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Modernization of International Humanitarian Law — The Origins and Evolution of the 1977 Additional Protocols to the 1949 Geneva Conventions
May 17,2019   By:CSHRS
 
Modernization of International Humanitarian Law
The Origins and Evolution of the 1977 Additional Protocols to the 1949 Geneva Conventions
ZHANG Weihua*
 
Abstract: Regional wars and internal armed conflicts after the conclusion of the 1949 Geneva Conventions have presented new challenges to traditional international humanitarian law. To address those challenges, the international community concluded two additional protocols in 1977 and the 1949 Geneva Conventions. Those two protocols have unified the Hague Rules and the Geneva Rules in the realm of traditional laws on wars, improved the protection of civilians, expanded the concept of armed conflicts and combatants, and developed special treaties applicable to non-international armed conflicts, reaffirming and developing the principles and rules of international humanitarian law worldwide, and promoting its modernization.

Keywords: Geneva Conventions w 1977 Additional Protocols w International Humanitarian Law
 
For centuries, peace-loving people worldwide have been trying to curb the cruelty of war. However, for a long time, their efforts resulted in only scattered and unwritten customary rules. The situation was changed by the advent in 1864 of the first Geneva Convention, which has been continuously revised and enriched ever since. After the World War II, the “Geneva Conventions” adopted on August 12, 1949 were ratified or joined by most countries.[1] In 12 December 1977, in order to adapt to new developments in armed conflicts after World War II, the international community finally agreed on the Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (hereinafter referred to as Protocol I) and Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (hereinafter referred to as Protocol II) after a decade of negotiations. Reaffirming and developing the principles and rules of the international humanitarian law, the two protocols constitute a major development in the international humanitarian law system after World War II and a milestone in the history of international humanitarian law.

I. The Formulation and Ratification of the Two Protocols were in Line with the Requirements of the Times

The 1949 Geneva Conventions are the result of earnest and in-depth reflection by the international community on the “the scourge of war” caused by the World War II. In particular, the terrible injuries sustained by civilians unprotected by any special convention shocked the nations of the world. Therefore, in the Geneva Conventions concluded in 1949, including the Convention Relative to the Protection of Civilian Persons in Times of War (the Fourth Convention), which has achieved a leap forward in civilian protection.

After 1949, Asia and Africa began a magnificent wave of decolonization. The former colonies demanded the establishment of independent new countries of their own. This process could be peaceful, like the independence of the Philippines in 1946 and that of Myanmar in 1948. However, more often it was achieved after fierce armed conflict between the colonies and the colonial powers. For example, the independence of Vietnam and Algeria was achieved only after fierce battles with the French. Even more remarkably, some countries were plunged into bloodier civil wars immediately after their independence. For example, a civil war broke out in Nigeria six years after its independence in 1960.

Violations of the principles and rules of international humanitarian law were rampant in those wars of independence and civil wars, but the 1949 Geneva Conventions proved hardly applicable. The reason was that when they were drafted in 1949, war was mainly fought between countries. So there was only the common Article 3 to stipulate the basic rules to be followed by non-state parties involved in armed conflicts. They were utterly ineffective in dealing with the colonial wars of independence and the civil wars in the context of the Cold War. In 1968, after investigating the horrors of the Vietnam War, the International Committee of the Red Cross (ICRC) asserted that “if no positive responses are made by the ICRC to the current situation, the Geneva Conventions will sink like a solitary island in the swamp.” [2]

Moreover, advances in military technology also necessitate corresponding updates to international humanitarian law. The rapid development of science and technology after the World War II and the arms race during the Cold War led to the development of many new weapons. For example, the emergence of new jet bombers and missiles blurred the boundary between the front and rear in traditional warfare. The new means of and methods of warfare became almost unrestricted in strike scope, causing profound disasters for the civilian population. In fact, the use of aircraft for aerial bombardment became an important means of warfare in World War II. However, the Hague System on combat methods and means had long been stagnant. The Hague Conventions adopted at the First and Second Hague Peace Conferences in 1899 and 1907 respectively merely prohibited the throwing of explosives or other objects with balloons or other similar methods.

