INTERNATIONAL
COMMITTEE OF THE RED CROSS
THE
OF AUGUST
12, 1949
P R E L I M I N A R Y R E M A R K S
The International Committee of the Red
Cross has, from the outset, been the sponsor of the Geneva Convention for the
protection of wounded military personnel, and of the humanitarian Conventions
which supplement it. Each of these fundamental international agreements is
inspired by respect for human personality and dignity; together, they establish
the principle of disinterested aid to all victims of war without
discrimination-to all those who, whether through wounds, capture or shipwreck,
are no longer enemies but merely suffering and defenceless
human beings.
Throughout the years, the
International Committee has laboured unremittingly for
the greater protection in International Law of the individual against the
hardships of war; it successively elaborated the humanitarian Conventions and
adapted them to current needs, or instituted new ones. In the period between
the two World Wars, the Committee's main achievement lay in the establishment
of a number of draft Conventions, chief among which was the Convention on the
Treatment of Prisoners of War; this was signed in the summer of 1929 and,
during the last conflict, protected millions of captives. Other new or revised
draft Conventions were to have been submitted to a Diplomatic Conference which
the Swiss Federal Council planned to convene early in1940; hostilities,
unfortunately, intervened.
The year 1945 marked the close of a
war waged on an unprecedented scale; the task had to be faced of developing and
adapting the humanitarian elements of International Law in the light of the
experience gained. The International Committee's proposals met with the early
approval of Governments and National Red Cross Societies, and it immediately
set to work.
Three former Conventions had to be
revised: the Geneva Convention of 1929 for the Relief of the Wounded and Sick
in Armies in the Field, the Xth Hague Convention of
1907 for the adaptation to Maritime Warfare of the Principles of the Geneva
Convention, and the 1929 Convention on the Treatment of Prisoners of War.
Further-more, there was urgent need for a Convention for the protection of
civilians, the absence of which had, during the world conflict, led to such
grievous consequences.
The International Committee worked on
the lines it had followed after the 1914-1918 War. First, it collected the
fullest possible preliminary information on those aspects of International Law
that required confirmation, enlargement, or amendment; then, with the help of
experts from various countries, it prepared the revised and new drafts which
were submitted, first, to an International Red Cross Conference, and then to a
Diplomatic Conference empowered to give these treaties final validity.
The first meeting of experts was held
in October 1945 and comprised the neutral members of the Mixed Medical
Commissions which, during the conflict, had visited wounded or sick prisoners
of war, to decide about their repatriation.
The second meeting was the
“Preliminary Conference of National Red Cross Societies for the study of
the Conventions and of various problems relative to the Red Cross", which
the International Committee convened at Geneva, in July and August 1946, and before
which the first drafts were laid.
Having gathered the suggestions of Red
Cross agencies on points which were within their particular fields, the
Committee made a close study during the months that followed, and collected
very full data on all matters dealt with in the proposed Conventions.
Consultations included one, in March 1947, with representatives of the
religious and secular bodies which had collaborated with the Committee in
giving spiritual and intellectual aid to victims of the War.
From April 14 to 26,
1947, the “Conference of Government Experts for the study of Conventions for
the Protection of War Victims “was held in Geneva. This was attended by seventy
representatives of fifteen Governments which had held large numbers of
prisoners and civilian internees during the War, and were therefore
particularly experienced in the matters under discussion. Combining the
Committee's proposals, the suggestions made by the Red Cross Societies, and
drafts prepared by several Governments, the Conference agreed to the new texts
proposed and to the first draft of a Convention for the Protection of Civilian
Persons in Time of War.
The International Committee also
sought the advice of several Governments which were not represented at the
April Conference; some sent experts to
After careful editing early in the
year, the Draft Conventions were sent by the Committee, in May 1938, to all
Governments and National Red Cross Societies, in preparation for the XVIIth International Red Cross Conference.
This Conference sat in
After passing through the many
preparatory stages briefly described, these texts were eventually taken as the
sole Working Documents of the Diplomatic Conference of Geneva; out of these
grew the 1949 Geneva Conventions.
The Diplomatic Conference for the
Establishment of International Conventions for the Protection of Victims of
War, convened by the Swiss Federal Council, as trustee of the Geneva
Conventions, was held in
Of the sixty-three Governments
represented at the Conference, fifty-nine had sent plenipotentiaries; four sent
observers only. Representatives of the International Committee were invited to
participate in the capacity of experts.
