Id Art 31 2 13 Protocol Ii Supra Note 6 Art 11

[p.1367] Article 4 -- Central guarantee

[p.1368] General remarks

4515 Article 4, paragraphs one and 2, reiterates the essence of common Article 3 , in particular paragraph i, sub-paragraph (1)(a), (b) and c) thereof. These rules [p.1369] were supplemented and reinforced by new provisions inspired by the Conventions and the International Covenant on Civil and Political Rights. (1)

4516 The rule on quarter is given at the end of paragraph ane. This provision originates in Hague police force and is based on Article 23, paragraph one(d) , of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land.

4517 Paragraph 3 is devoted more particularly to the protection of children and reiterates some principles already contained in the fourth Convention, specially in Articles 17 , 24 and 26 .

4518 The diversity of the subject matter dealt with in this article tin can be explained in the calorie-free of a review of the history of the negotiations. The primal guarantees equally provided in Article 6 of the ICRC draft correspond to paragraphs 1 and 2 of the present commodity, with the exception of the provision on giving quarter. The rule on quarter was contained in Article 22 of the draft, which too proposed some other rules on conduct in combat; (2) this was an abbreviated version of Part III, Section I, of Protocol I ' (Methods and means of warfare). ' These articles, which were adopted in Committee, were not retained when the Protocol was adopted in plenary meetings with the exception of the dominion on giving quarter, which the Pakistani delegation had retained in its proposal for a simplified Protocol. (3) In the absence of whatsoever further rules in the Protocol for the comport of combatants it seemed logical to include the dominion on quarter among the central guarantees, and this proposal did not encounter any opposition.

4519 Protection of children was also included in a split provision of the draft (Commodity 32). The commodity as such was not retained when the Protocol was adopted, but the most essential elements of its content were included in Article 4 in the form of the present paragraph 3. (4)

Paragraph 1

' Showtime two sentences -- General principle of humane treatment '

4520 The telescopic of application equally defined here applies not only to Article 4, merely as well to Part Two equally a whole. ' Ratione personae ' it covers all persons afflicted past armed conflict within the significant of Article two of the Protocol ' (Personal field of [p.1370] awarding) ' when they do not, or no longer, participate straight in hostilities. ' Ratione temporis ' combatants are protected as soon as they are ' hors de combat. ' (5)

4521 The right of protected persons to respect for their laurels, convictions and religious practices is an element of humane treatment confirmed in this paragraph. The formula is taken, with slight modification, from Article 27 of the 4th Convention.

"The right of respect for the person must exist understood in
its widest sense: it covers all the rights of the individual, that is, the rights and qualities which are inseparable from
the human being being by the very fact of his being and his mental and physical powers." (six)

4522 It should be noted that Article 27 of the 4th Convention refers to religious convictions and practices, while Article 4 of Protocol 2 refers to "convictions and religious practices". This slight drafting modification is not arbitrary and gave rise to lengthy debate. (7) It is aimed at making the describing word "religious" qualify just the word "practices"; convictions are non necessarily religious and information technology is important that philosophical and political convictions, which are non specifically part of a organized religion, are also ensured respect. This is why it was thought necessary to make this point. (8)

4523 The term "treat humanely" is based on the Hague Regulations. (9) It was as well used in the 1929 and 1949 Conventions. The give-and-take "treatment" should be understood in its broadest sense as applying to all the conditions of man'southward existence. (10)

4524 The words "without any agin distinction" tin exist explained in the low-cal of Article 2 ' (Personal field of awarding), ' paragraph 1:

"without any agin distinction founded on race, color, sex, language, religion or belief, political or other opinion, national of social origin, wealth, [p.1371] birth or other status, or on whatsoever other similar criteria (hereinafter referred to equally "adverse distinction")." (11)

' Third sentence -- The rule on quarter '

4525 This is ane of the central rules on the conduct of combatants inspired by Hague law. (12) It is aimed at protecting combatants when they fall into the hands of the adversary by prohibiting a refusal to save their lives if they surrender or are captured, or a decision to exterminate them. (13) The text of the draft was more explicit and read as follows: "It is forbidden to order that there shall be no survivors, to threaten an adversary therewith and to conduct hostilities on such basis." (14) The present diction is briefer, merely does non alter the essential content of the rule. Clearly respect for this rule is fundamental. It is a precondition governing the application of all the rules of protection laid down in the Protocol, for any guarantees of humane treatment, any rule on care to be given the wounded and sick, and any judicial guarantees would remain a dead letter of the alphabet if the struggle were conducted on the basis of orders to exterminate the enemy.

