repatriation. Parties may enter into special agreements to augment the Conventions, provided such agreements do not diminish the right of persons protected thereby. No person may renounce his Convention rights (Common Articles 6 and 7).

The provisions dealing with activity by a protecting power are among the most novel and important of the Conventions. A protecting power is a neutral nation which, in an effort to protect the interest of parties to the conflict, endeavors to insure proper application of the Conventions. Protecting powers may appoint delegates from their diplomatic or consular staffs whose duty is to oversee the conduct of a party-signatory on convention related matters. Such appointment is subject to the approval of the detaining power and to the imperative necessities of security of the host state. The ICRC or other impartial organizations may continue their humanitarian work on behalf of victims of armed conflict without obstacles from the Conventions and may, in case the protecting power system fails to operate effectively, be appointed to perform those functions as well. Protecting powers are to lend their good offices to help parties to conflicts settle any disputes they may have PRINCIPLE

To respect and ensure respect for Conventions

When the Conventions apply
Internal conflict

Special extra agreements

persons

regarding interpretation or application of the Conventions.

The greatest weakness of the protecting power system as currently envisioned is the need for parties to the conflict to agree on the powers appointed. It is seldom possible to reach any agreement, with the result that no protecting power is likely to be appointed. The ICRC is left to perform its humanitarian duties without benefit of being appointed protecting power in most cases. Ths US has strongly favored the performance of the ICRC in these humanitarian functions. This deficiency would be corrected in one of the significant provisions (Art 5) in the Draft ICRC Protocol I to the 1949 Conventions.

The set of common articles found at the close of the Conventions contain virtually identical provisions concerning the execution of the Conventions and the prevention and punishment of abuses and violations. These later provisions are discussed in depth in paragraph 15-2, this publication.

The closing Articles of each Convention, termed diplomatic provisions, set forth procedures for bringing the Convention into effect.

11-4. Chart of Common Provisions. GWS GWS-SEA

GPW

1236

78

GC

1237

Nonrenunciation of benefits by protected

7

8

Protecting power

8

9

Other activities by impartial humanitarian

organizations

11-5. The Geneva Conventions and Other International Agreements.5 In addition to the Geneva Conventions, other treaty sources of international law regulating armed conflict are the 1907 Hague Conventions together with succeeding agreements and interpretations. While these earlier agreements have been partly superseded and generally supplemented so far as they concern the treatment of persons in custody, they embody a number of principles which have a very direct bearing on the fate of such persons in wartime.

There are also a number of other areas of international law directly relevant to the treatment of persons during armed conflict. In particular, provisions of international agreements and customary international law which provide guarantees of individual human rights can apply to persons in both peace and during armed conflict.

As set forth in Article 1 of the United Nations Charter, one purpose of that organization is to promote and encourage "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, and religion." The UN Economic and Social Council is empowered to "make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all." (paragraph 2, Article 62, UN Charter). Since 1968, the principal focus for strengthening and clarifying this area of international law has been in the context of human rights. Discussions have been frequent in forums concerned with fostering human rights. From the 1968 major UN Conference on Human Rights in Tehran through successive UN General Assembly Resolutions, this body of law has been increasingly inter

twined with human rights law. Moreover, the Geneva Conventions, although applicable by their terms only during periods of armed conflict, are increasingly cited as providing relevant standards for humane treatment in other situations not involving armed conflict.

The basic human rights guarantees in the UN context, the International Declaration of Human Rights, and the International Covenant on Economic, Social, and Cultural Rights, contain important provisions which support the requirements of the Geneva Conventions. 6 Both sets of documents safeguard such fundamental rights as freedom from torture or cruel and inhuman punishment; freedom from arbitrary exile; freedom from arbitrary arrest and detention; freedom from discrimination based on race, sex, language, or religion; freedom from arbitrarily imposed punishment; and right to legal remedy for any abuse; right to a minimum standard of respect for human rights at all times; and right to health, family sanctity and nonabuse. Additionally, both the UN Resolutions and the Geneva Conventions set forth standards regardless of whether observance is reciprocated. Hence, reciprocity is neither a formal condition precedent qualifying the obligation to observe the Conventions, nor does lack of reciprocity excuse failures to comply. There is a major difference between the two sets of agreements. On the one hand, the Geneva Conventions, representing binding legal commitments, recognize that there may be some situations in which the exercise of rights may be modified or restricted. On the other hand, the UN documents provide a broad general code of aspiration for human rights.

