 There is an introduction to the Geneva Conventions of 1949. All the major countries of the world and the Communist nations have signed these conventions and ratified them. As of the 1st of January, 1968, 124 nations have signed this convention. There are four commonly accepted abbreviations for these conventions, which become part of the Geneva Conventions of 1949. The first of the abbreviations is GWS, which stands for the Geneva Convention for the Humiliation of the Condition of the Wounded and Sick in Armed Forces in the Field. The second abbreviation, GWSC, is the Geneva Convention for the Humiliation of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea. These first two conventions detect those persons who are helpless, the medics, the chaplains, and the medical equipment. The fourth convention, GPW, is the Geneva Convention relative to the treatment of prisoners of war. As the name implies, this convention deals with prisoners of wars, rights, duties, and treatment. The fourth convention, GC, is the Geneva Convention relative to the protection of civilian persons in time of war. This convention protects civilians in occupied and controlled territories. These conventions are all found in Army publications. This would be extremely important that a person dealing with the conventions would have at his disposal the ability to read them. The last one, which has a complete copy of the conventions, is the Parliament of the Army PAM 27-1, Treaties Governing Land Warfare. This includes the four conventions in total. The United States has expanded upon the convention itself and has edited and put its comments upon these different conventions in Field Manual 27-10. This Field Manual is entitled The Law of Land Warfare. However, for a very detailed analysis of the convention, to go even farther, to do additional research, one would have to go to the commentaries which have been edited by Gene S. Pictay. Pictay has edited the commentaries in four volumes, one for each of the conventions. You have one as an example here in front of you. Pictay's commentaries are very complete works on the convention. They deal with the background, the history, and the debates, along with the committee reports. For an understanding of the convention, one would have to go to these different sources and possibly beyond. However, by using Pictay's commentaries, one will get a very good understanding of the terms of the convention, rather than what he would dig out from a literal translation or literal meaning of the text itself. The histories of the convention vary. There are really four different histories, basically, for the four conventions. However, we can say generally that as far as the history of the Geneva conventions are concerned, that it was a Swiss banker, Henry Dunin, in 1859, who witnessed the battle of Salforino. This was took place in Italy. Dunin cared for the wounded, the sick, and helped with the dying, and those that did die. After this battle, he wrote his book, A Memory of Salforino. He ended the book with two wishes. First, that each country, should in peacetime, set up a relief society which would aid the army's medical services in time of war. The second wish, which came at the end of his book, was that nations should ratify, by convention, a solemn principle which would give the necessary standing to such societies. The first of his wishes has come to fulfillment in the embodiment by the Red Cross. The second of his wishes has come in terms of the Geneva conventions. The first of which was in 1864, and chronologically, they continued in 1906, 1929, and finally the conventions that we're talking about today, the Geneva conventions of 1949. These alone do not represent the full background of today's Geneva convention. The convention of 1949 also takes for part of its background the Hague conventions of 1899 and 1907. In many cases, this convention only supplements those conventions. Also, many acts of states, unilateral, have been incorporated in this additional protection of these war victims. Conventions after all do protect the war victims and acts of states which have been in line with the protection of these people have come forward and been incorporated within these conventions. The bilateral acts of states, the treaties and declarations, have also come to fruition in the Geneva convention of 1949. Thus, the convention itself is not just the embodiment and improvement upon prior Geneva conventions, but rather it's a complete change and incorporation of prior conventions as they come forward in time, together with the acts of states, conventions and declarations of other periods in time. The Hague convention of 1907 is specifically and important because of the or rather dealing with the prisoners of war and civilian people. The design of the convention is such that you have common articles. That is, the same article is repeated in each of the four separate Geneva conventions. These common articles are the basis upon which the remainder of this film will be incorporated. The first of these articles that we're going to deal with is Article 2, of which we have a chart. Article 2 is the basis upon which the entirety of the Geneva convention comes into play. It says, the present convention shall apply to all cases of declared war or 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. One of the important things to concern ourselves with here is the fact that we do not need a state of declared war. Note, even if the state of war is not declared or not recognized by one of the parties, Article 2 incorporates or makes the convention come into play. The entire convention comes in in simple