4526 The inclusion of this provision amongst the fundamental guarantees laid downward in Commodity 4 is of special importance. In fact, it indirectly indicates the moment from which combatants who are no longer able to fight are protected by Function Two, a function originally assigned in the draft to the rule on safeguarding enemies ' hors de combat '. (15) Protection of enemies ' hors de gainsay ' is in a fashion the concluding stage of the nowadays dominion on quarter, in the sense that the prohibition against ordering that in that location will be no survivors affects the concept of military operations fifty-fifty before the enemy is ' hors de gainsay. ' (16)

Paragraph 2

' Opening judgement '

4527 The general principle on humane treatment laid down in the preceding paragraph is illustrated with a not-exhaustive list of prohibited acts. The term "without prejudice to the generality of the "foregoing" means that none of the specific prohibitions can have the result of reducing the scope of the general principle.

[p.1372] 4528 The prohibitions are explicit and do not allow for any exception; they apply "at whatever time and in whatever place whatsoever". They are accented obligations. (17)

4529 For reasons of a legal and political nature, (18) there are no provisions prohibiting "reprisals" in Protocol Ii.

4530 The list of prohibited acts is fuller than that of common Article 3 . That being so, and because of the absolute character of these prohibitions, which apply at all times and in all places, in that location is in fact no room left at all for carrying out "reprisals" confronting protected persons. Such an interpretation was already given in the commentary on common Article iii . In the absence of an limited reference to "reprisals", the ICRC considered that they were implicitly prohibited.

[p.1373] 4531 The argument for this view was based on both the spirit and the letter of common Article iii :

"The acts referred to under items (a) to (d) are prohibited absolutely and permanently, no exception or excuse being tolerated. Consequently, any reprisal which entails ane of these acts is prohibited, and so, speaking generally, is any reprisal incompatible with the "humane treatment" demanded unconditionally in the first clause of sub-paragraph (one)." (19)

The strengthening of fundamental guarantees of humane treatment in Protocol II and, in particular, the inclusion of a prohibition on collective punishments (xx) confirms this interpretation without calling into question the refusal of the negotiators to introduce the legal concept of reprisals in the context of non-international armed conflict.

' Sub-paragraph ' (a) -- ' Violence to the life, health and physical or mental well-being of persons '

4532 This sub-paragraph reiterates paragraph 1, sub-paragraph (1)(a) of common Commodity 3 . The scope of the prohibition was considerably strengthened; "violence to the life, health, and physical or mental well-being" is farther-reaching in protection than the sole mention of violence to life and person, as contained in Commodity iii . The list is of class non-exhaustive, as shown by the words "in particular". Murder covers not only cases of homicide, but also intentional omissions which may lead to death; the prohibition of torture covers all forms of physical and mental torture.

4533 The practise of torture is prohibited by international law, (21) and is universally condemned. It is one of the evils which the international customs seeks to eradicate. Therefore, for many years torture has been ane of the United nations'concerns. The General Assembly of the Organisation has adopted a number of resolutions which, although they exercise not create mandatory obligations, exercise have an important moral force; the Annunciation on the Protection of All Persons from being Subjected to Torture and Other Savage, Inhuman or Degrading Treatment or Penalisation, of 9 December 1975 (Resolution 3452 (Thirty)) deserves particular mention. Finally, the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Penalisation was adopted past the General Assembly on 10 December 1984 (Resolution 39/46). The nearly widespread form of torture is practised by public officials for the purpose of obtaining confessions, but torture in not only condemned every bit a judicial institution; the act of torture is reprehensible [p.1374] in itself, regardless of its perpetrator, and cannot be justified in any circumstances. (22)

4534 The mention of corporal penalisation is new, as it did non appear in mutual Article 3 ; (23) it met the wish of a number of delegations that corporal punishment be explicitly mentioned in the text. (24)

' Sub-paragraph ' (b) -- ' Commonage punishments '

4535 The ICRC draft prohibited collective penalties in Article nine relating to the ' principles of penal law ' every bit a corollary of individual penal responsibility. (25) On this point it was inspired by Commodity 33 of the quaternary Convention. The ICRC intended to give this prohibition the aforementioned significance as the above-mentioned Commodity 33 , i.e., to prohibit "penalties of whatsoever kind inflicted on persons or entire groups of persons in defiance of the most elementary principles of humanity, for acts that these persons have not committed". (26)

