A facsimile of the signature-and-seals page ofThe 1864 Geneva Convention, which established humane rules of war.The original document in single pages, 1864[1]
TheGeneva Conventions areinternational humanitarian laws consisting of fourtreaties and three additionalprotocols that establishinternational legal standards for humanitarian treatment inwar. The singular termGeneva Convention colloquially denotes the agreements of 1949, negotiated in the aftermath of theSecond World War (1939–1945), which updated the terms of the two 1929 treaties and added two new conventions. The Geneva Conventions extensively define the basic rights ofwartime prisoners,civilians andmilitary personnel; establish protections for the wounded and sick; and provideprotections for the civilians in and around a war-zone.[2]
The progression of the Geneva Conventions from 1864 to 1949ARed Cross poster from theFirst World War
TheSwiss businessmanHenry Dunant went to visit wounded soldiers after theBattle 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.[5] His wartime experiences inspired Dunant to propose:
A government treaty recognizing theneutrality of the agency and allowing it to provide aid in a war zone
The former proposal led to the establishment of theRed Cross inGeneva. The latter led to the1864 Geneva Convention, the first codified international treaty that covered the sick and wounded soldiers on the battlefield. On 22 August 1864, the Swiss government invited the governments of all European countries, as well as the United States, Brazil, and Mexico, to attend an official diplomatic conference. Sixteen countries sent a total of twenty-six delegates to Geneva. 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:[6][7]
For both of these accomplishments, Henry Dunant became co recipient of the firstNobel Peace Prize in 1901.[8][9]
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 initiated to clarify some rules of the 1864 convention and to extend them to maritime warfare. The Articles were signed but were only ratified by the Netherlands and the United States of America.[10] The Netherlands later withdrew their ratification.[11] The protection of the victims of maritime warfare would later be realized by the thirdHague Convention of 1899 and the tenthHague Convention of 1907.[12]
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.[13] It remained in force until 1970 when Costa Rica acceded to the 1949 Geneva Conventions.[14]
There was considerable debate over whether the Geneva Convention should prohibit indiscriminate forms of warfare, such as aerial bombings, nuclear bombings and starvation, but no agreement was reached on those forms of violence.[18]
Inspired by the wave of humanitarian and pacifistic enthusiasm followingWorld War II and the outrage towards thewar crimes disclosed by theNuremberg andTokyo trials, a series of conferences were held in 1949 reaffirming, expanding and updating the prior Geneva and Hague Conventions. It yielded four distinct conventions:
The First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" was the fourth update of the original 1864 convention and replaced the 1929 convention on the same subject matter.[19]
The Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" replaced the Hague Convention (X) of 1907.[20] It was the first Geneva Convention on the protection of the victims of maritime warfare and mimicked the structure and provisions of the First Geneva Convention.[12]
The Third Geneva Convention "relative to the Treatment of Prisoners of War" replaced the 1929 Geneva Convention that dealt with prisoners of war.[21]
In addition to these three conventions, the conference also added a new elaborate Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War". It was the first Geneva Convention not to deal with combatants, rather it had the protection of civilians as its subject matter. The 1899 and 1907 Hague Conventions had already contained some provisions on the protection of civilians and occupied territory. Article 154 specifically provides that the Fourth Geneva Convention is supplementary to these provisions in the Hague Conventions.[22]
Despite the length of these documents, they were found over time to be incomplete. The nature ofarmed conflicts had changed with the beginning of theCold War era, leading many to believe that the 1949 Geneva Conventions were addressing a largely extinct reality:[23] on the one hand, most armed conflicts had become internal, or civil wars, while on the other, most wars had become increasinglyasymmetric. 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, bringing a much needed update to theHague 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 additionalprotective sign for medical services, theRed Crystal, as an alternative to the ubiquitousRed Cross and Red Crescent emblems, for those countries that find them objectionable.
The Geneva Conventions of 12 August 1949. Commentary (The Commentaries) is a series of four volumes of books published between 1952 and 1958 and containing commentaries to each of the four Geneva Conventions. The series was edited byJean Pictet who was the vice-president of theInternational Committee of the Red Cross. TheCommentaries are often relied upon to provide authoritative interpretation of the articles.[24]
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.
The first convention dealt with the treatment of wounded and sick armed forces in the field.[25] The second convention dealt with the sick, wounded, andshipwrecked members of armed forces at sea.[26][27] The third convention dealt with the treatment ofprisoners of war during times of conflict.[28] The fourth convention dealt with the treatment of civilians and their protection during wartime.[29]
Individuals who fulfill the criteria ofprotected persons ininternational armed conflicts are protected by the 1949 conventions. Those not listed as protected persons in such conflicts are instead protected byinternational human rights law and general treaties concerning the legal status of aliens inbelligerent nations.[3]
In international law and diplomacy the termconvention refers toan international agreement, or treaty.
TheFirst Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864,[30] revised in 1906,[31]1929[32] and finally 1949);[33]
TheSecond Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of theHague Convention (X) 1907);[34]
With two Geneva Conventions revised and adopted and two added in 1949, the whole 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 Conventions. The treaties of 1949 were ratified, in whole or withreservations,by 196 countries.[4]
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.
