Geneva Conventions

Overview

The Geneva Conventions is a body of Public International Law, also known as the Humanitarian Law of Armed Conflicts, whose purpose is to provide minimum protections, standards of humane treatment, and fundamental guarantees of respect to individuals who become victims of armed conflicts.  The Geneva Conventions are a series of treaties, between on the treatment of civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de combat, or incapable of fighting. The first Convention was initiated by the International Committee for Relief to the Wounded (which became the International Committee for the Red Cross and Red Crescent). This convention produced a treaty designed to protect wounded and sick soldiers during wartime. The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. In 1949, after World War II, two new Conventions were added to the original two, and all four were ratified by a number of countries. The 1949 versions of the Conventions, along with two additional Protocols, are in force today.


Convention I: This Convention protects wounded and infirm soldiers and medical personnel, who are not taking active part in hostility against a Party, ensuring humane treatment without adverse distinctions founded on race, color, sex, religion or faith, birth or wealth, etc.  To that end, the Convention prohibits execution without judgment, torture, and assaults upon personal dignity (Article 3). It also grants them the right to proper medical treatment and care.

Convention II: This agreement extended the protections mentioned in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships.

Convention III: One of the treaties created during the 1949 Convention, this defined what a Prisoner of War was, and accorded them proper and humane treatment as specified by the first Convention. Specifically, it required POWs to give only their name, rank, and serial number to their captors. Nations party to the Convention may not use torture to extract information from POWs.

Convention IV: Under this Convention, civilians are afforded the protections from inhumane treatment and attack afforded in the first Convention to sick and wounded soldiers. Furthermore, additional regulations regarding the treatment of civilians were introduced. Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. It also specifies the right of internees, and those who commit acts of sabotage. Finally, it discusses how occupiers are to treat an occupied populace.

Protocol I: In this additional Protocol to the Geneva Conventions, the signing Nations agreed to further restrictions on the treatment of "protected persons" according to the original Conventions. Furthermore, clarification of the terms used in the Conventions was introduced. Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced.

Protocol II: In this Protocol, the fundamentals of "humane treatment" were further clarified. Additionally, the rights of interned persons were specifically enumerated, providing protections for those charged with crimes during wartime. It also identified new protections and rights of civilian populations.

  • The United States has ratified the four Conventions of 1949, but has not ratified the two additional Protocols of 1977.
  • Disputes arising under the Conventions or the Protocols additional to them are settled by courts of the member nations (Article 49 of Convention I) or by international tribunals.
  • The International Committee of the Red Cross and Red Crescent has a special role given by the Geneva Conventions, whereby it handles, and is granted access to, the wounded, sick, and POWs.

 

Article 3, Commonly Applied to All Four Protocols of the General Conventions.

The Article 3 of Geneva Conventions covered, for the first time, situations of non-international armed conflicts, types of which vary greatly.  They include traditional civil wars or internal armed conflicts that spill over into other States (countries), as well as internal conflicts in which third-party States or multinational forces intervene alongside the government. 

Common Article 3 functions like a mini-Convention within the larger [Geneva) Convention itself, and establishes fundamental rules from which no derogation is permitted, containing the essential rules of the Geneva Convention in a condensed format, and making them applicable to non-international conflicts.

  •  It requires humane treatment for all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial.
  •  It requires that the wounded, sick and shipwrecked be collected and cared for.
  •  It grants the ICRC the right to offer its services to the parties to the conflict.
  •  It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through so-called special agreements.
  •  It recognizes that the application of these rules does not affect the legal status of the parties to the conflict.
  •  Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. Its full respect is required. 

 

Applicability of the Geneva Conventions

  • The Conventions apply to all cases of declared war between signatory nations. This is the original sense of applicability, which predates the 1949 version.
  • The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war. This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a police action.
  • The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions.[12]

 

Enforcement of the Geneva Conventions

Geneva Convention provides for universal jurisdiction, as opposed to a more traditional (and limited) territorial jurisdiction that was designed to respect the sovereignty of States over their citizens.  The doctrine of universal jurisdiction is based on the notion that some crimes, such as genocide, crimes against humanity, torture, and war crimes are of such exceptional gravity, that they affect the fundamental interests of the international community as a whole, thus rendering the convicts or accused of such crimes to the jurisdiction of all signatory states, regardless of their nationality or territoriality of their crime.

Every State bound by the treaties is under the legal obligation to search for and prosecute those in their territory suspected of having committed grave breaches, irrespective of the nationality of the suspect or victim or the place where the act was allegedly committed. The State may hand the suspect over to another State or an international tribunal for trial. Where domestic law does not allow for the exercise of universal jurisdiction, a State must introduce the necessary domestic legislative provisions before it can do so, and must actually exercise the jurisdiction, unless it hands over the suspect to another country or international tribunal.

Despite the Convention, there were some notable and often-criticized cases, such as Hamdi v. Rumsfield (2004).  In Hamdi, the U.S. Supreme Court ruled on the validity of the detention of a US citizen accused of being a member of the Taliban forces, on US soil as an "enemy combatant."  The Court rejected Hamdi's Geneve Conventions argument that such detention through unilateral decision of the Executive was illegal, and required an express Congressional consent. The Court held that such consent exised since September 11, 2001, through the Authoriziation for Use of Military Forces (AUMF)t, a Congressional resolution empowering the US President to use all necessary and appropriate forces against any nations, organizations, or persons, that he determines to have planned, authorized, or committed, or aided in the September 11, 2001 Al Qaeda attacks.  

Last updated in July of 2016 by Jonathan Kim

 

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