International Humanitarian Law — Geneva Conventions

International humanitarian law (IHL) — historically called the laws of war or the laws of armed conflict — is the body of rules that regulates the conduct of hostilities once an armed conflict has begun. It is the jus in bello side of the law on force, sitting alongside the jus ad bellum rules on when force may lawfully be resorted to. The modern law has two streams that have merged: the ‘Law of The Hague’, dealing primarily with permissible methods and means of warfare, and the ‘Law of Geneva’, dealing with the protection of persons not, or no longer, taking part in hostilities. The four Geneva Conventions of 12 August 1949 and their 1977 Additional Protocols sit at the centre of the system, and they are the focus of this chapter in the wider international law for judiciary notes on this site.

The animating principle is humanity. Persons taking no active part in hostilities — civilians, the wounded and sick, shipwrecked members of armed forces, prisoners of war, and persons placed hors de combat by surrender, sickness or wounds — are entitled to respect, humane treatment and protection from violence. The law accepts that combat will involve killing and destruction; it tries to draw the line at unnecessary suffering and at the deliberate targeting of those whom the war has placed beyond the fight.

Development of the law — from St Petersburg to Additional Protocols

The codification began in 1864 with the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, the result of Henry Dunant’s reaction to the carnage at Solferino in 1859. The 1868 Declaration of St Petersburg banned small explosive or incendiary projectiles. The Hague Conferences of 1899 and 1907 produced a series of Conventions on land and naval warfare that still form the structural basis of the field — they defined belligerent status, regulated occupied territory, dealt with neutrality, and contained an emphatic prohibition on the employment of arms, projectiles or material calculated to cause unnecessary suffering. The inter-war period added Conventions on the wounded and sick and on prisoners of war.

The four Geneva Conventions of 12 August 1949 — Geneva I (wounded and sick on land), Geneva II (wounded, sick and shipwrecked at sea), Geneva III (prisoners of war), and Geneva IV (civilians) — replaced and consolidated this earlier body. They are the most widely ratified treaties on the planet. Additional Protocol I (API), 1977, supplements them in international armed conflicts; Additional Protocol II (APII), 1977, supplements common Article 3 in non-international armed conflicts. Additional Protocol III, 2005, added the red crystal (or red diamond) as a third recognised distinctive emblem alongside the red cross and the red crescent. The International Court of Justice has observed that the Law of The Hague and the Law of Geneva have become so interrelated that they form a single complex system known today as international humanitarian law. The classical taxonomy of the field — and the place of treaties, custom and general principles within it — sits squarely inside the framework of the chapter on the Vienna Convention rules on treaty formation and termination.

Common Article 2 and the threshold of application

Each of the four 1949 Conventions opens with a common Article 2 stating that the Conventions apply to all cases of declared war or any other armed conflict that may arise between two or more of the High Contracting Parties even if the state of war is not recognised by them, and to all cases of partial or total occupation of the territory of a High Contracting Party even if the said occupation meets with no armed resistance. No formal declaration of war is required. The conduct of fighting between organised armed forces of two States is enough to trigger the law of international armed conflict. Article 1 of API extends the application of API to armed conflicts in which peoples are fighting against colonial domination, alien occupation and racist regimes in the exercise of self-determination as enshrined in the UN Charter and the 1970 Declaration on Friendly Relations — a controversial extension that some major powers resisted, and one that connects to the doctrine examined in the chapter on the public–private divide and the boundaries of the international order.

Geneva I and II — the wounded, sick and shipwrecked

Geneva I covers members of the armed forces and organised militias on land who are wounded or sick. They must be respected and protected in all circumstances, treated humanely on a non-discriminatory basis by the party into whose hands they fall, and any attempts on their lives or violence to their person are strictly prohibited. Torture and biological experimentation are forbidden, as is wilful deprivation of medical assistance. Wounded and sick of a belligerent who fall into enemy hands are also to be treated as prisoners of war. The parties must take all possible measures to search for the dead, prevent their being despoiled, and to record and transmit details of wounded, sick or dead persons of the adverse party. Medical units, establishments and the recognised emblems (red cross, red crescent, red crystal) are protected from attack. Geneva II applies the parallel rules at sea — including the cardinal protection that hospital ships may in no circumstances be attacked or captured.