After four months of continuous
debate, the Conference established the following four Conventions, which are
given below:
I.
-
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, of August12, 1949.
II.
-
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, of August 12, 1949.
III.
-
Geneva Convention relative to the Treatment of Prisoners of War, of August 12,
1949.
IV.
-
Geneva Convention relative to the Protection of Civilian Persons in Time of
War, of August 12, 1949.
The Conference at once divided into four Committees; the First, for the
revision of Conventions I and II; the Second, for the revision of Convention
III (Prisoners of War); the Third, to establish the new Convention relative to
the Protection of Civilian Persons; and lastly, the Joint Committee, to deal
with provisions common to the four Conventions. Co-ordination and Drafting
Committees met towards the end of the Conference, to harmonize the four texts.
When necessary, the Committees formed Working Parties.
At the closing meeting, Delegations of the following States signed the
Final Act: Afghanistan, Albania, Argentina, Australia, Austria, Belgium,
Brazil, Bulgaria, Burma, Canada, Chile, China, Columbia, Costa Rica, Cuba,
Czechoslovakia, Denmark, Ecuador, Egypt, Ethiopia, Finland, France, Greece,
Guatemala, the Holy See, Hungary, India, Iran, Ireland, Israel, Italy, Jugoslavia, Lebanon, Liechtenstein, Luxemburg, Mexico,
Monaco, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Peru, Poland,
Portugal, Rumania, Siam, Soviet Socialist Republic of Bielorussia,
Soviet Socialist Republic of Ukraine, Spain, Sweden, Syria, Turkey, Union of
Soviet Socialist Republics, United Kingdom,
Seventeen Delegations also signed the four Conventions; forty-four other
States had signed when the agreed six-months period
expired on February 12, 1950. According to their provisions, the new Geneva
Conventions come into force six months after the deposit of at least two
instruments of ratification. Thereafter, they come into force for each
Contracting Party six months after it ratifies.
PRO VISIONS COMMON
TO THE FOUR
CONVENTIONS
The Geneva Diplomatic Conference made an innovation in grouping together
and amplifying the common provisions, up to then dispersed and rudimentary. Now
practically identical in the four Conventions, they may be considered under three headings:
(1) - General
Provisions
The General Provisions are given in a dozen Articles of great importance at
the beginning of each Convention, laying down the mode of application. They
deal with respect for the Conventions and their application in international
conflict, enemy occupation or civil war. They are followed by provisions about
the duration of application, special agreements which Contracting Parties may
conclude, the inalienability of the right of protected persons, the duties of
Protecting Powers or their substitutes, the activities of the International
Committee of. The Red Cross, and conciliation
procedure between the Contracting Parties.
(2) -
Repression of Breaches of the Conventions
(Articles 4g to 52 of the First Convention, 50 to 53 of the Second, x2g to
131 of the Third, and 146 to 149 of the Fourth).
The Stockholm Conference had expressed the view that the provisions it had
approved were still inadequate, and had requested the International Committee
to continue its study of this important question. After consulting lawyers of
international repute, the Committee prepared suggestions which appeared in the
volume “Remarks and Proposals", submitted for consideration. The
Conference used these suggestions as a basis for its deliberations.
The first of the Articles imposes penal sanctions for breaches of the
Convention, in particular for "grave breaches", as defined in the
succeeding Article.
These texts will doubtless be an important contribution towards defining
"war crimes" in International Law. The term is frequently used and
seen in print, but still awaits an acceptable legal definition.
(3) - Final
Provisions
The Final Provisions appear at the
end of each Convention and define the procedure for the signature, ratification
and entry into force of the Conventions, and for accession to them.
FIRST GENE VA CON
VENTION
(W O U N D E D A N D S I C K )
The
traditional "Geneva Convention", brought into being by the newly
created International Committee of the Red Cross in 1864, is the source of the
"Geneva Conventions" which are now universally accepted. The original
Convention gave the impetus to the Red Cross movement throughout the world; it
likewise inspired the impulsion in International Law towards an increasing
regulation-and, eventually, the restriction and final prohibition-of war
itself. This first international treaty, the fundamental principles of which
have remained unshaken, was nevertheless marked by omissions and imperfections,
and as early as four years after signature, a Conference was convened to
discuss its revision. On October 20, 1868, the Conference proposed a number of
additional Articles, providing in particular for the extension of the
Convention to maritime warfare, but they were never ratified. A recommendation
by the First Hague Conference in 1899 raised the question of revision again.