4536 In the Working Group of the Committee some delegates considered that this prohibition should not exist included amongst penal provisions since, in that context, it would announced to chronicle only to penalties imposed by the courts. The concept of collective penalisation was discussed at nifty length. Information technology should exist understood in its widest sense, and concerns non only penalties imposed in the normal judicial process, just also any other kind of sanction (such as confiscation of property) every bit the ICRC had originally intended. (27) The prohibition of collective punishments was included in the commodity relating to key guarantees by consensus. That decision was important because it is based on the intention to give the dominion the widest possible telescopic, and to avert whatever take chances of a restrictive interpretation. (28) In fact, to include the prohibition on collective punishments amid the acts unconditionally prohibited by Article 4 is nigh equivalent to prohibiting "reprisals" against protected persons.

[p.1375] ' Sub-paragraph ' (c) -- ' The taking of hostages '

4537 This sub-paragraph reaffirms a prohibition which is already independent in common Commodity three, paragraph 1, sub-paragraph (ane)(b) . (29) It should exist noted that hostages are persons who are in the power of a party to the conflict or its amanuensis, willingly or unwillingly, and who reply with their liberty, their concrete integrity or their life for the execution of orders given past those in whose hands they have fallen, or for any hostile acts committed against them. (30)

' Sub-paragraph ' (d) -- ' Acts of terrorism '

4538 The prohibition of acts of terrorism is based on Commodity 33 of the fourth Convention. The ICRC draft prohibited "acts of terrorism in the course of acts of violence committed against those persons" (i.e., against protected persons). (31) The formula which was finally adopted is simpler and more full general and therefore extends the scope of the prohibition. In fact, the prohibition of acts of terrorism, with no farther detail, covers not merely acts directed against people, but likewise acts directed against installations which would cause victims every bit a side-outcome. Information technology should exist mentioned that acts or threats of violence which are aimed at terrorizing the civilian population, plant a special type of terrorism and are the object of a specific prohibition in Article 13 ' (Protection of the civilian population), ' paragraph two.

' Sub-paragraph ' (e) -- ' Outrages upon personal dignity '

4539 This sub-paragraph reaffirms and supplements common Article 3, paragraph 1, sub-paragraph (one)(c) . The ICRC typhoon contained a separate paragraph relating to the protection of women. (32) During the discussions it became articulate that is was necessary to strengthen not merely the protection of women, simply in addition that of children and adolescents who may also be the victims of rape, enforced prostitution or indecent set on. Therefore a reference to such acts was added to sub-paragraph (e). Furthermore, a separate article specifically devoted to protection of women and children was adopted in the Working Group. (33)

[p.1376] 4540 When the Protocol was adopted in plenary meetings, that commodity was deleted past consensus, as the subject matter is already covered by sub-paragraph (east) under consideration here. (34) Information technology should be added that this detail attribute of protection gave rise to considerable interest in the Diplomatic Briefing.

' Sub-paragraph ' (f) -- ' Slavery and the slave trade '

4541 This sub-paragraph reiterates the tenor of Article 8, paragraph one, of the Covenant. It is i of the "hard-core" key guarantees, now reaffirmed in the Protocol. The prohibition of slavery is at present universally accepted; therefore the adoption of this sub-paragraph did not requite rising to any discussion. However, the question may arise what is meant past the phrase "slavery and the slave merchandise in all their forms". Information technology was taken from the Slavery Convention, the offset universal instrument on this subject, adopted in 1926 (Article i). A Supplementary Convention on the Abolition of Slavery, the Slave Merchandise and Institutions and Practises Similar to Slavery, was adopted in 1956, and supplements and reinforces the prohibition; sure institutions and practices comparable to slavery, such equally servitude for the payment of debts, serfdom, the purchase of wives and the exploitation of child labour are prohibited. (35) It may be useful to annotation these points in order to meliorate understand the scope of the prohibition of slavery in all its forms.

' Sub-paragraph ' (yard) -- ' Pillage '

4542 The prohibition of pillage is based on Article 33, paragraph 2 , of the fourth Convention. It covers both organized pillage and pillage resulting from isolated acts of indiscipline. (36) Information technology is prohibited to effect order whereby pillage is authorized. The prohibition has a general tenor and applies to all categories of property, both State-owned and private.

