A Brief Outline of International

Humanitarian Law
by Stanislaw E. Nahlik

CONTENTS
Page
I. Introduction: Comments on terminology 188
II. A Historical Review:
1. Precursors to humanitarian law 189
2. Origins of the Red Cross 190
3. Red Cross Principles 191
III. The Development of humanitarian Law 192
IV. The Law of Geneva and the Law of The Hague 194
V. Some Facts and Figures on the Law of Geneva 197
VI. The General Scope of the Law of Geneva 197
VII. Persons Protected:
1. Wounded, sick, shipwrecked 199
2. Combatants—prisoners of war 200
3. Mercenaries 203
4. Civilians and civilian population 203
5. Medical and religious personnel 205
6. Staff of voluntary aid societies 206
7. Some extensions 206
8. Missing and dead persons 208
VIII. Objects protected:
1. Objects serving a medical purpose 208
2. Civilian objects not used for medical purposes 209
3. Neutral or demilitarized zones 211
IX. Distinctive sign 212

187
 X. What is protection ? 213
1. Injunctions and prohibitions 214
2. Prohibition of reprisals 216
3. Escape clauses 216
4. "Safety valve" 217
XI. Execution:
1. By the parties themselves 218
2. Protecting Powers 218
3. Red Cross bodies 219
XII. Sanctions:
1. States 220
2. Individuals 220
XIII. Non-international armed conflicts 222
XIV. Final remarks 225

I. Introduction: Comments on terminology

The term "humanitarian law" applies to those rules of international

law which aim to protect persons suffering from the evils of armed con-
flicts as well as, by extension, objects not directly serving military pur-
poses.
There is therefore an essential difference between humanitarian law
and "human rights", for the latter do not apply only in time of armed
conflict.
Note the use of "armed conflict" rather than "war". The centuries-
old term "war" is still in everyday use but has tended to disappear from
legal language over the past decades, for "war" has gradually been out-
lawed, even though resort to force, be it called "war" or not, continues
to exist. Thus, it is at present more correct to use the term "armed con-
flict", as its very vagueness may be considered an advantage. Recently
coined \ it covers any occurrence, whatever its legal character, where
two or more parties oppose each other in arms. However, it will be appro-
priate, indeed necessary, to use at times one or the other term.
The term "war", in Latin bellum, has been used in the traditional
language of international law in two contexts : jus ad bellum when refer-
ring to the right to start a war, and jus in bello with reference to all the
rules binding on the belligerent parties during a war already in course.
Humanitarian law is an important, the most important perhaps, part
of the latter.
1
The term was first used in the Convention for the Protection of Cultural Property
in the Event of Armed Conflict, The Hague, May 14, 1954 (text: United Nations,
Treaty Series, vol. 249, pp. 216 ff).

188
 13. A Historical Review

1. Precursors of humanitarian law

It has been said that war is the well from which the science of the
law of nations was drawn. In fact, it was not until the seventeenth century
that a treatise on the law of war and the law of peace, i.e. on international
law as a whole, was first published.2
Monographs devoted to the law of war, however, started to appear
as early as the fourteenth century 3, and chapters or at least paragraphs
discussing certain aspects of this subject can be found much earlier,
mostly in theological works.4 In the Middle Ages, however, authors
limited their discussions almost exclusively to jus ad bellum, pondering
over the circumstances under which a war could be considered "just".
Apart from the odd thought spared for sacred, i.e. ecclesiastical persons
and objects, they rarely considered the possibility of limiting a belliger-
ent's freedom of action in a war that had already broken out. Not until
the Renaissance did the plight of those affected by the ills of war give
rise to concern B and the true champions of what would later come to be
called humanitarian law did not appear until the Age of Enlightenment.
They formulated a fundamentally humanitarian doctrine according to
which war should be limited to combat between soldiers, without posing
a threat either to the civilian population or non-military objects. The
prime movers of this concept were Jean-Jacques Rousseau (in a note-
worthy chapter of his Social Contract)8 and Emeric de Vattel (who dis-
cussed specific problems concerning the law of war in his Law of Nations).7
Rousseau and Vattel were both born in cities, Geneva and Neuchatel,

2
H. Grotius (de Groot): Dejure belli ac pads libri tres, 1st ed., Paris, 1625.
s
Bartolo de Sassoferrato: Tractatus represaliarum, 1354; Giovanni de Legnano:
De bello, de represaliis et de duello, 1360.
4
The most important of which include: St Augustin: De civitate Dei, Book XXII,
chap. 6; St. Isidore of Seville: Etymologiarum vel originum libri viginti, Book II,
chap. 1, and Book XVIII, chap. 1; St. Thomas of Aquino: Summa totius theologiae,
Secunda Secundae, Quaestio XL; etc.
5
First and foremost in the mind of the Spanish Dominican, Francisco de Vitoria:
De Indis noviter repertis et De Indis sive Dejure belli Hispanorum in barbaros (in Relec-
tiones theologicae, read in 1532, published 1557), in Classics of International Law,
Washington, 1917, esp. pp. 279 et seq.
'J.-J. Rousseau: Du control social, 1st ed. 1762, Book 1, ch. 4 (translated into
English: The Social Contract).
7
E. de Vattel: Le droit des gens; ou Principes de la hi naturelle, appliques d la
conduite et aux affaires des nations et des souverains, 1st ed. 1758, Book III, ch. VIII,
para. 140, 145-147 and 158 (translated into English: The Law of Nations; or, Prin-
ciples of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns).

189
that were shortly to enter the Swiss Confederation and become a part of
French-speaking Switzerland. It was here, especially in Geneva, that
humanitarian law was developed and it was from this area that know-
ledge and influence of this law spread to all the countries of the world,
whence its frequently used name: the Law of Geneva.

2. Origins of the Red Cross

The initiative came from a citizen of Geneva, Henry Dunant. In
June 1859, Dunant visited the plain of Solferino, in Lombardy, where
French and Sardinian troops had just won a victory over the Austrians.
Dunant was so horrified by the sight of the uncountable wounded soldiers
abandoned on the battlefield that he was moved to devote the better part
of his life tofindingthe ways and means — both in law and in practice —
to improve the plight of victims of war. His book, A Memory of Solferino,
which appeared in 1862, profoundly touched public opinion in Switzer-
land and in many other countries. At the instigation of the International
Standing Committee for Aid to Wounded Soldiers, known as the "Com-
mittee of Five" and founded in Geneva with General Dufour as chair-
man — succeeded shortly thereafter by Gustave Moynier — and Dunant
as secretary, the Swiss Government decided to convene, also in Geneva,
a diplomatic conference which resulted in the signing, on 22 August 1864,
of the Convention for the Amelioration of the Condition of the Wounded
in Armies in the Field.
To emphasize the Swiss origins of the movement, the decision was
soon taken to adopt, as the distinctive sign of the protection granted to
wounded soldiers, the inversed colours of the Swissflag(a white cross on
a red ground), that is to say, a red cross on a white ground.8 In 1880,
the Committee of Five became the International Committee of the Red
Cross (ICRC), a name it has kept to this day. One by one, numerous
National Societies were created and they adopted the same emblem. At
the request of certain Islamic countries, the red crescent was also admit-
ted. The red lion and sun was used for a time by Iran, but was abandoned
(in 1980) in favour of the red crescent.
In view of the increasing number of National Societies, the League
of Red Cross Societies was founded in Paris in 1919; it transferred its
headquarters to Geneva in 1939. The League is an international non-
governmental organization in the literal sense, whereas the ICRC,
although it has international competence, is a Swiss legal entity and
only Swiss citizens can become members.
8
On this subject, see below, ch. IX.

190
 The exclusively Swiss character of the ICRC has at times been criti-
cized. It is, however, this very characteristic that guarantees its complete
neutrality and allows it to act without delay in time of armed conflict or
disturbances. If its composition were "international" in the usual sense
of the word, there would be several difficulties to overcome. First a sys-
tem would have to be devised to distribute seats on the Committee
among different countries or regions. Second, the decision to assist one
or the other country could often be taken only after long and tiresome
discussions reflecting ideological differences between members of the inter-
national community ; all action would be delayed and more difficult for
the parties to a conflict to accept.
Within the Red Cross movement as a whole, each country and each
region has many opportunities to make itself heard. On the national
level, each Society, in accordance with the Statutes of the International
Red Cross, is completely autonomous. On the international level, every
National Society participates in the League's decisions, mainly to co-
ordinate humanitarian action in case of natural disaster. International
Red Cross Conferences, which are held every four years and are attended
not only by the ICRC, the League and the National Societies, but also
by the governments signatories to the Geneva Conventions, are a
further occasion on which these different national and international
components can express their views on all of the problems confronting
the movement.

3. Red Cross Principles

In this context, what are the fundamental principles observed by the

International Committee or by any other Red Cross body when carry-
ing out its activities ?
These principles, which have been reiterated on numerous occasions 9
but which have not undergone any fundamental change since Henry
Dunant published his moving account of the scene on the battlefield at
Solferino, and since the Committee of Five induced the Swiss Federal
Government to convene the First Geneva Conference, are as follows:
humanity, impartiality, neutrality, independence, voluntary service,
unity, universality. The four latter principles indicate the lines on which

8
For their present-day version, formally adopted at the Twentieth International
Red Cross Conference, Vienna, October 1965, see J. Pictet: The Principles of Inter-
national Humanitarian Law, ICRC, Geneva, 1967, which classifies them somewhat
differently from the present writer.

191
the Red Cross is organized. It is a social institution in the full sense of
the term : it remains independent of any State power ; it seeks no profit ;
there is only one Society in each country; it is a world-wide movement;
when they meet, the representatives of each country are guaranteed
complete equality of rights. The first three principles are the basis of
every Red Cross action. The Red Cross is in no way interested in know-
ing which party to a conflict is right and which is wrong, or even which
is the aggressor and which the victim of aggression.10 It leaves it to bodies
such as the United Nations Security Council or General Assembly
to debate these issues which are often exceedingly difficult to resolve.
At all times, the Red Cross sees only the man who is suffering and in
need, sometimes desperately, of disinterested assistance.

