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The Penal Responsibility And Sanctions For Violations Of International Humanitarian Law
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Modern international humanitarian law can be associated with
sophistication of weapons of mass destruction employed in modern warfare
by large national armies and the resultant suffering of the wounded
soldiers lying helpless in the battle field, the wanton destruction of
properties and the ecological effect on the environment. These coupled
with the increasing interest of state in the common principles of
respect for the human being informed the development of the modern law
of armed conflicts which is based on multilateral conventions.
On 24
June 1859, the Austrian and French armies clashed at Solferino, a town
in modern Italy. After 16 hours of fighting the battle field was strewn
with 40,000 dead and wounded men. The same evening Henry Dunant, a Swiss
citizen, arrived at the area on business. He was horrified by what he
saw: for want of adequate medical services in both armies, thousands of
wounded soldiers were left to suffer unattended and abandoned to their
fate. Dunant immediately set about organizing care for them without
discrimination, helped by civilians from neighbouring villages. On
return to Switzerland, Dunant was unable to forget the terrible scene he
had witnessed.
He decided to write “A memory of Solferino†which he
published at his own expense in November 1862, and circulated to
friends, philanthropist, military officers, politicians and certain
reigning families. The book was an immediate success and its appeal to
human conscience was eloquent, as he stated. “On certain special
occasions, as, for example, when princes of the military art belonging
to different nationalities meet… would it not be desirable that they
should take advantage of this sort of congress to formulate some
international principle sanctioned by a convention and inviolate in
character, which once agreed upon, and ratified, might constitute the
basis for societies for the relief of the wounded in the different
European countries.
On 9th February 1863, the Geneva society for
public welfare, a charitable association based in the Swiss city of
Geneva, decided to set up a five-member commission to consider how
Dunant’s ideas might be implemented.
This commission made up of
Gustave Moynier, Guillaume-Henry Dufour, Louis Appia, Theodore Mounior
and Dunant met on 17 February and founded the International Committee
for Relief to the wounded in time of war, which later became the
International Committee of the Red Cross (ICRC). By Dint of enthusiasm
and perseverance, they succeeded in 1864 in persuading the Swiss
government to convene an international conference in which the
representative of twelve states participated and the tangible result of
which was the signing in 1864 the Geneva Convention for the Amelioration
of the conditions of the wounded in the Armies in the field. This
expressed with clarity, the idea of a generally applicable humanitarian
principle, by requiring the High contracting parties to treat their own
wounded and those of the enemy with equal care. Medical personnel,
equipment and installation were to be protected.
They were to be
identified by a distinctive emblem, a red cross on a white background.
This first Geneva Convention signed in 1864, marked, the beginning of
modern international humanitarian law. In 1899, the Hague Convention
respecting the laws and customs of war on land and the adaptation to
maritime warfare of the principles of the 1864 Geneva Convention. In
1906, the provisions of the 1864 Geneva Convention was improved and
supplemented. In 1907, the Hague Convention of 1899 was reviewed and a
new Convention which defined the categories of combatants entitled to
prisoner of war when captured and to a specified treatment during the
whole period of their captivity. In 1925, the Geneva Protocol for the
prohibition of the use in war of asphyxiating, poisonous or other gases
and of bacteriological methods of warfare was adopted. These Conventions
which are at present in force were adopted.
The Diplomatic
conference of 1949 not only adopted the ‘Geneva Convention relative to
the protection of Civilian Persons in time of warâ€, but also carried out
a revision of the three earlier conventions, the text of which were
brought into harmony. The four Geneva conventions, containing some 400
articles, constitute a legal achievement of historic importance which
for more than fifty years has afforded protection for the countless
victims of armed conflict.
The international committee of the Red
Cross, the initiator of international humanitarian law, in its quest to
develop the law so that it may keep pace with the changing pattern of
conflicts, undertakes revision of existing instruments as and when it
appears to it to be necessary and feasible Although the 1949 Geneva
conventions marked a major advance in the development of humanitarian
law. In 1965, the ICRC felt the time was ripe for such an undertaking.
After de-colonization, however, the new states found it difficult to be
bound by a set of rules which they themselves had not helped to prepare.
What is more, the treaty rules on the conduct of hostilities had not
evolved since the Hague Treaties of 1907. Since revising the Geneva
Conventions might have jeopardized some of the advances made in 1949, it
was decided to strengthen protection for the victims of armed conflict
by adopting new texts in the form of protocols additional to the Geneva
Conventions11.
On the basis of the draft rules prepared in 1956, then
on resolutions adopted in the 1960’s by two International Conference of
the Red Cross and by the International Human Rights conference held in
Tehran in 1968, the ICRC studied the possibility of supplementing the
conventions adopted in 1949. In 1969, the ICRC submitted the idea to the
21st International Conference of the Red Cross, in Istanbul; the
participants including the states party to the Geneva Conventions
mandated it accordingly and the ICRC’s own lawyers embarked on the
preparatory work. Between 1971 and 1974, the ICRC organized several
consultations with government and the movement, the United Nations being
kept constantly informed of the progress of the work.
In 1973, the
22nd International Conference of the Red Cross, in Tehran, considered
the draft texts and fully supported the work done. In February 1974 the
Swiss Government, as depository of the 1949 Geneva Conventions, Convened
the Diplomatic Conference on
The re-affirmation and development of
international humanitarian law applicable in armed conflicts, in Geneva,
it comprises four sessions and ended in June 1977.
The law of
Geneva, or humanitarian law proper, is designed to safeguard military
personnel who are not or no longer taking part in the fighting and
persons, particularly civilians not actively involved in hostilities,
while the law of the Hague, or the law of war, which establishes the
rights and obligations of belligerents in the conduct of military
operations and limits the means of harming the enemy.
These two
branches of IHL are not completely separate. However, the effect of some
rules of law of The Hague is to protect victims of conflicts, while the
effect of some rules of the law of Geneva is to limit the action that
the belligerent can take during hostilities. With the adoption of the
Additional Protocols of 1977, which combined both branches, of IHL, that
distinction is now merely of historical and didactic value.
At the
end of the fourth and last session of the Diplomatic Conferences, the
plenipotentiaries of the 102 states present adopted the 102 articles of
Protocol 1 relating to the victims of international armed conflicts and
the 28 articles of Protocol 11 relating to the protection of victims of
Non- international conflicts.
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