1 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I); Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II). Texts of the Additional Protocols can be found in Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), 17 vols, Federal Political Department, Bern, 1978 (Official Records), Vol. 1, pp. 115–198; International Review of the Red Cross, Vol. 17, No. 197–198, 1977, pp. 3–101; United Nations Treaty Series, Vol. 1125, pp. 1–699; Revue Générale de Droit International Public, Vol. 82, No. 1, 1978, pp. 329–398; Schindler, Dietrich and Toman, Jiří (eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, Martinus Niljhoff, Dordrecht, and Institut Henry-Dunant, Geneva, 1988, pp. 621–718Google Scholar; International Committee of the Red Cross (ICRC) and International Federation of Red Cross and Red Crescent Societies, Handbook of the International Red Cross and Red Crescent Movement, 14th ed., Geneva, 2011 (Red Cross Handbook), pp. 239–330Google Scholar.

2 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention (III) relative to the Treatment of Prisoners of War; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. Texts of the Geneva Conventions can be found in Final Record of the Diplomatic Conference of Geneva of 1949, 4 vols, Federal Political Department, Bern, 1949 (1949 Final Record), Vol. 1, pp. 203–341; United Nations Treaty Series, Vol. 75, 1950, pp. 5–468; D. Schindler and J. Toman (eds), above note 1, pp. 373–594; Red Cross Handbook, above note 1, pp. 33–237.

3 Hague Convention (II) with respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, in The Proceedings of the Hague Peace Conferences: The Conference of 1899, Oxford University Press, New York, 1920, pp. 251–262; von Martens, Georg Friedrich, Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international, 2nd series, Vol. 26, Librairie Dietrich, Leipzig, 1901, pp. 949–979Google Scholar; D. Schindler and J. Toman (eds), above note 1, pp. 63–95. Hague Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, in The Proceedings of the Hague Peace Conferences: The Conference of 1907, Oxford University Press, New York, 1920, pp. 620–631; von Martens, Georg Friedrich, Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international, 3rd series, Vol. 3, Librairie Hans Buske, Leipzig, 1907, pp. 461–503Google Scholar; D. Schindler and J. Toman (eds), above note 1, pp. 65–98; Red Cross Handbook, above note 1, pp. 344–355. Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, The Hague, 18 October 1907, in The Proceedings of the Hague Peace Conferences: The Conference of 1907, Oxford University Press, New York, 1920, p. 678; G. F. von Martens and H. Triepel, Nouveau recueil général de traités, above, pp. 745–750; D. Schindler and J. Toman (eds), above note 1, pp. 201–206.

4 1949 Final Record, above note 2, Vol. 2-A, pp. 761–762, 802–805; Vol. 2-B, pp. 495–509; Vol. 3, p. 181.

5 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, ICRC, Geneva, 1956.

6 Ibid., p. 101.

7 XIXth International Conference of the Red Cross, New Delhi, October–November 1957: Proceedings, Indian Red Cross, New Delhi, 1957; XIXth International Conference of the Red Cross, New Delhi, October–November 1957: Final Record concerning the Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, ICRC, Geneva, April 1958.

8 Kunz, Josef L., “The Chaotic Status of the Laws of War and the Urgent Necessity for their Revision”, American Journal of International Law, Vol. 45, No. 1, 1951, pp. 37–61CrossRefGoogle Scholar.

9 International Conference on Human Rights, Resolution XXIII, “Human Rights in Armed Conflicts”, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, UN Doc. A/CONF.32/41, New York, 1968, p. 18. Between 1968 and 1977, the UN General Assembly adopted, in each regular session, one or several resolutions relating to the reaffirmation and development of international humanitarian law, generally under the title of “Respect for Human Rights in Armed Conflicts”: see Resolutions 2444 (XXIII) 1968, 2597 (XXIV) 1969, 2674 (XXV) 1970, 2675 (XXV) 1970, 2676 (XXV) 1970, 2677 (XXV) 1970, 2852 (XXVI) 1971, 2853 (XXVI) 1971, 3032 (XXVII) 1972, 3076 (XXVIII) 1973, 3102 (XXVIII) 1973, 3103 (XXVIII) 1973, 3319 (XXIX) 1974, 3500 (XXX) 1975, 31/19-1976, and 32/44-1977.

