Sanctions and Enforcement of the Humanitarian Law of The Four Genera Conventions of 1949 and Geneva Protocol I of 1977

• Author: by Major Thomas J. Murphy
• Pages: 02

1. INTRODUCTION

   The four Geneva Conventions of 1949. embrace the substance of that body of public international law known as the humanitarian laTv of armed conflict Their purpose. in essence. 1s to provide minimum protections, standards of humane treatment. and fundamental gua-rantees of respect to Indi\iduals who become victims of armed eonflicta. The Geneva Comentians are designed to protect individuals who are affected by bur are not direct13 engaged in armed hostilities as veil as farmer combatants ~n armed conflicts who by reason of injury, illness or caprure are placed harm de combat. that is, outside of and unable to participate furtherin theconflict. Infourhundredand tnenty-nine articles, these international covenants set forth a wide range of general principles and specific rules gorerning the treatment to be accorded to individuals, and in some circumstances tothe whole of a region's population. in times of armed conflict. To effect these protections of iictims of armed hostilities. the Conventions

   *Judge Advoeate Generay9 Corps. United States Army Currently attending 32d Judse Advocate Officer Graduate Course. 1983-84 Foimerl~ Contract Attormi. Mohhfy Equipment Research and Dmelopment Command. Fbrr Beivor Yirgini, 1980-83 Post Judge Advocate. Legal Advnar io Cuban Refugee Operation Task Force, Fort McCoy. W~lseonsin, 1979-80 TrlnlCaumel Defense Counsel 2d Armored Division (Forward) Garlafadt. Federal Republic of Germany and Headquartera, Southern European Task Farce. Vincmca.ltaly 1976-79 LL M .GeorneWashmnon UnweriitT. 1933 J D . Crewhton Unlvermt\. 1976 B.A.

   Universitv ai 10u.s 1973

   Completeh Judge Adwmtebffmr Basic &ur$e, 1976. Member mi the bars ai the BIB~PSof lows. Illinois. and Nebraska.

   Thx aitide mi adapted {ram a thesin submitted ~n Partial satisfaction of degree reqnirements I" the LL.M program I" Inteinational Law atThe George aarhinglan rn,vers,ty.

   'Geneva Comenflon forrhe Amilioratian oifhe Condifionofthe Wavndedand Sick m Armed Form m the Field Aug. 12.1949 (1956)6U.S.T 3114 TI A S So 3362, 75 U N.T S 31 [hereinaftereired 8%

   First GenevaConventionl GenevaConventioniar the Amelioration af the Condition of the Wounded Siekand Shiparecked Membersof Armed Forces st Sea. Aug 12. 1949 (1956) 6 U.S.T. 3217 TI A S No 3363 75 U S.T S 31 [hereinafter cited BP Second Genera Convention], Geneva Conrenttan Relatire to the Treatment af Piisonera of War. Aue 12.1949. (1956) 6 U S T 3316, T I AS. Na 3364, 75 U.N T S. 135 [hermailer cited as Third Genera Conrentmn]: Geneva Canrention RelativatotheProtectian olCivilian Persons ~n Timeof War. Aug 12,1949.(1956160 8 T 3516.T.I.A S. No 3365,71U.NT.S.287[hareinafferelfeda~ Fourth Genera Canrenfmn].

   establish norms of behavior for individuals and nations, substantive penal rules, and procedural Implementation and enforcement responsibilities for states.

   The "Protocol Additional to the Geneva Conventions of 12 August 1919. and Relating to the Protection of Victims of International Armed Conflicts" (Protocol 1Y embodies the most recent advances made through the continuing endearors of the international community to formulate meaningful and effective measures for enforcement of the international humanitarian law of armed confhct. Protocol I is supplementary to rather than a recodification of. the Genera Conventions of 1949 As stated in it3 preamble. the intended function of Protocol I may be considered to hale two aspects'first. to reaffirm and to de\elop the normative provisions of the humanitarian law which protect \ictims of armed conflicts and. second to supplement those measures contained in the humanitarian law which are intended to reinforce the application of Its protective provisions by states? 4 substantial number of Protocol 1's one hundred-two articles promote the first aspect of its goal by enacting enhanced standards of conduct and of responsibility both for states and for Individuals. Other articles promote the latter aspect of Its function by instituting additional procedural mechanisms which are designed to increase effectiveness ~n the implementation and enforcement of the humanitarian law of armed conflict. In the final analysis. howler. the essential purpose of Protocol I E the same as that of the Genera Conventions to minimize unnecessary destruction of human and material values in situations involvingarmed hostilities. The incorporation of more explicit standards of conduct and more effective implementation and enforcement measures in the humanitarian laa canonlyresult ~n the realization ofmoremeanmeful protections by a greater number of individuals who fall victim to situations of armed conflict.

