Статус Дополнительного протокола к Женевским конвенциям от 12 августа 1949 года, касающегося защиты жертв вооруженных конфликтов немеждународного характера (Протокол II) (Женева, 8 июня 1977 года) [рус., англ.]

[неофициальный перевод]

PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS (PROTOCOL II) Geneva, 8 June 1977

Entry into force: 07.12.1978

State parties (170) — State signatories (3)

<1> Ratification: a treaty is generally open for signature for a certain time following the conference which has adopted it. However, a signature is not binding on a State unless it has been endorsed by ratification. The time limits having elapsed, the Conventions and the Protocols are no longer open for signature. The States which have not signed them may at any time accede or, in the appropriate circumstances, succeed to them.

Accession: instead of signing and then ratifying a treaty, a State may become party to it by the single act called accession.

<2> Reservation / Declaration: unilateral statement, however phrased or named, made by a State when ratifying, acceding or succeeding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State (provided that such reservations are not incompatible with the object and purpose of the treaty).

Argentina

Interpretative declarations made at the time of accession.

«With reference to Article 43, paragraph 1, and Article 44, paragraph 1, of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), the Argentine Republic interprets these provisions as not implying any derogation of:»

a) the concept of the permanent regular armed forces of a Sovereign State;

b) the conceptual distinction between regular armed forces, understood as being permanent army units under the authority of Governments of Sovereign States, and the resistance movements which are referred to in Article 4 of the Third Geneva Convention of 1949.»

«With reference to Article 44, paragraphs 2, 3 and 4, of the same Protocol, the Argentine Republic considers that these provisions cannot be interpreted:»

a) as conferring on persons who violate the rules of international law applicable in armed conflicts any kind of immunity exempting them from the system of sanctions which apply to each case;

b) as specifically favouring anyone who violates the rules the aim of which is the distinction between combatants and the civilian population;

c) as weakening respect for the fundamental principle of the international law of war which requires that a distinction be made between combatants and the civilian population, with the prime purpose of protecting the latter.»

«With reference to Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), taking its context into account, the Argentine Republic considers that the term „organized armed groups“ which is used in Article 1 of the said Protocol is not to be understood as equivalent to that used in Article 43, Protocol I, to define the concept of armed forces, even if the aforementioned groups meet all the requirements set forth in the said Article 43.»

SOURCE: Notification by the depositary addressed to the ICRC on 1st December 1986 (Original Spanish).

Austria

Reservations made at the time of ratification.

«Reservation with regard to Article 57, paragraph 2, of Protocol I:»

Article 57, paragraph 2, of Protocol I will be applied on the understanding that, with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative.

Reservation with regard to Article 58 of Protocol I:

In view of the fact that Article 58 of Protocol I contains the expression «to the maximum extent feasible», sub-paragraphs (a) and (b) will be applied subject to the requirements of national defence.

Reservation with regard to Article 75 of Protocol I:

Article 75 of Protocol I will be applied insofar as

a) sub-paragraph (e) of paragraph 4 is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing of a witness or expert witness, may be removed from the courtroom;

b) sub-paragraph (h) of paragraph 4 is not incompatible with legal provisions authorizing the reopening of proceedings that have resulted in a final declaration of conviction or acquittal.

Reservation with regard to Articles 85 and 86 of Protocol I:

For the purposes of judging any decision taken by a military commander, Articles 85 and 86 of Protocol I will be applied on the understanding that military imperatives, the reasonable possibility of recognizing them and the information actually available at the time that decision was taken, are determinative.

[Declaration under Article 90 (2) of Protocol I]

Reservation with regard to Article 6 of Protocol II:

Article 6, paragraph 2, sub-paragraph (e) of Protocol II will be applied insofar as it is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing of a witness or expert witness, may be removed from the courtroom.»

SOURCE: Notification by the depositary addressed to the ICRC on 16 August 1982.

Canada

Reservations made at the time of ratification.

Protocol II

Protocol relating to the Protection of Victims of Non-International Armed Conflicts.

Statement of understanding

The Government of Canada understands that the undefined terms used in Additional Protocol II which are defined in Additional Protocol I shall, so far as relevant, be construed in the same sense as those definitions.

