40th Anniversary of the Additional Protocols of 1977 of the Geneva Conventions of 1949

On 8 June 1977, at the invitation of Switzerland, plenipotentiaries of more than one hundred States gathered at the “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” to finalize and adopt Additional Protocols I and II (APs I and II) to the 1949 Geneva Conventions (GCs). Together with the GCs, APs I and II form the core of international humanitarian law.

Their adoption forty years ago marks a milestone in the regulation of armed conflicts. By developing and supplementing the GCs, AP I and II significantly improved the legal protection of victims of armed conflicts. A key achievement of the APs I and II was codifying and developing rules on the conduct of hostilities and those related to the protection of civilians from the effect of hostilities. In treaty law, these rules had remained untouched since the Hague Conventions of 1907. Another crucial enhancement lies in the extension of the protection granted under the GCs to all medical personnel, units and means of transport, whether civilian or military. Both Protocols also expand on the obligations of parties under the GCs with respect to fundamental guarantees for all persons in the power of a party to an armed conflict, the prohibition of acts of violence against detainees and internees, and the requirements that parties provide them with basic necessities, and respect fair-trial guarantees in case of penal prosecution. Moreover, article 90 API brought a new control mechanism to international humanitarian law: the International Humanitarian Fact-Finding Commission.

APs I and II entered into force on 7 December 1978, six months after the second instrument of accession had been deposited by Libya.

One of the biggest successes of the APs is that participation in their negotiation was universal. While the GCs were largely negotiated by European States, all States Parties to the GCs or Members of the UN were invited to attend the Diplomatic Conference at which the Protocols were negotiated. Among other reasons, this explains why the Protocols took four years, and the Conventions only four months, to negotiate. Tellingly, although the authentic texts of the GCs were English and French, the Protocols are authentic in English, Arabic, Chinese, Spanish, French, and Russian. Thus, new States gained a greater sense of ownership of IHL, and the reaffirmation of basic IHL principles by the wider international community of the 1970s was an important goal in itself.

While the four GCs are now universally ratified, the same is not yet true for APs I and II, despite the trend towards wide acceptance. In 1990, only 96 States were parties to AP I and 86 to AP II. In 1995, after the disintegration of the Soviet Union, the number of States parties to APs I and II increased respectively to 146 and 133. Today, 40 years after their adoption, there are 174 States parties to AP I and 168 State parties to AP II, including China, Germany, Russia, France and the UK, as well as the big majority of NATO countries. Therefore, approximately 85 percent of States parties to the GCs (196) are today parties to APs I and II.

Let us now look at the facts and figures more closely. Western European and Others Group (WEOG): very satisfactory on the whole, though four absentees, namely Andorra, Israel, Turkey, United States of America. Africa: Very few absentees (Angola (AP II), Eritrea, Somalia). Eastern European Group: very satisfactory, only one absentee (Azerbaijan). Latin American and Caribbean Group (GRULAC): Only Mexico has not ratified AP II. Asia-Pacific Group: this is the region with the highest number of non-participating countries (four States have ratified API but not AP II (Iraq, DPRK, Syria, and Vietnam); 15 have ratified neither API nor AP II: Bhutan, India, Indonesia, Iran, Kiribati, Malaysia, Marshall Islands, Myanmar, Nepal, Pakistan, Papua New Guinea, Singapore, Sri Lanka, Thailand, Tuvalu). It should be added that the United States of America, Iran and Pakistan have signed but not ratified APs I and II.

To date, 38 States have formulated nearly 180 unilateral declarations pertaining to AP I, whereas 19 States have formulated 47 declarations pertaining to AP II. While it is not always easy to distinguish between reservations and interpretative declarations, a big majority of unilateral declarations do not appear to be reservations as defined by the Vienna Convention. One must note that reservations do not have solely unfortunate aspects; they also foster universal participation in a treaty.

Therefore, despite the universal participation of States during the negotiations of the APs, they are not yet universally ratified. The principal concerns of most States not ratifying AP I were the inclusion of wars of national liberation in the definition of international armed conflict under Art. 1(4) (which applied AP I and all provisions of the four GCs to conflicts in which peoples were fighting against colonial domination, alien occupation, and racist regimes), the recognition of combatant status to guerrilla fighters and the provisions on means and methods of warfare that would limit the use of certain weapons, including, it was believed, nuclear weapons. For AP II, extending the essential rules of IHL to NIACs, the fear was mainly that it might affect State sovereignty and prevent governments from effectively maintaining law and order within their borders. Negotiated between 1974 and 1977 during wars of national liberation, APs I and II were highly contested. However, today the context is very different.

40 years have now passed since the APs were adopted. This is in itself a good reason for States not yet parties to examine if the considerations raised at the time for not joining API and II are still relevant. Most of the States in the world finally joined API and II, including States such as France, Germany, and the United Kingdom, that had at first voiced reservations regarding their content (and indeed joined in the end, subject to a number of reservations and important interpretive declarations). Moreover, through the development of customary law and case-law of Ad-Hoc International Tribunals, the decision not to join APs I and II now has limited practical effect. All States are bound by most of the rules of the APs through customary international law (except in cases in which a State is considered a “persistent objector” of a specific customary norm). Therefore, most of the objections voiced at the time of the adoption of APs I and II appear to no longer constitute an obstacle to joining it. However, some doubts may still exist with regard to articles 43-44 of API, with respect to the definition of armed forces of a Party to the conflict and to the definition of combatant.

There is wide agreement that the rules of APs I and II have withstood the test of time, remain as pertinent as at the time of their adoption and that, in the main, they give expression to international customary law. However, perhaps at no time since 1977 is there a greater need to reaffirm international humanitarian law, as expressed in the two APs. In this respect, each additional ratification or accession would send a much needed signal in favor of the basic rules and principles designed to alleviate the suffering that accompanies today’s armed conflicts.

It therefore is pertinent to seize the occasion of the 40^th anniversary of AP I and II to ask States three things:

• Firstly, for all non-ratifying States of APs I and/or II: Are the reasons for not ratifying the APs still pertinent? If yes, are there ways to address lingering concerns and do the challenges outweigh the advantages of joining the APs? In most cases, most of the reasons for not joining the APs at the time they were drafted will appear to no longer constitute an obstacle to joining them today.
• Secondly, for States parties to AP I: Are the reasons for not recognizing the competence of the International Humanitarian Fact-Finding Commission established under article 90 of AP I still pertinent? States Parties to AP I can make this recognition by depositing a declaration to that effect with Switzerland, the Depositary State of AP I. Out of 174 States parties to AP I, only 76 have done so.
• Thirdly, are the reservations that States parties to AP I and/or II submitted at the time of ratification or accession still relevant? If not, withdrawal of these reservations should be considered in conformity with article 22 of the Vienna Convention on the Law of Treaties.

This article was written in a personal capacity and does not necessarily reflect the views of the Swiss Federal Department of Foreign Affairs (FDFA).