terms and what we would call an armed conflict of an international nature. Now, there's one other noteworthy portion of Article 2, which has not been covered on the chart. And it's very important to realize what this is. And that is that if a state is not bound by the convention, in other words, a party to a conflict is not a signatory to the convention. But in fact, this person does apply the convention in both principle and application. Then we will say that a signatory state must apply the convention to this non-signatory state. This is quite a step forward from prior conventions, which in the past, firstly, have only been applied when all the parties to the conflict have been signatory to the convention. And later, as in the 29th Geneva Convention, has only bound those states which are signatories. This of course can lead to many avoidances of the humanitarian principles of the convention by simply saying, well, we don't have to apply humanitarian principles to people whose states have not signed the convention. The concept in the 1949 Geneva Convention is such that even though an individual state has not signed the convention, prior to the conflict, when it comes to time of the conflict, we do not want to deprive this individual of basic humanitarian principles, treatment, and what we would consider present-day civilization. Therefore, this individual will be covered by the convention if his state, at the time of the conflict, does in fact apply the convention. As I stated before, this will avoid, more than likely, many of the past avoidances of humanitarian treatment to individuals. Now, this brief account of the Geneva Convention of 1949 does not take into account many of the other activities which we said and many of the other tricky developments. It is important to consider, however, one of the greatest steps forward. That is Article 3. Many people have felt in Article 3 that this is quite a divergence from international law. Article 3 deals with armed conflict, not of an international nature. We are now then getting to the position where international law will have its effects on the activities within a given state. As I say, this is very important and it's a new conflict and it rather deals in a new way with a conflict that was expected at the time of the 49 conventions following World War II. Now, Article 3 is really a convention in miniature. It does not call into operation the entirety of the convention, but rather just this one specific article. The part is to the conflict can, however, agree to incorporate additional parts of the conventions, but the article itself requires only that Article 3 will apply. The Article 3 provisions are very minimal. What do they provide? Humane treatment, no cruel treatment, no torture, no passings of sentences and executions without prior fair trials. Now, most civilized countries of the world will, in fact, apply these provisions, even without an Article 3 type provision, just because of their present stage of civilization. However, as I said, Article 3 does move this forward to make it now an international duty upon the participants to a local conflict. We'll have to study Article 3 in much more detail in a discussion of counterinsurgencies or internal defense, internal developments. This is where it becomes particularly important and should be considered not only in the application that we've discussed today, the basic principles, but should also be considered in its broad depth. Now, the last part of Article 3, however, for today's purposes is the fact that the application of Article 3 does not change the legal status of any of the parties to the conflict, and it does not grant any legal status to these people. This was necessary in order to get Article 3 into the four Geneva Conventions of 1949. If it was not for this type of provision, undoubtedly Article 3 would have fallen by the wayside. As I say, this is a new concept in international law and expands upon Article 2, which merely deals with the international armed conflict. Now, in Article 2, as we said before, we do not need a declared war. Plus, these different terms, such as police action or things of this nature, will still call into operation Article 2 by virtue of the fact that there is an armed conflict. A little bit farther on then, we'll have to come down to the rights of the individual. To start out with, we have our next chart, which deals with another provision, which is particularly noteworthy. Because it was not for this type of provision, the basics and the convention could in fact be circumvented. Protected persons, may in no circumstances renounce the rights secured to them. A provision of this type is extremely important. Without this, the detaining power could use protected persons in any manner. And by either conscious or subconscious methods, get them to say that these were voluntary waivers. These people become protected no matter which convention they come into, and they cannot waive their rights. Now, as a corollary to this provision, we have an additional provision which says that a state may not waive the rights of the individual. And this is by agreement. We've had them in the past. And the idea is that you cannot have a state adversely effected by agreements to the rights of the individual. Now, with modern day warfare, and the development of controlled territory and controlled government, such as Vichy France in World War II, a government could agree and adversely effect by agreement the rights of the persons who are dependent upon it and who are nationals of that state. In order to avoid this and to protect the people to the fullest extent possible, we