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Whither now, Additional Protocol I?

Additional Protocol I to the Geneva Conventions was adopted in 1977 to ‘remedy shortcomings‘ in the original conventions of 1949. It contains a more detailed set of standards in all areas of international armed conflict, and expands the definition of ‘international armed conflict’ to include wars of national liberation (Art. 1.4.). (Non-international armed conflicts are governed by Additional Protocol II.) It has now been adopted by 167 states.

Additional Protocol I is often cited in reference to the Arab-Israeli conflict. For example, it is said that Israel’s recent actions in Gaza violated the principle of distinction ‘enshrined in Articles 57 and 58 of Additional Protocol I’ and the principle of proportionality ‘found in Article 51 of AP I’. Superficially at least it is the relevant document, because lacking more accurate terminology the Israel-Palestine conflict is generally viewed as either a ‘war of national liberation’ or a continuation of the broader Arab-Israeli conflict and hence an international one.

However, Israel, along with the US, Iran, Pakistan, India, the Philippines, Sri Lanka and a number of other states, has not adopted Additional Protocol I, and its status under customary international law is therefore unclear. (The International Red Cross has published an exhaustive list of 161 rules, which it considers to summarize customary international humanitarian law, and it contains some of the standards set out in Additional Protocol I.  However, this cannot be viewed as authoritative: the ICRC is not the keeper or guardian of international humanitarian law, much as it might wish to present itself as such.) Why, if essentially all states in the world have now ratified the four Geneva Conventions, is there an unwillingness on the part of some to adopt Additional Protocol I?

It is surely no coincidence that many of the states which have not ratified the protocol are confronted by genuine threat, or actual existence, of an international armed conflict (whether in the traditional sense or in the guise of a ‘war of national liberation’). The Philippines has for years struggled with Islamist separatists in its South; the Sri Lankan civil war only now appears to be coming to an end after decades of strife; India faces the prospect of conflict on numerous fronts both domestic and international; and the threat of war has loomed large over Israel since its very inception. (It is debatable whether some of these conflicts or threats of conflicts constitute wars of national liberation and thus international armed conflict; the fact that the issue is debatable, however, is enough to muddy the waters. Certainly, belligerent groups in Sri Lanka and the Philippines believe themselves to be fighting in that context.) While not all non-ratifiers are faced with such circumstances, and not all states threatened by the prospect of international armed conflict have not ratified the protocol, in general terms there is a definite correlation.

It would be grossly dismissive and reductionist to tar the non-ratifying states with the brush of lack of respect for civilian life or to group them together in an axis of evil: they range in nature from theocratic dictatorships (Iran), to ‘imperfect’ democracies (Indonesia, Singapore, Sri Lanka, Morocco), to parliamentary republics (the US, Israel, India, the Philippines). And the reasons for non-ratification cannot be a uniform disregard for IHL or an unwillingness to protect human life, given that all those states have ratified the four original Geneva Conventions. Rather, it must simply the case that these states do not wish to expose themselves to a stricter and more elaborate set of rules that will curtail their capacity to fight a war: i.e., they believe adherence to Additional Protocol I would make the successful execution of military action difficult or impossible.

Whether or not these states are correct in that belief is an issue for another blog entry. But that so many states who face conflict (and in the inclusion in their number of particularly influential countries such as the US and India) have not ratified the protocol does not bode well for its stated aim of ‘entitling civilians to better protection from the effects of war’. It is one thing for states such as Norway, Iceland and Paraguay to have shown willingness to accede; where there is no threat of war there is a luxury in demonstrating respect for strict standards of war-making. It would be quite another thing for Israel or Sri Lanka, where warfare is active and ongoing and a genuine danger to the very existence of the state, to do the same. While this hardly makes the additional protocol a dead letter (both Koreas are adopters, for example), one wonders whether it can have great value beyond being merely illustrative of opinio juris, given that its standards will not apply in many of the regions where they are supposedly most needed – the issue of customary law notwithstanding.

7 Comments

  1. Anne Herzberg Anne Herzberg 5 February 2009

    Thank you for this very informative post and for not engaging in rhetoric or hyperbole, unlike so many other articles on this topic.

  2. davidmcgrogan davidmcgrogan Post author | 5 February 2009

    Thanks, Anne. I think that international humanitarian law is the most difficult topic to remain neutral about, but remaining neutral is really the only way of picking through the metaphorical minefield. Rhetoric and hyperbole tend to simply polarise opinion.

  3. jernejl jernejl 5 February 2009

    This blog attempts to present both sides of the story and it is certainly not a place for character assassination.

