Polytechnic University of the Philippines

A. Mabini Campus, Sta. Mesa, City of Manila

College of Law

WHAT ARE THE SOURCES OF IHL?

Submitted by:
BINUCAL, CEASAR IAN
NAVALTA, KRISTINE
S.1JDHL311

Submitted to:
Judge Stanley Marvin J. Pengson
Humanitarian Law in Armed Conflicts

Dated:
April 24, 2019
 SOURCES OF INTERNATIONAL HUMANITARIAN LAW

Background

International humanitarian law (IHL) is the branch of Public

International Law that regulates the conduct of war (jus in bello). It seeks to
limit the effects of armed conflict by protecting persons who are not
participating in hostilities, and by restricting and regulating the means and
methods of warfare available to combatants.

International Humanitarian Law is often broken down into two sub

categories, referred to as “Hague Law” and “Geneva Law”. This division
reflects the development of IHL, with Hague Law (through the Hague
Conventions of 1899 and 1907) regulating how armies should conduct
themselves during hostilities, and the Geneva Conventions regulating
issues of protection and how people in your power should be treated. The
two streams take their names from a number of international conferences
which drew up treaties relating to war and conflict, in particular the Hague
Conventions of 1899 and 1907, and the Geneva Conventions, the first
which was drawn up in 1863. Both deal with jus in bello, which deals with
the question of whether certain practices are acceptable during armed
conflict.

With the adoption of the Additional Protocols to the Geneva

Conventions, which includes extensive regulation of topics traditionally
referred to as Hague Law, the separation is less relevant in today’s
practice.

Systematic attempts to limit the savagery of warfare only began to

develop in the 19th century. Such concerns were able to build on the
changing view of warfare by states influenced by the Age of Enlightenment.
The purpose of warfare was to overcome the enemy state, which
could be done by disabling the enemy combatants. Thus, "the
distinction between combatants and civilians, the requirement that
wounded and captured enemy combatants must be treated humanely, and
that quarter must be given, some of the pillars of modern humanitarian law,
all follow from this principle".
IHL Sources are the same as PIL:

1. International Convention: The two main treaty sources of IHL are

the Hague Convention (1907), setting out restrictions on the means and
methods of warfare, and the four Geneva Conventions (1949), providing
protection to certain categories of vulnerable persons. These are the
wounded and sick in armed forces in the field (GCI); the wounded, sick and
shipwrecked members of armed forces at sea (GCII); prisoners of war
(GCIII); and protected civilians (GC IV). The Fourth Geneva Convention is
particularly relevant to humanitarian protection and assistance. It was
established to prevent in future conflicts the scale of civilian suffering
experienced during the two World Wars.

The two branches of law covered in the Hague and Geneva

Conventions are further developed by the first two Protocols Additional to
the Geneva Conventions on the protection of civilians (1977). These are
referred to as Additional Protocol I (AP I), governing international armed
conflict, and Additional Protocol II (AP II), governing non-international
armed conflict.

The four Geneva Conventions have achieved universal applicability

as they have been universally ratified. The Additional Protocols, however,
have yet to achieve near-universal acceptance. The United States and
several other significant military powers (e.g. Iran, Israel, India and
Pakistan) are currently not parties to the protocols.

In 2005, a new additional instrument was adopted by States to

remedy the problem of the recognized emblems (the red cross and the red
crescent) being wrongly perceived in certain contexts as having religious,
cultural or political connotations, and not being respected as neutral
distinctive signs. Additional Protocol III introduced an additional emblem,
the red crystal, which offers the same protection as the red cross and the
red crescent emblems. In addition to the four Geneva Conventions of 1949
and their three Additional Protocols of 1977 and 2005, a large number of
treaties and other legal instruments deal with issues relating to the conduct
of hostilities and the protection of the civilian population. They contain rules
applicable in international armed conflict, non-international armed conflict
or both (the issues include the use of certain weapons, the protection of
cultural property, the protection of children, and the prosecution and
punishment of criminal offences).

It is worthy to note that among the 195 countries in the world today,
193 member states of the United Nations and 2 countries that are non-
member observer states: the Holy See and the State of Palestine. This
gave the Geneva Convention the status of universality making it binding to
all.

Not included in this total count of 195 countries are:

• Taiwan - the United Nations considers it represented by the

People's Republic of China
• The Cook Islands and Niue, both states in free association with
New Zealand which are members of several UN specialized
agencies and have been recognized "full treaty-making capacity",
but are neither member states nor non-member observer states.
• Dependencies (or dependent territories, dependent areas,
dependencies) and Areas of Special Sovereignty (autonomous
territories)
• Other countries recognized by the United Nations as not being
self-governing

2. International Custom: Customary international law (CUIL) is a

fundamental source of IHL providing legal protection to cover protection
gaps arising from a lack of ratification by states of key treaties, especially in
circumstances of internal armed conflict.

While CUIL is an incredibly important tool of protection during armed

conflicts, its limitations are that unlike treaty law the rules are not
necessarily written down in a clear and accessible format, and the content
of the rules is generally less specific that what you may find in a treaty.

Yet for practitioners dealing with IHL, the challenge is reduced

significantly due to an ICRC commissioned project which identified 161
rules of IHL considered to be customary international law. These have
been collected in the ICRC's Customary International Law Database.

A comprehensive study by the International Committee of the Red

Cross (ICRC) on IHL and customary law indicates that the majority of rules
enshrined in treaty law have received widespread acceptance and have
had a far-reaching effect on practice. They thus have the force of
customary law. Some provisions in the Hague and Geneva Conventions
were reflections of existing customary law, whereas others have developed
into customary law. They are therefore binding on all states regardless of
ratification, and also on armed opposition groups in the case of non-
international armed conflict (Henckaerts, 2005). The application of
customary international law is particularly significant for non-international
armed conflicts, as treaty law has remained limited in this area.