have then both the propositions, one, that the individual may not waive his rights, and two, that the state which he is dependent upon cannot waive the rights for this individual. Now, the states can enter additional agreements. The provision only affects or prohibits directly entering into agreements which adversely affect the rights of the individual. Probably the single most important feature of the Geneva Conventions is the provision establishing the protecting power. The next chart indicates the basis for this provision. The present convention shall be applied with the cooperation and under the scrutiny of the protecting power whose duty it is to safeguard the interests of the parties to the conflict. This provision establishes a neutral country to act as a watchdog for the benefit of the protected person. A neutral power can best ensure the treatment that should be given to the protected persons because the country which they are dependent upon is already at the ultimate stage of international relations with the detaining power, i.e. a state of war. Thus, the importance of the protecting power cannot be overlooked. And of course, the fact that so many of the articles of the convention deal with the protecting power and the guarantees of the convention are scrutinized by the protecting power that the drafters of the convention gave quite a bit of weight to this type of provision. In the past, there have been many conflicts where a protecting power was not appointed to safeguard the protected person's interests. A provision was enacted to cover this situation in the future. As shown in our next chart, the high contracting parties may at any time agree to entrust to an organization which offers all the guarantees of impartiality and efficacy to duties incumbent on the protecting power by virtue of the present convention. In ratifying the convention, the USSR and certain other governments made specific reservation with respect to this article. This is extremely important because the United States has in many cases quarreled upon the International Committee of the Red Cross to take the place of the protecting power when the other side in a conflict has not in fact requested a protecting power. As I am certainly aware, the Geneva Conventions are extremely comprehensive. The present convention complements and does not replace the prior Hague conventions of 1899 and 1907 and the Geneva Convention of 1929 for those powers who are bound by the earlier convention. A very important point of the convention was the right for a state to denounce. On our next chart, we see that each of the high contracting parties shall be at liberty to denounce the present convention. The denunciation shall take effect one year after the notification. If a power involved in a conflict denounces, then the denunciation is effective after peace has been concluded and all protected persons released and repatriated. Now this is extremely important, the last provision, that the convention will apply and a person cannot denounce while the conflict itself is going on. Else otherwise, during the conflict, a state would denounce and say that a protected person would not be granted any of the benefits of the convention which his state has agreed to. Now it is inconceivable to me that a state would repudiate the elementary rules of humanity and civilization. But even if a state were to denounce, it would be bound to those principles which are a valid expression of customary international law. This film dealt only with the broad provisions of the Four Geneva Conventions of 1949. For the specific rights, duties, and treatments, in regard to any individual, you must go forward and see what protection is granted to this man within each of the separate conventions. You have to see which of the conventions apply and also not only when it applies by Article II, but dealing within each of the specific conventions to which individual will he fit. When you measure his treatment then, you can look beyond the literal meaning and the literal translation of the convention itself and go to such sources as Pictae's Commentaries. The important thing to remember is that most countries of the world have agreed by ratifying the Geneva Convention of 1949 to apply humanitarian principles to those peoples which are victims of war, to continue with our introduction to the Geneva Conventions of 1949. In the second part, I think we should start out by dealing not only with the conventions itself, but with some related matter. Let us start out first by reviewing what was in the first part. We covered an introduction to the Geneva Conventions, a brief summary of the history of the conventions, especially dealing with the first and second of the four conventions. And then we dealt with some of the common articles. One, the convention applies in Article II to an international armed conflict. And Article III to an armed conflict, not of an international nature, but there, note, we said that the whole convention doesn't apply, but rather only that one specific article, the convention in miniature, Article III. We dealt with the protected person's rights, the fact that he could not renounce them, he could not waive them, and nobody could waive them by agreements, such as his government. We dealt with the protecting powers, the fact that the convention applies under the scrutiny of these protecting powers. And finally we dealt with denunciation, which we stated is probably not a very important part for the simple reason that we hope this will not come to pass. We hope there will be no renunciations under this convention. In the related areas, however, I