ID. The Development of Humanitarian Law

The ICRC feels that besides organizing protection and assistance

activities in time of armed conflict, one of its tasks is to see that humani-
tarian law is developed and above all adapted to modern-day reality.
The very brief 1864 Convention was therefore merely the first step
in a long historical process which has witnessed several major advances
in the field of humanitarian law :
1906 — (new) Geneva Convention for the Amelioration of the Con-
dition of the Wounded and Sick in Armies in the Field;
1907 — The (tenth) Hague Convention for the Adaptation to Maritime
Warfare of the Principles of the Geneva Convention;11
1929 — two Geneva Conventions: one covering the same ground (and
with the same name) as the Convention of 1864 and 1906;
the other relative to the Treatment of Prisoners of War;1*

10
This question was raised by some jurists after the Second World War. A categ-
orical answer was given—along the lines of the above—by the former ICRC President,
Max Huber, in "Quelques considerations sur une revision eventuelle des Conventions
de La Haye relatives a la guerre", Revue Internationale de la Croix-Rouge, July 1955,
p. 433 ff.
11
This was a revised version of a similar Convention of the same name adopted
at the first Hague Conference in 1899.
u
According to its Article 89, this Convention was complementary to Chapter 2
of the Regulations annexed to the second 1899 Convention and to the fourth Conven-
tion of 1907; in practice, it replaced them.

192
1949 — four Geneva Conventions relative to the protection of victims
of war: the First and Third Conventions are revised versions
of the Conventions of 1929; the Second is a revision of the
Tenth Hague Convention of 1907; the Fourth breaks fresh
ground and deals with the protection of civilian persons in
time of war;
1977 — two Protocols additional to the Geneva Conventions of 1949,
the first relative to the protection of victims of international
armed conflicts,13 the second of non-international armed con-
flicts.

From the legal point of view, the 1977 Protocols are quite different
from the previous treaties, each one of which, in principle, replaced a
similar treaty relative to the same subject-matter. Thus, the Convention
of 1906 replaced that of 1864, the first Convention of 1929 replaced that
of 1906, the first and third Conventions of 1949 replaced the first and
second Conventions of 1929 and the second Convention of 1949 replaced
the tenth Hague Convention of 1907. On the other hand, the 1977 Pro-
tocols (or in any case, Protocol I applicable in international armed con-
flicts), far from replacing the 1949 Conventions, had in principle but one
purpose: to clarify and supplement them. This explains why they are
modestly called the Additional Protocols. Let us say right out that the
participants in the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed
Conflicts (DCHL), once they had gathered in Geneva, in certain cases
went beyond the limits of the ICRC's draft Protocols. It was for this
reason, incidentally, that the Conference, which was to have met only
once, actually convened four times (in 1974, 1975, 1976 and 1977).
Most of the Conventions that codify the law of war have been adop-
ted by almost all the countries in the world.
At the outset, application could have been limited by the si omnes
clause, stipulating that the Convention applied only if all the belligerents
were parties to it. However, already during the First World War this
clause was not observed, and it came to be considered obsolete. The law-
yers of several defendants accused of major war crimes at Nuremberg
invoked it in vain. The International Military Tribunal stated in its judge-
ment that the rules contained in the Convention of The Hague and

13
Note that the traditional term "war", which had still been used in the Conven-
tions of 1949, has been replaced by the term "armed conflict" (see above, in our
Introduction).

193
Geneva had become so implanted in the public conscience that they
should be considered a part of general international law binding all
countries, whether or not formally parties to them.14 Let us also not
forget that, at its first session, the UN General Assembly unanimously
recognized what is known as the Law of Nuremberg as a branch of gen-
eral international law.16
The Nuremberg Tribunal's opinion on the application of the pre-
World War II Conventions could also hold true for the Conventions of
1949, since almost all the countries in the world are now bound by
them. 16
It would be premature at present to opine on the extent to which
the 1977 Protocols will be formally accepted. We underline the word
"formally", because a large number of the provisions of these Protocols
were adopted unanimously; many others were adopted by a considerable
majority; thus, we feel that they can be considered as reflecting the opi-
nion held by the plenipotentiary representatives of the overwhelming
majority of the countries forming the international community today.
Consequently, even if the documents of ratification or accession are not
as yet numerous,17 the legal authority of the Protocols, not to mention
their undeniable moral and political authority, cannot be ignored. A
significant example in this regard is the Declaration concerning the Laws
of Naval Warfare which was drafted in London in 1909 and never rati-
fied, but was in fact observed by the belligerents in the First World War.
We shall therefore analyse in the following pages the provisions of
the Protocols by comparing them to those of preceding treaties, con-
sidering that they constitute a ne sv stage in the historical development
of humanitarian law.

IV. The Law of Geneva and the Law of The Hague

With the progressive codification of the law of war, it became appar-
ent that the rules of that law should be divided into two categories: the
Law of Geneva and the Law of The Hague. One well-known author, in

14
See International Military Tribunal, Trial of the Major War Criminals, Nurem-
berg, 14 November 1945 — 1 October 1946, Nuremberg 1947, vol. 1, pp. 253-254.
See also M. Merle: Le proces de Nuremberg et le chdtiment des criminals de guerre,
Paris, 1949, p. 118.
15
See Resolution 95 (I) adopted on 11 December 1946.
16
By 1 January 1984, 155 States were Parties to the 1949 Conventions.
17
By 1 January 1984, 38 States were Parties to Protocol I and 31 to Protocol II.

194
an attempt to explain the difference between the two, wrote that the
Geneva Conventions concern the protection of the individual against the
abuse of force, while The Hague Conventions constitute interstate rules
on its actual employment.18 According to this definition, the Law of
Geneva has a precisely-defined subject area while the Law of The Hague
covers all the other problems of the law of war.
In any case, this rather artificial delimitation between the two bran-
ches is slowly disappearing. Already during The Hague Conferences
referred to by the author of the above lines, the intention was to codify
the law of war as a whole. The Regulations annexed to the Convention 19
concerning the Laws and Customs of War on Land include a chapter
called "The Sick and Wounded", which, in its only article (number 21)
states that "The obligations of belligerents with regard to the sick and
wounded are governed by the Geneva Convention". In the light of the
fact that, during these two conferences, a special convention on the
adaptation of the principles of the Geneva Convention to the specific
conditions of maritime warfare was also adopted 20, it becomes clear
that the delegates' intention on both occasions was to incorporate the
Law of Geneva into the Law of The Hague so that the latter would con-
stitute a complete system of the laws of war. This tendency would prob-
ably have been even more marked during the Third Hague Conference,
planned for 1915 but never convened because of the outbreak of World
War I.
It was not until after that war ended that the difference between the
Law of Geneva and the Law of The Hague became really clearer. Those
who would have been called upon to continue the work started in The
Hague before the war did not continue this task, on the grounds that it
would be absurd to regulate that which one sought to totally abolish.
Let us not forget in this regard that in any codification pre-dating
the First World War, warfare as such was considered lawful: the law of
war was therefore a perfectly valid counterpart to the law of peace; they
were the two traditional branches of the law of nations as a whole. Only
one specific type of war, that undertaken to recover contract debts, was
outlawed at the Second Hague Conference 21.

18
H. Coursier: Course of Five Lessons on the Geneva Conventions, Geneva, 1963,
p. 5 (italics in Coursier's text).
19
Convention No. II at the First and No. IV at the Second Hague Conference.
20
In 1899 the Third, in 1907 the Tenth Convention were adopted.
21
The second Convention, adopted in 1907; it was called the "Porter Convention"
after the American diplomat who was the main inspiring force behind it.

195
 However, following World War I, first the League of Nations Con-
venant, then the Pact of Paris, called the Briand-Kellogg Pact, tended to
abolish recourse to war. The United Nations Charter confirmed this
trend by abolishing any recourse to force or any threat to employ force
in international relations.22
From that time on, it was often held that since war had been abol-
ished, issuing regulations to be observed in time of war would place
strains on public confidence in the efficiency of the League of Nations
and of the United Nations, both charged with maintaining peace. This
to a large extent explains the limited development of the Law of The
Hague during the interwar years.23 A similar argument was used by the
International Law Commission of the United Nations when it drew up
its long-term programme in 1949 and refused to include in it the law of
war.21
The ICRC was more pragmatic: it realized that armed conflicts,
whatever their nature or denomination, took place in spite of all efforts
to outlaw them, and that, furthermore, even the UN Charter admitted
recourse to force in certain situations (for example, acting to maintain
or restore peace by virtue of a Security Council decision, in self-defence,
or on the basis of the principle of self-determination of peoples, which
several General Assembly resolutions have interpreted as justifying
recourse to force.25
On all such occasions, there are always people who suffer, and it is
those persons' plight that is of particular concern to the ICRC; indeed,
it is for them that international humanitarian law—the law which applies
no matter what the causes of the conflict—is of paramount importance.

22
See the League of Nations Covenant, Art. 12, para. 1; 13, para. 4 ; 15, para. 6-7;
Pact to renounce war, signed in Paris o n 27 August 1928, Art, 1-2; United Nations
Charter, Art. 2 , para. 3-4.
23
The only instruments of some importance in this field were: The Protocol of
Geneva of 17 June 1925 for the prohibition of the use in war of asphyxiating, poison-
ous or other gases, and of bacteriological methods of warfare; and the Proces-verbal
relative to the rules of submarine warfare, signed in London on 22 April 1930. Draft
regulations relative to aerial warfare, drawn up by a commission of experts in The
Hague in 1923, were never adopted.
24
Report of the International Law Commission to the United Nations General
Assembly, included in the Yearbook of the International Law Commission, 1949,
para. 18.
25
Among the many resolutions based on Art. 1, para. 2 of the Charter, the most
important is Resolution No 2625 (XXV), adopted on 24 October 1970 and containing
a declaration on international law principles. The fifth of these principles refers to
equal rights and self-determination of peoples.