Customary law is a body of rules that States regard as binding under

international law. These rules are identified by looking at the practice of
States (including official accounts of military operations and other official
documents, military manuals, national legislation and case law). These
rules (which are accepted as law) need to be distinguished from practices
that States do not regard as obligatory (e.g. practices followed as a matter
of policy rather than out of any sense of legal obligation). Customary law
may fill certain gaps in the protection provided to victims of armed conflict
by treaty law. These gaps result when:

1. Certain States do not ratify certain treaties (e.g. the Additional

Protocols or certain weapons conventions). (In the case of armed conflicts
involving a coalition of States with different treaty-based obligations –
because they have not all ratified the same treaties – customary law may
represent those rules that are common to all members of the coalition. In
this situation, customary law may serve as a base for drafting common
rules of engagement.)

2. Treaty law lacks detailed rules on certain issues pertaining to non-

international armed conflict. (This is the case with respect to the conduct of
hostilities (military objectives, indiscriminate attacks, proportionality,
precautions in attack), the protection of journalists, humanitarian
assistance, and also in other areas such as the implementation of
humanitarian law. Once again, customary law may fill the gap, because
practice has created a substantial number of customary rules that are more
detailed than the often rudimentary provisions in Additional Protocol II of
1977.)

3. General principles of law: IHL recognises a number of jus cogens

norms, from which no derogation is allowed, for example, prohibitions
against genocide and torture. Also, under the Martens Clause of the
preamble of the 1899 Hague Convention (cornerstone of IHL
understanding and interpretation), until a more complete code of the laws
of war is issued, the High Contracting Parties think it right to declare that in
cases not included in the Regulations adopted by them, populations and
belligerents remain under the protection and empire of the principles of
international law, as they result from the usages established between
civilized nations, from the laws of humanity and the requirements of the
public conscience.

In other words the principles of public conscience and humanity

should be the guiding notions in framing the appropriate application of
international humanitarian law.

4. Judicial decisions and the teachings of the most highly

qualified publicists as subsidiary sources: International courts have
played a role in interpreting and developing IHL.

Development of IHL/Codification

The most important antecedent of IHL is the current Armistice

Agreement and Regularization of War, signed and ratified in 1820 between
the authorities of the then Government of Great Colombia and the Chief of
the Expeditionary Forces of the Spanish Crown, in the Venezuelan City of
Santa Ana de Trujillo. This treaty was signed under the conflict of
Independence, being the first of its kind in the West.
 It was not until the second half of the 19th century, however, that a
more systematic approach was initiated. In the United States, a German
immigrant, Francis Lieber, drew up a code of conduct in 1863, which came
to be known as the Lieber Code, for the Union Army during the American
Civil War. The Lieber Code included the humane treatment of civilian
populations in the areas of conflict, and also forbade the execution of
POWs.

At the same time, the involvement during the Crimean War of a

number of such individuals as Florence Nightingale and Henry Dunant, a
Genevese businessman who had worked with wounded soldiers at the
Battle of Solferino, led to more systematic efforts to prevent the suffering of
war victims. Dunant wrote a book, which he titled A Memory of Solferino, in
which he described the horrors he had witnessed. His reports were so
shocking that they led to the founding of the International Committee of the
Red Cross (ICRC) in 1863, and the convening of a conference in Geneva
in 1864, which drew up the Geneva Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field.

The Law of Geneva is directly inspired by the principle of humanity. It

relates to those who are not participating in the conflict, as well as to
military personnel hors de combat. It provides the legal basis for protection
and humanitarian assistance carried out by impartial humanitarian
organizations such as the ICRC. This focus can be found in the Geneva
Conventions.

The Hague Regulations and Conventions

The Hague Conventions of 1899 and 1907 and their annexed

regulations are a set of conventions primarily regulating the conduct of
hostilities. The Conventions represent the basic and commonly accepted
rules of engagement – the legal framework covering the means and
methods of warfare. While many of these rules have been updated and
improved, especially through the Fourth Geneva Convention and Additional
Protocols, they remain a key source of international law, accepted
universally as customary international law.
 The IV Hague Convention is of particular importance during
occupation and sets out a definition of occupation which remains applicable
to this day. It also sets out some of the key principles that regulate
occupation: namely the obligation to ensure public order and civil life, and
obligation to respect of private property.

The Geneva Conventions

The Four Geneva Conventions were collectively codified in 1949 but

a result of a process that developed in a number of stages between 1864
and 1949. It focused on the protection of civilians and those who can no
longer fight in an armed conflict. As a result of World War II, all four
conventions were revised, based on previous revisions and on some of the
1907 Hague Conventions, and readopted by the international community in
1949. Later conferences have added provisions prohibiting certain methods
of warfare and addressing issues of civil wars.

With the exception of Common Article Three, the protections afforded

under the Geneva Conventions are limited to international armed conflicts.

The first three Geneva Conventions were revised, expanded, and

replaced, and the fourth one was added, in 1949.

 The Geneva Convention for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field was adopted in
1864. It was significantly revised and replaced by the 1906 version,
the 1929 version, and later the First Geneva Convention of 1949.
 The Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
was adopted in 1906. It was significantly revised and replaced by the
Second Geneva Convention of 1949.
 The Geneva Convention relative to the Treatment of Prisoners of War
was adopted in 1929. It was significantly revised and replaced by the
Third Geneva Convention of 1949.
 The Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War was adopted in 1949.
 There are three additional amendment protocols to the Geneva
Convention:

1. Protocol I (1977): Protocol Additional to the Geneva Conventions of

12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts. As of 12 January 2007 it had been ratified by 167
countries.

2. Protocol II (1977): Protocol Additional to the Geneva Conventions of

12 August 1949, and relating to the Protection of Victims of Non-
International Armed Conflicts. As of 12 January 2007 it had been ratified by
163 countries.

3. Protocol III (2005): Protocol Additional to the Geneva Conventions of

12 August 1949, and relating to the Adoption of an Additional Distinctive
Emblem. As of June 2007 it had been ratified by seventeen countries and
signed but not yet ratified by an additional 68.

Today, they have "achieved universal participation with 194 parties".

This means that they apply to almost any international armed conflict. The
Additional Protocols, however, have yet to achieve near-universal
acceptance, since the United States and several other significant military
powers (like Iran, Israel, India and Pakistan) are currently not parties to
them.

