Law 9780199675449 Chapter 3

Part I Cross-Cutting Issues and Common
Provisions, A Cross-Cutting Issues, Ch.3 The

Temporal Scope of Application of the Conventions
Gabriella Venturini
From: The 1949 Geneva Conventions: A Commentary

Edited By: Andrew Clapham, Paola Gaeta, Marco Sassòli
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Commentaries on International Law
Published in print: 15 October 2015
ISBN: 9780199675449
Subject(s):
Individual criminal responsibility — Armed conflict — International responsibility
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Gujarat National Law University; date: 12 June 2024
(p. 51) Chapter 3. The Temporal Scope of Application of
the Conventions
A. Introduction 1
B. Meaning and Application 8
I. International armed conflicts 8
a. Beginning of applicability 8
b. End of applicability 14
II. Non-international armed conflicts 20
a. Beginning of applicability 20
b. End of applicability 26
III. Peacekeeping operations 28

IV. Provisions to be implemented in peacetime 30
C. Legal Consequences of a Violation 33
I. International responsibility 33
II. Individual criminal responsibility 34
D. Critical Assessment 36
Select Bibliography
Cullen, A., The Concept of Non-International Armed Conflict in International
Humanitarian Law (Cambridge: CUP, 2010), at 117–58
Dinstein, Y., War, Aggression and Self-Defence (4th edn, Cambridge: CUP, 2005), at
30–59
Dinstein, Y., The International Law of Belligerent Occupation (Cambridge: CUP, 2009),
at 31–66, 270–85
Greenwood, C., ‘Scope of Application of Humanitarian Law’, in D. Fleck (ed), The
Handbook of International Humanitarian Law (2nd edn, Oxford: OUP, 2008) 45
Grignon, J., L’applicabilité temporelle du droit international humanitaire (Geneva:
Schulthess and LGDJ, 2014)
Koutroulis, V., Le début et la fin du droit de l’occupation (Paris: Pedone, 2010)
Moir, L., The Law of Internal Armed Conflict (Cambridge: CUP, 2002), at 30–88
Provost, R., International Human Rights and Humanitarian Law (Cambridge: CUP,
2002), at 152–81
Siegrist, M., The Functional Beginning of Belligerent Occupation (Geneva: The
Graduate Institute eCahiers no 7, 2011)
A. Introduction
1 The words ‘peacetime’ and ‘wartime’ have traditionally been used to signify two
(supposedly) well-delimited conditions of international relations, each one governed by
different normative systems, both pertaining to international law: the ‘law of peace’, and
the ‘law of war’ (i.e., the law of armed conflict, or international humanitarian law: IHL1). In
order (p. 52) to determine their applicability,2 it is essential to identify the temporal
dimension of these two situations. Given that contemporary international law prohibits the
use of armed force, ‘peacetime’ is considered the ordinary condition of the international
community, the law of peace applying in its entirety to inter-state relations. If an armed
conflict occurs, the law of armed conflict must be applied from the beginning until the end,
when the law of peace resumes in full effect.3 Several types of armed conflict exist (and
often intermingle) and are governed by different bodies of rules. Therefore, the beginning
and end of applicability of IHL greatly depend on the nature of the armed conflict.
2 Regarding the beginning of applicability, the old ‘Geneva law’ (Conventions of 22 August
1864, 6 July 1906, and 27 July 1929) did not specify its temporal scope of application. In
spite of this, like the ‘Hague law’ (exemplified by the 1899 and 1907 Conventions
respecting the laws and customs of war on land and their annexed Regulations), the
Conventions were indisputably deemed to apply in ‘wartime’, i.e. in the case of inter-state
war. At that time, IHL conventions did not cover internal conflicts such as civil wars; they
were considered internal matters falling within the domestic jurisdiction of the territorial
state.
3 The four Geneva Conventions of 12 August 1949 substantially developed the rules on the
temporal scope of application of IHL, with several provisions expressly devoted to the
beginning and end of application. Common Article 2 enumerates three situations in which
the Geneva Conventions apply, i.e. declared war between states parties, armed conflict
between states parties irrespective of the recognition of a state of war, and occupation of
territory, even when met with no armed resistance. When an armed conflict occurs between
a state party and a non-party state, the Conventions become applicable if the non-party
state accepts and applies their provisions.4 Article 6 of Geneva Convention (GC) IV further
provides that applicability of the Convention starts ‘from the outset’ of any conflict or
occupation mentioned in Common Article 2.
4 States which have ratified Additional Protocol I (AP I) are bound to apply the
Conventions and the Protocol to a fourth situation, i.e. ‘armed conflicts in which peoples are
fighting against colonial domination and alien occupation and against racist regimes in the
exercise of their right of self-determination’ (Article 1(4) AP I).5 Article 3 AP I further
explains that the Conventions and the Protocol shall apply ‘from the beginning’ of all
situations referred to in Common Article 2 and Article 1 AP I.
5 Regarding the end of applicability, both GC I and GC III stipulate that they apply to
protected persons who have fallen ‘into the hands’ (Article 5 GC I) or ‘into the
power’ (Article 5 GC III) of the enemy until their final release or repatriation. Article 6 GC
IV establishes two different time limits: the ‘general close of military operations’ for the (p.
53) territory of states parties to the conflict; and ‘one year after the general close of
military operations’ for occupied territory (see Chapter 74, MN 4–10, of this volume). These
stipulations, which depart from customary international law, were based on the view that
the application of the Convention for a longer period of time would not be justified in
situations like Germany and Japan after the Second World War.6 However, a number of
provisions on the protection of civilians continue to apply as long as the Occupying Power
‘exercises the functions of government’ in occupied territory. Additional Protocol I also
refers to the ‘general close of military operations’ to determine the end of application of the
Conventions and the Protocol (Article 3(b) AP I). Concerning occupation, however, AP I
replaces the one-year term with the ‘termination of occupation’ (see Chapter 74, MN 11–20,
of this volume). In addition, both GC IV and AP I prescribe, for the benefit of certain
persons, their applicability until the ‘final release, repatriation or re-establishment’ of
protected persons.
6 One of the main innovations of the Geneva Conventions was Common Article 3, the
‘Convention in miniature’, dealing with non-international armed conflicts (NIACs). Common
Article 3 establishes neither the beginning nor the end of applicability. The beginning must
therefore correspond to the start of the conflict, but this means determining what a NIAC is
in this context (discussed below, MN 20–25). However, Common Article 3 also stipulates
that the parties to the conflict should endeavour to conclude special agreements in order to
bring into force the whole, or part, of the provisions of the Geneva Conventions (see
Chapter 25 of this volume). Consequently, the conclusion of such an agreement would
represent the beginning of applicability of the provisions envisaged. Additional Protocol II
(AP II) of 8 June 1977 does not expressly establish the beginning and end of applicability.
However, Article 2(2) AP II refers to the ‘end of the armed conflict’ when it states that
persons whose liberty has been restricted must continue to enjoy protection after the
conflict.
7 Contemporary practice shows that armed conflicts often assume different characteristics
over time, shifting from being non-international to transnational or of a mixed nature (see
Chapter 2 of this volume). For instance, the conflict in Afghanistan (2001) shifted from non-
international to international and then reverted to non-international; in Iraq (2003), a NIAC
persisted after the end of the international armed conflict (IAC).7 These armed conflicts
raise specific problems with respect to the beginning and end of application of different sets
of rules. Clearly, fractioning the legal regime applicable to an armed conflict may be a
solution ex post, but often implies endless controversies and insurmountable practical
difficulties in the field. This explains the trend towards the merging of the law of NIAC into
the law of IAC, prompted particularly by the International Criminal Tribunal for the former
Yugoslavia (ICTY) over the last decades.8 However, the distinction is still effective on at
least one issue, i.e. the recognition of the status of the prisoner of war (POW). Since there
are no legitimate combatants in NIACs, it is essential (p. 54) to determine the precise
moment when a NIAC becomes international, and vice versa, in order to trigger the
application either of Common Article 3, or of the whole contents of the Geneva Conventions.
B. Meaning and Application

