Geneva Conventions on the Protection of Victims of War
Geneva Conventions on the Protection of Victims of War
The Geneva Conventions are the essential basis of international humanitarian law applicable in armed conflicts. They evolved from rules of customary international law binding on the entire international community. In the second part of the nineteenth century, when the codification of international law started, most of these rules were included in international treaties, beginning with the 1864 Geneva Convention and the 1899 and 1907 Hague Conventions.
With contemporary wars continuing to produce disastrous effects, the Geneva Conventions signed on August 12, 1949, and two additional protocols adopted on June 8, 1977, are the most important treaties for the protection of victims of war. The treaties adopted include:
- The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Convention I)
- The Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Convention II)
- The Geneva Convention Related to the Treatment of Prisoners of War (Convention III)
- The Geneva Convention Related to the Protection of Civilian Persons in Time of War (Convention IV)
- Protocol I Relating to the Protection of Victims of International Armed Conflicts
- Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts
The 1949 Geneva Conventions are a rare example of quasi-universal treaties; by the end of April 2004 some 191 states were signatories to them. The states party to Protocols I and II number 161 and 156, respectively.
The effort to protect war victims is as old as conflicts themselves. Such efforts materialized in antiquity and the Middle Ages in all regions, civilizations, and religions. The first international treaty that was adopted aimed to protect soldiers wounded on the battlefield. It came at the initiative of Henry Dunant, a young Swiss, who after the battle of Solferino, in 1859, witnessed firsthand the misery of forty thousand wounded and the inadequacy of the army health services. On his return to Geneva, Dunant published A Memory of Solferino, in which he proposed that warring parties conclude agreements in order to ensure assistance to the wounded and sick. He also proposed the creation of voluntary associations for the same purpose in each country, which later became the Red Cross societies. With the cooperation of four of his compatriots, in particular General Alfred Dufour, Dunant organized the first nongovernmental conference in 1863 to promote some of his ideas.
A year later the Swiss Federal Council invited twenty-five states to participate at a diplomatic conference; it adopted on August 22, 1864, the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. After an unsuccessful attempt in 1868 to adapt the convention to maritime warfare, the International Peace Conference of 1899 in The Hague adopted the Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, as did the later conference in 1907. The first 1864 Geneva Convention was revised in 1906 and again in 1929, when a new convention, related to the treatment of prisoners of war, was also adopted.
Important work, however, remained: a convention to ensure the protection of civilian populations. The International Committee of the Red Cross (ICRC) presented the draft of such a convention to the XVth International Red Cross Conference held in Tokyo in 1934, with the hope that the new convention would be adopted in 1940. The advent of World War II in September 1939 altered these plans. The ICRC's appeal to warring nations to apply the Tokyo draft on the basis of reciprocity met with no success. Civilians thus remained without appropriate legal protection during World War II.
Development of the Geneva Conventions was the main task of the postwar ICRC. The draft of these instruments was presented to the XVII International Red Cross Conference in Stockholm in 1948, and the ICRC's subsequent Diplomatic Conference, meeting in Geneva from April 21 to August 12, 1949, adopted the four Conventions.
If World War I provided the impetus for the revision and codification of the 1929 Conventions, and World War II that for the revision and new codification of rules in 1949, the nature of conflicts after 1945 required the development of new legal provisions. The rules elaborated in 1949 were not sufficient to ensure the protection of the victims in a growing number of civil wars and wars of national liberation. Technological developments in the means and methods of warfare also required new legislation.
After discussion at several Red Cross conferences—in Vienna (1965), Istanbul (1969), and Tehran (1973)—and the International Human Rights Conference in 1968, the Swiss Federal Council convened a diplomatic conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts. After four sessions this conference adopted the two protocols of 1977.
Provisions Common to the Four Conventions and Protocol I
The Conventions and Protocols are applicable in the case of declared war or any other armed conflict arising between two or more parties from the beginning of such a situation, even if one of them does not recognize the state of war. They also apply to all cases of partial or total occupation, even if such occupation meets with no armed resistance. The application ceases at the general close of military operations. Protected persons benefit from the provisions until final release, repatriation, or settlement. The addition of Protocol I extended the provisions' application to wars of national liberation, that is, to the 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, as enshrined in the United Nations (UN) Charter and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations.
The so-called Martens clause, which dates back to the 1899 and 1907 Hague Conventions, specifies that in cases not covered by the Conventions, Protocols, or other agreements, or in the case where these agreements have been denounced, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, the principles of humanity, and the dictates of public conscience.
The Conventions and Protocols are applied under the scrutiny of a protecting power, that is, one or more neutral states appointed to safeguard the interests of the parties to the conflict. The ICRC assists the parties in designating a protecting power. An organization that offers all guarantees of impartiality and efficacy may be designated to fulfill the duties incumbent on protecting powers.
