the Soviet Union, Britain, the United States and France.

On the divisive matter of

Eastern Europe's future, Churchill and Truman acquiesced to Stalin, as they needed
Soviet cooperation in the war against Japan. Heavy casualties sustained in the
campaigns at Iwo Jima (February 1945) and Okinawa (April-June 1945), and fears of
the even costlier land invasion of Japan led Truman to authorize the use of a new and
devastating weapon the atomic bomb on the Japanese cities of Hiroshima and
Nagasaki in early August. On August 10, the Japanese government issued a statement
declaring they would accept the terms of the Potsdam Declaration, and on September
2, U.S. General Douglas MacArthur accepted Japan's formal surrender aboard the
USS Missouri in Tokyo Bay205.

World War II proved to be the most devastating international conflict in

history, taking the lives of some 35 to 60 million people, including 6 million Jews
who died at the hands of the Nazis. Millions more were injured, and still more lost
their homes and property. The legacy of the war would include the spread of
communism from the Soviet Union into Eastern Europe as well as its eventual
triumph in China, and the global shift in power from Europe to two rival
superpowers–the United States and the Soviet Union–that would soon face off against
each other in the Cold War.206

2.6 The Geneva Conventions of 1949 and their Additional Protocols

The Geneva Conventions and their Additional Protocols are international

treaties that contain the most important rules limiting the barbarity of war. They
protect people who do not take part in the fighting, civilians, medics, aid workers and
those who can no longer fight, wounded, sick and shipwrecked troops, prisoners of
war.

The Geneva Conventions and their Additional Protocols are at the core of
international humanitarian law, the body of international law that regulates the
conduct of armed conflict and seeks to limit its effects. They specifically protect
people who are not taking part in the hostilities civilians, health workers and aid
workers and those who are no longer participating in the hostilities, such as wounded,

205
Additional Report by Col.Wild Bolz, ICRC Archives, file Mis. 56.A.5;RICR, no.59,1923,pp.1097-
1101
206
Christian H, (1997) United Nations Military Observers: Methods and Techniques for Serving on a
UN Observer Mission. UNITARPOCI © 1997, p 10.

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sick and shipwrecked soldiers and prisoners of war. The Conventions and their
Protocols call for measures to be taken to prevent or put an end to all breaches. They
contain stringent rules to deal with what are known as "grave breaches". Those
responsible for grave breaches must be sought, tried or extradited, whatever
nationality they may hold.207

2.6.1 The first Geneva Convention protects wounded and sick soldiers on land
during war.

This Convention represents the fourth updated version of the Geneva

Convention on the wounded and sick following those adopted in 1864, 1906 and
1929. It contains 64 articles. These provide protection for the wounded and sick, but
also for medical and religious personnel, medical units and medical transports. The
Convention also recognizes the distinctive emblems. It has two annexes containing a
draft agreement relating to hospital zones and a model identity card for medical and
religious personnel.208

2.6.2 The second Geneva Convention protects wounded sick and shipwrecked
military personnel at sea during war.

This Convention replaced Hague Convention of 1907 for the Adaptation to

Maritime Warfare of the Principles of the Geneva Convention. It closely follows the
provisions of the first Geneva Convention in structure and content. It has 63 articles
specifically applicable to war at sea. For example, it protects hospital ships. It has one
annex containing a model identity card for medical and religious personnel.209

2.6.3 The third Geneva Convention applies to prisoners of war.

This Convention replaced the Prisoners of War Convention of 1929. It

contains 143 articles whereas the 1929 Convention had only 97. The categories of
persons entitled to prisoner of war status were broadened in accordance with
Conventions I and II. The conditions and places of captivity were more precisely
defined, particularly with regard to the labour of prisoners of war, their financial
resources, the relief they receive, and the judicial proceedings instituted against them.

207
Ingrid Detter, The Law of War, second edition (Cambridge: Cambridge University Press, 2000), pp.
157-58.
208
id
209
id

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The Convention establishes the principle that prisoners of war shall be released and
repatriated without delay after the cessation of active hostilities. The Convention has
five annexes containing various model regulations and identity and other cards.

2.6.4 The fourth Geneva Convention affords protection to civilians, including in

occupied territory.

The Geneva Conventions, which were adopted before 1949 were concerned
with combatants only, not with civilians. The events of World War II showed the
disastrous consequences of the absence of a convention for the protection of civilians
in wartime. The Convention adopted in 1949 takes account of the experiences of
World War II. It is composed of 159 articles. It contains a short section concerning
the general protection of populations against certain consequences of war, without
addressing the conduct of hostilities, as such, which was later examined in the
Additional Protocols of 1977. The bulk of the Convention deals with the status and
treatment of protected persons, distinguishing between the situation of foreigners on
the territory of one of the parties to the conflict and that of civilians in occupied
territory. It spells out the obligations of the Occupying Power vis-à-vis the civilian
population and contains detailed provisions on humanitarian relief for populations in
occupied territory. It also contains a specific regime for the treatment of civilian
internees. It has three annexes containing a model agreement on hospital and safety
zones, model regulations on humanitarian relief and model cards.