The understandings expressed by the Government of Canada with respect to Additional Protocol I shall, as far as relevant, be applicable to the comparable terms and provisions contained in Additional Protocol II.

SOURCE: Notification by the depositary addressed to the ICRC on 22 November 1990.

China

On 31 Mai 2000, the People's Republic of China deposited with the Swiss Federal Council a declaration on the applicability of the Geneva Conventions of 12 August 1949 and the Additional Protocols I and II to the Special Administrative Region of Macao. Pursuant to this declaration, the Conventions and Protocols are applicable to the Special Administrative Region of Macao from 20 December 1999.

Egypt

Declaration and notification made upon ratification:

DECLARATION

The Arab Republic of Egypt, in ratifying Protocols I and II of 1977 additional to the Geneva Conventions of 1949, wishes to express its conviction that the provisions of Additional Protocols I and II represent the minimum level of legal and actual protection that must be afforded to persons and civilian and cultural objects in armed conflict.

On the basis of its strong conviction of the principles of the great Islamic Sharia, the Arab Republic of Egypt wishes at the same time to emphasize that it is the duties of all nations alike to refrain from the involvement of innocent civilians in armed conflict; furthermore they should make all efforts, to the maximum extent possible, to that end as this is indispensable for the survival of humanity and the cultural heritage and civilization of all countries and nations.

The Arab Republic of Egypt, while declaring its commitment to respecting all the provisions of Additional Protocols I and II, wishes to emphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of the obligations imposed by Additional Protocols I and II with all means admissible under international law in order to prevent any further violation. In this context it wishes to assert that military commanders planning or executing attacks make their decisions on the basis of their assessment of all kinds of information available to them at the time of the military operations.

NOTIFICATION

The Arab Republic of Egypt, while welcoming the adoption by the Diplomatic Conference in June 1977 of Protocols I and II additional to the Geneva Conventions of 1949 in six languages, including the Arabic language, notes that all original texts are certified and equally authentic with no prevalence of one single language over the other.

However, on comparison of the original Arabic text of Additional Protocols I and II with the other original texts, it became evident that in some respects the Arabic text does not fully correspond to the other original texts to the extent that it is at variance in terms of both expression and substance with some of the provisions of Additional Protocols I and II adopted by States in the field of international law and human relations.

Hence the Arab Republic of Egypt, on the occasion of the deposit of its instrument of ratification of Protocols I and II additional to the Geneva Conventions of 1949 with the depositary, the Swiss Federal Council, wishes to declare that in that respect it shall adopt the meaning which best concurs with the original texts of Additional Protocols I and II.

France

Communication made at the time of accession.

«On depositing France's instrument of accession to Protocol II of 8 June 1977 to the Geneva Conventions of 12 August 1949, I have the honour to specify that it is not the intention of the French Republic to accede to Protocol I of the same date to the said Conventions. This decision has been taken for the reasons mentioned by the representative of France during the fourth session of the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts and, more particularly, in view of the lack of consensus among the States signatory to Protocol I with regard to the precise extent of the obligations incurred by them in the matter of deterrence.»

SOURCE: Notification by the depositary addressed to the ICRC on 24 February 1984.

Germany

Declarations made at the time of ratification.

1. It is the understanding of the Federal Republic of Germany that the rules relating to the use of weapons introduced by Additional Protocol I were intended to apply exclusively to conventional weapons without prejudice to any other rules of international law applicable to other types of weapons.

2. The Federal Republic of Germany understands the word «feasible» in Articles 41, 56, 57, 58, 78 and 86 of Additional Protocol I to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time including humanitarian and military considerations.

3. The criteria contained in the second sentence of Article 44, paragraph 3, of Additional Protocol I for distinction between combatants and the civilian population are understood by the Federal Republic of Germany to apply only in occupied territories and in the other armed conflicts described in Article 1, paragraph 4. The term «military deployment» is interpreted to mean any movements towards the place from which an attack is to be launched.

4. It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol I, to military commanders and others responsible for planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.

5. In applying the rule of proportionality in Article 51 and Article 57, «military advantage» is understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.

6. The Federal Republic of Germany will react against serious and systematic violations of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation.