The application of new technologies on the battlefield was not limited to weapons or weapon systems. Instead, they were widely used for field medical treatment and rescue operations. For example, the United States first used helicopters for evacuating the wounded and sick in the Korean War and the practice was widely adopted in the Vietnam War. In the Vietnam War, an average of 109 helicopters took off every 24 hours to perform medical evacuation missions. Unfortunately, those medical helicopters with obvious signs were often attacked by force. During the entire war, the number of medical helicopters lost to enemy fire was 3.3 times than that of those performing other missions, indicating more frequent attacks on medical helicopters.[3] Since the 1949 Geneva Conventions did not take into account air evacuation, attacking medical helicopters was not unambiguously prohibited in international humanitarian law.

In fact, as early as 1955 and 1956, the ICRC had proposed a series of draft rules on two consecutive occasions to address the shortcomings of the “Hague Rules” for protecting residents of unoccupied territories from military activities. However, no positive response was received.[4] This situation did not change until the Tehran Human Rights Conference convened by the United Nations in 1968. At the conference, a resolution was adopted, requesting the UN General Assembly to ask the Secretary-General to review the proposals of “ensuring the protection of civilians and prisoners of war in all armed conflicts... and to prohibit or restrict the use of certain methods and means of warfare” and the necessity to “develop “International Humanitarian Conventions” or “amend existing conventions”.[5] At the 23rd UN General Assembly held in 1968, the above request was made through Resolution 2444 and countries were encouraged to pay attention to the ICRC's initiative on improving the international humanitarian law.

The 1949 Geneva Conventions were mainly drafted by European countries after negotiations. By the 1970s, the number of countries around the world was almost triple the number at the end of World War II. In order to reaffirm the principles and rules of international humanitarian law in the international community and to expand the scope of participation in the negotiations on the new protocols, all state parties to the 1949 Conventions or United Nations member states were invited to attend the negotiations on the 1977 Protocol. For many newly independent countries, it was their first experience in a diplomatic conference to draft rules of international humanitarian law. The number of countries participating in the 1977 Diplomatic Conference eventually reached 124, far exceeding the 59 countries in the negotiations for the 1949 Conventions. Among the participants, there were also 50 non-governmental organizations and 11 national liberation movement organizations.

In 1971 and 1972, the International Committee of the Red Cross organized two meetings of government experts to discuss such issues as rules of engagement, protection of victims of war and international protection of human rights in armed conflicts. As it happened to be the height of the Cold War, there was the general concern that negotiations on revising the 1949 Conventions might undermine the important results therein. Therefore, the proposal to amend the Conventions was not entertained; instead, the idea of formulating a new protocol was adopted. From 1974 to 1977, the ICRC convened four sessions of Diplomatic Conferences on the Reaffirmation and Development of International Humanitarian Law for Armed Conflicts. On December 12, 1977, the Diplomatic Conference adopted two additional protocols by consensus, one for dealing with international armed conflicts, and the other for dealing with non-international armed conflicts. The use of international humanitarian law in civil wars greatly expanded.

As of now, there are 174 state parties to Protocol I and 168 to Protocol II.

II. The Protocols Unified the “Geneva Rules” and the “Hague Rules”

Historically, international law on armed conflict has mainly followed two lines of development. One is the “Geneva Rules.” Applicable to protection of the wounded, sick, shipwrecked, prisoners of war, civilians and other victims of armed conflict, they now mainly consist of the 1949 Geneva Conventions. The other is the “Hague Rules.” Applicable to the use of force in armed conflicts, they mainly consist of the 1899 and 1907 Hague Conventions. The facts have shown that the two protocols of 1977 are not just amendments to the 1949 Geneva Conventions, but comprehensive “reaffirmation and development” of “International Humanitarian Law applicable to armed conflicts”, as suggested by 1974-1977 Diplomatic Conference for this purpose. The new protocols unified the two systems of the “Geneva Rules” and the “Hague Rules”. In particular, Protocol I is considered a comprehensive and substantive development of international humanitarian law. “It should be regarded as the Fifth Geneva Convention.”[6]

