International Humanitarian Law and Refugee Law Notes | LL.M. Semester 3 | Mumbai University | munotes

Read the paper against the five labels and the weighting is unmistakable. Module I supplies parts of four of the seven questions. Module IV supplies parts of three. Modules II and III supply one each. A candidate who prepares the four modules equally has prepared badly.

How this book is arranged

Four modules, one hundred and thirty chapters, in the order MU prints.

Module I is the largest, at sixty-one chapters, because the printed label "Humanization of Welfare" covers the whole of the four Geneva Conventions of 1949, the two Additional Protocols of 1977 and the Hague Convention on cultural property of 1954. Her own paper draws prisoners of war, the shipwrecked, cultural property and civilians out of it.

Module II is seventeen chapters on the control of weapons: the two tests every weapon must pass, and then the biological, chemical, nuclear, conventional and landmine treaties in turn.

Module III is twenty chapters on implementation, which is the half of humanitarian law that does not work well, and the honest answer says so.

Module IV is thirty-two chapters, because it carries two printed topics: the concept of refugees, and the strategies against the problem.

What this paper is not

It is not the law on when a State may go to war. That is the law on the use of force, the rules in article 2(4) and article 51 of the Charter, and it belongs to public international law. Humanitarian law begins after that question has been answered and applies identically to the aggressor and the victim. [What International Humanitarian Law Is] states the distinction properly.

It is not general human rights law. The two overlap and neither replaces the other, and [Humanitarian Law and Human Rights Law] gives the rule that decides which one governs a particular question.

And it is not immigration law. A refugee is a legal category with a definition, and much of Module IV consists of holding that category apart from the migrant, the displaced person and the stateless person who resemble it.

The instruments this book rests on

Seventeen, and every one of them was read in full from the publishing body's own text, not from a summary. The four Geneva Conventions of 1949 and the two Protocols of 1977 come from the United Nations Treaty Series. The refugee instruments, the weapons treaties and the Hague Convention on cultural property come from the same source. Two Indian statutes are included: the Geneva Conventions Act 1960, and the Immigration and Foreigners Act 2025.

The 2025 Act matters more than its date suggests. It repealed the Foreigners Act 1946, which is the statute every older textbook names as the law governing refugees in India, and it came into force on 1 September 2025. [The Immigration and Foreigners Act 2025] sets out what changed.

Worked example

A question asks you to introduce international humanitarian law and refugee law and explain why a single paper covers both.

Start with what each body of law does. Humanitarian law limits the conduct of an armed conflict and protects those who are not fighting or can no longer fight. Refugee law protects a person who has crossed a border because protection at home has failed.

Then give the link, which is factual before it is legal. Armed conflict is the largest single producer of refugees, so the two bodies of law are usually operating on the same population at different stages of the same disaster.

Then give the second link, which is institutional. Both are administered largely by bodies outside the State: the International Committee of the Red Cross in one, the United Nations High Commissioner for Refugees in the other, and both depend on the consent of the State whose conduct they exist to check.

Then give the third link, which is the honest one. Both are bodies of law with excellent texts and poor compliance, and both put the question of implementation at the centre. That is why MU gives implementation a module of its own.

What it does NOT mean

It does not mean the two halves are equally weighted in the syllabus. They are one credit each on paper, but Module IV carries two printed topics while Modules I to III carry one each.

It does not mean the Geneva Conventions are the whole of Module I. The Hague Convention on cultural property of 1954 and the two Protocols of 1977 are inside it, and her question 7(b) is on cultural property.

And it does not mean this paper is about the justice of any particular war. Humanitarian law is deliberately indifferent to that question, and an answer that takes sides on it has answered a different paper.

Quick revision

• The circular: UG/165 of 2016-17, page 22, Group 4, Semester 3, Paper V, four credits, five printed labels, no reading list.
• The five labels: Humanization of Welfare; Control of weapons; Humanitarian law : Implementation; The Concept of refugees; Strategies to combat refugee problem.
• Welfare is what she prints, twice, in the circular and in her own paper. The field says warfare.
• The paper: three hours, one hundred marks, seven questions, attempt any four, illustrations or case law required.
• Weighting: Module I in four questions, Module IV in three, Modules II and III in one each.
• Not this paper: the law on going to war, general human rights law, immigration law.

Test yourself

1. What does the syllabus actually print, and what does the examination paper add to it? The circular prints five topic labels and nothing else: Humanization of Welfare, Control of weapons, Humanitarian law : Implementation, The Concept of refugees, and Strategies to combat refugee problem, one credit to each module with Module IV carrying two of the five topics. There is no reading list, no case list, no list of articles and no indication of depth. What the examination paper of 6 April 2026 adds is scope. Question 1 asks for the principles of humanitarian law together with the facilities provided for prisoners of war under the Geneva Convention, which tells you that Module I reaches into the detail of the Third Convention and not merely its principles. Question 2 asks about the shipwrecked at sea, which tells you the Second Convention is examinable in its own right. Question 3 pairs biological with nuclear weapons and asks about controlling proliferation. Question 4 pairs the ICRC with national implementing legislation. Questions 5, 6 and 7(c) show that Module IV expects the definition, the historical machinery including the Relief and Rehabilitation Administration, the durable solutions and the position of India. The paper is the only reliable guide to depth that MU provides.

2. Why does one paper carry both humanitarian law and refugee law? Three reasons, and an answer should give all three. Factually, armed conflict is the largest single cause of forced displacement, so the two bodies of law usually apply to the same people at successive stages of one disaster: humanitarian law while they are inside the conflict, refugee law once they have crossed a frontier. Institutionally, both are administered in practice by a non-State body operating on the sufferance of governments, the International Committee of the Red Cross in the one case and the United Nations High Commissioner for Refugees in the other, and in both cases the mandate to supervise carries no power to compel. Conceptually, both bodies of law respond to the same failure. Humanitarian law applies because the ordinary legal order has broken down into armed violence; refugee law applies because the ordinary relationship between a State and its national has broken down into persecution. Each is a law of last resort, which is why each puts implementation rather than doctrine at the centre of its own difficulties.

3. Why is Module I the largest part of this book, and is that justified by the syllabus? Because the printed label covers far more ground than its four words suggest, and because the examiner treats it that way. Humanization of Welfare, read as the field reads it, is the whole project of restraining the conduct of hostilities and protecting the victims of them, which in treaty terms means the four Geneva Conventions of 1949, running to sixty-four, sixty-three, one hundred and forty-three and one hundred and fifty-nine articles respectively, the two Additional Protocols of 1977, and the Hague Convention for the Protection of Cultural Property of 1954. That is more law than the other four printed topics put together. The examiner confirms the reading: of the seven questions she set, question 1 on prisoners of war, question 2 on the shipwrecked, question 7(a) again on prisoners of war, question 7(b) on cultural property and question 7(d) on the protection of civilians all come from this module. Five of the available question parts against one each for weapons and implementation. Sixty-one chapters out of one hundred and thirty is proportionate to that.

Two: it limits the means and methods of fighting

Some weapons may not be used at all, and some ways of fighting are prohibited whatever the weapon. Article 35 of Additional Protocol I states the basic rule: in any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.

That sentence is the doorway to Module II, and [Why the Control of Weapons Is Part of This Law] walks through it.

Three: it protects objects

Medical units, hospital ships, cultural property, works containing dangerous forces, and objects indispensable to the survival of the civilian population. A dam, a nuclear power station and a church are each the subject of a specific article.

Where the law comes from

Treaty and custom, and both matter.

The treaty core is the four Geneva Conventions of 12 August 1949 and the two Additional Protocols of 8 June 1977, together with the Hague Regulations of 1899 and 1907 and the specialised weapons conventions in Module II.

The Geneva Conventions are among the most widely ratified treaties in existence, accepted by every State in the world. That universality is legally significant: it means the Conventions bind everyone by treaty and not merely by custom.

The customary core is larger than it looks. Much of Additional Protocol I is accepted as customary law even by States that have not ratified it, which matters because several major military powers are not parties. A rule that binds as custom binds whether or not the State signed anything.

And the Martens clause fills the gap, which is what [The Martens Clause] is about.

Who is bound

States, obviously. But also armed forces as such, individual combatants, and in a non-international conflict, the non-State party as well. Common article 3 binds each Party to the conflict, and the ICRC's commentary and State practice both read that as reaching an insurgent group that never signed anything.

And individuals are criminally liable. A grave breach of the Conventions is a crime for which the individual who committed it may be tried anywhere, which [Grave Breaches, and the Obligation to Prosecute] develops.

The name, and the other names

Three names for the same subject, and a candidate should use them interchangeably without hesitation.

• International humanitarian law, the name the ICRC and the United Nations use, and the name in MU's title.
• The law of armed conflict, the name armed forces use in their manuals.
• The laws of war, the older name, still used in the historical literature.

They are the same body of law. The shift from "laws of war" to "humanitarian law" happened in the twentieth century and carried a change of emphasis toward the protection of victims rather than the regulation of belligerents.

Worked example

A question asks you to explain the principles of humanitarian law during warfare. This is her question 1, and the first half of it.

Open with the distinction. Humanitarian law governs conduct in war and is indifferent to the justice of the war, so it binds aggressor and defender alike. State the equality of belligerents and say why the law would be unusable without it.

Then give the principles by name, and there are five worth naming: distinction, proportionality, precautions, military necessity and humanity. Give each a sentence with its treaty anchor, which the next several chapters supply.

Then add the Martens clause, because it is what governs when no rule covers the case, and a candidate who names it is showing that the list of five is not exhaustive.

Then turn to the second half of her question, which is the facilities provided for prisoners of war, and give the Third Convention in the detail [The General Protection of Prisoners of War] and the chapters after it supply.

What it does NOT mean

It does not mean war is lawful. The Charter prohibits the threat or use of force, and humanitarian law says nothing to the contrary. It regulates a situation the law elsewhere condemns, because the alternative is to leave that situation unregulated.

It does not mean both sides are equally in the right. Equality of belligerents is a rule about the application of protective law, not a moral judgment. The aggressor remains an aggressor for every other purpose, including State responsibility and the crime of aggression.

And it does not mean humanitarian law only binds parties to the treaties. Much of it binds as custom, common article 3 binds non-State parties that could not sign, and the Conventions themselves are universally ratified.

Quick revision

• jus ad bellum is whether force may be used, in the Charter. jus in bello is what may be done in the fighting, and is this paper.
• Equality of belligerents: the law applies identically regardless of the cause, and Protocol I's preamble says without any adverse distinction based on the nature or origin of the armed conflict.
• Three functions: protect persons out of the fight, limit means and methods, protect objects.
• hors de combat is the organising idea for protected persons.
• Article 35(1) of Protocol I: the right to choose methods or means is not unlimited.
• Sources: the four Conventions of 1949, the two Protocols of 1977, the Hague Regulations, the weapons treaties, and custom.
• Three names: international humanitarian law, the law of armed conflict, the laws of war.

Test yourself

1. Why does humanitarian law refuse to ask which side was right? Because a law of protection that depended on the justice of the cause would protect nobody. Every party to every armed conflict believes, or at least asserts, that its own resort to force was lawful and the other's was not. If the entitlement of a wounded soldier to be collected and cared for, or of a captured soldier to be treated as a prisoner of war, turned on whether that soldier's State was the aggressor, then each side would deny protection to the other's men on the strength of its own view of the war, and the law would supply nothing at all. So the two questions are held apart. Whether force may be resorted to is governed by the Charter and is a matter of State responsibility and, since the Rome Statute, of individual criminal responsibility for aggression. What may be done once fighting has begun is governed by this paper's law and applies identically to both sides. The preamble to Additional Protocol I states the point expressly, requiring full application to all protected persons without adverse distinction based on the nature or origin of the conflict or on the causes espoused by the parties. The principle is called the equality of belligerents, and it is what makes the law something an army can be trained in and held to.

2. What are the three things humanitarian law does? It protects persons who are outside the fighting or have been put outside it, it limits the means and methods by which fighting may be conducted, and it protects certain objects. The first is the subject of the four Conventions of 1949, taken in the order wounded and sick on land, wounded, sick and shipwrecked at sea, prisoners of war, and civilians, and the organising concept is that a person who is hors de combat, whether by wounds, sickness, capture or surrender, ceases to be a lawful target and becomes a protected person. The second is stated in article 35(1) of Additional Protocol I, that the right of parties to choose methods or means of warfare is not unlimited, and it is worked out in the prohibitions on weapons causing superfluous injury or unnecessary suffering, on indiscriminate weapons, and on perfidy and other prohibited methods. The third protects objects rather than persons: medical units and transports, hospital ships, cultural property, works and installations containing dangerous forces such as dams and nuclear generating stations, objects indispensable to the survival of the civilian population, and the natural environment.