7. Article 52 of Additional Protocol I is understood by the Federal Republic of Germany to mean that a specific area of land may also be a military objective if it meets all requirements of Article 52, paragraph 2.

8. Article 75, paragraph 4, subparagraph (e) of Additional Protocol I and Article 6, paragraph 2, subparagraph (e) of Additional Protocol II will be applied in such manner that it is for the court to decide whether an accused person held in custody must appear in person at the hearing before the court of review.

Article 75, paragraph 4, subparagraph (h) of Additional Protocol I will only be applied to the extent that it is in conformity with legal provisions which permit under special circumstances the re-opening of proceedings that had led to final conviction or acquittal.

9. [Declaration of recognition according to Article 90, para. 2 of Additional Protocol I.]

10. The Federal Republic of Germany understands paragraph 3 of Article 96 of Additional Protocol I to mean that only those declarations described in subparagraphs (a) and (c) of paragraph 3 of Article 96 that are issued by an authority which genuinely satisfies all the criteria contained in paragraph 4 of Article 1 can have legally binding effect.

Source: Notification by the depositary addressed to the ICRC on 15 February 1991 (Translation provided by Germany upon ratification).

Holy See

Declaration made at the time of ratification.

«By ratifying the two Protocols additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International (Protocol I) and Non-International (Protocol II) Armed Conflicts and adopted in Geneva on 8 June 1977, the Holy See wishes, first of all, to acknowledge the merits and the positive results obtained by the „Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts“, in which it played an active part.»

The Holy See believes that, from an overall historical and legal point of view, the two Protocols represent and confirm a significant advance in humanitarian law applicable in armed conflicts, an advance that deserves approval and support.

At the same time, with regard to the provisions of the above-mentioned legal texts, the Holy See wishes to remind the Secretariat of the Conference of the considerations that were made known by its delegation at the end of the session. It is a source of great pleasure to recognize the value of provisions which, in certain sectors, increase the scope of humanitarian law, as for example: the protection of the civilian population, especially of women and children; the protection afforded to cultural objects and places of worship which are evidence and signs of the spiritual heritage of nations; the protection of objects indispensable to the survival of the civilian population; the respect and protection of medical and religious personnel; the ban on retaliation.

On the other hand, in the opinion of the Holy See, other provisions are less satisfactory in substance or are not very well formulated. Furthermore, uncertainties and omissions were found on important issues in relation to the development of humanitarian standards. With regard to Protocol II in particular, the Holy See regrets that, after having been stripped of a large part of its humanitarian substance by the plenary Assembly of the Conference, the Protocol has become the instrument of a rigorous legal system both in its text and in its spirit. Although the Holy See signed the Protocol, with serious reservations, and although it is now ratifying it, it is mainly because it looks upon the Protocol as an open door to future developments of humanitarian law in a crucial and, until now, much neglected sector.

The Holy See also announces that it has taken note of the reservations and declarations formulated by some States that have deposited an instrument of ratification or of adhesion to the Protocols.

Finally, the Holy See reasserts, on this occasion, its strong conviction as to the fundamentally inhumane nature of war. The humanization of the effects of armed conflicts, such as that undertaken by the two Protocols, is received with favour and encouraged by the Holy See in so far as it aims to alleviate human suffering and strives, amid unbridled passions and evil forces, to safeguard the basic principles of humanity and the supreme benefits of civilization. The Holy See expresses, moreover, its firm belief that the ultimate goal, that which is worthy of the calling of man and of human civilization, is the abolition of war. One cannot help thinking that the measures embodied in the Geneva Conventions and more recently by the two Additional Protocols — measures which are already in themselves frail instruments for the protection of victims of conventional armed conflicts — would prove to be not only insufficient but totally inadequate in the face of the ruinous devastation of a nuclear war.

The Holy See, considering itself the spokesman for the fears and the hopes of nations, hopes that the encouraging start made in Geneva by the codification of humanitarian law in armed conflicts may not go unheeded or remain a purely formal commitment but that people may become aware of it, put it into practice and follow it to its final conclusion: the abolition of war, of any kind whatever.»