think it would be imperative that we have some concepts of the customary law of war. Centuries of warfare have developed certain conduct of hostilities. This unwritten law of dealing with the conduct of hostilities is what we term the customary law of war. But we say what are the purposes of this customary law of war? Well, first, it protects the combatant and the noncombatant from unnecessary suffering. Second, it safeguards certain fundamental rights. And third, it facilitates the restoration of peace. These are the conceptual background of principles and purposes, which lead to the development of the conduct of hostilities and the customary law of war. Now, certain law of war is based on the lessons of history. The United States and most nations of the world, in fact, consider this customary law of war binding. We have, however, additional conventions which deal with the conduct of hostilities besides the customary law of war. To start out with, we have the Hague Conventions of 1907. There are five of them. The most important one for the purposes of land warfare is the Fourth Convention and the annex to it. The annex to the Fourth Hague Convention of 1907 is commonly referred to as the Hague Regulations. The United States takes the position that this is, in fact, a restaping of the customary law of war. In fact, the Hague Conventions and the Geneva Conventions in large part actually codify the laws of war. That's, it's important to bear in mind that as far as the law of war is concerned, the Hague Conventions and the Geneva Conventions do not replace it, they supplement it. In parts, they codify it, where they do not, they are supplementary to it. In no way do they change that which is binding based on customary laws of war. Now, what is the responsibility of the individual US citizen? Citizen is bound by our US Constitution. The US Constitution in Article 6, Clause 2 makes all trees to which the United States is a party part of, and I quote, the supreme law of the land. Thus, when the United States is in fact bound by these treaties, actually the American citizen is bound based on our domestic law and does not even have to look at the effectiveness of international law on this individual per se. Thus we can see additional reasons also for studying the Geneva Conventions, the fact that it is binding on us as international law, that it's binding on us based on the US Constitution. As to you and me, the United States Army says that we must be lectured on the Geneva Conventions once a year. Normally this will call upon the Judge Advocate to make these lectures. The other important thing to consider is the fact that quite often, we as Judge Advocates are called upon to advise our commander. Our primary concern then is the fact that he will be asking for advice in his conduct of hostilities. He too is bound the same way we are by the US Constitution and international law to apply the Geneva Conventions of 1949. As we said, the United States and more than 120 other countries are signatory to these conventions. They will in fact be applicable in almost any situation of armed conflict in the future that the US will be involved with. Thus, it is imperative upon us to be familiar with it and be able to advise our commander so that he may in fact follow the laws of war and the binding Geneva Conventions and in fact not violate the laws of war. Now, there is one thing which is very important to consider in this light, and that is, well, what if the other side does not in fact follow these Geneva Conventions? What will have, what will be the effect on the commander? What will be the effect on me as an individual to comply with the conventions? If the other side violates it, may I violate it? May you violate it? These are the questions which we ask ourselves. The convention in no place sets forth any provision which allows an individual denunciation. Or in any way, does there permit a non-offending party to comply or not comply rather with the terms of the convention? Does even when we have violators on the other side, we remain bound. The violator is subject to punishment not only on the terms of the convention itself, but based on his domestic law. A breach of the laws of war are punishable as war crimes. Thus, we have another method of enforcing the conventions and the violator is punished either by any way of the three sources. This is very important to keep in mind because there will be no easy out for yourself or your commanders. Now, what's the practical purpose of going into these details on this point? Well, it's important that the troops learn that the treatment that will be given to the prisoners of war so that when the enemy surrenders, you can look forward to adequate protection and adequate treatment. If, in fact, we took drastic actions against prisoners of war or against protected persons under any one of the other conventions, the enemy soldier will not be very ready, well, let's put it like this. The enemy soldier will not very readily surrender if he feels that he'll be in a worse state. He will fight to the death. Thus, in fact, by granting proper treatment to these protected persons, what we in fact do is encourage their surrendering. This is beneficial to the total cause of the United States. Makes our fighting the war a little bit easier. So we say, why have we bound ourselves to apply the convention? And the answer is very simple. It is in our self-interest. Number one, it probably will make the conflict that much easier. Number two, when the conflict is over, it is that much easier to have a restoration of peace. And number three, and probably most importantly, we are quite