Fourth Geneva Convention

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The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949. While the first three conventions dealt with combatants, the Fourth Geneva Convention was the first to deal with humanitarian protections for civilians in a war zone. There are currently 196 countries party to the 1949 Geneva Conventions, including this and the other three treaties. [1]

Geneva Conventions Treaties establishing humanitarian laws of war

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–45), which updated the terms of the two 1929 treaties, and added two new conventions. The Geneva Conventions extensively defined the basic rights of wartime prisoners, established protections for the wounded and sick, and established protections for the civilians in and around a war-zone. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries. Moreover, the Geneva Convention also defines the rights and protections afforded to non-combatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper—the use of weapons of war—which is the subject of the Hague Conventions, and the bio-chemical warfare Geneva Protocol.

A civilian is "a person who is not a member of the military or of a police or firefighting force". The term "civilian" is slightly different from a non-combatant under the law of war, as some non-combatants are not civilians. Under international law, civilians in the territories of a party to an armed conflict are entitled to certain privileges under the customary laws of war and international treaties such as the Fourth Geneva Convention. The privileges that they enjoy under international law depends on whether the conflict is an internal one or an international one.

War Organised and prolonged violent conflict between states

War is a state of armed conflict between states, governments, societies and informal paramilitary groups, such as mercenaries, insurgents and militias. It is generally characterized by extreme violence, aggression, destruction, and mortality, using regular or irregular military forces. Warfare refers to the common activities and characteristics of types of war, or of wars in general. Total war is warfare that is not restricted to purely legitimate military targets, and can result in massive civilian or other non-combatant suffering and casualties.

Contents

In 1993, the United Nations Security Council adopted a report from the Secretary-General and a Commission of Experts which concluded that the Geneva Conventions had passed into the body of customary international law, thus making them binding on non-signatories to the Conventions whenever they engage in armed conflicts. [2]

United Nations Security Council one of the six principal organs of the UN, charged with the maintenance of international peace and security

The United Nations Security Council (UNSC) is one of the six principal organs of the United Nations (UN), charged with the maintenance of international peace and security as well as accepting new members to the United Nations and approving any changes to its United Nations Charter. Its powers include the establishment of peacekeeping operations, the establishment of international sanctions, and the authorization of military action through Security Council resolutions; it is the only UN body with the authority to issue binding resolutions to member states. The Security Council held its first session on 17 January 1946.

Secretary-General of the United Nations head of the United Nations Secretariat

The Secretary-General of the United Nations is the head of the United Nations Secretariat, one of the six principal organs of the United Nations. The Secretary-General serves as the chief administrative officer of the United Nations. The role of the United Nations Secretariat, and of the Secretary-General in particular, is laid out by Chapter XV of the United Nations Charter.

Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.

Part I. General Provisions

Parties to GC I–IV and P I–III
Parties to GC I–IV and P I–II
Parties to GC I–IV and P I and III
Parties to GC I–IV and P I
Parties to GC I–IV and P III
Parties to GC I–IV and no P Parties to the Geneva Conventions.svg
  Parties to GC I–IV and P I–III
  Parties to GC I–IV and P I–II
  Parties to GC I–IV and P I and III
  Parties to GC I–IV and P I
  Parties to GC I–IV and P III
  Parties to GC I–IV and no P

This sets out the overall parameters for GCIV:

Article 2: Application of the Convention

Article 2 states that signatories are bound by the convention both in war, armed conflicts where war has not been declared, and in an occupation of another country's territory.

Declaration of war formal announcement by which one state goes to war against another

A declaration of war is a formal act by which one state goes to war against another. The declaration is a performative speech act by an authorized party of a national government, in order to create a state of war between two or more states.

Military occupation effective provisional control of a certain power over a territory

Military or belligerent occupation is effective provisional control by a certain ruling power over a territory, which is not under the formal sovereignty of that entity, without the violation of the actual sovereign. The territory is then known as the occupied territory and the ruling power the occupant. Occupation is distinguished from annexation by its intended temporary nature, by its military nature, and by citizenship rights of the controlling power not being conferred upon the subjugated population.