I. International armed conflicts
a. Beginning of applicability
8 Traditionally, a ‘state of war’ began by a formal declaration or an ultimatum announcing
a conditional declaration of war, as agreed upon by states parties to Hague Convention III
relative to the Opening of Hostilities of 18 October 1907. Such declarations triggered the
application of the law of IAC. The provisions of Hague Convention III, however, did not
become norms of customary international law. Instead, it was recognized that ‘the jus in
bello is brought into operation as soon as war in the material sense is embarked upon,
despite the absence of a technical state of war’.9 Common Article 2 establishes that the
Geneva Conventions apply both to ‘declared wars’ and to ‘any other armed conflict’ which
may arise between one or more states parties, ‘even if the state of war is not recognized by
one of them’. Interpreting the wording of this provision literally could lead to an
understanding that if both belligerents deny the state of war, the Conventions are not
applicable. A well-established interpretation, however, holds that the intention of the
belligerent states is entirely immaterial.10
9 Contemporary practice confirms that declarations of war are irrelevant for the beginning
of applicability of the Geneva Conventions to IACs. For example, during the eight-year Iraq–
Iran war, Iran declared war on Iraq only in 1989. In spite of this, both states availed
themselves of their belligerent rights from the time of the Iraqi attack on 22 September
1980.11 Additionally, the initial denial of the state of war between the UK and Argentina by
the United Kingdom (UK) Government did not affect the immediate application of the
Geneva Conventions at the outbreak of the Falkland/Malvinas conflict.12
10 The Geneva Conventions do not specify any threshold for the existence of an IAC. Most
authors consider that any use of armed force between states, irrespective of its intensity,
duration, or scale, triggers the application of the Conventions.13 Others stress that states
are not always willing to qualify isolated incidents as an armed conflict.14 Military (p. 55)
manuals seem to support the first interpretation,15 as does the ICTY Appeals Chamber in its
famous 1995 Tadić Decision (Interlocutory Appeal on Jurisdiction), in which it states that
‘an armed conflict exists whenever there is a resort to armed force between states’.16 As
soon as a person (whether wounded, sick, shipwrecked, combatant, or civilian) is affected
as a result of conflict, the relevant provisions of the Geneva Conventions are applicable.17
This functional approach to the beginning of applicability of the Geneva Conventions has
the merit of gradually bringing the humanitarian machinery into operation in order to
ensure the best protection to individuals. Different problems arise with respect to the
beginning of the applicability of GC IV in the case of occupation (with or without armed
resistance), and the ensuing problems concerning the traditional distinction between
invasion and occupation (on these issues, see Chapter 67 of this volume).
i. Ratification, accession, succession, and special agreements
11 As international treaties, the Geneva Conventions are binding upon their parties.
Accordingly, for the Conventions to bind states in conflict, they must have ratified or
acceded to them. This may seem immaterial, since the equivalence of the Geneva
Conventions to customary international law is widely recognized.18 The issue, however,
becomes relevant in the case of newly formed states. The Eritrea–Ethiopia Claims
Commission (EECC), established in 2000 to adjudicate claims resulting from violations of
IHL or other violations of international law during the 1998–2000 war between Eritrea and
Ethiopia, maintained that since Eritrea had made clear that it did not consider itself bound
by the Geneva Conventions as a successor state to Ethiopia, the Conventions became
applicable only from the date of Eritrea’s accession.19
12 As for NIACs, Common Article 3 recommends that parties to a NIAC should endeavour
to bring into force all or part of the other provisions of the Geneva Conventions by means of
special agreements. Each special agreement will determine the beginning of applicability of
the rules agreed upon (see Chapter 25 of this volume). Any non-state armed group may
enter into this category of agreement. For example, in 1991 and 1992, all parties to the
conflict in the former Yugoslavia entered into a number of special agreements under the
auspices of the International Committee of the Red Cross (ICRC), dealing particularly with
the exchange and transfer of prisoners.20 On the other hand, only national liberation
movements may make declarations pursuant to Article 96(3) AP I undertaking to apply the
Geneva Conventions and the Protocol, which are thus brought into force for that conflict
with ‘immediate effect’.21
(p. 56) ii. Beginning of applicability with regard to protected persons
13 Individuals benefit from the protection of the Geneva Conventions as soon as they find
themselves in one of the situations envisaged by the Conventions, designated by the
expressions ‘into the hands of the enemy’22 or ‘into the power of the enemy’.23 Regarding
GC I, GC II, and GC III, this language suggests that the relevant Convention applies to
protected persons immediately upon capture by the enemy belligerent.24 Article 4 GC IV is
interpreted in a more general sense, setting out the criteria of nationality for persons
protected under the Convention. Any person in the territory belonging to, or under the
control of, a belligerent of which he or she is not a national is a protected person, even if
that belligerent does not actually exercise its power over him or her.25 Besides, the ICTY
held that in contemporary IACs, the formal requirement of nationality is not entirely
adequate to define protected persons, since ‘ethnicity may become determinative of
national allegiance’. As a consequence, ‘allegiance to a Party to a conflict and,
correspondingly, control by this Party over persons in a given territory may be regarded as
the crucial test’.26 In later judgments, the Tribunal confirmed and elaborated this
assertion,27 and more recently the Pre-Trial Chamber of the International Criminal Court
(ICC) has taken the same view.28 The particular question of when the rules of GC IV begin
to apply on occupied territories is dealt with in Chapter 67 of this volume.
b. End of applicability
14 Traditionally, a state of war was terminated by a treaty of peace between the belligerent
states.29 Given the fact that the issuance of a declaration of war has tended to disappear,
current practice offers only a few examples of such treaties, such as the peace treaties
concluded by Israel with Egypt in 1979 and with Jordan in 1994.30 Armistice, formerly a
type of suspension of hostilities, became a method for terminating IACs, for example the
Arab–Israeli War of 1948 and the Korean War of 1950–3.31 Currently, even when an IAC is
formally terminated by treaty, reference is not made to the end of war but instead to the
‘durable cessation’ or the ‘permanent termination’ of hostilities between parties.32 Various
types of cease-fire agreements may also temporarily suspend hostilities, which may or may
not last (p. 57) until an armistice or a peace agreement is reached.33 However, the end of
applicability of the Geneva Conventions does not automatically ensue from the existence of
the instruments mentioned above. As the 1995 Tadić Decision clearly stated, as far as IACs
are concerned, the application of IHL (and therefore also of the Geneva Conventions)
‘extends beyond the cessation of hostilities until a general conclusion of peace is reached’.34
Accordingly, a mere cease-fire, an armistice, or even a peace treaty could not suspend or
limit the applicability of IHL when hostilities continue or resume.35 After President Bush
declared an end to major combat operations in Iraq on 1 May 2003, military activities
nevertheless persisted between coalition forces and Iraqi opposition fighters.36 As a
consequence, the United Nations Security Council, while recognizing the role of the United
States (US) and the UK as Occupying Powers, nevertheless called upon all parties (‘all
concerned’) to ‘comply fully with their obligations under international law’, mentioning not
only the Geneva Conventions, but also ‘combat law’ as codified in the 1907 Hague
Regulations.37
i. End of applicability of Geneva Conventions I–III
15 The rationale of the Geneva Conventions is to provide a functional termination of
applicability, depending on the situation of the protected persons.38 According to Article 5
GC I, the Convention is applicable until the ‘final repatriation’ of the protected persons.
Thus, as long as some wounded and sick are retained by the adverse party (e.g., for medical
reasons) after the end of hostilities, they continue to enjoy the protection provided by the
Convention.39 Nevertheless, ‘[w]hile in enemy hands, the wounded and sick—who are also
prisoners of war—enjoy protection under both the First and the Third Conventions. Once
they have regained their health, only the Third Convention, relative to the treatment of
prisoners of war, applies.’40
16 Article 5 GC III establishes that the Convention remains applicable until the ‘final
release and repatriation’ of POWs, who as a rule must be repatriated ‘without delay after
the cessation of active hostilities’ (Article 118 GC III). The related questions, including the
relevance of the refusal of POWs to be repatriated, are discussed elsewhere in this
Commentary (see Chapter 51 of this volume). Notwithstanding the absolute obligation laid
down by GC III, state practice demonstrates that release and repatriation of POWs often
takes a long time. Striking examples are the lengthy process of repatriating POWs from the
1980–8 Iran–Iraq war,41 as well as from the 1990–1 Gulf war,42 and (to a lesser extent) from
the 1998–2000 Eritrea–Ethiopia war.43 According to one author, ‘after the end of the
hostilities the Third Geneva Convention can no longer be considered a valid legal
framework for the detention of persons who have not been released or imprisoned as a
result of criminal process’.44 As a consequence, international human rights law (IHRL) and
domestic law should regulate their condition. The retention of POW status, however, has
important advantages. First, it entails the discharge of all obligations of the Detaining (p.
58) Power under the Convention. Secondly, it enables the ICRC to carry out its visits. Last
but not least, it may result in allowances and/or pensions after repatriation. (See Chapter
48, MN 102–109, of this volume.)
ii. End of applicability of Geneva Convention IV on the territory of belligerent states
17 Article 6 GC IV distinguishes between the end of application of the Convention in the
territory of belligerent states and the cessation of application in occupied territory (see MN
18–19). The former coincides with the ‘general close of military operations’. Although the
Convention does not explain the concept, it is currently interpreted to have a wider
meaning than the notion of ‘active hostilities’. While the end of ‘active hostilities’ refers to
the mere termination of fighting, the ‘general close of military operations’ entails a
‘complete cessation of all military manoeuvres’ by all belligerents.45 A number of provisions
of GC IV, however, associate some obligations (like those regarding the cessation of
internment and the return of internees to their last place of residence or their repatriation,
pursuant to Articles 133 and 134 GC IV) with the actual ‘close of hostilities’ (see Chapter 66
of this volume). The last sentence of Article 6 ensures that protected persons, whose
release, repatriation, or re-establishment takes place later, continue to benefit from the
Convention. Like GC III with regard to POW captivity, GC IV seems inadequate to regulate
the condition of civilian internees after the end of hostilities.46 The argument bears more
weight in the case of civilian internees, whose protection is better guaranteed by the
general framework of IHRL.
iii. End of applicability of Geneva Convention IV in the case of occupation
18 The issue of when an occupation ends is dealt with in detail in Chapter 74 of this
volume. Concerning the end of applicability of GC IV during occupation, Article 6 GC IV
stipulates that in occupied territory, the Convention ceases to apply one year after the
general close of military operations. The drafters of the Convention, however, were
concerned about the fate of protected persons throughout the entire period of occupation.
As a result, Article 6 provides for the continuing application of a number of provisions of the
Convention, i.e.:
47
— the general provisions laid down in Part I of the Convention;
48
— those on the status and treatment of protected persons;
49
— the prohibition of depriving protected persons of the benefits of the Convention;
— the prohibition of forced transfers and forced labour in the armed or auxiliary
forces of the occupying state; 50
51
— the right of workers to apply to the representatives of the Protecting Powers;
52
— the prohibition of destruction of real or personal property;
53
— the duty to supply relief to the population of the occupied territory;
54
— the operation of the penal laws in the occupied territory; and
— the right of representatives or delegates of the Protecting Powers to visit places of
internment, detention, or work of protected persons. 55
(p. 59) In its Wall Opinion, the International Court of Justice (ICJ) accordingly held that
‘[s]ince the military operations leading to the occupation of the West Bank in 1967 ended a
long time ago, only those Articles of the Fourth Geneva Convention referred to in Article 6,
paragraph 3, remain applicable in that occupied territory.’56
19 Article 3 AP I supersedes Article 6 GC IV, providing that the Conventions as a whole, as
well as the Protocol, remain fully applicable until the termination of occupation. This critical
concept is analysed in another chapter of this Commentary.57 Suffice it to mention here that
the rule laid down in AP I corresponds to the customary principle of effectiveness, as
embodied in the Hague Regulations, that was derogated from in 1949 for historical and
political reasons, as explained above (MN 5). Presently, all states parties to AP I remain
bound by GC IV in its entirety (and by the Protocol) as long as an occupation actually
continues. The ICJ Wall Opinion, mentioned above, suggests that non-party states (Israel, in
the case in question) are bound only by those provisions referred to in Article 6 GC IV.58
However, scholars argue that all substantive rules contained in GC IV apply throughout the
entire period of occupation, as indicative of customary international law.59
II. Non-international armed conflicts