The 1906 Diplomatic Conference established a revised text which recast and
considerably developed the 1864 text.
After the First World War, it was clear that the Geneva Conventions needed
adapting to the conditions of modern warfare. During the 1929 Diplomatic
Conference at
In 1937, after renewed discussion by a Commission of international Experts
called by the International Committee, another revised text was established.
The draft, after submission to the XVIth
International Red Cross Conference (London, I938), was placed on the agenda of
the Diplomatic Conference planned for 1940 but postponed by the Second World
War.
We have shown how the 1937 draft was shaped by the experience of the six
momentous war years. The help of the National Red Cross Societies, closely
involved historically in the application and development of the Convention, was
particularly valuable.
The text of the First Convention, as revised by the 1949 Conference,
follows traditional lines and the fundamental principles that governed former
versions: wounded or sick-and there fore defenceless-combatants
shall be respected and cared for, whatever their nationality; personnel
attending them, the buildings in which they shelter and the equipment used for
their benefit, shall be protected; a red cross on a white ground shall be the
emblem of this immunity. As will be seen later, the greatest divergence arises
from the very conditions of modern warfare, which made it necessary to restrict
the privileges of medical personnel and equipment in enemy hands. On the other
hand, almost all Articles have been made more precise.
The General Provisions are followed by Chapter II, dealing with the wounded
and sick. Article 13, drawn from the 1929 Prisoners of War Convention,
enumerates the categories of persons put on the same footing as members of the
armed forces, and hence entitled to protection under the Convention. Whereas
the 1949 text demanded respect and protection only for the wounded, Article 12,
which is new, gives a list of prohibited acts: attempts upon life, torture,
wilful abandonment and so on. The information to be
given about wounded captives, and the duties to the dead have been defined
(Art. 16 and x7). A new provision (Art. 18) guarantees to the inhabitants and
to Relief Societies the right of assisting the wounded and sick.
Chapter III (Medical Units and
Establishments) has not undergone alteration, except for the introduction of
Article 23 (Creation of Safety Zones and Localities).
Chapter IV (Medical Personnel and Chaplains) has been greatly modified.
Hitherto, such personnel falling into enemy hands had to be immediately
repatriated.
The 1949 Convention provides that they may, in certain circumstances, be
retained to care for prisoners of war, Their special status and the conditions
for the repatriation of those not required (Art. 30 to 32) have been carefully
defined (Art. 28), thus filling a serious gap.
Chapter V (Medical Equipment) has been substantially altered, to take
changes regarding personnel into account.
Equipment need no longer be handed back to the belligerent to whom it
belongs.
In Chapter VI similar provision is made for transport vehicles (Art. 35).
It should be noted that medical aircraft are now authorized, in certain
circumstances, to fly over neutral countries (Art. 37).
Chapter VII (Distinctive Emblem) marks no change in principle. Nevertheless
Article 44, the wording of which left so much to be desired in the 1929 text,
is now stated in logical and balanced terms. While the "protective"
emblem is subject to strict safeguards, the purely
"indicatory" emblem may be widely used by Red Cross Societies.
Chapter VIII (Application of the
Convention) calls for no comment.
Reference has already been made to
Chapter IX (Repression of Abuses and Infractions), and to the Final Provisions.
Article 53, which is peculiar to the First Convention, is intended to prevent
abuse of the distinctive emblem.
SECOND
(M A R I T I
M E)
The 1868 Diplomatic Conference, at
Nevertheless, evolution in the methods of warfare and the fact that the
First Geneva Convention was revised in 1929, made a recasting of the Xth Hague Convention essential. After preliminary study,
the International Committee, with the help of a Conference of Naval Experts,
drafted in 1937 a Revised Convention, which was placed on the agenda of the
Diplomatic Conference scheduled for 1940.
This draft, extended after 1945 in the
light of war experience, was used as a basis by the Diplomatic Conference in
1949.
The Maritime Convention, as it is called, is an extension of the First
Convention (Wounded and Sick), the terms of which it applies to maritime warfare;
it is therefore natural that it should be included among the Geneva
Conventions, out of which it originally developed.