Ireland

Declarations and Reservations in relation to Additional Protocol II

1. Ireland, in ratifying Protocol II Additional to the Geneva Conventions of 1949 adopted at Geneva on 8 June 1977, declares its belief that the provisions of this Protocol represent the minimum level of legal and actual protection bound to be afforded to persons and civilian and cultural objects in armed conflicts.

2. Article 6 paragraph 2(e)

Article 6 will be applied in Ireland insofar as paragraph 2(e) is not incompatible with the power enabling a judge, in exceptional circumstances, to order the removal of an accused from the court who causes a disturbance at the trial.

Liechtenstein

Reservations made at the time of ratification

«Reservation concerning Article 75 of Protocol I»

Article 75 of Protocol I will be implemented provided that

a) paragraph 4(e) is not incompatible with legislation under which any accused who causes a disturbance in court or whose presence could impede the questioning of another accused, a witness or expert may be excluded from the courtroom;

b) paragraph 4(h) is not incompatible with legislation providing for the reopening of a trial which has already led to a person's conviction or acquittal;

c) paragraph 4(i) is not incompatible with legislation relating to the public nature of hearings and of the pronouncement of judgement.

Reservation concerning Article 6 of Protocol II

Article 6, paragraph 2(e), of Protocol II will be implemented provided that it is not incompatible with legislation under which any accused who causes a disturbance in court or whose presence could impede the questioning of another accused or of a witness or expert may be excluded from the court room.»

SOURCE: Notification by the depositary addressed to the ICRC on 11 August 1989.

Malta

Reservation made at the time of accession.

1. «Article 75 of Protocol I will be applied insofar as:»

a) sub-paragraph (e) of paragraph 4 is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing or another witness or expert witness, may be removed from the courtroom;

b) sub-paragraph (h) of paragraph 4 is not incompatible with legal provisions authorizing the reopening of proceedings that have resulted in a final declaration of conviction or acquittal.»

2. Article 6, paragraph 2, sub-paragraph (e) of Protocol II will be applied insofar as it is not incompatible with legislation providing that any defendant, who causes a disturbance at the trial or whose presence is likely to impede the questioning of another defendant or the hearing of a witness or expert witness, may be removed from the courtroom.»

SOURCE: Notification by the depositary addressed to the ICRC on 19 April 1989.

Mauritius

«The Government of the Republic of Mauritius has the honour to declare that it objects to the inclusion of the so-called „British Indian Ocean Territory“ in the list of territories mentioned in the Declaration deposited by the United Kingdom of Great Britain and Northern Ireland with the Swiss Federal Council on 2 July 2002 concerning the applicability of the Protocols I and II Additional to the Geneva Conventions of 12 August 1949, adopted at Geneva on 8 June 1977, and therefore rejects the said Declaration in so far as it purports to extend the ratification by the UK Government of the said Protocols to the so-called „British Indian Ocean Territory“. The Government of the Republic of Mauritius does not recognise the competence of the British Government to adhere to any international instrument on behalf of the Chagos Archipelago, which forms an integral part of the territory of the Republic of Mauritius.»

The Government of the Republic of Mauritius wishes to reassert the unequivocal sovereignty of Mauritius over the Chagos Archipelago, including Diego Garcia.»

Netherlands

Covers the Kingdom's territory within Europe, plus the Netherlands Antilles and Aruba

New Zealand

Declarations made upon ratification:

«The Government of New Zealand DECLARES that this ratification shall not extend to the Cook Islands, Niue and Tokelau;»

AND FURTHER DECLARES as follows:

1 — It is the understandi ng of the Government of New Zeal and that in relation to Article 44 of Protocol I, the situation described in the second sentence of paragraph 3 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1. The Government of New Zealand will interpret the word «deployment» in paragraph 3(b) of the Article as meaning any movement towards a place from which an attack is to be launched. It will interpret the words «visible to the adversary» in the same paragraph as including visible with the aid of any form of surveillance, electronic or otherwise, available to help keep a member of the armed forces of the adversary under observation.

2 — In relation to Articles 51 to 58 inclusive, it is the understanding of the Government of New Zealand that military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.

