The 1949 Geneva Convention and the 1977 Additional Protocols

“Men who take up arms against one another in public war do not cease on that account to be moral beings, responsible to one another, and to God.”                       ~Francis Lieber

*Warning Will Robinson, this is a 10 page essay, so will take a little bit of time to read*

 

     Today the 1949 Geneva conference may seem like a stand-alone program about wars. The view is simplistic, but it was far from being an alone in terms of laws that are meant to protect life and limb on our planet. There is a long and complex history that came before the construction of the Geneva Conventions, and later the 1977 Additional Protocols. First, there are four Conventions.  In 1864 is when four treaties were written up, that is considered the first Convention. The second convention was a part of the 1949 convention. It replaced or updated the Hauge Convention (1907).  The third convention has to do with prisoners of war, etc. and it was a revision of a treaty from 1929. The fourth convention is about protecting civilians and it was adopted in 1950. Part of that history is about the International Committee of the Red Cross (hereafter, ICRC).  The IRC is an organization that was started as a direct result of wartime, specifically, the battle of Solferino of 1859.[1]  It turns out that the RCRC is both the .[2]  The ICRC main mission is to help people who are affected by armed conflict.[3] The truth is that they are so much more. Not only do they support humans with food, shelter, and other necessities, they document the laws and the history of the laws. They keep a very large archive of primary documents. A person can even search for a name of a prisoner of war on their website. ICRC is not an organization that sits in the background and watches, it does more. It watches, documents humanitarian failures, wartime violations of the conventions, namely what countries do in wartime. The ICRC records of the meetings of experts and the groups that decide how the convention themselves are written. Keeping notes from meetings for example.

     Do the Geneva Conventions laws still protect anyone? There has been war after war after these conventions were adopted, and they have failed to protect some people. Deceased Senator John McCain is an example of a Navy pilot being severely treated by the ‘enemy,’ North Vietnam. It seems that the Geneva Conventions and international law, has not protected all of those who were supposed to be protected. Is there a possibility to realize that the Convention laws were meant to be a guide to proper behavior not a black and white rule that must be followed to the tee? It seems like it would be an impossible feat to protect everyone, everywhere during a time of war. Perhaps, the failure is not the Geneva Conference articles at all, perhaps the failure lay with humanity itself.

     The ways that wars are fought have changed over the history of our species. According to Perrigo, very early wars were a way to a means. The outcome would be gained territory, a colony, some resource, or another, possibly slaves. But far back in history we had been evolving our technology. As of the time of WWI, [4]technology has led to weapons evolved to kill massive populations, damage their eco-systems, and or technology. It was the dehumanizing and often brutal way that people were treated during a war that became the impetus for the Geneva Conventions invention. Some nations may never buy into the Geneva Conventions or if they do, they do not necessarily respect them.

     We need to go back in time a bit and pay a bit more attention to some history. Before the ICRC, there was Francis Lieber. Francis Lieber set a standard by which the countries and states could set up laws to approve, ratify, and live by in terms of conflicts of war. His aim was to protect people who were innocent victims of the armed conflict. He also wanted honor and responsibility to be part of the legal mix. Lieber was a German American political philosopher and was a noted authority on international and military law. He wrote what is known today as the Lieber Code. It is the first ever “codification of the customary laws of war.”[5]  President Lincoln very much approved of the document and ordered it to be made into “General Orders No. 100” on April 24, 1863.[6] The Library of Congress tells us that the code “substantially influenced” how treaties, and the Hague, and Geneva Conventions were created. It was also set up as a manual for Union Soldiers to use to help them decide which situation required the use of what action per the code.

     An example of part of the Lieber Code and how it seeks to look out for people in terms of keeping them safe from abuse:

Article 4: “…Military oppression is not Martial Law: it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity — virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.” (Emphasis mine)

     The code also has articles (sections) that aim to protect citizens (civilians) of countries at war.  Article 31, states that works of art, museums, universities, schools, hospitals and more should be at protected to the best of abilities of those involved. The Lieber Code lets people know that in times of war there are still responsibilities that the countries and their soldiers at war must live by. This is an example of something good coming out of something so horrible as war. He may have never written the code had he not witnessed war in first person. He fought in the Napoleonic Wars and was injured in the Battle of Waterloo.

     The Geneva Convention of 1949 was a revision of the earlier protocols. The revision was prompted by World War II.[7]The first article of the conventions deals with humanitarian issues. The second article dealt with the way that soldiers who are sick, or unable to fight for any reason are treated, namely in a humanitarian way. The third article deals with those same issues as article two except that it deals specifically with Navy personnel.[8] Later in time came the 1977 Additional Protocols (two articles) were added to the document.