The Conventions and Protocols include important provisions to sanction violations of the humanitarian rules. They include administrative and disciplinary sanctions as well as sanctions against "grave breaches" (i.e., war crimes) enumerated in the corresponding articles of each Convention and in the Protocols. Governments are required to enact legislation to provide effective penal sanctions for individuals committing or ordering any grave breaches. They must search for those persons alleged to have committed such acts or who have ordered their commission. Military commanders must prevent breaches, suppress them, and if necessary report them to the authorities. The principle of universality obliges a state either to summon the accused to its own courts or to extradite him or her to the state requesting extradition.
Protection of the Wounded, Sick, and Shipwrecked
The first and second Geneva Conventions include almost identical provisions on the protection of persons and property: the first applying to the armed forces on land, the second to armed forces at sea. Persons needing medical care and refraining from any act of hostility shall be respected and protected. Wounded, sick, and shipwrecked combatants who are captured become prisoners of war.
The Conventions and Protocols also ensure respect and protection for the medical and religious personnel of the parties to a conflict, whether military or civilian. Protocol I also provides that no one may be punished for performing medical procedures compatible with medical ethics, regardless of the beneficiaries of this activity. Conversely, no one may be compelled to carry out acts contrary to the rules of medical ethics.
Military or civilian medical establishments, units, and vehicles may not be attacked or damaged, or hindered in the exercise of their functions. They are protected, but such protection ceases if they commit acts harmful to the enemy after a warning setting a reasonable time limit has expired and after such a warning has gone unheeded. The Conventions and Protocol I also protect medical transportation.
A distinctive emblem, that is, a red cross or red crescent on a white background, must be displayed on the installations and mobile equipment of medical units, on medical transportation vehicles, on hospital ships, in hospital zones and localities, and on the person, clothing, and headgear of all medical and religious personnel. ICRC and their duly authorized personnel are permitted to use the emblem of the red cross on a white background at all times. Reprisals against protected persons and objects are strictly prohibited.
Protection of Prisoners of War
Any combatant who falls into enemy hands is a prisoner of war. The status of prisoners of war is governed jointly by Article 4 of the Third Convention, and Articles 43 and 44 of Protocol I. Article 43 provides the definition of armed forces as follows: forces, groups, and units under a command responsible to their Party to the conflict for the conduct of its subordinates, subject to an internal disciplinary system that, among other things, shall enforce compliance with the rules of international law applicable in armed conflicts.
A further obligation is for a combatant to distinguish him or herself from the civilian population by wearing a uniform or distinctive sign recognizable at a distance during military operations. Nevertheless, according to Article 44, paragraph 3, of Protocol I, in exceptional cases of a specific nature, a combatant may be released from this duty. However, in such situations, these combatants must distinguish themselves by carrying arms openly during the engagement and during any period when they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate. This 1977 amendment arose in response to guerilla wars, where uniforms are often lacking. Spies and mercenaries are not entitled to the status of prisoner of war.
Prisoners of war fall into the hands of the enemy power and not the actual individuals who captured them. They must be treated humanely and they are protected by the rules of the Third Convention. As for potential sources of information, the prisoners are obliged to give only "surname, first name and rank, date of birth, and army regimental, personal or serial number, or failing this, equivalent information."
If captured in a combat zone, prisoners must be evacuated to camps situated outside the area of danger. The Convention regulates prisoners' living conditions, food, clothing, medical treatment, the type of work they may be required to do, relations with the outside world (in particular, correspondence with their families), and the right to receive individual parcels or shipments. The prisoners are "subject to the laws, regulations and orders in force in the armed forces of the detaining power." They may be submitted to penal and disciplinary sanctions. They may be put on trial for an offense committed prior to capture, notably for war crimes.
Seriously wounded or sick prisoners may be transported back home during a conflict, or released on parole, but they may not serve in the armed forces of their homeland subsequently. The detention of prisoners of war lasts in principle until the cessation of active hostilities, after which they "shall be released and repatriated without delay."
Protection of Civilian Populations and Civilian Objects
Few provisions of the Geneva Conventions deal with the general protection of the civilian population against the effect of hostilities. Before Protocol I most of the rules were included in the Hague Convention and customary rules of international law. Part IV of Protocol I addresses this issue in defining a civilian as "any person not belonging to the armed forces." In case of doubt, an individual is considered to be a civilian. The civilian population and individual civilians are protected against dangers arising from military operations. They shall not be the object of attack. The prohibition includes attacks launched indiscriminantly. Reprisals against civilians are also prohibited.
Similarly, a civilian object is anything that is not a "military objective" (i.e., objects that by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances existing at the time, offers a definite military advantage). Civilian objects shall not be the object of attack or reprisals. Special protection is provided to certain categories of civilian property:
- Cultural property, historical monuments, works of art, or places of worship that constitute the cultural and spiritual heritage of peoples
- Objects indispensable to the survival of the civilian population
- Natural environment, protected against widespread, long-term, and severe damage
- Works and installations containing dangerous forces, the release of which could cause severe losses among civilians
A special treaty—the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and two additional protocols to it—supplement the protection outlined in the first item above. The Convention and Protocol also established protective zones: hospital and safety zones, neutralized zones, nondefended localities, and demilitarized zones.