196
 V. Some Facts and Figures on the Law of Geneva
The Law of Geneva, far from fading into oblivion, is undergoing
constant development. Every armed conflict of consequence brings to
light new problems, and as a rule provokes reflexion which leads to an
attempt to develop and perfect the rules drawn up to ease human suf-
fering.
Thus, every new set of provisions drawn up is an advance over the
previous one, at least in the number of rules. The first Geneva Conven-
tion, of 1864, had 10 articles; the 1906 Convention (and its corollary,
the Tenth Hague Convention of 1907) had 56 articles; the two 1929
Geneva Convention contained 136 articles between them; the four 1949
Geneva Conventions had 429 articles, to which must be added the
128 articles of the 1977 Additional Protocols, which, as their name
implies, do not replace but supplement the 1949 Conventions.
Note that these figures, impressive though they may be, do not
include the various and at times voluminous annexes.
However, the development of the Law of Geneva is impressive above
all for its content. We shall try to look at the most signal successes,
from the point of view first of its general scope of application, then of
the categories of persons and things it protects.

VI. The General Scope of the Law of Geneva

The general participation clause (clause si omnes) was so generally
accepted before the First World War that not only was it included in all
The Hague Conventions,26 but also in the 1906 Geneva Convention,
Article 24 of which states that the provisions of the Conventions shall
be binding on the Contracting Parties only in case of hostilities between
two or more of them and that those provisions shall cease to be binding
if one of the belligerent Powers is not a signatory to the Convention.
The two 1929 Conventions did not contain such a clause. The 1949
Conventions specifically reject it in the articles common to all four,
which state in particular that the Conventions shall be respected "in all
circumstances";27 they continue in even more explicit terms, stating that

26
Concerning the Conventions on the adaptation of the principles of the Geneva
Convention to maritime warfare, see: Third 1899 Convention, Art. 11, and Tenth
1907 Convention, Art. 18.
27
Article 1, common to all four 1949 Conventions.

197
the Conventions shall apply "to all cases of declared war or any other
armed conflict which may arise between two or more of the High Con-
tracting Parties..." 2 8 Last but not least they stress the following:
"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. They shall furthermore be bound by the Convention
in relation to the said Power, if the latter accepts and applies the provi-
sions thereof".29
In accordance with the traditional principles of international law
concerning the subject thereof, application of the Conventions was
limited to relations between "Contracting Parties", i.e. between sover-
eign States. However, Article 3 common to all four Conventions rep-
resents the first step towards extending the scope of humanitarian law
beyond those traditional limits, stipulating that "In case of armed con-
flict not of an international character occurring in the territory of one
of the High Contracting Parties, each Party to the conflict shall be bound
to apply, as a minimum, the following provisions...."; there follows a
sort of catalogue of rules to guarantee to the victims of any conflict of
this type at least a minimum of protection.30
The Diplomatic Conference at which the two 1977 Protocols were
adopted took this process a step further. According to the drafts drawn
up by the ICRC after extensive preparation, Protocol I was to apply to
international conflicts in the classic sense of the term, meaning conflicts
involving only States, while all other conflicts were to be governed by
Protocol II. 31 However, already at the first of the DCHL, in 1974, after
long and bitter debate, struggles for national independence, classified in
the ICRC's drafts as non-international conflicts, were transferred to
Protocol I. The relevant provision states that the scope of the Protocol
and therefore, for the parties to it, of the 1949 Conventions, is extended
to include: "armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the exercise
of their right of self-determination, as enshrined in the Charter of the
United Nations and the Declaration of Principles of International Law

28
Article 2, para. 1.
29
Article 2, para. 3.
30
Art. 3, first sentence. For the rules in question, see below, Chapter XIII.
(Author's italics).
al
See Art. 1 of Protocol I and Art. 1 of Protocol II in the text of the Draft ad-
ditional Protocols to the Geneva Conventions of 12 August 1949, ICRC, Geneva, June
1973, pp. 3 and 33 respectively.

198
concerning Friendly Relations and Co-operation among States in accord-
ance with the Charter of the United Nations".32
As a result of this extension of the scope of Protocol I, the scope of
Protocol II was contracted. The relative provision reads as follows:
"This Protocol.... shall apply to all armed conflicts which are not
covered by Article I of the Additional Protocol.... relating to the Protec-
tion of Victims of International Armed Conflicts (Protocol I) and which
take place in the territory of a High Contracting Party between its armed
forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its terri-
tory as to enable them to carry out sustained and concerted military oper-
ations and to implement this Protocol" 33
It is thus evident to what extent the scope of humanitarian law was
gradually enlarged, a process which could even, incidentally, be inter-
preted as modifying the traditional concept of subjects of international
law by granting international legal personality, albeit in a limited sense,
to certain entities other than States.

VII. Persons Protected

1. Wounded, sick, shipwrecked

The first Geneva Convention, that of 1864, was in truth only meant
to protect wounded soldiers during a war on land—it was, after all, the
sight of the thousands of wounded scattered on the battlefield that had
so moved Henry Dunant. Although the sick also were mentioned in
Articles 1 and 6 of that Convention, the subject was not developed in
any detail until the Convention of 1906. While the 1864 Convention
spoke in a general way about "combatants",34 that of 1906 was more
precise, speaking about "military combatants, and other persons of-
ficially attached to the armed forces".35 Article 1 of the first 1929 Con-
vention was worded along the same lines.38

82
Protocol I, Art. 1, para. 4.
33
Protocol II, Art. 1, para. 1.
34
1864 Convention, Art. 6, para. 1.
35
1906 Convention, Art. 1, para. 1.
36
First 1929 Convention, Art. 1, para. 1.

199
 In 1899 and 1907 in The Hague, when efforts were made to adapt the
principles established in Geneva to the particular conditions of maritime
warfare, a third category, shipwrecked persons, was added to those,
wounded and sick, to be protected.37 The Tenth Convention of 1907,
however, was above all concerned with "sailors and soldiers on board,
when sick or wounded, as well as other persons officially attached to
fleets or armies", mentioning the "shipwrecked" rather en passant.3*
Whether a person belonged to one of the protected groups was at
times subject to doubt, especially during the Second World War; for
this reason, an effort was made after the hostilities to draw up more
precise rules. In the case of shipwrecked, it was stressed that "the term
"shipwreck" means shipwreck from any cause and includes forced
landings at sea by or from aircraft".39
In principle, the shipwrecked, wounded and sick must, in order to
benefit from the protection accorded them under the 1949 Conventions,
be "members of the armed forces of a Party to the conflict", or "mem-
bers of militias or volunteer corps forming part of such armed forces".40

2. Combatants—Prisoners of War
However, an exact definition of membership in the "armed forces"
gave rise to debate, especially when it came to deciding who was entitled
to "combatanf'status and therefore to "prisoner of war" status in case
of capture. Not until the 1929 Conference were prisoners of war pro-
tected by the Law of Geneva, in the Second Convention; they had pre-
viously been mentioned only in the Law of The Hague. The debate on
this subject started already at the first attempts to codify the whole of
the rules of the law of war on land, at the 1874 Brussels Conference and
at the 1899 The Hague Conference. There were fundamental differences
of opinion between certain major powers, who wished to limit "comba-
tant" status to members of the regular armed forces, and certain small
and medium powers who wanted to extend it to include members of
resistance movements not necessarily attached to the regular army. The
compromise worked out on the occasion of the two above-mentioned
conferences was also adopted by the Regulations annexed to the Fourth

37
Third 1899 Convention, Art. 8 ; Tenin 1907 Convention, Art. 11.
38
Tenth Convention of 1907: Art. 1 (1), 4 (1), 9 (2), 12, 13, 14, 15 a n d 16.
39
Second 1949 Convention, Art. 12 (1).
40
First 1949 Convention, Art. 13 (1) (Second Convention of 1949: same Article).
A s t o t h e other provisions of that Article, see below: 2. Combatants—Prisoners of
war.

200
Convention of The Hague of 1907, according to which "belligerents"
(a term that would later be used to refer exclusively to States; "comba-
tant" would be used to designate individuals taking part in a combat)
were not only soldiers in the regular armed forces, but also members of
"militias" and of "volunteer corps" who fulfilled four conditions: 1) they
had to be commanded by a chief responsible for his subordinates;
2) they had to have a "fixed . . . emblem recognizable at a distance";
3) they had "to carry arms openly"; and 4) they had to observe the laws
and customs of war.41 The two final conditions served to classify as
belligerents also "the inhabitants of a territory which has not been occu-
pied, who, on the approach of the enemy, spontaneously take up arms".42
During the Geneva Conference of 1929, the treatment of prisoners of
war was separated from the Law of The Hague and placed under the
Law of Geneva, and a Convention on that subject, containing the con-
ditions enumerated in the 1907 Regulations, was drawn up.43
The dramatic experience of World War II led the 1949 Conference
to somewhat loosen the rigid conditions set down in the Regulations.
The new conditions to be met by those wishing to claim the status of
prisoner of war contained three elements of prime importance: the
grant of such status, until then contested, to members of "organized
resistance movements . . . operating in or outside their own territory,
even if this territory is occupied"; the grant of the same status to persons
"who profess allegiance to a government or an authority not recognized
by the Detaining Power" (author's note: for example, a national com-
mittee set up abroad); and the presumption of the right to enjoy the
status of prisoner of war in case of doubt.44
These conditions certainly represented a major change from the
previous ones. However, some of the participants in the 1974-77 Con-
ference—especially those whose countries had recently experienced
foreign occupation or a struggle for national liberation in which regular
troops had given battle to a movement based exclusively or almost
exclusively on resistance—felt they were still too restrictive. The represen-
tatives of States whose peoples had in the not-too-distant past been
involved in that type of struggle maintained that in such a situation the
resistance movement's only chance of success, counteracting to a certain
extent the mainly technological superiority of the adversary, was not to

41
1907 Regulations, Art. 1.
42
Ibid., Art. 2.
48
Second 1929 Convention, Art. 1.
44
Third 1949 Convention, Art. 4A, para. 2 and 3; Art. 5, para. 2.