3. Does humanitarian law bind a State that has not ratified the Protocols, or an armed group that could not ratify anything? Yes to both, on different grounds. A State that has not ratified Additional Protocol I is still bound by the four Conventions of 1949, which are universally ratified, and is bound by so much of the Protocol as has passed into customary international law, which on the assessments of the ICRC and of most States includes the rule of distinction, the prohibition of indiscriminate attacks, the rule of proportionality and the obligation to take precautions in attack. Custom binds regardless of consent to any text. An armed group that is not a State and cannot become a party to a treaty is nevertheless bound by common article 3, which by its own words obliges each Party to the conflict, and by the customary law of non-international armed conflict, and where Additional Protocol II applies it binds dissident armed forces directly. The final paragraph of common article 3 adds that applying its provisions does not affect the legal status of the parties, which is the clause that allows a government to comply without being taken to have recognised the insurgents as anything.

Where each is stronger

The row about derogation is the one candidates most often miss. Humanitarian law contains no derogation clause and needs none, because it is already the regime designed for the worst emergency there is. Human rights law can be suspended in part; humanitarian law cannot be suspended at all.

The non-derogable core, and where they meet

Article 4(2) of the Covenant on Civil and Political Rights lists the rights from which no derogation is ever permitted, including the right to life, the prohibition of torture, the prohibition of slavery, and the principle of legality in criminal law.

Set that list beside common article 3 of the Geneva Conventions and the resemblance is exact: violence to life and person, cruel treatment and torture, outrages upon personal dignity, and sentences passed without a regularly constituted court affording the judicial guarantees recognised as indispensable.

Two instruments, drafted separately, arriving at the same irreducible minimum. That convergence is the strongest single argument that the two bodies of law share a foundation, and [Common Article 3: the Convention in Miniature] develops it.

Article 75 and the meeting point

Article 75 of Additional Protocol I is the clearest place the two systems merge. It sets out fundamental guarantees for any person in the power of a party to the conflict who does not benefit from more favourable treatment, and its list of judicial guarantees reads like a human rights instrument: presumption of innocence, no punishment except on individual criminal responsibility, no retroactivity, the right to be informed of the charge, the right to be tried in one's presence.

[Article 75, and the Fundamental Guarantees] takes it in detail. For the present purpose the point is that a Protocol on the conduct of war contains a fair trial article, which by itself disposes of the notion that the two fields are separate.

Worked example

A question asks whether human rights law continues to operate during an armed conflict, and how a conflict between the two bodies of law is resolved.

Answer the first part firmly: yes. Give the derogation clauses as textual evidence that the drafters expected it, give the practice of the treaty bodies, and give the two advisory opinions.

Give Nuclear Weapons accurately. The Court did not say the Covenant stops. It said the right not to be arbitrarily deprived of life continues, and that what is arbitrary is determined by the applicable law of armed conflict.

Give Wall for the three categories: rights exclusively humanitarian, rights exclusively human rights, and rights that are matters of both.

Then explain lex specialis correctly. It does not mean humanitarian law wins. It means the more specialised rule governs the specific point on which it is more specialised, so human rights law can and does prevail on questions such as detention review and fair trial where it is the more developed regime.

Close with the practical value. The relationship matters because human rights law supplies what humanitarian law lacks: individual complaint machinery, permanent monitoring bodies, and a court a victim can actually reach.

What it does NOT mean

It does not mean human rights law is suspended by war. Only derogable rights can be suspended, only in a declared emergency, only to the extent strictly required, and never the article 4(2) core.

It does not mean lex specialis always favours humanitarian law. It is a rule about specificity, not a hierarchy. On the conditions of detention or the fairness of a trial, the human rights rule is frequently the more specialised and the more demanding.

And it does not mean the two are merging into one subject. They have different scopes of application, different addressees, different enforcement, and one of them contains no derogation clause at all.

Quick revision

• Old view: human rights for peace, humanitarian law for war. Wrong, and the derogation clauses prove it.
• Nuclear Weapons 1996: the Covenant does not cease in war; whether a deprivation of life is arbitrary is decided by the lex specialis, the law of armed conflict.
• Wall 2004: three categories, rights that are exclusively one, exclusively the other, or matters of both these branches.
• lex specialis means the more specialised rule governs the point, not that humanitarian law always wins.
• No derogation clause exists in humanitarian law, because it is already the emergency regime.
• Article 4(2) of the Covenant and common article 3 converge on the same irreducible core.
• Article 75 of Protocol I is a fair trial article inside a law of war treaty.

Test yourself

1. State precisely what the International Court of Justice decided in the Nuclear Weapons advisory opinion about the relationship between the two bodies of law. The Court held that the protection of the Covenant on Civil and Political Rights does not cease in time of war, save through the operation of article 4 which permits derogation in a time of public emergency and which itself makes the right to life non-derogable. It followed that the right not to be arbitrarily deprived of life applies in hostilities. But the Court then held that the test of what amounts to an arbitrary deprivation of life falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities. The structure of the holding matters and is often misstated. The human rights norm is not displaced; it continues to bind and continues to be the operative prohibition. What the specialised law supplies is the content of the word arbitrary in that context. So a combatant killed in a lawful attack on a military objective has not been arbitrarily deprived of life, because the law of armed conflict permits that attack, whereas the same killing outside armed conflict would be an arbitrary deprivation and a violation.

2. What did the Wall opinion add, and why is the third of its categories the important one? The Wall opinion of 2004 restated the relationship in more general terms and set out three categories. Some rights may be exclusively matters of international humanitarian law, some exclusively matters of human rights law, and others may be matters of both branches of international law. The first two categories are easy. The rules on the conduct of hostilities, on the status of prisoners of war and on the identification of military objectives have no human rights analogue and are exclusively humanitarian. The right to vote, the right to form a trade union and the right of individual petition have no humanitarian law analogue. The third category is where all the litigation lies, because it is where both regimes speak and can speak differently: the deprivation of liberty, the fairness of criminal proceedings, the treatment of detainees, freedom of movement in occupied territory, and the right to life itself. For that category the Court directed that regard must be had to both branches, resolving genuine conflicts by lex specialis, and that is the method a candidate should apply rather than announcing that one regime simply displaces the other.

3. Give three practical consequences of holding that human rights law continues to apply in armed conflict. First, machinery. Humanitarian law has no individual complaint procedure at all, no permanent treaty body receiving reports, and no court a victim may petition. If human rights law continues to apply, a victim of conduct in armed conflict can in principle reach the Human Rights Committee, a regional court, or a domestic court applying incorporated human rights standards. Second, standards in detention. Humanitarian law regulates internment and the treatment of prisoners of war in great detail but is less developed on periodic review of the lawfulness of detention of persons who are not prisoners of war, and the human rights requirement of a remedy by which the lawfulness of detention can be tested fills that gap. Third, accountability of the State beyond the conflict. Human rights law imposes procedural obligations to investigate deaths and to provide an effective remedy, and those obligations continue after hostilities end, which is one of the very few routes by which a violation of humanitarian law is examined by an independent body at all. Against those gains a candidate should note the limit: derogation remains available for derogable rights in a genuine emergency, and the extraterritorial reach of human rights treaties is contested in ways the Geneva Conventions are not.

Read those two articles together and the change is complete. The protected person holds rights that neither their own State nor the enemy State may bargain away, and that they themselves cannot waive. That is a rights-holder, not the object of an inter-State arrangement.

Article 5 belongs with them. The Convention applies to protected persons who have fallen into enemy hands until their final repatriation, so protection does not lapse when convenient.

Four: from war between States to armed conflict of any kind

Common article 3 in 1949, and Additional Protocol II in 1977. The law reached inside the State, which is where most armed conflict now happens.

The counter-current, stated honestly

Every question about the humanization of welfare invites a one-sided answer, and a one-sided answer is weaker. Three qualifications belong in any account.

The century of the greatest legal development was the century of the greatest slaughter. The Conventions of 1949 were drafted immediately after a war in which the deliberate killing of civilians reached an industrial scale, and the codification followed the atrocity rather than preventing it.

The law grew fastest where it cost the drafting States least. Prisoners of war, whose treatment is reciprocal and where every State expects to have men in enemy hands, received a Convention of one hundred and forty-three articles in 1949. Non-international conflict, where a government faces its own citizens and reciprocity does not operate, received one article.

And restraint and capacity grew together. The same period produced aerial bombardment, the submarine, and the nuclear weapon, so the increase in legal protection has to be measured against an increase in destructive capacity that outran it.

Maritime conflict, because she asks about it

Her question 2 attaches the phrase to war at sea specifically. The maritime line runs from the adaptation of the Geneva principles to naval war in 1899 and 1907, through the 1907 Hague Convention X, to the Second Convention of 1949, and the substantive movement is the inclusion of the shipwrecked alongside the wounded and sick, on terms that do not ask how the shipwreck occurred.

[The Humanization of Welfare in Maritime Conflict] answers her question directly, and [The Shipwrecked, and What Shipwreck Means] supplies the definition it turns on.

Worked example

Her question 2, second half: the humanization of welfare during maritime conflicts.

Say at the outset that the University's heading is Welfare and the field's term is warfare, in one sentence, and then use hers.

Give the four movements as the frame: custom to treaty, soldiers to everyone, State interests to individual rights, and international to all armed conflict.

Then run the maritime line specifically: Hague Convention III of 1899 adapting Geneva to sea warfare, Hague Convention X of 1907, the Second Convention of 1949, and the addition of the shipwrecked as a protected category defined by condition rather than cause.

Give the two articles that show the rights turn, articles 6 and 7 of the Conventions, non-derogation by agreement and non-renunciation by the protected person.

Then give the qualifications. Naval warfare's own restraint has not kept pace; the law of blockade and of naval targeting is largely still in the Hague stream and is thinner than the Geneva stream; and the Second Convention protects the shipwrecked without regulating the weapons that produce them.

What it does NOT mean

It does not mean the process is complete. Non-international conflict is still less regulated than international conflict, and the gap is deliberate rather than accidental.

It does not mean the law caused the improvement. Where treatment improved, reciprocity, discipline and self-interest did much of the work, and a candidate who claims the treaty alone did it is overstating the record.

And it does not mean humanization is the same as prohibition. Making war less cruel is not making it less likely, and the Charter, not this paper, addresses the second.

Quick revision

• MU prints Welfare, twice: circular page 22, and question 2 of the paper of 06/04/2026. The field prints warfare.
• Four movements: custom to treaty in 1864; soldiers to everyone, completed by the Fourth Convention in 1949; State bargain to individual right, articles 6 and 7; international to all armed conflict, common article 3 and Protocol II.
• Article 5: protection runs until their final repatriation.
• Three qualifications: codification followed the atrocity; the law grew where reciprocity operated and stalled where it did not; destructive capacity outran restraint.
• Maritime line: Hague 1899 and 1907, Second Convention 1949, the shipwrecked added as a category defined by condition.

Test yourself

1. What exactly does the University print, and how should a candidate handle it? The University prints Humanization of Welfare as the label of Module I on page 22 of Circular UG/165 of 2016-17, and she prints the same phrase again in her own examination paper of 6 April 2026, where question 2 asks about the legal evolution of the protection of the shipwrecked at sea and the humanization of welfare during maritime conflicts. Two independent printings by the examining body settle the question of what the syllabus says. The standard term in the literature, in the ICRC's publications and in every textbook is the humanisation of warfare, meaning the historical process by which the conduct of armed conflict was brought under legal restraint in the interest of its victims. A candidate should write the University's phrase because it is the University's phrase, may note in one clause that the field says warfare, and should on no account treat either as a mistake to be corrected. The substance examined is identical under both spellings, and the safest opening sentence uses her words and then defines the process.

2. Trace the four movements that make up the process. First, from custom to treaty. Restraint in war existed as chivalric, religious and customary practice for centuries and bound nobody in law until the Geneva Convention of 1864, ten articles long, became the first multilateral treaty whose subject was the victims of war. Second, from soldiers to everyone. The 1864 Convention covered only the wounded and sick of armies in the field; the sea was added at The Hague in 1899 and 1907, prisoners of war received their own Convention in 1929, and civilians had to wait until the Fourth Convention of 1949, drafted after a war in which most of the dead were civilians. Third, from the interests of States to the rights of individuals. Articles 6 and 7 of the 1949 Conventions provide that no special agreement may adversely affect the position of protected persons and that protected persons may in no circumstances renounce the rights secured to them, and article 5 makes the protection run until final repatriation. Fourth, from war between States to armed conflict of any kind, by common article 3 in 1949 and Additional Protocol II in 1977.

