INTRODUCTION
In times past war was seen and accepted as a legitimate means of settling international dispute. Since war was legitimate, members of the international community would rather concern themselves with measures to mitigate the hardship occasioned by resort to war. Combat activities were usually brutal and characterized by fight to a finish. Hence the need to make rules for the belligerents. The rules are not meant to define their rights and opportunities or. to make combat enjoyable but rather to protect the unfortunate victims (Ibanga, 1999:27). In this regard, international humanitarian law becomes very important, relevant and indispensable.
Contemporary international law, has however, prohibited the threat to use force against another state (The preamble to the UN Charter states, among others, that “armed force shall not be used, save in the common interest.” Art. 2 of the UN Charter prohibits threat or use of force. There are other bilateral and regional legal instruments on prevention of war).
States are to settle their problems by peaceful means. Despite the outlawry of war in international relations, states still resort to war. Armed conflicts are still occurring since the adoption of the UN Charter in 1945. The wars in Korea, Vietnam, former Yugoslavia and Iraq were fought with great brutality. Wars of liberation and civil wars have added new dimensions to the concept of armed conflict, thus expanding the scope of international humanitarian law.
Outbreak of war or armed conflict appears to be inevitable despite efforts to abolish it (Ibanga, 1994:78). Attention has thus shifted from attempt to abolish war to the protection of the victims of war. As Ibanga (1994:78) aptly puts it:
Law having reached its limits of effectiveness and having failed at the level of total prohibition of war, has rechannelled its efforts towards the regulation of recourse to war and conduct of warfare, as well as protection of war victims.
This paper is therefore concerned with efforts aimed at the protection of war victims – through the Geneva Laws – and the regulation of the conduct of war – through the Hague Laws. The origin and role of both systems of law will be examined. But of particular interest to scholars has been the interdependence and mutually complementary manner in which the two systems have operated over the years despite their separate origin. Thus, text writers talk of the divergence and convergence of the Geneva and Haque laws and wonder whether such division is of any practical relevance. This and other issues will be examined in this paper.
DEFINITION AND SCOPE
International humanitarian law is an off-shoot of international law or the law of nations and its basic rules are binding on all states (Gasser, 1993:3). It is based on the principle that human beings are entitled to certain minimum rights – protection, security and respect – whether in peace or in war (Umozurike, 1993:212). Different definitions of international humanitarian law abound. Buergenthal (1995:17) describes it as “the human rights components of the law of war.” Professor Pictet defines it as that considerable part of international law which is dominated by the feeling of humanity and is aimed at the protection of the person (Herczegh, 1984:56).
The International Committee of the Red Cross which has played a prominent part in the development of international humanitarian law has defined it to be those international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of the parties to a conflict to use methods and means of warfare of their choice or protect persons and property that are, or may be, affected by the conflict (Gasser, 1993:16).
This branch of law therefore regulates the conduct of war and also seeks to mitigate the hardship occasioned by the outbreak of hostilities. In other words, it imposes limits and restrictions on the choice of means and methods of conducting military operations on the one hand and on the other provides for the protection of persons who do not or no longer take part in military actions. Thus, the oldest most basic principle of international humanitarian law is the principle of humaneness, uniting all its provisions into a logical system (Blishchenko, 1980:341).
The scope of international humanitarian law has for some time been a thing of controversy. In some cases, it has been equated with the law of war (Gasser, 1993:3).
Its proper scope has already been settled (Ibanga, 1995:95). and should not be defined in such a manner that international humanitarian issues not related to situations of armed conflict be brought within its scope (Ibanga, 1995:104-105).
DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW
The concept of humanitarian law is not new. Humanitarian rules relating to armed conflict are found in many cultures and major literary works (Gasser, 1993:7). But the modern approach can be traced to the idea proffered by Jean – Jacques Rousseau. In his famous and widely quoted work “The Social Contract” he declared that: “War is in no way a relationship of man with man but a relationship between states, in which individuals are only enemies by accident, not as men, but as soldiers.”