2.7. Common Article 3

Article 3, common to the four Geneva Conventions, marked a breakthrough,

as it covered, for the first time, situations of non-international armed conflicts. These
types of conflicts vary greatly. They include traditional civil wars, internal armed
conflicts that spill over into other States or internal conflicts in which third States or a
multinational force intervenes alongside the government210. Common Article 3
establishes fundamental rules from which no derogation is permitted. It is like a mini-
Convention within the Conventions as it contains the essential rules of the Geneva
Conventions in a condensed format and makes them applicable to conflicts211

210
1970 ICJ Rep. at 32.
211
The Geneva Conventions of 12 August 1949, Commentary IV Geneva Convention, Relative
Protection of Civilians Persons in Time of War, ICRC, p 33

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 • It requires humane treatment for all persons in enemy hands, without any
adverse distinction. It specifically prohibits murder, mutilation, torture, cruel,
humiliating and degrading treatment, the taking of hostages and unfair trial.

• It requires that the wounded, sick and shipwrecked be collected and cared for.

• It grants the ICRC the right to offer its services to the parties to the conflict.

• It calls on the parties to the conflict to bring all or parts of the Geneva
Conventions into force through so-called special agreements.

• It recognizes that the application of these rules does not affect the legal status
of the parties to the conflict.

• Given that most armed conflicts today are non-international, applying

Common Article 3 is of the utmost importance. Its full respect is required. In
explaining Why the Geneva Conventions can be regarded as approaching
‘international legislation’, Sir Hersh Lauterpacht stated that, among other
reasons, ‘many of the provisions of these conventions, following as they do
from compelling considerations of humanity, are declaratory of universally
binding international custom’212.

2.7.1 Where do the Geneva Conventions apply?

The Geneva Conventions entered into force on 21 October 1950. Ratification

grew steadily through the decades: 74 States ratified the Conventions during the
1950s, 48 States did so during the 1960s, 20 States signed on during the 1970s, and
another 20 States did so during the 1980s. Twenty-six countries ratified the
Conventions in the early 1990s, largely in the aftermath of the break-up of the Soviet
Union, Czechoslovakia and the former Yugoslavia.

Seven new ratifications since 2000 have brought the total number of States
Party to 194, making the GC universally applicable.213

212
I H. Lauterpacht, International Law: Collected papers 115 (E. Lauterpacht ed.1970)p.234
213
Allen Buchanan, “Institutionalizing the Just War,” Philosophy and Public Affairs 34, no. 1 (2006):
2-38.p.179

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2.7.2The Additional Protocols to the Geneva Conventions

In the two decades that followed the adoption of the GCs, the world witnessed
an increase in the number of non-international armed conflicts and wars of national
liberation. In response, two Protocols Additional to the four 1949 Geneva
Conventions were adopted in 1977. They strengthen the protection of victims of
international (Protocol I) and non-international (Protocol II) armed conflicts and place
limits on the way wars are fought. Protocol II was the first-ever international treaty
devoted exclusively to situations of non-international armed conflicts214.

In 2005, a third Additional Protocol was adopted creating an additional

emblem, the Red Crystal, which has the same international status as the Red Cross
and Red Crescent emblems.

2.7.2.1 Protocol Additional to the Geneva Conventions of 12 August 1949, and

relating to the Protection of Victims of International Armed Conflicts
(Protocol I), 8 June 1977.

The present Protocol brings mainly the following innovations:

Article 1(4) provides that armed conflicts in which peoples are fighting against
colonial domination, alien occupation or racist regimes are to be considered
international conflicts.

Part II (Articles 8-34) develops the rules of the First and the Second Geneva
Conventions on wounded, sick and shipwrecked. It extends the protection of the
Conventions to civilian medical personnel, equipment and supplies and to civilian
units215 and transports and contains detailed provisions on medical transportation216.

Part III and several chapters of Part IV (Articles 35-60) deal with the conduct
of hostilities, i.e. questions which hitherto were regulated by the Hague Conventions
of 1899 and 1907 and by customary international law. Their reaffirmation and
development is important in view of the age of the Hague Conventions and of the new
States which had no part in their elaboration. Article 43 and 44 give a new definition

214
The Geneva Conventions of 12 August 1949 and Protocols Addition to the Geneva Conventions of
12v August 1949, ICRC ,p 195
215
Hilaire McCoubrey, International Humanitarian Law, The Regulation of Armed Conflicts,
Dartmouth publishing Company limited. 1990. p.54
216
Id

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of armed forces and combatants. Among the most important Articles are those on the
protection of the civilian population against the effects of hostilities217. They contain a
definition of military objectives and prohibitions of attack on civilian persons and
objects. Further Articles (61-79) deal with the protection of civil defence
organizations, relief actions and the treatment of persons in the power of a party to a
conflict.