Protocol I is divided into six parts and two annexes. The first part comprises the Genera1Provisions; the second part specifies the “Wounded, Sick and Shipwrecked”; the third part consists of two sections, namely “Methods and Means of Warfare” and “Combatant and Prisoner-Of-War Status.” The fourth part is “Civilian Population”; the fifth part is “Execution of the Conventions and of this Protocol”; the sixth part includes the Final Provisions. From a traditional point of view, most of the content belongs to the “Geneva Rules”, while the rest to the “Hague Rules”. In fact, there were originally overlaps between the “Geneva Rules” and the “Hague Rules”, and their differences became even more insignificant after the 1977 Protocols.

Some provisions of Protocol I are directly complementary to the 1949 Geneva Conventions. For example, the provisions of Article 5 concerning the appointment of the protecting powers and their substitute, those of Articles 8-23 concerning the treatment of the wounded and the sick, and those of Articles 43-47 concerning the treatment of guerrillas, mercenaries and prisoners of war have all developed and even changed the rules established in the Geneva Conventions in many important aspects. However, they are still based on the Conventions, and closely linked to them. Meanwhile, other provisions of Protocol I can in fact be regarded as a further continued development of the 1907 Hague Convention. In particular, they constitute a substantive development of the Hague Regulations Respecting the Laws and Customs of War on Land (hereinafter referred to as “The Hague Regulations”) annexed to the Fourth Hague Convention. The most prominent indicator of this integration comes in the third part “Methods and Means of Warfare” and “Combatant and Prisoner-of-War Status.”

The third part of the Protocol I of 1977 consists of two sections, including “Methods and Means of Warfare” and “Combatant and Prisoner-Of-War Status.” Section I (Articles 35-42) reaffirms and develops the rules governing engagement in the Hague System. Article 35 “Basic Principles” stipulates that “1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. 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.” The first and second principles here are apparently a reaffirmation of Articles 22 and Paragraph 5 of Article 23, in the 1907 Hague Regulations; the third principle is a new development of international humanitarian law, but its underlying concept is also in line with the Hague System originating from the 1868 St. Petersburg Declaration.[7]

Moreover, apart from the above three principles, the specific rules of Section I are also found to be stemming from the “Hague System”. For example, Article 37 says in Paragraph 1 that “It is prohibited to kill, injure or capture an adversary by resort to perfidy.” The stipulation is a development of the Paragraph 2, Article 23 of the Hague Regulations. In Paragraph 2, Article 37, it allows the use of war ruses, apparently stemming from Article 24 of the Hague Regulations; Article 38 “Recognized Emblems” and Article 39 “Emblems of Nationality” are the development of Paragraph 6, Article 23 of the Hague Regulations. [8] Articles 40 to 42 further detail the two issues prohibited in Paragraphs 3 and 4, Article 23 of the Hague Regulations: It is prohibited to “kill or injure an enemy who has laid down his weapon or lost his self-defense ability or has surrendered unconditionally” and to claim that “no surrender shall be entertained.”

Section II (Articles 43-47) reaffirms and develops the main rules governing the qualifications and treatment of combatants in the Hague Rules. Article 43 offers new definitions for the terms “armed forces” and “combatants”, replacing the provisions of Article 1 in the Hague Regulations.[9] The definitions in Article 43 are very important. They involve the recognition of combatants as prisoners of war, not as spies or insurgents. In addition, it concerns the practical principle of distinguishing the civilian population for its protection, because “in order to ensure respect and protection of the civilian population... The parties to the conflict should distinguish between civilians and combatants at all times”.[10]

All in all, Protocol I covers the main rules concerning the “Combatants” and “Hostilities” in the “Hague Rules”. Therefore, the core part of the “Hague Rules” has been incorporated into the “Geneva Rules”. In particular, the Protocol extends the scope of main objects protected by the law of belligerency from the wounded, sick and the shipwrecked in the armed forces to all war victims, including the civilian population. This is an important development in international humanitarian law in line with the requirements of the times.