He maintained further that anytime soldiers lay down their arms, they again become men and their lives should be spared.
This postulation became a source of inspiration to others. In this regard Francis Lieber and Henry Dunant stand out prominently without any rival. Francis Lieber German immigrant to the United States was then a professor of Columbia College in New York. He prepared the “Instructions for the Government of Armies of the United States” (Popularly referred to as Lieber Instructions 1863) which were promulgated (As General orders No. 100) by President Lincoln on 24 April 1863. These instructions, though only applicable to United States forces, covered to a large extent the laws and customs of war at that time and prepared the way for the subsequent development of the Hague Laws.
On the other hand, it is Jean Henry Dunant, a Swiss businessman who is credited with the development of the modern principles of international humanitarian law. His work and efforts have been described as pioneering (Shaw, 1999:806). After witnessing the atrocities that combatants passed through in the battle of Solferino in 1859, Dunant came out with a publication called “A memory of solferino.” His suggestions led to the founding of the international committee for the Relief of
the Wounded (Later renamed International Committee of the Red Cross) in 1863 and the adoption of the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.
Two systems of law came into existence from what has been stated so far, namely the Geneva law and the Hague law. The former was concerned with the protection and care for victims of armed conflict while the latter dealt with rules on the conduct of warfare.
DEVELOPMENT OF THE GENEVA AND HAGUE LAWS
Geneva Convention 1864
The Geneva Law came into existence as a result of the diplomatic conference that took place in Geneva in 1864. The participants were inspired by the publication of Henry Dunant and his suggestion of the establishment of a body to look after the victims of armed conflict. This led to the adoption of the convention for the Amelioration of the Condition of the Wounded in Armies in the Field of August 22, 1864. The convention consisted of 10 short articles and has been described as the starting point of the Geneva Law on the protection of victims of armed conflicts (Herczegh, 1984:23).
The Geneva Convention 1906
The 1906 convention was an improvement on its predecessor. It consisted of 33 articles. In this convention the status of “neutrality” hither to enjoyed by sanitary formations and establishments was replaced by an international legal obligation on states parties to respect and spare the wounded and sick. Another important addition to the 1906 convention was the provision for dissemination of the Geneva Law. Troops and other personnel are to be acquainted with provisions of the Convention (1906 Convention Art. 26).
The Geneva Convention 1929
The events of the First World War put the effectiveness of the Geneva Convention to a real test. Much experience was gathered during that war and the inadequacies of the existing conventions were exposed. On 27 July, 1929, the Geneva Convention for the Amelioration of the conditions of the wounded and sick in Armies in the Field was signed at the instance of the ICRC. It was made up of 39 articles and essentially supplementary to that of 1906.
New provisions in the 1929 convention related to the protection of medical aircraft (1929 Convention Art. 18) and the use of distinctive emblem in time of peace (1929 Convention Art. 24). The convention recognized the emblems of the red crescent, the red lion and sun for countries which already used them in the place of the red cross (1929 Convention Art. 19).
Another important addition to the Geneva Law of 1929 was its extension to cover prisoners of war (Convention Relative to the Treatment of prisons of War signed at Geneva, 27 July 1929). The first world war had revealed several deficiencies in the existing, Hague Regulations. Therefore, at the instance of the ICRC a draft convention on the treatment of prisoners of war was submitted to the Diplomatic Conference and signed on. 27 July, 1929.
The Geneva Conventions 1949
The appalling events of the second world war, the horrors, atrocities, cruelty and evil caused a rethink in the realms of international human rights laws (The outcome was the Universal Declaration of Human Rights 1948) generally and international humanitarian law in particular (led to the signing of the Geneva Conventions of 12 August, 1949). The post war organization, the United Nations, abolished the right of states to go to war as a means of settling disputes (The preamble to the UN Charter states, among others, that “armed force shall not be used, save in the common interest.” Art. 2 of the UN Charter prohibits threat or use of force. There are other bilateral and regional legal instruments on prevention of war).