Country distinct region in geography; a broad term that can include political divisions or regions associated with distinct political characteristics

A country is a region that is identified as a distinct entity in political geography. A country may be an independent sovereign state or part of a larger state, as a non-sovereign or formerly sovereign political division, or a geographic region associated with sets of previously independent or differently associated people with distinct political characteristics. Regardless of the physical geography, in the modern internationally accepted legal definition as defined by the League of Nations in 1937 and reaffirmed by the United Nations in 1945, a resident of a country is subject to the independent exercise of legal jurisdiction. There is no hard and fast definition of what regions are countries and which are not.

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The scope of article 2 is broad:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.

In the commentary to the article Jean Pictet writes:

Jean Simon Pictet was a Swiss citizen, jurist, legal practitioner and honorary doctorate with a profound knowledge of international humanitarian law. First as a secretary-jurist, and then as a senior executive and Vice-President of the International Committee of the Red Cross (ICRC), Pictet was instrumental in drafting the 1949 Geneva Conventions for the protection of victims of war, their Commentaries, and negotiating the 1977 Additional Protocols. He also proposed the Red Cross Movement’s seven Fundamental Principles, which were adopted at Vienna in 1965: Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity and Universality. In 1989, an international humanitarian law competition for students was founded and named after him.

They [conventions] are coming to be regarded less and less as contracts concluded on a basis of reciprocity in the national interests of the parties and more and more as a solemn affirmation of principles respected for their own sake, a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. [3]

Article 3: Conflicts not of an international character

Article 3 states that even where there is not a conflict of international character, the parties must as a minimum adhere to minimal protections described as: non-combatants, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, with the following prohibitions:

Non-combatant is a term of art in the law of war and international humanitarian law, describing civilians who are not taking a direct part in hostilities; persons—such as combat medics and military chaplains—who are members of the belligerent armed forces but are protected because of their specific duties ; combatants who are placed hors de combat; and neutral nationals who are not fighting for one of the belligerents involved in an armed conflict. This particular status was first recognized under the Geneva Conventions with the First Geneva Convention of 1864.

Hors de combat is a French term used in diplomacy and international law to refer to persons who are incapable of performing their ability to wage war. Examples include fighter pilots or aircrews parachuting from their disabled aircraft, as well as the sick, wounded, detained, or otherwise disabled. Persons hors de combat are normally granted special protections according to the laws of war, sometimes including prisoner-of-war status, and therefore officially become non-combatants.

Wound injury where the skin is torn

A wound is a type of injury which happens relatively quickly in which skin is torn, cut, or punctured, or where blunt force trauma causes a contusion. In pathology, it specifically refers to a sharp injury which damages the dermis of the skin.

Violence use of physical force or power with the intent to inflict harm, possibly resulting in injury or death

Violence is "the use of physical force so as to injure, abuse, damage, or destroy." Less conventional definitions are also used, such as the World Health Organization's definition of violence as "the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, which either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation."

Murder Unlawful killing of a human with malice aforethought

Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human being with malice aforethought. This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is a killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

Mutilation or maiming is cutting off or injury to a body part of a person so that the part of the body is permanently damaged, detached or disfigured.

Article 4: Definition of protected persons

Article 4 defines who is a protected person:

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.

It explicitly excludes "Nationals of a State which is not bound by the Convention" and the citizens of a neutral state or an allied state if that state has normal diplomatic relations "within the State in whose hands they are".

A number of articles specify how protecting powers, ICRC and other humanitarian organizations may aid protected persons.

The definition of protected person in this article is arguably the most important article in this section because many of the articles in the rest of GCIV only apply to protected persons.

Article 5: Derogations

Article 5 provides for the suspension of persons' rights under the Convention for the duration of time that this is "prejudicial to the security of such State", although "such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention."

The common interpretation of article 5 is that its scope is very limited. [4] Derogation is limited to individuals "definitely suspected of" or "engaged in activities hostile to the security of the State." In paragraph two of the article, "spy or saboteur" is mentioned.

Part II. General Protection of Populations Against Certain Consequences of War

Article 13: Field of application of part II

The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race , nationality , religion or political opinion , and are intended to alleviate the sufferings caused by war.

The list of basis on which distinction might be drawn is not exhaustive.

Part III. Status and Treatment of Protected Persons

Section I. Provisions common to the territories of the parties to the conflict and to occupied territories

Article 32: Prohibition of corporal punishment, torture, etc.

