Customary international humanitarian law complements the protection provided by international humanitarian treaty law in situations of armed conflict. And while some international humanitarian law treaties, such as the 1949 Geneva Conventions, are today universally ratified, this is not the case for all treaties.
In course of time, the practices to spare the lives of captured enemies, treat them well, spare the enemy civilian population, protect the prisoners of war and exchange them without ransom, and treat the sick and wounded soldiers gradually developed into a body of customary rules relating to the conduct of war which may be summed up as follows:
- Hospitals shall be immunized and be marked by special flags, with identifying colours for each army.
- The wounded and sick shall not be regarded as prisoners of war, they shall be cared for like the soldiers of the army which captured them and sent home after they are cured.
- Doctors and their assistants and chaplains shall not be taken as captives and shall be returned to their own side.
- The lives of prisoners of war shall be protected and they shall be exchanged without ransom.
- The peaceful civilian population shall not be molested.
The customary law of war was reflected in the work of Professor Francis Lieber, an international layer of German origin, who had migrated to America. In April 1863, the prepared Instructions for the Government of Armies in the Field, popularly known as the Lieber Code, to be followed by the American Army during the civil War (1861-1865). The Lieber Code contains detailed rules relating to the conduct of war proper, protection of the civilian population, decent treatment of specified categories of persons such as the prisoners of war, wounded, doctors, nurses, and chaplains and protection of hospitals. Based on the Lieber Code,, President Licoin promulgated “Army Order No. 100” entitled “Instructions for the Armies of the United States in the Field.” Although Lieber Code was a national document prepared keeping in mind the American Civil War, it was used as the basis for the first attempted codification of the customary law of warfare at the Brussels Conference of 1874. The Conference failed to adopt a treaty in this regard, but it adopted a declaration which is very similar to The hague Conventions of 1899 and 1907. In fact, the Lieber Code served as the principal basis for the codification of the laws and customs of war. and provided for the basis of the development of the Hague Conventions of 1899 and 1907 which in turn exerted tremendous influence of subsequent developments. Thus Professor Francis Laeber made significant contributions to the concept and contents of contemporary international humanitarian law
Development of Geneva Convention:
- The development of Generva Convention can be divided into four phases:
- The first phase being the period between the battle of solfarino and the adoption of 1864 convention (1859-1864).
- The record covering the development prior to the terst World war (1865-1914)
- While the third concerning the period of Fist World War and post first world war (1915 – 1938)
- And finally the fourth phase dealing with development during and after the second world war (1939 – 1977)
The First Phase:
In June 1849, Henry Dunant, a swiss national, visited the plain of solferino, in Lombardy, where the French and the Sardinean troops had just a victory over the Austrians. Dunnant was so horrified by the sight of the uncountable wounded soldiers abandoned on the battle field that he was moved to develop the better part of his life. His book “Amemory of solferino” Which was published in 1862 profoundly touched the public opinion of Switzerland and in many countries.
Following the publication of Dunani’s book. Gustave Moynier, President of the Geneva welfare society, set up a body of five people including him. The other members were –
1) Generall Dufour.
2) Dr. Maunoir
3) Dr. Appia and
4) Henry Dunant.
At it’s first meeting on 17 February 1863, the five member body decided to continue it’s work as a permanent international committee under the name of “International Committee to bring Relief to the Wounded”.
The First Geneva convention was signed on 22 August, 1864 by the representatives of 12 states. The objects of the Geneva conference of 1863 were satisfied almost on every point as the 1864 convention was adopted in the line of the conference theme.
The 1864 convention contained only 10 articles but they constituted a foundation which has never been shaken. These articles covered the essential elements: military ambulances and hospitals were recognized as neutral and had to be protected.
Thus two years after the publication of ‘A memory of solferino’ the international institution was set up to help the wounded . The measures adopted, taken with the most commendable resolution. Were to serve as a mater for later red cross achievements
The Second Phase:
The international committee’s aim, after the success of the diplomatic conference of 1864, was not only to urge the creation of Relief societies. but to promote kinship aid solidarity among them.
A diplomatic conference met in 1868 for the revision of the convention and produced additional articles which were never ratified.