3. What qualifications should an honest answer add, and why do they strengthen rather than weaken it? Three. The century in which the law developed fastest was the century of the largest scale killing, and the Conventions of 1949 were a response to atrocity rather than a prevention of it, which shows that codification follows catastrophe rather than forestalling it. The law grew where the drafting States had a reciprocal interest and stalled where they did not: prisoners of war received one hundred and forty-three articles in 1949 because every State expects to have soldiers in enemy hands, while armed conflict not of an international character, where a government faces its own population and expects no reciprocity, received a single article. And the growth of restraint was accompanied by a growth of destructive capacity, in aerial bombardment, submarine warfare and nuclear weapons, that outran it. These points strengthen an answer because the question asks about a historical process, and a process assessed only by its texts has not been assessed at all. A candidate who gives the achievement and then measures it against what it did not reach is doing what the examiner's word evolution actually requires.

The Geneva stream

The protected categories and their treatment: the wounded and sick, the shipwrecked, prisoners of war, civilians in enemy hands, and the medical personnel and units that serve them.

The distinctive emblem, the protecting power machinery, and the ICRC's treaty functions.

And the structural articles: common article 1 on ensuring respect, common article 2 on scope, common article 3 on internal conflict, and the non-renunciation rule.

The merger of 1977

Additional Protocol I contains both. Part II is Geneva material on the wounded, sick and shipwrecked. Part III, headed methods and means of warfare, and Part IV, on the civilian population, are Hague material on the conduct of hostilities.

Article 35 is the Hague rule restated: in any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited, and it is prohibited to employ weapons and methods of a nature to cause superfluous injury or unnecessary suffering.

Article 48 is the Hague rule made explicit: parties shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

After 1977, the distinction is historical rather than operational. It remains useful for explaining where a rule came from, and for a State not party to Protocol I the older Hague rules still matter as custom, but no modern problem is solved by asking which stream it belongs to.

Where the merger did not reach

Naval and air warfare. Protocol I applies to attacks from sea or air against objectives on land, but expressly does not otherwise affect the rules applicable to armed conflict at sea or in the air. Article 49(3) says so.

So the law of naval warfare, including blockade and the treatment of merchant shipping, remains largely Hague-stream and largely uncodified. That gap is worth naming in an answer on maritime conflict, and [The Humanization of Welfare in Maritime Conflict] names it.

Worked example

A question asks you to distinguish the law of Geneva from the law of The Hague and to say whether the distinction still matters.

Give the two subjects first, in one sentence each. Geneva protects the victims; The Hague regulates the fighting.

Then give the origins, because they explain the difference: Solferino, Dunant, the ICRC and 1864 on one side; the peace conferences of 1899 and 1907 on the other.

Then give one representative rule from each. Article 12 of the First Convention, that the wounded and sick shall be respected and protected in all circumstances, against article 22 of the Hague Regulations, that the right to adopt means of injuring the enemy is not unlimited.

Then answer the second half honestly. The distinction largely dissolved in 1977, because Protocol I contains both streams, and articles 35 and 48 are Hague rules in a Geneva instrument. It survives for two purposes: explaining the provenance of a rule, and identifying what binds a State that has not ratified Protocol I but is bound by the Hague rules as custom.

What it does NOT mean

It does not mean the streams never touched before 1977. The 1949 Conventions contain conduct-of-hostilities material, and the Hague Regulations contain protective rules for inhabitants of occupied territory.

It does not mean instruments are assigned by the city they were signed in. The 1954 Cultural Property Convention was signed at The Hague and protects objects in a manner closer to the Geneva stream.

And it does not mean the Hague Regulations are obsolete. They bind as customary law, they were applied at Nuremberg on that basis, and they remain the foundation of the law of occupation.

Quick revision

• Geneva protects victims. The Hague regulates hostilities.
• Geneva origin: Solferino 1859, A Memory of Solferino 1862, ICRC 1863, Convention 1864.
• Hague origin: the peace conferences of 1899 and 1907 and the Regulations respecting the laws and customs of war on land.
• Hague article 22: means of injuring the enemy not unlimited. Restated as article 35(1) of Protocol I.
• Merged in 1977: Protocol I Part II is Geneva, Parts III and IV are Hague.
• Article 48 is the basic rule of distinction, a Hague rule in a Geneva instrument.
• Not merged: naval and air warfare, preserved by article 49(3).

Test yourself

1. Set out the difference between the two streams and give the founding text of each. The law of Geneva is concerned with the protection of persons who are not participating in hostilities or who have ceased to participate: the wounded and sick of armed forces in the field, the wounded, sick and shipwrecked at sea, prisoners of war, civilians in the hands of an adverse party or in occupied territory, and the medical and religious personnel who serve them. Its founding text is the Geneva Convention of 1864 for the amelioration of the condition of the wounded in armies in the field, ten articles, which followed Henry Dunant's account of the aftermath of Solferino and the founding of the International Committee in 1863, and its modern form is the four Conventions of 12 August 1949. The law of The Hague is concerned with the conduct of hostilities: what weapons may be used, what may be attacked, what methods are prohibited, and how occupied territory is to be administered. Its founding texts are the Conventions and Regulations of the peace conferences of 1899 and 1907, in particular the Regulations respecting the laws and customs of war on land, and its modern extensions are the weapons treaties studied in Module II.

2. How did the Protocols of 1977 change the relationship between the streams? They merged them in a single instrument. Additional Protocol I contains, in Part II, classical Geneva material on the wounded, sick and shipwrecked and on medical transportation, and contains in Parts III and IV classical Hague material on methods and means of warfare and on the protection of the civilian population against the effects of hostilities. Article 35 restates the Hague Regulations' article 22 in modern form, providing that the right of the parties to choose methods or means of warfare is not unlimited and prohibiting weapons of a nature to cause superfluous injury or unnecessary suffering, and adding a third paragraph on widespread, long term and severe damage to the natural environment. Article 48 states the basic rule of distinction expressly for the first time in a treaty, requiring parties at all times to distinguish between the civilian population and combatants and between civilian objects and military objectives and to direct their operations only against military objectives. After 1977 the division is historical rather than operational, though it retains value in explaining the provenance of a rule and in identifying what binds a State that is not a party to the Protocol but is bound by the Hague rules as custom.

3. Where did the merger not reach, and why does that gap matter for this paper? It did not reach naval and air warfare as such. Article 49(3) of Additional Protocol I provides that the Protocol's provisions on attacks apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land, and to attacks from the sea or from the air against objectives on land, but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air. The consequence is that the law governing naval targeting, blockade, contraband, visit and search, and the treatment of enemy and neutral merchant shipping remains largely where the Hague stream left it, supplemented by custom and by manuals of persuasive rather than binding authority. That matters for this paper because MU's question 2 asks about the humanization of welfare during maritime conflicts, and the honest answer is that the Second Convention of 1949 humanised the treatment of the victims of war at sea, extending protection to the shipwrecked and regulating hospital ships in detail, while the conduct of naval hostilities that produces those victims was left substantially uncodified.

Intensity. The violence must be protracted and of a level beyond internal disturbances, riots and isolated acts of violence. Additional Protocol II article 1(2) uses exactly that language to exclude them.

Organisation. The non-State party must be an organised armed group, with a command structure capable of sustaining operations and of implementing the law.

Both elements must be present. A very violent riot by an unorganised crowd is not an armed conflict; an organised group that has committed one isolated attack is not either.

What Protocol II adds, and where it stops

Additional Protocol II applies to a narrower class than common article 3. It requires that the dissident armed forces or organised armed groups be under responsible command and exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Territorial control is the extra requirement, and it means many conflicts governed by common article 3 are not governed by Protocol II. [Protocol II: Non-International Armed Conflict] sets out the consequence.

Classification, and why parties fight about it

Classification decides which regime applies, so it is contested in every real conflict.

In an international armed conflict, a captured member of the enemy armed forces is a prisoner of war, may not be prosecuted for the mere fact of having fought, and is protected by one hundred and forty-three articles.

In a non-international armed conflict, there is no prisoner of war status. A captured insurgent may be prosecuted under ordinary domestic criminal law for taking up arms, and the protection is common article 3 plus, where applicable, Protocol II.

That difference is why governments deny that a conflict is international, and why they often deny it is an armed conflict at all.

Mixed and internationalised conflicts

A conflict can be both, or can change character. Where a foreign State intervenes on the side of an insurgent group and exercises control over it, the conflict between that group and the territorial government may be internationalised. The test applied by the international tribunals is one of overall control by the foreign State over the group.

And a single situation can contain two conflicts at once, one international between two States and one non-international between a government and a group, governed by different rules in the same territory on the same day.

Ending

Article 5 of the First Convention provides that for protected persons who have fallen into the hands of the enemy, the Convention applies until their final repatriation. Application does not end when hostilities do.

For occupation, the Fourth Convention runs for the duration of the occupation, with certain provisions continuing for a year after the general close of military operations and others for as long as the occupant exercises the functions of government.

Worked example

A question asks when international humanitarian law becomes applicable, and whether a State can avoid it by refusing to call a situation a war.

Answer the second half first, because it is the sharper point. No. Common article 2 applies to any armed conflict even if the state of war is not recognized by one of them, so the label a government chooses is legally irrelevant.

Then give the two triggers. Article 2 for conflict between States and for occupation, with no intensity threshold and no need for a declaration. Article 3 for conflict not of an international character, with a threshold of intensity and organisation.

Then explain why classification is fought over, using prisoner of war status as the illustration.

Then add Protocol II's higher threshold, territorial control sufficient to carry out sustained and concerted operations, and note that many common article 3 conflicts fall outside it.

Close with duration, article 5 and final repatriation, and the occupation rules.

What it does NOT mean

It does not mean any use of force between States is an armed conflict. A single frontier incident may be too trivial to engage the Conventions, though the prevailing view sets the threshold very low indeed.

It does not mean the government must recognise the insurgents. The last paragraph of common article 3 provides that the application of its provisions shall not affect the legal status of the Parties to the conflict.

And it does not mean humanitarian law and domestic law are alternatives. Domestic criminal law continues to apply throughout a non-international conflict, which is precisely why insurgents can be prosecuted for fighting.

Quick revision

• Common article 2: applies to declared war or any other armed conflict between parties, even if the state of war is not recognized by one of them; and to partial or total occupation even where it meets with no armed resistance.
• Application is factual, not declaratory. No intensity threshold for international conflict.
• Common article 3: armed conflict not of an international character, requiring intensity and organisation.
• Protocol II adds territorial control sufficient for sustained and concerted military operations.
• No prisoner of war status in non-international conflict; that is why classification is contested.
• Overall control by a foreign State can internationalise a conflict.
• Article 5: protection lasts until their final repatriation.
• Article 3's last paragraph: application shall not affect the legal status of the Parties.

Test yourself

1. Can a State escape the Geneva Conventions by declining to call the situation a war? No, and common article 2 was drafted to make that impossible. It provides that the Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. Three consequences follow. A declaration of war is unnecessary, so a State that never declares is bound from the moment armed force is used. The denial of one party is irrelevant, so a government that describes its operations as a police action, a counter terrorism operation or a special military operation is bound exactly as if it had used the word war. And the trigger is a question of fact rather than of characterisation, so it is determined by what is happening on the ground rather than by what either government says about it. The second paragraph closes the remaining gap by applying the Convention to partial or total occupation of the territory of a party even where the occupation meets with no armed resistance, so a State cannot escape the Fourth Convention by pointing out that nobody fought back.

2. What distinguishes an armed conflict not of an international character from internal disturbances, and why is a threshold needed there but not for international conflict? Two cumulative elements, drawn from the practice of the international criminal tribunals and reflected in the language of Additional Protocol II. The violence must reach a level of intensity beyond internal disturbances and tensions such as riots, isolated and sporadic acts of violence and other acts of a similar nature; and the non-State party must be an organised armed group with a command structure sufficient to conduct sustained operations and to implement the obligations the law imposes. Both are required, so an intense but unorganised riot is not an armed conflict and a well organised group that has done one isolated thing is not either. A threshold is necessary here and not for international conflict because of what lies on the other side of the line. Between States, any resort to armed force is already an extraordinary event and there is no risk of ordinary law enforcement being reclassified. Inside a State, the whole range of ordinary policing, public disorder and criminal violence lies immediately below the line, and without a threshold every riot would trigger the law of armed conflict and displace the ordinary legal order, which is exactly what governments feared when they resisted common article 3.