concerned about getting the same treatment for our people. Just when our people become prisoners of war, we don't throw up our hands and say, we have nothing further to consider about this man. We look for the day when he will be repatriated and return and be granted the full status of citizenship in the United States. Now, to show some of the problems within each of the, let's just use three of the conventions, the wounded and sick, or the Geneva Convention for the amelioration of the wounded and sick, of the armed forces in the field, the Geneva Prisoner of War Convention, and the Geneva Civilian Convention. We'll take problem areas out of each of these three by way of an introduction so that you become somewhat familiar with them so that you can realize that we have to look quite often beyond the literal meanings of the terms. See that although the conventions are quite comprehensive, they are not all-encompassing. They leave many problems to be solved. They leave many issues open. In the wounded and sick convention, most critics feel that the largest area of incompleteness is that dealing with medical aircraft. The feeling being that the change from the 29 convention to the 49 convention did not develop sufficiently the law in this area. Aircraft has improved considerably. And yet, we are still left with terms as they were under the 29 convention. We look only to aircraft flying at designated heights, at designated times, at designated routes. What does this do to our medivacs, the desktop helicopters? Where the helicopter is used to transport a wounded individual from the field to the hospital, to a field hospital, to a rare area. Should we not allow this vehicle protection in the same way that we allow a land vehicle and ambulance protection? On a land vehicle, when it has the protective markings, the convention says that this is protected and is not subject to attack. In fact, the helicopter can quite readily be distinguished from an armed helicopter, from that of a medical helicopter by the use of the markings, which are visible on land. The question then becomes, are we more concerned with the following of the convention, thinking that all helicopters with the protective markings are in fact medical transportation? Or are we more concerned, on the other hand, with these medical helicopters with the protective markings in fact carrying out military missions? Well, we can see this is the dilemma in the area. We can also see that the 1949 convention does really nothing to spell out specifically the treatment of these helicopters. What would you say the law in regard to the helicopters is? Should we analogize their treatment to that of the land transport? Of course, they can be seen. Or should we say that literally they are within the terms of Article 36 of the Wounded and Sick Convention? They are air transport. Since we cannot check them while they're flying in the air, therefore, they must fly by designated routes at designated times. And are subject to landing upon the request of the enemy. This is the dilemma of the helicopter. What about the situation where the commander calls you in and says, in a battlefield area, we have found many hastily dug graves. These graves are unmarked. Can we open them? Would it be legal for me to give an order to my troops to open and check these graves? If we look at the literal terms of the convention, we see that graves must be respected. If we look to Piquetet's commentaries, and we look at what he says under the terminology for respect, we see that the grave should not be opened as the dead are entitled to protection, not only during their life, but after death. These graves should be respected. But we stop to think about this for one moment. We say, the hastily dug graves that have been opened, what have we found in them? Have we found enemy dead? Have they been properly marked? And in some cases the answer will be no, we found ammunition. We might have found US casualties who have been bound, shot, or murdered. This in fact, would be a covering up of a war crime. Can we say then that we should not open these graves, that we should respect these graves? This is the dilemma, what will we do? This dilemma I don't think is as quite as complex as the one about the medical helicopter. Why? Because notice that we said there is a duty to mark the grave. Based on that duty, we'll say, we have the affirmative obligation to open up the grave, to examine the individual, to identify him, and to send notice through our death notification services about who the individual is, close up the grave. So actually then, in fact, we could probably open up these graves. Either with the purpose of actually identifying the body, or if we find in fact, that really this is nothing more than a ruse and a stratagem on the other side, and they really aren't graves in the first place. They're only to be appearance of graves. But the dilemma remains, if in fact we are finding some of these to be graves, are we in fact respecting the dead? Well, we can go on. And maybe we should. We'll take one more example out of the wounded and sick convention. Repatriation of medical personnel. The wounded and sick convention require that medical personnel should be repatriated during hostilities, as soon as the military necessities allow. The question and the dilemma involved here is, is that provision realistic? Are we in fact going to free medical personnel on the other side when they're no longer needed? Or will we retain them, either as retained personnel, and treat them equivalent to a prisoner of war? Or in fact, will we repatriate them? Will the other side repatriate them? Again, this