Geneva Conventions

The Geneva Convention: the signature-and-seals page of the 1864 Geneva Convention, that established humane rules of war.
Original document as PDF in single pages, 1864

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–45), which updated the terms of the two 1929 treaties, and added two new conventions. The Geneva Conventions extensively defined the basic rights of wartime prisoners (civilians and military personnel); established protections for the wounded and sick; and established protections for the civilians in and around a war-zone. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries.[1] Moreover, the Geneva Convention also defines the rights and protections afforded to non-combatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper—the use of weapons of war—which is the subject of the Hague Conventions (First Hague Conference, 1899; Second Hague Conference 1907), and the bio-chemical warfare Geneva Protocol (Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gasses, and of Bacteriological Methods of Warfare, 1925).

History

Progression of Geneva Conventions from 1864 to 1949.
Red Cross poster from the First World War.

The Swiss businessman Henry Dunant went to visit wounded soldiers after the Battle of Solferino in 1859. He was shocked by the lack of facilities, personnel, and medical aid available to help these soldiers. As a result, he published his book, A Memory of Solferino, in 1862, on the horrors of war.[2] His wartime experiences inspired Dunant to propose:

The former proposal led to the establishment of the Red Cross in Geneva. The latter led to the 1864 Geneva Convention, the first codified international treaty that covered the sick and wounded soldiers in the battlefield. On 22 August 1864, the conference adopted the first Geneva Convention "for the Amelioration of the Condition of the Wounded in Armies in the Field". Representatives of 12 states and kingdoms signed the convention:[3][4]

For both of these accomplishments, Henry Dunant became corecipient of the first Nobel Peace Prize in 1901.[5][6]

On 20 October 1868 the first, unsuccessful, attempt to expand the 1864 treaty was undertaken. With the 'Additional Articles relating to the Condition of the Wounded in War' an attempt was undertaken to clarify some rules of the 1864 convention and to extend them to maritime warfare. The Articles were signed but never ratified by all parties. Only the Netherlands and the United States ratified the Articles.[7] The Netherlands later withdrew their ratification.[8] The protection of the victims of maritime warfare would later be realized by the third Hague Convention of 1899 and the tenth Hague Convention of 1907.[9]

In 1906 thirty-five states attended a conference convened by the Swiss government. On 6 July 1906 it resulted in the adoption of the "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field", which improved and supplemented, for the first time, the 1864 convention.[10] It remained into force until 1970 when Costa Rica acceded to the 1949 Geneva Conventions.[11]

The 1929 conference yielded two conventions that were signed on 27 July 1929. One, the "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field", was the third version to replace the original convention of 1864.[12][9] The other was adopted after experiences in World War I had shown the deficiencies in the protection of prisoners of war under the Hague Conventions of 1899 and 1907. The "Convention relative to the Treatment of Prisoners of War" was not to replace these earlier conventions signed at The Hague, rather it supplemented them.[13][14]

Inspired by the wave of humanitarian and pacifistic enthusiasm following World War II and the outrage towards the war crimes disclosed by the Nuremberg Trials, a series of conferences were held in 1949 reaffirming, expanding and updating the prior Geneva and Hague Conventions. It yielded four distinct conventions:

Despite the length of these documents, they were found over time to be incomplete. In fact, the very nature of armed conflicts had changed with the beginning of the Cold War era, leading many to believe that the 1949 Geneva Conventions were addressing a largely extinct reality:[19] on the one hand, most armed conflicts had become internal, or civil wars, while on the other, most wars had become increasingly asymmetric. Moreover, modern armed conflicts were inflicting an increasingly higher toll on civilians, which brought the need to provide civilian persons and objects with tangible protections in time of combat, thus bringing a much needed update to the Hague Conventions of 1899 and 1907. In light of these developments, two Protocols were adopted in 1977 that extended the terms of the 1949 Conventions with additional protections. In 2005, a third brief Protocol was added establishing an additional protective sign for medical services, the Red Crystal, as an alternative to the ubiquitous Red Cross and Red Crescent emblems, for those countries that find them objectionable.

Contents

  Parties to GC I–IV and P I–III
  Parties to GC I–IV and P I–II
  Parties to GC I–IV and P I and III
  Parties to GC I–IV and P I
  Parties to GC I–IV and P III
  Parties to GC I–IV and no P

The Geneva Conventions are rules that apply only in times of armed conflict and seek to protect people who are not or are no longer taking part in hostilities; these include the sick and wounded of armed forces on the field, wounded, sick, and shipwrecked members of armed forces at sea, prisoners of war, and civilians. The first convention dealt with the treatment of wounded and sick armed forces in the field.[20] The second convention dealt with the sick, wounded, and shipwrecked members of armed forces at sea.[21][22] The third convention dealt with the treatment of prisoners of war during times of conflict; the conflict in Vietnam greatly contributed to this revision of the Geneva Convention.[23] The fourth convention dealt with the treatment of civilians and their protection during wartime.[24]

Conventions

In diplomacy, the term convention does not have its common meaning as an assembly of people. Rather, it is used in diplomacy to mean an international agreement, or treaty.

