geneva convention (2015) reevaluating the geneva ... · pdf filegeneva convention (2015)...

Geneva Convention (2015)

Reevaluating the Geneva Conventions

Written By: Hanny Ramadan

South Jersey Model United Nations 2015

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Objective of Committee

The Geneva Conventions have been accepted as International Humanitarian Law (IHR)

by most nations in the United Nations. However, domestic activity in countries such as

the United States, China, and Russia threaten the legitimacy of the laws signed to by the

international community. Our mission, as the International Committee of the Red Cross,

is to relay the communications of our individual nations’ concerns with the Geneva

Codes and implement a 21st century enhancement that contains invulnerable legislation

that explicitly prohibits nations from practicing extralegal action. I hope the committee

can most importantly garner full support from the 196 member states of the United

Nations to complete this task. The Geneva Codes are now in your hands and law versed

minds.

Introduction and History

To many legal scholars, the term Jus in Bello means more than just the classic

Latin translation of “law of war”, it is an area of immense dispute. Although, living in the

21st century is comparatively fortunate; prior to the years 1948 and 1949, the years that

the Geneva Conventions were discussed and signed respectively, war crimes were

committed often and tactically—with purpose. World War II is a perfect example of such

systemic atrocity. The Japanese military had been indicted with post-war charges on

several cases of human rights infringements simply noted as “war crimes”. From the

“Sook Ching Massacre” of March 1942 to the “Massacre of Manila” in March of 1945,

the Japanese were culprits of multiple mass murders of hundreds to thousands at times,


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influenced by the intent of war.1 However, the Japanese were not alone. The German

Luftwaffe (Air Force, Battle of Britain)2 and Special Forces establishments such as the

Shutzstaffel (“S.S.”) are infamous for establishing the almost moot conversation on the

word, “genocide”. In fact the Axis Powers were not alone in their actions, the Allied

Powers could only compete with the same caliber from response city bombings to the

event that changed the course of history, the droppings of the atomic bombs on

Hiroshima and Nagasaki initiated by the United States Military.

These nefarious actions collectively transgressed the natural boundaries of two

equipped combatant armies. They took the battlefield out of the restricted area of

combat—it made any town, village, home, and family a victim of combat. This well

surpasses William Tecumseh Sherman’s legacy of a “hard war” or “total war” since not

only were civilians separated from their food and health resources, they were subject to

torture, cruelty, and ultimately death.

To put it simply, there are countless accounts of civilian and military cruelty in

history but World War II is axiomatically regarded as the apex of such crimes. The

Geneva Conventions are, in fact, a massive reaction to the most massive (in casualties)

war in history. By the end of the war, an approximate of 50 million deaths worldwide,

3% of the estimated world population in 1945, had ceased to exist. This is not the

frightening realization—the 50 million that died were only civilians! The war seemed to

1 http://listverse.com/2014/05/06/10-‐japanese-‐atrocities-‐from-‐world-‐war-‐ii/ 2 http://www.bbc.co.uk/history/battle_of_britain


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be more of a civilian war than that of a military one, for the civilian population’s casualty

count tripled that of the military’s casualty count. 3

Today, the Geneva Conventions are the only legal barrier between an

international conflict and the safety of innocent people. Adjustments must be made to

maintain the security of these documents and the enforcement needed to execute their

standing.

History of the Red Cross

Many are familiar with the eleemosynary activism of Clara Barton and her

integral role in founding the American Red Cross but the advent of a third-party

organization that cares for civilians during times of disaster and war derives from the

mind of Henry (Jean-Henri) Dunant of Geneva, Switzerland. Perhaps, Dunant’s

proclivity for humanitarianism and entrepreneurship and his establishment of the

International Red Cross overshadow the essence of his achievement, his literary

observations. In fact, it was on a journey to meet with Emperor Napoleon III regarding a

land grant that he faced and documented the famous Franco-Austrian Battle of Solferino.