In contrast however to its disapproval of war, the international community has devoted much resources and energy to efforts to make, update and uphold the rules designed to protect victims of armed conflict. This may be because man has come to accept the fact that armed conflict will always occur (Ibanga, 1994). Even the UN has provided exceptions to the prohibition of war-individual and collective self-defence and war of liberation against colonial oppression.
The efforts, mainly that of the ICRC, to evolve humanitarian rules and principles applicable to armed conflict culminated in the signing of the four Geneva Conventions of 12 August, 1949. The Conventions constitute the main sources of international humanitarian law (Gasser, 1993:18) and “have become the most Universal of international treaties binding on 175 states as at 31 December, 1992 (Gasser, 1993:12). The four conventions are:
- Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention);
- Convention for the Amelioration of the condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention);
- Convention relative to the Treatment of Prisoners of War (Third Geneva Convention);
- Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).
These conventions made giant strides “in grouping together and amplifying the common provisions, up to then dispersed and rudimentary” (Preliminary Remarks to the Geneva conventions of 12 August 1949, ICRC, Geneva).
Additional Protocols 1977
The outbreak of inter-state and intra state armed conflicts in various parts of the world since the adoption of the 1949 conventions revealed the need for further development of international humanitarian law. It soon became necessary to update humanitarian law in order to address new challenges, especially from civil and liberation wars (These concerns led to the adoption of the Convention on the Protection of Cultural Property in the Event of Armed Conflict 1954).
Consequently, the Geneva Conference on the Reaffirmation and Development of International Humanitarian Law was convened to negotiate the text produced by the ICRC.
Negotiations went on from 1974 and on 8 June 1977 two additional protocols were adopted as supplement to the Geneva Conventions of 12 August 1949. Protocol I offers protection to victims of international armed conflict while protocol II relates to humanitarian issues of non-international armed conflict. But most importantly, the Additional Protocols brought the Geneva and Hague Laws together.
THE HAGUE LAW
The Lieber code 1863
The Lieber code made two significant contributions to the development of this branch of international humanitarian law. “First, it set up a precedent for subsequent military hand books and instructions on the law of law. Secondly, it marked the starting point for the second series of developments in modern international humanitarian law, which saw the emergence of rules on the conduct of war itself (Gasser, 1993:10).
ST. Petersburg Declaration 1868
The Hague Laws also owe its origin to the St. Petersburg Declaration of 1868. It was in this Declaration that certain important principles on the conduct of warfare emerged among which was the prohibition of the use of weapons which cause unnecessary suffering. According to Iyoho (2000:30), the Declaration runs as follows:
- That the progress of civilization should have the effect of alleviating as much as possible the calamities of war;
- That the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy;
- That for this purpose it is sufficient to disable the greatest possible number of men;
- That this object would be exceeded by the employment of arms which unnecessarily aggravate the sufferings of disabled men, or render their death inevitable;
- That the employment of such arms would therefore be contrary to the laws of humanity.
This Declaration paved the way for what was later known as the Hague Peace Conference where special and more definitive convention of 1899 was adopted (Elias, 1980:182).
Brussels Conference of 1874
The 1868 Declaration of St. Petersburg prepared the ground for further development of international humanitarian law especially regarding the laws and customs of war. According to Herczegh (1984:29), its effect was felt on the draft drawn up at the Brussels conference of 1874. The conference was convened to examine the draft of an international agreement on the laws and customs of war. Though the draft was not adopted, it was without doubt a very significant initiative. “It prepared the way to the Hague peace conference of 1899 where it was for the first time that provisions of law applicable in war on land, the so-called laws and customs of war, could be codified” (Herczegh, 1984:29).
The Brussels Declaration was further improved upon through the initiative of the Institute of International Law. The input made by the institute resulted in the publication of the Oxford Manual of the Laws and Customs of War in 1880.