The first revision of the 1864 Geneva convention was made in 1906, when the member of articles was increased to 33 their contents being of 1864 was, in truth only meant to protect wounded soldiers during the war on land. International humanitarian law was evolving rapidly in Europe In 1899 and later in 1907, at the Hague the powers elaborated in a series of conventions the regulations concerning the laws and customs of war.
The Third Phase :
The first world war began fifty years later after the adoption of the 1864 Geneva convention Thus, the real test of the ICRC came with the outbreak of the First world war.
At that time, the treatment of prisoners of war was governed not by the Geneva convention but by the regulations annexed to the Hague convention of 1907. In 1929, a new convention was added to the law of Geneva.
The title of 1929 convention was not an exact reproduction either of the original convention of 1864 or of the 1906 convention of whi8ch it purported to be a revision.
The Fourth Phase:
Before the Second World war, the protection afforded by the Geneva convention was only to the wounded and sick in armed forces on land and to the prisoners of war Historically. the 1949 Geneva conventions steam directly from the first Geneva convention of 1864. The earlier conventions which were adopted at different times were brought up to date and harmonized by the 1949 conventions.
Sources of International Humanitarian Law:
The four Geneva Conventions of 12 August 1949 for the protection of the victims of war are the main sources of international humanitarian law :
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Conventions);
Convention for the Amelioration of the condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention);
Convention relative to the Treatment of Prisoners of War (Third Geneva Convention);
The Geneva Conventions have been supplemented with the two Additional Protocols of 8 June 1977:
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I);
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (protocol II).
The rules of international customary law also play an important role. Some of them set forth absolute obligations which are binding on all States (jus cogens).
Although the 1977 Protocols have not yet been universally adopted, we consider them as part of international humanitarian law for the purposes of our presentation.
Who is bound by the Geneva Conventions?
Only States may become party to international treaties, and thus to the Geneva Conventions and their Additional Protocols. However, all parties to an armed conflict whether States or non-State actors are bound by international humanitarian law. At the end of 2003, almost all the world’s States-191. to the precise- were party to the Geneva Conventions. The fact that the treaties are among those accepted by the greatest number of countries testifies to their universality. In the case of the Additional Protocols, 161 States were party to Protocol I and 156 to Protocol II by the same date.
Multilateral treaties between States, such as the Geneva Conventions and their Additional Protocols require two separate procedures:
- a) Signature followed by ratification:
While signature does not bind a State, it does oblige the State to behave in a way which does not render the substance of the treaty meaningless when the State subsequently ratifies and solemnly undertakes to respect the treaty.
- b) Accession:
This is the act whereby a State which did not sign the text of a treaty when it was adopted consents to be bound by it. Accession has the same implications as ratification.
A newly independent State may, by means of a declaration of succession, express the desire to remain bound by a treaty which applied to its territory prior to independence. It may also make a declaration of provisional application of the treaties while examining them prior to accession or succession.
Within the context of those procedures and under certain conditions, a State may make reservations in order to exclude or modify the legal effect of certain provisions of the treaty. The main condition is that such reservations do not run counter to essential substantive elements of the treaty.
Lastly, national liberation movements covered by Article 1, paragraph 4, of Protocol I may undertake to apply the Conventions and the Protocol by following the special procedure set down in Article 96, paragraph 3, of Protocol I.
Whose duty is it to spread knowledge of the Conventions and Protocols?
States have a legal obligation to spread knowledge of the Conventions and Protocols:
The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entie population, in particular to the armed fighting forces, the medical personnel and the chaplains.
The High Contracting Parties undertake, in time of peace as in time of armed conflict to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular. to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed fores and to the civilian population.
This Protocol shall be disseminated as widely as possible. (Art. 19, Protocol II)
Under the Statutes of the International Red Cross and Red Crescent Movement, it is the task of the ICRC to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armd conflicts and to prepare any development thereof (Art 5, para. 2g) maintain close contact with National Societies. in matters of common concern, such as their preparation for action in times of armed conflict, respect for and development and ratification of the Geneva Conventions, and the dissemination of the Fundamental principles and international humanitarian law.