a. Beginning of applicability
20 Common Article 3 is silent on the temporal dimension of a NIAC. The sole condition for
its applicability is the existence of an armed conflict ‘not of an international character
occurring in the territory of one of the High Contracting Parties’. As a consequence, the
applicability of Common Article 3 coincides with the beginning of a NIAC. But when does
such a conflict start? Whereas the beginning of an IAC corresponds to the first shot fired
between state armies, such a clear-cut situation does not occur in NIACs for a variety of
reasons (see Chapters 1, 19 (in particular MN 34–61), and 20 of this volume). However, for
our purposes, suffice it to observe that a NIAC usually results from a progressive series of
actions that initially do not amount to armed confrontation. Furthermore, governments are
hardly inclined to admit the existence of an armed conflict within their territory. Therefore,
elaborating criteria to determine the initial moment of a NIAC has largely been the task of
international jurisprudence and legal scholars.
i. The protracted character of the armed violence
21 In the 1997 Tablada case, the Inter-American Commission on Human Rights
(IACommHR) established the beginning of applicability of Common Article 3, when, on 23
January 1989, an armed group ‘carefully planned, coordinated and executed an armed
attack, i.e. a military operation, against a quintessential military objective—a military
base’.60 In 1999, the Review Bench of the Hungarian Supreme Court—referring to the (p.
60) events occurring between 23 October and 4 November 1956 in Hungary—stated that
Common Article 3 is applicable every time ‘when the population of the state and the armed
forces of the state are facing each other’.61 In neither case did the limited duration of the
armed confrontation constitute an obstacle to the applicability of IHL.
22 The 1995 Tadić Decision (and subsequently the Statute of the ICC) considered
‘protracted armed violence’ as being a specific feature of NIACs.62 In the ICTY
jurisprudence, this temporal element is strictly connected, and mostly muddled, with the
test of the intensity of the conflict. Within this framework, the Tribunal has often examined
incidents of violence to determine the duration of armed conflict, including in cases of
terrorist acts.63 In doing so, however, the Tribunal has paid more attention to the scale and
effects of armed activities than to their temporal extent.64
23 One scholar argues that the concept of ‘protracted armed violence’ is more flexible than
that of ‘sustained’ military operations referred to in Article 1 AP II: the requirement that
armed violence be ‘protracted’ does not automatically imply that hostilities must be
‘continuous’, nor do interruptions in fighting suspend or terminate the obligations of the
parties under Common Article 3.65 In any case, both ‘protracted’ and ‘sustained’ present a
vexing problem regarding the applicability of Common Article 3 at the beginning of a NIAC.
In fact, the moment when armed violence becomes protracted may be determined only ex
post, while uncertainty prevails in the field, where an authoritative decision is most
needed.66 From a state perspective, this issue must be addressed by enforcement and
military instructions, to ensure that the implementation of IHRL gradually gives way to the
application of IHL in order to adapt to the situation in the field. Furthermore, special
agreements, which bring into force the whole, or part, of the provisions of the Geneva
Conventions, may well establish the beginning of applicability of the provisions envisaged,
as explained above (MN 12).
ii. The degree of organization of armed groups
24 The requirement that armed groups be structured under a responsible command is set
out explicitly in AP II, which also requires dissident armed forces or armed groups to be
able to carry out ‘concerted’ military operations. The Tadić wording refers in more general
terms to ‘organized armed groups’, and the ICTY interpreted this condition on the basis of
the stability and effectiveness of the organization. In the Limaj case, the Tribunal made an
extensive analysis of the structure of the Kosovo Liberation Army, demonstrating (p. 61) the
very strong military and political organization of the group.67 Such a high degree of
organization should not, however, be deemed essential, since more flexible criteria are
better suited to the variety of situations that characterize NIACs. Therefore, Common
Article 3 becomes applicable as soon as an armed group possesses the minimum
organizational structure to enable its members to respect the provisions on the protection
of the wounded, sick, and persons not taking part in the hostilities.68
25 The extent of the organization of opposition forces in the Syrian uprising (ongoing since
2011) has been discussed in relation to the beginning of applicability of Common Article 3.
In its Report issued on 12 February 2012, the Commission of Inquiry established by the UN
Human Rights Council to investigate the alleged violations of international human rights,
was unable to determine the level of organization of the Syrian opposition groups engaged
in armed hostilities.69 Nevertheless, the subsequent escalation of armed confrontations has
led to a widespread acknowledgment of the existence of a NIAC to which Common Article 3
applies; over the years, the ICRC has repeatedly called upon the parties to respect and
protect civilians, medical personnel and facilities as well as humanitarian workers.70
b. End of applicability
26 Common Article 3 is silent on the end of its applicability, giving rise to the same
problems as encountered when examining the beginning of its applicability. Criteria based
on the decreasing intensity of armed clashes and the disbanding of armed groups are
grounded on the principle of effectiveness; however, such criteria are difficult to apply in
practice. On the personal field of application, Article 2(2) of AP II refers to the ‘end of the
armed conflict’, providing that persons who have been deprived of their liberty or whose
liberty has been restricted,71 during or after the conflict, for causes related to the conflict,
continue to benefit from the protection of the Protocol until their final release. Moreover,
Article 25(2) AP II provides that until their final release, the said persons continue to
benefit from the protection of the Protocol even upon denunciation by the state party.
Further, Common Article 3 may be deemed to continue to apply as long as persons taking
no active part in the hostilities are in need of protection. When hostilities have ceased,
however, it is debatable whether either Common Article 3 or the Additional Protocol can
offer better protection than existing human rights obligations.72
27 The 1995 Tadić Decision held that in the case of internal conflicts, IHL applies until a
‘peaceful settlement is achieved’. In the Haradinaj Decision, the ICTY clarified that once the
threshold of violence is met, a decrease in the intensity of fighting (or, one might add, (p.
62) degree of organization of an armed group involved) cannot end the applicability of
IHL.73 The classic method of reaching a ‘peaceful settlement’ is through a formal
agreement sanctioning the definitive cessation of hostilities. Examples of such agreements
are the Peace Agreement signed by the Government of El Salvador and the Frente
Farabundo Martí in Mexico on 16 January 1992,74 the Rome General Peace Agreement of 4
October 1992 between the Frelimo Government of Mozambique and the opposition forces of
Renamo,75 the Agreement on the Implementation, Compliance, and Verification Timetable
for the Peace Agreements and the Agreement for a Firm and Lasting Peace of 29 December
1996 by the Peace Commission of the Government of Guatemala and the General Command
of the Unidad Revolucionaria Nacional Guatemalteca,76 the Lomé Peace Agreement of 7
July 1999 between the elected Government of Sierra Leone and the Revolutionary United
Front,77 and the Arusha Peace and Reconciliation Agreement for Burundi of 28 August
2000.78 As a rule, this category of agreement includes, or is complemented by, stipulations
establishing national human rights institutions and incorporating elements of transitional
justice.
III. Peacekeeping operations

