International efforts to regulate the conduct of warfare and armed conflict are often understood to consist of two main codes of legal and humanitarian thinking: Geneva and Hague. Each approach consists of a series of conventions and protocols (confusingly, the Hague approach also incorporates the Gas Protocol signed in Geneva in 1925). Although it is now widely accepted that both streams flow together, each offers a distinctive approach to the problem of regulating armed conflict. The Geneva approach, in essence, establishes the distinction between combatants on the one hand and non-combatants (civilians) or those rendered hors de combat (wounded and/or captured) on the other. The last two categories should be protected from the effects of conflict and from inhumane treatment. The Hague approach is more concerned with the rights and duties of the combatants, with setting clear restrictions on their behaviour, and with the prohibition of certain weapons and inhumane practices during war.
The starting point in the Geneva approach was the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed in Geneva in 1864. The Convention established that wounded enemy soldiers should receive the same care and medical attention as friendly troops. The Convention also established the legal status of medical personnel. The 1864 Convention was revised by the 1906 Convention and then, following the experience of WW I, by the 1929 Geneva Conventions for the treatment of both the wounded and POWs. These were all superseded by the 1949 Geneva Conventions.
These have almost universal participation and are in any case regarded as being binding upon all states, whether or not participating directly. There are four conventions. The first two address the status and treatment of wounded and sick combatants on land and at sea. The third Convention is concerned with the treatment of POWs. The fourth Convention establishes rules for the protection of civilians during war. The four Conventions share a set of ‘common articles’ which all signatories agreed would apply ‘as a minimum’. Non-combatants and those rendered hors de combat by whatever means would ‘in all circumstances be treated humanely’. Certain specified practices were prohibited, including the use of ‘cruel treatment and torture’, the taking of hostages, degrading treatment, and summary executions.
In 1977 the 1949 Conventions were supplemented by two Additional Protocols, designed to reaffirm both the 1949 Conventions and elements of the 1907 Hague Conventions. The First Additional Protocol concerned the protection of victims of international armed conflict, and requires, inter alia, discrimination in target selection. The Second Additional Protocol attempts to extend the Geneva approach to include non-international armed conflict.
The Hague approach begins with the 1868 St Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes in Weight. This agreement was intended to prevent unnecessary suffering caused to troops by the use of exploding bullets. In 1899 delegations from 26 states met in The Hague for the First Hague Peace Conference. The Conference resulted in three Conventions and three Declarations. The Conventions concerned the peaceful settlement of disputes, respect for the laws and customs of wars on land, and maritime warfare. The three Declarations banned the use of projectiles and explosives from balloons, the use of projectiles able to dispense poisonous gases, and the use of expanding (or ‘dum-dum’) bullets.
The Second Hague Peace Conference in 1907 was attended by delegations from 44 countries. The Conference resulted in thirteen Conventions and one Declaration. The Declaration renewed the 1899 Hague Declaration I concerning the use of balloons. The Conventions covered a wide range of subjects. The 1907 Hague Convention IV ‘Respecting the Laws and Customs of War on Land’ sought generally to ‘diminish the evils of war, as far as military requirements permit’. Stating that ‘the right of belligerents to adopt means of injuring the enemy is not unlimited’, the Convention banned various weapons (such as poison weapons, and those that cause unnecessary suffering) and practices (the killing or wounding of surrendered enemy, the misuse of a flag of truce, etc.). Other Conventions addressed the issue of neutrality in land and naval warfare, the status of enemy merchant ships, the laying of ‘automatic submarine contact mines’, and naval bombardment.
Although they never entered into force, the 1923 Hague (Draft) Rules of Air Warfare were an attempt systematically to apply the Hague approach, which had so far addressed mainly land and naval warfare, to war in and from the air. Thus, incendiary or explosive ammunition was not to be used by or against aircraft, aircraft were to be marked correctly and carry the correct papers, and crew escaping a crippled aircraft by parachute were not to be attacked during their descent. Article 22 of the Draft Rules overlapped the Geneva approach when it prohibited ‘aerial bombardment for the purpose of terrorising the civilian population, or destroying or damaging private property not of a military character, or of injuring non-combatants’. Two years later, during a League of Nations conference on controlling the international arms trade, the 1925 Protocol for the Prohibition of the Use of Asphyxiating or Other Gases, and of Bacteriological Methods of Warfare was signed in Geneva. The Protocol was derived from the basic Hague principle that weapons which cause unnecessary suffering should be prohibited.
The most recent illustration of the Hague approach is the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Acknowledging the general principle of restraint in warfare and the requirement to avoid unnecessary suffering, the signatories of the Convention agreed to prohibit or restrict certain weapons, listed in three Protocols to the Convention: weapons ‘the primary effect of which is to injure by fragments which in the human body escape detection by X-rays’; mines, booby-traps, and ‘other devices’; and incendiary weapons. In 1995 a fourth Protocol was added, prohibiting the use of blinding laser weapons, and in 1996 the existing second Protocol was revised as a result of the international campaign to ban the production and use of anti-personnel mines.
— Paul Cornish