Convergence of IHL and the Laws of War

With the adoption of the 1977 Additional Protocols to the Geneva

Conventions, the two strains of law began to converge, although provisions
focusing on humanity could already be found in the Hague law (i.e. the
protection of certain prisoners of war and civilians in occupied territories).
The 1977 Additional Protocols, relating to the protection of victims in both
international and internal conflict, not only incorporated aspects of both the
Law of The Hague and the Law of Geneva, but also important human rights
provisions.
Later additions

International humanitarian law now includes several treaties that

outlaw specific weapons. These conventions were created largely because
these weapons cause deaths and injuries long after conflicts have ended.
Unexploded land mines have caused up to 7,000 deaths a year;
unexploded bombs, particularly from cluster bombs that scatter many small
"bomblets", have also killed many. An estimated 98% of the victims are
civilian; farmers tilling their fields and children who find these explosives
have been common victims. For these reasons, the following conventions
have been adopted:

• The 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(1980),
which prohibits weapons that produce non-detectable fragments,
restricts (but does not eliminate) the use of mines and booby-
traps, prohibits attacking civilians with incendiary weapons,
prohibits blinding laser weapons, and requires the warring parties
to clear unexploded ordnance at the end of hostilities;
• The Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their
Destruction (1997), also called the Ottawa Treaty or the Mine Ban
Treaty, which completely bans the stockpiling (except to a limited
degree, for training purposes) and use of all anti-personnel land
mines;
• The Optional Protocol on the Involvement of Children in Armed
Conflict (2000), an amendment to the Convention on the Rights of
the Child (1989), which forbids the enlistment of anyone under the
age of eighteen for armed conflict; and
• The Convention on Cluster Munitions (2008), which prohibits the
use of bombs that scatter bomblets, many of which do not explode
and remain dangerous long after a conflict has ended.
The Lieber Code of 1863

The Lieber Code of 1863 is recognised as the first modern

codification of these customs and rules, enforced against those fighting in
the American Civil War. It was known as General Order No. 100, an
instruction signed on April 24, 1863 by U.S. President Abraham Lincoln to
the Union Forces of the United States during the American Civil War that
dictated how soldiers should conduct themselves in wartime. Its name
reflects its author, the German–American legal scholar and political
philosopher Franz Lieber.

Historical Background

Lieber had fought for Prussia in the Napoleonic Wars and had been
wounded at the Battle of Waterloo. He had lived and taught for two
decades in South Carolina, where he was exposed to the horrors of
slavery. Beginning in October 1861, as professor of history and political
science at what became Columbia University, Lieber delivered a series of
lectures at the new Law School entitled "The Laws and Usages of War". He
believed the methods used in war needed to align with the goals and that
the ends must justify the means.

During the American Civil War, soldiers were faced with a number of
ethical dilemmas. Lieber knew about some from his own European wartime
experiences, as well as through his sons (two of whom fought for the
Union, and another died fighting for the Confederacy near Williamsburg).
While in St. Louis searching for one of his sons, who had been wounded at
Fort Donelson, Lieber met Union General Henry Halleck, who had been a
lawyer in civilian life and had published "International Law, or, Rules
Regulating the Intercourse of States in Peace and War" in early 1861. As
the war dragged on, the treatment of spies, guerrilla warriors, and civilian
sympathizers became especially troublesome. So too was the treatment of
escaped slaves, who were forbidden to return to their owners by an order
of March 13, 1862. After Halleck became general-in-chief in July, 1862, he
solicited Lieber's views. The professor responded with a report, "Guerilla
Parties Considered With Reference to the Laws and Usages of War", and
Halleck ordered 5,000 copies printed. That same summer, Lieber advised
Secretary of War Edwin Stanton concerning the "military use of colored
persons".

By year's end, Halleck and Stanton invited Lieber to Washington to

revise the 1806 Articles of War. Other members of the revision committee
included Major Generals Ethan Allen Hitchcock, George Cadwalader, and
George L. Hartsuff, and Brigadier General John Henry Martindale, but
essentially Lieber was left to draft instructions for Union soldiers facing
these situations. Halleck edited them to ensure nothing conflicted with
Lincoln's Emancipation Proclamation. Then Lincoln issued them in April,
1863.

Salient Provisions

1. Ethical treatment. The document insisted upon the humane, ethical

treatment of populations in occupied areas. It was the first codified law that
expressly forbade giving "no quarter" to the enemy (i.e. killing prisoners of
war), except in such cases when the survival of the unit that held these
prisoners was threatened. It forbade the use of poisons, stating that use of
such puts any force that uses them entirely outside the pale of the civilized
nations and people; it forbade the use of torture to extract confessions; it
described the rights and duties of prisoners of war and of capturing forces.
It described the state of war, the state of occupied territories, and the ends
of war, and discusses permissible and impermissible means to attain those
ends; it discussed the nature of states and sovereignties, and insurrections,
rebellions, and wars. As such, it is widely considered to be the first written
recital of the customary law of war, in force between the civilized nations
and peoples since time immemorial, and the precursor to the Hague
Regulations of 1907, the treaty-based restatement of the customary law of
war.

2. Slavery and black prisoners of war. The Lieber Code defended the
lawfulness of Emancipation under the laws of war and insisted that those
same laws prohibited discrimination on the basis of color among
combatants.
 3. Sterner measures. Both the Lieber Code and the Hague
Convention of 1907, which took much of the Lieber Code and wrote it into
the international treaty law, included practices that would be considered
illegal or extremely questionable by today's standards. In the event of the
violation of the laws of war by an enemy, the Code permitted reprisal (by
musketry) against the enemy's recently captured POWs; it permitted the
summary execution (by musketry) of spies, saboteurs and guerrilla forces,
if caught in the act of carrying out their missions. (These allowable
practices were later abolished by the Third and Fourth Geneva
Conventions of 1949, following World War II, which saw these practices in
the hands of totalitarian states used as the rule rather than the exception to
such.)

Significance of Lieber Code

1. American Civil War

The Code played a significant in the war's last two years. It provided
a blueprint for hundreds of war crimes trials (i.e., charging people for
violations of the laws and customs of war). Also, its provisions on black
soldiers bolstered the Union's unpopular decision to cease prisoner
exchanges so long as the South refused to exchange black prisoners on
equal terms with white ones.

2. International law

Participants in the international Hague Peace Conferences used

Lieber's text as the basis for negotiations which resulted in the Hague
Conventions of 1899 and 1907. These two international agreements set
forth laws of land and naval warfare.

