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Protocol I and neutral States

Published online by Cambridge University Press:  23 November 2010

Erich Kussbach
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Extract

The Protocol additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I) contains several articles which relate expressly to neutral States–not only to the permanently neutral States but also to those which remain neutral in a particular conflict (temporary neutrality).

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 20 , Issue 218 , October 1980 , pp. 231 - 249
Copyright
Copyright © International Committee of the Red Cross 1980

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References

1 Articles 2 (c), 9 (2), 12 (2), 19, 22 (2), 31, 37 (1), 39 (1) & 64.

2 Article 2 (c).

3 Articles 19 & 31.

4 Articles 9 (2), 12 (2), 22 (2) & 64.

5 Articles 37 (1) & 39 (1).

6 See also in particular Article 1 (1) of the Protocol and the common Article 1 of the Conventions; further details in: The Geneva Conventions of August 12, 1949, Commentary. Edited by Pictet, J. S., vol. I, Geneva 1952, pp. 25–26.Google Scholar

7 J. S. Pictet, Commentary, ibid. pp. 95–96; and Haug, H., Neutraliät und Völkergemeinschaft, Zürich 1962, pp. 157–158.Google Scholar

8 Pictet, ibid. p. 102.

9 Draft Protocols additional to the Geneva Conventions of August 12, 1949; Geneva 1973, pp. 3–27.Google Scholar

10 The original ICRC draft is contained in: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Second Session, 3 May-3 June 1972: Report on the Work of the Conference, Vol. II,Geneva, July 1972, pp. 1–15.CrossRefGoogle Scholar

11 Draft Protocols additional to the Geneva Conventions of August 12, 1949, Commentary, Geneva, October 1973, Doc. CDDH/3, pp. 28 & 40.Google Scholar

12 Conference of Government Experts, Report on the Work of the Conference, vol. I,Geneva, July 1972, p. 41, para. 1.64.Google Scholar

13 Kussbach, E., Die Bedeutung der Neutralität « ad hoc » bei der Neubestätigung und Weiterentwicklung des humanitären Völkerrechts, in Neue Zeitschrift für Wehrrecht, No. 16 (1974), issue 6, pp. 211–221.Google Scholar

14 CDDH/45.

15 Klausewitz, C., Vom Kriege, 18th edition, Bonn 1973, p. 194.Google Scholar

16 See J. S. Pictet, Commentary, p. 102.

17 Draft Protocols, Commentary, p. 12: “If diplomatic relations are broken off between the Parties to the conflict, then the mandate of Protecting Power under the Conventions and the Protocol is automatically by law vested in the third State, acceptable to the receiving State, which may already have been entrusted by the sending State—in accordance with customary international law or with Article 45 of the Vienna Convention on Diplomatic Relations of 1961—with the protection of its interests and those of its nationals and which has been accepted by the receiving State. A Party to the conflict wishing to entrust to two different third States the “Vienna mandate” and the “Geneva mandate” should therefore make known expressly and immediately its position.”

18 The Conventions still give no definition for the Protecting Power. It was obviously a foregone conclusion that only neutral States were in a position to exercise the functions of a Protecting Power. It was therefore not considered necessary to give a definition.

19 Articles 4 and 37 of the First, Articles 5 and 40 of the Second and Article 132 of the Fourth Conventions.

20 Draft Protocols additional to the Conventions, Commentary, p. 28.

21 CDDH/II/242.

22 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (1974–1977), Berne 1978, vol. XI, p. 258.Google Scholar

23 Ibid. p. 259.

24 Ibid. p. 260.

25 In this respect see further details in: Draft Protocols additional to the Geneva Conventions, Commentary, p. 34: also in Evrard, E., Le nouveau statut protecteur des transports sanitaires par voie aérienne en temps de conflit armé, in: Revue Générale de Droit International Public, tome LXXXII—1970, pp. 211–234 Google Scholar; cf. also J. S. Pictet, Commentary, pp. 285–287.

26 Draft Article 32 corresponded to Article 31 of the Protocol (Neutral or other States not Parties to the conflict). There were a series of other amendment suggestions to this draft Article: CDDH/45, CDDH/II/82, CDDH/II/247, CDDH/II/82/rev. 1 & CDDH/II/290, the last two, the most comprehensive, (CDDH/II/82/Rev. 1 introduced by Belgium, Canada, USA, France, Norway, Holland & Great Britain; CDDH/II/290 suggested by Austria, Finland, Sweden, Switzerland & Jugoslavia) were only slightly different. Cf. also the explanations by the Austrian delegate Bastl in: Official Records, vol. XI, p. 544.

27 See too J. S. Pictet, Commentary, p. 295; E. Evrard, quoted elsewhere, p. 230.

28 Concerning this, see American delegate Solf in Official Records, Berne 1978, vol. XII, p. 32.Google Scholar

29 Cf. also the statements of the Austrian delegate Bastl in: Official Records, vol. XI, p. 547. However, Bastl did not make express mention of Article 11. Nonetheless in my opinion this Article must be included here.

30 See explanation by Makin in: Official Records, vol. XI, p. 60.

31 The delegate Solf, ibid.

32 Cf. J. S. Pictet, Commentary, pp. 232–233.

33 Cf. Draft Protocols additional to the Conventions, Commentary, p. 22 and the explanation of the ICRC representative Pictet in: Official Records, vol. XI, p. 115.

34 Also the ICRC representative Malinverni, in: Official Records, vol. XII, p. 62.

35 See the suggestions CDDH/II/324, CDDH/II/405 and CDDH/II/426.

36 Article 57 (2) of the ICRC draft (Article 64 in the final Protocol adopted by the Conference) reads: “The personnel, material and means of transport of international civil defence bodies engaged in civil defence activities on the territory of a Party to a conflict under the conditions mentioned in the preceding paragraph shall also be respected and protected”.

37 See Note 36; also the suggestions CDDH/II/324 & CDDH/II/426.

38 Article 23 (b) and (f).

39 With regard to the question of perfidy see in particular Fleck, D., Kriegslisten und Perfidieverbot, in: Beitrâge zur Weiterentwicklung des humanitâren Völkerrechts fùr bewaffnete Konflikte, pub. D. Fleck, Hamburg 1973, pp. 105–148 Google Scholar; also M. Bothe, K. Ipsen, K. J. Partsch, Die Genfer Konferenz über humanitäres Völkerrecht, in: ZaöRV, Vol. 38 (1978), pp. 24–28; Kimminich, O., Schutz der Menschen in bewaffneten Konflikten, Munich 1979, pp. 247–249 Google Scholar; and Kalshoven, F., The Law of Warfare, Leiden 1973, pp. 101–105.Google Scholar

40 See Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 24 May 12 June 1971, Report on the Work of the Conference, Geneva, Aug. 1971, para. 521 p. 103, and Conference of Government Experts, second session, Report, vol. I, paras. 3.33 & 3.34, p. 131.

41 See Draft Protocols, Commentary, p. 44.