3. Why does classification of a conflict matter so much in practice? Because the two regimes are drastically unequal, and the difference falls on the individual fighter. In an international armed conflict a captured member of the enemy armed forces is a prisoner of war, entitled to the protection of one hundred and forty-three articles of the Third Convention, entitled to be released and repatriated without delay after the cessation of active hostilities, and crucially not liable to be prosecuted merely for having taken part in the fighting, because lawful combatants enjoy combatant immunity for lawful acts of war. In a non-international armed conflict there is no combatant status and no prisoner of war status at all. A captured insurgent enjoys the guarantees of common article 3, and where applicable of Additional Protocol II and of customary law, but remains liable to be tried under ordinary domestic criminal law for murder, treason or rebellion on account of the very acts that a combatant in an international conflict may commit with impunity. Governments therefore resist any classification that would confer status on their opponents, and the last paragraph of common article 3 exists to reassure them, providing that the application of its provisions shall not affect the legal status of the parties to the conflict.

So the enemy's violation is never a defence. A State whose prisoners are being mistreated may not mistreat the prisoners it holds. The words in all circumstances put that beyond argument, and article 60(5) of the Vienna Convention confirms it from outside.

Reprisals, and how far the non-reciprocity goes

Belligerent reprisals are the classical exception to non-reciprocity, and modern law has almost closed it.

Each Convention prohibits reprisals against the persons it protects. Reprisals against the wounded and sick, against the shipwrecked, against prisoners of war, and against protected civilians are all expressly forbidden.

Additional Protocol I extends the prohibition to objects: against civilians and the civilian population, against civilian objects, against cultural objects and places of worship, against objects indispensable to survival, against the natural environment, and against works containing dangerous forces.

What remains is a narrow and contested residue, essentially reprisals against combatants and military objectives, subject to conditions of last resort, proportionality, prior warning and termination once compliance resumes.

Why the article matters institutionally

Humanitarian law has almost no enforcement machinery, which [What Implementation Means, and Why It Is the Hard Half] examines. Common article 1 is one of the few provisions that creates a legal interest in compliance beyond the parties to the particular conflict.

Obligations under the Conventions are owed erga omnes, meaning to all States, so every State party has a legal interest in their observance, and that interest is what the second limb of article 1 converts into a duty to act.

Worked example

A question asks what common article 1 requires, and whether a State may suspend the Conventions because the enemy is violating them.

Give the text first, quoted. Then break it into the three limbs and label each.

On the second question, answer no, and give three grounds, not one. The words in all circumstances on their face. Article 60(5) of the Vienna Convention, which excludes humanitarian provisions from the general rule permitting suspension for material breach. And the express prohibitions of reprisals against protected persons in each of the four Conventions and in Protocol I.

Then set out the external limb, with the Wall opinion, and say precisely what it permits: diplomatic and economic measures and a duty not to aid or assist, not force.

Close with the reason. A body of law whose protections could be withdrawn in response to the enemy's conduct would protect nobody, because in every real conflict each side alleges violations by the other.

What it does NOT mean

It does not mean a State may use force to make another comply. The Charter governs that question and article 1 does not touch it.

It does not mean every State must intervene in every conflict. The duty is to do what is within the State's power and lawful means, which varies with its influence and its relationship to the parties.

And it does not mean reprisals have disappeared entirely. They are prohibited against every protected person and against a long list of objects, and what survives is narrow, conditional and disputed.

Quick revision

• Text: The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances, article 1 of all four Conventions and article 1(1) of Protocol I.
• To respect: comply, and train and discipline so that compliance happens.
• To ensure respect: internally, by all under the State's authority; externally, by using influence on other parties. Endorsed in the Wall opinion.
• In all circumstances: the obligation is not reciprocal.
• Vienna Convention article 60(5) excludes humanitarian provisions from suspension for material breach.
• Reprisals prohibited against all protected persons, and by Protocol I against civilians, civilian objects, cultural objects, objects indispensable to survival, the environment and works containing dangerous forces.
• Obligations erga omnes: every State party has a legal interest.

Test yourself

1. Break common article 1 into its component obligations and explain what each adds. The article provides that the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances, and it contains three distinct obligations. To respect is the duty of the State to comply itself, through its armed forces, its officials and everyone whose conduct is attributable to it, and it is a positive as well as a negative duty because compliance requires instruction, training and discipline rather than mere abstention. To ensure respect has two readings, both now accepted. Internally it requires the State to ensure compliance by everyone under its authority, including irregular forces, militias and contractors. Externally it requires every State party to use the means lawfully available to it to induce other parties to comply, an obligation the International Court endorsed in the Wall advisory opinion, and which is discharged by diplomatic protest, refusal of assistance, conditionality on arms transfers and support for accountability, not by force, which remains governed by the Charter. In all circumstances removes reciprocity: the obligation does not depend on the conduct of the adversary and is not suspended by the adversary's breach.

2. May a State suspend its obligations under the Conventions because the enemy has committed grave violations? No, and there are three independent grounds. The first is the text: the undertaking is to respect and ensure respect in all circumstances, which admits of no exception for the adversary's conduct. The second is general treaty law, which points the same way rather than the other. Article 60 of the Vienna Convention on the Law of Treaties permits a party to suspend a treaty in response to a material breach by another party, but article 60(5) expressly excludes provisions relating to the protection of the human person contained in treaties of a humanitarian character, and the Geneva Conventions are the paradigm of such treaties. The third is the specific prohibition of reprisals. Each of the four Conventions forbids measures of reprisal against the persons it protects, and Additional Protocol I extends the prohibition to civilians and the civilian population, civilian objects, cultural objects and places of worship, objects indispensable to the survival of the civilian population, the natural environment, and works and installations containing dangerous forces. The underlying reason is structural: in every real conflict each side alleges violations by the other, so a law that could be suspended on that ground would protect nobody at the moment protection is most needed.

3. What can a third State actually do under the second limb of article 1, and what can it not do? It can and must use the lawful means within its power. That includes public and private diplomatic protest and demarches; refusing to transfer arms or materiel where there is a clear risk they will be used to commit violations; imposing or supporting economic measures; declining to recognise as lawful a situation created by a serious violation; refraining from aid or assistance to the violation, which is separately required by the law of State responsibility; supporting fact finding, referral to accountability mechanisms and the exercise of jurisdiction over grave breaches by its own courts; and raising the matter in the political organs of the United Nations. What it cannot do is use armed force on the strength of article 1, because the resort to force is governed exclusively by the Charter and article 1 confers no new authority. Nor is the duty unlimited: it is an obligation of conduct rather than of result, measured by the means available to the particular State and by its capacity to influence the party in breach, so what is required of a major arms supplier is more than what is required of a State with no relationship to either belligerent.

The positive duty

The wounded and sick shall be collected and cared for. One sentence, and the whole of the First Convention's purpose inside it.

The ICRC

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

This is the right of humanitarian initiative. An offer is not interference in internal affairs, and a State cannot treat it as such. It does not oblige the party to accept, which is the limitation [The Right of Humanitarian Initiative, and Confidentiality as a Method] examines.

Special agreements

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The savings clause

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

This clause bought the article its acceptance. Governments feared that applying the Conventions to rebels would amount to recognising them. The final paragraph says it does not, and without it there would have been no common article 3 at all.

The articles around it

Article 3 sits among the general provisions, and articles 4 to 11 complete them.

Article 4 requires neutral Powers to apply the Convention by analogy to wounded, sick, medical personnel and chaplains received or interned in their territory, and to the dead found there.

Article 5 provides that for protected persons in enemy hands the Convention applies until their final repatriation.

Article 6 permits special agreements but forbids any that adversely affect the situation of protected persons or restrict their rights.

Article 7 is the non-renunciation rule: protected persons may in no circumstances renounce in part or in entirety the rights secured to them.

Articles 8, 9, 10 and 11 are the Protecting Power machinery: scrutiny by Protecting Powers, the ICRC's humanitarian activities subject to the consent of the parties, substitutes where no Protecting Power operates, and the good offices procedure for settling disagreements. [Protecting Powers, and Their Substitutes] takes them in detail.

The elementary considerations of humanity

In the Nicaragua case the International Court of Justice held that the rules in common article 3 constitute a minimum yardstick, applicable to international armed conflicts as well, and that they reflect what the Court in an earlier case had called elementary considerations of humanity.

Two consequences. Common article 3 binds as customary international law and not only by treaty. And it applies to every armed conflict, so it is a floor beneath the whole subject rather than a rule for one category.

Worked example

A question asks you to explain common article 3 and its significance.

Give the trigger and stress that it binds each Party, including the non-State party, and explain how a group that cannot sign a treaty comes to be bound.

Set out the protected category by condition rather than status, and give hors de combat.

List the four prohibitions in order and quote the language of paragraph (d) on regularly constituted courts and indispensable judicial guarantees.

Give the positive duty and the ICRC's right to offer services.

Then give the savings clause and explain its function, which is the point that shows understanding of why the article exists in the form it does.

Close with the Nicaragua case, giving the minimum yardstick and elementary considerations of humanity, and with the limits: no prisoner of war status, no rules on the conduct of hostilities, and no enforcement machinery inside the article itself.

What it does NOT mean

It does not confer combatant status or prisoner of war status. A captured insurgent remains liable to prosecution under domestic law.

It does not regulate the conduct of hostilities. There is nothing in it about targeting, weapons or proportionality; Protocol II and customary law supply what there is.

And it does not give the ICRC a right of access. It gives a right to offer, and the party may refuse.

Quick revision

• Trigger: armed conflict not of an international character, binding each Party to the conflict, applying as a minimum.
• Protected: those taking no active part, including forces who have laid down their arms and those hors de combat.
• Four prohibitions: violence to life and person; taking of hostages; outrages upon personal dignity; sentences and executions without a regularly constituted court.
• Positive duty: the wounded and sick shall be collected and cared for.
• ICRC may offer its services.
• Savings clause: application shall not affect the legal status of the Parties.
• the Nicaragua case: a minimum yardstick applicable to all armed conflicts, reflecting elementary considerations of humanity.
• Neighbours: article 4 neutral Powers, article 5 until final repatriation, article 6 special agreements, article 7 non-renunciation, articles 8 to 11 Protecting Powers, ICRC activities, substitutes and good offices.

Test yourself

1. How can common article 3 bind an armed group that has never signed anything? The article by its own terms binds each Party to the conflict, and the drafters used that formula deliberately in place of a formula limited to States. Several explanations of the mechanism are offered and a candidate should give more than one. On the most widely accepted view, the State's ratification binds all persons and entities within its jurisdiction, including any group that later takes up arms against it, so the obligation reaches the group through the territorial legal order. On a second view, the rules in the article are customary international law binding on any party to an armed conflict regardless of the treaty, which is the reading supported by the International Court's holding in the Nicaragua case that these rules are a minimum yardstick reflecting elementary considerations of humanity. On a third, an organised armed group that exercises governmental functions over territory assumes the obligations attaching to those functions. In practice the ICRC engages groups directly and invites unilateral declarations of compliance and special agreements under the article's own paragraph encouraging them. What settles the matter for examination purposes is that States, tribunals and the ICRC all treat non-State parties as bound, and prosecutions of members of armed groups for violations of common article 3 have proceeded on that footing.

2. What is the function of the final paragraph, and why would there be no common article 3 without it? The final paragraph provides that the application of the preceding provisions shall not affect the legal status of the parties to the conflict. Its function is to sever compliance from recognition. In 1949 the strongest objection to any provision reaching inside a State was that if a government applied the Geneva Conventions to rebels it would be treating them as a belligerent party with international standing, would be conceding that its internal enemies had a status in international law, and might find that concession used against it politically and legally. Governments were unwilling to accept a provision that carried that consequence, and the negotiating history shows the article shrinking from an attempt to apply the whole Conventions to internal conflict down to a single article. The savings clause was the price of agreement: it allows a government to treat detainees humanely, to permit the ICRC to visit, and to observe the four prohibitions, while remaining free to call the other side criminals, to prosecute them under ordinary law, and to deny them any status whatever. Without it the article would not have been adopted, and the whole of the modern law of non-international armed conflict rests on that compromise.

3. What are the limits of common article 3, and what fills them? Three limits. It confers no status, so there is no combatant privilege and no prisoner of war regime, and a captured fighter may be tried for murder or treason on account of acts that in an international conflict would attract immunity. It says nothing about the conduct of hostilities, so it contains no rule of distinction, no rule of proportionality, no prohibition of particular weapons and no obligation to take precautions in attack. And it contains no machinery: no Protecting Power, no compulsory reporting, no grave breaches regime and therefore no obligation to search for and prosecute offenders in the way the Conventions require for international conflict. What fills them is partly Additional Protocol II of 1977, which adds detailed guarantees on humane treatment, on penal prosecutions, on the wounded, sick and shipwrecked and on the civilian population, but which applies only where the armed group controls territory sufficiently to carry out sustained and concerted operations; partly customary international humanitarian law, which the ICRC's study and the jurisprudence of the tribunals treat as extending most of the rules on the conduct of hostilities to non-international conflict; and partly international criminal law, since the Rome Statute makes serious violations of common article 3 war crimes over which the Court has jurisdiction.