Part V (Articles 80-91) brings some new elements to the problem of the
execution of the Conventions and the Protocol.218

2.7.2.2 Protocol Additional to the Geneva Conventions of 12 August 1949, and

relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II), 8 June 1977.

The only provision applicable to non-international armed conflicts before the

adoption of the present Protocol was Article 3 common to all four Geneva
Conventions of 1949.

Common Article 3 of the Geneva Conventions, however, lays down minimum

standards of treatment for persons detained in relation to a conflict of a non-
international character. Historically, the granting of privileges to combatants was not
linked to humanitarian concerns. It was the codes of chivalry that provided the
underpinning of national law governing the armed forces.219

This Article proved to be inadequate in view of the facts that about 80% of
the victims of armed conflicts since 1945 have been victims of non-international
conflicts and that non-international conflicts are often fought with more cruelty than
international conflicts. The aim of the present Protocol is to extend the essential rules
of the law of armed conflicts to internal wars. The fear that the Protocol might affect
State sovereignty, prevent governments from effectively maintaining law and order
within their borders and that it might be invoked to justify outside intervention led to
the decision of the Diplomatic Conference at its fourth session to shorten and simplify

217
Id.55
218
ICRC (2002), Introduction to the Law of Armed Conflict, Teaching File for Instructors in the Law
of Armed Conflict, p 13.
219
GIAD Draper, ‘The Status of Combatants and the Question of Guerilla Warfare,’ British Yearbook
of International Law, Vol 45 (1971), pp 172-180, at p.172

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the Protocol220. Instead of the 47 Articles proposed by the ICRC the Conference
adopted only 28. The essential substance of the draft was, however, maintained. The
part on methods and means of combat was deleted, but its basic principles are to be
found in Article 4 (fundamental guarantees). The provisions on the activity of
impartial humanitarian organizations were adopted in a less binding form than
originally foreseen. The restrictive definition of the material field of application in
Article 1 will have the effect that Protocol II will be applicable to a smaller range of
internal conflicts than Article 3 common to the Conventions of 1949221.

2.7.2.3 Protocol additional to the Geneva Conventions of 12 August 1949, and

relating to the Adoption of an Additional Distinctive Emblem (Protocol
III), 8 December 2005

Since the nineteenth century the Red Cross and Red Crescent emblems have
been used as universal symbols of assistance for armed conflict victims. With the
adoption of an additional emblem the red crystal a new chapter in their long history
has just been written.

The original Geneva Convention, adopted on 22 August 1864, established the

Red Cross emblem. From the beginning, the emblem was a visible sign of the neutral
status and the protection granted by IHL to armed forces’ medical services and
volunteers belonging to relief societies for wounded military personnel. At the time,
the adoption of a single distinctive symbol appeared to be an essential condition for
this protection. By the end of the nineteenth century, however, the Red Crescent and
the red lion and sun were used by some States and relief societies instead of the Red
Cross. Taking note of the fait accompli, the C for the Amelioration of the Condition
of the Wounded and Sick in Armies in the Field of 27 July 1929 granted international
recognition to these two additional emblems. The Geneva Conventions of 12 August
1949 subsequently confirmed all three emblems.

The Commentary on Article 38 of the First Geneva Convention of 1949

clearly states that these emblems are intended “to signify one thing only something
which is, however, of immense importance: respect for the individual who suffers and

220
The Geneva Conventions of 12 August 1949 and Protocols Addition to the Geneva Conventions of
12v August 1949, ICRC p.85
221
Id

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is defenseless, who must be aided, whether friend or enemy, without distinction of
222
nationality, race, religion, class or opinion.” Despite this assertion, the emblems
are sometimes perceived in particular contexts as having a religious or political
connotation. This perception is the cause of two major difficulties for the International
Red Cross and Red Crescent Movement. First, it challenges the notion that neutrality
and impartiality serve as the basis for the activities of all components of the
Movement. As a consequence, the emblems are not given the respect they are due,
which diminishes the protection afforded those displaying them. Second, it has led
some States and relief societies to refuse to adopt any of the existing emblems on the
grounds that none is suitable for them. Any such refusal prevents the Movement from
attaining true universality, since its statutes lay down the use of one or the other of
these symbols as a necessary condition for a National Society to be recognized and to
become a full member of the Movement.

In order to correct these two problems, the States party to the Geneva
Conventions adopted a third protocol additional to the Conventions at a diplomatic
conference held in Geneva from 5 to 8 December 2005. This instrument recognizes an
additional emblem composed of a red frame in the shape of a square on edge on a
white ground commonly referred to as the red crystal.223The shape and name of this
additional emblem were the result of a long selection process, the goal of which was
to come up with a result devoid of any political, religious or other connotation and
which could thus be used all over the world. The red crystal is not intended to replace
the cross and crescent but to provide a further option.