Geneva III — prisoners of war

Geneva III is a comprehensive code centred on the requirement of humane treatment of prisoners of war (POWs) in all circumstances. Article 4 defines who qualifies for combatant and POW status. The core categories are: members of the armed forces of a party to the conflict (including members of militias and other volunteer corps forming part of such armed forces); and members of other militias, volunteer corps and organised resistance movements belonging to a party to the conflict provided four cumulative conditions are satisfied — (a) being commanded by a person responsible for his subordinates, (b) having a fixed distinctive sign recognisable at a distance, (c) carrying arms openly, and (d) conducting operations in accordance with the laws and customs of war. This four-condition test reflects the Second World War experience and proved difficult in the era of decolonisation guerrilla warfare.

Articles 43 and 44 of API revisit the question. They provide that combatants are members of the armed forces of a party to an international armed conflict, organised under an effective command structure that enforces compliance with the rules of international law applicable in armed conflict. Article 44(3) requires combatants to distinguish themselves from the civilian population while engaged in an attack or in a military operation preparatory to an attack; where an armed combatant cannot so distinguish himself, status is preserved provided arms are carried openly during each military engagement and during such time as he is visible to the adversary while engaged in a military deployment preceding the launching of an attack. Article 5 of Geneva III provides that where there is doubt as to status, the person enjoys the protection of the Convention until status is determined by a competent tribunal. The label ‘unlawful combatant’ — much used since 2001 — describes a person who fails the API tests after due determination of status; such a person is a civilian and is protected by the basic humanitarian guarantees of API Articles 45(3) and 75 and by international human rights law, but does not enjoy POW protection and may be prosecuted under the ordinary criminal law.

Once captured, POWs must be evacuated as soon as possible to camps far enough from the combat zone for them to be out of danger (Article 19). Article 17 confines questioning to name, date of birth, rank and serial number — ‘no physical or mental torture, nor any other form of coercion, may be inflicted’ to secure information of any kind. Article 13 requires humane treatment at all times and protection against acts of violence or intimidation and against insults and public curiosity; this last clause is the source of the rule that televising humiliated POWs ‘confessing’ to crimes is itself a Convention violation. Article 14 protects persons and honour; reprisals against POWs are prohibited (Article 13). Article 23 forbids exposing POWs to fire of the combat zone or using them as human shields. The relationship between detention powers in armed conflict and the broader scheme of consular access and diplomatic protection is taken up separately for non-combatant nationals caught up in conflict. Article 118 requires release and repatriation without delay after the cessation of hostilities. POWs are subject to the laws and orders of the detaining State and may be tried for disciplinary offences and for war crimes or other offences committed before capture.

Geneva IV and the protection of civilians, especially in occupation

Geneva IV protects civilians in time of war and is, under Article 4, limited to those persons who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals. Article 50(1) of API completes the definition: a civilian is any person who is not a combatant, and in cases of doubt the person is to be considered a civilian. The Convention protects person, honour, convictions and religious practices; prohibits torture and other cruel, inhuman or degrading treatment, hostage-taking and reprisals; and provides judicial guarantees of due process. Wounded and sick civilians are objects of particular protection.

The most heavily litigated portion of Geneva IV concerns the law of occupation. Article 42 of the Hague Regulations provides that territory is to be considered as occupied when it is actually placed under the authority of the hostile army, and that the occupation only extends to the territory where such authority has been established and can be exercised. Article 43 of the Hague Regulations is the framework rule: the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Four propositions follow — only authority and not sovereignty passes to the occupier; the basis of authority is effective control; the occupier has both the obligation and the right to maintain public order; and the existing laws of the territory must be preserved as far as possible. The International Court reaffirmed the framework in Democratic Republic of the Congo v. Uganda (2005). The relationship between occupation and human rights treaties is examined alongside the rules considered in the chapter on state jurisdiction: human rights conventions continue to apply extraterritorially in occupied areas, with international humanitarian law operating as lex specialis on the conduct of hostilities.

Article 47 of Geneva IV provides that protected persons cannot be deprived in any case or in any manner whatsoever of the benefits of the Convention by any change introduced as a result of the occupation, by any agreement between the authorities of the occupied territory and the occupying power, or by any annexation. Article 49 prohibits individual or mass forcible transfers and deportations of protected persons regardless of motive, and provides that the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies. Other provisions prohibit forced work or conscription of protected persons, prohibit the destruction of real or personal property except where rendered absolutely necessary by military operations, and place on the occupying power the responsibility for ensuring adequate food and medical supplies and for facilitating relief schemes (Article 70 and surrounding provisions).