28 Since the last decade of the twentieth century, both UN and regional peacekeeping
forces have been increasingly involved in combat situations. The beginning and end of
applicability of the Geneva Conventions to peacekeeping forces will depend on the factual
circumstances of the particular case and will face the related problems discussed above
(MN 8–12 and 20–25).79 Furthermore, for a number of reasons, sending states are not
usually prepared to admit that their soldiers take an active part in hostilities.80
Nevertheless, the determination of the temporal scope of application of the Geneva
Conventions to peacekeeping forces is essential in establishing the status of the military
personnel, as well as their liability for offences committed in the course of peacekeeping
functions. Thus the discussion concerning the legal status of peacekeepers has taken place
chiefly in the case law of the international criminal tribunals (see MN 35 below).81
29 The United Nations Secretary-General Bulletin issued on 6 August 199982 recapitulates
the ‘fundamental principles and rules of international humanitarian law’ that must be
respected and implemented by the UN forces, but does not further elaborate on the
applicable law. In this writer’s opinion, any use of force by peacekeepers directed against
state armed forces or armed groups triggers the obligation to respect not only the
‘fundamental principles and rules of international humanitarian law’ as summarized by the
(p. 63) Bulletin, but also (at least through domestic legislation), all pertinent provisions of
the Geneva Conventions.
IV. Provisions to be implemented in peacetime

