The amended first article to the first draft protocol additional to the geneva conventions of 1949 - its impact upon humanitarian constraints governing armed conflict

• Author: Captain John F DePue
• Pages: 03

It u a much drirvsied qzrastzon whether !he marreign must absemr the o7dtnaq hili afum in dealing w!h rebellious svbjecfs who have oped) taken up arms ogornsl him. '

1. INTRODUCTION

Wrought tn the embers of the Second World War and adopted tncontemplation of enswng conflicts of a similar charairer, rhc four Geneva Conrentions of 1949' ha\e wmeised a phenomenon whose frequency and per\asweners could nor habe been enbirianed b, their formulators This phenomenon is a shift in the nature oi armed conflicrs from those characterzed b) the emplorment of trained and umformed armies, flxed battle linea. and segregated

ciiilian populationr, to a heterogeneous S U C C ~ S S ~ O ~

of internal sriugglei of iarving mrensin and purpose xhxh hale generall~ possessed none of the foregoing arrributer. Although conflicrs over rhe past w o decades falling *ithm the traditional model can practi-calli be counted on the fingers of a single hand, those of the latter tipe, b\ one estimate, ha\e numbered %ell mer a thausad3 Cuisori ieference LO newspaper accounrs of such struggles indicares rhat rhei npicalh in\oI~e clasher between the rnhrar) farces of an incumbent go\ernment and domestic facrionr bent upon elmmar-mg whar (he) characrerile as colonialism, racism or the repression of a quest for self-determmarion The recurrence of such conflicrs, rheir frequent11 brutal nature, and the widespread simpathy that is

often exended to insurgent rnmemenri ha\e prompred [BO discrete de\eloprnenrr in the iniernatmnal communin

The flirt, of an essentiah humanitarian cast is rhe product of a recognition that extant norms gobernmg rhe conduct of such conflicts are now noefulli inadequate to minimize the brutalit, of such conflicrs and adequately protect noncombarants The formulation of a more closely defined scheme IS mperati\e. Serious efforts inthis direcrion were underraken as earl\ as 1953 bi a commissmn of experri coniened b, the lnteinational Committee of the Red Cross (ICRC) This moieinent xias stimulated b! the passage of reiolu-tioni b\ both the Twentieth and Twentx-first lnrernational Conferences of the Red Croic s A Draft Additional Protocol to the Geneia Can\entmns of 1949 dealing cxcIus~~cIvwith rhe protection of iic-timi of noninwrnational conflicts *as ulrmareli formulard6 This

document 1s but a pornon of a comprehensive program br the ICRC to augment the Conventions in P manner that will permit them more adequately to ameliorate the conditions caused by current merhodr of warfare.

The second dwelaprnent is of an essentially political bent and recognizes the legality of certain insurgent movements whore oxen-rible objectives include emancipation from alien, colonialist or racist domination. This result 1s manifested in the statements of >arious inter-gorernmental ~oalitioni' and ieie~alresolutions of the UnitedNations General Assembly which collectwel) appear to recognize the right of such movements to employ armed force in pursuit of these objectivess despite proscriptions contained in the United Na-tions Charter.' Furthermore, these sourccs would ascribe to such conflicts an international character and accord the insurgents the full protections and safeguards of the Geneva Although such assertions mas be primarily motivated by ideological or political considerations, tt is indisputable that they have lent strength to the movement to extend the protections of mrernational

There two derelopmentr coalesced in a dramatic manner in the presentation of an amendment during the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Lax, Applicable to Armed Conflicts. Convened by the Swiss Government at Geneva dunng Februarr and March 1974, the Dip-

law LO 'onfllcrs of a nonlnternatlonal scope.

lomatic Conference bas to srud) the two Draft Prorocols prepared by the sraff of the ICRC. The firsr of the 1110 Draft Protocols deair with iniernational armed conflicts. the second, s,hich has pre\iouii) been mentioned. concerned thaw of a noninternational

The subject matter of both had been considered m detail b) two Conferences of Government Experts, and the Protocols themseher were formulated and subsequently revised on the basis of rhaie The committee assigned by rhe Diplomatic Conference to irudv the general provisions of borh Lhe First and Second Protocols" devoted Its almosr excl~sive attention during the 1974 sess~on to the manner m which wars of national liberation should be treated.'5 It ultimately adopted the startling proposal thar the first article of Draft Protocol 1 be amended to read:

I The present P~otorol. xhich supplemenis the Geneia Conienrionr of.August 12. 1949, for the Prorecuon of1varVmm~.shall appli kn the s n ~ a mns referred LO ~n Arriile 2 common IO rheie Canienrrons

I ' fr Protocol Additional IO the Geneia Concenrions ofAugusi 12 1919and ercion of Victims of lniernatianal Armed Conflici ~nITTEE OF THE RED Caorr. Dmrr Aonlrro*-a~ Pioi5 or .Arcurr 12. 1949, at 3 11973) [hercm