The middle reading. The clause is an interpretive principle. Where a treaty rule is ambiguous, it must be read in the light of humanity and public conscience, and the benefit of the doubt goes to protection. This is the reading most States and most courts adopt in practice.

The broad reading. Humanity and public conscience are independent sources of obligation, so conduct may be unlawful because it offends them even where no rule of custom or treaty covers it. This reading is asserted by some States and by much of the literature and resisted by others.

What the courts have said

In the Nuclear Weapons advisory opinion of 1996 the International Court of Justice described the Martens clause as having proved to be an effective means of addressing the rapid evolution of military technology, and treated it as a rule of customary international law. It did not, however, resolve the question of the legality of nuclear weapons by reference to it, which shows the limits of what the clause can decide on its own.

In the Krupp trial after the Second World War, a United States military tribunal described the clause as much more than a pious declaration and as a legal yardstick to be applied where the specific provisions of the Convention do not cover a case.

The distance between those two treatments is the honest state of the law. The clause has real legal effect and does not by itself decide hard cases.

Where it is used in practice

New weapons. Every debate about a technology the treaties did not anticipate, from blinding lasers to autonomous weapon systems, is conducted partly in the clause's language. [New Weapons, and the Duty to Review Them] returns to it.

The interpretation of ambiguous rules, where it supplies a presumption in favour of protection.

The denunciation clauses. Each of the four Conventions provides that a denunciation shall in no way impair the obligations which the parties remain bound to fulfil by virtue of the principles of the law of nations, so a State that withdraws from the Conventions does not withdraw from those principles.

And in argument about non-international conflict, where treaty regulation is thinnest and the gap the clause addresses is widest.

Worked example

A question asks what the Martens clause is and whether it has any real legal effect.

Give the origin briefly, because it explains the form: a preambular formula devised at the 1899 conference to break a deadlock over resistance in occupied territory.

Quote the modern version, article 1(2) of Protocol I, and name the three sources.

State the function: it denies that whatever is not prohibited is permitted, and it is the answer to a Lotus style argument in this field.

Then give the three readings and say which is dominant, which is the interpretive one, and give the two judicial treatments, Krupp on legal yardstick and Nuclear Weapons on the rapid evolution of military technology.

Conclude with a measured verdict. The clause is legally operative, it is customary, it constrains the argument from silence, and it is not by itself capable of prohibiting a specific weapon. Its practical value is greatest where the treaties are thinnest.

What it does NOT mean

It does not prohibit anything by name. It supplies a standard, not a rule, and a candidate who says the clause bans a particular weapon has overstated it.

It does not make public opinion a source of law. Dictates of public conscience is a demanding phrase referring to settled convictions of the international community, not to the sentiment of the moment.

And it does not fill every gap. Nuclear Weapons is the demonstration: the Court invoked the clause and still could not conclude definitively on the legality of the threat or use of nuclear weapons in an extreme circumstance of self-defence.

Quick revision

• Origin: Fyodor Martens, Hague Conference 1899, a preambular formula to break the deadlock over resistance in occupied territory.
• Modern text: article 1(2) of Protocol I, three sources, established custom, the principles of humanity, the dictates of public conscience.
• Function: denies that what is not prohibited is permitted; the answer to the Lotus argument in this field.
• Three readings: reminder of custom; interpretive principle, which is dominant; independent source, which is contested.
• The Krupp trial: much more than a pious declaration, a legal yardstick.
• Nuclear Weapons 1996: customary, and an effective means of addressing the rapid evolution of military technology.
• Also in the denunciation clauses of all four Conventions.

Test yourself

1. What problem does the Martens clause solve, and how? It solves the problem of the argument from silence. In a field where the rules are codified, it is tempting to reason that whatever the codification does not prohibit is thereby permitted, and that reasoning has support in general international law, notably in the Permanent Court's approach in the Lotus case, which held that restrictions upon the independence of States cannot be presumed. Applied to armed conflict the consequence would be that every method and every weapon the treaties did not anticipate is lawful until a new treaty says otherwise, which would put the burden of prohibition on the victims and would make the law permanently one technology behind. The Martens clause blocks that conclusion by providing that in cases not covered by the Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. Silence in the treaty is therefore not silence in the law. Conduct falling outside the codified rules is still measured against a standard, and the party relying on the absence of a prohibition cannot rest there.

2. Set out the three competing readings of the clause and say which is dominant. On the narrow reading, the clause does no more than remind the reader that customary international law continues to operate alongside treaty law, so the reference to the principles of humanity and the dictates of public conscience is descriptive of the sources of custom rather than an addition to them, and the clause adds nothing that would not be true without it. On the middle reading, the clause is a principle of interpretation: where a treaty provision is ambiguous or its application to a novel situation is unclear, it must be construed in the light of humanity and public conscience, so that in case of doubt the construction favouring protection prevails. On the broad reading, humanity and public conscience are independent sources of legal obligation, and conduct may be unlawful because it offends them even in the absence of any rule of custom or treaty. The middle reading is dominant in the practice of States and in judicial reasoning. The narrow reading is difficult to reconcile with the emphasis courts have placed on the clause, notably the description in the Krupp trial of it as much more than a pious declaration and as a legal yardstick. The broad reading is asserted by many commentators and by some States but is resisted by others precisely because it would allow obligations to be generated without their consent.

3. Assess the practical effect of the clause with reference to the Nuclear Weapons opinion. The opinion is the best evidence both of the clause's authority and of its limits. The Court confirmed that the clause is a rule of customary international law and described it as having proved to be an effective means of addressing the rapid evolution of military technology, which disposes of any suggestion that it is merely preambular rhetoric. It formed part of the body of law the Court applied. Yet when the Court came to its conclusion it held that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict and in particular to the principles and rules of humanitarian law, and then stated that in view of the current state of international law and of the elements of fact at its disposal it could not conclude definitively whether the 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 clause was invoked and did not resolve the case. The fair assessment is therefore that the clause constrains argument, forecloses the inference from silence, supplies a presumption in favour of protection and keeps novel technologies within the reach of the law, while lacking the specificity to prohibit a named weapon by itself. Its value is greatest where the treaties are thinnest, which is why it recurs in debates on new weapons and on non-international armed conflict.

And article 51(5) names two types treated as indiscriminate. Area bombardment, meaning an attack treating as a single objective a number of clearly separated and distinct military objectives in a city, town or village containing a similar concentration of civilians. And an attack expected to cause incidental civilian harm excessive in relation to the concrete and direct military advantage anticipated, which is proportionality appearing here as a species of indiscriminate attack.

Limbs (b) and (c) are where Module II connects. A weapon that cannot be aimed, or whose effects cannot be contained, is prohibited by the rule of distinction itself and does not need a treaty of its own.

Civilian objects and military objectives

Article 52(1): Civilian objects shall not be the object of attack or of reprisals, and civilian objects are all objects which are not military objectives.

Article 52(2) is the definition every targeting decision uses. Military objectives are limited to objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

Two cumulative limbs. Effective contribution to military action, and definite military advantage from attacking it. Both are required, and both are assessed in the circumstances ruling at the time, so an object's status can change during a conflict.

Article 52(3) supplies the presumption: in case of doubt whether an object normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Human shields, and why they change nothing

Article 51(7) prohibits using the presence or movements of civilians to render points immune from military operations or to shield military objectives.

Article 51(8) is the answer to the argument that shielding forfeits protection: any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take precautions.

So an attacker faced with human shields is still bound by proportionality and precautions. The shielding party commits a violation; the attacker does not thereby acquire a licence.

Worked example

Her question 7(d), short note on the protection of civilians during war, or the first half of question 1 on principles.

Give article 48 first, quoted, and name both distinctions.

Then define civilian by exclusion and give the doubt rule, with article 50(3) on the presence of fighters in a population.

Then give the protection and the exception, article 51(2) and the direct participation clause, and say that its scope is disputed.

Then give indiscriminate attacks with the three limbs and the two named types.

Then move to objects: the definition in article 52(2) with its two cumulative limbs, and the presumption in 52(3).

Close with human shields, article 51(7) and 51(8), because it shows that the rule is not defeated by the enemy's violation, which links back to the non-reciprocity in [Common Article 1, and the Duty to Ensure Respect].

What it does NOT mean

It does not mean civilians may never be harmed. Incidental harm is lawful within the limits of proportionality, which [Proportionality, and Precautions in Attack] states.

It does not mean an object is civilian because it is normally civilian. Use, purpose or location can make a school or a bridge a military objective; the presumption in 52(3) operates only in case of doubt.

And it does not mean the categories are always clear. Direct participation in hostilities is the hardest question in the modern law and there is no agreed test.

Quick revision

• Article 48, BASIC RULE: distinguish at all times between civilians and combatants, and between civilian objects and military objectives, and direct operations only against military objectives.
• Article 50: civilian defined by exclusion; in case of doubt, a civilian; presence of non-civilians does not deprive the population of its civilian character.
• Article 51(2): civilians shall not be the object of attack; terror attacks prohibited.
• Article 51(3): protection lost unless and for such time as they take a direct part in hostilities.
• Article 51(4): three limbs of indiscriminate attack. 51(5): area bombardment and excessive incidental harm.
• Article 52(2): nature, location, purpose or use, effective contribution, and definite military advantage, in the circumstances ruling at the time.
• Article 52(3): doubt about a place of worship, a house or other dwelling or a school, presumed civilian.
• Article 51(7) and (8): shielding prohibited; violation does not release the attacker from its obligations.
• The Nuclear Weapons opinion: distinction is a cardinal principle and intransgressible.

Test yourself

1. State the rule of distinction and explain why it contains two distinctions rather than one. Article 48 of Additional Protocol I, headed Basic Rule, provides that in order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives. It contains two distinctions because the two protections are conceptually and practically separate. The distinction between persons determines who may be made the object of attack, and it is worked out through the definition of civilian by exclusion in article 50, the presumption in favour of civilian status in case of doubt, and the loss of protection for such time as a civilian takes a direct part in hostilities. The distinction between objects determines what may be attacked, and it is worked out through article 52, which defines civilian objects negatively as all objects that are not military objectives, and defines military objectives by the two cumulative requirements of effective contribution to military action and definite military advantage from destruction, capture or neutralization. A candidate who gives only the first distinction has missed the half of the law that governs the bombing of bridges, power stations, broadcasting facilities and dual use infrastructure, which is where most modern controversy lies.

2. Explain the definition of a military objective in article 52(2) and the presumption in article 52(3). Article 52(2) provides that attacks shall be limited strictly to military objectives, and that in so far as objects are concerned military objectives are limited 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 neutralization, in the circumstances ruling at the time, offers a definite military advantage. The definition has two cumulative limbs and both must be satisfied. The first asks about the object: does it, by what it inherently is, by where it is, by the use to which it is being put, or by the use intended for it, make an effective contribution to military action. The second asks about the attack: would destroying, capturing or neutralising it offer a definite, that is a concrete and not a speculative, military advantage in the circumstances prevailing at that moment. Because both limbs are time bound, status is not permanent: a bridge may be a military objective during a withdrawal and a civilian object a week later. Article 52(3) supplies the safeguard, providing that in case of doubt whether an object normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used, so the burden of the doubt falls on the attacker.

3. If the enemy places civilians around a military objective, may the attacker treat them as having forfeited protection? No. Article 51(7) prohibits the use of the presence or movements of the civilian population or individual civilians to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attack, and it prohibits parties from directing the movement of civilians for that purpose. That conduct is a violation by the shielding party and, where civilians are used as shields deliberately, it may be a war crime. But article 51(8) then provides expressly that any violation of these prohibitions shall not release the parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in article 57. The attacker therefore remains bound by the rule of proportionality and by the duty of precaution exactly as before. The presence of shields is a fact to be taken into account in the proportionality assessment, since it affects the expected incidental harm, and it may make an otherwise lawful attack unlawful. It is not a defence, and it is not a transfer of responsibility. This is the rule of non-reciprocity applied to targeting: the adversary's violation never enlarges what the other side may do.

Article 57(3) adds a choice rule: where a choice is possible between several military objectives for obtaining a similar military advantage, the objective selected shall be that whose attack may be expected to cause the least danger to civilian lives and to civilian objects.

Article 57(5) closes the article by providing that nothing in it may be construed as authorising any attack against civilians.

The word feasible

Feasible means practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations. That is the formulation States adopted, and it is the standard by which every precaution is judged. It is not a counsel of perfection and it is not a licence.

Precautions against the effects of attacks

Article 58 addresses the defender, and it is the least observed rule in the Protocol. Parties shall, to the maximum extent feasible, endeavour to remove civilians from the vicinity of military objectives, avoid locating military objectives within or near densely populated areas, and take other necessary precautions to protect civilians under their control.