As the general plan of this Second Geneva Convention covers the same
field and protects the same categories of persons as the First, no comment is
necessary on its basic principles. It contains, however, no less than
sixty-three Articles, whereas the Igo7 version had only twenty-eight. This is
because the 1949 text (similar to the 1937 draft) adapts the provision of the
Land Convention and closely follows them. It has thus become a complete and
independent Convention, whereas the 1907 Hague text was chiefly concerned to
adapt humanitarian provisions to naval warfare.
Following the General Provisions common
to the four Conventions, Chapter II protects the shipwrecked in addition to the
wounded and sick.
Members of the Merchant Navy are protected under the terms of Article 13,
insofar as they are not entitled to more favourable
treatment under other provisions in International Law. The qualification, new
in treaty law, is in conformity with ordinary practice.
Chapter III obviously applicable only to maritime warfare deals with
Hospital Ships and other relief craft.
Chapter IV At sea, medical personnel, on
account of conditions prevailing, are given wider protection than on land. In
particular, the medical personnel and crew, vital to the hospital ships as
such, may not be captured or retained. The personnel of other ships, while they
may in some cases be retained, must be put ashore as soon as possible and will
then come under the First Convention.
Chapter V (Medical Transports) has its parallel in the First Convention,
but the Maritime Convention makes no special provision for the equipment, which
is, in a sense, part and parcel of the vessel itself.
There were no fighting aircraft in 1907. Hence the addition, in Chapter VI
(Distinctive Emblem), of provisions for the more efficient marking of hospital
ships, as a safe-guard against air attack.
Chapters VII (Execution of the
Convention) and VIII (Repression of Abuses and Infractions), as well as
the Final Provisions, call for no special comment.
THIRD
(P R I S O N
E R S O F W A R )
The Third Convention contains one hundred
and forty-three Articles, besides the Annexes. The corresponding 1929
Convention had ninety-seven Articles, and the Chapter
on prisoners of war in the Hague Convention, only seventeen. This extension is
no doubt due, in part, to the fact that, in modern warfare, prisoners are held
in very large numbers, but it also interprets the desire of the 1949
Conference, representing all nations, to submit all aspects of captivity to
humane regulation by International Law.
The aspiration is not new. The nineteenth
century saw new concepts of natural law and a new humanitarian movement - in
particular the ideas of Henry Dunant, who applied
himself to the prisoner of war problem after the wounded and sick had been
provided for. The civilized world finally accepted the principle that the
prisoner of war is not a criminal, but merely an enemy no longer able to bear
arms, who should be liberated at the close of
hostilities, and be respected and humanely treated while in captivity.
Far-seeing and broad-minded legal and diplomatic action has since translated
concept into practice, through a series of codifications accepted as binding by
States, and successively extended or amplified when experience showed them to
be inadequate. The Brussels Draft of 1874,
1907, the special agreements made between belligerents in
Wherever it was applied, the 1929 Prisoners of War Convention effectively
helped to protect the millions of men who relied upon it during the last
conflict. Nevertheless, it was quite evident, both to those who benefited and
to those by whom it was applied, that the Convention
required revision on many points; there have been changes in the methods and
the consequences of war, and even in the living conditions of peoples. It was
necessary to broaden the categories of persons entitled to prisoner of war status,
so that such status is in fact granted to members of forces which capitulate,
and that prisoners may not be arbitrarily deprived of it, at any time. A more
precise definition of the conditions of captivity was also required which would
take into account the importance assumed by prisoner of war labour,
the relief they receive, and the judicial proceedings instituted against them.
The principle of the immediate liberation of prisoners on the close of
hostilities had to be reaffirmed. Finally, it was essential that the agencies
appointed to look after prisoners’ interests and ensure that regulations
concerning them are applied in full, should be as independent as possible of
the political relations existing between the belligerents. These were the most
urgent only of the problems that the War revealed.
Thus, before hostilities had ceased, and concurrently with the even more
urgent task of preparing a Civilian Convention, the International Committee
began to work upon the revision of the 1929 Prisoners of \\Var Convention.
As already pointed out, the 1939 Convention is far longer than the agreement it
replaces. But, whilst many of its provisions represent a logical development of
the 1929 Convention, experience has shown that the daily lives of prisoners may
depend of the interpretation given to a general rule. An attempt has therefore
been made to give certain regulations an explicit form, precluding the
misinterpretation to which they were formerly open. Moreover, principles which
it was felt would have greater force for being tersely worded-e.g. Article 2 of the 1929 text had been so seriously
violated that the Conference has recast them in terms comprehensive and clear
enough to make any future infringement immediately apparent.