201
observe some of the strict conditions (above all the second and third) set
down in the 1907 Hague Regulations and the Third 1949 Geneva Con-
vention. After a long and arduous debate, which threatened to cause the
entire conference to fail, a compromise was finally reached which divided
the conditions in question into two categories.
The first and fourth of the traditional conditions were to be observed
by the "armed forces", meaning groups of persons; the second and
third conditions by the individuals forming those forces. The armed
forces were now meant to include "all organized armed forces, groups
and units which are under a command responsible to the Party for the
conduct of its subordinates... Such armed forces shall be subject to an
internal disciplinary system which, inter alia shall enforce compliance with
the rules of international law applicable in armed conflict." 45
The second and third traditional conditions were to be observed by
individuals wishing to be treated as "combatants" and consequently, in
case of capture, as "prisoners of war". They were made considerably
more lax. Instead of having a "fixed distinctive sign", "combatants are
obliged to distinguish themselves from the civilian population while they
are engaged in an attack or in a military operation preparatory to an
attack"
Regarding the obligation to carry arms openly, it was recognized
"that there are situations... where, owing to the nature of the hos-
tilities, an armed combatant cannot so distinguish himself"; it was stipu-
lated that "he shall retain his status as a combatant, provided that, in such
situations, he carries his arms openly: a) during each military engagement,
and b) during such time as he is visible to the adversary while he is engaged
in a military deployment preceding the launching of an attack in which he
is to participate" .u
The forty-odd declarations made in relation to the vote on this im-
portant article indicate how difficult its interpretation would be in
specific cases.47 In order to avoid those difficulties, another important
article was drawn up which stipulated that, in case of doubt, the status
of prisoner of war (and therefore of combatant) was to be presumed.48

45
Protocol I, Art. 43, para. 1 (author's emphasis).
48
Protocol I, Art. 44, para. 3.
47
As to the history of this problem, see M. Veuthey: Guirilla et droit humanitaire,
Geneva, 1976 (2nd ed., 1983) and S.E. Nahlik: "L'extension du statut de com-
battant a la lumiere du Protocole I de Geneve de 1977", in Recueil des cours de
PAcademie de droit international, vol. 164 (1979).
48
Protocol I, Art. 45, paras. 1 and 2.

202
3. Mercenaries
Although the DCHL adopted a more liberal attitude towards com-
batants engaged in a struggle for independence, it denied another cate-
gory of persons—mercenaries, or those who fight not in defence of a
principle but for private gain—any right to protection except that ac-
corded by the fundamental rules protecting any person affected by an
armed conflict. The definition of the term mercenary gave rise to another
long debate which culminated in the adoption of the definition of mer-
cenaries, containing a list of characteristics intended to avoid as far as
possible having somebody wrongly classified in this category. Accord-
ingly, a mercenary is not a citizen of a party to the conflict and, appar-
ently most importantly, he is a person to whom a party has promised
"material compensation substantially in excess of that promised or paid
to combatants of similar rank and functions in the armed forces of that
Party.™

4. Civilians and civilian population

One characteristic of the rules of the Law of Geneva before the Second
World War was that they protected military personnel only. This would
seem to be a reflection of the law of war as it was understood during the
Age of Enlightenment, i.e. that war should be exclusively limited to
combat between armed forces. Only the members thereof would there-
fore be exposed to the dangers inherent in any armed conflict, whereas
the civilian population would be far removed from any threat.50 There is
no other way to explain that the subject of civilians was passed over in
the law of war, with the exception of certain clauses in the Hague Regu-
lations 51 which indirectly afford civilians some guarantee.
The events of the Second World War clearly showed that these rules
were insufficient. The alarming increases in civilian casualties during the
twentieth century proved that civilians were not at all spared during an
armed conflict. The Law of Geneva took that bitter lesson into account
immediately after the war. The most significant innovation and the
most important success of the 1949 Geneva Conference was the fourth
Convention "Relative to the Protection of Civilian Persons in Time of

49
Ibid. Art. 47, in particular para. 2 (c).
60
See for instance J.-J. Rousseau, The Social Contract, Book I, ch. 4.
" I n this regard, see in particular the 1907 Regulations, Arts. 23 (g) and (h), 28,
43-47 and 50-53.

203
War". This important Convention is nonetheless limited in scope; in-
deed, only certain rules of a general nature in Part II concern "the whole
of the populations of the countries in conflict".62 The Convention's
other rules are more limited in their field of application: "Persons pro-
tected 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".53
This amounted to condemnation of the most shocking human tra-
gedy of World War II: the heinous treatment and even extermination of
civilians sent to concentration or labour camps.
The 1977 Protocols attempted to fill any remaining gaps. In the
future it will be difficult to point to a deficiency in the rules contained
therein, which stipulate that Parties to a conflict "shall at all times dis-
tinguish between the civilian population and combatants",54 that the
"civilian population comprises all persons who are civilians",55 and that
the rules that aim to protect "against dangers arising from military
operations" 56 shall apply in all circumstances to protect the whole of
the civilian population and individual civilians. The Protocol also stipu-
lates that in case of doubt civilian status is to be presumed.57
Both the 1949 Geneva Convention and the 1977 Protocol, the latter
in much clearer terms, reflect the opinion that it was necessary to include
specific clauses according special protection to women " and children.5'
Furthermore, the rules concerning the wounded, sick and ship-
wrecked, which had previously applied to soldiers only, were extended
to civilians by the Additional Protocol, for the purpose of which:
"wounded" and "sick" means persons, whether military or civilian, who,
because of trauma, disease or other physical or mental disorder or dis-
ability, are in need of medical assistance or care and who refrain from any
acts of hostility. These terms also cover maternity cases, new-born babies
and other persons who may be in need of immediate medical assistance or
care, such as the infirm or expectant mothers... " 60
52
Fourth 1949 Convention, Art. 13. See also Articles 14-26 of the same Part II.
53
Fourth Convention of 1949, Art. 4 (1) (author's emphasis).
M
Protocol I, Art. 48 ("Basic Rule").
65
Ibid., Art. 50 (2).
56
Ibid., Art 51 (1); see also para. 2 of the same article.
57
Ibid., Art. 50 (1).
58
Fourth 1949 Convention, Art. 16 (1); Protocol I, Arts. 75 (5) and 76.
59
Fourth 1949 Convention; Arts. 24, 50, 68 (4); Protocol I, Arts. 77-78.
60
Protocol I, Art. 8 (a) (author's emphasis).

204
 The notion of shipwrecked was similarly widened to the extent that
the very notion of "shipwreck" includes the wreck not only of boats,
but also of aircraft: "shipwrecked" means persons, whether military or
civilian, who are in peril at sea or in other waters as a result of misfortune
affecting them or the vessel or aircraft carrying them " 61

5. Medical and religious personnel

The wounded, sick, shipwrecked and other persons that the Conven-
tions and Protocols place in comparable categories must be cared for.
For this reason, medical personnel derives the right to be protected.
This category of protected persons was also at first defined in general
terms; later, in order to avoid any abuse, the definition was made more
specific. First hospital and ambulance personnel were spoken of;62 then
it was specified that the term referred to those engaged "in the search
for, or the collection, transport or treatment" of the wounded or sick,
and that only personnel "exclusively" engaged in such tasks could claim
the right to protection.68 There is, however, an exception to this rule,
namely those soldiers who are specially trained for employment, should
the need arise, as "hospital orderlies, nurses or auxiliary stretcher bear-
ers" " ; they are obviously protected only for such time as it takes them
to accomplish these tasks.
The administrative staff of medical units are also mentioned—justi-
fiably, for without them these units could not function—as are chaplains
"attached to the armed forces"65, or, in more general terms, "the re-
ligious personnel".66
An important privilege is accorded to medical or religious staff who
fall into the hands of the adversary: they are not to be considered as
prisoners of war. The Detaining Power can however retain them if they
are needed to care for the prisoners of war of the Party to the conflict
to which they belong.67

81
Ibid., Art. 8 (b) (author's emphasis).
•2 1864 Convention, Art. 2.
68
1906 Convention, Art. 9; First 1929 Convention, Art. 9 (1); First 1949 Con-
vention, Art. 24.
64
First 1929 Convention, Art. 9 (2); First 1949 Convention, Art. 25.
65
1864 Convention, Art. 2; more specifically: 1906 Convention and First Con-
vention of 1929, Art. 9 (1); First 1949 Convention, Art. 24.
""Tenth 1907 Convention, Art. 10 (1); Second 1949 Convention, Art. 36.
•71906 Convention, Art. 9 (1) in fine; Tenth 1907 Convention, Art. 10 (1) in fine;
First 1929 Convention, Art. 9 (1) in fine; Third 1949 Convention, Art. 33.

205
 The Fourth 1949 Convention, specifically drawn up for the protec-
tion of civilians, included a provision granting protection under the
Convention to: "Persons regularly and solely engaged in the operation
and administration of civilian hospitals, including the personnel engaged
in the search for, removal and transporting of and caring for wounded and
sick civilians, the infirm and maternity cases..." 88
The Additional Protocol I considerably widened the circle of per-
sons protected by virtue of their medical or religious fonctions. It stipu-
lates that: ''''medicalpersonnel" means those persons assigned... exclus-
ively to the medical purposes . . . or to the administration of medical units
or to the operation or administration of medical transports".*9
Such assignments may be "permanent or temporary" and the term
includes "medical personnel, whether military or civilian". The notion
of "religious personnel" was also enlarged to include both military or
civilian persons, "such as chaplains" (who are mentioned only as an
example); they may also be attached to the armed forces or to medical
units on a permanent or temporary basis.70

6. Staff of voluntary aid societies

Another category of persons, the medical staff of voluntary aid
societies, are also accorded a privileged status in time of war by virtue
of their tasks. These persons are referred to in the treaties as early as
1906,71 and the societies of both belligerent and neutral countries are
mentioned.72 Nonetheless, it was not until 1949 that the treaties men-
tioned specifically and before all else the bodies of the Red Cross, by
classifying in the same category as military medical personnel, provided
they are employed for the same purpose, "the staff of National Red
Cross Societies and that of other voluntary aid societies, duly recognized
and authorized by their Governments".73

7. Some extensions
These are the categories of persons granted privileged treatment by
virtue of the legal documents leading up to and including the 1949 Con-
68
Fourth 1949 Convention, Art. 20 (1) (author's emphasis).
69
Protocol I, Art. 8 (c).
70
Ibid., Art. 8 (d) (author's emphasis).
71
1906 Convention and First 1929 Convention, Art. 10.
72
Ibid., Art. 1 1 ; First 1949 Convention, Art. 27.
73
First 1949 Convention, Art. 26 (1); Protocol I, Art. 8 (c) (ii).

