Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
Adopted on June 8, 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts presided over by Pierre Graber of Switzerland. The protocol entered into force on December 7, 1979 (six months after its adoption by the conference) and is binding for a country six months after it has ratified it. As of 14 January 2007 it had been ratified by 167 countries, with the United States, Israel, Iran, Pakistan and Afghanistan and Iraq being notable exceptions. However, the United States, Iran and Pakistan signed it on 12 December 1977 with the intention of ratifying it.
The international community outside of the U.S., generally accepts that the additional Geneva Conventions protocols are obligatory on all parties worldwide, as they have become part of customary law. The U.S. main objection is that the protocol extends Geneva Conventions protection to those it regards being "unlawful combatants" and terrorists. The U.S. has to date not ratified Protocol I although much of its central precepts have been incorporated into the U.S. Army's Field Manual, The Law of Land Warfare. For a list of current Protocol I signatories see: http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P (also see Part III Article 44).
Article 1. Paragraph 4 ... in which peoples are fighting against colonial domination and alien occupation and against racist regimes... could cause legal problems under international law:
Article 5. states that parties to the conflict must make sure that there is supervision by a "Protecting Power". This article makes sure that in a conflict there are people, not part of the conflict, to monitor the implementation of the Geneva Conventions by the Parties to the conflict. Before this article was introduced the Geneva Conventions implied that this should be done, but there was no explicit treaty obligation for the parties to allow monitoring.
paragraph 3. states It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. In the case of threatening to retaliate in kind to weapons of mass destruction, this would seem to limit the use of atomic weapons to neutron bombs.
The United Kingdom, one of the declared nuclear powers, in a "Declaration made upon signature" stated "(i) That the new rules introduced by the Protocol are not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons;".
The most controversial section of Protocol 1 is Article 44, especially Paragraphs 3 - 5. It is the primary cause for several United States of America administrations not ratifying this protocol, due to its treatment of captured insurgents and guerrillas (see Francs-tireurs); who do not satisfy the requirements of Article 4 of the Third Geneva Convention; as prisoners of war or an equivalent status.
3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a ) During each military engagement, and
(b ) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c ).
4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.
5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.
Francs-tireurs, insurgents and guerrillas were afforded prisoner of war status by the Third Geneva Convention provided that they carried arms openly, had superiors they were responsible to and distingushed themselves from civilians by a distinctive sign, i.e. an armband.
Protocol I extends these protections offered to Francs-tireurs, insurgents and guerrillas in the Third Geneva Convention by giving them prisoner of war status even if they don't distinguish themselves from the civilian population. Article 4 of the Third Geneva Convention requires combatants to have a "fixed distinctive sign recognisable at a distance"; Protocol I releases lawful combatants from this obligation. Without such distinctive identification lawful combatants can come under attack from enemies posing as civilians without the enemy committing perfidy or affecting the legality of their combat status. Civilians may be more likely to be attacked by combatants who are threatened by an undistinguishable enemy. This is especially relevant in peace keeping operations as whilst civilian police forces are trained to assess a situation and only to fire if certain of their targets' hostile intent, militaries are trained to assess targets and attack if not certain of their peaceful intent.
Protocol I further gives all combatants, lawful under Article 4 of the Third Geneva Convention or not, an equivalent status to 'prisoner of war' with the same rights and protections, when captured, regardless of their adherence to the laws of war. Whilst prisoner of war status under the Third Geneva Convention is contingent upon adherence to the laws of war, under Protocol I no breach of the laws of war can place an enemy combatant outside the scope of any rights or protections afforded to captured lawful enemy combatants.
Of course, situations have existed where combatants have mixed with the civilian population; for example, it is unlikely that the United States Patriot militia at Lexington and Concord during the American Revolutionary War wore fixed distinguishing marks visible at a distance, bore arms openly prior to the morning of their mobilization (or bore arms openly long after the battles; they went home), or even had official ranks or a chain of command; the same also could be said to apply to members of the French Resistance during the Second World War, the African National Congress in Apartheid-era South Africa, as well as numerous other forces that have fought against various occupying powers at various times. Notably, Article I does not forbid fair military court-martial and punishment for violations of the core principles of the law of war, including the obligations of military necessity and proportionality, the obligation not to target civilians, the absolute avoidance of attacking protected places, such as hospitals and schools, not taking hostages or human shields, taking prisoners, and aiding the wounded. Without the protection of Protocol I, all of these forces (who obeyed the core principles of the law of war) could have been subject to being deemed "unlawful combatants", and subjected to trial by whatever sort of (often, sham) court their opponents could come up followed by summary execution; they all were subjected to such measures by the governments who attempted to suppress their campaigns by any means necessary. With Protocol I, these irregular forces would still be subject to trial by fair military court martial for any grave breach of the law of war, but not for failure to have a proper chain of command, going home after fighting a battle, or non-distinctively marking themselves.
Article 47 is a good indication of international community's view on what constitutes a mercenary.
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