A protected person may not have anything done "of such a character as to cause physical suffering or extermination... the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment". While popular debate remains on what constitutes a legal definition of torture, the ban on corporal punishment simplifies the matter; even the most mundane physical abuse is thereby forbidden by Article 32, as a precaution against alternate definitions of torture.

The prohibition on scientific experiments was added, in part, in response to experiments by German and Japanese doctors during World War II of whom Josef Mengele was the most infamous.

Article 33: Individual responsibility, collective penalties, pillage and reprisals

No protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited."

Under the 1949 Geneva Conventions, collective punishment is a war crime. By collective punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World War I and World War II. In the First World War, the Germans executed Belgian villagers in mass retribution for resistance activity during the Rape of Belgium. In World War II, both the Germans and the Japanese carried out a form of collective punishment to suppress resistance. Entire villages or towns or districts were held responsible for any resistance activity that occurred at those places. [5] The conventions, to counter this, reiterated the principle of individual responsibility. The International Committee of the Red Cross (ICRC) Commentary to the conventions states that parties to a conflict often would resort to "intimidatory measures to terrorize the population" in hopes of preventing hostile acts, but such practices "strike at guilty and innocent alike. They are opposed to all principles based on humanity and justice."

Additional Protocol II of 1977 explicitly forbids collective punishment. But as fewer states have ratified this protocol than GCIV, GCIV Article 33 is the one more commonly quoted.

Section III. Occupied territories

Articles 47-78 impose substantial obligations on occupying powers. As well as numerous provisions for the general welfare of the inhabitants of an occupied territory, an occupier may not forcibly deport protected persons, or deport or transfer parts of its own civilian population into occupied territory (Art.49).

Article 49: Deportations, transfers, evacuations

Article 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

The reference in the last paragraph to “deportation”, is commonly understood as the expulsion of foreign nationals, whereas the expulsion of nationals would be called extradition, banishment or exile. If ethnic groups are affected by deportation, it may also be referred to as population transfer. Transfer in this case literally means to move or pass from one place to another. The International Committee of the Red Cross has expressed the political opinion, “that international humanitarian law prohibits the establishment of settlements, as these are a form of population transfer into occupied territory.” [6]

Article 50: Children

Article 50. The Occupying Power shall, with the cooperation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children.
The Occupying Power shall take all necessary steps to facilitate the identification of children and the registration of their parentage. It may not, in any case, change their personal status, nor enlist them in formations or organizations subordinate to it.
Should the local institutions be inadequate for the purpose, the Occupying Power shall make arrangements for the maintenance and education, if possible by persons of their own nationality, language and religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be adequately cared for by a near relative or friend.
A special section of the Bureau set up in accordance with Article 136 shall be responsible for taking all necessary steps to identify children whose identity is in doubt. Particulars of their parents or other near relatives should always be recorded if available.
The Occupying Power shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers, and mothers of children under seven years.

Article 53: Prohibited destruction

Article 53. Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

In The Geneva Conventions of 12 August 1949. Commentary, Jean Pictet writes:

In order to dissipate any misconception in regard to the scope of Article 53, it must be pointed out that the property referred to is not accorded general protection; the Convention merely provides here for its protection in occupied territory. The scope of the Article is therefore limited to destruction resulting from action by the Occupying Power. It will be remembered that Article 23 (g) of the Hague Regulations forbids the unnecessary destruction of enemy property; since that rule is placed in the section entitled "hostilities", it covers all property in the territory involved in a war; its scope is therefore much wider than that of the provision under discussion, which is only concerned with property situated in occupied territory. [7]

Article 56: Hygiene and public health

Article 56 describes the medical obligations the occupying power has in the occupied territory:

To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics. Medical personnel of all categories shall be allowed to carry out their duties.
If new hospitals are set up in occupied territory and if the competent organs of the occupied State are not operating there, the occupying authorities shall, if necessary, grant them the recognition provided for in Article 18. In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel and transport vehicles under the provisions of Articles 20 and 21.
In adopting measures of health and hygiene and in their implementation, the Occupying Power shall take into consideration the moral and ethical susceptibilities of the population of the occupied territory.