Subsequently, during World War I and II, many of these laws were
broken. Following World War II, jurists at the Nuremberg Trials and the
Tokyo Trials ruled that by 1939 the rules for armed conflicts, particularly
those concerning belligerent and neutral nationals, had been recognized by
all civilized nations and thus could apply to officials even of countries that
never signed the Hague Conventions. Some features of the Lieber Code
are still evident in the Geneva Conventions of 1949.

3. Philippine–American War

An abridged version of the Lieber Code was published in 1899 in The

War of the Rebellion: A Compilation of the Official Records of the Union
and Confederate Armies. Lieber's son, Guido Norman Lieber, was Judge
Advocate General of the Army from 1895 until 1901, during the Spanish–
American War and Philippine–American War. The Lieber Code therefore
was used extensively during this period when considering and litigating
actions by American forces against the native population and Philippine
revolutionaries.

References:

1. https://en.wikipedia.org/wiki/International_humanitarian_law

2. https://en.wikipedia.org/wiki/Lieber_Code

3. https://www.diakonia.se/en/IHL/The-Law/International-Humanitarian-
Law-1/Introduction-to-IHL/Sources-of-international-law/

4. ICRC Handout 2, Training for media professionals/The Main Sources

of International Humanitarian Law

5. Outline Introduction to Public International Law by Nachura and

Gatdula (2017)
Geneva Conventions of 1864

The 1864 Geneva Convention laid the foundations for contemporary

humanitarian law. It was chiefly characterized by:

• standing written rules of universal scope to protect the victims of

conflicts;
• its multilateral nature, open to all States;
• the obligation to extend care without discrimination to wounded
and sick military personnel;
• respect for and marking of medical personnel, transports and
equipment using an emblem (red cross on a white background).

Convention for the Amelioration of the Condition of the Wounded in Armies

in the Field. Geneva, 22 August 1864

After the successful termination of the Geneva Conference of 1863, the

Swiss Federal Council, on the initiative of the Geneva Committee, invited
the governments of all European and several American states to a
diplomatic conference for the purpose of adopting a convention for the
amelioration of the condition of the wounded in war. The conference, at
which 16 states were represented, lasted from 8-22 August 1864. The draft
convention submitted to the conference, which was prepared by the
Geneva Committee, was adopted by the Conference without major
alterations. The main principles laid down in the Convention and
maintained by the later Geneva Conventions are:

- relief to the wounded without any distinction as to nationality;

- neutrality (inviolability) of medical personnel and medical
establishments and units;
- the distinctive sign of the red cross on a white ground.

A second diplomatic conference was convened at Geneva in October 1868

in order to clarify some provisions of the Convention of 1864 and,
particularly, to adapt the principles of the Convention to sea warfare. The
Additional Articles, which were adopted on 20 October 1868 were,
however, not ratified, and did not enter into force.
The Convention of 1864 was replaced by the Geneva Conventions of 1906,
1929 and 1949 on the same subject. However, it ceased to have effect only
in 1966 when the last state party to it which had not yet acceded to a later
Convention (Republic of Korea) acceded to the Conventions of 1949.

Article 1. Ambulances and military hospitals shall be recognized as neutral,

and as such, protected and respected by the belligerents as long as they
accommodate wounded and sick.

Neutrality shall end if the said ambulances or hospitals should be held by a

military force.

Art. 2. Hospital and ambulance personnel, including the quarter-master's

staff, the medical, administrative and transport services, and the chaplains,
shall have the benefit of the same neutrality when on duty, and while there
remain any wounded to be brought in or assisted.

Art. 3. The persons designated in the preceding Article may, even after
enemy occupation, continue to discharge their functions in the hospital or
ambulance with which they serve, or may withdraw to rejoin the units to
which they belong.

When in these circumstances they cease from their functions, such

persons shall be delivered to the enemy outposts by the occupying forces.

Art. 4. The material of military hospitals being subject to the laws of war,
the persons attached to such hospitals may take with them, on
withdrawing, only the articles which are their own personal property.

Ambulances, on the contrary, under similar circumstances, shall retain their

equipment.

Art. 5. Inhabitants of the country who bring help to the wounded shall be
respected and shall remain free. Generals of the belligerent Powers shall
make it their duty to notify the inhabitants of the appeal made to their
humanity, and of the neutrality which humane conduct will confer.
The presence of any wounded combatant receiving shelter and care in a
house shall ensure its protection. An inhabitant who has given shelter to
the wounded shall be exempted from billeting and from a portion of such
war contributions as may be levied.

Art. 6. Wounded or sick combatants, to whatever nation they may belong,

shall be collected and cared for.

Commanders-in-Chief may hand over immediately to the enemy outposts

enemy combatants wounded during an engagement, when circumstances
allow and subject to the agreement of both parties.

Those who, after their recovery, are recognized as being unfit for further
service, shall be repatriated.

The others may likewise be sent back, on condition that they shall not
again, for the duration of hostilities, take up arms.

Evacuation parties, and the personnel conducting them, shall be

considered as being absolutely neutral.

Art. 7. A distinctive and uniform flag shall be adopted for hospitals,

ambulances and evacuation parties. It should in all circumstances be
accompanied by the national flag.

An armlet may also be worn by personnel enjoying neutrality but its issue
shall be left to the military authorities.

Both flag and armlet shall bear a red cross on a white ground.

Art. 8. The implementing of the present Convention shall be arranged by

the Commanders-in-Chief of the belligerent armies following the
instructions of their respective Governments and in accordance with the
general principles set forth in this Convention.
Art. 9. The High Contracting Parties have agreed to communicate the
present Convention with an invitation to accede thereto to Governments
unable to appoint Plenipotentiaries to the International Conference at
Geneva. The Protocol has accordingly been left open.

Art. 10. The present Convention shall be ratified and the ratifications
exchanged at Berne, within the next four months, or sooner if possible.

In faith whereof, the respective Plenipotentiaries have signed the

Convention and thereto affixed their seals.

Done at Geneva, this twenty-second day of August, in the year one

thousand eight hundred and sixty-four.