Naming article 58 in an answer is worth doing, because it shows that the burden of protecting civilians does not fall on the attacker alone.

The neighbouring protections

Articles 53 to 56 protect specific objects and are examined with this material.

Article 53 prohibits acts of hostility against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, their use in support of the military effort, and reprisals against them.

Article 54 prohibits starvation of civilians as a method of warfare and the attack or destruction of objects indispensable to survival, such as foodstuffs, agricultural areas, crops, livestock, drinking water installations and supplies and irrigation works.

Article 55 requires care to protect the natural environment against widespread, long-term and severe damage.

Article 56 protects works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, even where they are military objectives, if attack may release dangerous forces causing severe civilian losses, and it may be marked with three bright orange circles.

Articles 59 and 60 complete the section with non-defended localities, which may not be attacked by any means whatsoever, and demilitarized zones.

Worked example

A question asks how the law permits civilian casualties at all, and what constrains them.

Say first what the law does not do. It does not prohibit all civilian harm, because that would prohibit all warfare, and the law does not attempt that.

Then give proportionality with both texts, article 51(5)(b) and article 57(2)(a)(iii), and stress that the test is prospective and that the advantage must be concrete and direct.

Then give precautions as a process, running the five steps of article 57(2) in order, and add the choice rule in 57(3).

Then give the defender's duty in article 58, which most answers omit.

Then be honest about the weakness. The balance is between incommensurables, the standard is excessive rather than greater, the assessment belongs to the attacker, and the criminal threshold in article 8(2)(b)(iv) of the Rome Statute is higher still. Say what would improve it: recorded targeting assessments, independent post-attack investigation, and the specially protected categories in articles 53 to 56 which remove certain objects from the balance altogether.

What it does NOT mean

It does not mean casualties prove a violation. The rule is prospective, so lawfulness is judged on what was expected, not on the outcome.

It does not mean a warning makes an attack lawful. A warning is one precaution among several, and an attack that is disproportionate remains unlawful however well warned.

And it does not mean article 58 excuses the attacker. A defender who puts a battery in a school violates article 58, and the attacker's proportionality obligation is unchanged.

Quick revision

• Proportionality: article 51(5)(b) and article 57(2)(a)(iii); incidental harm excessive in relation to the concrete and direct military advantage anticipated.
• Prospective, judged on what may be expected and what is anticipated.
• Rome Statute article 8(2)(b)(iv): clearly excessive, and overall military advantage.
• Article 57(1): constant care.
• Five steps: verify, choose means, refrain, cancel or suspend, and effective advance warning unless circumstances do not permit.
• Article 57(3): choose the objective causing the least danger for similar advantage.
• Feasible: practicable, taking account of all circumstances including humanitarian and military considerations.
• Article 58: the defender must avoid locating military objectives within or near densely populated areas.
• Articles 53 to 56: cultural objects, starvation as a method of warfare prohibited, the natural environment, and dams, dykes and nuclear electrical generating stations.
• Articles 59 and 60: non-defended localities and demilitarized zones.

Test yourself

1. State the rule of proportionality and identify the four features that determine how it operates. The rule appears twice in Additional Protocol I. Article 51(5)(b) treats as indiscriminate, and therefore prohibited, an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Article 57(2)(a)(iii) imposes the same limit as a duty on those who plan or decide upon an attack. Four features determine its operation. It is prospective: the words expected and anticipated fix the assessment at the moment of decision, on the information reasonably available then, so the lawfulness of an attack is not determined by its outcome. The advantage must be concrete and direct, which excludes remote, speculative or merely political advantage and prevents the rule being defeated by an appeal to eventual victory. Only incidental harm to civilians and civilian objects is weighed, so losses among combatants and among civilians taking a direct part in hostilities do not enter the balance. And the threshold is excessive rather than greater, so the law does not require civilian harm to be smaller than the military advantage, which is a wide margin and one of the rule's genuine weaknesses.

2. Set out the precautions required by article 57 and explain the meaning of feasible. Article 57(1) imposes a standing obligation of constant care in the conduct of military operations to spare the civilian population, civilians and civilian objects. Article 57(2) then requires specific steps. Those who plan or decide upon an attack must do everything feasible to verify that the objectives are military objectives and are not civilians, civilian objects or subject to special protection; must take all feasible precautions in the choice of means and methods of attack with a view to avoiding and in any event minimising incidental civilian harm; and must refrain from deciding to launch an attack expected to cause excessive incidental harm. An attack must be cancelled or suspended if it becomes apparent that the objective is not military, is specially protected, or that the harm would be excessive. Effective advance warning must be given of attacks which may affect the civilian population unless circumstances do not permit. Article 57(3) adds that where a choice exists between several objectives offering a similar military advantage, the one selected must be that whose attack may be expected to cause the least danger to civilian lives and objects. Feasible is understood as that which is practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations, so it is neither a standard of perfection nor a discretion.

3. Why is proportionality the most criticised rule in the law of targeting, and what would improve it? Because it requires a comparison between quantities that cannot be expressed in the same terms. On one side are expected civilian deaths, injuries and destruction of civilian property; on the other, a military advantage measured in tactical or operational terms. No formula converts one into the other, and the treaty supplies none. The assessment is made in the first instance by the very party proposing the attack, on information it alone holds, under time pressure, and it is reviewable afterwards only on a standard of reasonableness. The threshold of excessive rather than greater widens the margin further, and the Rome Statute's criminal threshold is higher again, requiring that the harm be clearly excessive in relation to the concrete and direct overall military advantage anticipated, so that conduct may violate humanitarian law without being criminal. Three things would improve it. Recorded contemporaneous targeting assessments, so that what was expected can be examined rather than reconstructed. Independent investigation of attacks causing significant civilian harm, which is required by the duty to investigate but is rarely done by a body outside the attacking State. And a wider use of the technique in articles 53 to 56, which removes certain objects from the balance altogether by protecting them even where they qualify as military objectives, since a categorical rule is enforceable in a way that a balancing standard is not.

It has no single article, and it is everywhere. It is the reason for the prohibition of weapons causing superfluous injury or unnecessary suffering. It is what the Martens clause invokes as the principles of humanity. It is what the International Court called elementary considerations of humanity. And it is what common article 3 requires when it says persons taking no active part shall in all circumstances be treated humanely.

The prohibitions that admit of no necessity exception are humanity in its absolute form: torture, hostage taking, outrages upon personal dignity, execution without a regular trial, biological experiments, and reprisals against protected persons.

The relation between them

Every rule in this paper is already a compromise between the two. That is the sentence a good answer contains.

Consider proportionality. It permits incidental civilian death, which humanity alone would forbid, and it prohibits excessive incidental death, which necessity alone would permit. The rule is the negotiated point between them, fixed by treaty.

Consider article 12 of the First Convention. The wounded and sick shall be respected and protected in all circumstances and treated humanely, and only urgent medical reasons will authorize priority in the order of treatment. Humanity requires care; necessity is excluded from the triage decision entirely and only medical urgency may order it.

So the correct use of the two principles in an answer is interpretive. Where a rule is clear, apply the rule and say that it embodies the balance. Where a rule is unclear or absent, the two principles and the Martens clause supply the standard.

The other principles in the family

Two more are conventionally listed and belong here.

Distinction and proportionality are dealt with in [The Principle of Distinction] and [Proportionality, and Precautions in Attack], and are the operative rules through which necessity and humanity are applied to targeting.

Good faith underlies the prohibition of perfidy in article 37 of Protocol I, which prohibits killing, injuring or capturing an adversary by resort to perfidy, meaning acts inviting the confidence of the adversary that he is entitled to protection, with intent to betray that confidence. Ruses of war are not prohibited, which is the line article 37(2) draws.

Worked example

Her question 1, first half: the principles of humanitarian law during warfare.

Name five and give each its anchor: distinction in article 48, proportionality in articles 51(5)(b) and 57(2)(a)(iii), precautions in article 57, military necessity in the Lieber Code and in the express treaty exceptions, and humanity in common article 3 and the superfluous injury rule.

Then make the structural point, which distinguishes a good answer: the principles are not five separate rules to be applied in sequence, but two underlying ideas, necessity and humanity, worked out into three operative rules of targeting.

Then deal with Kriegsraison expressly. State the doctrine, state that it was argued and rejected, and state the reason: the rules already embody the balance, so pleading necessity against a rule is asking to have the balance struck twice.

Then show where necessity does operate, with the four express instances, and note that each is qualified by urgent or imperative.

What it does NOT mean

It does not mean necessity can excuse a grave breach. There is no necessity exception to the prohibition of torture, hostage taking or the killing of prisoners.

It does not mean humanity is a rule that can be applied on its own. It is a principle informing rules, and an answer that decides a targeting question by invoking humanity alone has not applied the law.

And it does not mean the two are in permanent opposition. They converge more often than they conflict: an unnecessary killing is both inhumane and militarily pointless, and most violations are both.

Quick revision

• Lieber Code 1863, article 14: measures indispensable for securing the ends of the war and lawful according to the modern law and usages of war.
• Kriegsraison rejected at Nuremberg. Necessity is not a defence to a breach.
• Express necessity clauses: First Convention article 33 on medical buildings, article 8 on Protecting Power delegates, Protocol I article 54(5) on objects indispensable to survival, Cultural Property Convention article 4 waiver where military necessity imperatively requires.
• Humanity: superfluous injury or unnecessary suffering, the Martens clause's principles of humanity, elementary considerations of humanity, and treated humanely in common article 3.
• Article 12 of the First Convention: respected and protected in all circumstances, and only urgent medical reasons may order treatment.
• Perfidy prohibited by article 37; ruses of war are not prohibited.
• Every rule is already the balance. Necessity and humanity interpret; they do not override.

Test yourself

1. What is military necessity, and why is it wrong to treat it as a defence? Military necessity is the principle that a belligerent may apply only that degree and kind of force, not otherwise prohibited by the law of armed conflict, which is required to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources. The classical formulation is article 14 of the Lieber Code of 1863, which defines it as the necessity of those measures which are indispensable for securing the ends of the war and which are lawful according to the modern law and usages of war. The final clause is decisive: necessity operates inside the law, never above it. Treating it as a defence is the doctrine of Kriegsraison, that necessity in war overrides the law of war, which was advanced by defendants in the war crimes trials after 1945 and rejected. The reason is structural rather than moral. Each rule of humanitarian law is itself the product of a balance already struck between military requirements and humanitarian demands by the States that drafted it. To allow a belligerent to plead necessity against a rule would be to allow the balance to be struck twice, once by the treaty and again by the party bound by it, which would leave nothing binding at all. Necessity is properly a limitation: it prohibits force and destruction beyond what the military purpose requires.

2. Where does military necessity operate expressly in the treaties, and what does the pattern of those provisions show? Four examples are worth naming. Article 33 of the First Convention permits an occupying party to use the buildings and material of fixed medical establishments of the armed forces only in case of urgent military necessity, and only after the wounded and sick in them have been provided for. Article 8 of the same Convention permits the activities of the delegates of Protecting Powers to be restricted only as an exceptional and temporary measure when rendered necessary by imperative military necessities. Article 54(5) of Additional Protocol I permits a party defending its own national territory against invasion to derogate, within territory under its own control, from the prohibition on attacking objects indispensable to the survival of the civilian population where required by imperative military necessity. Article 4 of the Hague Convention of 1954 permits the obligations concerning the protection of cultural property to be waived only in cases where military necessity imperatively requires such waiver. The pattern is consistent and instructive. Where necessity is available, the treaty says so expressly; the permission is qualified by an intensifying adjective such as urgent or imperative; it is hedged with substantive conditions; and it is confined to a defined subject. The inference is that where the text is silent there is no necessity exception, which is why the prohibitions in common article 3 admit of none.

3. How should the principles of necessity and humanity actually be used in answering a problem? As interpretive principles, and in a defined order. First, identify whether a specific rule governs the conduct in question, and if so apply it, because the rule already represents the balance between necessity and humanity struck by the States that drafted it. Say so expressly, because that sentence shows the examiner that the relationship between principle and rule is understood. Second, if the rule contains an express necessity clause, apply it on its own terms, noting the qualifying adjective and the conditions attached. Third, if the rule is ambiguous in its application to the facts, construe it in the light of the two principles and of the Martens clause, which directs that in cases not covered by treaty civilians and combatants remain under the protection of principles derived from established custom, from the principles of humanity and from the dictates of public conscience, with the benefit of doubt going to protection. Fourth, only if no rule reaches the conduct at all, apply the principles directly, acknowledging that they supply a standard rather than a prohibition. What must never be done is to reach the opposite result from a clear rule by asserting that necessity demanded it, because that is the rejected doctrine of Kriegsraison wearing the language of principle.