General Protection Afforded by the Fourth Geneva Convention
Several provisions of the 1907 Hague Convention and the Fourth Geneva Convention concern the general protection of the civilian population against the effects of hostilities. As indicated in Article 4, the Fourth Convention concentrates on those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals. Part II of the Geneva Convention addresses the general protection of populations against certain consequences of war and covers "the whole of the population of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and [is] intended to alleviate the sufferings caused by war."
The 1977 Protocol significantly extends protection to specific categories: the wounded and sick; hospitals and hospital staff; land, sea, and air transportation; consignments of medical supplies, food, and clothing; protection of children, women, and families; provision of family news; and protection of refugees and stateless persons, including journalists.
Part III of the Fourth Geneva Convention deals with the two major categories of the civilian population: those who are in the territory of the enemy and those who are in occupied territory.
Section I includes common provisions for these two categories: Article 27 declares that
Persons protected are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanly treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
Protection is granted without any adverse distinction. Special protection is granted to women. Protected persons will have the ability to make applications to the protecting powers, the ICRC, the National Red Cross or Red Crescent societies of the country where they reside, and any other organization that might assist them. Physical or moral coercion, pillage, and the taking of hostages are strictly prohibited.
Two additional sections of the Convention address the issues of aliens in the territory of a party to the conflict and the treatment of civilians in occupied territories. The rules concerning treatment of internees—outlined in Section IV—are very similar to those concerning the internment of prisoners of war.
Additional Protocol I, Article 75, was an important later provision. It specifies that persons who fall under the power of a party to a conflict and who do not benefit from more favorable treatment under the Convention and the Protocol shall be treated humanely in all circumstances and shall benefit from fundamental guarantees without discrimination of any kind.
Noninternational Armed Conflicts
The Geneva Conventions were designed for application during international armed conflict, as defined in Common Article 2. For the first time in 1949 the efforts of the ICRC and some states led to the adoption of the first provision of international law dealing with noninternational armed conflicts. This provision, Common Article 3, applies to all internal conflicts occurring in the territory of one of the parties to the Convention. Its scope of application is large, but the substantive, material protection it affords is limited to the minimum. The article specifies only the minimum humanitarian treatment to be provided to the victims of conflicts. It distinguishes two categories of protected persons: those taking no active part in the hostilities, including members of the armed forces who have laid down their arms, and those felled by sickness, wounds, detention, or any other cause. They shall in all circumstances be treated humanely, without any adverse distinction made on the basis of race, color, religion, sex, birth, wealth, or any other similar criteria.
The following acts with respect to protected persons are, and shall remain, prohibited at all times and in all places:
- (a) Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture.
- (b) Taking of hostages.
- (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment.
- (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The second category includes the wounded and sick who have to be collected and cared for.
Common Article 3 also provides that a humanitarian organization, such as the ICRC, may offer its services to the parties to a conflict and that these parties should further endeavor to bring into force, by special agreements, all or part of the Conventions' other provisions. In terms of the application of this article, it provides that such shall not affect the legal status of the parties to a conflict.
Common Article 3 was for several decades the only provision addressing internal conflicts and civil wars, including the wars of national liberation that took place in the 1960s. During the period following World War II the majority of the conflicts were noninternational. It was therefore quite obvious that improving the protection of the victims of these conflicts had to be the major objective of the new codification efforts occurring in the mid-1970s. It was only owing to the ICRC and a few delegations that Additional Protocol II was adopted during the very last session of the 1974 to 1977 Diplomatic Conference, albeit in reduced form.
Protocol II's purpose was to develop and supplement Article 3 without modifying its existing conditions of application. It was imperative to maintain the humanitarian minimum guaranteed by this article in all circumstances. Although Article 3's scope of application is very large, not providing a precise definition of conflict and leaving its determination to states or humanitarian organizations, the threshold of Protocol II is much higher. It applies only when a conflict takes "place on the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol," internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar violent nature being excluded.
Because the protection Protocol II affords is limited to conflicts of high intensity, the state parties at the 1974 to 1977 Diplomatic Conference were more generous with substantive provisions. If Article 3 contains the strict humanitarian minimum, Protocol II includes important articles on humane treatment: fundamental guarantees, and the special protection of children and individuals whose liberty has been restricted or who are being prosecuted. Basic protection based on the rules of Protocol I is provided to the wounded, sick, and shipwrecked and to the civilian population. There are, however, no provisions concerning the combatants or means and methods of combat. As of the end of April 2004, 156 states are parties to this second protocol, and it represents a great accomplishment of international humanitarian law.
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