The Geneva Conventions of 1949: origins and current significance
Ceremony to celebrate the 60th anniversary of the Geneva Conventions. Address by Philip Spoerri, Director of International Law, ICRC
Thank you for being here this morning to mark the 60th anniversary of the Geneva Conventions. The task I have set myself for the next 20 minutes is to provide a brief reflection on the history of the Geneva Conventions of 1949 and on their current relevance. When our President, Mr. Jakob Kellenberger, will take the floor later on, he will present the main challenges lying ahead of us, more specifically the future work in the area of humanitarian law.
The Second World War remains a conflict distinguished by violence on an unprecedented scale. And not only extreme violence by one combatant against another; much of it was directed against civilians, who had not paid such a heavy price for mankind's warmongering since the Thirty Years’ War. The discovery of the Nazi concentration camps and the extent of the mass extermination carried out within their walls added yet another layer of horror to the tragedy that the world lived through from 1939 to 1945. In order to transmit the sentiment of the time, one quote by General Eisenhower while visiting a Nazi death camp in 1945 may suffice: " The world must know what happened, and never forget " .
There can therefore be no doubt that the decision to draft the Geneva Conventions of 1949 was sealed by the tragedy of the Second World War and that the conventions were intended to fill the gaps in international humanitarian law exposed by the conflict.
However, when stating the fact that this progress made in 1949 can only be explained on the background of the horrific sufferings incurred by the second world war, we should not forget that improvements in the protection of victims of war (in particular civilians) had actually been under discussion well before the outbreak of war. Since the early 1920s, the ICRC had considered various projects - one of which was designed to protect the civilian population against the effects of war, in particular aerial warfare. The Committee had also drafted a convention offering protection to civilians in enemy hands. This draft, which came to be known as the Tokyo Draft since it was presented at the International Conference of the Red Cross of 1934 in the Japanese capital, was to be the subject of a future diplomatic conference convened by Switzerland. As with the Diplomatic Conference of 1929, during which the Convention on Prisoners of War was adopted, hopes within the ICRC were high of seeing another demonstration of States'goodwill, this time towards civilians. Yet it was not to be. A lack of enthusiasm on the part of governments meant that Switzerland was not able to announce the diplomatic conference until June 1939 – and it was scheduled for early 1940. The rest is history.
During the war, the ICRC’s energies were largely taken up by its activities in the field, but as the guardian of international humanitarian law, it continued to discuss the possibility of relaunching the process of revising and extending the law of Geneva as soon as possible.
In February 1945, therefore, even before the end of hostilities, the ICRC announced to governments and National Red Cross Societies its intention to revise the existing Geneva Conventions and have new conventions adopted, all the while wondering whether there was still a place for humanitarian rules in an era of total warfare.
Overcoming its apprehension, the ICRC organised a Preliminary Conference of National Red Cross Societies in Geneva to study the conventions protecting victims of war in September 1945, followed by a Conference of Government Experts in 1947. The latter was to give a view on revising the two existing Geneva Conventions, on the " wounded and sick " and " prisoners of war " , and above all on preparing a new convention on the condition and protection of civilians in times of war.
The government experts supported the ICRC’s proposals, including that of a new idea of applying the Conventions in all cases of armed conflict, including internal ones. Emboldened by this support, the ICRC informed the Swiss authorities of its wish to convene another diplomatic conference. Meanwhile, the participants of the 17th International Conference of the Red Cross in Stockholm in 1948 declared themselves in favour of revising and adapting the Geneva Conventions.
The diplomatic conference opened on 21 April in the presence of representatives from 64 countries, covering almost every State in the world at that time. According to various eye-witness accounts, no conference had ever been so well prepared. Nevertheless, it took almost four months to complete its work, which surprised the public and made the conference much longer than anticipated. However, there was a positive feeling at the meetings, even perhaps a sense of camaraderie and frank discussion, even while the world had just entered the Cold War. The following four conventions were adopted as a result of these proceedings:
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;
Geneva Convention relative to the Treatment of Prisoners of War;
Geneva Convention relative to the Protection of Civilian Persons in Time of War.
Overall, these four texts greatly expanded the scope of international humanitarian law. Article 3 common to the four Geneva Conventions proved to be a significant victory, extending the principles of the Geneva Conventions to non-international armed conflicts, and sweeping aside certain obstacles of national sovereignty. According to common Article 3, the parties to an internal armed conflict commit to respecting people’s fundamental rights. Understandably, common Article 3 was the subject of the most intense and drawn-out discussions of the whole conference.
But the greatest advance of all remains the adoption of the fourth Convention, which offers civilians a similar protection to other victims of war. Described as a “miracle” by the then ICRC president, Paul Ruegger, the fourth Convention finally closed one of the most serious gaps exposed by the Second World War and all other wars before it.
The four Geneva Conventions are dated 12 August 1949. This is the date on which the Final Act of the diplomatic conference to which they are annexed was signed. At the same moment, 18 government delegations also signed the four new Conventions.
The other delegations had asked for some time so their governments could study the texts, so a second signing ceremony was held on 8 December 1949 in Geneva. On this occasion, government representatives signed the new Conventions on the same table which had been used to sign the 1864 Geneva Convention – a highly historic and symbolic gesture.
