Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)
Protocol I (also Additional Protocol I and AP I)[4] is a 1977 amendmentprotocol to theGeneva Conventions concerning the protection of civilian victims of international war, including "armed conflicts in which peoples are fighting againstcolonial domination,alien occupation orracist regimes".[5] In practice, Additional Protocol I updated and reaffirmed the international laws of war stipulated in the Geneva Conventions of 1949 to accommodate developments of warfare since the Second World War (1937–1945).
Protocol I contains 102 articles. The following is a basic overview of the protocol.[6] In general, the protocol reaffirms the provisions of the original fourGeneva Conventions. However, the following additional protections are added.
Article I states that the convention applies in "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".
Article 15 states that civilian medical and religious personnel shall be respected and protected. This includes that Parties shall give all available help to civilian medical personnel.
Articles 17 and 81 authorize theICRC, national societies, or other impartial humanitarian organizations to provideassistance to the victims of war.
Article 37 prohibitsperfidy. It identifies four types of perfidy and differentiatesruses of war from perfidy.
Article 40 prohibitsno quarter, i.e. to order that there shall be no survivors, to threaten as such, or to conduct hostilities on that basis.
Article 42 outlawsattacks on pilots and aircrews who are parachuting from an aircraft in distress. Once they landed in territory controlled by an adverse party, they must be given an opportunity tosurrender before being attacked, unless it is apparent that they are engaging in a hostile act.Airborne troops, whether in distress or not, are not given the protection afforded by this Article and, therefore, may be attacked during their descent.
Article 43 deals with the identification of Armed Forces that are Party to a conflict, and states thatcombatants "shall be subject to an internal disciplinary system which,inter alia, shall enforce compliance with the rules of international law applicable in armed conflict."
Articles 51 and 54 outlawindiscriminate attacks on civilian populations, and destruction offood sources, water, and other materials needed for survival. This include directly attacking civilian (non-military) targets, but also using technologies whose scope of destruction cannot be limited.[7] Atotal war that does not distinguish between civilian and military targets is considered awar crime.
Articles 53 prohibits attacks on historic monuments, works of art or places of worship.
Article 56 covers attacks on "works and installations containing dangerous forces", such asdams,dykes,nuclear electrical generating stations. These targets (and other military targets in their vicinity) may not be attacked if they threaten the release of dangerous forces.
Chapter II, consisting of Articles 76, 77 and 78, provides special protections for women and children. In particular, the death penalty shall not be executed on children under eighteen years old, and shall be avoided on pregnant women and mothers having dependent infants. Further, children under fifteen years old shall not be recruited into the armed forces, and Parties shall take all reasonable measures to prevent them from taking part in hostilities.
Article 79 states that journalists shall be considered as civilians and given the same protections. Civilian war correspondents attached to armed forces who are captured shall have the same rights as prisoners of wars, as outlined in the ThirdGeneva Convention.[6]
As of August 2024, it had beenratified by174 states.[8] The United States, Iran, and Pakistan signed it on 12 December 1977 but never ratified it.Israel,India, andTurkey have not signed the treaty.
On 16 October 2019, PresidentVladimir Putin signed anexecutive order[9] and submitted aState Duma bill to revoke the statement accompanying Russia's ratification of the Protocol I, accepting the competence of the Article 90(2) International Fact-Finding Commission.[10][11][12] The bill was supplied with the following warning:[10][12]
Exceptional circumstances affect the interests of the Russian Federation and require urgent action. ... In the current international environment, the risks of abuse of the commission's powers for political purposes by unscrupulous states who act in bad faith have increased significantly.
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 regimes in the exercise of their right of self-determination.
Jan Arno Hessbruegge, who works at the New York Office of the United Nations High Commissioner for Human Rights, examined the three categories listed in his bookHuman Rights and Personal Self-defense in International Law:[13]
"colonial domination" refers to far-away overseas colonies with clear geographical boundaries. It was not meant to apply to states conquering and annexing adjacent territories.
"alien occupation" refers to "cases where the occupied territory did not yet form part of a state at the time of occupation but was occupied by a distinct group, such as the Palestinian people".
"racist regimes" included countries that had institutionalized racism, not countries where the government merely practices racial discrimination. At the time the protocol was written, this mainly referred to South Africa and Rhodesia.
Legal scholar Waldemar A. Solf opined that Article 1(4) was largely symbolic and gave party states "a plausible basis for denying its application to their situation", while the states which the article most applied to (e.g., Israel, and apartheid-era South Africa) would not sign the agreement at all.[14]
TheReagan administration declared that Article 1(4) would "grant terrorists a psychological and legal victory",[15] as it appears to grant combatant status to non-state actors, many of which (such as thePalestine Liberation Organization) have been designated as terrorist groups by the United States and other countries. By contrast, an article in theInternational Review of the Red Cross argues that this article, in fact,strengthens the fight against terrorism, by applying thelaws of war (including all its prohibitions and obligations) to nationalwars of liberation. By granting combatant status to non-state actors in wars of liberation, it too requires non-state actors to follow the strict prohibitions against acts of terror (Article 13, Article 51(2), etc.).[16]
^Russia revoked their ratification of the point 2 ofArticle 90 on 16 October 2019 via executive order and submitted such legislation to be adopted by the State Duma.[3]
^Hessbruegge, Jan Arno (2017).Human rights and personal self-defense in international law (First ed.). New York, NY: Oxford University Press. p. 317.ISBN9780190655020.
^According to "A Response to Douglas J. Feith'sLaw in the Service of Terror -- The Strange Case of the Additional Protocol" by Waldemar A. Solf (1986),Akron Law Review vol. 20, issue 2, p. 285: "In view of the foregoing, it follows that the self determination provision in Art. 1(4) is largely symbolic and is not at all likely to present any practical problems in operations except that it automatically precludes Israel and South Africa from being parties to the Protocol, an unfortunate consequence in view of the military capability of both states in relation to their neighbors."
^According to"Exceptional Engagement: Protocol I and a World United Against Terrorism" by Michael A. Newton (2009),Texas International Law Journal vol. 45, p 323: "The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework."
"New rules for victims of armed conflicts, Commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949", by M. Bothe,K.J.PartschArchived 6 May 2009 at theWayback Machine, W.A. Solf, Pub: Martinus Nijhoff The Hague/Boston/London, 1982,ISBN90-247-2537-2
