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A special agreement offers the possibility of applying all or part of the Geneva Conventions to a specific situation of conflict. It is an agreement that is signed on an ad hoc basis by the parties to the conflict. Its aim is to make the provisions of the Geneva Conventions applicable in situations in which one or more of the parties to the conflict might not have ratified the Geneva Conventions or in which such provisions might not be automatically applicable for other reasons.
The 1949 Geneva Conventions and their two Additional Protocols, adopted in 1977, have a limited scope of application, which depends on two criteria—the nature of the conflict and the nature of the persons involved:
- The protection foreseen by international humanitarian law is different in international and non-international armed conflicts.
- International humanitarian law also distinguishes between various categories of protected persons (civilians, combatants, prisoners of war, the wounded or sick, relief personnel, and so on). It grants them different rights and establishes different measures of protection.
To prevent these distinctions from weakening the overall protection, Common Article 3 to the four Geneva Conventions sets the minimum rules that remain applicable at all times. Furthermore, in situations where the Geneva Conventions are not automatically applicable, Common Article 3 states that the parties to the conflict should endeavor to bring into force all or part of the Conventions’ provisions by means of special agreements. Article 6, common to GCI, GCII, and GCIII, and Article 7 of GCIV establish the framework for these agreements.
Thanks to the mechanism of special agreements, it is possible to apply the most protective provisions of the Geneva Conventions or their Additional Protocols in all situations of armed conflict in a way that is binding on all parties to the conflict.
A special agreement must never weaken the protection established by the Geneva Conventions. Humanitarian organizations can use this system of special agreements when drawing up contracts that regulate their work in a given country and that are concluded with the relevant authorities of that State.
The effective use of special agreements between parties to the conflicts was brought into light in the judgment pronounced by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic Case ( Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction , Appeals Chamber, 2 October 1995, §73). In this judgment, the Tribunal noted that the belligerents signed memorandums of understanding in 1991 to apply international humanitarian law applicable to international armed conflicts and then international humanitarian law applicable to non-international armed conflicts when the Federal Republic of Yugoslavia was no longer officially party to the conflict.