Common Article 2 relating to international armed conflict (IAC)
This article states that the Geneva Conventions apply to all the cases ofinternational armed conflict (IAC), where at least one of the warring nations has ratified the Conventions. Primarily:
The Conventions apply to all cases ofdeclared 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. 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 apolice action.[27]
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.[27]
Article 1 ofProtocol I further clarifies that armed conflict against colonial domination and foreign occupation also qualifies as aninternational conflict.
When the criteria of international armed conflict have been met, the full protections of the Conventions are considered to apply.
Common Article 3 relating to non-international armed conflict (NIAC)
This article states that the certain minimum rules of war apply toarmed conflicts "not of an international character."[41] TheInternational Committee of the Red Cross has explained that this language describes non-international armed conflict (NIAC) "where at least one Party is not a State."[42] For example, it would apply to conflicts between state forces andnon-state actors (NSAs), or between two NSAs, or to other conflicts that have all the characteristics of war, whether carried out within the confines of one country or not.[43]
There are two criteria to distinguish non-international armed conflicts from lower forms of violence. The level of violence has to be of certain intensity, for example when the state cannot contain the situation with regular police forces. Also, involved non-state groups need to have a certain level of organization, like a military command structure.[44]
The other Geneva Conventions are not applicable in this situation but only the provisions contained within Article 3,[27] and additionally within the language ofProtocol II. The rationale for the limitation is to avoid conflict with the rights ofSovereign States that were not part of the treaties. When the provisions of this article apply, it states that:[45]
Persons taking no active part in thehostilities, including members of armed forces who have laid down their arms and those placedhors de combat by sickness,wounds,detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
violence to life and person, in particular murder of all kinds,mutilation, cruel treatment andtorture;
outrages upon dignity, in particular humiliating and degrading treatment; and
the passing ofsentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all thejudicialguarantees which are recognized as indispensable by civilized peoples.
The wounded and sick shall be collected and cared for.
During the negotiation of the Geneva Conventions, France and Britain were initially staunchly opposed to Common Article 3. However, to save face during negotiations and make strategic concessions, France and Britain deliberately introduced ambiguous language in the text of Common Article 3 that made it easy for states to avoid the obligations of the rule.[46] As a consequence, Common Article 3 only concerns with humane treatment and does not deal with methods and means of hostilities,[47] such as bombings committed by non-state armed groups or state forces against civilian targets in theAlgerian War andthe Troubles.
On 7 February 2002, President Bush adopted the view that Common Article 3 did not protectal Qaeda prisoners because the United States-al Qaeda conflict was "not of an international character."[48] TheSupreme Court of the United States invalidated the Bush Administration view of Common Article 3, inHamdan v. Rumsfeld, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the "War on Terror", and that theGuantanamo military commission process used to try these suspects was in violation of U.S. and international law.[49] In response toHamdan, Congress passed theMilitary Commissions Act of 2006, which President Bush signed into law on 17 October 2006. Like theMilitary Commissions Act of 2006, its successor theMilitary Commissions Act of 2009 explicitly forbids the invocation of the Geneva Conventions "as a basis for a private right of action."[50]
"... Common Article 3 continues the conventional practice (reflected in both the 'Lieber' and 'The Hague' provisions) of according humanitarian protections only to 'belligerents' who defer to thelaws and customs of war: not to 'insurrectionists' who defy these norms from the very outset of hostilities. Observance of the rules of warfare is what elevates an 'insurrectionist' to the legally cognizable status of 'belligerent' under the 'International law of war'; nothing short of such an 'observance' suffices to effect this transformation from theinfra legal tolegal."[51][self-published source]
Whether the conflict is an IAC or a NIAC or both depends on the nature and circumstances of the situation. Since there is a general prohibition against the use of force between States (as is reflected within article 2(4) of theUnited Nations Charter) with respect to Common Article 2, it is generally presumed that any use of such military force which is governed byinternational humanitarian law (IHL) is attributable to deliberate belligerent intent.[52]
Regarding Common Article 3, theICRC in its 2016 commentary stated the provision includes not just a conflict between territorial government forces and NSAs or NSAs themselves, but also a foreign military intervention against a NSAonly if the territorial state consents to such intervention in its territory. Should the intervening country do so without the consent of the territorial state or in support of a NSA against that state, then Common Article 2 applies.[52][53]
While non-state armed groups are automatically presumed to engage in NIACs, they also can cross into the threshold of an IAC. The 2020 ICRC commentary on the Third Geneva Convention requires two elements for this classification: "the group must in fact fight on behalf of that Party" and "that Party must accept both the fighting role of the group and the fact that the fighting is done on its behalf." It further states that "[w]here a Party to a conflict has overall control over themilitia, volunteer corps or organizedresistance movement that has a fighting function and fights on the State's behalf, a relationship of belonging for the purposes of Article 4A(2)[56] exists."[57] For example, theViet Cong was under effective control and direction byNorth Vietnam during theVietnam War, therefore Common Article 2 solely applied to the conflict.[58][59]
The termprotecting 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 the 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.