10 The French version of Resolution XXIII referred to “la Convention [singular] de Genève de la Croix-Rouge de 1949”, which testifies to the degree of ignorance regarding humanitarian law that prevailed in diplomatic circles at the time.

11 Bugnion, François, “The International Committee of the Red Cross and the Development of International Humanitarian Law”, Chicago Journal of International Law, Vol. 5, No. 1, 2004, pp. 191–215Google Scholar.

12 ICRC, Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, Doc. D.S.4a, b, e, report submitted to the 21st International Conference of the Red Cross, Istanbul, September 1969. The report was supplemented by a second document specifically dealing with the protection of victims of non-international armed conflicts: ICRC, Protection of Victims of Non-International Armed Conflicts, Doc. D.S.5 a–b, report submitted to the 21st International Conference of the Red Cross, Istanbul, September 1969; XXIst International Conference of the Red Cross, Istanbul, September 6 to 13, 1969: Report, Turkish Red Crescent, Istanbul, 1969.

13 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May–12 June 1971, documents submitted by the ICRC, 8 vols, Geneva, 1971: Vol. 1: Introduction; Vol. 2: Measures Intended to Reinforce the Implementation of the Existing Law; Vol. 3: Protection of the Civilian Population against Dangers of Hostilities; Vol. 4: Rules Relative to Behaviour of Combatants; Vol. 5: Protection of Victims of Non-International Armed Conflicts; Vol. 6: Rules Applicable in Guerrilla Warfare; Vol. 7: Protection of the Wounded and Sick; Vol. 8: Annexes.

14 Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, The Hague, 1–6 March 1971, Report on the Work of the Conference, Doc. D-1195, ICRC, Geneva, April 1971; Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May–12 June 1971, Report on the Work of the Conference, ICRC, Geneva, August 1971; Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 2nd Session, Geneva, 3 May–3 June 1972, documents submitted by the ICRC, 3 vols, Geneva, January 1972: Vol. 1: Texts; Vols 2 and 3: Commentaries; Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vienna, 20–24 March 1972, Report on the Work of the Conference, Doc. D-1254, ICRC, Geneva, April 1972; Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 2nd Session, Geneva, 3 May–3 June 1972, Report on the Work of the Conference, 2 vols, ICRC, Geneva, July 1972.

15 Draft Protocols Additional to the Geneva Conventions of 12 August 1949, ICRC, Geneva, June 1973 (Draft APs); Draft Protocols Additional to the Geneva Conventions of 12 August 1949: Commentary, ICRC, Geneva, October 1973 (ICRC Commentary on Draft APs).

16 XXIInd International Conference of the Red Cross, Teheran, 8–15 November 1973: Report, Red Lion and Sun Society of Iran, Tehran, 1973; Report on the Study by the XXIInd International Conference of the Red Cross of the Draft Additional Protocols to the Geneva Conventions of 12 August 1949, Doc. CDDH/6, ICRC, Geneva, January 1974.

17 Official Records, above note 1. Three years after the adoption of the Additional Protocols, a small group of scholars, directed by Professor Michael Bothe, published a commentary on them. See Bothe, Michael, Partsch, Karl Josef and Solf, Waldemar A., with the collaboration of Martin Eaton, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague, 1982Google Scholar. Five years later, the ICRC published its own commentary, essentially written by the ICRC representatives who had served in the various committees and working groups of the Diplomatic Conference in an expert capacity: Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on APs)Google Scholar. We may also mention three collections of essays which shed light on the works of the 1974–77 Diplomatic Conference and on the interpretation and scope of the Additional Protocols: Rousseau, Charles and Virally, Michel, “Vers un nouveau droit international humainitaire?”, Revue générale de droit international public, Vol. 82, No. 1, 1978Google Scholar; Cassese, Antonio (ed.), The New Humanitarian Law of Armed Conflict, 2 vols, Editoriale Scientifica, Naples, 1979Google Scholar; Swinarski, Christophe (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC, Geneva, and Martinus Nijhoff, The Hague, 1984Google Scholar. For a contemporary assessment of the Additional Protocols, see Mantilla, Giovanni, “The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols”, in Evangelista, Matthew and Tannewald, Nina (eds), Do the Geneva Conventions Matter?, Oxford University Press, Oxford and New York, 2017, pp. 35–68Google Scholar.