III. The Protocol Improved the Protection of Civilians

The objects protected in the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War include “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”[11] Thus, the protected objects of the Convention are limited to “foreign nationals in the territory of a Party to the conflict” (first of all, nationals of the enemy state) and “residents in the occupied territories.” There is no consideration for the general protection of civilian populations from the impact of hostilities. This deficiency was offset by the two protocols in 1977.

Historically, the Hague Regulations contain provisions for the protection of civilian populations, but they are often too simple.[12] However, the rules in Protocol I of 1977 are detailed and thorough. In Part III on engagement there are important provisions for the protection of civilians in Protocol I. For example, whether a belligerent has the status of a combatant, whether he is entitled to be regarded as a prisoner of war, and whether the engagement constitutes perfidy all depend on whether he has performed the duties and obligations distinguishing him from the civilian population. [13] However, provisions for the protection of civilians are still concentrated in the fourth part in Protocol I, under the title “Civilian Residents”.

The first section of Part IV clearly states “general protection against effects of hostilities” and sets out the rules for civilian protection in warfare with 20 articles. Among them, Article 48 sets out the fundamental principle, namely the principle of differentiation. It reads as follows, “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” This principle is one of the most important achievements of the 1977 Protocols. It has become a fundamental principle for the protection of civilians in armed conflicts. The rest of the rules in Part IV are actually intended for its implementation.

In addition to Article 48, the most important Articles of Part IV are Article 51 and 57. Provisions other than the above three protect specific targets or locations, such as civilian objects, artifacts and places of worship, objects indispensable to the lives of civilians, works and installations containing dangerous forces, undefended places and demilitarized zones.[14] Article 51 contains the basic rules for the protection of civilians in armed conflicts, providing general protection for the civilian population. Targets and locations such as undefended areas and demilitarized zones are under special protection and therefore must not be attacked under any circumstances. Article 51 aims to control the conduct of engagement, and prevent incidental damages to civilians in anticipation of an attack on a military target. The limitations of Article 51 mainly include three items: the civilian population as such, as well as individual civilians, shall not be the object of attack; indiscriminate attacks are prohibited; attacks against the civilian population or civilians by way of reprisals are prohibited.”
Article 57 “Precautions in attack” is the last provision relating to the use of weapons in an attack in Protocol I. Unlike Article 51, it does not prohibit the use of specific types of weapon based on the ability to distinguish; on the contrary, its description on weapons use is very restrained.[15] It requires that “in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects,” that the objectives to be attacked should be verified, that all feasible precautions be taken to choose the means and methods of attack and weigh the military interest against possible damages to civilians, that attacks expected to cause excessive loss of civilian life should be aborted, and that effective advance warning should be given of attacks which may affect the civilian population unless circumstances do not permit.[16] Since the damage caused by armed conflict to civilians has become ever more prominent, this Article has received more and more attention after the conclusion of the protocol. Many scholars believe that it constitutes the third principle, namely the principle of precautionary measures, on a par with the principle of distinction and proportionality.

IV. The Protocols Have Developed the Concept of Armed Conflicts and Combatants

The 1960s and 1970s, when negotiations on the two additional protocols of 1977 were underway, coincided with the climax of the decolonization movement. Newly independent former colonial countries generally questioned traditional international law, and they had their unique views on many issues regarding it. They had been historically subjected to exploitation and oppression, so they often represented the progressive forces of justice in international relations.

In the negotiations of the 1977 protocols, the views of newly independent countries were mainly focused on two aspects. One was the concept of a “war of liberation”. They advocated that the war of liberation should be categorized as international armed conflicts, not civil wars or insurgency. The other was their concept of combatants. Different from traditional international humanitarian law, they believed that “freedom fighters” should have more rights and less obligations than the soldiers of the colonist or occupying powers.