' Sub-paragraph ' (h) -- ' Threats to commit whatever of the foregoing acts '

4543 This offence concludes the list of prohibited acts and enlarges its scope. In do threats may in themselves institute a formidable means of pressure and undercut the other prohibitions. The use of threats will by and large constitute violence to mental well-being within the pregnant of sub-paragraph (a).

[p.1377] Paragraph 3

' Opening sentence -- The principle of aid and protection for children '

4544 Children are particularly vulnerable; they crave privileged treatment in comparison with the remainder of the noncombatant population. This is why they savour specific legal protection. (37)

4545 The general principle of protection laid down at the beginning of the paragraph is illustrated with a listing of obligations unsaid by it (sub-paragraphs (a)-(e)). Equally indicated by the words "in item", this list is illustrative only and does not in any manner prejudice other measures which may be taken.

4546 In the territory under their control, the authorities, both de jure and de facto, have the duty to protect children from the consequences of hostilities by providing the intendance and aid they require, preventing physical injury or mental trauma, and ensuring that they develop as normally as circumstances permit. (38)

4547 This duty is expressed past the use of the discussion "shall": "children shall exist provided" (the French equivalent is "les enfants recevront"). (39)

4548 The words "they require" were chosen in accord with a proposal by a delegation. This flexible formula ways that all the factors relevant for determining the aid required must be taken into account in each private example. (40)

4549 The Conference intentionally did not give a precise definition of the term "child". (41) The moment at which a person ceases to be a child and becomes an developed is not judged in the same way everywhere in the earth. Depending on the civilisation, the historic period may vary betwixt about xv and eighteen years. Subparagraph (c) determines the lower limit of fifteen years for recruitment into the armed forces. The text refers to "children who have not attained the age of fifteen years", which suggests that there may be children over fifteen years. This historic period was chosen as a realistic basis, and considering the Conventions had already taken it into account to ensure that children should have the benefit of priority measures. (42)

[p.1378]

4550 However, this is only an indication and should not be seen every bit a definition. (43) Biological and psychological maturity varies, and information technology is of import not to exclude the possibility that aid is required by children over the age of 15.

4551 Therefore the question immediately arises whether children over the historic period of fifteen who accept been recruited in the armed forces are really no longer considered as children. The problem rarely arises in concrete terms when they participate in hostilities, but rather when they are deprived of their freedom. The very immature may require special attending (such as extra nutrient, for instance, because they are growing). It is desirable and normal practice in many countries to hold them in separate quarters. (44) Thus the fact of having been recruited does not in itself automatically deprive a kid of the help required by his age. Every bit regards judicial proceedings, it must be recalled that the decease penalty for an offence related to the conflict cannot exist pronounced on a person under the age of eighteen years, in accordance with the provisions of Article half-dozen ' (Penal prosecutions), ' paragraph 4, of the Protocol.

' Sub-paragraph ' (a) -- ' Didactics '

4552 This sub-paragraph was not contained in the ICRC draft, which was limited to the material attribute of protection, (45) and information technology is the upshot of an subpoena. (46) Information technology answers the business organization to ensure continuity of didactics and so that children retain their cultural identity and a link with their roots. This rule is aimed at removing the take chances that children separated from their family by the disharmonize might be uprooted by being initiated into a culture, religion or moral code which may non correspond with the wishes of their parents, and in addition could in this mode become political pawns. Religion and morality are an integral part of education, but is was considered preferable to specify "including religious and moral instruction" so that the word "education" should be understood in its broadest sense, and not be interpreted restrictively. (47)

[p.1379] ' Sub-paragraph ' (b) -- ' Reunion of families '

4553 This sub-paragraph is inspired by commodity 26 of the fourth Convention. (48) Parties to the disharmonize must do their best to restore family ties, i.e., they should not only allow searches undertaken by members of dispersed families, but they should even facilitate them. The ICRC draft prescribed that children should be identified in the conflict zone whenever possible and necessary, and that data bureaux should exist established. (49) Such measures, which are contained in the Conventions, (50) were not adopted in the text of Protocol II from a fear that information technology might non exist possible to apply them materially; nevertheless, they go on to be a guideline indicating "appropriate measures". It should be noted that the Central Tracing Bureau (CTA) of the ICRC is an excellent case of a humanitarian organization specialized in the field of bringing about the reunion of dispersed families. In practice its services are oft called upon in situations of international or internal conflicts. In fact, ICRC delegations normally include an "Agency" section staffed with delegates who are seconded, if necessary, by the National Red Cross or Red Crescent Club. The function of the Bureau consists of keeping families together or bringing them together. Its main tasks are: the transmission of messages between families when means of communication take been broken, the communication to families of information regarding the fate of members of the family (notification of where the wounded and sick have been hospitalized and their land of wellness; information on places of internment or detention of persons deprived of their liberty, and on their transfer or release; notification of death), registration of the civilian population, specially children, in case of evacuation.