Protocol for the Prohibition of the Use in War of Asphyxiating,

Poisonous or Other Gases, and of Bacteriological Methods of Warfare

Signed at Geneva: 17 June 1925

Entered into force: for each signatory as from the date of deposit of its
ratification; accessions take effect on the date of the notification by the
depositary Government

Depositary Government: France

The Undersigned Plenipotentiaries, in the name of their respective

Governments:

Whereas the use in war of asphyxiating, poisonous or other gases, and of

all analogous liquids, materials or devices, has been justly condemned by
the general opinion of the civilized world; and
Whereas the prohibition of such use has been declared in Treaties to which
the majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as a part of

International Law, binding alike the conscience and the practice of nations;

Declare:

That the High Contracting Parties, so far as they are not already Parties to
Treaties prohibiting such use, accept this prohibition, agree to extend this
prohibition to the use of bacteriological methods of warfare and agree to be
bound as between themselves according to the terms of this declaration.

The High Contracting Parties will exert every effort to induce other States to
accede to the present Protocol. Such accession will be notified to the
Government of the French Republic, and by the latter to all signatory and
acceding Powers, and will take effect on the date of the notification by the
Government of the French Republic.

The present Protocol, of which the English and French texts are both
authentic, shall be ratified as soon as possible. It shall bear to-day's date.

The ratifications of the present Protocol shall be addressed to the

Government of the French Republic, which will at once notify the deposit of
such ratification to each of the signatory and acceding Powers. The
instruments of ratification of and accession to the present Protocol will
remain deposited in the archives of the Government of the French
Republic.

The present Protocol will come into force for each signatory Power as from
the date of deposit of its ratification, and, from that moment, each Power
will be bound as regards other Powers which have already deposited their
ratifications.

In witness whereof the Plenipotentiaries have signed the present Protocol.

Done at Geneva in a single copy, the seventeenth day of June, One
Thousand Nine Hundred and Twenty-Five.
Convention (II) with Respect to the Laws and Customs of War on Land
and its annex: Regulations concerning the Laws and Customs of War
on Land. The Hague, 29 July 1899.

One of the purposes for which the First Hague Peace Conference of 1899
was convened was "the revision of the declaration concerning the laws and
customs of war elaborated in 1874 by the Conference of Brussels, and not
yet ratified" (Russian circular note of 30 December 1898). The Conference
of 1899 succeeded in adopting a Convention on land warfare to which
Regulations are annexed. The Convention and the Regulations were
revised at the Second International Peace Conference in 1907. The two
versions of the Convention and the Regulations differ only slightly from
each other.

Seventeen of the States which ratified the 1899 Convention did not ratify
the 1907 version (Argentina, Bulgaria, Chile, Colombia, Ecuador, Greece,
Italy, Korea, Montenegro, Paraguay, Persia, Peru, Serbia, Spain, Turkey,
Uruguay, Venezuela). These States or their successor States remain
formally bound by the 1899 Convention in their relations with the other
parties thereto. As between the parties to the 1907 Convention, this
Convention has replaced the 1899 Convention (see Article 4 of the 1907
Convention). The provisions of the two Conventions on land warfare, like
most of the substantive provisions of the Hague Conventions of 1899 and
1907, are considered as embodying rules of customary international law.
As such they are also binding on states which are not formally parties to
them.

In 1946, the Nüremberg International Military Tribunal stated with regard to

the Hague Convention on land warfare of 1907: "The rules of land warfare
expressed in the Convention undoubtedly represented an advance over
existing International Law at the time of their adoption ... but by 1939 these
rules ... were recognized by all civilized nations and were regarded as
being declaratory of the laws and customs of war" (reprinted in AJIL, Vol.
41, 1947, pp. 248-249). The International Military Tribunal for the Far East
expressed, in 1948, an identical view.

The rules embodied in the Regulations were partly reaffirmed and

developed by the two Protocols Additional to the Geneva Conventions of
1949 adopted in 1977.

Preamble

Considering that, while seeking means to preserve peace and prevent

armed conflicts among nations, it is likewise necessary to have regard to
cases where an appeal to arms may be caused by events which their
solicitude could not avert;

Animated by the desire to serve, even in this extreme hypothesis, the

interests of humanity and the ever increasing requirements of civilization;

Thinking it important, with this object, to revise the laws and general
customs of war, either with the view of defining them more precisely or of
laying down certain limits for the purpose of modifying their severity as far
as possible;

Inspired by these views which are enjoined at the present day, as they
were twenty-five years ago at the time of the Brussels Conference in

1874, by a wise and generous foresight;

Have, in this spirit, adopted a great number of provisions, the object of

which is to define and govern the usages of war on land.

In view of the High Contracting Parties, these provisions, the wording of

which has been inspired by the desire to diminish the evils of war so far as
military necessities permit, are destined to serve as general rules of
conduct for belligerents in their relations with each other and with
populations.
It has not, however, been possible to agree forthwith on provisions
embracing all the circumstances which occur in practice.

On the other hand, it could not be intended by the High Contracting Parties
that the cases not provided for should, for want of a written provision, be
left to the arbitrary judgment of the military commanders.

Until a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that in cases not included in the
Regulations adopted by them, populations and belligerents remain under
the protection and empire of the principles of international law, as they
result from the usages established between civilized nations, from the laws
of humanity, and the requirements of the public conscience;

They declare that it is in this sense especially that Articles 1 and 2 of the
Regulations adopted must be understood;

The High Contracting Parties, desiring to conclude a Convention to this

effect, have appointed as their Plenipotentiaries, to wit:

Who, after communication of their full powers, found in good and due form,
have agreed on the following:

Article. 1. The High Contracting Parties shall issue instructions to their

armed land forces, which shall be in conformity with the "Regulations
respecting the laws and customs of war on land" annexed to the present
Convention.

Art. 2. The provisions contained in the Regulations mentioned in Article I

are only binding on the Contracting Powers, in case of war between two or
more of them.

These provisions shall cease to be binding from the time when, in a war
between Contracting Powers, a non-Contracting Power joins one of the
belligerents.

Art. 3. The present Convention shall be ratified as speedily as possible.

The ratifications shall be deposited at The Hague.