Common Article 3 and non-international armed conflict

The 1949 Conventions were primarily addressed to international armed conflicts, but common Article 3 — the ‘mini-convention’ — provides for non-international armed conflicts occurring in the territory of one of the parties a series of minimum guarantees for those not taking an active part in hostilities, including the sick and wounded. The minimum safeguards are: humane treatment without adverse distinction; prohibition of violence to life and person, in particular murder, cruel treatment and torture; prohibition of hostage-taking; prohibition of outrages upon human dignity, in particular humiliating and degrading treatment; and prohibition of the passing of sentences and the carrying out of executions without due process by a regularly constituted court affording all the judicial guarantees recognised as indispensable by civilised peoples. The wounded and sick must be cared for.

APII supplements common Article 3 and applies under Article 1 to all non-international armed conflicts that take place in the territory of a State party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement the Protocol. APII does not apply to internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. The threshold of intensity required for common Article 3 is lower than that required for APII — common Article 3 needs a minimum level of intensity and minimum organisation of parties, but does not require territorial control. The ICTY in Prosecutor v. Tadić elaborated the test and treated violations of the laws or customs of war as triggering criminal jurisdiction regardless of whether the conflict was internal or international.

The conduct of hostilities — distinction, proportionality, precaution

Three cardinal principles govern the conduct of hostilities. The first is distinction. Article 48 of API provides the basic rule: the parties to the conflict must at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and shall direct their operations only against military objectives. Article 52(2) of API confines military objectives to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Civilian objects are all other objects.

The second principle is proportionality. Even a legitimate military objective may not be attacked if the expected incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, would be excessive in relation to the concrete and direct military advantage anticipated (API Article 51(5)(b) and Article 57(2)(a)(iii)). The third is precaution. Article 57 requires that constant care be taken in the conduct of military operations to spare the civilian population, civilians and civilian objects, and that all feasible precautions be taken in the choice of means and methods of attack with a view to avoiding, and in any event minimising, incidental civilian harm. Article 51 prohibits indiscriminate attacks and attacks the primary purpose of which is to spread terror among the civilian population. Article 52 prohibits attacks or reprisals against civilian objects. Specific protection extends to cultural objects and places of worship; to objects indispensable to the survival of the civilian population (foodstuffs, agricultural areas, crops, livestock, drinking-water installations, irrigation works); and to works or installations containing dangerous forces (dams, dykes, nuclear generating stations).

Means and methods of warfare — prohibited weapons

Article 22 of the Hague Regulations records the cardinal principle: the right of belligerents to adopt means of injuring the enemy is not unlimited. Article 23(e) prohibits the employment of arms, projectiles or material calculated to cause unnecessary suffering. Article 35(3) of API prohibits methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment; Article 55 imposes parallel duties of protection. Specific bans cover small explosive or incendiary projectiles (St Petersburg Declaration 1868), expanding (dum-dum) bullets (Hague Declaration 1899), asphyxiating and poisonous gases (Hague Declaration 1899; Geneva Protocol 1925), weapons that cannot be detected by X-rays (1980 Conventional Weapons Convention, Protocol I), mines and booby-traps against civilians (Protocol II, 1980/1996), incendiary devices against civilians (Protocol III, 1980), blinding laser weapons (Protocol IV, 1995), and explosive remnants of war (Protocol V, 2003). The 1997 Ottawa Convention prohibits anti-personnel mines, supplementing the customary core of restraint discussed in the chapter on the UNCLOS framework on the use of force at sea.

The International Court of Justice, in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, held that the cardinal principles of IHL — distinction, the prohibition of unnecessary suffering, and the limitation on means of warfare — are intransgressible principles of international customary law binding on all States whether or not they have ratified the Hague and Geneva Conventions. The Court also concluded that nuclear weapons are not as such prohibited by treaty or by clear customary rule, but that their use must comply with the rules of IHL; the Court was unable to conclude definitively whether their threat or use would be lawful or unlawful in an extreme circumstance of self-defence in which the very survival of a State would be at stake. The relationship between IHL and the use of force is taken further in the chapter on sources of international law, where the Court’s methodology in the Nuclear Weapons Opinion is analysed in detail.