206
ventions. It must nonetheless be remembered that the scope of the con-
cepts in question has been considerably broadened in most cases.
It remains to be seen if other groups not yet protected are now
covered under the "additional" codification of 1977.
The most important extension does not concern one particular
group, but is general in nature: civilian medical personnel are accorded
prerogatives until then exclusively reserved to military medical person-
nel. Moreover, it was felt that certain other groups should also be ex-
pressly mentioned; they include persons who, in case of armed conflict,
are exposed to extreme danger or who have not appeared in situations
of armed conflict until quite recently. A careful study of Protocol I
brings to light several groups of this kind:
a) "enemies hors de combat", meaning those persons who are already
in the power of an adverse Party, who clearly express an intention to
surrender, who have lost consciousness or who are otherwise in-
capable of defending themselves;74
b) persons parachuting from an aircraft in distress;75
c) persons participating in the transportation and distribution of relief
consignments;'"
d) the personnel of civilian defence organizations whose characteristics
and functions, after long debate, were made the object of a detailed
set of regulations; "
e) journalists engaged in "dangerous professional missions", meaning
those running particularly serious risks.78
With the exception of the first and possibly of the second group, the
persons protected are for the most part civilians 79 for whom it was felt
special legal regulations should be adopted, because of the particularly
noteworthy character or the social significance of their activities.
74
Protocol I, Art. 41 (1).
75
Ibid., Art. 42.
76
Ibid., Art. 71 (1) and (2).
77
Ibid., Art. 62 et seq.
78
Ibid., Art. 79.
79
During the DCHL, the characteristics of persons belonging to civilian defence
organizations were the subject of long debate. Most of the participants felt they
should be considered as exclusively civilian. However, in view of the observations
made by certain other delegates, it was finally admitted that such organizations could
in some cases also consist of members of the armed forces (see Protocol I, Art. 67),
provided that they are assigned to such organizations on a permanent basis and never
to military tasks.

207
8. Missing and dead persons

Of course, humanitarian law is first and foremost concerned with the

plight of the living. It does not, however, entirely ignore the dead. Each
of the four 1949 Conventions contains provisions 80 on interment or
cremation (burial at sea in the appropriate case), stipulating honourable
burial and due respect for graves; there are also provisions on wills and
death certificates of prisoners of war and civilian detainees, and on noti-
fication to be made to the Tracing Agency concerned. During the DCHL,
greater attention than in 1949 was paid to certain aspects of these prob-
lems, and a whole new Section was given over to them ", stressing the
right of families to know the fate of their relatives. As a result, the Parties
undertake to search for missing persons and to communicate the results
of such search to the Central Tracing Agency. New provisions were
added to the previous ones on the subject of maintenance of gravesites,
facilities accorded to members of families wishing to visit them, and the
possibility of exhuming and repatriating mortal remains. Domestic
legislation on cemeteries and burial procedure must nonetheless be
observed.

VOL Objects protected

1. Objects serving a medical purpose

The protection of objects, in the broadest sense of the word, devel-

oped in parallel with the protection accorded to the groups of persons
using those objects. Therefore, since the Law of Geneva started out as a
set of rules to protect wounded and sick soldiers, the first objects pro-
tected under that law were those that facilitated their care: military
ambulances and hospitals.82 Each of the later treaties described objects
of this type in ever-greater detail, without, however, making any sig-
nificant change to the principle involved. According to the 1949 text,

80
1949 Conventions: First, A r t . 1 7 ; Second, A r t . 2 0 ; Third, Arts. 120-121;
Fourth, Arts. 129-131.
81
Protocol I, Arts. 32-34 (very detailed).
82
1864 Convention, Art. 1 (1); later, see 1906 Convention and First 1929 Con-
vention, Art. 6.

208
protection is extended to "fixed establisments" as well as "mobile
medical units of the Medical Service".83
As technology became more advanced, one specific group of objects
developed gradually: means of transport. On the subject of medical
means of transport, one finds, as early as 1899, references to "military
hospital ships" and "hospital ships" equipped by private individuals or
relief societies, and, starting in 1929, to "aircraft".84 Reference is made
above all to means of transport constructed and especially equipped for
medical purposes, and to those merely to be "used" to such ends. One
can therefore conclude that the actual use to which a vehicle is put is
more important than the use for which it was designed.
Civilian hospitals and civilian medical transports, whether by train,
boat or aircraft, were not accorded similar treatment until the 1949 Con-
vention relative to the protection of civilians.85
According to the Additional Protocols, the term "medical units"
refers to "establishments and other units, whether military or civilian,
organized for medical purpose".88 By giving the broadest possible accep-
tation to the terms "medical transportation", "medical transports",
"medical vehicles", "medical ships and craft" and "medical aircraft" 87,
it was possible to draw up detailed provisions on the protection of medi-
cal transports (and especially of aircraft) in an important section of
Protocol I.88

2. Civilian objects not used for medical purposes

For a long time, the Law of Geneva did not concern itself with civ-
ilian objects not used for medical purposes. Such objects enjoyed an
indirect form of protection—like civilian persons—by virtue of certain
rules of the Law of The Hague, in particular those of the 1907 Regula-
tions relative to the conduct of hostilities (restricting the right of bel-
ligerents in their choice of means of injuring the enemy),89 or to the

83
First 1949 Convention, Art. 19 (1).
84
Third 1899 Convention, Arts. 1-3; Tenth 1907 Convention, Arts. 1-3; Second
1949 Convention, Arts. 22 and 24-27. As to aircraft: First 1929 Convention, Art. 18 (1);
First 1949 Convention, Art. 36 (1); Second 1949 Convention, Art. 39 (1).
85
Fourth 1949 Convention, Arts. 18 (1), 21, 22 (1).
86
Protocol I, Art. 8 (e). The passage quoted is followed by a list of numerous
examples of types of units understood to be covered by this definition (author's em-
phasis).
87
Ibid., Art. 8 (f) to (j).
88
Ibid., Arts. 21-31.
88
1907 Regulations, Arts. 23, 25, 27 and 28.

209
conduct of the occupying authority (setting down certain rules to be
observed by it in the treatment of persons and objects in the occupied
territory).90 Some of these rules were reproduced or developed in the
1949 Convention relative to the protection of civilians.81
Once again, the role of the 1977 Protocol is twofold: it gives a broad-
er meaning to terms that had already been used in previous documents,
and it provides for the protection of objects that had hitherto gone un-
mentioned. The key rule in this respect is that which forbids attacks on
civilian objects and stipulates that in case of doubt objects are presumed
to be civilian: "Civilian objects are all objects which are not military
objectives..."32

This rule, retained from previous acts, is of prime importance. Not

content with this declaration, the Protocol's authors felt that certain
other groups of objects merited special attention.
From the humanitarian point of view, the most important of these is
undoubtedly that group which it is forbidden to attack, destroy, remove
or render useless, i.e. those "objects indispensable to the survival of the
civilian population, such as foodstuffs, crops, livestock, drinking water
installations and supplies and irrigation works . . . " 93

It was not until the DCHL that consideration was given also to
man's spiritual needs, not just to his physical needs, and in consequence
to the objects necessary to fulfil them, especially "cultural objects",
on the protection of which a special Convention had been signed in
The Hague in 1954. Besides urging those States that had not yet done
so to become parties to that Convention,84 the DCHL inserted a text in
the Protocol itself prohibiting acts of hostility against "historic monu-
ments, works of art or places of worship", stipulating that such objects
"constitute the cultural or spiritual heritage of peoples" (author's note:
it should perhaps have said: mankind as a whole).85
Finally, two provisions were drawn up to protect the population of
a country in conflict and, who can say, perhaps the human race as a

90
Ibid., Arts. 46, 47 and 56.
81
Fourth 1949 Convention, e.g. Art. 53.
92
Protocol I, Art. 52, para. 1 (author's emphasis).
93
Protocol I, Art. 54, especially para. 2.
94
This appeal was the subject of Resolution 20 (IV) annexed t o the Final Act of
the DCHL.
95
Protocol I, Art. 53.

210
whole, from irreparable catastrophes. The Protocol protects works and
installations "containing dangerous forces", such as dams, dykes or
nuclear electrical generating stations.98 The belligerents are also required
to conduct hostilities in such a way as to protect the environment "against
widespread, long-term and severe damage".97

3. Neutral or demilitarized zones

In view especially of the ever-increasing range of modern weapons,

a need was felt to create zones and localities to which the wounded and
sick, along with the medical and administrative personnel necessary to
organize and run medical services, could be evacuated,98 and neutral
zones where, among others, civilians not taking part in the hostilities
could seek refuge.99 The creation of such zones must be the subject of
an agreement between the parties to the conflict.
Here again, the authors of the Additional Protocols took matters a
step further by taking over in part the provisions of the Law of The
Hague which forbid attack on "undefended" localities.100 In practice
(and in theory), this allowed for the possibility of declaring a town
"open", which should protect it from attack.
Since this concept had never been expressly clarified and was there-
fore subject to widely differing interpretations, declaring a town open
often had no effect. In the 1977 Protocol, it was provided that certain
localities could be formally declared "open": the declaration (made by
the party on whose territory the locality is situated) has to be communi-
cated to the adverse party, which, in principle, must accept it and the
consequences thereof, subject, of course, to certain conditions ensuring
that the locality in question no longer is used for any military purpose
of the party making the declaration.1OX Similar conditions and conse-
quences come into play if the parties formally agree to form a demili-
tarized zone.102

98
Ibid., Art. 56, especially para 1.
97
Ibid., Art. 55 (1).
98
First 1949 Convention, Art. 23.
99
Fourth 1949 Convention, Art. 15.
100
1907 Regulations, Art. 25.
101
Protocol I, Art. 59.
102
Ibid., Art. 60.