Another group of provisions is designed to provide a satisfactory solution
for the numerous problems outlined above. This task was more difficult. In many
instances, the Conference had to devise entirely new regulations as in the
Section dealing with the financial resources of prisoners of war-or
deliberately to break with certain rules which, in 1929, had been transferred
more or less bodily from the Hague Regulations. One instance is the tule concerning the liberation of prisoners at the close of
hostilities.
Some of the details may seem
superfluous; repetition and lack of harmony between certain provisions may also
cause surprise. It should, however, be remembered that, whilst throughout
concerned with the Convention as an instrument in International Law, the
Conference had constantly in mind a special use to which it was to be
put-regulations to be posted in prisoner of war camps and comprehensible not
only to the authorities, but to the ordinary reader. Furthermore, the
Conference did not hesitate to sacrifice neatness in the interests of unanimous
agreement. These are reasons, which with the difficulty of establishing
official legal texts simultaneously in two languages, may account for, and even
justify, most of the textual imperfections to be found in the Prisoners of War
Convention.
The Table which appears at the end of the volume and the marginal notes to
each Article make it easy to grasp the general plan,
which is, as far as possible, similar to that of the 1929 Convention. The
general outline is as follows: Amongst the general Provisions (Art. I to
II), which have already been dealt with, Article 4, defining the
categories of persons entitled to prisoner of war treatment, is a vital element
of the Convention.
Part II (General Protection of Prisoners of War, Art. 12 to 16) contains
the essential principles which shall, at all times and in all places, govern
the treatment of prisoners.
Part. III (Art. 17 to 108) deals with the conditions of captivity and is
divided into six Sections. The first, (Art.17 to 20) covers events immediately
after capture and deals with such matters as interrogation of prisoners,
disposal of their personal effects, and their evacuation. The second,
comprising eight Chapters (Art. 21 to 48), regulates living conditions for prisoners
in camp or during transfer, and deals with the places and methods of
internment, accommodation, food and clothing, hygiene and medical attention,
medical and religious personnel retained for the care of prisoners (a new
Chapter, which partly reproduces the provisions of the First Convention),
religious needs, intellectual and physical activities, discipline, prisoner of
war ranks, and transfer after arrival in a camp. Prisoners' labour
is dealt with in the third Section (Art. 49 to 57) ;
the fourth Section (Art. 58 to 68) is new and concerns the financial resources
of prisoners. The fifth Section (,Art. 69 to 77)
covers everything concerned with correspondence and relief shipments. The sixth
and last Section (Art. 78 to 108) which is in three Chapters,
covers the relations between prisoners of war and the detaining authorities,
complaints regarding captivity, prisoners' representatives, and penal and
disciplinary sanctions. This last Chapter (Art. 82 to 108) constitutes in
itself a brief code of penal and disciplinary procedure.
The various measures for the termination of captivity are contained in Part
IV (Art. 109 to 121), which is divided into three Sections. The first (Art. 109
to 117) refers to repatriation and accommodation of prisoners in neutral
countries during hostilities, the second (Art. 118 and 119) to repatriation at
the close of hostilities, and the third (Art. 120 and 121) to the death of
prisoners of war.
Part. V (Art. 122 to 125) contains provisions about Prisoners of War
Information Bureaux and all organizations formed to
assist prisoners.
Part. VI (Execution of the Convention,
Art. 126 to 143) contains, in the first Section (Art. 126 to 132), a
variety of most important stipulations requiring belligerents,
interalia, to give neutral
organizations free access to prisoner of war camps for nspection
purposes, and to disseminate the text of the Convention as widely as possible.
Articles 129 to 131 further contain the provisions common to the four
Conventions for the repression of breaches.
Five Annexes are closely connected with the Convention. Annex I
(Model Agreement concerning Direct Repatriation and Accommodation in Neutral
Countries of Wounded and Sick Prisoners of War), Annex III (Regulations
concerning Collective Relief), and Annex V (Model Regulations concerning
Payments sent by Prisoners to their own country) are intended to substitute in
the absence of specific agreement on these questions between the belligerents
concerned. Annex I I (Regulations concerning Mixed
Medical Commissions) is prescriptive. Annex IV proposes standard model
documents, such as identity or capture cards, correspondence cards, death
notifications etc.