According to traditional international law, “war is the struggle of two or more countries through armed forces, with the aim of subduing each other, for the peace imposable by the victorious side as it sees fit on the other side.”[17] A war of liberation refers to battles launched by the colonial countries in order to obtain or restore their independence from the colonial powers. Colonies were not independent states, so the “war of liberation” between them and the sovereign states was not war in the traditional sense. However, with the development of international law, especially the formation of the concept of the right to self-determination after World War II, the vast number of developing countries generally demanded that the “war of liberation” be included in the scope of international armed conflict. Protocol I of 1977 extended the concept of international armed conflict, to cover those launched by a nation to exercise its right to self-determination, and resist colonial rule, foreign occupation or racist regime. Thus, all rules of international humanitarian law became applicable to armed conflicts, and both parties were made to assume the same obligations in abiding by them.

Another issue of general concern for the newly independent countries was the treatment of guerrillas. According to Article 1 of the Hague Regulations, “The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1) To be commanded by a person responsible for his subordinates; 2) To have a fixed distinctive emblem recognizable at a distance; 3) To carry arms openly; and 4) To conduct their operations in accordance with the laws and customs of war.” The guerrilla warriors fighting for national independence and rebelling against the occupying forces were in an unbalanced situation with the colonial and occupying powers. If they were required to comply with the above provisions in fighting the colonial and occupation forces, they would have no chance of winning. As a result, one of Chairman Mao’s classic remarks repeatedly appeared in the negotiation on Protocol I: “A guerrilla fighter must be in the civilian population as a fish in the water.”
[18]
On the one hand, if guerrilla fighters were not recognized as legitimate combatants, they would be denied the legitimate rights of war, and consequently the prisoner-of-war treatment after their capture. On the other hand, if they were not told apart from civilians, more civilian casualties could be expected. Prolonged arduous negotiations were made at the diplomatic conference in order to strike a balance between the two. Paragraph 1 of Article 43 “Armed Forces” of Protocol I, which was finally adopted, did not distinguish “regular” national troops from “non-regular” armed forces for resistance or national liberation movement and similar non-state armed forces. According to the provisions of this article, the elements that make up the armed forces include “being organized, under a command and subject to an internal disciplinary system for conformity to rules of armed conflicts.” Wearing uniforms or openly bearing arms at all times were no longer the sole criteria for distinguishing the armed forces from civilian population.

In this regard, Paragraph 3 of Article 44 “combatants and prisoners of war” of Protocol I requires, on the one hand, that “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.” On the other hand, it stipulates that “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.” Conducts in line with the above requirements will not be regarded as perfidious. [19]

Article 44 is derived from Article 3 of the Hague Regulations: “The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.” This provision far exceeds the original regulations in detail. It not only converted the obligations of parties to the conflict into specific obligations of each combatant, but also exceeded the original purpose, that is, regulating prisoner-of-war treatment for all legitimate belligerents. To protect civilians, the combatants should make themselves distinguishable from civilians. Therefore, this Article integrated the rules of engagement with the protection of civilians, proving the consistency between the “Hague Rules” and the “Geneva Rules” in fundamental purposes.

Some developing countries were very concerned about the status of mercenaries. At the diplomatic conference, developing countries strongly recommended that a provision on mercenaries be included in Protocol I. African countries in particular were concerned about this issue, since mercenaries were raging on the African continent. Consistent with article 44, Paragraph 1 of Article 47 determines that mercenaries should not be regarded as legitimate combatants.

Mercenary is defined in Paragraph 2, Article 47. Only those meeting three positive conditions and three negative ones can be recognized as mercenaries. It should be noted here that, according to the provisions of Paragraph 3 of Article 45, mercenaries cannot enjoy prisoner-of-war treatment, but they still enjoy the basic human rights as stipulated in Article 75, including for example, fair trial before criminal punishment.