211
 IX. Distinctive sign

It was stipulated already in the 1864 Geneva Convention that a

distinctive and uniform sign—a red cross on a white ground—should be
adopted by all medical units.103 The sign was chosen "as a tribute to
Switzerland", the country where the movement was founded and the
host country to the 1864 Conference. It was thus purposely composed
by reversing the Swiss Federal colours.104 The sign is heraldic and was
not intended to bear any religious connotation. However, first Turkey,
then other Islamic countries preferred to adopt the sign of the red cres-
cent. The Persian Empire wished, for its part, to adopt the red lion-and-
sun. These two new signs were recognized by the Diplomatic Conference
of 1929. On the other hand, later proposals to introduce new signs were
rejected, since most States and the movement as a whole realized that
too many signs would inevitably weaken their protective value. The
most well-known attempt is that of the State of Israel, which tried on
several occasions, including the DCHL, to obtain recognition of the red
shield of David. Later, in 1980, Iran gave up use of the red lion-and-sun,
so that there are now but two distinctive signs. Attempts to return to the
use of just one sign have, however, met with failure.
Detailed regulations describe how the protective emblem is to be
used by medical ships—which must be painted white—and aircraft.105
The same sign serves to identify medical staff members, who must
wear it as conspicuously as possible when working in dangerous areas.108
A technical annex to the Additional Protocol sets out detailed ins-
tructions for a system of radio and light identification signals to be used
mainly by aircraft.107
A completely different sign, a blue equilateral triangle on an orange
ground, was adopted during the DCHL to allow identification of civil
defence units and personnel.108

103
1864 Convention, Art. 7.
104
1906 Convention, Art. 18; First 1929 Convention, Art. 19 (1); First 1949 C o n -
vention, Art. 38 (1), etc.
105
T e n t h 1907 Convention, Art. 5 (1); Second 1949 Convention, Art. 43 (1) (a).
106
Apart from previous documents, see: First 1949 Convention, Arts. 40-41;
Second 1949 Convention, Art. 42; Protocol I, Annex I, Arts. 1-2.
107
Protocol I, Annex I, especially Arts. 5-13.
108
Ibid., Art. 15.

212
 There are detailed instructions on the use of the signs described in
the treaties.109 Any use of the emblem for purposes other than those
relating to the protection of victims of armed conflicts is forbidden and
subject to prosecution. For this reason, since 1949, the international
humanitarian law Conventions contain numerous provisions on penal
sanctions.

X. What is protection ?

After having studied the groups of persons and objects which are
of concern to humanitarian law, we must consider what is meant by
"protection".
The 1864 Convention thought it had found a simple and relatively
ingenious answer to that question, one that was probably based on Swiss
tradition: it granted military hospitals and ambulances and their per-
sonnel "neutral" status.110 It was nonetheless quickly recognized that
this formula was lacking in precision, and it was replaced in 1906 by
another one that was to prove its worth, as it was used in each of the
later documents in reference to almost all the groups of persons and
objects to be protected: they must be "respected and protected".111 It is
also often stipulated that such persons must be "treated humanely",112
and that the wounded, sick and other persons in need of care must be
"cared for".113
From the strictly legal point of view, the rules of humanitarian law,
like the rules of any other branch of law, could be divided into two
categories: injunctions, requiring the parties thereto to act, and prohibi-

109
1906 Convention, Arts. 19-23; First 1929 Convention, Arts. 20-24; First 1949
Convention, Arts. 39-43; Second 1949 Convention, Arts. 43-45; Protocol I, Art. 18.
110
1864 Convention, Arts. 1-2.
111
See: 1906 Convention, Art. 6 ; First 1929 Convention, Arts. 1 (1), 6 and 9 (1);
First 1949 Convention, Arts. 12 (1), 19 and 24 in fine; Second 1949 Convention, Arts.
12 (1), 22 and 36; Fourth 1949 Convention, Arts. 18 (1), 20 (1) a n d 21 (1); Protocol I,
Arts. 10 (1), 12 (1), 15 (1), 2 1 , 23 (1), 2 4 , 4 8 , 62 (1), 67 (1), 71 (2), 76 (1) a n d 77 (1) (in
the latter two articles, the expression is slightly different, but the two essential words
have remained unchanged). Only the word " p r o t e c t e d " is used in Protocol I, Art. 79
(2) (referring to journalists o n "dangerous missions").
112
See for example: First 1929 Convention, Art. 1 (1); Second 1929 Convention,
Art. 2 (2); First 1949 Convention, Art. 2 (2); Second 1949 Convention, Art. 12 (2);
Protocol I, Arts. 10 (2) and 75 (1).
113
An expression often used along with another word. See for example: 1864 Con-
vention, Art. 6; 1906 Convention, Art. 1 (1); Tenth 1907 Convention, Art. 11; First
1929 Convention, Arts. 1 (1) and 3 (1-2); First 1949 Convention, Art. 12(2); Second
1949 Convention, Art. 12 (2); Protocol I, Art. 10 (2); etc.

213
tions, requiring the parties to abstain from acting. However, the differ-
ence between the two categories is so hazy that this is hardly a useful
criterium for classifications.
There is however, another way to classify the rules of humanitarian
law: there are those that are to be observed principally, if not exclusively,
during actual combat, and there are those that are to be observed prin-
cipally, if not exclusively, in situations other than combat situations, for
the benefit of the persons and objects in one's power. Of course, it would
be impossible to give here a detailed analysis of the hundreds of articles
in the Conventions and Protocols that constitute present-day humani-
tarian law; we shall have to limit ourselves to what seems to us to be
essential.

1. Injunctions and prohibitions

The most important of the rules to be observed during hostilities is
that the choice of means of injuring the enemy "is not unlimited".114
The more specific rule prohibiting attack on undefended localities "by
any means whatsoever"115 certainly follows along the same lines. Note
that these rules were both borrowed from the 1907 Regulations con-
cerning the Laws and Customs of War on Land,116 again showing that
the 1977 Geneva Protocols were not excluding the ground that seemed
to have been covered until then by the Law of the Hague. Another
general principle of no less importance, traditionally included in numer-
ous texts for over a century, prohibits the belligerents from employing
weapons "of a nature to cause superfluous injury".117 Yet another pro-
vision, this time a contemporary one, attempts to protect persons and
objects from weapons of mass destruction by prohibiting "indiscrimi-
nate attacks".118 The prohibition of any resort to "perfidy" 119 can also

114
Protocol I, Art. 35 (1).
115
Ibid., Art. 59 (I).
116
1907 Regulations, Arts. 22 and 25 respectively. In the latter article, the phrase
in question was added on the suggestion of Geneial Amourel, the French military
delegate.
117
Protocol I, Art. 35 (2). This phrase was first used in the St. Petersburg Declar-
ation of 29 November—11 December 1868, then repeated in the Declaration of
Brussels of 27 August 1874, Art. 13 (c), in the Laws of War on Land, a Manual adopted
by the Institute of International Law at Oxford on 9 September 1880, Art. 9 (a) and
in the Regulations of the Hague of 1899 and 1907, Art. 23 (e).
118
Protocol I, Art. 51 (4-5) (in the chapter on protection of civilian population
and civilians).
119
Protocol I, Art. 37, contains a detailed explanation of this notion (Arts. 38
and 39 contain examples which had hitherto been included in the 1907 Regulations,
Art. 23 (f)).

214
be classified as a general principle to be observed by any party to a
conflict.
There are also general rules concerning the treatment of persons in
the hands of the enemy, especially in occupied territory.
The pattern was set in the Conventions relative to the treatment of
prisoners of war, on the basis of which similar regulations were drawn
up for the treatment of civilian internees in the Fourth 1949 Conven-
tion.120 It is most of all in these two sets of rules that it would be rather
difficult to draw a clear distinction between prohibitions and injunctions.
They are supplemented by "fundamental guarantees" that apply to
persons affected by an armed conflict who do not "benefit from more
favourable treatment under the Conventions or under this Protocol".121
The list of these guarantees is extensive; it forbids, for example, murder,
torture, collective punishment, the taking of hostages—all of which are,
unfortunately, still far too common in today's world.
Two types of clauses add weight to both the injunctions and the
prohibitions in the documents studied.
First, since 1949, protected persons "may in no circumstances re-
nounce in part or in entirety the rights secured them" either by the
Geneva Convention in question or by any special agreements con-
cluded as supplements thereto.122 The DCHL added some specific exam-
ples to this rule: it is forbidden to carry out on detained persons from
the adverse party physical mutilations, medical or scientific experiments
or removal of tissue or organs "even with their consent", unless for the
purpose of donations of blood for transfusion or skin for grafting.123
These prohibitions were deemed necessary in view of the cruel practices
which achieved notoriety during the Second World War.
Second, any adverse distinction is expressly prohibited. In this
context, pre-World War II conventions limited themselves to mentioning
distinction of nationality.124 Later texts were more specific: the 1949
Conventions prohibited any "adverse distinction founded on race,
colour, religion or faith, sex, birth or wealth, or any other similar cri-
teria".125 At the DCHL, it was felt advisable to add to this already some-

120
Fourth 1949 Convention, Arts. 79-141.
121
Protocol I, Art. 75.
122 J949 Conventions: First, Second and Third, Art. 7; Fourth, Art. 8.
123
Protocol I, Art. 11 (2-3).
124
1906 Convention and First 1929 Convention, Art. 1 (1).
125 1949 Conventions, Art. 3 common to all four, para. 1 (1).

215
what pleonastic list, "language", "political or other opinion", "national
or social origin", and "other statuts or . . . similar criteria".126

2. Prohibition of reprisals
The prohibition of reprisals is a subject on its own. Reprisals orig-
inated in the ancient lex talionis, and had traditionally been considered
as a form of sanction peculiar to international law, in view of the inexis-
tence of any supranational power in the international community.
Often falling on innocent persons, reprisals have long given rise to
opposition from several quarters.127 Opinions on this subject were so
divided, however, that it was impossible to draw up any sort of rule in
any of the Conventions before the First World War. During the inter-
war period, a prohibition on measures of reprisal was included only in
the Convention relative to the treatment of prisoners of war.128 It was
the atrocities committed during World War II that led the 1949 Confer-
ence to give more attention to this problem and to include in each of
the four Conventions it drew up a clause categorically prohibiting
reprisals.129 At the DCHL, two attempts to draw up a general rule on
this subject failed, but an understanding was reached on inserting in
seven places of Protocol I a clause prohibiting reprisals;130 the gaps,
although noticeable, are not numerous and it is hoped that they will
prove to be theoretical rather than practical.