  4. Shashank Shashank 8 February 2009

    Though the neutrality of the post is commendable, and the very purpose of it is to create a doubt about the customary nature of AP I, I had a few questions of pure academic interest:
    – It is not only the ICRC – whose role you correctly seem to question – but several other international authorities and tribunals that have affirmed the customary law status of large parts of the AP (ICTY Trial Chamber 3 Decision Dt. 2 Mar. 1999, for example). What then would their credibility be?
    – Also, considering the classic rule of the formation of customary international law, that of taking deviations from a custom as violations rather than as evidence of lack of state practice, couldnt it be argued that these countries do not represent the absence of state practice but are mere deviations from the same? Or maybe even the persistent objector principle?
    Of course, all of the above is purely academic, the effect of what you have said is indeed that, in reality, a large number of conflicts become unregulated.
    Shashank

  5. davidmcgrogan davidmcgrogan Post author | 9 February 2009

    Shashank: Those questions are both interesting, because they go to the heart of the philosophy of customary law – for want of a better term.
    Regarding the international authorities and tribunals you mention, it’s important to note that such bodies do not have a central role in forming customary law; rather, their decisions are illustrative of its trends. State practice and opinio juris are the only shapers of customary law. So while the opinion of the ICTY is important, it is not the final arbiter. It is also important here to note that international courts and tribunals can be guilty of delivering political rather than legal verdicts (some, such as the ICJ, are worse than others), and their pronouncements are not always to be trusted as definitive.
    In my opinion three things cast doubt on AP I’s status as customary international law:
    – Firstly, it has only been in existence for just over 30 years – is this enough to indicate consistent State practice and opinio juris over a significant period of time? Perhaps, but perhaps not.
    – Secondly, a significant number of States reject it or are unwilling to recognise it. 167 States are adopters, but that is hardly a unanimous statement when one considers that there are over 200 States. Moreover, the non-ratifiers are generally not pariah States or international outcasts – they include the USA, Israel, India, Indonesia, Singapore, the Philippines and Sri Lanka. The non-adopters are not a small coterie of deviators or persistent objectors.
    – Thirdly (and most importantly), we have to take into consideration the brute fact that the large majority of armed conflicts which have taken place over the last 30 years have taken place where AP I does not apply – because a) the countries which regularly engage in warfare are not usually adopters, and crucially, b) those countries do not act in such a way as to demonstrate that they feel an obligation to conform to the protocol’s strictures. In order for a rule to be considered customary law, the vast majority of States, including those not party to the relevant treaty if there is one, have to demonstrate that they feel obligated to abide by its strictures. This is not the case with AP I.
    It is my belief that AP I’s status as a part of customary international law would only be confirmed if countries which had not adopted the protocol nevertheless seemed to feel obliged to act in accordance with its principles. That Sri Lanka, Israel, the US, Iran, Iraq, the Philippines, Indonesia etc. do not seem to feel so obliged, indicates to me that statements about AP I being part of customary law are premature.
    In addition, the fact that most State parties to AP I do not regularly engage in armed conflict while most non-ratifiers do, means State practice in armed conflict is heavily skewed in one direction. This makes the situation very unclear, and again makes statements about the customary status of AP I premature in my opinion.

  6. Seneque Seneque 21 April 2009

    I’d like to thank davidmcgrogran for this post, but respectfully submit that an important element has thus far gone unaddressed about the nature of “emerging” custom.
    It is is simply inaccurate to speak of an entire treaty “becoming” customary law instead of its individual articles. Nevertheless, non-signatory states may respect the entirety of a treaty as “reflective of customary law” (or some other formulation to that extent) without being bound de jure to the treaty itself.
    An importan caveat however, is that IHL is special in this regard, as High Contracting Parties are generally unable to pick and choose which articles they like. Often then, States have refused to join a treaty regime while stating that they will observe its humanitarian provisions to the extent that they alread reflect binding (customary) obligations.
    Let us not overlook that this the affirmation of new treaty regimes is a highly politicised process, and that certain States (the U.S. comes to mind) have to contend with legal cultures resistant to international law in general. States may thus be eager to participate in the drafting and ratification process without intending to sign on until some later date at which point the treaty has become politically palatable at home. This isn’t limited to the U.S., as France didn’t join API until 2001….
    Specifically regarding API, many if not most of the non-signatory States have made objections to the controversial Art. 1(4) “wars of national liberation…” language while affirming their commitments to the humanitarian provisions. Likewise Art. 44(3) has generated much objection. Article 75 on fundamental guarantees, the important targeting and proportionality rules, and the critical principle of distinction have been affirmed by many of the non-signatory states. Sometimes the refusal to sign has been an (arguably) good faith effort to prevent the dilution of these principles. The U.S. objection to Art. 44(3) is based on the idea that it has delitorious effect on the principle of distinciton.
    Israel has also agreed to apply de facto provisions that it considers customary or fundamental to the principle of humanity. Thus your statement that “Sri Lanka, Israel, the US, Iran, Iraq, the Philippines, Indonesia etc. do not seem to feel so obliged” is true only as regards the controversial articles. I’m not sure about Iran and Iraq, but I know that Sri Lanka and the Philippines (at least) have also made statements about API’s humanitarian provisions.
    It is also in this regard that I interpret the ICRC’s treatment of API’s substantive provisions in its Customary Law Study. In which the vast majority of rules are said to apply in both international and non-international armed conflict.
    Finally, the idea that Article 1(4) of API itself could become customary is – sorry to disappoint – a lost cause. It was extraordinarily innovative, political, and context-specific at the time (see the TP and the Pictet commentary), and has been the precise point of objection by so many non-signatories. It has never (to my knowledge, but someone please correct me if I’m wrong) been upheld in an international forum, and has come under increased, not decreased criticism as a blocking point in the development and respect for IHL.
    Thanks for the discussion.

  7. Seneque Seneque 21 April 2009

    Sorry to multi-post.
    By “international forum” in the last paragraph, I was referring to tribunals, not other fora such as conferences

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