D. Internal Armed Conflicts
The inadequacies of article 3 of the four Geneva Conventions of 1949 were such that many delegations at the two Conferences of Government Experts lent their support to the idea of a new separate treaty entirely devoted to non-international armed conflicts (internal conflicts or civil war). Canada had taken a particularly energetic role in pushing this idea and had come to the Conference of Government Experts with a fully elaborated set of rules applicable to internal armed conflicts.61
The I.C.R.C. accordingly submitted to the Diplomatic Conference a Draft Protocol Additional to Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts,62 dealing in 47 articles with such topics as humane treatment of persons in the power of the parties to the conflict; wounded, sick, and shipwrecked persons; methods and means of combat; and the civilian population. In many respects these articles parallel the corresponding articles of the International Protocol, even to the point of identity of wording.
Two major points of controversy had arisen in the debates in the Conference of Government Experts. One was whether, if internal armed conflicts were to be governed by the law of war, there should be a separate body of law for such conflicts or whether a common body of law should protect the victims of both international and non-international armed conflicts. The Norwegian delegation had been most insistent on the desirability of the latter,63 but the majority of delegations seemed to favor two separate instruments.
The other question, which proved to be so controversial that little time had been left for discussion of the substance of the Internal Protocol, was the material field of application of the instrument. The issue was the level of internal conflict which would call for the application of this new body of international law. The I.C.R.C. submitted to the Diplomatic Conference a text which provided:
- 1. The present Protocol shall apply to all armed conflicts not covered by Article 2 common to the Geneva Conventions of August 12, 1949, taking place between armed forces or other organized armed groups under responsible command.
- 2. The present Protocol shall not apply to situations of internal disturbances and tensions, inter alia riots, isolated and sporadic acts of violence and other acts of a similar nature.
- 3. The foregoing provisions do not modify the conditions governing the application of Article 3 common to the Geneva Conventions of August 12, 1949.64
The bare text, as quoted here, cannot give any suggestion of the complexity and amplitude ofthe debate on this subject in the Conferences ofGovernment Experts. The nature of the entities in conflict, the level of violence employed, the length of the conflict, the objectives of the parties, the degree of organization attained or
Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May—12 June 1971): Report of the WoRk of the Conference 57 (1971); see also Wolfe, War and Military Operations, in Canadian Perspectives on International Law and ORgANizATiON 620, 621—628 (1974). (R. Macdonald, L. Morris & D. Johnston eds. 1974).
- 62 I.C.R.C., Draft Additional Protocols to the Geneva Conventions of AugusT 12, 1949, at 33 (1973).
- 63 See Draft Article submitted by the Norwegian Experts, Doc. CE/Com.II/2, in I.C.R.C., Report, supra note 61, at 61; see also id. para. 123, at 36.
- 64 Art. 1, supra note 62, at 33.
governmental functions performed were some of the criteria to which much consideration was given.
The three Main Committees of the Diplomatic Conference decided generally to take up the articles or to leave the articles on internal conflicts until after work had been completed on the international articles. There seemed to be less interest in the whole idea of an Internal Protocol at the Diplomatic Conference than there had been in the past, and such countries as China and India were notably negative as to the whole idea. All of the difficult questions, including the material scope of application of the Protocol, remain to be decided at the second session of the Conference.
-  Report, supra note 61, at 36—41; Report of Commission II, Protection of Victims of NonInternational Armed Conflicts, in 1 I.C.R.C., Conference of Government Experts on theReaffirmation and Development of International Humanitarian Law Applicable in ArmedConflicts, Second Session, 3 May—3 June 1972: Report of the Work of the Conference67—72 (1972); see also Baxter, Ius in Bello Interno: The Present and Future Law, in Law & Civil War inthe Modern World (J. Moore ed. 1974).
-  Doc. CDDH/III/SR.1, at 3.