Prof. Paolo Benvenuti
ShareTHE 50th ANNIVERSARY OF THE GENEVA CONVENTIONS: A Significant Event for International Humanitarian Law
Prof. Paolo Benvenuti
Professor of International Law at the
Faculty of Political Sciences 'Cesare
Alfieri' University of Florence
The numerous armed conflicts that are currently afflicting many regions of the world, the serious and widespread violations of fundamental rights perpetrated to which we are sometimes indifferent witnesses, do not allow us to consider the 50th anniversary of the adoption of the Geneva Conventions of 12 August 1949, on the Protection of Victims of War as a mere celebratory occasion. Rather, this anniversary calls us to seriously ask ourselves why the system of humanitarian law drafted in Geneva has too often failed in its objectives; it prompts us to ask why, after the tragic experience of the Second World War, the forceful cry of "enough!" which led to the formulation of the ambitious legal system in Geneva, has all too frequently failed to address people and their rulers, and has at most served merely as a yardstick for a human evaluation of their serious crimes after the event. The recent normative developments which have led to the creation of ad hoc criminal courts for the former Yugoslavia and Rwanda, and more recently to the adoption of the Statute of an international Criminal Court, are a proof of this state of affairs where the effectiveness of the legal instrument depends not on prevention, but on repression. And yet, the idea of prevention appeared to be the key element of the Conventions of 1949; an idea whereby the implementation of humanitarian law should have been able to rely on its integration In the collective conscience of peoples by its insertion in national legislation, and its integration in individual consciences through a strong commitment to spreading information and education.
Furthermore, the heavy blows that have fallen on the international humanitarian legal structure in these years, threatening to undermine its stability, were dealt in spite of global awareness of the absolute need for these rules to be respected. This need is demonstrated by the fact that the 188 States (one might say the whole international community) individually expressed their solemn commitment to "respecting and enforcing respect in all circumstances" for the Geneva Conventions which, in a very broad and articulate way, provide for the protection of the condition of the wounded and sick in armed forces in the field (Convention 1); for protection of the wounded, sick and shipwrecked members of armed forces at sea (Convention 11); for the protection of prisoners of war. (Convention 111); for the protection of civilian populations (Convention IV). The rules of these four Conventions were later enriched by two additional Protocols adopted in Geneva in 1977: Protocol I completes the rules for international armed conflicts while Protocol II completes the rules for non-international armed conflicts. A total of 532 measures are included in these agreements.
A rapid glance at these Conventions immediately reveals that they are founded on the basic principles and rules of any society wishing to call itself humane and thus respectful of the fundamental values of the human person: these are values which cannot be renounced even in the most difficult moments of the life of a human person and of relations between social groups, that is, when these relations are based on armed conflict rather than on dialogue and cooperation. These values may be summed up in the need to show "respect" in all circumstances for all victims of armed conflicts (defenceless persons must be treated as their condition requires and always humanely) and 11 protection" (persons must be protected from the effects of hostilities, threats to their personal integrity and injustice). It is appropriate here to recall briefly the fundamental rules applicable to the different categories of protected persons, so as to bear them in mind and make them one's own.
A) It may be observed that international law prescribes particular protection for the wounded, sick and shipwrecked, a protection which extends to the places in which they are housed and treated, to the means of transport and to the personnel providing medical care and spiritual assistance. The wounded, sick and shipwrecked, as such lose their "enemy" status, they have the right to be collected and treated humanely by those who have them in their-power; they have the right to be treated without any adverse distinction based on sex, race, nationality, religion or political opinion or based on any grounds other than medical ones; they have the right not to be exposed to attacks on their person or their life, or to biological experiments; they have the right not to be left intentionally without medical assistance, or exposed to contagious diseases or infections. The civilian population, at the request of the authorities or on their own initiative, may provide aid or medical care to victims in invaded or occupied zones without those who are carrying out such humanitarian actions being pursued or prosecuted for criminal offences. Even during active hostilities, the gathering and exchange of the wounded and sick must be facilitated by a suspension of hostilities for whatever time these operations require. Furthermore, it is permissible for a belligerent party to create on its own territory or on occupied territory, medical zones or units to protect the wounded from the effects of war.
The immunity from attack and the protection, in case of capture, of permanent medical establishments and of field medical units and means of transport, are an evident corollary of the above rules. Medical and religious personnel also have the right to be respected and protected in all circumstances; if captured, they. must not be treated as prisoners of war but must be returned to their own State, unless it is necessary to detain them temporarily to provide medical or spiritual assistance to prisoners of war. It is also well known that to show their entitlement to particular respect and protection, the areas for permanent or mobile aid, medical and health-care units, means of transport and medical and religious personnel must display the protective emblems of the red cross or the red crescent. The incorrect use of these emblems of protection can constitute an act of perfidy, that is, an act by which the belligerent party intends to deceive the good faith of its opponent so as to make the latter believe that it has the right to receive or the obligation to grant a protection foreseen by humanitarian law: perfidy can constitute a war crime.