Article 78: Security measures. Internment and assigned residence. Right of appeal

Article 78 deals with internment. It allows the occupying power for "imperative reasons of security" to "subject them [protected persons] to assigned residence or to internment." The article does not allow the occupying power to take collective measures: each case must be decided separately.

Part IV. Execution of the Convention

This part contains "the formal or diplomatic provisions which it is customary to place at the end of an international Convention to settle the procedure for bringing it into effect are grouped together under this heading (1). They are similar in all four Geneva Conventions. [8]

Annexes

The ICRC commentary on the Fourth Geneva convention states that when the establishment of hospital and safety zones in occupied territories were discussed reference was made to a draft agreement and it was agreed to append it as an annex I to the Fourth Geneva Convention. [9]

The ICRC states that "the Draft Agreement has only been put forward to States as a model, but the fact that it as carefully drafted at the Diplomatic Conference, which finally adopted it, gives it a very real value. It could usefully be taken as a working basis, therefore, whenever a hospital zone is to be established." [9]

The ICRC states that Annex II is a "...draft which, according to Article 109 (paragraph 1) of the Convention, will be applied in the absence of special agreements between the Parties, deals with the conditions for the receipt and distribution of collective relief shipments. It is based on the traditions of the International Committee of the Red Cross which submitted it, and on the experience the Committee gained during the Second World War." [10]

Annex III contains an example internment card, letter and correspondence card: [11]

  1. An example internment card with dimensions of 10 x 15 cm.
  2. An example letter with dimensions of 29 x 15 cm.
  3. An example correspondence card with dimensions of 10 x 15 cm.

See also

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Combatant is the legal status of an individual who has the right to engage in hostilities during an international armed conflict. The legal definition of "combatant" is found at article 43 of Additional Protocol One to the Geneva Conventions of 1949 [AP1]. It states that "Members of the armed forces of a Party to a conflict are combatants, that is to say, they have the right to participate directly in hostilities."

Third Geneva Convention

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Protocol I

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Competent Tribunal is a term used in Article 5 paragraph 2 of the Third Geneva Convention, which states:

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The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law, because of the Fourth Geneva Convention of 1949 which states: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." Israel maintains that it is not in violation of the Fourth Geneva Convention since, in its view, Israeli citizens were neither deported nor transferred to the territories, and they cannot be considered to have become "occupied territory" since there had been no internationally recognized legal sovereign prior. The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention does apply.

Atrocity crimes refer to the three legally defined international crimes of genocide, war crimes, and crimes against humanity. In 2017 the International Criminal Court (ICC) will be deciding upon whether or not to include crimes of aggression within their jurisdiction; effectively adding a fourth atrocity crime. These crimes are defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1949 Geneva Conventions and their 1977 Additional Protocols, and the 1998 Rome Statute of the International Criminal Court.

Protected persons

Protected persons is a legal term under international humanitarian law and refers to persons who are under specific protection of the 1949 Geneva Conventions, their 1977 Additional Protocols, and customary international humanitarian law during an armed conflict.

References

  1. "Geneva Convention (IV) on Civilians, 1949". Treaties, States parties, and Commentaries. 23 March 2010. Retrieved 28 March 2018.
  2. "United Nations Audiovisual Library of International Law". legal.un.org. Retrieved 2017-03-15.
  3. "Treaties, States parties, and Commentaries - Geneva Convention (IV) on Civilians, 1949-53: Commentary of 1958". International Red Cross.
  4. Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. COMMENTARY OF 1958, p. 52 (derogations)
  5. Keylor, William R., "The Twentieth Century World and Beyond," Oxford University Press, New York: 2011.
  6. What does the law say about the establishment of settlements in occupied territory?
  7. "Treaties, States parties, and Commentaries - Geneva Convention (IV) on Civilians, 1949-53: Commentary of 1958". International Red Cross.
  8. Commentary: Part IV : Execution of the convention #Section II : Final provisions, Retrieved 2008-10-28
  9. 1 2 ICRC Commentary: Annex I : Draft agreement relating to hospital and safety zones and localities, Retrieved 2008-10-28
  10. ICRC Commentary: Annex II : Draft regulations concerning collective relief, Retrieved 2008-10-28
  11. ICRC Commentary: Annex III Model internment cards, letters and correspondence cards, Retrieved 2008-10-28