3. Escape clauses
There are in humanitarian law at least two types of escape clause.
First, since any privilege accorded under the treaties applies only to a

126
Protocol I, Art. 9 (1); Protocol II, Art. 2 (1).
127
Starting with F. de Vitoria, op cit., pp. 289-290. In contemporary literature,
see, among others, Y. de la Briere: "Evolution de la doctrine et de la pratique en
matiere d e reprtsailles", in Recueil des cours de I'Academie de droit international,
vol. 2 2 (1931), p p . 263 ff; F . K a l s h o v e n : Belligerent Reprisals, Leyden 1971, passim,
esp. p . 3 6 7 ; S.E. N a h l i k : " L e p r o b l e m e des r e p r £ s a i l l e s . . . " , in Revue gdnerale de droit
international public, 1978, N o . 1, p . 130 ff., a n d "Belligerent R e p r i s a l s . . . " in Law
and Contemporary Problems, D u k e University School of L a w , 1978, p . 36 ff.
128
Second 1929 Convention, Art. 2 (3).
129 1949 c o n v e n t i o n s : First, Art. 46; Second, Art. 4 7 ; Third, Art. 13 (3); Fourth,
Art. 33 (3).
130
Protocol I, A r t . 20 (persons a n d objects protected in Part I I dealing with
W o u n d e d , Sick a n d Shipwrecked), A r t . 51 (6) (civilian population a n d civilians),
Art. 52 (1) (civilian objects), Art. 53 (cultural objects and places of worship), Art. 54 (4)
(objects indispensable t o the survival of the civilian population), Art. 55 (2) (environ-
ment) a n d Art. 56 (4) (works and installations containing dangerous forces).

216
person "refraining from any hostile act", no unit or individual carrying
out an activity "detrimental" to the adverse party can claim protection.
Such is the case, for example, of a wounded person who continues to
shoot. Here the notion of "neutrality", a word used in the first Geneva
Convention, was particularly appropriate, for it covered two aspects of
the legal statuts of the unit (or individual) in question: what can be requi-
red of it and what it is entitled to. This qualification attached to any
privilege granted under humanitarian law appears in so many provisions
in the treaties that is seems unnecessary to cite any examples.131
The case is not the same for the reservation of military necessity.
This oft-critized notion is expressed frequently in the Law of The Hague,
but rarely in the Law of Geneva.132 It must therefore be considered as an
exception to the general rule of humanitarian law, whose essential aim
is to protect. Consequently, anything derogating from the principle of
protection is but an exception. For the interpretation of any legal act,
however, one of the principles most solidly implanted in the general
theory of law since Antiquity is that any exception must be expressly
stated: it cannot be presumed. Numerous rules have nonetheless been
somewhat blunted by the addition of reservations such as "to the extent
possible", "insofar as possible", etc.

4. « Safety valve »
Even the most perfect set of rules could not provide for all possible
contingencies. The more detailed the list, the greater the danger of leav-
ing something out. Rules of a general nature are therefore of prime
importance. Some have existed for a long time. Some of them appeared
in the Law of The Hague, and have been incorporated in Protocol I
of 1977. Others, which we have just mentioned, have been a part of the
Law of Geneva since its inception.

131
There were already some in the older treaties, e.g. the 1864 Convention, Art. 1
(2) and Art. 2; 1906 Convention, Art. 7; Tenth 1907 Convention, Art. 8; First 1929
Convention, Art. 7; First 1949 Convention, Art. 21; Second 1949 Convention, Art. 34;
Fourth 1949 Convention, Art. 19 (1); Protocol I, numerous examples — see especially
the categories of persons and units mentioned in Art. 8 and, for example, Art. 13 (1),
Art. 15 (3), etc.
132
See however: 1906 Convention, Art. 12 (2) and Art. 15; First 1929 Convention,
Art. 15 (2). The 1949 Conventions have no such provisions. Military necessity was
next mentioned in the 1954 Hague Convention for the Protection of Cultural Prop-
erty (Arts. 4 (2) and 11 (2) - (3). It is mentioned in Protocol I only in Arts 54 (5)
(objects indispensable to the survival of the population), 62 (1) and 67 (4) (civil defence
organizations), and 70 (3) (c) and 71 (relief action). Parts of Arts 52 (2) and 56 (2)
bring however the military necessity clause to mind as well.

217
 There is a "safety valve" to which recourse could be had in an entirely
unforeseen situation, for which no rule in the Conventions, however
general, could be invoked. The authors of the Hague Conventions pro-
vided for this contingency as early as 1899 and included, in the preamble
to two successive versions of the Convention on the Laws and Customs
of War on Land, a noble declaration generally known as the Martens
Clause, after its principal author. Fortunately, the DCHL decided to
include it in Protocol I. Here is its text by way of conclusion to our
review of the regulations protecting the victims of armed conflicts:
"In cases not covered by this Protocol or by other international agreements,
civilians and combatants remain under the protection and authority of the
principles of international law derived from established custom, from the
principles of humanity and from the dictates of public conscience." 133

XI. Execution
1. By the parties themselves
The instruments of humanitarian law must be observed first and fore-
most by the parties thereto, who undertake to respect and ensure respect
for them "in all circumstances".134 It is therefore up to the parties to
take measures to this effect, to give the necessary instructions and super-
vise their execution,135 if need be through the intermediary of the Com-
mander-in-Chief,136 and to try to make available to the armed forces
competent legal advisers.137 They must also disseminate knowledge of
the instruments of humanitarian law as widely as possible, in particular,
by including the study thereof in the programmes of instruction, espe-
cially to military personnel.138

2. Protecting Powers
During an armed conflict, the application of the Conventions' pro-
visions should be ensured, to a certain extent, with the aid of Protecting

133
Protocol I, Art. 1 (2).
134
1949 Conventions, Art. 1; Protocol I, Art. 1 (1).
135
Protocol I, Art. 80.
136 1949 Conventions: First, Art. 45; Second, Art. 46.
137
Protocol I, Art. 82.
138
1949 Conventions: First, Art. 47; Second, Art. 48; Third, Art. 127; Fourth,
Art. 144; Protocol I, Art. 83.

218
Powers entrusted with safeguarding the interests of a party to the conflict
with the adverse party.18* The Protecting Power may, if need be, be
replaced by an "organization which offers all guarantees of impartiality
and efficacy".1*0

3. Red Cross bodies

The above-mentioned clause, which mentions a substitute organ-
ization, is preceded, in all four 1949 Conventions, by another provision
specifically mentioning the International Committee of the Red Cross
and granting it a sort of right of initiative in humanitarian activities.141
Furthermore, the ICRC could be called upon to fill the role of substitute
for the Protecting Powers, as is clearly indicated in the 1977 Protocol."2
Among the numerous and difficult tasks falling within the compe-
tency of the ICRC under the humanitarian law Conventions, noteworthy
are the right to visit all places where prisoners of war or civilian internees
are kept,148 and the organization of a Central Tracing Agency for the
collection of information on prisoners of war. This Agency, if need be,
may also be called upon to perform similar tasks for civilian internees.144
National information bureaux should serve as a base for such acti-
vities.145 Humanitarian tasks can also be carried out by the National
Red Cross or Red Crescent Societies,146 and by other duly recognized
and authorized charitable agencies.147
The increasingly widespread recognition of the ICRC role under the
Conventions leads to the conclusion that that important body has, to a
certain extent, progressively acquired the quality of a sui generis subject
in international law.

188
1949 Conventions: First, Second and Third, Art. 8; Fourth, Art. 9; Protocol I,
Art. 5, esp. paras. 1-2. For certain specific attributions, see for example: Third 1949
Convention, Art. 126 (1-3); Fourth 1949 Convention, Art. 143 (1-4).
140
1949 Conventions: First, Second and Third, Art. 10; Fourth, Art. 11; Pro-
tocol I, Art. 5 (4).
141
1949 Conventions: First, Second and Third, Art. 9; Fourth, Art. 10.
141
Protocol I, Art. 81 (1); also Art. 5 (3-4).
148
Third 1949 Convention, Art. 126 (4); Fourth 1949 Convention, Art. 142 (3)
and 143 (5).
144
Third 1949 Convention, Art. 123; Fourth 1949 Convention, Art. 140.
145
Third 1949 Convention, Art. 122 ff.; Fourth 1949 Convention, Arts. 136 ff.
146
Most clearly: Protocol I, Art. 81 (2-3).
147
For example: Third 1949 Convention, Art. 125; Fourth 1949 Convention,
Art. 142; Protocol I, Art. 81 (4).

219
 XII. Sanctions

One of the most difficult problems which humanitarian law has to

solve, for want of a supranational authority, is how to inflict sanctions
—and what sanctions—on a State or individual violating the law.

1. States
In traditional theory, the State was the sole subject of international
law; efforts were therefore concentrated on finding means of imposing
sanctions on it. Such sanctions would seem to be of two kinds: quasi-
civil and quasi-penal.
The first requires the State to pay compensation for the damage it
has caused, a form of liability mentioned in the 1907 Law of The Ha-
gue,148 and taken over word for word by the Law of Geneva in the 1977
Protocol: "A Party to the conflict which violates the provisions of the
Conventions or of this Protocol shall, if the case demands, be liable to pay
compensation. It shall be responsible for all acts committed by persons
forming part of its armed forces" .w
There is some doubt as to the advisability of that word-for-word
repetition. The provision has one rather obvious loophole: no mention
is made of the State's responsibility for the acts of the members of its
civil service, so that it cannot be held liable on that count unless under
customary law.
Quasi-penal sanctions take the form of reprisals. Reprisals have been
a part of the law of nations since its inception, but have always been
found lacking in that, although in principle they are directed against the
State, they in fact too often cause many innocent people to suffer.
Humanitarian law was therefore fully justified in excluding them in
most cases.150

2. Individuals

The condemnation of reprisals has made it the more increasingly

necessary to punish the individuals who violate humanitarian law rules.

148
Fourth 1907 Convention, Art. 3 (the Second 1899 Convention did not contain
such a provision).
149
Protocol I, Art. 91.
150
See above, Ch. X, para. 2.