3 — In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, the Government of New Zealand understands that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack and that the term «military advantage» involves a variety of considerations, including the security of attacking forces. It is further the under standing of the Government of New Zeal and that the term «concrete and direct military advantage anticipated», used in Articles 51 and 57, means a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved.

4 — In relation to Article 52, it is the understanding of the Government of New Zealand that a specific area of land may be a military objective if, because of its location or other reasons specified in the Article, its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite military advantage. The Government of New Zealand further understands that the first sentence of paragraph 2 of the Article is not intended to, and nor does it deal with, the question of incidental or collateral damage resulting from an attack directed against a military objective.

Oman

Declaration made at the time of accession.

«While deposing these instruments, the Government of the Sultanate of Oman declares that these accessions shall in no way amount to recognition of nor the establishment of any relations with Israel with respect to the application of the provisions of the said protocols.»

SOURCE: Notification by the depositary addressed to the ICRC on 29 March 1984.

Portugal

Declaration made upon signature:

The Portuguese Government defers until the time of respective ratification the formulation of reservations which it may deem appropriate.

SOURCE: UNTS, vol. 1125, 1979, p. 431.

Regarding Macao declaration see french database

Russian Federation

Declaration made at the time of ratification

«The Soviet Union's ratification of the Protocols additional to the Geneva Conventions for the protection of the victims of war constitutes an unusual event in the recent diplomatic history of our country.»

It reflects the spirit of new political thinking and demonstrates the Soviet State's commitment to humanizing international affairs and strengthening the system of international law.

At the same time, it exemplifies the spirit of continuity between Russian and Soviet diplomacy, extending back to the 1860s, in seeking to ensure that the principles of humanism and mercy are respected even in the tragic circumstances of war.

The Additional Protocols, in whose drafting the Soviet Union played a universally recognized role, were among the first international instruments presented for ratification to the new Soviet Parliament.

It should be pointed out that the Supreme Soviet of the USSR chose to ratify the Protocols without any reservation whatsoever. At the same time, our State recognized the competence of the International Fact-Finding Commission in cases where international humanitarian law is violated.

We in the Soviet Union hope that the ratification of the Additional Protocols will be duly appreciated by all those involved in the noble cause of humanism and the endeavour to free mankind from the horrors of war.»

SOURCE: Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949; Reservations, Declarations and communications made at the time of or in reference to ratification or accession as at 30 June 1992, ICRC, 15 July 1992, pp. 36 — 37.

United Arab Emirates

Declaration relative to each of the two Protocols made at the time of accession.

«On accepting the said protocol, the Government of the United Arab Emirates takes the view that its acceptance of the said protocol does not, in any way, imply its recognition of Israel, nor does it oblige to apply the provisions of the protocol in respect of the said country.»

The Government of the United Arab Emirates wishes further to indicate that its understanding described above in conformity with general practice existing in the United Arab Emirates regarding signature, ratification, accession or acceptance of international conventions, treaties or protocols, of which a country not recognized by the United Arab Emirates is a party.»

SOURCE: Notification by the depositary addressed to the ICRC on 11 March 1983.

United Kingdom of Great Britain and Northern Ireland

Declaration — 02.07.2011

«Her Britannic Majesty's Embassy has the honour to declare, on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland („the UK Government“), that its ratification of the Additional Protocols shall be extended to the following territories for whose international relations it is responsible:»

Anguilla; Bermuda; British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Montserrat; Pitcairn, Henderson, Ducie and Oeno Islands; St Helena and Dependencies; South Georgia and the South Sandwich Islands; Sovereign Base Areas of Akrotiri and Dhekelia; Turks and Caicos Islands.»

Declaration — 15.06.2011

«Her Britannic Majesty's Embassy also has the honor to declare, on behalf of the Government of the United Kingdom, that its ratification of Protocol I and II extends to the Bailiwick of Guernsey and the Isle of Man, in addition to the territories for whose international relations the United Kingdom is responsible and to which these Protocols were extended on 2 July 2002. In this respect, both the statements lodged on 2 July 2002 in respect of the extension of Protocol I, and the Government's declaration of recognition of 17 May 1999 in respect of the competence of the International Fact-Finding Commission, shall also apply to the territories to which Protocol I is now extended.»