The battle and its aftermath inspired Dunant to write a book detailing his experience, the

battle scene, the battlefield post battle, and a solution to the “miseries” he witnessed. 4 In

short, Dunant was a considerate man who not only wrote of war and war crime but of

lingering slavery and discrimination, notably where he monologues a forgotten

“Musulman” (Muslim) slave population in the United States. Dunant’s efforts predate the

modern Geneva Codes by almost a century but it was only the Red Cross that he

3 http://necrometrics.com/20c5m.htm#Second 4 http://www.nobelprize.org/nobel_prizes/peace/laureates/1901/dunant-‐bio.html


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established which affected the most movement. Dunant lacked one entity in order for his

fantasized plan to legitimize—the United Nations. Today, the United Nations acts as the

enforcement Dunant needed in order for the first Geneva Codes of 1864 to bind nations

under a uniform practice of war.

Geneva Codes Content

As aforementioned, the Geneva Conventions that are acknowledged as IHR today

include texts from 1949, and onward. The codes went through various phases and

conferences through history, even before 1949. In the late 19th century, the Jus in Bello

discussion was resurrected in the Hague Conventions. The following is a timeline of all

the conventions with the exception of the Protocols post-1949.


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****Dissecting and debating articles in committee is obviously encouraged. For that reason links to all of the articles and codes are attached. Please use references to these articles in your position paper as the following: Example: (Geneva Convention 1864, Article 1) *****

First Geneva Conventions after the Geneva Conference of 1863

“After the successful termination of the Geneva Conference of 1863, the Swiss Federal

Council, on the initiative of the Geneva Committee, invited the governments of all

European and several American states to a diplomatic conference for the purpose of

adopting a convention for the amelioration of the condition of the wounded in war. The

conference, at which 16 states were represented, lasted from 8-22 August 1864. The draft

convention submitted to the conference, which was prepared by the Geneva Committee,

was adopted by the Conference without major alterations. The main principles laid down

in the Convention and maintained by the later Geneva Conventions are:

- relief to the wounded without any distinction as to nationality;

- neutrality (inviolability) of medical personnel and medical establishments and

units;

- the distinctive sign of the red cross on a white ground.

A second diplomatic conference was convened at Geneva in October 1868 in

order to clarify some provisions of the Convention of 1864 and, particularly, to adapt the

principles of the Convention to sea warfare. The Additional Articles, which were adopted


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on 20 October 1868 were, however, not ratified, and did not enter into force.” (From the

International Committee of the Red Cross)

To Find Specific Articles: https://www.icrc.org/ihl/INTRO/120?OpenDocument First Geneva Convention of 1949:

“This Convention represents the fourth version of the Geneva Convention on the

wounded and sick after those adopted in 1864, 1906 and 1929. The fundamental

principles as well as the division into chapters remained the same as in the preceding

version with the exception of the new introductory chapter on general provisions.

Changes were made especially in Chapter IV (personnel). Hitherto, medical personnel

and chaplains falling into enemy hands had to be immediately repatriated. The 1949

Convention, taking account of changed conditions of warfare, provides that they may in

certain circumstances be retained to care for prisoners of war. The provisions on medical

equipment were correspondingly altered. In the chapter on medical transports it was

provided that medical aircraft may in certain circumstances fly over neutral territory.

Some clarifications were made as regards the article on the use of the emblem (Article

44).”

To Find Specific Articles: https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=4825657B0C7E6BF0C12563CD002D6B0B&action=openDocument Second Geneva Convention of 1949:

“The present Convention replaced Hague Convention (X) of 1907 for the Adaptation to


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Maritime Warfare of the Principles of the Geneva Convention.

It contains 63 Articles whereas the 1907 Convention had only 28. This extension is

mainly due to the fact that the present Convention is conceived as a complete and

independent Convention whereas the 1907 Convention restricted itself to adapting to

maritime warfare the principles of the Convention on the wounded and sick in land

warfare. In its structure the 1949 Convention follows closely the provisions of Geneva

Convention (I) of 1949.”