FOURTH
(C I V I L I
A N S)
The Fourth Convention forms an important
contribution to written International Law in the humanitarian domain.
Strictly speaking, this Convention
introduces nothing new in a field where the doctrine is sufficiently well
established. It adds no specifically new ideas to International Law on the
subject, but aims at ensuring that, even in the midst of hostilities, the
dignity of the human person, universally acknowledged in principle, shall be
respected.
The original humanitarian legislation
represented by the First Geneva Convention of 1864 provided only for
combatants, as at that time it was considered evident that civilians would
remain outside hostilities.
The Regulations concerning the Laws and
Customs of War on Land, annexed to the Fourth Hague Convention of 1907, made no
provision for civilians (apart from spies), except where there was occupation
of territory by enemy armed forces. They merely set forth a small number of
elementary rules, in pursuance of the principle that the occupant shall
"take all the measures in his power to restore, and as far as possible
ensure public order and safety while respecting, unless absolutely prevented,
the laws in force in the country " (-Art. 43). Thus: “Family honour and rights, the lives of persons and private
property, as well as religious convictions and practice, must be respected”
(Art. 46); “Pillage is formally forbidden” (Art. 47); “No general penalty,
pecuniary or otherwise, shall be inflicted upon the population on account of
the acts of individuals for which they cannot be regarded as jointly and
severally responsible " (Art. 50). Such were the
main and essential provisions, tersely expressed, governing the occupation of
territory.
The development of arms and the increased radius of action given to
armed forces by modern inventions have made it apparent that, notwithstanding
the ruling theory, civilians were certainly " in the war ", and
exposed to the same dangers as the combatants-and sometimes worse.
The Xth International Red Cross Conference
(1921)-the first after the World War-set forth certain general principles, on
the proposal of the International Committee, in regard to deported, evacuated
or refugee civilians, these prohibited deportation en masse, or without
preliminary trial, and the taking of hostages; they enjoined liberty of
movement, and the right to correspond and to receive relief. In 1923, the XIth International Conference called for a Convention to
supplement the Hague Regulations. The XIIth
Conference devised regulations for the protection of civilians on the territory
of an enemy State; these recognised the right to
leave the territory, unless the safety of the State was involved, and provided
for speedier enquiries, Mixed Medical Commissions for the examination of men
unfit for service, transmission to the International Committee of lists of
retained civilians, the grant to civilians of the same privileges as to
prisoners of war, inspection of places of internment, and agreements between
belligerents for the benefit of civilians.
The 1929 Diplomatic Conference, which revised the First Convention and drew
up the Convention for the Treatment of Prisoners of War, unanimously
recommended that “careful study should be made with a view to the conclusion of
an international Convention on the conditions and protection of civilians of
enemy nationality in the territory of a belligerent, or in belligerent-occupied
territory" The International Committee whole-heartedly entered into the
task thus defined, setting up a Legal Commission which prepared a draft Convention
in forty Articles. This draft, generally known as the “Tokyo Draft”, was
approved by the XVth International Red Cross
Conference (
The events which followed were to show the disastrous consequences of the
failure to provide-in addition to the few principles embodied in the Hague
Regulations-an international Convention for the protection of civilians in
wartime, particularly of those in occupied territories; this tragic period was
one of deportations, mass extermination, taking and killing of hostages, and
pillage.
Immediately hostilities ceased, therefore, the International Committee, in
keeping with its humanitarian duty, informed all Governments and Red Cross
Societies of its intention to resume its efforts to set up an international
Convention for the protection of civilians. This statement met with universal
approval.
The Geneva Diplomatic Conference was not called to revise the Fourth Hague
Convention. The Civilian Convention of August 12, 1949, therefore in no
way invalidates the Regulations concerning the Laws and Customs of War on Land;
it is not a substitute for that agreement, which remains in force. As happily expressed by the Conference, the Convention “shall be
supplementary to Sections II and III" of the said Regulations. (See Fourth Convention, Art. 154.)
The new Convention contains one hundred and fifty-nine Articles and two
Annexes. According to the text of a draft Preamble submitted by the French and
Finnish Delegations - but not adopted, as the Conference decided to follow the
precedent of the other Geneva Conventions, which contain no Preamble-it is
inspired by “the eternal principles of that Law which is the foundation and the
safe-guard of civilization ", and is designed to " ensure the respect
of human personality and dignity by putting beyond reach of attack those rights
and liberties which are the essence of its existance
".