is the dilemma that the realities of war put upon a humanitarian provision of a convention. In fact, during World War II, under the 29 convention with a similar provision, there was some repatriation. Well, we can see right away that we would have to go much further in studying each of these conventions. We've laid out only three of the milli-ed problems within the wounded and sick convention. Let's take the prisoner of war convention. What are some of the problems in this area? Well, a good example might be one, the man of the Korean War, Article 118 of the prisoner of war convention requires repatriation at the close of hostilities. Article 7, as we stated in the early part of this lecture, does not allow an individual to renounce his rights. Well, if we look at Article 118 as a right, and we look at Article 7 and say, this man must be repatriated, then we come to the conclusion that Article 7 says the man must be repatriated and he has no option because Article 118 says he will be repatriated. This, in fact, was the argument used at the end of the Korean War, the theory being, or the theory rather entitled by most, forced repatriation. Many people take the view that this is a derogation of the humanitarian aspects of the convention and liberty itself, and the man should be allowed a freedom of choice. Considering on top of that, what about the customary international law? The right of asylum, a state can grant asylum to a prisoner of war, following the conflict for political reasons. Well, these are the many things which are ingrained on top of just this one Article 118 of the convention taken together with Article 7. In fact, the U.S. view at that time was that there should be voluntary repatriation. The UN has gone along and the General Assembly has passed a resolution that no man should be forced either to be repatriated to his homeland or remain. Thus, we must look under the conditions set forth on repatriation to whether or not, in fact, we have set up a bona fide choice, which is a good point of where the protecting power can come in. The protecting power can supervise this type of operation. It can protect the individual and the enemy to make sure that he is given this freedom of choice. Well then, let's consider one other within prisons of war, food, just to show what some of the problems are. In fact, the 1949 convention has rectified a problem of earlier conventions. In the 29 convention, the articles dealing with food assimilated the treatment given to prisoners of war with those of the detaining power. Thus, the troops of the detaining power, their food is the same food that is fed to the prisoners of war. Well, what were the problems created here? In the Far East, many Americans did not do well on a diet of fish head and rice. Therefore, we see a change in the 49 convention, which in dealing with food, we do not assimilate anymore and say, let's look to the provisions and the food given to the detaining power, but rather we say, let's look to the state of health of the individual, to his nutritional deficiencies, to his loss of weight, give him the quality and the kind of food that he'd be used to. Well, we can go on about the prison of war convention, to such thing as, when does it apply? Does it apply on the battlefield? We can say, what are the problems in a joint command, such as the UN or a NATO command, is an enemy captured individual, a prisoner of war of the man who made the original capture itself, or in fact, is the man of prisoner of war of the country to which the man belongs? Well, as I said, we'd like to deal with problems in each of the three conventions. So let's very shortly and briefly deal with a problem within the civilian convention. This is a problem that says that protected persons may leave a country unless it's contrary to the national interest of the state. This is within article 35 of the civilian convention. And article 48 says the exact same thing for those people in occupied territories. Well, I would say this creates the problem of what about an individual of fighting age? He's a member of the enemy. Should we allow this man to leave our country, to go back to the enemy, and in fact, join his fighting forces? That's just one problem that we would have to deal with. A second problem. Penal laws of an occupied zone are not to be remain for us, except where there's a threat to the occupying power security. Well, what if in an occupied zone, they set up certain of their economic laws as penal laws? They give penal sanction to an economic law. Is this a threat to our security, the fact that a man could not be a capitalist within a socialist system? These are some of the myriad problems that come up within each of the three conventions. Briefly, I just highlighted a few to give you some idea of an introduction to go into these conventions. Their completeness, their depth, and the fact that we have to go beyond the literal wording of a specific provision, and in fact, look to such things as the working papers, the commentaries, the history, where the provision came from, et cetera. We must always bear in mind, however, that these conventions are binding on us as citizens of the United States, and they have the full force of a domestic law. We should also bear in mind the fact that a breach of these conventions is a violation of the laws of war, and therefore a war crime. If we do our best to follow these conventions, to learn them, to know them, study them, we will not have this problem of a breach. And if we maintain a strong humanitarian conviction, again, we will have no difficulty whatsoever in complying with the terms of the conventions.