A ' procès-verbal ' shall be drawn up recording the receipt of each
ratification, and a copy, duly certified, shall be sent through the diplomatic
channel, to all the Contracting Powers.

Art. 4. Non-Signatory Powers are allowed to adhere to the present

Convention.

For this purpose they must make their adhesion known to the Contracting
Powers by means of a written notification, addressed to the Netherlands
Government, and by it communicated to all the other Contracting Powers.

Art. 5. In the event of one of the High Contracting Parties denouncing the
present Convention, such denunciation would not take effect until a year
after the written notification made to the Netherlands Government, and by it
at once communicated to all the other Contracting Powers.

This denunciation shall affect only the notifying Power.

In faith of which the Plenipotentiaries have signed the present

Convention and affixed their seals thereto.

Done at The Hague 29 July 1899, in a single copy, which shall be kept in
the archives of the Netherlands Government, and copies of which, duly
certified, shall be delivered to the Contracting Powers through the
diplomatic channel.

ANNEX TO THE CONVENTION

REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON

LAND

SECTION I ON BELLIGERENTS

CHAPTER I

On the qualifications of belligerents

Article 1. The laws, rights, and duties of war apply not only to armies, but
also to militia and volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;

2. To have a fixed distinctive emblem recognizable at a distance;

3. To carry arms openly; and

4. To conduct their operations in accordance with the laws and customs of

war.

In countries where militia or volunteer corps constitute the army, or form

part of it, they are included under the denomination "army."

Art. 2. The population of a territory which has not been occupied who, on
the enemy's approach, spontaneously take up arms to resist the invading
troops without having time to organize themselves in accordance with
Article 1, shall be regarded as belligerent, if they respect the laws and
customs of war.

Art. 3. The armed forces of the belligerent parties may consist of

combatants and non-combatants. In case of capture by the enemy both
have a right to be treated as prisoners of war.

CHAPTER II

On prisoners of war

Art. 4. Prisoners of war are in the power of the hostile Government, but not
in that of the individuals or corps who captured them.

They must be humanely treated. All their personal belongings, except

arms, horses, and military papers remain their property.

Art. 5. Prisoners of war may be interned in a town, fortress, camp, or any

other locality, and bound not to go beyond certain fixed limits; but they can
only be confined as an indispensable measure of safety.
Art. 6. The State may utilize the labour of prisoners of war according to
their rank and aptitude. Their tasks shall not be excessive, and shall have
nothing to do with the military operations.

Prisoners may be authorized to work for the public service, for private
persons, or on their own account.

Work done for the State shall be paid for according to the tariffs in force for
soldiers of the national army employed on similar tasks.

When the work is for other branches of the public service or for private
persons, the conditions shall be settled in agreement with the military
authorities.

The wages of the prisoners shall go towards improving their position, and
the balance shall be paid them at the time of their release, after deducting
the cost of their maintenance.

Art. 7. The Government into whose hands prisoners of war have fallen is
bound to maintain them.

Failing a special agreement between the belligerents, prisoners of war shall

be treated as regards food, quarters, and clothing, on the same footing as
the troops of the Government which has captured them.

Art. 8. Prisoners of war shall be subject to the laws, regulations, and orders
in force in the army of the State into whose hands they have fallen. Any act
of insubordination warrants the adoption, as regards them, of such
measures of severity as may be necessary.

Escaped prisoners, recaptured before they have succeeded in rejoining

their army, or before quitting the territory occupied by the army that
captured them, are liable to disciplinary punishment.

Prisoners who, after succeeding in escaping are again taken prisoners, are
not liable to any punishment for the previous flight.
Art. 9. Every prisoner of war, if questioned, is bound to declare his true
name and rank, and if he disregards this rule, he is liable to a curtailment of
the advantages accorded to the prisoners of war of his class.

Art. 10. Prisoners of war may be set at liberty on parole if the laws of their
country authorize it, and, in such a case, they are bound, on their personal
honour, scrupulously to fulfil, both as regards their own Government and
the Government by whom they were made prisoners, the engagements
they have contracted.

In such cases, their own Government shall not require of nor accept from
them any service incompatible with the parole given.

Art. 11. A prisoner of war cannot be forced to accept his liberty on parole;
similarly the hostile Government is not obliged to assent to the prisoner’s
request to be set at liberty on parole.

Art. 12. Any prisoner of war, who is liberated on parole and recaptured,
bearing arms against the Government to whom he had pledged his honour,
or against the allies of that Government, forfeits his right to be treated as a
prisoner of war, and can be brought before the courts.

Art. 13. Individuals who follow an army without directly belonging to it, such
as newspaper correspondents and reporters, sutlers, contractors, who fall
into the enemy's hands, and whom the latter think fit to detain, have a right
to be treated as prisoners of war, provided they can produce a certificate
from the military authorities of the army they were accompanying.

Art. 14. A bureau for information relative to prisoners of war is instituted, on

the commencement of hostilities, in each of the belligerent States, and,
when necessary, in the neutral countries on whose territory belligerents
have been received. This bureau is intended to answer all inquiries about
prisoners of war, and is furnished by the various services concerned with
all the necessary information to enable it to keep an individual return for
each prisoner of war. It is kept informed of internments and changes, as
well as of admissions into hospital and deaths.
It is also the duty of the information bureau to receive and collect all objects
of personal use, valuables, letters, etc., found on the battlefields or left by
prisoners who have died in hospital or ambulance, and to transmit them to
those interested.

Art. 15. Relief societies for prisoners of war, which are regularly constituted
in accordance with the law of the country with the object of serving as the
intermediary for charity, shall receive from the belligerents for themselves
and their duly accredited agents every facility, within the bounds of military
requirements and administrative regulations, for the effective
accomplishment of their humane task.

Delegates of these societies may be admitted to the places of internment

for the distribution of relief, as also to the halting places of repatriated
prisoners, if furnished with a personal permit by the military authorities, and
on giving an engagement in writing to comply with all their regulations for
order and police.

Art. 16. The information bureau shall have the privilege of free postage.
Letters, money orders, and valuables, as well as postal parcels destined for
the prisoners of war or dispatched by them, shall be free of all postal duties
both in the countries of origin and destination, as well as in those they pass
through.