The Hague Law 1899
The First Hague Peace Conference of 1899 adopted a convention (Convention (II) with Respect to the Laws and Customs of War on Land signed at The Hague, 29 July 1899) on Land Warfare to which Regulations are annexed. Also known as the Hague Law 1899, it consisted of 60 articles. The convention and the Regulations were revised at the second International Peace Conference in 1907.
The Hague Law 1907
The Second Peace Conference produced another convention which was signed on 18 October 1907 (Convention (iv) Respecting the Laws and customs of War on Land). Essentially, it reaffirmed the convention of 1899. The regulations only differ slightly from each other.
The Third Hague Peace Conference was planned for 1915 but it never took place owing to the outbreak of the First World War (Ibanga, 1999:140).
RELATIONSHIP BETWEEN GENEVA AND HAGUE LAWS
From the analysis so far, there were two streams of regulations concerning the protection of victims of armed conflict – one for the protection of the wounded, the sick and the unarmed and the other for the regulation of means and methods of warfare. There is no doubt that the Geneva and Hague Laws, which regulated both streams, had separate origin and development. This notwithstanding, both had a common principle, purpose and focus – humanity.
It is this common element which has created the present problem namely whether they ever existed separately. If so, at what point or to what extent? Or was their separate existence, if any, of any practical significance? It is also known that the Geneva and Hague Laws were formally brought together in 1977. So, if there was no divergence between the two, then why the convergence? These issues will now be examined.
The Divergence
The divergence of the Geneva and Hague laws relates to the lines or paths of division or separation between them as they progressed. The divergence could basically be seen in the nature and function of both systems and laws. While the Geneva Laws concentrated on the provision of care for victims of armed conflict – the wounded, sick, unarmed and prisoners of war, the Hague Law dealt with the waging of war itself – means and methods of conducting warfare.
In another respect while the Geneva Law was essentially meant for those responsible for services in the rear and civil authorities, the Hague law was addressed directly to the High command of the Armed Forces and Commanders.
The Interrelationship
The fact that the Geneva and Hague Laws developed separately, distinctly and uniquely is now settled. However, they interrelated in many areas. In this respect, Herczegh (1984:69) has this to say:
The differentiation of the Hague law from the law of Geneva does not at all mean the negation of the – otherwise very close – connections existing between them. Both laws are composed of rules
applicable in war, in armed conflict. During the past few decades there have been a number of instances of overlapping and interpenetration between the two laws.
The Geneva Convention of 1864 simply laid the foundation and the Declaration of St. Petersburg 1868 built on it (Herczegh (1984:28)). “Thus, from the protection of the Wounded and sick – the victims of war- mankind came to the general regulation of warfare” (Herczegh, 1984:29).
The respected author here clearly establishes the link between the Geneva law and Hague law according to him ” the Geneva conference of 1864 and the Hague conference of 1899 therefore resulted in establishing two interrelated sets of international rules applicable in war” (Herczegh, 1984:29).
The interrelationship of the two will now be examined. The Hague Peace Conference built the Geneva conventions into its system. Convention III of 29 July 1899 dealt with the adaptation to naval war of the principles of the Geneva Convention of 22 August 1864.
Hague Convention X of 18 October 1907 provided for the application in maritime war of the principles of the Geneva Convention of 6 July 1906.
Article 21 of the Regulations Respecting the. Laws and customs of War on Land (annexed to the Hague Convention 1907) provides another link with the Geneva law in the following terms: “The obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention.”
An important point to note about the Hague law of 1907 and the Geneva law of 1906 is that both were inadequate and did not cover many situations which manifested during the first world war (Drapper, 1988:76). There were gaps in their contents. The rules relating to the sick and wounded and those for proper treatment of prisoners of War were not adequate. The use of Poison Gas by Germany in that war against the condemnation
contained in the Hague Regulations of 1907 accelerated the process of revision of the conventions. The belligerents tried to bridge the gap as evident in the Berne Agreements of 1917 and 1918 (Drapper, 1988:76). The Geneva Convention of 1929 came into existence in response to the inadequacies in both Systems and Laws.