To Find Specific Articles: https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=2F5AA9B07AB61934C12563CD002D6B25&action=openDocument Third Geneva Convention of 1949:

“The present Convention replaced the Prisoners of War Convention of 1929. It contains

143 Articles whereas the 1929 Convention had only 97. It became necessary to revise the

1929 Convention on a number of points owing to the changes that had occurred in the

conduct of warfare and the consequences thereof, as well as in the living condition of

peoples. Experience had shown that the daily life of prisoners depended specifically on

the interpretation given to the general regulations. Consequently, certain regulations were

given a more explicit form which was lacking in the preceding provisions. Since the text

of the Convention is to be posted in all prisoner of war camps (see Article 41) it has to be

comprehensible not only to the authorities but also to the ordinary reader at any time. The

categories of persons entitled to prisoner of war status were broadened in accordance

with Conventions I and II. The conditions and places of captivity were more precisely


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defined, in particular with regard to the labour of prisoners of war, their financial

resources, the relief they receive and the judicial proceedings instituted against them. The

Convention establishes the principle that prisoners of war shall be released and

repatriated without delay after the cessation of active hostilities (Article 118)”

To Find Specific Articles: https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=77CB9983BE01D004C12563CD002D6B3E&action=openDocument Fourth Geneva Convention of 1949:

“The Geneva Conventions which were adopted before 1949 were concerned with

combatants only, not with civilians. Some provisions concerning the protection of

populations against the consequences of war and their protection in occupied territories

are contained in the Regulations concerning the laws and customs of war on land,

annexed to the Hague Conventions of 1899 and 1907. During World War I the Hague

provisions proved to be insufficient in view of the dangers originating from air warfare

and of the problems relating to the treatment of civilians in enemy territory and in

occupied territories. The International Conferences of the Red Cross of the 1920's took

the first steps towards laying down supplementary rules for the protection of civilians in

time of war.

The 1929 Diplomatic Conference, which revised the Geneva Convention on wounded

and sick and drew up the Convention on the treatment of prisoners of war, limited itself

to recommending that "studies should be made with a view to concluding a convention

on the protection of civilians in enemy territory and in enemy occupied territory." A draft


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convention containing forty articles prepared by the International Committee of the Red

Cross was approved by the International Conference of the Red Cross in Tokyo in 1934

and is generally referred to as the "Tokyo Draft". It was to be submitted to a diplomatic

conference planned for 1940, but this was postponed on account of the war. The events of

World War II showed the disastrous consequences of the absence of a convention for the

protection of civilians in wartime.

The Convention adopted in 1949 takes account of the experiences of World War II. It

contains a rather short part concerning the general protection of populations against

certain consequences of war (Part II), leaving aside the problem of the limitation of the

use of weapons. The great bulk of the Convention (Part III - Articles 27-141) puts forth

the regulations governing the status and treatment of protected persons; these provisions

distinguish between the situation of foreigners on the territory of one of the parties to the

conflict and that of civilians in occupied territory.

The Convention does not invalidate the provisions of the Hague Regulations of 1907 on

the same subjects but is supplementary to them (see Article 154 of the Convention).”

To Find Specific Articles: https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument Protocol I of 1977:

“Article 1(4) provides that armed conflicts in which peoples are fighting against colonial

domination, alien occupation or racist regimes are to be considered international

conflicts.


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Part II (Articles 8-34) develops the rules of the First and the Second Geneva Conventions

on wounded, sick and shipwrecked. It extends the protection of the Conventions to

civilian medical personnel, equipment and supplies and to civilian units and transports

and contains detailed provisions on medical transportation.

Part III and several chapters of Part IV (Articles 35-60) deal with the conduct of

hostilities, i.e. questions that hitherto were regulated by the Hague Conventions of 1899

and 1907 and by customary international law. Their reaffirmation and development is

important in view of the age of the Hague Conventions and of the new States which had

no part in their elaboration. Article 43 and 44 give a new definition of armed forces and

combatants. Among the most important Articles are those on the protection of the civilian

population against the effects of hostilities. They contain a definition of military

objectives and prohibitions of attack on civilian persons and objects. Further Articles (61-

79) deal with the protection of civil defense organizations, relief actions and the treatment

of persons in the power of a party to a conflict.