V. The Protocols Established the Rules Specifically Applicable to Non-international Armed Conflicts

The rules set forth in the 1949 Geneva Conventions apply only to international armed conflicts, that is, armed conflicts between two or more countries. There is only one provision, namely, the common Article 3 for non-state armed conflicts, including those between the government troops and armed groups or those between armed groups. The Spanish Civil War, which was notorious for massive bombing of an undefended city for the first time and torture of prisoners-of-war by the warring parties greatly promoted the birth of the common Article 3.

However, it was believed to violate national sovereignty, so it only mentioned several basic humane treatments and the most basic judicial guarantees, requiring all parties to internal armed conflicts to assume the same rights and obligations of pure humanity. At the same time, it stipulated that those treatments and guarantees should not affect their legal status, specifically, should not imply recognition of the rebel party. Obviously, without such a provision, Article 3 could not have been passed at that time.

At the diplomatic conference of 1974-1977, the National War of Independence was included in Protocol I as a form of international armed conflict. Therefore, Protocol II was dedicated to various non-international armed conflicts. In fact, it was the first international treaty dedicated to protecting victims from non-international armed conflicts. It developed and supplemented the provisions of Article 3 common to the 1949 Conventions, while explicitly reiterating that the conditions for applying Article 3 would not change.
According to Article 1 of the Second Protocol, the applicable armed conflicts include “to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol over members of its armed forces.” This regulation clearly broke through the reserved position of common Article 3, providing substantive criteria for judging whether the non-government party in the civil war is a belligerent group or insurgent group, including being under responsible command; with control over a part of the territory; and capable of long-lasting and coordinated military operations. At the same time, Protocol II excluded internal disturbances and tensions that did not constitute a civil war.[20] Moreover, in order to emphasize respect for the sovereignty of states, it stipulates in Article 3 “Non-intervention” that “1) Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State. 2) Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory in which that conflict occurs.”

In Part II, Protocol II stipulates that “all persons who participate directly or have stopped participating in hostilities” are entitled to humane treatment, and that murder, ill-treatment, collective punishment and other atrocities against them are prohibited. It also sets forth that children shall be provided with the care and aid they require; basic living, safety and medical care should be given to those who are restricted in freedom; and the basic rights of those to be criminally prosecuted should be guaranteed. Part III stipulates the basic right to receive assistance and medical care for all the wounded, sick and shipwrecked, whether they have participated in the armed conflict or not. Part IV “Civilian Population” provides for general protection of civilian populations and civilian individuals, as well as protection of special objects, prohibiting forcing civilians to migrate or leave the country “except for issues related to the safety of civilians or urgent military reasons.”

The greatest contribution of Protocol II to the development of international humanitarian law consists in incorporating domestic armed conflicts into the scope of international humanitarian law and providing basic humane treatment and protection for warring parties and civilians in civil wars. However, due to the general reluctance of the contracting countries to excessive interference in their internal affairs, Protocol II has been considerably restricted in many aspects.

First, in terms of the protection for the combatants. The concepts of “combatants” or “prisoners of war” did not appear in Protocol II. That is the major difference from Protocol I. According to the provisions of Article 2 “it shall apply to all persons affected by the armed conflicts stipulated in Article 1”. In addition, Paragraph 1 of Article 4 also mentions “all persons who have not directly participated in or have stopped to participate in hostilities ... should be treated humanely under any circumstances”; Paragraph 1 of Article 7 provides that “all the wounded, sick and shipwrecked should be respected and protected, whether they have participated in armed conflicts or not. On no occasion was qualifiers such as “land” or “sea” are added. From those provisions, Protocol II seems to require that all war victims be protected indiscriminately. However, in Part IV it separately stipulates the treatment entitled to “civilian population.”