     In the 1949 Geneva Convention there were four conventions, divided up into articles and protocols that were voted for and accepted by most of the participating nations. Nearly 200 nations approved of the 1949 Protocols, soon after many of them started to ratify them. In 1977, more “Additional Protocols” were added to the international law books. These new protocols named which conventional weapons might be used or not depending on how much human suffering they might cause. [9]  These laws or rules of war also referred to as International Humanitarian laws of Armed Conflict, are set up in terms of international law, meaning they are the law at least to those nations and independent states that have agreed to bind themselves to the law. Since then, many more have opted to join the other nations in respecting the laws, and the peoples that the law tries to protect.

     But it is now 2021, a full 72 years since the Geneva Conventions came into being. There have been a few revisions made.    People are asking what is the legacy of the Geneva Conventions? Did they help to create a more stabilized world? Does it create more peace on this planet? Does it, at the least, deflect those who would rather fight and die, making their own up rules up along the way toward their responsibilities as human beings? Yes, the Geneva Convention and the 1977 Additional Protocols have a legacy that live on today. There are those who do not see any positive thing about the work of words. They are unimpressed because there have been many wars and military actions that disrespected the convention law. I would very much show that much good has come from that set of law(s). There have been people all along the way who had faith in its basic goodness.

     As recent as 2015, there has been an example of blatantly breaking the international law. The complaint came from Joanne Liu, who at the time was a president of a nonprofit organization, “Médecins San Frontiers.”  She had reassured her staff at a hospital where they were working to help those need during and Afghan and U.S. military action. She told them that the hospital was the safest place to be. As it turned out, the city they were in was the next the city to be bombed. In Kunduz, Afghanistan, one of the places bombed in that city was that very hospital. At least 30 died, nearly half were her Ms. Liu employees. When she tried to reassure her staff, she told them about the international law that said no hospitals could be bombed during time of war. She said that both countries involved in the war knew very well where the hospital was.[10]

     It is sad to admit that a work of international collaboration by people from all around the world is not motivation enough to keep people safe. The United States came forward and said that the bombing described above was an accident, and unintended. The situation did beg the question has the warfare of modern times made the conventions obsolete? Maybe it should be stated that perhaps the Geneva Convention was/is a set of guidelines about what moral actions warring nations can and cannot take while a war is ongoing. [11] Maybe part of the failure is of the attitudes of the world’s leaders, ambassadors, planners, etc.

     In a piece written in 2020 by Emanuela-Chiara Gillard, she notes that “violations of the Conventions and of the 1977 Additional Protocols are widespread.” She goes on and names specific abuses of power upon civilians including children. She specifically cites the starvation suffered by the Syrian people while the civil war there was ongoing (? Still?) As an expert in international law, she makes it clear that the protocols need to be looked at again. She suggests some protocols be reconsidered, modified, and possibly mandated.[12]

    In 1979, as in years before, there were meetings between experts. Again, experts from all over the world were trying to weigh which weapons such as chemical, bombs(incendiary), minefields, grenades, booby-traps, rifles, and other weapons that are threatening civilian lives. During the meeting some experts suggested that the goal of limited usage was preferable to making a law forbidding the use of these weapons and then having the law just blatantly ignored. At another site, another group of experts were defining what was a small caliber projectile and came up with new verbiage of “assault rifle.”  At that time there was a report submitted, and it was one that a lot of people did not like. It said that basically, what was agreed upon per the 1899 Hague Declaration needed to remain in effect as it pertains to weapons of war. People are submitting research, discussion, and law making. It becomes apparent that people are thoughtfully trying to keep up with technology in terms of the written code within the international laws of war and humanitarian fronts. [13]

     According to Giovanni Mintilla, The Bush Administration tried to say that during the “War on Terror” that the Geneva Convention laws did not pertain to the United States. Lady Liberty was quite free to practice acts of torture and so forth, against the enemy. This was an interesting take considering the United States took a lead position in terms of getting the conventions approved. Once upon a time the United States thought of itself as an example of what a country should do during warfare. The United States took too long to ratify the new protocols and then broke them with only a justification that this was no ordinary war. This was a war against terrorism.[14]

     So, the United States really liked the idea of the Geneva Convention rules for wartime. But they were also eager to set them aside when convenient. This even though leaders knew the country had officially bound themselves to support the laws. The United States is not the only nation to set aside the rules. They are not the only country that was enthusiastic in terms of agreeing to adhere to its rules. Do the rules even work?

     It is also interesting how fast a leader will invoke the Geneva Convention Protocols when it looks like their army will be on the losing side. In 1990, General Noriega considering himself a prisoner of war at the end of a military action called, “Operation Just Cause.”[15] wrote President H.W. Bush and invoked the Geneva Convention laws. He reminded the President that his troops deserved to be treated well. Indirectly, he was caring for himself as well.