Not all violations of the treaty are treated equally. The most serious crimes are termedgrave breaches and provide a legal definition of awar crime. Grave breaches of the Third and Fourth Geneva Conventions include the following acts if committed against a person specifically protected by the conventions:[60]
Nations that 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 havingordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place.[61]
Soldiers, as prisoners of war, will not receive a trial unless the allegation of a war crime has been made. According to article 43 of the 1949 Conventions, soldiers are employed for the purpose of serving in war; engaging in armed conflict is legitimate, and does not constitute a grave breach.[62] Should a soldier be arrested by belligerent forces, they are to be considered "lawful combatants" and afforded the protectorate status of a prisoner of war (POW) until the cessation of the conflict.[63] Human rights law applies to any incarcerated individual, including the right to a fair trial.[64]
Charges may only be brought against an enemy POW after a fair trial, but the initial crime being accused must be an explicit violation of the accords, more severe than simply fighting against the captor in battle.[64] No trial will otherwise be afforded to a captured soldier, as deemed by human rights law. This element of the convention has been confused during past incidents of detainment of US soldiers by North Vietnam, where the regime attempted to try all imprisoned soldiers in court for committing grave breaches, on the incorrect assumption that their sole existence as enemies of the state violated international law.[64]
Some scholars hold that Common Article 3 deals with these situations, supplemented by Protocol II (1977).[dubious –discuss] These set out minimum legal standards that must be followed for internal conflicts. International tribunals, particularly theInternational Criminal Tribunal for the former Yugoslavia (ICTY), have clarified international law in this area.[71] In the 1999Prosecutor v.Dusko Tadic judgement, the ICTY ruled that grave breaches apply not only to international conflicts, but also to internal armed conflict.[dubious –discuss] Further, those provisions are consideredcustomary international law.
The application of the Geneva Conventions in theRusso-Ukrainian War (2014–present) has been troublesome[vague] because some of the personnel who engaged in combat against the Ukrainians were not identified by insignia, although they did wear military-style fatigues.[76] The types of comportment qualified as acts ofperfidy underjus 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 POWs captured in this circumstance remains a question.
Artificial intelligence and autonomous weapon systems, such as military robots and cyber-weapons, are creating challenges in the creation, interpretation and application of the laws of armed conflict. The complexity of these new challenges, as well as the speed in which they are developed, complicates the application of the Conventions, which have not been updated in a long time.[81][82] Adding to this challenge is the very slow speed of the procedure of developing new treaties to deal with new forms of warfare, and determining agreed-upon interpretations to existing ones, meaning that by the time a decision can be made, armed conflict may have already evolved in a way that makes the changes obsolete.
In a speech given at theGraduate Institute of International and Development Studies in 13 March 2019,International Committee of the Red Cross President Peter Maurer argued that the "collective challenge [for the ICRC] today is to find ways to ensure greater respect within the changing dynamics of conflict." This would involve "more tailor-made rules to protect civilians from conflict’s future front lines" regarding issues such as "armed actors and civilians intermingling and individuals changing from fighters at night to civilians by day; different forms of violence blending together, on increasingly fuzzy battlefields," as well as "fierce public defence" of any new suggested rules.[83]
Tilman Rodenhäuser and Mauro Vignati, advisors on legal issues and digital technology at the ICRC, have since proposedrules of engagement for civilian hackers in 2023.[84] The rules seek to mitigate or prevent any cyber attacks on civilian objects, infrastructure, and essential services, while encouraging states to implement "national laws that regulate civilian hacking."
^Dunant, Henry (December 2015).A Memory of Solferino.Archived from the original on 5 March 2016. Retrieved14 October 2011. English version, full text online.
^ICRC."Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949".Archived from the original on 4 December 2021. Retrieved5 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 [...]
^ICRC."Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949".Archived from the original on 4 December 2021. Retrieved5 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.
^Sperry, C. (1906). "The Revision of the Geneva Convention, 1906".Proceedings of the American Political Science Association.3:33–57.doi:10.2307/3038537.JSTOR3038537.
^Bugnion, Francios (2000). "The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millennium".International Affairs.76 (1):41–51.doi:10.1111/1468-2346.00118.JSTOR2626195.S2CID143727870.
^Sumanatilake, P. Saliya (2023). "Non-cognisability of Rebels, Insurrectionists, Separatists or Terrorists under International Humanitarian Law".Addressing Some Contentious Issues In Criminal Justice Administration (Kindle ed.). Atlanta (Georgia), U.S.A.: Self Published via Amazon's K.D.P.ASIN B0BVQBVRDB.
^"Practice Relating to Rule 157. Jurisdiction over War Crimes".International Committee of the Red Cross.Archived from the original on 23 November 2021. Retrieved30 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.
^"Training vs. Torture". President and Fellows of Harvard College. 6 August 2014.Archived from the original on 28 November 2021. Retrieved14 July 2015.
^Ray, Amit (4 July 2018).Compassionate Superintelligence AI 5.0: AI with Blockchain, Bmi, Drone, Iot, and Biometric Technologies. Compassionate AI Lab, Inner Light Publishers.ISBN978-9382123446.