Gifts and relief in kind for prisoners of war shall be admitted free of all
duties of entry and others, as well as of payments for carriage by the
Government railways.

Art. 17. Officers taken prisoners may receive, if necessary, the full pay
allowed them in this position by their country's regulations, the amount to
be repaid by their Government.

Art. 18. Prisoners of war shall enjoy every latitude in the exercise of their
religion, including attendance at their own church services, provided only
they comply with the regulations for order and police issued by the military
authorities.
Art. 19. The wills of prisoners of war are received or drawn up on the same
conditions as for soldiers of the national army.

The same rules shall be observed regarding death certificates, as well as

for the burial of prisoners of war, due regard being paid to their grade and
rank.

Art. 20. After the conclusion of peace, the repatriation of prisoners of war
shall take place as speedily as possible.

CHAPTER III

On the sick and wounded

Art. 21. The obligations of belligerents with regard to the sick and wounded
are governed by the Geneva Convention of 22 August 1864, subject to any
modifications which may be introduced into it.

SECTION II ON HOSTILITIES

CHAPTER I

On means of injuring the enemy, sieges, and bombardments

Art. 22. The right of belligerents to adopt means of injuring the enemy is not
unlimited.

Art. 23. Besides the prohibitions provided by special Conventions, it is

especially prohibited

(a) To employ poison or poisoned arms;

(b) To kill or wound treacherously individuals belonging to the hostile nation

or army;
(c) To kill or wound an enemy who, having laid down arms, or having no
longer means of defence, has surrendered at discretion;

(d) To declare that no quarter will be given;

(e) To employ arms, projectiles, or material of a nature to cause

superfluous injury;

(f) To make improper use of a flag of truce, the national flag or military
ensigns and uniform of the enemy, as well as the distinctive badges of the
Geneva Convention;

(g) To destroy or seize the enemy's property, unless such destruction or

seizure be imperatively demanded by the necessities of war.

Art. 24. Ruses of war and the employment of methods necessary to obtain
information about the enemy and the country, are considered allowable.

Art. 25. The attack or bombardment of towns, villages, habitations or

buildings which are not defended, is prohibited.

Art. 26. The commander of an attacking force, before commencing a

bombardment, except in the case of an assault, should do all he can to
warn the authorities.

Art. 27. In sieges and bombardments all necessary steps should be taken
to spare as far as possible edifices devoted to religion, art, science, and
charity, hospitals, and places where the sick and wounded are collected,
provided they are not used at the same time for military purposes.

The besieged should indicate these buildings or places by some particular

and visible signs, which should previously be notified to the assailants.

Art. 28. The pillage of a town or place, even when taken by assault is
prohibited

CHAPTER II

On spies
Art. 29. An individual can only be considered a spy if, acting clandestinely,
or on false pretences, he obtains, or seeks to obtain information in the zone
of operations of a belligerent, with the intention of communicating it to the
hostile party.

Thus, soldiers not in disguise who have penetrated into the zone of
operations of a hostile army to obtain information are not considered spies.

Similarly, the following are not considered spies: soldiers or civilians,

carrying out their mission openly, charged with the delivery of despatches
destined either for their own army or for that of the enemy. To this class
belong likewise individuals sent in balloons to deliver despatches, and
generally to maintain communication between the various parts of an army
or a territory.

Art. 30. A spy taken in the act cannot be punished without previous trial.

Art. 31. A spy who, after rejoining the army to which he belongs, is
subsequently captured by the enemy, is treated as a prisoner of war, and
incurs no responsibility for his previous acts of espionage.

CHAPTER III

On flags of truce

Art. 32. An individual is considered as a parlementaire who is authorized by

one of the belligerents to enter into communication with the other, and who
carries a white flag. He has a right to inviolability, as well as the trumpeter,
bugler, or drummer, the flag-bearer and the interpreter who may
accompany him.

Art. 33. The chief to whom a parlementaire is sent is not obliged to receive
him in all circumstances.

He can take all steps necessary to prevent the parlementaire taking

advantage of his mission to obtain information.

In case of abuse, he has the right to detain the parlementaire temporarily.

Art. 34. The parlementaire loses his rights of inviolability if it is proved
beyond doubt that he has taken advantage of his privileged position to
provoke or commit an act of treason.

CHAPTER IV

On capitulations

Art. 35. Capitulations agreed on between the Contracting Parties must be

in accordance with the rules of military honour.

When once settled, they must be scrupulously observed by both the

parties.

CHAPTER V

On armistices

Art. 36. An armistice suspends military operations by mutual agreement

between the belligerent parties. If its duration is not fixed, the belligerent
parties can resume operations at any time, provided always the enemy is
warned within the time agreed upon, in accordance with the terms of the
armistice.

Art. 37. An armistice may be general or local. The first suspends all military
operations of the belligerent States; the second, only those between certain
fractions of the belligerent armies and in a fixed radius.

Art. 38. An armistice must be notified officially, and in good time, to the
competent authorities and the troops. Hostilities are suspended
immediately after the notification, or at a fixed date.

Art. 39. It is for the Contracting Parties to settle, in the terms of the
armistice, what communications may be held, on the theatre of war, with
the population and with each other.

Art. 40. Any serious violation of the armistice by one of the parties gives the
other party the right to denounce it, and even, in case of urgency, to
recommence hostilities at once.
Art. 41. A violation of the terms of the armistice by private individuals acting
on their own initiative, only confers the right of demanding the punishment
of the offenders, and, if necessary, indemnity for the losses sustained.

SECTION III On military authority over hostile territory

Art. 42. Territory is considered occupied when it is actually placed under

the authority of the hostile army.

The occupation applies only to the territory where such authority is

established, and in a position to assert itself.

Art. 43. The authority of the legitimate power having actually passed into
the hands of the occupant, the latter shall take all steps in his power to re-
establish and insure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country.

Art. 44. Any compulsion of the population of occupied territory to take part
in military operations against its own country is prohibited.

Art. 45. Any pressure on the population of occupied territory to take the
oath to the hostile Power is prohibited.

Art. 46. Family honours and rights, individual lives and private property, as
well as religious convictions and liberty, must be respected.

Private property cannot be confiscated.

Art. 47. Pillage is formally prohibited.