4554 The Agency is an active instrument in this field. Depending on the circumstances, other initiatives may be useful, such as, for example, the transmission of family unit messages past radio. The most important affair is that the correct of families to exist informed of the fate of their relatives and to exist reunited should be fully recognized, and that steps to this terminate should exist facilitated.

' Sub-paragraph ' (c) -- ' The principle that children should not be recruited into the armed forces '

4555 The prohibition against using children in military machine operations is a fundamental element of their protection. Unfortunately this happens frequently, and children are all too often gear up to follow adults without weighing up the consequences of their acts.

4556 The setting of an age-limit gave rise to lengthy discussion; a number of delegations considered that the age of fifteen was too low, and would accept [p.1380] preferred eighteen. The great divergence of national legislations on this question did non make information technology possible to arrive at a unanimous decision. The historic period of xv proposed on the basis of realistic considerations in the ICRC draft was ultimately adopted. (51) To enhance the chances of this proposal existence accepted the ICRC had followed the age limit laid down in the fourth Convention to ensure that children enjoy privileged treatment. (52)

4557 The principle of non-recruitment likewise prohibits accepting voluntary enlistment. Not only can a child not be recruited, or enlist himself, simply furthermore he will non be "immune to take part in hostilities", i.e., to participate in military operations such every bit gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of demolition. (53)

' Sub-paragraph ' (d) -- ' Continued protection in the example that sub-paragraph (c) is not applied '

4558 This sub-paragraph is the result of the parallel negotiation of the drafts of both Protocols in Committee, which, in this particular case, ended in an apparent weakening of the text, though this should take no practical consequences. In fact, information technology should exist noted that the preceding sub-paragraph (c) contains an absolute obligation, while Article 77 ' (Protection of children), ' paragraph ii, of Protocol I, which corresponds to information technology, is less constraining and reads as follows: "The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities"; the term "all viable measures" leaves the door open to exceptions which justify the provision that if children under fifteen all the same participate in hostilities, they still continue to enjoy the special protection laid down for children. (54) On the other hand, in Protocol Two the text is worded in such a way that there is no escape clause: "Children [...] shall neither be recruited in the war machine or groups, nor allowed to take part in hostilities."

4559 It should be recalled that the aim of this provision is to guarantee children special protection in the turmoil caused by situations of disharmonize. For this reason information technology seemed useful to specify in this sub-paragraph that children will continue to enjoy privileged rights in example the age limit of fifteen years laid down in subparagraph (c) is non respected. In this case making provision for the consequences of any possible violation tends to strengthen the protection.

[p.1381] ' Sub-paragraph ' (e) -- ' Temporary evacuation '

4560 The evacuation of children, as provided in this sub-paragraph, must have an exceptional and temporary grapheme. Information technology should be noted that the possibility of evacuation to a foreign land was non retained; the text refers to "a safer area within the country." (55)

4561 The consent of parents or persons primarily responsible is required "whenever possible". As one delegation argued, it would be unrealistic to make the consent of parents a mandatory requirement as the parents might have disappeared or it may be impossible to contact them. (56)

4562 The question may arise what is meant by persons who "are primarily responsible for their care". It would seem that this term covers not only cases in which the care of the child has been legally entrusted to a guardian (such equally in the example of orphans, or of irresponsible parents), but also cases in which a person materially takes care of a kid and is responsible for it, whether related or not to the child.