The reason for article 7 is practical. A person in the power of the enemy is not in a position to give a free consent, so the law removes the possibility of consent altogether rather than trying to test its quality.

Articles 8 to 11: the Protecting Power machinery

Article 8 provides that the Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers, which may appoint delegates beyond their diplomatic staff, subject to the approval of the Power with which they work. Their activities may be restricted only as an exceptional and temporary measure when this is rendered necessary by imperative military necessities.

Article 9 preserves the ICRC's position: the provisions of the Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake.

Article 10 provides for substitutes. Parties may entrust the duties of a Protecting Power to an organisation offering all guarantees of impartiality and efficacy; failing that, the Detaining Power shall request a neutral State or such an organisation to act; failing that, it shall request or shall accept the offer of a humanitarian organisation such as the ICRC. And the last paragraph provides that no derogation may be made by special agreement between Powers one of which is restricted in its freedom to negotiate by reason of military events, particularly where its territory is occupied.

Article 11 is good offices: where the Protecting Powers deem it advisable, particularly in cases of disagreement about application or interpretation, they shall lend their good offices, and may propose a meeting of representatives, possibly on neutral territory, which the parties shall be bound to give effect to.

[Protecting Powers, and Their Substitutes] explains why this elaborate machinery has almost never operated.

Worked example

A question asks about the general provisions common to the Geneva Conventions.

Say at the outset that they are common, so that the analysis applies to all four, and identify them: article 1 respect and ensure respect, article 2 scope, article 3 non-international conflict, and articles 4 to 11 the machinery.

Then take the machinery in three groups. Duration and scope, in articles 4 and 5. The integrity of the rights, in articles 6 and 7. Supervision, in articles 8 to 11.

On articles 6 and 7 make the conceptual point about rights that cannot be bargained or waived, and give the reason for the non-renunciation rule.

On articles 8 to 11 be honest about the record. The Protecting Power system was designed to be the principal supervisory mechanism and has been used in only a handful of conflicts since 1949, so the ICRC's article 9 activities and article 10 substitution have carried the load instead.

What it does NOT mean

It does not mean the First Convention protects civilians who are wounded. Its protected categories are those in article 13, and civilian wounded are covered by the Fourth Convention and by Protocol I.

It does not mean a Protecting Power is neutral in the sense of being independent. It is a State appointed by one party and accepted by the other, and its impartiality is a function of that appointment.

And it does not mean article 9 gives the ICRC a right of access. The words subject to the consent of the Parties to the conflict concerned are in the article.

Quick revision

• Sixty-four articles, nine chapters plus final provisions, two annexes.
• Lineage: 1864 ten articles, 1906, 1929, 1949.
• Article 4: neutral Powers apply the Convention by analogy.
• Article 5: application until their final repatriation.
• Article 6: special agreements may not adversely affect the situation of protected persons.
• Article 7: they may in no circumstances renounce their rights.
• Article 8: cooperation and under the scrutiny of the Protecting Powers; restriction only as exceptional and temporary.
• Article 9: no obstacle to ICRC activities, subject to the consent of the Parties.
• Article 10: substitutes offering all guarantees of impartiality and efficacy.
• Article 11: good offices and a meeting the parties are bound to give effect to.

Test yourself

1. Why do articles 6 and 7 of the First Convention matter more than their length suggests? Because together they convert the protections of the Convention from an arrangement between States into rights held by individuals. Article 6 permits parties to conclude special agreements on matters for which they consider separate provision suitable, but provides that no special agreement shall adversely affect the situation of the wounded and sick, of members of the medical personnel or of chaplains as defined by the Convention, nor restrict the rights which it confers upon them. Agreements may therefore only improve the position, never worsen it, so the two belligerent States acting together cannot trade away what the Convention gives. Article 7 closes the remaining route by providing that the protected persons themselves may in no circumstances renounce in part or in entirety the rights secured to them by the Convention and by any special agreements. The reason is practical rather than paternalistic: a person in the hands of the enemy is not in a position to give a free consent, so instead of attempting to test the quality of consent in each case the law removes the possibility of waiver altogether. Read together the two articles mean the right cannot be bargained away by the States and cannot be given up by the holder, which is the structure of an inalienable right and not of a treaty benefit.

2. Describe the Protecting Power machinery in articles 8 to 11 and explain its intended function. Article 8 provides that the Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers, whose duty is to safeguard the interests of the parties to the conflict, and permits them to appoint delegates from among their own nationals or those of other neutral Powers, subject to the approval of the Power in whose territory they work; their activities may be restricted only as an exceptional and temporary measure when rendered necessary by imperative military necessities. Article 9 preserves the humanitarian activities of the International Committee of the Red Cross and of any other impartial humanitarian organisation, subject to the consent of the parties concerned. Article 10 provides for substitution where no Protecting Power operates, in a descending sequence: the parties may entrust the duties to an organisation offering all guarantees of impartiality and efficacy; failing that the Detaining Power shall request a neutral State or such an organisation to act; failing that it shall request or accept the offer of a humanitarian organisation such as the ICRC. Article 11 provides for good offices and for a meeting of representatives to resolve disagreements over application or interpretation. The intended function was continuous third party supervision of compliance from inside the conflict, which is the only supervisory mechanism the Conventions contain.

3. What does article 5 add, and what problem does it solve? Article 5 provides that for protected persons who have fallen into the hands of the enemy, the Convention shall apply until their final repatriation. The problem it solves is the temporal one. Every other trigger in the Conventions is tied to the existence of an armed conflict, and if protection ended with the conflict then the moment of greatest vulnerability, the period between the end of hostilities and the actual return of persons held by the enemy, would be unregulated. History supplied the reason for the concern, since prisoners and internees have frequently been held long after fighting stopped, and their position deteriorates once the reciprocal pressure of ongoing hostilities is removed. By fixing the end point at final repatriation rather than at the cessation of hostilities or the conclusion of peace, article 5 keeps the whole protective regime in force for exactly as long as the person remains in the enemy's power. The Third Convention builds on the same idea when it requires prisoners of war to be released and repatriated without delay after the cessation of active hostilities, and the Fourth Convention adapts it for occupation by keeping certain provisions in force for the duration of the occupation.

Category 6 is the levée en masse, and it is the only case in which a person becomes a lawful combatant without any organisation at all.

The four conditions in category 2 are the ones examiners test, because they are what a guerrilla movement must satisfy to obtain prisoner of war status, and [Prisoners of War: Who Qualifies] returns to them together with the relaxation Protocol I made.

Article 14: the wounded who fall into enemy hands

Subject to article 12, the wounded and sick of a belligerent who fall into enemy hands shall be prisoners of war, and the law of prisoners of war applies to them.

Two regimes at once. A wounded captured soldier is protected as a wounded person under the First Convention and as a prisoner under the Third, and the higher standard governs each question.

Article 15: search and collection

At all times, and particularly after an engagement, Parties shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.

And whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield, and for their removal from a besieged or encircled area together with the passage of medical and religious personnel and equipment.

The obligation runs to the wounded of both sides. Nothing in article 15 limits it to a party's own casualties.

Article 16: the dead and the missing

Parties shall record as soon as possible any particulars which may assist identification of each wounded, sick or dead person of the adverse party falling into their hands, and the article lists eight: the Power on which the person depends, service number, surname, first names, date of birth, other particulars from the identity card or disc, date and place of capture or death, and particulars of wounds, illness or cause of death.

The information goes to the Information Bureau under article 122 of the Third Convention, and from there to the Power concerned through the Protecting Power and the Central Prisoners of War Agency.

Half of a double identity disc, wills, money and articles of value are collected and forwarded.

Article 17: burial

Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased, and in case of cremation the reasons must be stated in the death certificate.

The dead are to be honourably interred, if possible according to the rites of the religion to which they belonged, their graves respected, grouped by nationality if possible, properly maintained and marked so they may always be found.

And an Official Graves Registration Service must be organised at the commencement of hostilities, to allow exhumation, identification and possible transport home, with lists exchanged at latest at the end of hostilities.

This is not a formality. For the family of a missing soldier, article 16 and article 17 are the whole of what the law offers, and [The Missing and the Dead] shows how Protocol I turned the duty into a right of families to know.

Article 18: the civilian population

The military authorities may appeal to the charity of the inhabitants voluntarily to collect and care for the wounded and sick, granting those who respond the necessary protection and facilities, which the adverse party must likewise grant if it takes or retakes the area.

Authorities shall permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality, and the civilian population shall respect them and abstain from offering them violence.

And then the sentence that matters most: No one may ever be molested or convicted for having nursed the wounded or sick.

That prohibition is absolute and has no exception. A civilian who treats an enemy soldier commits no offence, and a State that prosecutes for it violates the Convention. It is the ancestor of article 16 of Protocol I, which protects medical ethics and forbids compelling medical personnel to act contrary to them.

Worked example

A short note on the protection of the wounded and sick, or the first limb of a question on the Geneva Conventions.

Quote article 12's opening, and unpack respected and protected as negative plus positive duty.

Give the specific prohibitions, including biological experiments, which is the article's response to what had been done in the camps.

Give the triage rule verbatim, because it is short and decisive.

Then give article 13's six categories and the four conditions in category 2, since that is where the marks are.

Then run articles 15 to 18 as a sequence: search and collect, record and identify, bury honourably and register the graves, and protect the civilian who helps.

Close with article 18's last sentence, which is the most quotable line in the Convention.

What it does NOT mean

It does not mean a wounded enemy may not be captured. Article 14 makes clear that the wounded who fall into enemy hands become prisoners of war; the protection is against attack and neglect, not against detention.

It does not mean triage must treat everyone equally. It requires that the order of treatment be decided by urgency alone.

And it does not mean the civilian population is obliged to help. Article 18 permits an appeal to their charity and protects those who respond; it does not conscript them.

Quick revision

• Article 12: respected and protected in all circumstances; humane treatment without adverse distinction; no murder, extermination, torture or biological experiments; only urgent medical reasons may set priority; women treated with all consideration due to their sex; medical personnel left with abandoned wounded.
• Article 13: six categories; category 2's four conditions are responsible command, fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting operations in accordance with the laws and customs of war; category 6 is the levée en masse.
• Article 14: the wounded who fall into enemy hands shall be prisoners of war.
• Article 15: search and collect without delay, protect against pillage, and arrange an armistice or a suspension of fire where circumstances permit.
• Article 16: record particulars, forward through the Information Bureau and the Central Prisoners of War Agency.
• Article 17: no cremation except for hygiene or religion; honourably interred; Official Graves Registration Service.
• Article 18: No one may ever be molested or convicted for having nursed the wounded or sick.

Test yourself

1. Explain the obligation in article 12 and identify the four things it prohibits by name. Article 12 provides that members of the armed forces and the other persons listed in article 13 who are wounded or sick shall be respected and protected in all circumstances. The pairing carries two duties: respect is negative, requiring that they not be attacked or made the object of hostile acts, and protection is positive, requiring active steps to shield them from harm and to secure their care. The article then requires humane treatment and care by the party in whose power they are, without any adverse distinction founded on sex, race, nationality, religion, political opinions or any other similar criteria. Four things are prohibited by name: attempts upon their lives and violence to their persons, expressed as murder and extermination; torture; biological experiments, a prohibition included in direct response to what had been done in the camps in the preceding decade; and wilfully leaving them without medical assistance and care or creating conditions exposing them to contagion or infection. The article then confines triage to a single criterion, providing that only urgent medical reasons will authorise priority in the order of treatment, which excludes nationality, rank and side from the clinical decision. It adds that women shall be treated with all consideration due to their sex, and that a party compelled to abandon wounded to the enemy shall so far as military considerations permit leave part of its medical personnel and material with them.

2. Set out the categories in article 13 and explain why the conditions attached to the second matter. Article 13 lists six categories: members of the armed forces of a party and of militias or volunteer corps forming part of them; members of other militias and volunteer corps including organised resistance movements belonging to a party, whether operating in or outside their own territory and even if that territory is occupied; members of regular armed forces professing allegiance to a government or authority not recognised by the Detaining Power; persons accompanying the armed forces without being members, such as civilian aircrew, war correspondents, supply contractors and labour units, provided they hold authorisation; crews of the merchant marine and of civil aircraft not more favourably treated elsewhere; and inhabitants of unoccupied territory who spontaneously take up arms on the approach of the enemy without time to form regular units, provided they carry arms openly and respect the laws and customs of war.