     For what it is worth, I asked my husband who spent nearly eight years on active duty in the U.S. Army. He is fiercely loyal to the constitution and this country. He is a respecter of rules. I asked him what he thought of the Geneva Conventions. His response was probably pretty much typical for the average American citizen. He doesn’t know why they are there; they don’t work.[16] Yet, he’d be the first to remind someone that ignorance of the law is no excuse. In this case, ignorance of the law is everything. Those laws could mean the very survival of himself and/or his friends and family.

     There is no doubt that the Geneva Convention International laws work some of the time. The Geneva Convention Laws, do not try to stop all human suffering in wars, it tries to limit the suffering in many ways. There are other humanitarian laws that does try to stop all human suffering based on the human rights theory. The humanitarian laws first use John Locke and his ‘natural rights’ as its foundational argument.[17]  Locke’s logic: “Every human has the right to life, liberty, and property.”   Next, we circle back to, Emanuela-Chiara Gillard and her conclusion from her article in 2020, “The 70th anniversary of the Geneva Conventions has rightly been celebrated. But there is a tendency to take too much for granted, or to focus on the negative…”  Her whole conclusion is a very positive confirmation that with the Geneva Convention and the Protocols of 1977, should be remembered as “phenomenal achievement.”[18]  

          I would like to take that positive confirmation that was proclaimed by Gillard and look one more time at the examples cited. Keep in mind that in the 1970s when John McCain was held hostage and tortured horribly, he was protected by the Geneva Convention of 1949. Northern Vietnam signed on to the Convention in 1957.[19] Obviously, leaders in North Vietnam decided to ignore the fact that they had signed on. Next cited was Article 4 of Lieber’s Code. In just that paragraph we see abuse by the military is defined in a very short, definitive way. In the same paragraph he invokes justice, honor, and responsibility of the soldiers involved. This article, the second sentence especially, really says what the spirit and the letter of the law is in terms of humanitarian international law. One might say, it is perfection in form. The sad story of Joanne Liu who convinced her employees that staying in the hospital was a safe bet, only to lose half of them in the bombing. This was really through no fault of her own, nor was it the fault of the employees. As with the North Vietnamese dealing with John McCain, here we saw a defiant attitude of the leaders of “enemy” nations.  Gillard declared numerous violations of the laws. It comes to no surprise that a manufacturer and distributer of illicit drugs would invoke the conventions at the end of a military action that he lost. Noriega, the said drug dealer, was no courageous man. He only worried about laws when they served his purpose, else he’d never been a drug dealer to begin with. Was it ok for the United States to sanction torture of terrorists to gain information about their planned attacks? When President G. Bush decided that the Geneva Convention laws did not apply to a war on terror. He said so. The terrorists were responsible for the death of tens to hundreds (thousands?) of people. Human beings. My mother taught me that two wrongs do not make a right. It is as basic as that. The Geneva Conventions have had probably hundreds of experts debate rules for all the types of weapons, defining a local armed conflict vs. an international armed conflict, debating the structure of the definition of all sorts of details, etc. Representatives of at least a couple hundred nations have had their say for the countries they represented. One must realize that nothing that we humans touch is perfection. The Geneva Conventions are not perfect. What they are is a well thought out set of specially crafted laws that *IF* followed will lessen the amount of suffering and death during an armed conflict. That means they live up to the ambition of the people involved in defining them. If followed in the spirit and letter of the laws, there would most certainly be a lot less deaths, less injury, less cases of starvation, PTSD, and less destruction of homes, and properties. The Geneva Conventions live up to the expectations of its authors and give hope that humankind will find a way to humility in rough moments and be the better person in times of war.  The conventions steer armed soldiers to look out for justice, and honor of their actions. It is not the Geneva Conventions that have failed. It is the people who failed. Either by lack of knowledge or trying to take advantage when the laws suited them, to setting the laws aside to justify a leader’s decisions to break them. These conventions are a well-done foundation for the next set of laws that will eventually cover inter-galactic space and technology which will require new rules to specify their correct use in armed conflict. The words humility, honor and justice will be brought forward into the beginning balance our human checkbook.

Bibliography

(LII), Legal Information Institute. “Geneva Conventions and their Additional Protocols.” Legal Information Institute (LII). n.d. https://www.law.cornell.edu/wex/geneva_conventions_and_their_additional_protocols (accessed November 23, 2021).

The New York Times. Prod. The New York Times. New York, New York, January 27, 1990.

Bond, James E. “Internal Conflict and Article Three of the Geneva Conventions.” Denver Law Journal, 1971: 263-284.

Britannica, Editors of Encyclopedia. “”Francis Lieber.”.” Encyclopedia Britannica. Edited by T. Editors of Encyclopaedia. September 28, 2020.