18 Regarding the price to be paid for a failed codification project, see Baxter, Richard R., “The Effects of Ill-Conceived Codification and Development of International Law”, in En hommage à Paul Guggenheim, Faculté de Droit de l'Université de Genève et Institut Universitaire de Hautes Études Internationales, Geneva, 1968, pp. 146–166Google Scholar.

19 Since the two draft additional protocols prepared by the ICRC, which were accepted as the basis for the deliberations of the 1974–77 Diplomatic Conference, covered a wide range of aspects of modern warfare, the Conference was of course confronted with a wide range of issues, such as the law on the conduct of hostilities, guerrilla warfare, the status of captured combatants in irregular warfare, the fate of the missing, the protection of the civilian population against the effects of hostilities, relief operations, blockades, non-international armed conflicts, scrutiny, and repression of violations. Many of these issues led to heated and passionate debate, sometimes concluded by a vote. However, it was widely accepted that attention focused on two key issues that might have wrecked the Conference: the question of the legality or illegality of nuclear weapons, which could have led to the abstention of the United Sates and other nuclear powers; and the question of the legal qualification of wars of national liberation, which totally dominated the first session of the Diplomatic Conference, right from the opening ceremony, and resulted in a sharp division of the conference and two votes, the second one at the very end of the session. This issue also strongly influenced the debates on a wide range of other matters, such as the status of captured combatants in irregular warfare (Article 44 of Additional Protocol I (AP I)). The votes concluding the first session of the 1974–77 Diplomatic Conference left deep wounds which took a long time to heal, as demonstrated by the refusal of some States to ratify AP I.

20 ICRC Commentary on APs, above note 17, pp. 585–596.

21 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, pp. 226–267, esp. pp. 256–260.

22 Slama, Alain-Gérard, La guerre d'Algérie: Histoire d'une déchirure, Collection La Découverte, No. 301, Éditions Gallimard, Paris, 1996, pp. 16–17Google Scholar; Étienne, Bruno and Pouillon, François, Abd El-Kader, le Magnifique, Collection La Découverte, No. 431, Éditions Gallimard and Institut du Monde Arabe, Paris, 2003, pp. 24–53Google Scholar.

23 Perret, Françoise and Bugnion, François, De Budapest à Saigon, Histoire du Comité international de la Croix-Rouge, Vol. 4: 1956–1965, ICRC and Georg Editors, Geneva, 2009, pp. 177–221, 259–268 (English translation forthcoming)Google Scholar. See also Klose, Fabian, Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria, trans. Geyer, Dona, University of Pennsylvania Press, Philadelphia, PA, 2013, pp. 120–125Google Scholar.

24 Abi-Saab, Georges, “Wars of National Liberation and the Laws of War”, Annals of International Studies, Vol. 3, 1972, pp. 93–117Google Scholar; Abi-Saab, Georges, “Wars of National Liberation in the Geneva Conventions and Protocols”, Collected Courses of the Hague Academy of International Law, Vol. 165, No. 4, 1979, pp. 353–445Google Scholar. The president of the Islamic Republic of Mauritania, Mokhtar Ould Dada, specially came to Geneva to address the opening ceremony of the 1974–77 Diplomatic Conference. He forcefully denounced the ongoing colonial situations in Africa, Asia and the Middle East, asserted the right of oppressed peoples to take up arms to recover their independence, and called for recognition of “freedom fighter” status: see Official Records, above note 1, Vol. 5, Doc. CDDH/SR.1, pp. 12–14.

25 A first vote took place at the 13th session of Committee I on 22 March 1974; the draft of Article 1, paragraph 4 was adopted by seventy votes to twenty-one with thirteen abstentions. A second vote on Article 1 as a whole took place in the 36th plenary session on 23 May 1977; the article was adopted by eighty-seven votes to one with eleven abstentions. Official Records, above note 1, Vol. 8, Doc. CDDH/I/SR.13, p. 102; Vol. 6, Doc. CDDH/SR.36, pp. 40–41.

26 George H. Aldrich, “Some Reflections on the Origins of the 1977 Geneva Protocols”, in C. Swinarski (ed.), above note 17, pp. 129–137, esp. p. 136.

27 AP I, Arts 35–60.

28 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study)CrossRefGoogle Scholar.