30 Although, as a rule, the Geneva Conventions apply during armed conflict, several
provisions stipulate that states parties are under an obligation to implement them in
peacetime, as soon as the Geneva Conventions enter into force for them.83 This is the case
for a group of Articles common to the four Conventions, where the contracting parties
undertake, ‘in time of peace as in time of war’, to disseminate the text of the relevant
Convention
as widely as possible in their respective countries, and, in particular, to include the
study thereof in their programmes of military and, if possible, civil instruction, so
that the principles thereof may become known to the entire population, in particular
to the armed fighting forces, the medical personnel and the chaplains.84
Similarly, the obligation of the contracting parties to provide one another with the official
translations of the Conventions, as well as the laws and regulations adopted to ensure their
application, must clearly be satisfied in time of peace.85 Additionally, the obligation to
prosecute grave breaches based upon the principle of universal jurisdiction is, by definition,
equally addressed to states not involved in an armed conflict,86 as is the obligation to
legislate on and repress misuses of the emblem of the red cross, red crescent, or red
crystal.87
31 A number of provisions of the Geneva Conventions explicitly or indirectly stipulate that
the contracting parties must discharge a number of obligations after either the end of
hostilities or the end of the conflict. Thus, Article 119 GC III and Article 133 GC IV provide
that after the close of hostilities the parties to the conflict may conclude an agreement
establishing special commissions for the purpose of searching for dispersed POWs and
internees, respectively. Article 122 GC III provides that the National Information Bureau
(which must be established at the beginning of any conflict or occupation by belligerents
and by neutral states with belligerents in their care) must forward all personal valuables
left by repatriated POWs to the state in whose armed forces they were serving, an
obligation that may also require implementation after the end of hostilities. The same
applies to the obligation established by Article 26 GC IV, to facilitate enquiries made by
members of families dispersed because of the war, and to encourage the work of
organizations engaged in this task.88
32 The obligation to account for missing persons in both IACs and NIACs is contained in a
number of national laws and military manuals, in agreements between parties to armed
conflicts, and in resolutions of international organizations and conferences.89 This (p. 64)
obligation is based on the right of families to know the fate of their missing relatives, which
is also supported by a number of international instruments. As a consequence, practice
suggests that an obligation to account for missing persons has been established as a rule of
customary international law applicable in both IACs and NIACs.90
C. Legal Consequences of a Violation

I. International responsibility
33 Determining the precise beginning and end of an armed conflict is essential to define
the temporal limits of state responsibility and the related liability to make reparation. For
example, the United Nations Compensation Commission (UNCC), established in 1991 by the
Security Council,91 made reference to the date of Iraq’s invasion of Kuwait (2 August 1990)
and to that of the cease-fire (2 March 1991) to award compensation for losses and damage
suffered as a result of Iraq’s invasion and occupation of Kuwait,92 including violations of the
Geneva Conventions.93 In order to establish the temporal scope of its jurisdiction, the EECC
determined the precise moment of the outbreak of hostilities between Eritrea and Ethiopia
on 12 May 1998, and found that the armed conflict was formally terminated by the Algiers
Peace Agreement of 12 December 2000.94 Within this temporal framework, the Commission
then adjudicated several claims relating to the treatment of protected persons under the
Geneva Conventions.95 The Commission also decided on certain claims associated with
events that occurred after 12 December 2000 but nevertheless resulted from the conflict,
such as delays in the release and repatriation of POWs and their mistreatment in the
meanwhile.96 Eventually, the EECC awarded compensation to Ethiopia and Eritrea,
respectively, for damage incurred due to ascertained violations.97
II. Individual criminal responsibility