Part V (Articles 80-91) brings some new elements to the problem of the execution of the

Conventions and the Protocol.”

To find specific articles: https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument


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PROTOCOL I and II:

The final two protocols of the Geneva Codes deal with matters of the organization’s

symbol and emblem usage. They are not crucial to the primary scope of the committee

but will still be briefly discussed. Research on these protocols is recommended, as a

unanimous signature has not been reached by the 196 member states on these Protocols.

Modern Issues with the Geneva Codes: The breadth of the Geneva Codes is quite large and covers the legalities of a just

war, the definitions of self-defense, and the treatment of Prisoners of War. However, the

document has not followed the modern age of technological advancement nor did it

expect the ethical dilemma and modern combat brought about by the infamous and tragic

Al-Qaeda attacks on the Twin Towers on September 11, 2001. Traditionally war had

been defined as a “conflict between two parties” but the United States dealt with a

fundamentally frightening fact that Al-Qaeda could not be considered a party with

solidity, as it was a fluid organization unaffiliated with any government. It is a dilemma

comparable to two men in a matching box sparring while one has his eyes blind-folded.

Until operatives found the general location of Al-Qaeda quarters, this was very much the

case. In International Humanitarian Law discussions, this meant the United States was

facing an entirely new enemy, and it stimulated the asking of questions, “Are terrorists

entitled to the same rights given to signers of the Geneva Codes?” This was only the

first question. Then in January 2002, Secretary of Defense Donald Rumsfeld, announced

the opening of a detention center for suspected conspirators and those of Al-Qaeda and

otherwise that would be detained for information. After investigations and study done by

the Department of Justice, the possibility that Guantanamo transgresses IHR and


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constitutionality was very apparent. Guantanamo Bay had received public outcry around

the world as being ignorantly negligent of Geneva Codes, specifically Article 3, which

I will attach below. As humans, should terrorists or those suspected of terrorism be

given Prisoner of War status (POW)? The final ethical and legal question provoked by

the 9/11 attacks regards the usage of drone strikes in the battlefield or as a means to

combat terrorism in other countries. Although, the United States has been the only

country to consistently use drones to attack and target specific people in Afghanistan,

Pakistan, Yemen, Somalia, as well as other countries, a handful of sovereign states also

have the weapon. As Owen Bowcott from “theguardian” puts it, “Drone Strikes threaten

50 years of international law”5, meaning that drones provide an unexpected problem that

international law did not expect.

Article 3 of Geneva Convention (III): “ARTICLE 3 In the case of armed conflict not of an international character occurring in the

territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed

forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel

treatment and torture;

5 http://www.theguardian.com/world/2012/jun/21/drone-‐strikes-‐international-‐law-‐un


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(b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading

treatment; (d) the passing of sentences and the carrying out of executions without previous

judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red

Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means

of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”


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Discussion Questions ● What infringements of the Geneva Convention codes today must be addressed?

Are there articles that mention solutions to these infringements?

● Can an entire Geneva Conventions code of IHR with all its protocols be verified

and ratified by all member states of the United Nations? If so, how?

● Which articles of the Geneva Convention must be amended/re-written, which

articles must be added, and if need be, what sections must be deleted?

● Should the international body construct an entirely new guideline? What will be

on that new guideline?

● The Geneva Conventions, like many international covenants, lacks enforcement.

How can the codes attain a strong enforcement?


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Works Cited http://necrometrics.com/20c5m.htm#Second https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions https://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=375 http://www.cfr.org/human-rights/geneva-conventions/p8778 http://uspolitics.about.com/od/antiterrorism/i/geneva_conv.htm http://www.heritage.org/research/projects/enemy-detention/armed-conflict-and-the-geneva-conventions https://www.icrc.org/eng/resources/documents/misc/57jpf6.htm http://www.redcross.org/images/MEDIA_CustomProductCatalog/m3640104_IHL_SummaryGenevaConv.pdf https://www.icrc.org/eng/resources/documents/statement/geneva-conventions-statement-090709.htm https://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm https://www.icrc.org/eng/resources/documents/misc/5xfp5a.htm

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