After 1907 little attempt was made to revise the law of war governing hostilities. Further development of the Hague rules and principles were rather done at Geneva. Thus, the use of poison gas in World War 1 led to the conclusion, in 1925, of the Geneva Gas Protocol (League of Nations Treaty series, Vol. x civ pp 65-74) which reinforced the earlier prohibition in the Hague Declaration Respecting Asphyxiating Gases of 1899. The protocol consolidated the prohibition and extended same to bacteriological warfare.
As stated above, the Hague conference built the Geneva conventions into its own system and vice versa. By 1949 the relationship between the two was consolidated by Articles 58, 135 and 154 of the Geneva Conventions II, III and IV respectively (by incorporating the Hague Laws into mainstream Geneva laws. This exercise was completed in 1977). On the relation of the Geneva Convention II of 12 August 1949 to the 1907 convention of the Hague, Article 58 (of 1949 Convention II) provides as follows:
The present convention replaces the Xth Haque Convention of October 18, 1907, for the adaptation to maritime warfare of the principles of the Geneva Convention of 1906, in relations between the High contracting parties.
Still in relation to the Haque conventions, Article 135 of the Geneva Convention 1949 (Convention III) provides thus:
In the relations between the powers which are bound by the Hague Convention respecting the laws and customs of War on Land, whether that of July 29 1899, or that of October 18, 1907 and which are parties to the present convention, this last convention shall be complementary to chapter Il of the Regulations annexed to the above mentioned Conventions of the Hague.
Article 154 of the Geneva Convention 1949 (Convention IV) has also addressed the relation between the two systems.
It states that:
In the relations between the powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of July 29, 1899 or that of October 18, 1907, and who are parties to the present convention, this last Convention shall be supplementary to sections I/ and Ill of the Regulations annexed to the above mentioned Conventions of the Hague.
The contents of Articles 135 and 154 show that the said provisions of the Geneva Conventions supplement those of the Haque in relations between parties to the conventions.
The Convergence
Convergence here means the coming towards each other and meeting at a point of the two systems. This took place in 1977 though the journey began much earlier. The two Additional protocols of 1977 were adopted. They built upon and developed the earlier conventions (Shaw, 1999:808). The Hague law and the Geneva law “are to some extent merged” (Shaw, 1999:808). In its Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons the International Court of Justice noted that “the provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law (ICJ Reports, 1996 Para. 75; 36 ILM, 1996, pp. 809, 827).
OBSERVATION
There is no doubt that at the outset the divergence was visible – both systems developed separately at different times in response to different circumstances. To that extent we talk of their divergence. But later the overlapping and interpenetration began to occur making it difficult to separate one system from the other. To this extent the convergence had begun, thereby making any division between the two only theoretical. Both systems “have gradually been made to converge with one another” (Ibanga, 1995:104) which until then had developed separately (Gasser, 1993:14).
In response to the question as to whether the division of the law of armed conflicts into the Geneva and The Hague law was at all feasible, Professor S. E. Nahlik said the division has become anachronistic. And “that in the contemporary law of armed conflicts, there is no longer any barrier separating the so-called ‘Law of the Haque’ from the so-called ‘Law of Geneva.’ Both are parts of one legal system…” (Herczegh1984:70). The ICJ in an Advisory Opinion also took this position when it described the two systems as “one single complex system, known today as international humanitarian law” (Legality of the Threat of Use of Nuclear Weapons).
CONCLUSION
So far, a methodical account has been presented on the development of the Geneva and Hague Laws. All said, one is still tempted to ask whether the so-called divergence ever existed considering the fact that the first Haque law incorporated the Geneva law into its system. And if the Geneva Law has always been part of the Hague law and vice versa, then why the convergence? The concept of the division and Unity of the two therefore appears to be an academic exercise.
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