Art. 48. If, in the territory occupied, the occupant collects the taxes, dues,
and tolls imposed for the benefit of the State, he shall do it, as far as
possible, in accordance with the rules in existence and the assessment in
force, and will in consequence be bound to defray the expenses of the
administration of the occupied territory on the same scale as that by which
the legitimate Government was bound.
Art. 49. If, besides the taxes mentioned in the preceding Article, the
occupant levies other money taxes in the occupied territory, this can only
be for military necessities or the administration of such territory.

Art. 50. No general penalty, pecuniary or otherwise, can be inflicted on the

population on account of the acts of individuals for which it cannot be
regarded as collectively responsible.

Art. 51. No tax shall be collected except under a written order and on the
responsibility of a commander-in-chief.

This collection shall only take place, as far as possible, in accordance with
the rules in existence and the assessment of taxes in force.

For every payment a receipt shall be given to the taxpayer.

Art. 52. Neither requisitions in kind nor services can be demanded from
communes or inhabitants except for the necessities of the army of
occupation. They must be in proportion to the resources of the country, and
of such a nature as not to involve the population in the obligation of taking
part in military operations against their country.

These requisitions and services shall only be demanded on the authority of

the commander in the locality occupied.

The contributions in kind shall, as far as possible, be paid for in ready

money; if not, their receipt shall be acknowledged.

Art. 53. An army of occupation can only take possession of the cash, funds,
and property liable to requisition belonging strictly to the State, depots
arms, means of transport, stores and supplies, and, generally movable
property of the State which may be used for military operations.

Railway plant, land telegraphs, telephones, steamers and other ships, apart
from cases governed by maritime law, as well as depots of arms and,
generally, all kinds of munitions of war, even though belonging to
companies or to private persons, are likewise material which may serve for
military operations, but they must be restored at the conclusion of peace,
and indemnities paid for them.
Art. 54. The plant of railways coming from neutral States, whether the
property of those States, or of companies, or of private persons, shall be
sent back to them as soon as possible.

Art. 55. The occupying State shall only be regarded as administrator and
usufructuary of the public buildings, real property, forests and agricultural
works belonging to the hostile State, and situated in the occupied country.
It must protect the capital of these properties, and administer it according to
the rules of usufruct.

Art. 56. The property of the communes, that of religious, charitable, and
educational institutions, and those of arts and science, even when State
property, shall be treated as private property.

All seizure of and destruction, or intentional damage done to such

institutions, to historical monuments, works of art or science, is prohibited,
and should be made the subject of proceedings.

SECTION IV ON THE INTERNMENT OF BELLIGERENTS AND THE

CARE OF THE WOUNDED IN NEUTRAL COUNTRIES

Art. 57. A neutral State which receives in its territory troops belonging to the
belligerent armies shall intern them, as far as possible, at a distance from
the theatre of war.

It can keep them in camps, and even confine them in fortresses or

locations assigned for this purpose.

It shall decide whether officers may be left at liberty on giving their parole
that they will not leave the neutral territory without authorization.

Art. 58. Failing a special convention, the neutral State shall supply the
interned with the food, clothing, and relief required by humanity.

At the conclusion of peace, the expenses caused by the internment shall

be made good.

Art. 59. A neutral State may authorize the passage over its territory of
wounded or sick belonging to the belligerent armies, on condition that the
trains bringing them shall carry neither combatants nor war material. In
such a case, the neutral State is bound to adopt such measures of safety
and control as may be necessary for the purpose. Wounded and sick
brought under these conditions into neutral territory by one of the
belligerents, and belonging to the hostile party, must be guarded by the
neutral State, so as to insure their not taking part again in the military
operations.

The same duty shall devolve on the neutral State with regard to wounded
or sick of the other army who may be committed to its care.

Art. 60. The Geneva Convention applies to sick and wounded interned in
neutral territory.

SUMMARY OF THE GENEVA CONVENTIONS OF 12 AUGUST 1949

AND THEIR ADDITIONAL PROTOCOLS

In time of war, certain humanitarian rules must be observed, even with

regard to the enemy. These rules are set out mainly in the four Geneva
Conventions of 12 August 1949 and their Additional Protocols of 1977 and
2005.

The rules set out in the four Geneva Conventions apply to international
armed conflicts, i.e. the use of armed force between two or more States.
Only one provision in the Geneva Conventions – Article 3 common to all
four Conventions – applies to non-international armed conflicts, i.e. fighting
between government armed forces and armed groups (or between armed
groups themselves) where the groups possess a certain degree of
organization and the violence reaches a certain level of intensity.

Protocol I additional to the Geneva Conventions supplements the

Convention’s provisions regulating international armed conflicts and
broadens the definition of those conflicts to include situations in which a
people is exercising its right to self-determination by fighting against
colonial domination, alien occupation or racist regimes.
Additional Protocol II specifically applies to certain high intensity, non-
international armed conflicts between State armed forces and organized
armed groups that exercise such territorial control as to enable them to
carry out sustained and concerted military operations and to implement the
Protocol. The subject matter of Additional Protocol III is relatively restricted
compared with that of the other two Additional Protocols: it supplements the
Geneva Conventions by permitting the use of an additional distinctive
emblem.

The Geneva Conventions are founded on the idea of respect for the
individual and his dignity. Persons not directly taking part in hostilities and
those put out of action through sickness, injury, captivity or any other cause
must be respected and protected against the effects of war; those who
suffer must be aided and cared for without discrimination.

The Additional Protocols extend this protection to any person affected by

an armed conflict. They furthermore stipulate that the parties to the conflict
and individual combatants must not attack the civilian population or civilian
objects and must conduct their military operations in conformity with the
recognized rules of international humanitarian law.

References:

1.) https://ihl-
databases.icrc.org/ihl/52d68d14de6160e0c12563da005fdb1b/87a3bb
58c1c44f0dc125641a005a06e0

2.) https://ihl-databases.icrc.org/ihl/INTRO/150?OpenDocument

3.) International Committee of the Red Cross “Summary Of The Geneva

Conventions Of 12 August 1949 And Their Additional Protocols”
www.icrc.org © ICRC, August 2005, second edition November 2012

4.) https://media.nti.org/pdfs/aptgenev.pdf