INTERNATIONAL ARMED CONFLICT
Common article 2 of the four Geneva Conventions of 1949 set out the circumstances of application of the Conventions as follows: … the present Conventions shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Conventions shall also apply to all cases of partial or total occupations of the territory of a High Contracting Party, even if the said occupation meets with no resistance.
Article 2 makes it clear that 1949 Geneva Conventions normally apply to ‘international armed conflicts’ and cases of occupation of territory. As far as international armed conflicts are concerned, protocol I of 1977 supplements the 1949 Geneva Conventions. Protocol I applies in the same situations referred to in Article 2 common to the 1949 Geneva Conventions.
Protection of wounded, sick, and shipwrecked
1949 Geneva Convention I is concerned of the wounded and sick in the field while Geneva Convention II deals with the protection afforded to the wounded, sick and those shipwrecked at sea. Protocol I is a great advance to the Geneva Convention in that it gives a rather extended definition of exactly what is meant by sick, wounded and shipwrecked. Article 8 of protocol I provides:
a. ‘Wounded’ and ‘sick’ mean person, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from an act of hostility….
b. ‘Shipwrecked’ mean person, whether military or civilian….
Protection of Prisoner of war
Of all victims of armed conflict, prisoners of war (POWs) are perhaps the most vulnerable.
Lawful combatants and prisoners of war status
Not al persons captured in the course of armed conflict are entitled to the status of ‘prisoners of war’ and the legal protection associated therewith. The basic principle is that persons who are recognized as ‘combatants’ are entitled to be treated as a prisoners of war upon capture by an adverse party in the armed conflict. It is in the interest big powers to exclude from the category of lawful combatants any person other than members of the regular army. But they do not wish members of the enemy civilian population to be upgraded to the status of lawful combatants. The compromise solution reached by big powers with lesser States was to grant the status of lawful combatants. In addition to regular armies, to ‘militias and volunteer corps’, provided the latter fulfilled the required conditions. Thus, article 4 A of the 1949 Geneva Convention III, provides as follows:
Prisoners of war, in the sense of the present Convention, are persons belonging to one the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict….
Provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance the laws and customs of war.
By changing the required conditions for combatants, Protocol I of 1977 widen the protection of prisoner of war. Since the conditions are reduced, a person may now qualifies as a prisoners of war although he would not have enjoyed protection under the Geneva Convention III. This extension will prove to be more useful than the presumption clause in the Geneva Convention that protection of a protection of a prisoner of war will continue until any question concerning his status has been settled by a competent Tribunal.
Article 43 of Protocol I provides that the armed forces of a party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that party, that such armed forces shall be subject to an internal disciplinary system which, shall enforce compliance with the rules of international law applicable in armed conflict, and that members of the armed forces of a party to a conflict are combatants.
Regarding ‘prisoners of war’ status, Article 44 of Protocol I provide that:
1. Any combatants, as defined in article 43, who falls into the power of an adverse party, shall be a prisoner of war.
2. …
3. … Combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to the attack.
Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, 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.
The general protection of prisoners of war
The basic standard of treatment of prisoners of war is enunciated in article 13 of Convention III, which states that “prisoners of war must at all times be humanely treated”. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a ‘serious breach’ of the Convention. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insult and public curiosity. Measures of reprisals against prisoners of war are prohibited.
According to article 109, parties the conflict are bound to send back to their own country… seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel. Once active hostilities have ceased, Geneva Convention III requires by Article 118 that ‘prisoners of war shall be repatriated without delay.
Protection of Civilians
The protection of civilians is from the humanitarian point of view, the most important aspect of the regulation of armed conflict because such persons include the weakest members of the community most in need of protection, such as omen, children and the aged. However, rather circumscribed provision was made for civilian protection in 1949 Geneva Convention IV. The rights laid down in the Geneva Convention are now extensively supplemented by the provisions of protocol I and II of 1977.
Civilians and civilian population
According to article 48 of the protocol I, the basic rule for the protection of civilians is that the parties to the conflict shall at all times distinguish between civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
According to article 50 (1) of protocol I, “a civilian is any person who does not belong to one of the categories of persons referred to in article 4A (1), (2), (3) and (6) of the Geneva Convention III and in article 43 of this protocol (which define ‘armed forces’ and ‘combatants’). In case of doubt whether a person is civilian, that person be considered a civilian. The civilian population compromises all persons who are civilians. The civilian population as such, as well as individual civilians, shall not to be object of attack. Civilians shall enjoy the protection unless and for such time as they take a direct part in hostilities.
Indiscriminate attacks are prohibited. The following types of attacks are, among others, to be considered as indiscriminate:
(a) An attacks of bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objective located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) An attacks which may be expected incidental loss civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Attacks against the civilian population or civilian by way of reprisals are prohibited.
Civilian objects
The basic rule is that objectives shall not be the object of attacks or of reprisals. Civilian object are all object which are not military objectives. Attacks shall be limited strictly to military objectives. Military objectives are limited to those objectives which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization offers a definite military advantage. In case of doubt whether an object which is normally dedicated to civilian purpose, such as place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be used.
Protection of place of worship and cultural heritage: it is prohibited to commit any acts of hostility directed against the historic monuments, works of art pr place of worship which constitute the cultural or spiritual heritage of peoples.
Protection of objects indispensable to be survival of civilian population: according to article 54 of Protocol I, starvation of civilians as a method of warfare is prohibited. It is also prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party, whatever the motive.