The persons and entities authorized to display the red crystal are the same as
those entitled to use the emblems recognized by the Geneva Conventions of 1949.
These include in particular the medical services of the armed forces of States, civilian
hospitals with explicit authorization and the various components of the International
Red Cross and Red Crescent Movement – namely, the ICRC, the National Societies,
and their International Federation. The recognized emblems are equivalent in
meaning. They must be treated equally and receive equal protection in the national
legislation of States.

222
Article 83, Paragraph 1of Additional Protocol 1 to the Geneva Convention of 1977.
223
Gareth Evans, "The Responsibility to Protect: An Idea Whose Time Has Come... And Gone?",
International Relations, 22, no. 3 (2008): 283-98, pp. 290-92

93
 The emblems may be employed in two different ways. As a protective device,
an emblem is the visible sign of protection conferred by the Geneva Conventions. As
an indicative device, an emblem shows that a person or object is linked to the
International Red Cross and Red Crescent Movement. Additional Protocol III
provides for the red crystal in its pure form to be used as a protective device. If used
as an indicative device, however, the red crystal may have incorporated within it one
of the emblems recognized by the Geneva Conventions, a combination of these
emblems or another emblem which has been in effective use by a State party to
Additional Protocol III and was the subject of a communication to the other States
Parties and the ICRC prior to the adoption of the Protocol. It is important to note that
Additional Protocol III authorizes not only the permanent substitution of the red
crystal for the Red Cross or Red Crescent as described above, but also temporary use
of the red crystal in exceptional circumstances to enhance protection of armed forces’
medical services or to facilitate the work of National Societies.224

CONCLUSION

Wars happen. It is not necessary that war will continue to be viewed as an

instrument of national policy, but it is likely to be the case for a very long time. Those
who believe in the progress and perfectibility of human nature may continue to hope
that at some future point reason will prevail and all international disputes will be
resolved by nonviolent means. Unless and until that occurs, our best thinkers must
continue to pursue the moral issues related to war. Those who romanticize war do not
do mankind a service; those who ignore it abdicate responsibility for the future of
mankind, a responsibility we all share even if we do not choose to do so.”225

Since time immemorial, there have been wars and wars, and in spite of the
provisions of the United Nations Organizations, wars are taking place even now, and
they will continue to take place in future also. And if there are wars, a natural
corollary is that there must be prisoners of war. It is a different story how they were
treated in the past and how they are being treated today.

224
Louise Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice",
Review of International Studies, 34, no. 03 (2008): 445-58, pp. 446-47
225
Weiss, Humanitarian Intervention, pp. 103-4.

94
 During antiquity, prisoners of war could be killed and they were very often at
once butchered or offered as sacrifices to the God, though “Mahabharata epic and the
rules embodied in the legends of Manu, the first man, lat down principles for warriors
that seem far in advance of their time: warriors are forbidden to kill enemies who are
disabled and those who surrender”.

In the medieval period starting from enslavement, the practice of releasing a

POW on payment of ransom was introduced. Enslavement of enemy soldiers in
Europe later on declined.

In the 16th and early 17th centuries some European political and legal
philosophers expressed their thoughts about the war prisoners. As stated by Hugo
Grotius in hid De jure belli ac pacis 1625 victors had the right to enslave their
enemies, but he advocated exchange and ransom instead. The Treaty of Westphalia
1648 which released prisoners without ransom is generally taken as marking the end
of the era of widespread enslavement of prisoners of war.

In the 18th century, Montesquieu in his book, The Spirit of Laws 1750, wrote
that the only right in war that a captor had over a prisoner of war was to prevent him
from doing harm. Later on Rousseau and Vattel expanded on the same theme and
developed what might be called the quarantine theory for the disposition of prisoners
of war. From this point on, the treatment of prisoners generally improved as the idea
developed that soldiers who are horse de combat must be relieved of their suffering
and their lives must be preserved.

The “Treaty of Friendship and Peace” between Fredrick the Great and
Benjamin Franklin in 1785 stipulated that prisoners of war would be fed and lodged in
the same manner as the soldiers of the detaining power and a man of confidence
would be allowed to visit them and provide them relief.

The efforts of President Abraham Lincoln in the form of ‘Liber Code’ the
Brussels Conference of 1874 and the Institute of International Law, London led to the
famous Regulations concerning the laws and customs of war on land which were
annexed to the Fourth Hague Convention of 1899, revised in 1907. In this Regulation
seventeen articles were devoted to the prisoners of war. Based on the above
developments we can analyze the problems of sick and wounded in the war field in
the next chapter critically.

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