29 Ibid. See also Henckaerts, Jean-Marie, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflicts”, International Review of the Red Cross, Vol. 87, No. 857, 2005, pp. 175–212CrossRefGoogle Scholar; Bugnion, François, “Droit international humanitaire coutumier”, Swiss Review of International and European Law, Vol. 17, No. 2, 2007, pp. 165–214Google Scholar esp. pp. 183–190 (English translation: “Customary International Humanitarian Law”, African Yearbook on International Humanitarian Law, 2008, pp. 59–99).

30 See the references cited in note 29. For a critical US analysis of the ICRC Customary Law Study, see Bellinger, John B. and Haynes, William J., “A US Government Response to the International Committee of the Red Cross Study on Customary International Humanitarian Law”, International Review of the Red Cross, Vol. 89, No. 866, 2007, pp. 443–471Google Scholar. For another US analysis of the customary nature of the provisions of AP I relating to the conduct of hostilities, see Matheson, Michael J., “The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions”, American University Journal of International Law and Policy, Vol. 2, No. 2, 1987, pp. 419–436Google Scholar. For an analysis by the former head of the US delegation to the 1974–77 Diplomatic Conference, see Aldrich, George H., “Customary International Humanitarian Law – An Interpretation on Behalf of the International Committee of the Red Cross”, British Yearbook of International Law, Vol. 76, 2006, pp. 503–524CrossRefGoogle Scholar.

31 ICTY, The Prosecutor v. Duško Tadić a/k/a “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 119, cited in Sassòli, Marco, Bouvier, Antoine and Quintin, Anne (eds), How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, 3rd ed., Vol. 3, ICRC, Geneva, 2011, pp. 1758–1795Google Scholar, esp. p. 1781.

32 Draft APs, above note 15, pp. 33–46; ICRC Commentary on Draft APs, above note 15, pp. 129–176; Official Records, above note 1, Vol. 1, Part 3, pp. 33-46.

33 Doc. CDDH/402. To our knowledge, this document was not reproduced in the Official Records. The drafts of the articles adopted by the Conference's three plenary committees can be consulted in the committees’ reports, which are reproduced in Volumes 10, 13 and 15 of the Official Records, above note 1.

34 Whereas the 1974–77 Diplomatic Conference's committees had dedicated part or the totality of seventy-seven sessions to examining the ICRC's draft, not to mention countless meetings of various working parties, the plenary committee rushed through its examination of Pakistan's draft in only six sessions. Deferring the adoption of AP II to a fifth session of the Diplomatic Conference or to another conference was no solution either. After four sessions of the Diplomatic Conference, most delegations wanted to conclude and had no interest in another session. It was also obvious that a majority of States would not support the prospect of a diplomatic conference, the main purpose of which would be updating the law applicable to non-international armed conflicts.

35 Draft APs, above note 15, Draft Protocol II, Arts 6–10, pp. 35–36.

36 As demonstrated by the Spanish Civil War (1936–39), nothing prevents insurgents, provided they reach a certain degree of organization, from setting up their own courts and tribunals and from prosecuting their adversaries. Thus, the officers and men who remained loyal to the Spanish Republic were indicted and convicted for armed rebellion by the military courts set up by the insurgents, just as nationalist officers and men were indicted and convicted by the military courts of the Spanish Republic.

37 Draft APs, above note 15, Draft Protocol II, Art. 5, p. 34.

38 The fact that government forces and insurgents find themselves in radically different positions under national law and, in most cases, under public international law does not prevent them from enjoying equal rights and duties under the laws and customs of war. Any other solution would be bound to lead to unrestricted warfare and unrestricted violence, since no force on earth could compel insurgents to respect a set of rules which they would perceive as discriminatory. Furthermore, the distinction between government armed forces and insurgent armed groups may become relative and fluid in case of civil war, either because the international community divides along ideological lines of fracture, with some States recognizing one party as the legitimate representative of the divided State while others recognize the opposite party as such, as was the case for many years with regard to Vietnam, Laos and Cambodia; or because military victory leads to a reversal of legal positions and status, the insurgents taking the place of the former government, as was the case at the end of the Spanish Civil War, following the victory of the insurgents led by Fidel Castro in Cuba in January 1959, following the victory of the Sandinista insurrection in Nicaragua in July 1979, and in several subsequent conflicts.