With two Geneva Conventions revised and adopted, and the second and fourth added, in 1949 the whole set is referred to as the "Geneva Conventions of 1949" or simply the "Geneva Conventions". Usually only the Geneva Conventions of 1949 are referred to as First, Second, Third or Fourth Geneva Convention. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries.[1]

Protocols

The 1949 conventions have been modified with three amendment protocols:

Application

The Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms. The details of applicability are spelled out in Common Articles 2 and 3. The topic of applicability has generated some controversy. When the Geneva Conventions apply, governments have surrendered some of their national sovereignty by signing these treaties.

Common Article 2 relating to international armed conflicts

This article states that the Geneva Conventions apply to all cases of international conflict, where at least one of the warring nations have ratified the Conventions. Primarily:

Article 1 of Protocol I further clarifies that armed conflict against colonial domination and foreign occupation also qualifies as an international conflict.

When the criteria of international conflict have been met, the full protections of the Conventions are considered to apply.

Common Article 3 relating to non-international armed conflict

This article states that the certain minimum rules of war apply to armed conflicts " where at least one Party is not a State".[36] The interpretation of the term armed conflict and therefore the applicability of this article is a matter of debate.[22] For example, it would apply to conflicts between the Government and rebel forces, or between two rebel forces, or to other conflicts that have all the characteristics of war, whether carried out within the confines of one country or not.[37] On the other hand, a handful of individuals attacking a police station may not be considered an armed conflict subject to this article, but only subject to the laws of the country in question.[22]

The other Geneva Conventions are not applicable in this situation but only the provisions contained within Article 3,[22] and additionally within the language of Protocol II. The rationale for the limitation is to avoid conflict with the rights of Sovereign States that were not part of the treaties. When the provisions of this article apply, it states that:[38]

Enforcement

Protecting powers

The term protecting power has a specific meaning under these Conventions. A protecting power is a state that is not taking part in the armed conflict, but that has agreed to look after the interests of a state that is a party to the conflict. The protecting power is a mediator enabling the flow of communication between the parties to the conflict. The protecting power also monitors implementation of these Conventions, such as by visiting the zone of conflict and prisoners of war. The protecting power must act as an advocate for prisoners, the wounded, and civilians.

Grave breaches

Logo of International Criminal Court

Not all violations of the treaty are treated equally. The most serious crimes are termed grave breaches, and provide a legal definition of a war crime. Grave breaches of the Third and Fourth Geneva Conventions include the following acts if committed against a person protected by the convention:

Also considered grave breaches of the Fourth Geneva Convention are the following:

Nations who are party to these treaties must enact and enforce legislation penalizing any of these crimes. Nations are also obligated to search for persons alleged to commit these crimes, or persons having ordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place.[40]

The principle of universal jurisdiction also applies to the enforcement of grave breaches when the UN Security Council asserts its authority and jurisdiction from the UN Charter to apply universal jurisdiction. The UNSC did this when they established the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia to investigate and/or prosecute alleged violations.

Legacy

Although warfare has changed dramatically since the Geneva Conventions of 1949, they are still considered the cornerstone of contemporary international humanitarian law.[41] They protect combatants who find themselves hors de combat, and they protect civilians caught up in the zone of war. These treaties came into play for all recent international armed conflicts, including the War in Afghanistan,[42] the 2003 invasion of Iraq, the invasion of Chechnya (1994–present),[43] and the 2008 War in Georgia. The Geneva Conventions also protect those affected by non-international armed conflicts such as the Syrian Civil War.

The lines between combatants and civilians have blurred when the actors are not exclusively High Contracting Parties (HCP).[44] Since the fall of the Soviet Union, an HCP often is faced with a non-state actor,[45] as argued by General Wesley Clark in 2007.[46] Examples of such conflict include the Sri Lankan Civil War, the Sudanese Civil War, and the Colombian Armed Conflict, as well most military engagements of the US since 2000.

Some scholars hold that Common Article 3 deals with these situations, supplemented by Protocol II (1977). These set out minimum legal standards that must be followed for internal conflicts. International tribunals, particularly the International Criminal Tribunal for the former Yugoslavia (ICTY), have clarified international law in this area.[47] In the 1999 Prosecutor v. Dusko Tadic judgement, the ICTY ruled that grave breaches apply not only to international conflicts, but also to internal armed conflict. Further, those provisions are considered customary international law.