B) As regards captured combatants they are entitled in all circumstances to respect for their person and their honour. It is forbidden to conduct hostilities without providing quarters for the adverse party and therefore if prisoners have fallen into enemy hands in exceptional circumstances of combat which prevent their evacuation, they have the right to be freed with all possible precautions taken to guarantee their safety. They are entitled to humane treatment at all times and without any adverse distinction based on sex, race, nationality, political opinions or religious convictions; not to be submitted to violence, intimidation or insults, not to be stripped naked and to be sheltered from public curiosity; not to provide information relative to their own side; to preserve their full civil rights; to receive the medical care they need; to be quartered far from combat zones and not to be used to shield certain places from military operations, to receive accommodation similar to that given to the troops of the Detaining Power; to receive sufficient food and clothing rations as well as adequate hygiene and medical care; not to be given unhealthy, dangerous or humiliating work, or any work for military purposes, to receive fair compensation and to have the same facilities as the citizens of the Detaining Power for doing the same work; to maintain correspondence with their families; to have precise legal guarantees in judicial procedures; to be repatriated without delay if seriously wounded and in any case, to be released and repatriated at the end of active hostilities. The Protecting Power or the International Committee of the Red Cross have the right to verify that these rules are respected.
C) The civilian population is protected from the effects of hostilities by the fact that attacks aimed at non-military targets or using indiscriminate methods of combat are forbidden. When they are in the enemy's power, civilians are entitled to respect for their person, their honour, their family rights, their religious convictions and practices and their manners and customs. At all times they must be treated humanely and protected from acts of violence or intimidation and from insults and public curiosity. Women must be especially protected against any attack on their honour, in particular rape, enforced prostitution or any form of indecent assault. Children and the elderly also have the right to special protection.
Civilians have the right to be treated without any adverse distinction based, in particular, on sex, race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security with regard to civilian populations as may be necessary as a result of the war and these may include forced residence and, exceptionally, internment. The presence of civilians may not be used to render certain points or areas immune from military operations; no physical or moral coercion will be exercised against civilians, in particular to obtain information from them or from third parties. They must not suffer brutality, life-threatening violence, corporal punishment, torture, mutilations or medical or scientific experiments unnecessary to their health. They may not be taken hostage or be subjected to collective punishments. It is their right to communicate with the Protecting Power or with the International Committee of the Red Cross.
It is recalled, moreover, that for the evident purpose of safeguarding the civilian population, the Party to the conflict in occupied territory must guarantee the good functioning of the administrative and social structures, security and the maintenance of law and order. The Party which controls the territory must also ensure the means of survival of the civilian population and in the case of shortages, in certain conditions, must accept humanitarian, neutral and impartial aid in favour of the civilian population.
It should also be recalled that the Occupying Power may not displace civilian populations by force. It may however clear a specific region totally or partially of civilians, but only to the extent and insofar as the security of the civilians involved or imperative military reasons so require. It may not detain civilians in a region particularly exposed to the dangers of war, unless the security of the people involved or imperative military reasons require it. It may not deport or move a part of its own population to occupied territory.
In short, the rules designed to guarantee respect and protection to victims seem truly essential and without them one would tend to deny that there was any notion of civilization in armed conflicts. It should also be stressed that among these rules the ones protecting the freedom of conscience, religion and religious practice of the victims, those protecting religious personnel and their functions and those aimed at safeguarding places and buildings of worship, which are part of the cultural and spiritual heritage of peoples, feature prominently.
It may also be observed, precisely in relation to the essential nature of the rules, that the Geneva Conventions develop aspects of the law which give it very specific incisiveness: in other words they determine an inviolability of the rules in all circumstances and at all times. This inviolability rests on the prohibition of any attempt to damage the laws protecting the victims as reprisal; on the limitation of the concept of military imperatives which cannot be used to justify a lack of respect for the rules, except within the strict limits that they themselves foresee; on the irrenounceable nature of the rights of the persons protected; on the prohibition of the exemption of States from responsibility; on the widely recognized role of third-party States in the conflict in guaranteeing the rules. It should also be stressed that the essential norms for humanitarian protection are applicable in all situations of armed conflict, even civil wars, so that it can be said that the Geneva laws condition the exercise of the power of government, of internal sovereignty: indeed, in the perspective of what is becoming the norm, there has recently been a consistent strengthening of laws for internal conflicts.
On the other hand, the Conventions themselves explicitly recognize that the forceful nature of the law finds its justification directly in the substantial value of the principles that are to be protected. The Conventions, which include the famous Martens clause, refer to the "laws of humanity" and the "demands of public conscience": these are substantial values innate in relations among individuals and social groups which, because of their origins (stemming from the primordial concepts of humanity and of public conscience), impose themselves immediately, of their own accord, within the system of law, such as ius naturae.
Finally, the importance of the values and rules which are at the root of international humanitarian law explain the special attention the Geneva Conventions pay to their implementation and to guaranteeing the system: they include the means of preventive implementation, such as thedissemination of the regulations and their correct incorporation into national legal frameworks; they include the means of control available through the Protecting Power, the International Committee of the Red Cross or Commissions of Inquiry; they include punitive measures, such as for personal responsibility in war crimes. I stated at the beginning of this reflection that with regard to this latter form of guarantee, the international community is currently counted on to reassert the effectiveness of the system which is being undermined by tremendous violations. While the commitment to put an end to such impunity is essential, it is also important to stress that this commitment will be ineffective if it is not supported by even greater efforts to introduce preventive measures. It is urgent to act with sufficient determination in accordance with the original ideas of the Geneva Conventions which, half a century later, are still the most valid. These are ideas which national legislations should aim to formulate clearly as a reflection of their collective conscience and which at the same time should be disseminated as the rules of humanitarian law.
Together with the presence of national legislation, the dissemination of international humanitarian law, the training and the education of individuals in respect for the fundamental and universal values are the most credible instruments to win the difficult battle for respect in every circumstance, of the 1949 Geneva Conventions. Experience shows that at the base of respect for international humanitarian law there is primarily an awareness on the part of each individual of the value of the human person.
Taken from:
L'Osservatore Romano
Weekly Edition in English
11/18 August 1999, page 4
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