4563 A kid may also be entrusted to someone on the ground of the local custom. This is why in addition to the reference to the law there is as well a reference to custom as regards the responsibility for the children's intendance. Custom was included in the text post-obit a proposal in the Working Grouping which discussed the typhoon. In fact, in some countries family unit structure is governed not only by law but too and specially by custom, and it is important to take this into account. (57)

' South. J. '

* (1) [(ane) p.1369] Hereafter referred to equally "the Covenant";

(2) [(2) p.1369] ' Typhoon ', Office Iv: Methods and means of combat (Arts. 20-23);

(3) [(3) p.1369] Meet O.R. IV, p. 20, CDDH/427 and CDDH/430. Cf. besides general introduction to the Protocol, supra, p. 1333;

(4) [(four) p.1369] O.R. 4, p. 20, CDDH/427;

(5) [(5) p.1370] Mutual Fine art. 3, para. one, sub-para. (one), already provides for protection of "those placed hors de combat by sickness, wounds, detention, or whatsoever other cause", but the ICRC considered that it was logical and sensible to specify the time from which a combatant who has ceased to participate in hostilities is entitled to the protection of Role II; it had therefore proposed to include in that Role a rule on protection of enemies ' hors de combat '. Such a provision, which led to some give-and-take because of its position in the Protocol, was non finally retained (adopted in Commission as Article 22 bis among the rules on methods and means of gainsay). Encounter O.R. Iv, p. 68, CDDH/427; O.R. Viii, pp. 332-336, CDDH/I/SR.32, paras. 47-67. A similar rule is contained in Article 41 of Protocol I;

(6) [(6) p.1370] ' Commentary 4, ' p. 201 (Art. 27);

(vii) [(7) p.1370] O.R. Ten, pp. 186-187, CDDH/405/Rev.1, paras. 35 and 36; O.R. Xv, p. 461, CDDH/407/Rev.i, para. 43;

(8) [(8) p.1370] The Covenant, very often called upon as an instrument of reference, contains in Art. 18, para. 3, the words "freedom to manifest one's religion or beliefs". It should be noted that this is a provision from which there tin can exist no derogation, even in time of public emergency. The 1949 commentators naturally interpreted the expression "religious convictions and practices" broadly as evidenced by ' Commentary Iv ', p. 203, ad Art. 27, which reads:
"This safeguard relates to any organization of philosophical or religious beliefs";

(ix) [(9) p.1370] See Art. iv of the higher up-mentioned Hague Regulations;

(ten) [(10) p.1370] ' Commentary IV ', p. 204 (Art. 27);

(11) [(11) p.1371] See commentary Fine art. two, supra, p. 1357;

(12) [(12) p.1371] Article 23, paragraph 1(d), of the in a higher place-mentioned Hague Regulations reads as follows: "It is especially forbidden to declare that no quarter volition be given." This is why this prohibition is known equally the dominion on quarter. Originally a quarter (in French: ' quartier ') was a place of shelter and safety;

(13) [(thirteen) p.1371] ' See Commentary Drafts ', p. 154 (Art. 22);

(14) [(14) p.1371] Art. 22 of the draft, which corresponds to Art. 40 of Protocol I. Reference can be made to the commentary thereon, supra, p. 473;

(15) [(15) p.1371] Typhoon Fine art. seven. Encounter general remarks, supra, p. 1368;

(16) [(16) p.1371] Run into Art. 41, Protocol I, and the commentary thereon, supra, p. 479;

(17) [(17) p.1372] The accented character of these obligations is the same equally that of a large number of rules in the Protocols and in international humanitarian law in general. On considering the nature of absolute obligations, the International Law Commission stated that: neither juridically, nor from the practical indicate of view, is the obligation of any party dependent on a corresponding operation by the others. The obligation has an absolute rather than a reciprocal graphic symbol." (Cf. ' ILC Yearbook ', 1957, Vol. II, p. 54, paras. 125-126). It also ways that no derogation is allowed, in line with the rule on derogations in the Covenant, in detail with regard to arbitrary impecuniousness of life (Art. 6), torture and cruel, inhuman or degrading treatment or penalisation (Art. 7) and slavery (Fine art. eight);