It prohibits in particular:
(a) - Violence to life and person, in particular torture,
mutilations or cruel treatment.
(b) - The
taking of hostages.
(c) -
Deportations.
(d) - Outrages upon personal dignity,
in particular humiliating or degrading treatment, or adverse treatment founded
on differences of race, colour, nationality,
religion, beliefs, sex, birth or social status.
(e) - The passing of sentences and the
carrying out of executions without previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees recognized as
indispensable by civilized peoples.
In the present edition, a Table is appended showing the division into Parts,
Sections and Chapters, and reproducing the marginal notes to each Article.
Reference to this Table will afford a complete outline of the subjects dealt
with, and the position they occupy in the Convention.
Amongst the General Provisions, Article
4 gives the following definition of the persons who will have the benefit of
the Convention:
“Persons protected by the Convention are those who, at a given moment and
in any manner whatsoever, find themselves, in case of a conflict or occupation,
in the hands of a Party to the conflict or Occupying Power of which they are
not nationals.
“Nationals of a State which is not bound by the Convention are not
protected by it.
"Nationals of a neutral State who find
themselves in the territory of a belligerent State, and nationals of a
The last two clauses were added by the Conference to the draft, which was
found too narrow on this particular point.
Part II (Art. 13 to 26) concerns the general protection of populations
against certain consequences of war. It goes beyond the limits set up by
Article 4, and covers the population as a whole, i.e. not only “protected
persons ", but also those who cannot avail themselves of this protection
and, in particular, those who are nationals of the Party to the conflict, or of
the Occupying Power by whom they are held.
There is thus provision for hospital
and safety zones and localities, and neutralized zones (Art. 14 and Is), for the protection of civilian hospitals (Art. IS), for measures in behalf of children (Art. 24) and for the
exchange of family news (Art.
25). In all cases these measures are quite general in scope, giving
neither the grounds, nor indeed any practical opportunity, for discrimination.
Part III (Art. 27 to 141) defines the status and treatment of protected
persons, and the manner of the application of the Convention.
Following the precedent of the Tokyo
Draft, it distinguishes between foreign nationals on the territory of a Party
to the conflict, and the population of occupied territories.
It is divided into five Sections.
Section I contains provisions common to the above two categories of
persons, dealing with the responsabilities of the
State and of its agents (Art. 2g), application to Protecting Powers and relief
organizations (Art. 30), prohibition of corporal punishments (Art. 32), of
collective penalties, terrorism, pillage and reprisals (Art. 33), and of the
taking of hostages (Art. 34).
Section II relates to aliens in the territory of a Party to the conflict,
and deals with the right to leave the territory (Art. 35), protection in case
of internment (.Art. 41), and refugees (Art. 44).
Section III contains the prescriptions
for occupied territories, on such subjects as inviolability of rights (Art.
47), deportations, transfers and evacuations (.Art. 49), children (Art. 50),
labour (Art. 51) food (Art. 55), hygiene and
public health (Art. 56), spiritual assistance (Art. 58), relief (Art. 59 to
63), penal legislation (Art. 64 to 75), and treatment of detainees (Art. 76).
Section IV deals with
internment. It is divided into twelve Chapters, the contents of which
are in general analogous to the provisions adopted for prisoners of war.
(Chapter I-General Provisions; Chapter II-Places of internment; Chapter
III-Food and clothing ; Chapter IV -Hygiene and medical attention; Chapter
V-Religious, intellectual and physical activities ; Chapter VI-Personal
property and financial resources; Chapter VII-Administration and discipline;
Chapter VIII-Relations with the exterior; Chapter IX-Penal and disciplinary
sanctions; Chapter X-Transfers of internees ; Chapter XI-Deaths; Chapter
XII-Release, repatriation and accommodation in neutral countries).
Section V is devoted to Information Bureaux and the Central Agency, the functioning of
which is to follow that of the Central Prisoners of War Agency.
Part IV (Art. 142 to 159)
concerns the execution of the Convention. Section I (General Provisions)
contains, amongst others, the provision on the repression of breaches of the
Convention, already mentioned.
Finally, the
1949 Diplomatic Conference passed eleven Resolutions which refer to the
Geneva Conventions, but do not form part of them; they will also be found in
the present edition.