34 The prosecution of persons accused of grave breaches and other serious violations of
the Geneva Conventions strictly depends on the determination of the temporal scope of
applicability of IHL, in order to identify the applicable law. In the 1995 Tadić Decision, the
ICTY Appeals Chamber recognized that, beginning in 1991, the armed conflicts in the
territory of the former Yugoslavia were of a mixed character, and laid down a general
framework for classification.98 Accordingly, in dealing with subsequent cases, the various
(p. 65) Trial Chambers determined the nature of the armed conflict material to the specific
indictment charges at the time.99 Likewise, the Chambers of the International Criminal
Tribunal for Rwanda (ICTR), whose temporal jurisdiction extended from 1 January to 31
December 1994, established the existence of a state of internal armed conflict in Rwanda at
the times relevant to the various indictments.100
35 The existence of an internal armed conflict was also relevant in the recent case law of
the international criminal tribunals dealing with crimes committed against peacekeepers.
Regarding the murder of 10 Belgian peacekeepers by Rwandan soldiers on 7 April 1994, the
ICTR Trial Chamber accepted that during the relevant period, a NIAC had taken place in
the territory of Rwanda.101 In the AFRC/RUF case, the Special Court for Sierra Leone
(SCSL) Trial Chamber took note that an armed conflict had occurred in Sierra Leone from
March 1991 until January 2002, covering the crimes charged in the indictment pursuant to
Article 4(b) of the SCSL Statute.102
D. Critical Assessment
36 Since the purpose of the Geneva Conventions is to protect victims of armed conflict,
their temporal scope of application must be measured with a view to ensuring the greatest
possible value of that objective. The functional approach to the beginning as well as to the
end of application, depending on the situation of the protected persons, is best suited to
that aim. The provisions contained in the Geneva Conventions, however, were mainly
designed to deal with inter-state armed conflicts. Thus, the beginning of application is
clearly established (first shot, first person affected) for such conflicts, while the end of
application gradually follows a number of expected events (the release, repatriation, return,
re-establishment of protected persons). As far as today’s NIACs are concerned, neither
Common Article 3 nor AP II gives adequately detailed directions. On one hand, the
transition from civil disturbances, riots, and unrest to a NIAC may be evaluated in
retrospect, but is difficult to assess on the ground while violence increases. On the other
hand, often the end of a NIAC does not change the situation of the victims, who continue to
suffer from deprivation of their fundamental rights.
37 In recent years, the tendency to merge the law of NIAC into the law of IAC has solved
some problems, but only partially, since the latter is grounded on the principle of the
equality of belligerents, the application of which in NIAC is problematic, at the least. On the
other hand, it is necessary for military doctrine and instructions to regulate the behaviour
of the armed forces in a manner that enables them to identify the events that trigger the
application of different sets of rules, and to act accordingly. This also proves crucial to the
assessment of both international and individual criminal responsibility for violations of the
Geneva Conventions. A further challenge is that of coordinating the application of the
Geneva Conventions and IHRL, which continues to apply during armed conflict. Thus,
military doctrine should incorporate principles regulating law enforcement actions, both
domestically and in military operations (p. 66) abroad. Not only states, but also
international organizations conducting peacekeeping and peace-enforcement missions are
called upon to participate in this endeavour. Defining the temporal scope of application of
the Geneva Conventions to peacekeeping forces is essential, not only in order to provide
military personnel with clear rules of engagement, but also to establish the responsibility of
both individuals and the sending organization.
Gabriella Venturini
Footnotes:
1
For the purposes of the present chapter these two expressions are used as equivalent. In
its Nuclear Weapons Opinion, the International Court of Justice (ICJ) distinguished between
‘the law applicable in armed conflict’ and ‘humanitarian law’, the former comprising the
latter; however, the ICJ recognized ‘the intrinsically humanitarian character […] which
permeates the entire law of armed conflict’ (ICJ, Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, 8 July 1996, paras 36, 42, and 75–9).
2
While applicability envisages the relevance of a regulatory regime to certain facts,
application properly refers to the functioning of the substantive rules in a given situation.
See R. Kolb and R. Hyde, An Introduction to the International Law of Armed Conflicts
(Oxford: Hart Publishing, 2008), at 99–100. As a rule, applicability and application coincide
temporally. The Geneva Conventions and Protocols use ‘application’ or ‘applicable’ but
never ‘applicability’.
3
The law of peace and the law of armed conflict, however, are not mutually exclusive. For
example, the greater part of international human rights law continues to apply during
armed conflict, whilst IHL might provide further protection to victims beyond the end of the
armed conflict (see Ch 35 of this volume).
4
See Ch 1, MN 12–15, of this volume.
5
For a discussion of Art 1(4) situations related to National Liberation Movements engaged
in self-determination struggles, see Ch 1, MN 49–54, of this volume.
6
See Pictet Commentary GC IV, at 63.
7
See D. Jinks, ‘The Temporal Scope of Application of International Humanitarian Law in
Contemporary Conflicts’, Background Paper prepared for the Informal High-Level Expert
Meeting on the Reaffirmation and Development of International Humanitarian Law,
Cambridge, 27–9 January 2003, available at <http://www.gistprobono.org/
sitebuildercontent/sitebuilderfiles/scopeofihl.pdf>, at 9; E. David, Principes du droit des
conflits armés (4th edn, Brussels: Bruylant, 2008), at 129–30.
8
See C. Greenwood, ‘The Development of International Humanitarian Law by the
International Criminal Tribunal for the Former Yugoslavia’, 2 Max Planck Yearbook of
United Nations Law (1998) 97, at 130; Kolb and Hyde, above n 2, at 258.
9