(eighteen) [(18) p.1372] Aware of the fact that the lack of any mention of reprisals in common Article 3 could give rise to a contrario interpretations, the ICRC had proposed in its draft specific prohibitions in the different Parts whenever this seemed necessary for the protection of the persons and objects concerned. This question gave rise to discussions in the iii Committees concerned of the Conference. Discussion focused on the scope of such prohibitions, the all-time place to include one or several references to such prohibitions in the text of the Protocol, and the terminology to be used. Several delegations argued that rules on reprisals concerned only relations between States, as subjects of international police force possessing ' facultas bellandi '. However, it was recognized that coordinating measures, such as acts of retortion (this term, which is wrong in police, was repeatedly used during the debates) or punitive measures, could be taken by parties to a non-international armed conflict, though such acts would always lack the element of enforcing the police which characterizes reprisals in international armed conflict. For its office, the ICRC based its proposals on the following legal arguments: awarding of common Article three has no legal effect on the status of the parties confronting each other, and consequently does not imply in any manner recognition of belligerency. The same applies for application of Protocol 2. But that does non take away the fact that the parties to the disharmonize are still subjects of international police force in the limited context of humanitarian rights and obligations resting upon them under these two instruments. Whenever at that place is a possibility of rules of international police force not being respected, at that place may be reprisals. A Working Group of Committee I worked at length on drawing upwards a formula which from the humanitarian point of view would be equivalent to a prohibition of reprisals without using the actual discussion "reprisals". Its endeavours resulted in the adoption in Commission of an commodity on unconditional respect in which it was provided that the provisions of Parts II and III and those of Articles 26, 26 bis, 27 and 28 should not in any circumstances be contravened, not even in response to a breach of the provisions of the Protocol (Articles 26, 26 bis, 27 and 28 dealt with protection of the civilian population, of civilian objects, of objects indispensable to the survival of the civilian population and of works and installations containing dangerous forces). The proposed simplified version of the Protocol recommended deleting this commodity. The decision to delete information technology was non carried out by consensus; the commodity was the object of a vote and was rejected by 41 votes to 20, with 22 abstentions. See, in particular, O.R. IV, p. 37, CDDH/I/302 and CDDH/427. O.R. X, pp. 107-109, CDDH/I/287/Rev.1 and Annex; pp. 231-235, CDDH/SR.51, paras. 4-xvi; pp. 119-123, CDDH/SR.51, Annex (advert Art. x bis). Draft Articles eight, nineteen and 26. ' Commentary Drafts, ' pp. 139, 151 and 157;

(19) [(19) p.1373] ' See Commentary IV ', pp. 39-forty (Art. three);

(20) [(twenty) p.1373] See commentary para. ii(b), infra, p. 1374;

(21) [(21) p.1373] International Covenant on Civil and Political Rights, Art. seven; European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3; American Convention on Human Rights, Art. 5; African Charter on Man and People's Rights, Art. 5; Geneva Conventions, mutual Art. 12/12/17//32; Protocol I, Fine art. 75, para. ii(a);

(22) [(22) p.1374] The Convention refers to torture or other punishments inflicted past a public official or any other person acting on official orders, just Fine art. 1, which defines its scope of awarding, besides provides that that article is without prejudice to whatever other international instrument or any national law which contains or might incorporate provisions with a broader scope;

(23) [(23) p.1374] The terminology is taken from Art. 32 of the 4th Convention, which mentions corporal punishment. See ' Commentary Iv ', p. 221;

(24) [(24) p.1374] See O.R. 10, p. 104, CDDH/I/287, Rev. 1;

(25) [(25) p.1374] Draft Art. ix, para. 1. Run into commentary Art. 6, para. 2(b), infra, p. 1398;

(26) [(26) p.1374] ' Commentary IV ', p. 225 (Art. 33);

(27) [(27) p.1374] The term "collective punishment" (in French "punitions collectives", in Spanish "castigos colectivos") was adopted in preference to the original text of the draft, which referred to "collective penalties". In fact, the word "penalty" is a term used in penal law, and according to some delegates it could have been interpreted restrictively to cover only judicial sentences. See O.R. Vii, pp. 87-88, CDDH/SR.50, paras. 18-29;

(28) [(28) p.1374] Meet O.R. 10, p. 130, CDDH/234/Rev.1, para. 86; p. 201, CDDH/405/Rev.1, paras. 118-119;

(29) [(29) p.1375] See ' Commentary Iv, ' p. 39 (Art. 3);

(30) [(30) p.1375] See ' Commentary Drafts, ' p. 137;

(31) [(31) p.1375] Draft Art. vi, para. 2(c);

(32) [(32) p.1375] Draft Art. half dozen, para. 3, which read as follows: "Women shall exist the object of special respect and shall exist protected in particular against rape, enforced prostitution and any other form of indecent assault.";

(33) [(33) p.1375] Art. 6 bis: "In addition to the protection conferred by Commodity half dozen [present Art. 4], women and children shall be the object of special respect and shall be protected confronting rape, enforced prostitution, and any
other form of indecent assault." Run across O.R. X, p. 105, CDDH/I/287/Rev.ane; O.R. 8, p. 413, CDDH/I/SR.39, paras. 15-18;