'* Drair Piororol 11. Iupm nore 6

f rhr 1Yi4 Diplomatic C e Diplomatic Conference

" I d at6 74

19771 GENEVA CONVENTIONS AMENDMENT Principles of International Lan concerning Fnendlr Relarims and Ca operanon among Staiei I" accordance *hrh the Charter of the United Sa-Lion3 xe

The objective of the second paragraph of this article is aelectirely to exrend cerram safeguards pertaining IO international conflicrr to those of an essentiallv internal character. The determination as to n,hen such protections shall be accorded the members of insurgent moremenu is, under this formulanon, exclusively a function of rhe movement's ostensible political OT ideological aipirarmns.

This article *ill first proride P brief conrexrual framenork from which this proposal can be evaluated. It uill then examine the prop o d s conceptual impact upon the extant norms gowrning warfare and assess the extent to which it succeeds tn expandmg the protection3 accorded [he participants and \ictims of the newly recognized class of conflirrs. \\'here appropriate, ic will also consider methods to ameliorate the textual ambiguities, ~ncongrumer, and applicational limirations nhich are noted

11. A BRIEF RECAPITULATION OF T H E DRAFT AMENDMENTS CONTEXTUAL HERITAGE

1. PRLTCIPLES CSDERLYIYG PRESEST Z'OR.MS GOVER.TI.\-G 1ATER.TATIO.TAL CO.TFLICTS

   It is bmond the scope of thn article to engage in a derailed ac-count of the de\eiopment of the lab of land narfare. Hawe\er, ii IS

   essential LO this analysis of the amended Drafr Article I to recall several fuundamenral assumptions underlying [he four Genera Con. iencions of 1949. First. because the proposed amendment IS contained in a protocol rhich purports to augment the Canrentmnr, its departure from their conceptual basis could weaken the Conien-tmns rhemsehes Second, becauie the draft amendmenr can be con-

   strued to extend the applicarion ofrhe enant pro\irmnr ofthe four Conventions, it must be determined whether such an extension LIconceptualh and practically feasible I . The Oblrganoni Contatnrd tn the Four Genroa Canoentioni 0/1949 Are Abrolulr

   The first ti*o articles common to rhe Con\entmnr clearly enun-ciate the philoroph\ (hat %as intended to penade their application. Common Article 1 provider that "The High Contracting Parties undertake to respect and ensure respect for the presenr Comenrmn in all circumitancei "" Common Article I1 then asieits.

   Considered togerher. there mo pro\iimnr indxate rhe absolute nature of n signator) states obligation to iomplb hith the Conientmns during inrernational hostilities. Unlike the consrruction ascribed IO )ti precursors. this requirement IS nor contingem upon a declaration ofaar bi either part) or the uillingners of one of them IO recagniie the existence of a state of aar The use of the phrase "armed conflict" in Common Article 2 makes It clear that the Con

   the obligations cannot be abrogated b\ either parri in the e\ent of oierriding mil~ar, necersm But moir important to this stud,, there Articles make it clear rhat rhe Conbentions are to he applied LO all international conflicts despite the fact that one or the other of the

   parties vill hale resorted to armed force in \iolation of the United Narians Charter. subsequent pronouncemenis of its organs de. nouncmg aggrersmn,21 or other international norms

   The benefits and responsibilities of the Comentions applv equallv to the aggressor and to rhe vmims of aggression without reference to any derermination concerning the justice of either's cause. The injection of such coniiderarians would merge two traditionall, dm crete bodies of international lax. that applicable in determining the lawfulness of the use of force m pursuit of national objectixei and that regulating the manner in which such force mav be applied. Consideration of such issues aould render the application of humanitarian safeguards conringem upon a recognition of legirimacv and would almost cerrainl) rem11 m de facto abandonment because no stare would recognize the legality of its opponent's cause and concede rhe illegality of Its oun. In an) eient, even if an ObJeCIlYe derermination of this nature must be made, ir would undercut rhe humanitarian purposes of the four Geneva Comenrionr b) denying protection to broad caregorier of combatants and entire ciiilian populations smph because their national leadership was engaging in aggrerske or other unlawful conduct. Such a result would mark a monumental rerrogressmn m the derelopment of the law of armed conflm2' Accordingh, It would appear that anv contemporary ef-fort to expand the Conientmni or to extend their scope should Iike*iie be unquaiified by considerations of legitimacy in the emphment of miliiarv force. 2. Allhoiigh There Obligotioni Are Lhiliteialli Assumed The) Piasupposr

   a Degree o/Rmpmcq tn Application

   The language af the Common Articles also dictarer that a signa. tori nation cannot unilate~alli qualif, 11s application of the Conren-tmns If a signatan opponenr fails IO comply...