. 1 (1985), pp. 109–170 Google Scholar; see also the reaction by Aldrich, George H., “Progressive development of the laws of war: a reply to criticisms of the 1977 Geneva Protocol I”, VJIL, Vol. 26, No. 3 (1986), pp. 693–720 Google Scholar, and by the same author: “Prospects for United States ratification of additional Protocol I to the 1949 Geneva Conventions”, AJIL, Vol. 85, No. 1 (1991), pp. 1–20.CrossRefGoogle Scholar

20 See Schindler, Dietrich and Toman, Jiri (eds), The laws of armed conflicts, HDI/Nijhoff, Geneva/Dordrecht, 1988, p. 709.CrossRefGoogle Scholar

21 See Humanitarian law in armed conflicts: Manual, edited by the Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, and the commentary thereon, Fleck, Dieter (ed.) et al., The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, 1995.Google Scholar

22 See International Law — The conduct of armed conflict and air operations, Air Force Pamphlet (AFP 110–31), Department of the Air Force, Washington, D.C., 1976, and The commander's handbook on the law of naval operations, NWP 9, Department of the Navy, Office of the Chief of Naval Operations, Washington, D.C., 1989.

23 Rowe, Peter and Meyer, Michael A., “Ratification by the UK of the 1977 Protocols additional to the Geneva Conventions of 1949”, Northern Ireland Legal Quarterly, Vol. 45, No. 4 (1994), pp. 343–363.Google Scholar

24 See the ICRC's mandate as defined in Article 5 of the Statutes of the International Red Cross and Red Crescent Movement.

25 Extract from the Memorandum of 14 December 1990 on the applicability of international humanitarian law, IRRC, No. 280, 01–02 1991, pp. 24–25:Google Scholar

“Conduct of hostilities (…)

— the parties to a conflict do not have an unlimited right to choose methods and means of injuring the enemy;

— a distinction must be made in all circumstances between combatants and military objectives on the one hand, and civilians and civilian objects on the other. It is forbidden to attack civilian persons or objects or to launch indiscriminate attacks;

— all feasible precautions must be taken to avoid loss of civilian life or damage to civilian objects, and attacks that would cause incidental loss of life or damage which would be excessive in relation to the direct military advantage anticipated are prohibited.

With regard to the use of certain weapons, the following rules are in particular applicable in an armed conflict:

— the use of chemical or bacteriological weapons is prohibited (1925 Geneva Protocol);

— the rules of the law of armed conflict also apply to weapons of mass destruction.

The ICRC invites States which are not party to 1977 Protocol I to respect, in the event of armed conflict, the following articles of the Protocol, which stem from the basic principle of civilian immunity from attack:

— Article 54: protection of objects indispensable to the survival of the civilian population;

— Article 55: protection of the natural environment;

— Article 56: protection of works and installations containing dangerous forces.”

26 Reproduced in Mercier, Michèle, Crimes without punishment, Pluto Press, London/East Haven, Conn., 1995, pp. 195–198.Google Scholar

27 See Annex.

28 Declaration on the Rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts, IRRC, No. 278, 09–10 1990, pp. 404–408.CrossRefGoogle Scholar

29 Sassoli, Marco, Bedeutung einer Kodifikation für das allgemeine Völkerrecht: mit besonderer Betrachtung der Regeln zum Schutze der Zivilbevölkerung vor den Auswirkungen von Feindseligkeiten, Helbing & Lichtenhahn, Basel/Frankfurt, 1990.Google Scholar

30 See Aldrich, George H., “Prospects for United States ratification of additional Protocol I to the 1949 Geneva Conventions”, AJIL, Vol. 85, No. 1 (1991), pp. 1–20 Google Scholar; Meron, Theodor, “The time has come for the United States to ratify Geneva Protocol I”, AJIL, Vol. 88, No. 4 (1994), pp. 678–686.Google Scholar

31 Idem, p. 682.

32 Papaux, Alain and Wyler, Alain, L'éthique du droit international, Collection Que sais-je?, No. 3185, PUF, Paris, 1997, p. 86.Google Scholar

33 See Resolutions 1, 2, 4 and 5 of the 26th International Conference of the Red Cross and Red Crescent, IRRC, No. 310, 01–02 1996, pp. 55–77.Google Scholar

34 Greenwood, Christopher, “Customary law status of the 1977 Additional Protocols”, in Humanitarian law of armed conflict: essays in honour of Frits Kalshoven, Martinus Nijhoff Publishers, Dordrecht/Boston/Leiden, 1991, pp. 93–144 Google Scholar; Meron, Theodor, Human rights and humanitarian norms as customary law, Clarendon Press, Oxford, 1989.Google Scholar

35 Best, Geoffrey, op. cit. (note 1), p. 422 Google Scholar: “If the failure to moderate war marks the vanishing-point of international humanitarian law, the persistence of immoderate war could mark the vanishing-point of civilization.”

36 Text not yet published.