(34) [(34) p.1376] O.R. VII, p. 91, CDDH/SR.50, paras. 45-47;

(35) [(35) p.1376] Encounter "The United Nations and Human Rights", New York, 1973, p. 17;

(36) [(36) p.1376] ' Commentary Drafts, ' p. 137;

(37) [(37) p.1377] Encounter in particular the Declaration of the Rights of the Child, United nations, GA/Res/1386 (XIV), Principle viii: "The child shall in all circumstances be among the first to receive protection and relief". Encounter also the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, United nations, GA/Res/3318 (XXIX). Articles relating to the protection of children in Protocol I: Arts. 75, 77 and 78, supra, pp. 861, 897, 907;

(38) [(38) p.1377] Come across O.R. 15, pp. 63-71, CDDH/3/SR.45, paras. 3-forty;

(39) [(39) p.1377] Information technology should be noted that in other articles of the Protocols "shall" is sometimes translated in French by the hereafter of the verb "devoir" followed by another verb: "Les enfants devront recevoir". Example: Art. 12, Protocol I. These are simply questions of drafting and take no effect on the nature of the obligation;

(forty) [(40) p.1377] Run across O.R. Four, p. 101, CDDH/III/28; O.R. Xv, p. 65, CDDH/Three/SR.45, para. 9. In the typhoon the ICRC proposed "the care and aid their age and situation require" (Art. 32);

(41) [(41) p.1377] Run across O.R. XV, p. 465, CDDH/407/Rev.1, para. 63;

(42) [(42) p.1377] See Arts. 14, 23, 24, 38 and 50 of the Fourth Convention;

(43) [(43) p.1378] The commentary on Art. 24 of the Fourth Convention gives the following explanations: "An age limit of fifteen was chosen because from that age onwards a child'due south faculties accept generally reached a phase of development at which at that place is no longer the same necessity for special measures" (' Commentary 4 ', p. 186);

(44) [(44) p.1378] This mensurate is stipulated in Fine art. 77, para. 4, Protocol I. The prohibition on indecent assault laid down in para. 2(e) of the present commodity should also exist called to listen;

(45) [(45) p.1378] Encounter draft Art. 32;

(46) [(46) p.1378] O.R. 4, p. 162, CDDH/III/309 and Add.i and 2. This subpoena is based in particular on Art. 18, para. 4, of the Covenant on Ceremonious and Political Rights, which provides that: "United states of america Parties to the present Covenant
undertake to accept respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their ain convictions". This provision is one of the articles from which no derogation can be made inside the meaning of Art. 4, para. 2;

(47) [(47) p.1378] See O.R. Xv, p. 79, CDDH/3/SR.46, para. eleven;

(48) [(48) p.1379] See ' Commentary Four ', pp. 195-198 (Fine art. 26). This sub-paragraph corresponds to Art. 74 of Protocol I: Reunion of dispersed families, supra, p. 857;

(49) [(49) p.1379] Draft Art. 32, para. 2(d), and Art. 34: Recording and information;

(50) [(50) p.1379] Arts. 26/19/122/24, 136, 137 and 138;

(51) [(51) p.1380] Meet ' Commentary Drafts ', p. 163 (Art. 32, para. two(eastward));

(52) [(52) p.1380] Run into Arts. 14, 23, 24 and 38 of the Quaternary Convention;

(53) [(53) p.1380] Come across, in particular, O.R. 15, pp. 65-69, CDDH/Three/SR.45, paras. 11-31;

(54) [(54) p.1380] This solution is a compromise which the Committee adopted for Protocol I on the basis of the fact
that sometimes, peculiarly in occupied territories and in wars of national liberation, it would non be realistic to totally prohibit participation of children anile under 15. O.R. Fifteen, p. 465, CDDH/407/Rev.1, para. 61;

(55) [(55) p.1381] Meet commentary Art. 78, Protocol I, supra, p. 907;

(56) [(56) p.1381] O.R. Xv, p. 82, CDDH/III/SR.46, para. 23;

(57) [(57) p.1381] This proposal was straight integrated in the text submitted by the Rapporteur to the Committee, without an subpoena having been submitted. It was accepted by consensus and no special statements were fabricated thereon in the plenary meetings of Committee Iii;

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Source: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=5CBB47A6753A2B77C12563CD0043A10B

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