Second, in terms of protection for civilians. Protocol II failed to mention the legitimacy of the belligerents or the conditions entitling them to prisoner-of-war treatment. That failure is obviously not conducive to the distinction between “combatants” and “civilians” for belligerent parties in the war. Moreover, Paragraph 1 of Article 13 provides that the “civilian population and civilian individuals shall enjoy general protection from the dangers posed by military operations” and that the “civilian population and the civilian individuals should not be the target of attack.” However, in addition to the prohibition on killing innocents in Article 4 “Basic Guarantees”, no provisions on the conduct of engagement can be found in Protocol II. The lack of prohibition on indiscriminate attacks is especially regrettable. Those shortcomings are clearly not conducive to civilian protection in armed conflicts.

The conclusion of the two protocols in 1977 was an important outcome of the response by the international community to the challenges of armed conflicts for international humanitarian law following World War II. Upon inception, they have played an important role in regulating relevant armed conflicts. Even now, armed conflicts are still taking place in Afghanistan, Syria and other countries, causing large-scale humanitarian disasters. In contemplating the immediate present, one recalls the past. Reliving the history of the two additional protocols in 1977, on the one hand is aimed at clarifying the development path of international humanitarian law associated with the two protocols, and on the other hand is intended to remember the efforts and persistence of our ancestors to eradicate the scourge of war. It is sincerely hoped that new inspirations and impetus can be drawn from history for promoting the development of international humanitarian law in the 21st century.

(Translated by Qian Chuijun)
 


* ZHANG Weihua ( 张卫华 ), assistant Research Fellow, Institute of International Laws, Chinese Academy of Social Sciences, Doctor of Law
[1] The Geneva Conventions adopted on August 12, 1949 include (1) The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (the first convention), (2) The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (the second convention), (3)The Geneva Convention Relative to the Treatment of Prisoners of War (the third convention), and (4) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (the fourth convention).
[2] Relevant and Practical: The Additional Protocols at 40, https://www.icrc.org/en/document/relevant-and- practical-additional-protocols-40.
[3] Thomas E. McMahon, “A Good Treaty,” Akron Law Rev. 19 (1986): 551-557.
[4] Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law, trans. Jiang Bo, et al (Beijing: Peking University Press, 2005), 17.
[5] Resolution XXIII, Final Act of the International Conference on Human Rights, U. N. Doc. A/CONF. 32/41, 1968, 18.
[6] George II. Aldrich, “New Life for the Laws of War,” The American Journal of International Law 75 (1981): 764-783.
[7] It is stipulated in the 1968 Declaration of St. Petersburg that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; that for this purpose it is sufficient to disable the greatest possible number of men; that this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; that the employment of such arms would, therefore, be contrary to the laws of humanity.”
[8] It is prohibited in Paragraph 6, Article 23 of the 1907 Regulations concerning the Laws and Customs of War on Land to “make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention.”
[9] It is stipulated in Paragraph 1, Article 1 of the 1907 Regulations concerning the Laws and Customs of War on Land that “ The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.”
[10] Article 43 of Protocol I of 1977.
[11] Article 4 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War.
[12] Cf. Article 45-48 of the 1907 Regulations concerning the Laws and Customs of War on Land.
[13] Cf. Article 37, 43 and 44 of Protocol I of 1977.
[14] Cf. Article 52. 53, 54, 55, 56, 59 and 60 of Protocol I of 1977.
[15] William G. Schmidt, “The Protection of Victims of International Armed Conflicts; Protocol I Additional to the Geneva Conventions” , 24 Air Force Law Review (1984) , pp. 189 -245.
[16] Cf. Article 57 of Protocol I of 1977.
[17] Hersch Lauterpacht (revise), Oppenheim’s International Law, vol. 1, part 2, trans. Wang Tieya and Chen Tiqiang (Beijing: Commercial Press, 1989), 145.
[18] The 1977 Additional Protocols to Geneva Conventions: A historical Perspective, https: //www. icrc. org/en/ document/ china-Y ves-Sandoz-additional-protocols-40-years.
[19] Paragraph 3, Article 44 of Protocol II of 1977.
[20] Paragraph 3, Article 1 of Protocol II of 1977.

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