220
In international law, individuals have been but rarely punished, the only
precedent of consequence being the so-called law and trial of Nurem-
berg.151
Humanitarian law has long been concerned to put a stop to infrac-
tions of its rules. Since 1906, the Conventions have contained provisions
urging the parties to take or, if need be, propose to their legislatures, the
measures necessary to prevent acts contrary to the rules of the Conven-
tions. Of particular concern has always been the problem of unauthor-
ized use of the protective sign.152
Much more precise provisions were drawn up on penal sanctions in
the four 1949 Conventions, each of which has four articles on sanc-
tions.153 The parties undertake therein to take legislative measures "to
provide effective penal sanctions for persons committing, or ordering to be
committed, any of the grave breaches ... defined in the following Article."
They also undertake to search for the guilty parties and to bring such
parties before their own courts or to extradite them—recalling the adage
"Aut dedere, aut punire". They are further under the obligation to take
all measures necessary for the suppression of all acts contrary to the
Conventions "other than grave breaches". The list of grave breaches
varies slightly from one Convention to the other. Some are mentioned
in all four: wilful killing, torture or inhuman treatment, wilfully causing
great suffering, serious injury to body or health. The First, Second and
Fourth Conventions include destruction and appropriation of property
in this list; the Third and the Fourth add compelling a protected person
to serve in the armed forces of "a hostile Power" and depriving him of
the right to a "fair and regular" trial. The Fourth Convention also men-
tions unlawful deportation or transfer, unlawful confinement and the
taking of hostages. Very detailed provisions were drawn up in the first
two Conventions concerning the use of the distinctive sign.154 The last
of the articles common to all these conventions stipulates that in cases
of disagreement the parties shall carry out an enquiry according to the
procedure they have agreed on or indicated by a person chosen jointly
by them.

151
See the complete records of the trial: Trial of the major war criminals before
the Nuremberg Military Tribunals, Nuremberg, 1947-1949.
152
1906 Conventions, Arts. 27-28; Tenth 1907 Convention, Art. 21; First 1929
Convention, Arts. 28-30.
153 1 9 4 9 Conventions: First, Arts. 49-52; Second, Arts. 50-53; Third, Arts. 129-
132; Fourth, Arts. 146-149.
154
1949 Conventions: First, Arts. 53-54; Second, Arts. 44-45.

221
 These important articles were considerably developed in a special
section of Protocol I.165 The list of "grave" breaches was supplemented
by the addition of a good number of those directed, especially during an
attack, against persons or objects guaranteed respect and protection
under the Protocol.158 It is furthermore specified that failure to act must
also be punished and special duties are imposed upon military com-
manders. The importance of mutual assistance in criminal proceedings
is emphasized by underlining the possibility of extradition, especially to
the country in whose territory the breach occurred.
Although leaving it in principle to the national courts to institute
criminal proceedings, the DCHL was nonetheless able, not without a
certain amount of difficulty, to constitute an international body of
enquiry: the International Fact-Finding Commission.157 However, many
of the States represented at the DCHL opposed mandatory recourse to
the Commission. An agreement was finally reached to the effect that
recourse to this body, consisting of 15 members "of high moral standing
and acknowledged impartiality", was not obligatory and that it would
be convened when not less than twenty parties to the Protocol had
agreed to accept its competence, which is as yet far from being the case.

Non-international armed conflicts

Since the four Geneva Conventions apply "in all circumstances",

they also stipulate 15S minimum rules which shall be observed in armed
conflict not of an international character occurring in the territory of a
party. The parties to such a conflict may also, by means of special
agreements, bring into force all or part of the other provisions of the
Conventions.
Under these minimum rules, all persons taking no active part in the
hostilities and members of the armed forces who have laid down their
arms or been placed hors de combat shall be protected and the wounded
and sick shall be collected and cared for. It is forbidden to treat such
persons inhumanely, in particular by any form of violence to life and
body, by outrages upon personal dignity, by taking hostages, by passing

^Protocoll, Arts. 85-91.

168
Ibid., in particular Art. 85, but also Art. 11 (4).
167
Ibid., Art. 9 (consisting of more than 100 lines).
159
1949 Conventions, Art. 3, common to the four.

222
sentences and carrying out executions without regular process. In order
to forestall formal reservations, the Conventions specify that application
of these rules shall not affect the legal status of the parties. Their appli-
cation, therefore, does not signify recognition of the international per-
sonality of a party which otherwise would not be entitled to it.
We mentioned above 159 why Protocol II was considerably reduced,
both in volume and in scope. Of the 39 articles in the initial ICRC draft,
only 18 remained, plus one which was transferred from its original posi-
tion in the draft to the final provisions.160 Protocol II is therefore only
half of what it was originally meant to be.
In the preamble, reference is made to Article 3 common to the 1949
Conventions and to the "international instruments relating to human
rights". This reference is justified in that Protocol II, in its present form,
is in fact a link between humanitarian law in the traditional sense of the
term and human rights.181
Part I of Protocol II, entitled "Scope of this Protocol", describes
first the Protocol's "material field of application", which we have already
discussed " 2 and then its "personal field of application".183 The article
in question, using the same terms as Protocol I, stipulates that there
shall be no adverse distinction, then goes on to cover "all persons affec-
ted by an armed conflict as defined in Article 1". The final provision in
this Part 1M categorically precludes the Protocol from having any effect
on the sovereignty of a State in whose territory a conflict is being waged
and no less categorically opposes all external intervention, either "di-
rectly or indirectly", in the conflict. While these reservations are under-
standable at the stage which international law has now reached, it is
difficult not to fear that they may be invoked to justify many an abuse,
in spite of everything said in the articles that follow.
The rest of the Protocol—besides the final provisions, which are
essentially the same as those in Protocol I—is divided into three Parts.
The very heading of Part II announces the principles of the "humane
treatment" to which are entitled "all persons who do not take a direct
part or who have ceased to take part in the hostilities".165

169
See above, Chap. IV in fine.
160
Article 19 on dissemination, very brief.
181
See above, Chap. I.
162
Protocol II, Art. 1.
1W
> Ibid., Art. 2.
184
Ibid., Art. 3 .
185
Ibid., Art. 4 .

223
 The list of "fundamental guarantees" that follows repeats what was
already said in Article 3 common to the 1949 Conventions, adding:
collective punishments, acts of terrorism, slavery and the slave trade in
all their forms (author's note: and this in the Twentieth Century!) and
pillage. A paragraph on the aid and care due specifically to children
included in this article seems not to have been put in its proper place.
Article 5 (the following article) contains a detailed list of all the guaran-
tees granted to persons "whose liberty has been restricted",166 while
Article 6 gives special guarantees concerning penal prosecutions "',
stating that no sentence shall be passed and no penalty shall be executed
except pursuant to conviction by an independent and impartial court.
The part concerning the "wounded, sick and shipwrecked" 168 is
probably the least controversial. It contains, in abbreviated form, the
sames rules as Protocol I concerning the victims of international armed
conflicts: the same duty to seek, collect and care for the persons men-
tioned in the heading, although without repeating the definitions given
in Protocol I. These persons, the medical and religious personnel caring
for them, and the units and means of medical transportation must be
"protected and respected" and are authorized to display the distinctive
emblem employed during international armed conflicts.
The authors of Protocol II were rather sparing with their words in
the final version of the Part concerning the "civilian population". Both
this population as a whole and "civilian persons" must be protected
"against the dangers arising, from miUtary cype.TaX\cms" and, YCl pa.Y\\Cu\aT,
"shall not be the object of attack, unless and for such time as they take
a direct part in hostilities".169 Only one clause specifically prohibits
"forced movement".170 There is no general clause protecting civilian
objects or the environment. There are three specific clauses m protect-
ing, respectively, "objects indispensable to the survival of the civilian
population" m , "works and installations containing dangerous forces",
and "cultural objects and places of worship". Relief societies,173 "such

166
Ibid., Art. 5.
167
Ibid., Art. 6.
168
Ibid., Arts. 7-12.
169
Ibid., Art. 13.
170
Ibid, Art. 17.
171
Ibid., Arts. 14-16.
172
This text was not included in the original abridged version; it was introduced
after a moving speech by the representative of the Holy See.
173
Protocol II, Art. 18.

224
as Red Cross organizations", were given the possibility to act; they
could thus "offer their services for the performance of their traditional
functions in relation to the victims of the armed conflict". Any such
action is subject to the consent of the High Contracting Party concerned.
This, briefly, is the content of Protocol II, somewhat modest in its
final version; its legal future is difficult to foresee.

XIV. Final remarks

We thus have a picture of humanitarian law as it stands today. Is it

flawless? Does it need further development? Man seeks perfection in
all that he does; humanitarian law is no exception. He gains experience
from each new armed conflict, and who can say if one day we will not
be able to stop all conflicts once and for all. So far, even the invention
of the most horrible weapons ever to exist has not prevented conflicts.
We must not lose hope that sooner or later we will achieve this ideal:
the elimination of war. No effort must be spared in the meantime to
make war—whether openly referred to as such or called by some other
name—less horrible by easing the plight of those that fall victim to it.
Of course, the best of rules at times go unobserved. This, however,
is certainly not the fault of those who have drawn them up. In no legal
system are violations considered as proof that the regulations violated
were unnecessary. On the contrary, man's imperfection renders them
necessary. In order to know that a rule has been violated, that rule must
first exist. At the present stage of development of the law of armed con-
flicts, of which humanitarian law, whose scope is constantly being broad-
ened, can be considered as the most important part, it is no longer the
rules that are lacking, but the willingness to observe them.
The very existence of these rules is of double value. First, there will
always be those people who, aware that they exist, will make the effort
to observe them. Second, if they do not observe them, there are at least
solid grounds on which to condemn them. Such condemnation is too
often, for the moment, only moral but it is to be hoped that as inter-

225
national penal sanctions become more enforceable than they are now,
it will become possible to try those who have violated a rule of inter-
national law before a competent and effective international court.

Stanislaw £ . Nahlik
Emeritus Professor
of the Jagellone University,
Cracow

N. B. Lack of space in the present issue of the Review prevents us from including
a list of abbreviations and the selected bibliography that the reader willfindhowever
in an offprint of the Review containing the article by Professor S. E. Nahlik.

226