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II. The conditions and places of captivity were more precisely defined, particularly with regard to the labor 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. The Convention has five annexes containing various model regulations and identity and other cards. 29 • Fourth Convention: The final convention protects civilians, including those in occupied territory. This convention differed from its predecessors due to the fact that the former Geneva Conventions were only concerned with combatants. Due in part to the aftermath of World War II, in which the absence of a convention for the protection of civilians led to horrible consequences, this convention was adopted in 1949. 30 It is comprised of 159 articles, including a short section concerning the general protection of populations against certain consequences of war, but it does so without addressing the conduct of hostilities, which are later examined in the Additional Protocols of 1977. The bulk of the Convention deals with the status and treatment of protected persons, distinguishing between the situation of foreigners on the territory of one of the parties to the conflict and that of civilians in occupied territory. It spells out the obligations of the occupying power and the civilian population and contains detailed provisions on humanitarian relief for populations in occupied territory. It also contains a specific regime for the treatment of civilian internees. It has three annexes containing a model agreement on hospital and safety zones, model regulations on humanitarian relief, and model cards. 31 • Protocol I: Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. It extends protections to victims of wars against racist regimes and wars of self-determination. • Protocol II: Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. It extends protections to victims of internal conflicts in which an armed opposition controls enough territory to enable them to carry out sustained military operations. 32 The Evolution of the Conventions: the 1977 Additional Protocols The growing rise of two new elements of warfare led to the addition of the 1977 Protocols: the possibility of extending the battlefield ad infinitum, which would put civilians at an obvious risk, and the new forms of armed conflict that could not go unnoticed (nuclear weapons). Thus, the need came about to supplement the Conventions. Protocol I, which deals with the victims of international armed conflicts, seems to be a collection of unrelated texts. Part II addresses the wounded, sick and shipwrecked, missing and dead persons, and medical services, while Part III focuses on defining the term “combatants” and discusses their conduct. Part IV concerns the conduct of hostilities but also mentions civil defense, relief, and other human rights matters. 33 The heterogeneous composition highlighted the irrelevance of the outdated distinction between the Law of Geneva (law for the protection of victims of conflicts) and the Law of the Hague (law relative to the conduct of hostilities and the administration of occupied territories). It finally defined the law of armed conflict as a single entity. The most crucial point of the protocol is the protection of civilians against the effects of hostilities and is addressed throughout the entire Protocol. 34 After World War I, the new issue of aerial weapons arose, as they can strike virtually anywhere on enemy territory and are subject to practically no regulations. The issue has gotten even more threatening today. The safety of citizens is dependent on law, which led to the need to add to the 1949 Conventions, which, despite the horrible air raids in the Second World War, failed to address this issue. The memory of bombings and atrocious crimes committed against civilians in occupied territories made the primary objective of the Geneva Convention relative to the protection of civilian persons in time of war (Fourth Geneva Convention of 1949) the protection of civilians against abuses of power and arbitrary measures by foreign rulers. It tackles war crimes against civilians in enemy countries and the inhabitants of occupied territories. 35 Protocol I is supplemental, as it contains rules for the safety of the most vulnerable categories of civilians and comprises a list of fundamental guarantees amounting to a summary of human rights that are applicable to anyone affected by a situation of armed conflict. Those who drafted Protocol I were concerned with the most vulnerable parties, and were thus drawn to consider the lack of protection of civilians against the effects of hostilities. Protocol I features three types of provisions to mend these deficiencies: basic rules, rules of application, Harvard WorldMUN 2012 Legal 10
and assistance measures. It does not take a definite stand on weaponry, though it does establish a ban on superfluous injury and affirms the need to protect the environment. It reaffirms that the right of parties to the conflict to choose methods or means of warfare is not unlimited. It states that “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives.” 36 Protocol I also states that attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which could be excessive in relation to the concrete and direct military advantage anticipated” are prohibited. 37 This statement reinforces the principle of proportionality and the prohibition of indiscriminate attacks. It also sets up a passing legal argument against the use of nuclear weapons or other weapons of mass destruction. With all these rules, the Protocol enforces that war should be waged against the enemy, and not against defenseless people. “[Attacks] which may...cause...loss of civilian life, injury to civilians, damage to civilian objects...which could be excessive in relation to the... military advantage...are prohibited.” Additional Protocol II, relating to the protection of victims of non-international armed conflicts, supplements Article 3 of the four Geneva Conventions. Part I of this Protocol describes the scope of the Protocol as extending to all armed conflicts not covered by Article 1 of Protocol I and which take place in the territory of a High Contracting Party, a term designating a party to an agreement, between its armed forces and rebellious armed forces or other organized armed groups that exercise such control over a part of its territory as to enable them to carry out sustained and intensive military operations and to implement this Protocol. 38 Part I also outlines the Protocol’s limitations as not applying to internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. The Protocol focuses on removing any discrimination based on sex, color, race, or beliefs and on specific protection for those who, after the armed conflict, have had their liberty taken away or restrained for reasons relating to the conflict at hand. The Protocol includes a Non-Intervention section, which states that nothing in the Protocol shall be used for the purpose of affecting the sovereignty of a State or justifying the intervention of a High Contracting Party in the armed conflict or in the internal or external affairs of the territory in which the conflict takes place. In addition, the Protocol lists fundamental guarantees, such as protection from violence, acts of terrorism, and threats, to children and those who do not take or have ceased to take part in hostilities. Children are guaranteed an education, the reunion of separated family members, and extensive measures for their safety. 39 Virtually all of the principles encompassed in Article 3 are rooted in customary law applicable in international armed conflict. If a dispute arises over the qualification of a conflict as international or non-international, parties are always bound to apply the provisions of Article 3. However, the Protocol II offers some significant improvements regarding the scale, proliferation, and violence of these conflicts. It establishes fundamental guarantees for all persons who take no direct part in hostilities, particularly focusing on those deprived of their liberty and those against whom penal prosecutions have been instituted. It offers special protection to the sick, wounded, and shipwrecked, as well as to medical and religious personnel, medical units, and transports. The civilian population, objects indispensable to survival, works and installations containing dangerous forces, cultural objects, and places of worship are also given special provisions. Forced transfers of civilians are generally prohibited. Protocol II sets the groundwork for exclusively humanitarian and impartial relief work. Nonetheless, concern about state sovereignty limited the field of application of Protocol II. 40 Current Situation New Threats to Humanitarian Law: Cyber Warfare The appearance of cyber-war opened up a new realm of warfare, and computers are the new key weapon in Harvard WorldMUN 2012 Legal 11
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