IHL and international human rights law

IHL and international human rights law were once thought of as separate. They are now accepted as overlapping. The International Court has held that the protection of human rights conventions does not cease in case of armed conflict, save where there is a relevant derogation, and that many human rights treaties apply extraterritorially to the conduct of States parties exercising jurisdiction on foreign territory. In such cases the matter falls to be determined by the applicable lex specialis, which is IHL. The decision of the European Court of Human Rights in Hassan v. UK (2014) read the detention rules of Geneva III and Geneva IV into Article 5 of the European Convention. The doctrinal interface is the same one explored in the chapter on international human rights law and the UDHR: convergence rather than displacement, with the more specific rule controlling on the issue at hand.

Enforcement — Protecting Powers, the ICRC, and grave breaches

The 1949 Conventions and API impose on States parties the obligation to respect and to ensure respect for the instrument in question, and to disseminate knowledge of its principles. Reprisals are prohibited. The Conventions provide for the appointment of a Protecting Power to look after the interests of nationals of one party to a conflict under the control of the other (whether as POWs or occupied civilians); the Protecting Power must be acceptable to all sides, which has limited the system in practice. API also provides for an International Fact-Finding Commission with competence to inquire into grave breaches and other serious violations and to facilitate, through its good offices, the restoration of an attitude of respect for these instruments.

The most important enforcement mechanism is criminal. The Conventions and API list categories of grave breaches — wilful killing, torture, inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, extensive destruction and appropriation of property not justified by military necessity, compelling a POW or protected civilian to serve in the forces of a hostile power, wilfully depriving a POW or protected civilian of the rights of fair trial, unlawful deportation or transfer or unlawful confinement, and the taking of hostages — for which High Contracting Parties undertake to enact penal sanctions and to search for and try or extradite alleged offenders on the basis of universal jurisdiction. Grave breaches are war crimes and feed directly into the regime of individual responsibility examined in the chapter on international criminal law and crimes against humanity, and they were the substantive law applied by the ad hoc tribunals for the former Yugoslavia and Rwanda and now by the International Criminal Court.

The International Committee of the Red Cross (ICRC) is the indispensable institution. A Geneva-based private body with a treaty-recognised role, it consists of the ICRC itself, more than one hundred national Red Cross and Red Crescent societies, and conferences of all these elements every four years. The ICRC visits POWs and detained civilians, monitors compliance, runs medical and humanitarian operations in conflict zones, and is the recognised guardian of IHL. It customarily acts with discretion and confidentiality but has on rare occasions spoken out, as during the Yugoslav conflict in 1992. Its 2016 Commentary to the First Geneva Convention is now a standard interpretive reference.

India and international humanitarian law

India is a party to the four Geneva Conventions of 1949 and gave them domestic effect through the Geneva Conventions Act, 1960, which provides for punishment of grave breaches and authorises Indian courts to try the offences regardless of the nationality of the offender or the place of commission. India is not a party to Additional Protocols I and II; nor to the Rome Statute of the International Criminal Court. The reasons frequently cited include concerns about the API extension to wars of national liberation, about the API rules on combatant status that some States consider to dilute the four-condition Geneva III test, and broader questions about the interaction between international criminal jurisdiction and Indian sovereignty considered in the related chapter on the subjects of international law.

The Indian Supreme Court has, in keeping with the dualist tradition examined in the wider material on the Constitution’s treaty interface, treated the customary core of IHL as part of the law of the land, particularly the prohibitions on torture and on mistreatment of detainees. Article 51(c) of the Constitution directs the State to endeavour to foster respect for international law and treaty obligations, and the Geneva Conventions Act provides the statutory channel for prosecution. The chapter on the customary international law and general principles sets out the framework within which the customary IHL rules are received in Indian courts.