Controversy has arisen over the US designation of irregular opponents as "unlawful enemy combatants" (see also unlawful combatant) especially in the SCOTUS judgments over the Guantanamo Bay brig facility Hamdi v. Rumsfeld, Hamdan v. Rumsfeld and Rasul v. Bush,[48] and later Boumediene v. Bush. President George W. Bush, aided by Attorneys-General John Ashcroft and Alberto Gonzales and General Keith B. Alexander, claimed the power, as Commander in Chief of the Armed Forces, to determine that any person, including an American citizen, who is suspected of being a member, agent, or associate of Al Qaeda, the Taliban, or possibly any other terrorist organization, is an "enemy combatant" who can be detained in U.S. military custody until hostilities end, pursuant to the international law of war.[49][50][51]

The application of the Geneva Conventions to the 2014 conflict in Ukraine (Crimea) is a troublesome problem because some of the personnel who engaged in combat against the Ukrainians were not identified by insignia, although they did wear military-style fatigues.[52] American pilots in Operation Southern Watch were documented to bear no insignia, so as to gain some illusory intelligence advantage.[52] The types of comportment qualified as acts of perfidy under jus in bello doctrine are listed in Articles 37 through 39 of the Geneva Convention; the prohibition of fake insignia is listed at Article 39.2, but the law is silent on the complete absence of insignia. The status of POW captured in this circumstance remains a question.

Educational institutions and organizations including Harvard University,[53][54] the International Committee of the Red Cross,[55] and the Rohr Jewish Learning Institute use the Geneva Convention as a primary text investigating torture and warfare.[56]