Y. Dinstein, War, Aggression and Self-Defence (4th edn, Cambridge: CUP, 2005), at 10.
(For a definition of ‘international armed conflict’, see Ch 1 of this volume.)
10
Dinstein, above n 9, at 17. See also Federal Ministry of Defence of the Federal Republic
of Germany, Humanitarian Law in Armed Conflicts—Manual, VR II, 3 August 1992 (English
version of the German triservice manual ZDv 15/2 Humanitäres Völkerrecht in bewaffneten
Konflikten—Handbuch, issued in August 1992), para 203, available at <http://
www.humanitaeres-voelkerrecht.de/ManualZDv15.2.pdf>.
11
M. Mancini, Stato di guerra e conflitto armato nel diritto internazionale (Torino: G.
Giappichelli, 2009), at 123.
12
L.C. Green, The Contemporary Law of Armed Conflict (3rd edn, Manchester: Juris
Publishing, Manchester University Press, 2008), at 92–3.
13
See, e.g. Kolb and Hyde, above n 2, at 101; S. Vité, ‘Typology of Armed Conflicts in
International Humanitarian Law: Legal Concepts and Actual Situations’, 91 IRRC 873
(2009) 59, at 72; Y. Dinstein, The Conduct of Hostilities under the Law of International
Armed Conflict (2nd edn, Cambridge: CUP, 2010), at 28–9; Ch 1, MN 20–38, of this volume.
14
C. Greenwood, ‘Scope of Application of Humanitarian Law’, in D. Fleck (ed), The
Handbook of International Humanitarian Law (2nd edn, Oxford: OUP, 2008) 45, at 48; A.
Paulus and M. Vashakmadze, ‘Asymmetrical War and the Notion of Armed Conflict—A
Tentative Conceptualization’, 91 IRRC 873 (2009) 95, at 101.
15
Humanitarian Law in Armed Conflicts—Manual, above n 10, para 202; Canada National
Defence, Law of Armed Conflict at the Operational and Tactical Levels, 2001-08-13, B-
GJ-005-104/FP-021 (2004), para 1105.
16
ICTY, The Prosecutor v Duško Tadić, Decision on the Defence Motion for Interlocutory
Appeal, IT-94-1-A-R72, 2 October 1995 (hereinafter 1995 Tadić Decision), para 70.
17
See Pictet Commentary GC I, at 32–3.
18
ICJ, Legality of the Threat or Use of Nuclear Weapons, above n 1, para 79.
19
EECC, Prisoners of War—Ethiopia’s Claim 4, Partial Award, 1 July 2003, paras 23–8. See
David, above n 7, at 203–4.
20
See Kolb and Hyde, above n 2, at 178; further examples are given by S. Rondeau,
‘Participation of Armed Groups in the Development of the Law Applicable to Armed
Conflicts’, 93 IRRC 883 (2011) 649, at 664.
21
See further Ch 1, MN 49–54, of this volume for national liberation movements.
22
Art 5 GC I and Art 5 para 2 GC III.
23
Art 12 GC II and Art 5 para 1 GC III.
24
Pictet Commentary GC III, at 74; and R. Provost, International Human Rights and
Humanitarian Law (Cambridge: CUP, 2002), at 250.
25
Pictet Commentary GC IV, 47. See, for a definition of ‘protected civilian’, Ch 55 of this
volume.
26
ICTY, The Prosecutor v Duško Tadić, Appeals Chamber Judgment, IT-94-1-A, 15 July
1999, para 166.
27
ICTY, The Prosecutor v Zlatko Aleksovski, Appeals Chamber Judgment, IT-95-14/1-A, 24
March 2000, para 151; The Prosecutor v Zdravko Mucić et al (‘Čelebići Camp’), Appeals
Chamber Judgment, IT-96-21-A, 20 February 2001, para 84; The Prosecutor v Mladen
Naletilić and Vinko Martinović, Appeals Chamber Judgment, IT-98-34-A, 3 May 2006, para
20.
28
ICC, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07,
Decision on the confirmation of charges, 30 September 2008, para 292.
29
See Dinstein, above n 9 at 34–42; Greenwood, above n 14, at 70–1.
30
18 ILM (1079) 362–93; 34 ILM (1995) 43–66. While the treaty between Israel and Egypt
expressly refers to the termination of the state of war (Art 1.1), the treaty between Israel
and Jordan recalls the (previously declared) termination of the state of belligerency and
decides the establishment of peace (preambular para 7 and Art 1). See David, above n 7, at
152.
31
See Green, above n 12, at 106–8.
32
See the General Framework Agreement for Peace in Bosnia and Herzegovina of 14
December 1995 (Annex 1A) Art I.2.a, available at <http://www.ohr.int/dpa/default.asp?
content_id=380>, and the Agreement Between the Government of the Federal Democratic
Republic of Ethiopia and the Government of the State of Eritrea of 12 December 2000 (A./
55/686-O/2000/1183, Annex) Art 1. See Mancini, above n 11, at 129–30 and 136.
33
See Dinstein, above n 9, at 50–6.
34
Above n 16, para 70.
35
See the EU’s Independent International Fact-Finding Mission on the Conflict in Georgia,
Report, 30 September 2009, vol II, at 299, available at <http://www.ceiig.ch>.
36
See S. Borman, CRS Report for Congress. Iraq: U.S. Military Operations, RL31701, 15
July 2007, at 7, available at <http://fas.org/sgp/crs/mideast/RL31701.pdf>.
37
UNSC Res 1483 (2003), 22 May 2003, para 5.
38
R. Kolb, Ius in bello. Le droit international des conflits armés. Précis (Brussels: Bruylant,
2003), at 107.
39
See Pictet Commentary GC I, at 65.
40
Ibid.
41
See ICRC Annual Report 2004, at 278.
42
See ICRC Annual Report 2011, at 381 and 410.
43
See ICRC Annual Report 2002, at 74.
44
J. Pejic, ‘Terrorist Acts and Groups: A Role for International Law?’, 75 BYBIL (2004) 71,
at 78.
45
See Jinks, above n 7, at 3.
46
Pejic, above n 44, at 81.
47
Arts 1–12 GC IV. See Part I.B of this volume.
48
Arts 27 and 29–34 GC IV. For the substantive application, see Part II.C of this volume.
49
Art 47 GC IV.
50
Arts 49 and 51 GC IV.
51
Art 52 GC IV.
52
Art 53 GC IV.
53
Arts 59 and 61–3 GC IV.
54
Arts 64–70 GC IV.
55
Art 143 GC IV.
56
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 9 July 2004 (hereinafter ICJ, Wall Opinion), para 125. See Y.
Dinstein, The International Law of Belligerent Occupation (Cambridge: CUP, 2009), at 280–
3.
57
See Ch 74 of this volume.
58
See MN 18 above.
59
See R. Kolb and S. Vité, Le droit de l’occupation militaire: perspectives historiques et
enjeux juridiques actuels (Brussels: Bruylant, 2009), at 164; V. Koutroulis, Le début et la fin
du droit de l’occupation (Paris: Pedone, 2010), at 181.
60
IACommHR, Juan Carlos Abella v Argentina, Case 11.137, Report No 55/97, 1 November
1997, paras 154–6. See David, above n 7, at 153 and A. Cullen, The Concept of Non-
International Armed Conflict in International Humanitarian Law (Cambridge: CUP, 2010), at
144–5.
61
See T. Hoffmann, ‘Individual Criminal Responsibility for Crimes Committed in Non-
International Armed Conflicts—The Hungarian Jurisprudence on the 1956 Volley Cases,
(February 20, 2009)’, in S. Manacorda and A. Nieto Martín (eds), Criminal Law between
War and Peace: Justice and Cooperation in Criminal Matters in International Military
Interventions (Cuenca: Ediciones de la Universidad de Castilla-La Mancha, 2009) 735, at
745, available at <http://ssrn.com/abstract=1531708>.