The Geneva Conventions immediately had a huge success. They entered into force already on 21 October 1950 after the first two ratifications. They were ratified by 74 States in the 1950’s and obtained a further 48 ratifications in the 1960’s. The ratification steadily increased in the 1970’s (20 ratifications) and 1980’s (20 ratifications). A wave of 26 new ratifications occurred in the early 1990’s, resulting in particular from the break up of the Soviet Union, Czechoslovakia and the former Yugoslavia. With the last few (7) ratifications since the year 2000 the applicability of the Geneva Convention has today become universal, with 194 States party.
Today the Geneva Conventions remain the cornerstone of contemporary international humanitarian law. They contain the essential rules protecting persons who are not or no longer taking a direct part in hostilities when they find themselves in the hands of an adverse party. These persons are, as mentioned before, the wounded and sick, the shipwrecked, the prisoners of war and civilians, including those civilians living under occupation.
The basic notion underlying the Geneva Conventions is the notion of respect for the life and dignity of the individual. Those who suffer in conflict must be aided and cared for without distinction. The Conventions also confirm and strengthen the role of the medical mission – medical personnel, medical units and transports must be respected and protected in all circumstances. This is an indispensable condition to be able to collect and care for the wound and sick. The principles on which these rules are based are as old as armed conflict itself.
Yet, the question still rises frequently: Are the Conventions still relevant today; are they still relevant in contemporary wars?The ongoing relevance of IHL is supported by the findings of an opinion poll that asked a series of questions about what people in countries affected by war consider acceptable behaviour during hostilities and on the effectiveness of the Geneva Conventions. The research, entitled Our world. Views from the field . , was carried out by the Ipsos Agency in Afghanistan, Colombia, the Democratic Republic of the Congo, Georgia, Haiti, Lebanon, Liberia and the Philippines. This survey I am referring to was specifically commissioned by the ICRC to mark this anniversary and has been published yesterday.
Most of the roughly 4,000 people surveyed across the eight countries – 75% – say there should be limits to what combatants are allowed to do in the course of fighting. But when asked if they had ever heard of the Geneva Conventions, slightly less than half said they knew such rules existed. Among them, around 56% believe the Conventions limit the suffering of civilians in wartime.
The findings reveal broad support for the cor e ideas behind the Geneva Conventions, and IHL as a whole, by people who have actually lived in conflict- and violence-affected countries.
However, the survey has also revealed – I suppose this is less surprising - that the perceived impact of the rules on the ground is far weaker than the support for them. This appears as a strong indicator that people in war-affected countries want to see better respect for and implementation of the law.
For the purpose of analysing the question of the relevance of the Geneva Conventions, I will look separately at their relevance in international (inter-state) and non-international armed conflicts and will provide in both cases some examples to illustrate their practical relevance.
When further analysing the question of the Conventions'relevance we must bear in mind that for the most part the Geneva Conventions only regulate international armed conflicts, including situations of military occupation. While it is true such conflicts and occupations are – fortunately – not as frequent as in the past, we can only observe that they have not completely disappeared either. Recent examples of conflicts where the conventions were fully applicable are the conflicts in Afghanistan (2001-2002), the Iraq war (2003-2004), the conflict in Southern Lebanon (2006) and the conflict between Russia and Georgia (2008). Hence, to the extent that international conflicts and occupations continue to exist and will occur in the future, the Conventions remain valid and relevant. It is therefore very important to preserve this precious humanitarian acquis obtained through the universal acceptance of the Conventions. Whatever developments may occur in the future, these should build upon these existing rules.
To provide just one example of this aquis : The regulation of the conditions of detent ion has been fundamental in saving the lives and ensuring the well-being of many detainees. It is on the basis of these rules in the Geneva Conventions that the ICRC can carry out its work in the field, including its visits to detainees. The purpose of these visits is to prevent enforced disappearances, extra-judicial executions, torture and other cruel, inhuman or degrading treatment or punishment, to monitor the material conditions of detention and to restore family links i.a. through the exchange of Red Cross messages.
A few figures from recent international armed conflicts may suffice to illustrate how the Geneva Conventions remain relevant for war victims. In the course of the conflict between Eritrea and Ethiopia, the ICRC visited, in the year 2000 alone, over 1,000 Ethiopian POWs and 4,300 civilian internees. In addition, we exchanged 16,326 messages between Ethiopian and Eritrean POWs and their families. The ICRC also organized safe passage across the front lines for 12,493 civilians of Ethiopian origin. In cooperation with the Eritrean Red Cross, the ICRC distributed aid to over 150,000 civilians affected by the conflict and provided surgical supplies to treat 10,000 war-wounded, in cooperation with the Ministry of Health.
In Iraq, the ICRC visited 6,100 POWs and 11,146 civilian internees and detainees held by the occupying powers between April 2003 and May 2004. In addition, over 16,000 Red Cross messages were exchanged. Even in the fairly short conflict between Russia and Georgia in 2008, a number of POWs benefited from the protection and status conferred upon them by the Third Geneva Convention. On the basis of this Convention, the ICRC was able visit the POWs in question.
