The Protocol Ii of Geneva Conventions

The Forth Geneva Convention is the first conventions that deal with humanitarian protections for civilians in a war. Similar to the amendment to a principal Act, the Protocol II of Geneva Conventions was introduced on 8 June 1977 together with Protocol I to strengthen the enforcement and protection given to the civilians during the wars in the Geneva Convention.

Decades after the adoption of the Geneva Conventions and ending of World War II, people started to witness a rising of numbers of wars or rebel happened within a State. It is submitted that the intra-state conflicts or civil wars and armed conflicts after the World War II are the deadliest. For instance, a total amount of 600,000 people died in China alone in the 1980s marked the deadliest decade after the immediate post-war period.

The implementation of additional Protocol II had made a significant change to the whole Geneva Conventions where it is the first real legal instrument for the protection of victims of non-international armed conflicts. This means that the initial Geneva Conventions for the protection of civilians in international conflicts or wars between States now extended to the protection of civilians in a conflict that happened within a State or known as intra-state war.

The additional Protocol II consisted of 28 Articles and the articles have been divided into 5 parts which each of them covered different subject matters. Article 1(1) of the Additional Protocol II deals with the scope of application of the protocol or known as the article that recognized non-international conflicts. It stated the Protocol is applicable to all armed conflicts which are not covered under Article 1 of the Additional Protocol I and armed conflicts which take place in a State between its armed forces and rebel armed forces or between other organized armed groups in the State.[2] The effect of such article is that the Geneva Convention now recognized the right of the citizens of the State as civilians and their rights were being protected when the State involved in an intra-state war or when an armed group tries to overthrow the State government.

The civilians that were caught under the Part I of the Additional Protocol II will be entitled to protections guaranteed under Part II of the Protocol which deals with humane treatment when armed conflicts happened. Under this Part of the protocol, it aimed to protect those people who do not involve and ceased to involve in the conflicts or known as hors the combat, where they shall be treated humanely in all circumstances. This can be seen under Article 4(2) of the Protocol II where the article specifically prohibits violence against life, health and physical or mental well-being of the person. The article also protects the civilians from other violent acts by prohibiting the acts of murder and cruel treatment, terrorism, hostage-taking, slavery, outrages on personal dignity, collective punishment, and pillage. All of these protections are known as the fundamental guarantees for all persons under the Protocol II during the war.

These fundamental guarantee provided by the Conventions is known as a right that is undeniable and can claim at any time. It is also known as an inherent right of a person and serves as a minimum standard during detention. This is provided under Art 5 of the Protocol II where it mentioned that the persons who were being detained during internal conflicts are being guaranteed of the same humane treatment as specified by the Geneva Convention. For instance, it is stated in the article that when a person being detained is a woman, she shall be held in a place separate from those men and shall be under the supervision of women.

Other than that, children are also being protected when the war commenced. It is stated in Article 4(3) that the children shall receive protection by evacuating them to safe areas when possible and keeping them with the wishes of their parents. It is submitted that the children shall be given the privileged treatment in comparison with the rest of the civilians.[4] In addition, the Protocol had strengthened the protection provided to the wounded, sick, and shipwrecked as well as medical and religious personnel.[5] Overall, if any person in war deprived or infringed the fundamental guarantee provided by the Conventions, the person will be prosecuted and receive a punishment by the Court as mentioned under Article 6 of Protocol II.

Generally, Article 13 of Protocol II provided the general principle that all the civilians shall be protected against the dangers arising from any military operations and in order to give effect to this protection, the rules mentioned shall be observed in all circumstances. The rules, in fact, provided lots of protection to the civilians in a State, however, the problem of lack of enforcement of international law brought up again the issue of disobedience of the laws.

From another view of Protocol II, Article 1(1) of Protocol II limits the application of the Protocol by stating it is only applicable when the government is in conflict with another rebellious armed group but not in a situation where conflicts happened among the different rebellious group. Article 1(2) also expressly mentioned that the Protocol shall not apply to situations involved internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and these are not regarded and being excluded as armed conflicts under the Protocol. This had been regarded as a more restrictive approach to internal conflicts compare with the Common Article 3.[6] This situation allows the conflicts group to deny the applicability of the Protocol and avoid from sanctions as the Protocol had specifically provided the elements to be satisfied. These limitation and elements need to be fulfilled before the Protocol come into force had restricted the applicability of the Protocol to conflicts that might grow very tragically.