Additional Protocol II

Additional Protocol II
Derivative work: Jesuiseduardo · CC BY-SA 4.0 · source
Name	Additional Protocol II to the Geneva Conventions
Date signed	8 June 1977
Location signed	Geneva
Parties	ICRC depositary; Parties to the Geneva Conventions
Effective date	7 December 1978
Languages	English, French

Additional Protocol II

Additional Protocol II is a 1977 international treaty supplementing the Geneva Conventions that governs humanitarian protections in non-international armed conflicts. Drafted at the Geneva conference and deposited by the ICRC, it complements instruments such as the Hague Conventions and interacts with customary law recognized in decisions of the International Court of Justice and jurisprudence of the International Criminal Court. The Protocol influenced subsequent instruments like the Convention on Certain Conventional Weapons and informed debates at the United Nations General Assembly.

Background and Negotiation

The Protocol emerged from post-World War II developments including the Algerian War, the Vietnam War, the Nigerian Civil War, and the decolonization conflicts discussed at the United Nations and by the ICRC. Negotiations involved delegations from states such as France, the United Kingdom, the United States, Soviet Union, India, Japan, and members of the Non-Aligned Movement as well as observers from the IFRC. Key figures included legal advisers from the Geneva Academy of International Humanitarian Law and Human Rights and scholars influenced by writers like Henri Dunant and jurists appearing before the European Court of Human Rights. Contentious sessions referenced precedents from the League of Nations and earlier conventions such as the 1929 Geneva Convention.

Scope and Key Definitions

The text defines its application to armed conflicts not of an international character occurring within the territory of a High Contracting Party, drawing on terminology debated in cases before the International Court of Justice and scholarship at Harvard Law School, Oxford University, and the Geneva Academy. It distinguishes situations involving insurgency and internal disturbances as contrasted with international armed conflict examples like the Korean War or the Falklands War. The Protocol clarifies notions of "armed conflict", "territorial control", and "persons taking no active part" with reference to practice cited by the ICRC and analyses published by the Max Planck Institute for Comparative Public Law and International Law.

Protections and Obligations

Additional Protocol II elaborates protections for civilians, detainees, and medical personnel, invoking norms resonant with articles in the European Convention on Human Rights and resolutions of the United Nations Security Council. It enumerates humane treatment obligations, prohibitions on collective punishment, and safeguards for the wounded and sick similar to rules found in the First Geneva Convention and the Fourth Geneva Convention. Provisions address non-discriminatory aid by organizations like the ICRC and permit relief operations coordinated with agencies such as UNHCR and the World Health Organization. The Protocol specifies constraints on means and methods of warfare reflecting concerns later taken up in litigation before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court.

Implementation and Compliance

Implementation relies on domestic incorporation through national legislation, judicial decisions, and military manuals of states including United States directives, French Armed Forces doctrine, and guidance from the UK Ministry of Defence. Compliance monitoring has involved the ICRC, non-governmental organizations such as Amnesty International and Human Rights Watch, and reporting to bodies like the United Nations Human Rights Council. Enforcement mechanisms include criminal prosecutions in national courts, universal jurisdiction cases exemplified by proceedings in Germany and Spain, and referrals to international tribunals exemplified by the International Criminal Court and ad hoc tribunals.

State Practice and Reservations

Many High Contracting Parties ratified with interpretative declarations or reservations referencing domestic constitutional arrangements, as seen in statements by United States and China representatives and policy papers from Russia. State practice varies: some states incorporated the Protocol into penal codes and military manuals, while others cited concerns echoed by the Non-Aligned Movement and the Organization of American States. Comparative analysis in reports by the ICRC, the International Law Commission, and scholarship at the London School of Economics highlights divergent approaches to classification of conflicts like the Sri Lankan Civil War and the Syrian civil war.

Impact and Criticism

The Protocol strengthened legal protection in internal conflicts and influenced case law at the International Criminal Tribunal for Rwanda, the European Court of Human Rights, and the International Criminal Court. Critics, including commentators from Harvard Law School and policy analysts at Chatham House, argue that limitations in scope, ambiguous definitions, and state reservations have hindered uniform application, citing counterexamples from the Rwandan Genocide, the Bosnian War, and the Iraq War. Advocates point to enhanced humanitarian access, codification of customary rules, and the Protocol's role in shaping later norms like those in the Rome Statute of the International Criminal Court.

Category:Geneva Conventions