But not all the positive effects of the Geneva Conventions can be reflected in concrete figures. The real value of the Conventions lies not alone in the good they help to achieve, but maybe even more so in the yet greater evil they have helped to prevent. For example, we know from experience that the distinctive emblems of the Red Cross and Red Crescent have protected countless hospitals, medical units and personnel as well as innumerable wounded and sick. In the recent years we unfortunately have witnessed far too many examples of flagrant violations of both the distinctive emblems and the medical mission, however, and this is the point I would like to make: without the rules contained in the Conventions the situation would be far worse. Worse for the victims and far more difficult for those who try to assist and protect.
I submit therefore that the Geneva Conventions have served well over the past 60 years and that they remain highly relevant – and this certainly in situations of international armed conflicts, including in situations of occupation.
Is this assertion equally true for armed conflicts of a non-international character? From a phenomenological perspective it is undoubtedly true that these types of conflicts that are pre-dominant today. It is these conflicts varying greatly in shape and form that we have to generally deal with these days. They can be traditional internal civil wars, but they can also spill-over into other States. They can pitch the government against armed groups but they can also consist of armed groups fighting among themselves. They can involve third States or multinational forces fighting side by side with the government. The situations that come to mind include, for example, the Darfur region in Sudan, Colombia, Eastern DRC or today’s Afghanistan, Iraq, and Somalia. The Geneva Conventions cover all of these situations. Indeed, common Article 3 of the Geneva Conventions deals with any armed conflict not of an international character. That is to say that any armed conflict that it is not an inter-State conflict falls within the scope of common Article 3 of the Conventions. Although this is just one provision, it contains the essential rules in a nutshell:
1. It requires humane treatment for all persons in enemy hands, regardless of how they may be legally or politically classified or in whose custody they may be. As a result, no one may be placed or treated outside of common Article 3, bereft of all protection.
2. It requires that the wounded, sick and shipwrecked be collected and cared for.
3. It grants the ICRC the right to offer its services to the parties to the conflict. On the basis of common Article 3, the ICRC systematically requests access to persons deprived of their liberty in connection with non-international armed conflicts, and such access is generally granted.
4. Finally, it recognizes that the application of these rules in no way affects the legal status of the Parties to the conflict.
From this overview you can see that common Article 3 is not just an article like any other but indeed a mini-Convention within the Conventions. The International Court of Justice has called common Article 3 a reflection of “elementary considerations of humanity”. In the light of the prevalence of non-international armed conflicts, it remains a provision of utmost importance. As a result, with respect to non-international armed conflicts the Geneva Conventions remain extremely relevant today. Because of their universal acceptance, common Article 3 is applicable in any armed conflict not of an international character anywhere in the world.
In order to fully appreciate the relevance of the Geneva Conventions today, they have to be looked at in the proper perspective. They must not be viewed in isolation. Since their conclusion in 1949, they have been supplemented and developed by three Additional Protocols. The first two were adopted in 1977, more than 30 years ago, and the third more recently in 2005 introducing a new protective emblem, the Red Crystal.
The 1977 Additional Protocols were drawn up essentially as a response to changes in warfare, most notably the expansion of guerrilla warfare, and the increased suffering of civilians in armed conflict due in part to developments in weapons technology. They introduced essential rules relating to the conduct of hostilities and the methods and means of warfare, the aim of which was to strengthen protection for civilians. In particular, they formulated the important principle of distinction between civilians and combatants and between civilian objects and military objectives. They have also expanded the list of fundamental guarantees applicable to all persons in the power of an adverse party.
The 1977 Additional Protocols were also a response to the proliferation of internal armed conflicts. Indeed, Additional Protocol II was the first treaty ever devoted exclusively to the protection of the victims of such conflicts elaborating upon the protection provided in common Article 3.
While the 1949 Geneva Conventions have been universally ratified, the Additional Protocols have not. At present, 168 States are party to Additional Protocol I and 164 States to Additional Protocol II. Although this places the 1977 Additional Protocols among the most widely accepted legal instruments in the world, we cannot be satisfied with this situation. The rules on the conduct of hostilities and the fundamental guarantees enshrined in the 1977 Additional Protocols are an absolute necessity. Their recognition and application is needed, now more than ever. Therefore, the ICRC believes that the ratification of the Additional Protocols should be a priority. We call on all States that have not yet done so, to adhere to these instruments. The universal ratification of the Geneva Co nventions, together with their Additional Protocols, would establish a firm legal framework for the protection of war victims, wherever or whoever they may be. The current situation is unsatisfactory as it creates a patchwork of treaty obligations with the Protocols applicable in some conflicts but not in others.
At the request of the international community, the ICRC has tried to remedy this situation by identifying the rules of customary humanitarian law that apply regardless of the ratification record of treaty law. Yet, customary law cannot replace the legal certainty gained by ratification of treaties. In closing, therefore, I would like to reiterate our call for worldwide adherence to existing instruments of humanitarian law, in particular the Additional Protocols of the Geneva Conventions.
Thank you for your attention.