62
See ICJ, Tadić Decision, above n 16.
63
ICTY, The Prosecutor v Anto Furundžija, Trial Chamber Judgment, IT-95-17/1-T, 10
December 1998, paras 51–7; The Prosecutor v Zejnil Delalić et al, Trial Chamber Judgment,
IT-96-21-T, 16 November 1998, para 186; The Prosecutor v Dragoljub Kunarac et al, Trial
Chamber Judgment, IT-96-23-T and IT-96-23/1-T, 22 February 2001, para 186, and Appeals
Chamber, IT-96-23 and IT-96-23/1-A, 12 June 2002, para 58; The Prosecutor v Pavle Strugar,
Trial Chamber Judgment, IT-01-42-T, 31 January 2005, para 217; The Prosecutor v Ljiube
Boškoski and Johan Tarčulovski, Trial Chamber Judgment, IT-04-82-T, 10 July 2008, paras
186–93.
64
ICTY, The Prosecutor v Ramush Haradinaj et al, Trial Chamber Judgment, IT-04-84-T, 3
April 2008, para 49.
65
See Cullen, above n 60, at 142–3.
66
See A.J. Carswell, ‘Classifying the Conflict: A Soldier’s Dilemma’, 91 IRRC 873 (2009)
143, at 151–3; Vité, above n 13, at 82 and fn 32.
67
ICTY, The Prosecutor v Fatmir Limaj et al, Trial Chamber Judgment, IT-03-66-T, 30
November 2005, paras 94–134.
68
These issues are dealt with in more detail in Ch 19 of this volume.
69
Human Rights Council, Report of the Independent International Commission of Inquiry
on the Syrian Arab Republic, 22 February 2012, A/HRC/19/69, paras 108–9.
70
See J.P. Rudolph, Syrian Conflict Governed by Common Article 3 of the Geneva
Conventions, JURIST—Sidebar, 23 July 2012, available at <http://jurist.org/sidebar/2012/07/
james-rudolph-syria-geneva.php>. See also ICRC Resource Centre, Syria and Iraq: ICRC
calls for better compliance with humanitarian law, News Release 26 September 2014, at
<https://www.icrc.org/en/document/syria-and-iraq-icrc-calls-better- compliance-
humanitarian-law>.
71
This wording is intended to cover all possible situations, to ensure that there is no gap in
protection: see ICRC Commentary APs, para 4496.
72
See, on the application of more favourable provisions of IHRL, David, above n 7, at 265.
73
ICTY, The Prosecutor v Ramush Haradinaj et al, above n 64, para 100.
74
UN Doc A/46/863-S/23504, Annex I.
75
UN Doc S/24635, 8 October 1992.
76
UN Doc A/51/796-S/1997/114, Annexes I and II.
77
See <http://www.sierra-leone.org/lomeaccord.html>.
78
See <http://reliefweb.int/report/burundi/arusha-peace-and-reconciliation-agreement-
burundi>. The Arusha Agreement did not prevent the resumption of hostilities, ending with
the Global Ceasefire Agreement between the Transitional Government of Burundi and the
National Council for the Defence of the Democracy-Forces for the Defence of Democracy
signed in Dar-es-Salaam on 16 November 2003 (see <http://www.ucdp.uu.se/gpdatabase/
peace/Bur%2020031116.pdf>).
79
C.H.B. Garraway, ‘Applicability and Application of International Humanitarian Law to
Enforcement and Peace Enforcement Operations’, in T. Gill and D. Fleck (eds), The
Handbook of the International Law of Military Operations (Oxford: OUP, 2010) 129, at 130.
See also Vité, above n 13, at 87–8.
80
See Carswell, above n 66, at 155.
81
See further Ch 1, MN 16–19; Ch 2, MN 49; and Ch 19, MN 18–20, of this volume.
82
ST/SGB/1999/13, available at <http://www.un.org/en/ga/search/view_doc.asp?
symbol=ST/SGB/1999/13>.
83
H. Meyrowitz, ‘The Functions of the Law of War in Peacetime’, 26 IRRC 251 (1986) 77.
84
Art 47 GC I; Art 48 GC II; Art 127 GC III; Art 144 GC IV.
85
86
87
Arts 53 and 54 GC I.
88
See Chs 13, 49, and 53 of this volume. AP I further expands the extent of humanitarian
obligations to be implemented in peacetime. See Art 36 AP I relating to new weapons; Art
41(1) on the internal disciplinary system of the armed forces; Art 80 on domestic measures,
orders, and instructions for the execution of the Conventions and the Protocol; Art 82 on
the obligation of the contracting parties to ensure ‘at all times’ that legal advisers are
available to counsel military commanders about the application of the Conventions and the
Protocol; and, last but not least, Art 33(1) on missing persons, laying down detailed
obligations on the search for persons who have been reported missing by an adverse party.
89
See the practice and case law listed in ICRC CIHL Study, vol II, Ch 36.
90
See Ch 13 of this volume and ICRC CIHL Study, vol I, Rule 117. Accounting for Missing
Persons: ‘Each party to the conflict must take all feasible measures to account for persons
reported missing as a result of armed conflict and must provide their family members with
any information it has on their fate.’
91
UNSC Res 687 (1991) of 8 April 1991, paras 16 and 18.
92
UNCC, Criteria for Expedited Processing of Urgent Claims, S/AC.26/1991/1 of 2 August
1991, para 18.
93
See ICRC CIHL Study, vol I, Rule 150.
94
EECC, Jus ad Bellum—Ethiopia’s Claims 1–8, Partial Award, 19 December 2005, para 14;
EECC, Decision Number 1, para B, available at <http://www.pca-cpa.org/>.
95
See S. Sanna, ‘International Humanitarian Law and the Treatment of Protected Persons’,
in A. de Guttry, H.H.G. Post, and G. Venturini (eds), The 1998–2000 War between Eritrea
and Ethiopia (The Hague: T.M.C. Asser Press, 2009) 307–39.
96
See EECC, Decision Number 1, above n 94, para C; and Sanna, above n 95, at 324–5.
97
EECC, Eritrea’s Damages Claims, Final Award, 17 August 2009; Ethiopia’s Damages
Claims, Final Award 17 August 2009, available at <http://www.pca-cpa.org/>.
98
ICTY, Tadić Decision, n 16, paras 72–8.
99
Above nn 63–4 and 67.
100
ICTR, The Prosecutor v Jean-Paul Akayesu, Trial Chamber Judgment, ICTR 96-4-T, 2
September 1998, para 174; The Prosecutor v Georges Rutaganda, ICTR-96-3-T, Judgment
and Sentence, 6 December 1999, para 435; The Prosecutor v Alfred Musema, Trial
Chamber, ICTR-96-13-T, 27 January 2000, para 971.
101
ICTR, The Prosecutor v Théoneste Bagosora et al, ICTR-98-41-T, 18 December 2008,
para 2230.
102
ICTR, The Prosecutor against Issa Hassan Sesay et al, SCSL-04-15-T, 2 March 2009,
para 969.

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Part I Cross-Cutting Issues and Common

Provisions, A Cross-Cutting Issues, Ch.3 The

From: The 1949 Geneva Conventions: A Commentary

Content type: Book content

I. International armed conflicts 8

II. Non-international armed conflicts 20

III. Peacekeeping operations 28

C. Legal Consequences of a Violation 33

B. Meaning and Application

II. Non-international armed conflicts

III. Peacekeeping operations

IV. Provisions to be implemented in peacetime

C. Legal Consequences of a Violation

II. Individual criminal responsibility

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