11-1. Introduction. No discussion of the international law regulating armed conflict would be complete without a general survey of the Geneva Conventions of 1949. These four treaties, codifying humanitarian principles, remain the most widely accepted and respected "law of armed conflict." Over 140 states have ratified or acceded to the Conventions. However, a number of states have attached reservations to their accession to the Conventions, as discussed in AFP 11020.

The Conventions specify treatment to be given persons who are actual or potential victims of armed conflict with the object of relieving and reducing their suffering. They protect those who are hors de combat (out of the fighting)-wounded, sick, and shipwrecked at sea, prisoners of war, and civilians. Such persons taking no part in combat must be treated with respect and humanity because they have a specific, legally recognized status entitling them to such treatment. The national interest requires that these Conventions be understood, respected and enforced. Observance of the Conventions avoids undesirable extensions of the conflict, prevents situations disruptive of the restoration of peace and aids in the protection of one's own rights under the Conventions. This chapter discusses the history of the Geneva Conventions as a regime of laws. Various Articles which are common to all four 1949 Geneva Conventions are surveyed. Some defects in the Conventions are noted, and efforts to correct these defects are discussed. The Geneva Conventions are also discussed in the context of Human Rights Law in general.

11-2. A History of the Conventions.2 The first three 1949 Geneva Conventions (GWS, GWS-SEA, GPW) were not the earliest formal international agreements covering

their respective subjects. The Wounded& Sick (GWS) and Maritime (GWS-SEA) Conventions, for example, combine salient features of the 1864 Geneva Convention as well as the 1906, and 1929 Geneva Conventions for the Amelioration Of The Conditions Of The Wounded And Sick In Armies In The Field, and the 1907 Hague Convention X extending the abovementioned principles of land warfare to conflict at sea. The 1949 GPW Convention is similar to its 1929 counterpart, but is far more extensive and, if applied with good faith, gives greater assurance of decent treatment to PWS.

Almost as soon as the 1929 Geneva Conventions went into effect it became apparent that their provisions needed reexamination. World War II experience demonstrated that the then existing instruments failed to deal with all situations where protection was necessary. In particular, the lack of a comprehensive treaty establishing standards of humane treatment for civilians left a major void in the law which was continuously exploited during the conflict. The presence of such a Convention would certainly not have averted all of the atrocities and injuries committed against civilians during World War II, but the absence of specific guidelines on treatment of civilians made it easier to justify even particularly inhumane actions.

Therefore, at the war's end, a two-fold goal emerged: (1) update and clarify the existing Conventions and earlier agreements relating to sick, wounded, shipwrecked and PWs; and (2) draft an agreement which would both extend the benefits of the other Conventions to civilian victims of armed conflict and, more importantly, prevent those civilians from becoming victims of war. These goals had to be pursued so that respect for the law of the Geneva Conventions, built up so carefully over 80 years,

would not be impaired. Hence, all new or revised provisions had to be such that nations would actually observe them. The resulting Conventions are the product of years of study, preparation and thorough analysis, comprehending much input from and negotiation between party states during the formative years 1945-48.

The Conventions were submitted to the US Senate for ratification on 25 April 1951, but were withdrawn during the Korean conflict. Resubmitted after armistice, they were ratified and came into force for the United States on 2 February 1956. They have remained in force without change. Armed conflicts since World War II have demonstrated, however, a need to reaffirm, extend and clarify the Conventions, as well as to provide better enforcement of their provisions. The Vietnam conflict demonstrated the failings of existing agreements regarding the peculiar problems of "wars of liberation," guerrilla activity and informal partisan "armies." A need was also demonstrated to clarify other portions of the law. Hence, in 1973 after extensive preliminary work, the International Committee of the Red Cross (ICRC) prepared two Draft Protocols to the 1949 Conventions. The first of the Protocols supplements the four Geneva Conventions which are generally applicable to international conflicts, and the second deals with internal conflicts. The latter Protocol is the first major attempt since 1949 to define more precisely the humanitarian rules and regulations applicable during civil (internal) conflicts.

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11-3. Provisions Common to the Geneva Conventions. 4

Each of the four Conventions contains certain general provisions dealing with the application and enforcement of the Conventions. Thus, for example, Articles 1, 2, 3, 6, 7, 8, 9, 10, and 11 of the first three Conventions are identical to Articles 1, 2, 3, 7, 8, 9. 10, 11, and 12 of the fourth (GC) Convention except for minor differences in phraseology.

Article 1 requires all parties to respect and

to insure respect for the Conventions in all circumstances. Article 2 requires parties to the Conventions to adhere to the provisions at all times in their relations even when other parties to the conflict are not also parties to the Conventions. These articles establish a basic theme of the Conventions that as between parties, the force of the Conventions cannot be mitigated by the presence of a third nonsignatory party to the same conflict. Article 2 further provides that the Conventions shall apply during any armed conflict, including undeclared war, and during occupation whether it is resisted or not. Thus, artificial distinctions between "war" and "armed conflict" are eliminated.

Article 3 represents the first attempt to provide protection for victims of all internal armed conflicts. Its general provisions insure humane treatment to civilians and others who are hors de combat, without regard to race, color, religion, sex, birth, or wealth. After 25 years in force, the rather general protective principles therein stated may be strengthened by the more specific provisions of the Second Draft Protocol (GP II) relative to the protection of victims of internal armed conflicts. This Protocol, currently under discussion in a Diplomatic Conference, would delineate in some detail various degrees of protection for all persons, military or civilian, combatant or noncombatant, in internal armed conflicts. Because this Protocol would be applicable in some purely internal conflicts, its provisions are not as extensive as those of the four 1949 Geneva Conventions and the First Draft Protocol (GP I). But it provides victims of internal civil conflict with more specific measures of protection than those previously delineated.

By Article 13 of GWS and GWS-SEA, and Article 4 of GPW, the protections of the Conventions are extended to resistance fighters, militia and members of spontaneous volunteer corps who meet certain criteria specified therein. Article 5, GWS and GPW, and Article 6 of GC, further clarify a captor's obligations by expressly applying the Conventions to all protected persons without discrimination until final release or