What the exam wants you to remember

From this chapter, fix the following minimum: the names and subject matter of the four Geneva Conventions of 1949 (wounded and sick on land; wounded, sick and shipwrecked at sea; POWs; civilians); the dates of API and APII (1977) and the addition of API III (2005); the threshold rule of common Article 2; the four-condition combatant test of Geneva III Article 4 and the API Articles 43–45 amendments; the cardinal principles of distinction (API Article 48), military objective (API Article 52(2)), proportionality (API Article 51(5)(b)), and precaution (API Article 57); the content of common Article 3 as the minimum guarantee in non-international conflict and the threshold for APII; the law-of-occupation framework in Hague Regulations Article 43 and Geneva IV Articles 47 to 49; the categories of grave breaches and the obligation to prosecute or extradite; the role and treaty-recognised position of the ICRC; and India’s position as a party to the four Conventions and not to API/APII or the Rome Statute, with the Geneva Conventions Act, 1960 as the implementing legislation.

Frequently asked questions

What is the difference between jus ad bellum and jus in bello?

Jus ad bellum is the body of rules governing when a State may lawfully resort to force — found in Articles 2(4) and 51 of the UN Charter and in customary international law. Jus in bello, also called international humanitarian law or the law of armed conflict, is the body of rules governing the conduct of hostilities once an armed conflict is under way — found chiefly in the four Geneva Conventions of 1949, their 1977 Additional Protocols, the Hague Regulations of 1907 and customary IHL. The two regimes are independent: violations of jus ad bellum do not relieve any party of its jus in bello obligations, and compliance with IHL is required of all parties regardless of which is the aggressor.

Who qualifies as a combatant entitled to prisoner of war status?

Article 4 of Geneva III lists the categories. The principal ones are members of the armed forces of a party to the conflict (including militias and volunteer corps forming part of those armed forces), and members of other militias, volunteer corps and organised resistance movements belonging to a party provided four cumulative conditions are satisfied — being commanded by a person responsible for his subordinates, having a fixed distinctive sign recognisable at a distance, carrying arms openly, and conducting operations in accordance with the laws and customs of war. API Articles 43 and 44 amend this for parties to the Protocol, requiring combatants to distinguish themselves from civilians while engaged in attack or in a military operation preparatory to an attack.

What does common Article 3 of the Geneva Conventions require?

Common Article 3 applies in non-international armed conflicts occurring in the territory of a State party. It requires that persons taking no active part in the hostilities — including members of armed forces who have laid down their arms or are placed hors de combat — be treated humanely without adverse distinction. It prohibits violence to life and person (in particular murder, cruel treatment and torture), hostage-taking, outrages upon personal dignity (in particular humiliating and degrading treatment), and the passing of sentences and the carrying out of executions without due process by a regularly constituted court. The wounded and sick must be cared for. The ICJ and the ICTY have held that common Article 3 reflects customary international law.

What are the principles of distinction, proportionality and precaution?

Distinction (API Article 48) requires the parties to a conflict at all times to distinguish between civilians and combatants and between civilian objects and military objectives, and to direct their operations only against military objectives. A military objective is defined in API Article 52(2). Proportionality (API Articles 51(5)(b) and 57(2)(a)(iii)) prohibits attacks expected to cause incidental civilian harm that would be excessive in relation to the concrete and direct military advantage anticipated. Precaution (API Article 57) requires constant care to be taken to spare the civilian population, civilians and civilian objects, and all feasible precautions in the choice of means and methods of attack.

Is India bound by Additional Protocols I and II?

No. India is a party to the four Geneva Conventions of 1949 and gave them effect domestically through the Geneva Conventions Act, 1960. India has not ratified Additional Protocol I (international armed conflicts) or Additional Protocol II (non-international armed conflicts). Treaty obligations under API and APII therefore do not bind India as such. To the extent that particular provisions of the Protocols reflect customary international humanitarian law — for example, the basic rules of distinction, the prohibition of attacks on civilians, and the protection of medical units — they bind India in their customary capacity rather than under the Protocols.

What is a grave breach and why does it carry universal jurisdiction?

Grave breaches are the most serious violations of the Geneva Conventions and Additional Protocol I. The Conventions list them — wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury, extensive destruction and appropriation of property not justified by military necessity, compelling a prisoner of war or protected person to serve in the forces of a hostile power, wilfully depriving a prisoner of war or protected person of fair trial, unlawful deportation or transfer or unlawful confinement, and taking of hostages. High Contracting Parties undertake to enact penal sanctions and to search for and either prosecute or extradite alleged offenders regardless of nationality or place of commission — the Conventions thus create a treaty-based scheme of universal jurisdiction for grave breaches.