   The four Genera Concentions of 1949 were opened for signatureon August 12. 1949 and entered into force on October 21, 1950: As of

   PPiarocol I art 1131'Id. at Prasrnhle. pala 3&The Law of Armed Conflictl. A Collectian of Conientioni. Resalvtioni and Other Documents 299-629 (D Sehmdlsr & d Taman eds 2d rev. & completed ed 19811 [hore#nafrereited asSchmdler&Tomanl .illCon~enrianrandRegulstianarelafIngrothe laws of armed canfiicl discussed herein are reprinted ~n this eompilsfmn of dmumenrj4

   June 30, 1982. one hundred fifty-one states had become parties tothe Genera Conventions by depositing their instruments of ratification. accession OF declaration of succession with the Federal Council of Switzerland, the depository state.& Thus. under conventional or international treaty l a w nearly ever>- nation an earth is legally bound to comply with both the subitantirenorms and the procedural rules which are set forth in the Comentions. Furthermore. when the Geneva Conventions were drafted, they were, to a great extent, merely declaratory of customary international legal principles which are applicable to all states. Since they came into effect. many newly recognized humanitarian legal principles which they codified have been acknonledged tocnnstit"teanintegral partafthecustomarg law of nations. Therefore, the essential principles of humanity which the Geneva Canrentions comprise simply reflect international customary law and constitute absolute commitments for all nations. While the Conventions prescribe procedural methods oi enforcing humanitarian protections and af obtaining redress im their invasion u hich may be binding only upon their signatary states, the Contentions are not mere reciprocal treaties that are limited in their application to relations between states that are parties to them, Rather. their substantive international legal principle; create, deiine. and regulate humanitarian protections which have universal application .

   In contrast. Geneva Protocol I of 1977 has rather limited application at this time. Protocol I was adopted Genera on June 8, 1977, and entered into force on December 7. 1978.' Through August 13, 1982, twenty-five states had become parties to Protocol I by depositing imtruments of ratification or acceSSioii with the Swiss Govern-memP Sone of the major economic or military powers oithe East or of the West have as yet become a party to Geiieva Protocol I. Canaequently. the substantive legal principles that ilre newly enunciated in Protocol I. as well as the additional procedural methods set forth therein for implementation and enforcement of the humanitarian I a n by states. constitute binding commitments for onlyaminorityof all nations. In certain respects, however, Protocol I is itself merely declaratory oE legal precepts which have been recognized to reflect the customary law of nstions. Such principles already established in customary international law hare the same universal application as do the customary standards set forth in the Geneva Conventions. The

   codification of such internationall? recognized norms in Protocol I may therefore be considered to be binding upon all states regardless of their statu> as signatories or non-signatarier of Protocol I.

   The purpose of this article 1s to examine those provmons of the humanitarian lav of armed conflict which pertain to enforcement and sanctions SO that an evaluation mas be made of the porent~al benefits of the additional humanitarian enforcement princ~ple~ and

   procedures which haw been enunciated in Geneia Protocol Iof 197; First. this examination considers the role ofthe humanitarian lax of armed conflict ~n international law and gixe3 a perspectire of its historical deielopment. Second. the sanctions and enforcement pro- Y I S ~ ~ S

   of the Geneva Camentioni of 1949 are rerie\wd m order to identify those pro\ ~sions of the humanitarian law rhat currenrl) are applicable to nearly ereri state under conventional law or that hare universall) binding effect upon a11 states under the cusromaq Ian of nations. Third. the supplemental prov1sion3 of Genma Protocol I of 19i7 that concern enforcement and sanctions are studied to distinguish those that merely reflect customary international law from those rhat ate intended to establish new precepts and procedures in the humanitarian law Fourth. enforcement and sanctioning piavis~onsof Protocol I are analyzed todeterminerheextentton hich the! enhance the existing humanitarian Ian embodied in the Genera Canrentions and to appraise the prospects for meaningful application and effectite enforcement of the humanitarian lair in International armed conflicts underthecumulative humanitarianlau ofthe Geneva Conventions and Protocol I. should the latter gain widespread acceptance by states. Finally, some recommendations regarding the adoption of Protocol Idevelopments ~n the humanitariaby those persons iiho have an inteaf the humanitarian law of armed conflict

   The scope of this inquiry can be clarified by defining some terms that reflect the essence of this subject. First. for the prorkion~ of the laiv of armed conflict to be given meaningful application. they must include some element of sanction and enforcement. The term " -tion" Is used here in a broad sense ~n reference to all matters li

   promote adherence 10 that l a w...