On the occasion of World Humanitarian Day, it seems appropriate to look to the basic principles of humanitarian law, which show what is always unacceptable. Prior to 1949, there was little international humanitarian law applicable to non-international armed conflicts, although such conflicts were becoming increasingly prevalent and overtaking their international counterparts. As such, after difficult negotiations, it was decided to try to distil the essence of the Geneva Conventions into a single provision.
This was common Article 3 of the Geneva Conventions, that deserves to be cited in detail:
… each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
Common Article 3 may be just shy of 70 years old, but it is by no means of retirement age. It may not read with Byronic lyricism, but it has a quality of its own. As a teacher of International Humanitarian Law, I often set the task of summing up the hundreds of provisions of the Geneva Conventions in a single article. Despite having many talented people trying to do so, no one has succeeded in improving on common Article 3.
Common Article 3 may be just shy of 70 years old, but it is by no means of retirement age.
It is true that there are issues that it misses. For example, there is nothing in the Article that deals with the prohibition of certain weapons, such as chemical or biological ones, or other aspects of what is sometimes known as “Hague” law. However, it reflects what is considered a base-line level of protection that is always applicable. It is reflective of customary law and reflects what the International Court of Justice has described as the “elementary considerations of humanity.”
It is true, though, that what is considered humane or not is not always simple to determine. When common Article 3 was drafted, it was rather thought that the answer would be obvious. That was perhaps a little optimistic, as the evaluative nature of the concept of humane treatment is one that has been the subject of difficult discussions, some of which have been engaged on an unfortunately self-interested basis.
That said, as the plurality opinion in the US Supreme Court in the Hamdan v Rumsfeld case showed, Article 75 of Additional Protocol I to the 1949 Geneva Conventions—which, despite being, as a matter of treaty law, only applicable to international armed conflicts—can also be a useful measure by which to interpret common Article 3. Practitioners may wish to take with them, if nothing else, common Article 3 and Article 75 when they are putting the law into practice. They are the lodestar from which humanitarian law needs to be applied.
In a troubled world, these provisions reflect a level of protection that is owed to everyone, no matter their race, religion, gender, or any other grounds. This was, rightly, the intention of the drafters of the Conventions, and they set them down in lapidary terms. Although practice has not always lived up to these provisions, this is more a failure of political will than one of drafting failures.
Let us hope that the humanitarian ideals encapsulated in the Geneva Conventions become more honoured, rather than in the breach, in the future. The matter is one which is in part of enforcement, by bodies such as the International Criminal Court, but, more importantly, an inculcation of those values by those involved in conflicts. It would be best if people go beyond them, but these standards are what can be expected of all, whoever, and wherever they are.
Featured image credit: Adventures at vadodara by Priyash Vasava. CC0 via Unsplash.