The Geneva Convention in 1977

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There was a major revision of the Geneva Conventions in 1977, and both Additional Protocols I and II to the Geneva Conventions of 1949 were adopted. The first dealt with international armed conflict, whereas the second concerned with protection of persons who are victims of internal armed conflicts. The Martens Clause contained in the Preamble of the AP II holds cases that are not protected under the Protocol, would still be subject to the principles of humanity and the dictates of public conscience.

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The principle of humanity complements and limits the doctrine of military necessity by proscribing direct attacks against the civilian population and the use of violent acts which result in unnecessary suffering. The AP II refers to the principle of humanity as contained the customary law principle of civilian immunity and the principle of distinction in United Nations Resolution 2444, to internal armed conflicts.[1] Articles 1 and 2 of the AP II contain the scope of its application. Article 2 provides that all persons affected by an armed conflict are to receive protection under the Protocol, without any adverse distinction based on race, color, sex, language, religion or belief, political opinion, national or social origin, wealth or other status. While the Common Article 3 does not define the term ‘non-international armed conflict, Article 1 of the AP II defines it as: “armed conflicts which are not covered by Article 1 of the Additional Protocol I (international armed conflicts) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” [2] Thus on the observation of Article 1 of the AP II, it can be said that the terms “non-international armed conflict” applies only to the most intense and large-scale conflicts. The requirements of control over a part of the territory of the State, and the ability to accomplish sustained and concerted military operations, make the AP II armed conflicts similar in many respects to international armed conflicts. Article 3 of the AP II provides that the Protocol cannot be invoked to affect a State’s sovereignty, its responsibility to maintain law and order or its defense of national unity and territorial integrity and further provides that the Protocol cannot justify any intervention, either direct or indirect, in a conflict or in the internal or external affairs of the State. Article 4 on fundamental guarantees relates to civilians who either do not take part in the hostilities or who have ceased to take part in hostilities. It specifically prohibits the “order of no quarter”. It also prohibits the following acts “at any time and in any place”:

  • violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
  • collective punishments;
  • taking of hostages;
  • acts of terrorism;
  • Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form or indecent assault;
  • Slavery and the slave trade in all their forms;
  • pillage;
  • threats to commit any of the foregoing acts.

Article 4 (3) provides detailed protection to children and, in particular, guarantees the right to education, including religious and moral education; and the reunion of families temporarily separated. It provides that children who are below the age of fifteen years shall neither be recruited in the armed forces or groups nor be allowed to take part in hostilities. In case children below the age of fifteen years take a direct part in hostilities, they shall be provided special protection. Children temporarily removed from the areas of hostility to safer locations must be accompanied by persons responsible for their safety and well-being. Article 5 of the Protocol deals with persons whose liberty has been restricted for reasons related to the armed conflict. It covers essential aspects of treatment which must be observed as a minimum in all cases like medical treatment, food, water, freedom of religion, etc., and also other important issues like accommodation, communication, and medical experimentation. (For details See Article 5 of Protocol II). On the Observation Article 5 it is viewed that it does not have any provision relating to visit by impartial bodies to places of detention, whereas Article 126 of the third Geneva Convention refers to such visits. Thus the Protocol allows a detaining power to ensure a complete cloak of secrecy around the treatment meted out to detainees. Article 6 of the Protocol applies to the prosecution and punishment of perpetrators of criminal offences related to armed conflicts and states that no sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.[3] In particular, these guarantees require that an accused must be informed about the details of the offence alleged against him and he must be afforded all the necessary rights and means of defense during the trial. These rights are based on Article 14 of the ICCPR relating to the right to a fair trial. Article 6 also requires that the death penalty not be pronounced on persons who were under the age of 18 years at the time of the offence and not be carried out on pregnant women or mothers of young children. At the end of hostilities, an endeavor must be made by the authorities in power to grant amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict.[4] U C Jha, Wing Commander (Retd)), in his work “International Humanitarian Law, The Laws of War” viewed: “The Protocol also provides rules for the treatment of the wounded, sick and shipwrecked (Articles 7 and 8), and the protection of medical and religious personnel, and medical units and transports (Articles 9 to 11). Article 12 provides for the display and respect of the distinctive emblem of the Red Cross. The provisions for the protection of the civilian population and cultural property are contained in Articles 13 to 18. Article 13 which relates to civilian immunity, does not define the terms ‘individual civilians’ and ‘civilian population’. The Protocol covers not only the peaceable population, but also civilians who participate or have participated in hostilities without a combatant status. While taking a direct or active role in hostilities, these individuals forfeit their immunity from direct attack, but retain their status as civilians unlike combatants, once their participation ceases, these civilians may no longer be attacked, although they may be subject to trial and punishment by the adverse party for having assumed the role of a combatant. The provisions relating to dissemination, ratification, signature, accession, denunciation and registration are contained in the last part (Articles 19 to 28) of the Protocol.”[5] As on 31 December 2010, the Geneva Conventions of 1949 had been ratified by 190 countries, whereas the AP II had been ratified by only 165 countries. The countries which had not signed and ratified the AP II included the USA, India, Iraq, Iran, Myanmar, Pakistan, Afghanistan, Israel, and Sri Lanka. The past century has seen an increase in the proportion of non-combatant deaths in conflict. Williams Paui D, in its research paper opined that “during the First World War, an estimated 5 per cent of casualties were civilians. In the Second World War, the figure was 50 per cent. Today, 80—90 per cent of war casualties are civilians, the majority of them women and children. A large number of non-combatants die from the indirect effects of conflict—from


[1]. Resolution 2444 (XXIII) of the UN General Assembly, 19 December 1968. Respect for Human Rights in Armed Conflicts. It’Affirms’resolution XXVIII of the XXth International Conference of the Red Cross held at Vienna in 1965, which laid down, “the following principles for observance by all governmental and other authorities responsible for action in armed conflicts: (a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited; (b) That it is prohibited to launch attacks against the civilian populations as such; and (c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible”. These fundamental humanitarian law principles apply in both international and internal conflicts. [2]. See Article 1 of Additional Protocol II, 1977, Part 1 “Scope of This Protocol”. [3] See Article 6 of Protocol II. [4] Ibid. [5]. Jha U C (Wing Commander (Retd)), International Humanitarian Law,The Laws of War, Forwared by Christopher Harland Published by Vij Books India Pvt Ltd, New Delhi.

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