Congress, Library of. “Dr. FRANCIS LIEBER (PDF).” Library of Congress. n.d. https://www.loc.gov/rr/frd/Military_Law/Lieber_Collection/pdf/francisbio-more.pdf (accessed November 23, 2021).

—. “Geneva Conventions Materials.” n.d. https://www.loc.gov/rr/frd/Military_Law/Geneva-Conventions_materials.html (accessed October 15, 2021).

—. “The Lieber Collection.” Federal Research Division: Military Legal Resources. n.d. https://www.loc.gov/rr/frd/Military_Law/Lieber_Collection/Items/francisbio.html (accessed November 22, 2021).

Cross, International Committe of the Red. “Conference of Government Experts on the Use of Certain Conventional Weapons (Report).” Diplomatic Conference on the Reaffirmation and Developement of International Humanitarian Law Applical in Armed Conflicts. Geneva: International Committe of the Red Cross, 1976. 1-206.

Cross, International Committe of the Red. History. n.d.

—. “Treaties, States parties, and Commentaries –Geneva Conventions of 1949 and Additional Protocols, and their Commentaries: Database of documents, etc.” International Committee of the Red Cross. International Committee of the Red Cross. n.d. databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp (accessed November 12, 2021).

Cross, International Committee of the Red. The Geneva Conventions of 1949 and their Additional Protocols. n.d. https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm (accessed 11 22, 2021).

Danzig, Micha. “The fallacy of 1,300 obstacles to peace’ in the Middle East.” The Jewish News Syndicate. n.d. https://www.jns.org/opinion/the-fallacy-of-1300-obstacles-to-peace-in-the-middle-east/ (accessed November 11, 2021).

Fazal, Tanisha M. Wars of Law : Unintended Consequences in the Regulation of Armed Conflict. Cornell University Press, 2018.

Forsythe, David P. “The 1949 Geneva Conventions after Seventy Years: The Fate of Charity in Turbulent Times.” Global Governance 25, no. 3., 2019: Pp. 359.

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Gesley, Jenny. “The “Lieber Code” – the First Modern Codification of the Laws of War.” LOC: Law Librarians of Congress. 2018. https://blogs.loc.gov/law/2018/04/the-lieber-code-the-first-modern-codification-of-the-laws-of-war/ (accessed November 23, 2021).

Gillard, Emanuela-Chiara. Seventy Years of Geneva Conventions: What of the future? Edited by 2020 The Royal Institute of International Affairs. March 2020. https://www.chathamhouse.org/sites/default/files/CHHJ7919-Geneva-Conventions-BP-200324.pdf (accessed November 2021, 2021).

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[1] (I. C. Cross n.d.)

[2]

[3] (I. C. Cross, History n.d.)

[4] (Perrigo 2010)

[5] (Gesley 2018)

[6] (General Orders No. 100 : The Lieber Code 2008)

[7] ((LII) n.d.)

[8] (The New York Times, 1990)

[9] (Publications 2015)

[10] (Foulkes 2015)

[11] (Petersen 2003)

[12] (Gillard 2020)

[13] (I. C. Cross, Conference of Government Experts on the Use of Certain Conventional Weapons (Report) 1976)

[14] (Mantilla 2017)

[15] (History.com n.d.)

[16] (Snyder 2021)

[17]

[18] (Gillard 2020)

[19] (List of parties to the Geneva Conventions n.d.)

About PeggyAnn

Professional PC Consultant, Researcher, & avid people watcher, Peggy Ann Rowe started into her genealogical quest at age 15 after watching the mini-series, "Roots" with her parents. This new obsession has fueled her love of history, & study of cultures & societies in every epoch. Today she is 57 years old with four kids who are all grown up (& all have flown the coop). In between her 'gigs' with clients she volunteered at many different non-profits. Former President, Secretary, and Director at Large on the board of the Douglas County Historical Society for 10+ years, and former Secretary at the Cloverdale Historical Society (Sonoma County) for nearly 10 years. This website is an attempt to share the knowledge she has gained about her family ties with others who may be interested in the same things. She does not guarantee 100% accuracy and does hope that you will send corrections. To learn more about her, click the "about" button in the page menu. Thanks! Another goal of this website is to disseminate a message (i.e. education) about domestic violence, child abuse, and all forms of sexual abuse to society at large. The message comes from real experience from the whole spectrum of the violence from sexual abuse by a perpetrator to sexual abuse perpetrated by a husband, to the abuse of children within the family. Peggy has seen it, lived it, and been hurt by it. There will on occasion be details that might be hard for some people to read, and a warning is usually posted at the beginning of the essay so that those who want to turn and not read may do so. The only way to teach and to let others learn what to avoid is to SHARE what happened with every detail necessary to make the point. Thank you.
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