See also

Notes and references

  1. 1 2 "State Parties / Signatories: Geneva Conventions of 12 August 1949". International Humanitarian Law. International Committee of the Red Cross. Retrieved 22 January 2007.
  2. ↑ Dunant, Henry. A Memory of Solferino. English version, full text online.
  3. ↑ "Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864". Geneva, Switzerland: International Committee of the Red Cross ICRC. Retrieved 2017-06-11.
  4. ↑ Roxburgh, Ronald (1920). International Law: A Treatise. London: Longmans, Green and co. p. 707. Retrieved 14 July 2009.
  5. ↑ Abrams, Irwin (2001). The Nobel Peace Prize and the Laureates: An Illustrated Biographical History, 1901–2001. US: Science History Publications. Retrieved 14 July 2009.
  6. ↑ The story of an idea, film on the creation of the Red Cross, Red Crescent Movement and the Geneva Conventions
  7. ↑ ICRC. "Additional Articles relating to the Condition of the Wounded in War. Geneva, 20 October 1868 – State Parties". Retrieved 5 March 2017.
  8. ↑ Dutch Government (20 April 1900). "Kamerstukken II 1899/00, nr. 3 (Memorie van Toelichting)" (PDF) (in Dutch). Retrieved 5 March 2017.
  9. 1 2 3 Fleck, Dietrich (2013). The Handbook of International Humanitarian Law. Oxford: Oxford University Press. p. 322. ISBN 978-0-19-872928-0.
  10. ↑ Fleck, Dietrich (2013). The Handbook of International Humanitarian Law. Oxford: Oxford University Press. p. 22 and 322. ISBN 978-0-19-872928-0.
  11. ↑ ICRC. "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 6 July 1906". Retrieved 5 March 2017.
  12. ↑ ICRC. "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 27 July 1929". Retrieved 5 March 2017.
  13. ↑ ICRC. "Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929". Retrieved 5 March 2017.
  14. ↑ Fleck, Dietrich (2013). The Handbook of International Humanitarian Law. Oxford: Oxford University Press. pp. 24–25. ISBN 978-0-19-872928-0.
  15. ↑ ICRC. "Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949". Retrieved 5 March 2017. The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Geneva Convention for the Relief of the Wounded and Sick in Armies in the Field of July 27, 1929 [...]
  16. ↑ ICRC. "Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949". Retrieved 5 March 2017. The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Xth Hague Convention of October 18, 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906 [...]
  17. ↑ ICRC. "Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949". Retrieved 5 March 2017. The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Convention concluded at Geneva on July 27, 1929, relative to the Treatment of Prisoners of War [...]
  18. ↑ ICRC. "Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949". Retrieved 5 March 2017. In the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations annexed to the above-mentioned Conventions of The Hague.
  19. ↑ Kolb, Robert (2009). Ius in bello. Basel: Helbing Lichtenhahn. ISBN 978-2-8027-2848-1.
  20. ↑ Sperry, C. (1906). "The Revision of the Geneva Convention, 1906.". Proceedings of the American Political Science Association. 3: 33–57. JSTOR 3038537.
  21. ↑ Yingling, Raymund (1952). "The Geneva Conventions of 1949". The American Journal of International Law. 46: 393–427. JSTOR 2194498.
  22. 1 2 3 4 5 6 Pictet, Jean (1958). Geneva Conventions of 12 August 1949: Commentary. International Committee of the Red Cross. Retrieved 15 July 2009.
  23. ↑ "The Geneva Convention Relative to the Treatment of Prisoners of War". The American Journal of International Law. 47: 119–177. 1953. JSTOR 2213912.
  24. ↑ Bugnion, Francios (2000). "The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millennium". International Affairs (Royal Institute of International Affairs 1944–). 76: 41–51. JSTOR 2626195. doi:10.1111/1468-2346.00118.
  25. ↑ ICRC. "Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864". Retrieved 5 March 2017.
  26. ↑ "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 6 July 1906". International Committee of the Red Cross. Retrieved 20 July 2013.
  27. ↑ ICRC. "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 27 July 1929". Retrieved 5 March 2017.
  28. ↑ ICRC. "Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949". Retrieved 5 March 2017.
  29. ↑ ICRC. "Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949". Retrieved 5 March 2017.
  30. ↑ ICRC. "Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929". Retrieved 5 March 2017.
  31. ↑ ICRC. "Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949". Retrieved 5 March 2017.
  32. ↑ ICRC. "Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949". Retrieved 5 March 2017.
  33. ↑ treaties.un.org: "Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I)"
  34. ↑ treaties.un.org: "Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II)", consulted July 2014
  35. ↑ "Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the adoption of an additional distinctive emblem (Protocol III)", consulted July 2014
  36. ↑ ICRC (2016). "2016 Commentary on the Geneva Convention". ICRC. p. 393.
  37. ↑ ICRC. "The Geneva Conventions of 1949 and their Additional Protocols".
  38. ↑ "Article 3 of the Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.". Inter national Committee of the Red Cross. Retrieved 11 January 2011.
  39. ↑ How "grave breaches" are defined in the Geneva Conventions and Additional Protocols, International Committee of the Red Cross.
  40. ↑ "Practice Relating to Rule 157. Jurisdiction over War Crimes". International Committee of the Red Cross. Retrieved 30 January 2017. Article 49 of the 1949 Geneva Convention I, Article 50 of the 1949 Geneva Convention II, Article 129 of the 1949 Geneva Convention III and Article 146 of the 1949 Geneva Convention IV provide: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed [grave breaches of the 1949 Geneva Conventions], and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
  41. ↑ "The Geneva Conventions Today". International Committee of the Red Cross. Retrieved 16 November 2009.
  42. ↑ See U.S. Supreme Court decision, Hamdan v. Rumsfeld
  43. ↑ Abresch, William (2005). "A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya" (PDF). European Journal of International Law. 16 (4).
  44. ↑ "Sixty years of the Geneva Conventions and the decades ahead". International Committee of the Red Cross. Retrieved 16 November 2009.
  45. ↑ Meisels, T: "COMBATANTS – LAWFUL AND UNLAWFUL" (2007 Law and Philosophy, v26 pp.31–65)
  46. ↑ nytimes.com: "Why Terrorists Aren’t Soldiers" 8 Aug 2007
  47. ↑ "The Prosecutor v. Dusko Tadic – Case No. IT-94-1-A". International Criminal Tribunal for the Former Yugoslavia. Retrieved 16 November 2009.
  48. ↑ utretchtlawreview.org: "Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’ (Gill, van Sliedregt) v1 n1 Sep 2005
  49. ↑ JK Elsea: "Presidential Authority to Detain 'Enemy Combatants'" (2002), for Congressional Research Service
  50. ↑ presidency.ucsb.edu: "Press Briefing by White House Counsel Judge Alberto Gonzales, DoD General Counsel William Haynes, DoD Deputy General Counsel Daniel Dell'Orto and Army Deputy Chief of Staff for Intelligence General Keith Alexander June 22, 2004", consulted July 2014
  51. ↑ nytimes.com: "Martial Justice, Full and Fair" (Gonzalez) 30 Nov 2001
  52. 1 2 vice.com: "The Russian Soldier Captured in Crimea May Not Be Russian, a Soldier, or Captured" 10 Mar 2014
  53. ↑ "Training vs. Torture". President and Fellows of Harvard College.
  54. ↑ Khouri, Rami. "International Law, Torture and Accountability". Belfer Center for Science and International Affairs, Harvard University. Retrieved 26 August 2009.
  55. ↑ "Advanced Seminar in International Humanitarian Law for University Lecturers". International Committee of the Red Cross.
  56. ↑ McManus, Shani (13 July 2015). "Responding to terror explored". South Florida Sun-Sentinel.
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