1

The portions of chapters 11 through 14 which outline the provisions of the Geneva Conventions are adapted from the Report of the Committee on Foreign Relations on Executives D, E, F, and G (1949 Geneva Conventions for the Protection of War Victims), 82nd Cong., 1st Sess., Executive Report No. 9 of June 27, 1955. Because some of the summary material was taken intact, or with only minor changes, from this excellent report, this note is a general footnote for these chapters. These chapters are intended primarily as an introduction to the Conventions rather than an authoritative statement of what the Conventions themselves require. The Conventions (which are reprinted in AFP 11020) must be consulted for that latter purpose. This chapter only represents a general survey, and particular provisions of the Conventions have been examined in depth elsewhere in this publication. The most authoritative commentaries are published by the International Committee of the Red Cross (ICRC), under the general editorship of Jean S. Pictet, e.g., ICRC, Commentary to the Geneva Convention For the Amelioration of The Condition of The Wounded and Sick in Armed Forces in The Field, (Pictet ed. 1952); ICRC, Commentary to The Geneva Convention Relative to Protection of Prisoners of War, (Pictet ed. 1958). See also, for discussion: Greenspan, Modern Law of Land Warfare (1959); ICRC, Handbook of the International Red Cross (annual); Mc Dougal and Feliciano, Law and Minimum World Public Order (1961); Pictet, "The Principles of International Humanitarian Law," 66-68 International Review of the Red Cross 455, 511, 567 (1966); Esgain and Solf, "The 1949 Geneva Convention Relative to the Treatment of Prisoners of War; Its Principles, Innovations and Deficiencies," 41 N. Car. L. Rev. 557 (1963). The best source for discussion of the shortcomings of the Conventions is found in the reports preparatory to the Diplomatic Conference now considering the Draft ICRC Protocols to the Conventions. An illustration is ICRC, Conference of Red Cross Experts on the Reaffirmation and Development of International Law Applicable in Armed Conflicts, 20 - 24 March 1972, Report of The Work of The Conference (Geneva 1972).

See sources supra footnote 1. For the text of previous agreements, see 1 The Law of War, A

Documentary History, (Friedman ed. 1972). The 1949 Conventions were formulated against the background of deficiencies in previous agreements demonstrated during World War II and documented at length in the post World War II war crimes trials. Particular problems can be researched best through the UN War Crimes Commission: Law Reports of Trials of War Criminals, 15 vols (1949). Comparisons with previous agreements are also discussed in the Committee Report on Executives D, E, F, & G, supra note 1.

3 See chapter 3, footnote 23, and footnote 17, chapter 5, for authorities.

4 Differences in phraseology relate primarily to the requirement to distinguish the varying persons and objects protected by each Convention. Compare, for example, Article 12, GWS, and Articles 12 and 13, GWS-SEA, which specify persons protected by those Conventions, with Article 4, GPW, and Article 4, GC. Requirements for combatants have been discussed previously in chapter 3. Provisions of the Conventions dealing with enforcement by criminal process are discussed in chapter 15.

5 The Geneva Conventions, as well as other sources of the law of armed conflict, have been extensively discussed elsewhere in this publication, e.g., chapters 1, 3, 5, 10. The text of the most important 1907 Hague Conventions and the Geneva Conventions, as well as indexes thereto, are reprinted in AFP 110-20. As to the historical development of the law of armed conflict in the context of human rights law, see Bailey, Prohibitions and Restraints in War (1972) and authorities cross referenced, supra note 3.

6 International Declarations of Human Rights, adopted 10 December 1948, 3 G. A. Res. 217, U.N. Doc. A/810 at 71 (1948); International Covenant on Economic, Social and Cultural Rights, 21 G.A. Res. 2200, Annexes; "Official Documents, United Nations, Human Rights Covenants," 61 Am. J. Int'l. L. 861 (1967). Not in force for the US as of the date of publication.

7 See discussion, paragraph 10-1b, this publication. On reciprocity as a factor in observance of the law, see chapter 1.