The second category carries four cumulative conditions: command by a person responsible for subordinates, a fixed distinctive sign recognisable at a distance, the carrying of arms openly, and the conduct of operations in accordance with the laws and customs of war. They matter because they are the price of status. A resistance movement satisfying them obtains the protection of this Convention and prisoner of war status under the Third; one that does not obtain neither, and its members may be tried for the acts of war they commit. The same list appears in article 4A of the Third Convention, which is why the two Conventions must be read together.

3. What does article 18 protect, and why is its final sentence significant? Article 18 protects the civilian who helps the wounded. It permits the military authorities to appeal to the charity of the inhabitants voluntarily to collect and care for the wounded and sick under their direction, and requires that persons who respond be granted the necessary protection and facilities, which the adverse party must equally grant if it takes or retakes control of the area. It requires the authorities to permit inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality, and requires the civilian population to respect them and to abstain from violence against them. It ends by providing that no one may ever be molested or convicted for having nursed the wounded or sick, and adds that these provisions do not relieve the occupying Power of its own obligation to give physical and moral care. The final sentence is significant because it is absolute and admits of no exception based on the nationality or allegiance of the patient. A civilian who treats an enemy soldier commits no offence, and a State that prosecutes for assisting the enemy in such a case violates the Convention. That principle is the ancestor of article 16 of Additional Protocol I, which protects persons carrying out medical activities from punishment and prohibits compelling them to act contrary to medical ethics or to give information about their patients.

Article 23: hospital zones

Parties may establish hospital zones and localities in their own territory and, if the need arises, in occupied areas, organised to protect the wounded and sick from the effects of war along with the personnel administering them. They may recognise each other's zones by agreement, and the Protecting Powers and the International Committee of the Red Cross are invited to lend their good offices to facilitate recognition. Annex I to the Convention is a draft agreement for the purpose.

In practice hospital zones have been established very rarely, which is worth saying because it is a recurring pattern: the Conventions provide machinery that requires agreement between belligerents, and belligerents do not agree.

The personnel: articles 24 to 32

Who is protected

Article 24 protects medical personnel exclusively engaged in the search for, collection, transport or treatment of the wounded and sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units, as well as chaplains attached to the armed forces, who shall be respected and protected in all circumstances.

The word exclusively is the qualifier that decides most cases. A soldier who sometimes carries stretchers is not article 24 personnel.

Article 25 covers auxiliary personnel: members of the armed forces specially trained as hospital orderlies, nurses or auxiliary stretcher-bearers, protected if they are carrying out these duties at the time when they meet the enemy or fall into enemy hands.

Article 26 places the staff of National Red Cross Societies and other recognised Voluntary Aid Societies on the same footing as article 24 personnel, provided they are subject to military laws and regulations, and requires their names to be notified to the other party before they are employed.

Article 27 governs the medical personnel and units of a recognised Society of a neutral country, which may assist a party only with the consent of its own Government and the authorisation of the party concerned, must be placed under that party's control, and whose assistance shall in no circumstances be considered as interference in the conflict.

Retention, not captivity

Article 28 is the key article and the one candidates most often get wrong. Personnel designated in articles 24 and 26 who fall into enemy hands shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require.

Personnel thus retained shall not be deemed prisoners of war. They benefit from at least all the provisions of the Third Convention, and they continue to carry out their medical and spiritual duties, in accordance with their professional ethics, on behalf of prisoners of war, preferably those of their own armed forces.

Three facilities are guaranteed: authorisation to visit prisoners in labour units or hospitals outside the camp, with transport provided; a senior medical officer responsible for professional activity, with direct access to the military and medical authorities of the camp; and freedom from any work outside their medical or religious duties.

Article 29 provides that article 25 auxiliary personnel who fall into enemy hands shall be prisoners of war, but shall be employed on medical duties so far as the need arises. The difference between article 28 and article 29 turns entirely on whether the person was exclusively medical.

Article 30 requires the return of personnel whose retention is not indispensable, as soon as a road is open for their return and military requirements permit, and provides that pending return they are not deemed prisoners of war and take their effects and instruments with them.

Article 31 requires selection for return to be made irrespective of any consideration of race, religion or political opinion, preferably by chronological order of capture and state of health, and permits parties to agree a percentage of personnel to be retained.

Article 32 provides that neutral Society personnel under article 27 may not be detained at all, shall be permitted to return as soon as a route is open, and while in enemy power receive the same food, lodging, allowances and pay as corresponding personnel of that party's own forces.

Worked example

A question asks when a hospital may lawfully be attacked.

Start from article 19: in no circumstances be attacked, and at all times respected and protected.

Then give the only route to loss of protection, article 21, with its three cumulative requirements, and stress the warning and the reasonable time limit.

Then give article 22's five conditions, because they defeat the arguments usually advanced, and note that self-defence by armed staff and the presence of sentries are expressly preserved.

Then add the defender's duty in article 19, to site medical establishments away from military objectives, and observe that a breach of that duty does not license the attack.

Close with the criminal consequence. Attacking a medical unit is a war crime under article 8(2)(b)(ix) and (xxiv) of the Rome Statute, and wilful killing of the wounded is a grave breach under article 50 of this Convention.

What it does NOT mean

It does not mean medical personnel may fight. Their arms are for their own defence and that of their patients; using them offensively is an act harmful to the enemy.

It does not mean retained personnel are free. They are held, under camp discipline, and returned when no longer indispensable; what they are not is prisoners of war.

And it does not mean a warning is always required before an attack becomes lawful. Article 21 requires the warning in all appropriate cases with a reasonable time limit, which contemplates the rare case where a warning is impossible.

Quick revision

• Article 19: in no circumstances be attacked; site them away from military objectives.
• Article 20: hospital ships shall not be attacked from the land.
• Article 21: protection ceases only for acts harmful to the enemy outside their humanitarian duties, and only after a due warning with a reasonable time limit has remained unheeded.
• Article 22: five conditions that do not remove protection, including armed staff in self-defence, sentries, captured small arms, veterinary material, and care of civilian wounded.
• Article 23: hospital zones, with ICRC good offices; rarely used.
• Article 24: exclusively engaged medical staff and chaplains, respected and protected.
• Article 28: retained personnel shall not be deemed prisoners of war; retained only as the needs of prisoners require.
• Article 29: auxiliary personnel shall be prisoners of war.
• Article 32: neutral Society personnel may not be detained.

Test yourself

1. Under what conditions does a medical unit lose its protection, and what conditions expressly do not remove it? Article 19 provides that fixed establishments and mobile medical units may in no circumstances be attacked and shall at all times be respected and protected. Article 21 supplies the only route by which that protection is lost: protection shall not cease unless the unit is used to commit, outside its humanitarian duties, acts harmful to the enemy, and protection may then cease only after a due warning has been given, naming in all appropriate cases a reasonable time limit, and after that warning has remained unheeded. Three conditions are therefore cumulative: an act harmful to the enemy, falling outside humanitarian duties, and an ignored warning with a time limit. Article 22 then lists five conditions which shall not be considered as depriving a unit of protection: that its personnel are armed and use those arms in their own defence or in defence of the wounded and sick in their charge; that in the absence of armed orderlies the unit is protected by a picket, sentries or an escort; that small arms and ammunition taken from the wounded and not yet handed in are found there; that veterinary personnel and material are present without forming part of the unit; and that the unit's humanitarian activities extend to the care of civilian wounded or sick. That list disposes of the arguments most often advanced to justify striking a hospital.

2. Explain the difference between retention under article 28 and captivity under article 29, and why the distinction exists. Article 28 applies to the personnel designated in articles 24 and 26, that is to permanent medical personnel exclusively engaged in medical duties, to staff exclusively engaged in the administration of medical units, to chaplains attached to the armed forces, and to the staff of recognised National Societies employed on the same duties. Such persons who fall into enemy hands shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require, and they shall not be deemed prisoners of war, although they benefit from at least all the provisions of the Third Convention. They continue to perform medical and spiritual duties for prisoners of war, preferably those of their own forces, with a right to visit prisoners outside the camp, a senior medical officer with direct access to the camp authorities, and freedom from any work outside their medical or religious duties. Article 29 applies to the auxiliary personnel of article 25, soldiers specially trained as orderlies, nurses or stretcher bearers who perform those duties only when the need arises, and such persons who fall into enemy hands shall be prisoners of war, though employed on medical duties so far as the need arises. The distinction turns on exclusivity: a person whose function is wholly medical is not a combatant at all and is therefore not captured but retained, whereas a soldier with an additional medical qualification remains a combatant and is captured as one.

3. Why does article 19 impose a duty on the party that owns the medical unit, and what follows if that duty is breached? The second paragraph of article 19 requires the responsible authorities to ensure that medical establishments and units are, so far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety. The duty exists because protection of a medical unit is worth little if the unit is deliberately or carelessly placed beside an ammunition dump or a headquarters, where any lawful attack on the military objective will destroy it. It is the same idea that article 58 of Additional Protocol I later generalises into the defender's obligation to avoid locating military objectives within or near densely populated areas and to remove civilians from the vicinity of such objectives. What follows from a breach is important and is often stated wrongly. The breach is a violation by the party that sited the unit, and it may make that party responsible for the resulting harm. It does not make the medical unit a lawful target, because the unit loses protection only under article 21, that is only for acts harmful to the enemy outside its humanitarian duties and only after an unheeded warning. The attacker therefore remains bound by distinction, proportionality and precautions, and must take the presence of the protected unit into account in the proportionality assessment exactly as it must take account of civilians used as shields.

The protection is conditional on agreement, which is the weakness of the article. An aircraft flying without an agreed route has no immunity from attack under this Convention.

Marking: the distinctive emblem prescribed in article 38 together with national colours, on the lower, upper and lateral surfaces.

Flights over enemy or enemy-occupied territory are prohibited unless agreed otherwise.

Medical aircraft shall obey every summons to land, and after an imposed landing may continue the flight after examination. In the event of an involuntary landing in enemy or enemy-occupied territory, the wounded and sick, as well as the crew of the aircraft, shall be prisoners of war, while medical personnel are treated under article 24 and following.

Article 37: neutral territory

Medical aircraft may fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call, with previous notice, obeying all summonses to alight. They will be immune from attack only when flying on routes, at heights and at times specifically agreed upon between the parties and the neutral Power.

Neutral Powers may place conditions or restrictions, applied equally to all parties.

And wounded and sick disembarked on neutral territory shall be detained by the neutral Power, where international law so requires, so that they cannot again take part in operations of war, with the cost borne by the Power on which they depend.

What Protocol I did about the aircraft problem

Articles 24 to 31 of Additional Protocol I rewrote this material, because the requirement of prior agreement made article 36 almost unusable in a fast-moving conflict.

The Protocol distinguishes by area. In areas controlled by friendly forces, medical aircraft are protected without agreement. In contact zones and areas controlled by the adverse party, protection is fully effective only by prior agreement, but respect is required even without it once the aircraft has been recognised as medical.

The improvement is real and limited, and the underlying problem remains: an aircraft cannot be identified as medical at the range at which modern air defence engages.

Worked example

A question asks what becomes of medical facilities and equipment captured by the enemy.

Distinguish mobile from fixed at the outset, because articles 33's first two paragraphs treat them differently.

Mobile unit material is reserved for the wounded and may not be diverted at all.

Fixed establishment buildings and stores remain subject to the laws of war but may not be diverted while required for the wounded, subject to the urgent military necessity clause with its condition of previous arrangements.

Nothing may be intentionally destroyed.

Aid society property is private property, and requisition needs urgent necessity plus prior provision for the wounded.

Then add the personnel rule from article 19, that personnel of a captured unit remain free to pursue their duties until the capturing Power has itself ensured the necessary care.

What it does NOT mean

It does not mean captured medical material can never be used by the captor. It means it must serve the wounded and sick, whoever they are, and the captor's own casualties are within that.

It does not mean medical aircraft may not be shot down. Outside an agreed route, article 36 confers no immunity, though the general rules on distinction and precautions still apply.

And it does not mean neutral territory is a haven. Wounded landed there are interned so that they cannot fight again.

Quick revision

• Article 33: mobile unit material reserved for the care of wounded and sick; fixed establishments subject to the laws of war but may not be diverted from their purpose; use in case of urgent military necessity only after previous arrangements; shall not be intentionally destroyed.
• Article 34: aid society property regarded as private property; requisition only in urgent necessity and after the wounded are provided for.
• Article 35: transports protected in the same way as mobile medical units; captor must ensure care of those they contain.
• Article 36: medical aircraft protected only on heights, times and routes specifically agreed; overflight of enemy territory prohibited; obey every summons to land; on involuntary landing the wounded and crew shall be prisoners of war.
• Article 37: neutral overflight with notice; immunity only on agreed routes; disembarked wounded detained by the neutral Power at the cost of their own Power.
• Protocol I articles 24 to 31 replaced the agreement requirement with a rule graded by area.

Test yourself

1. What happens to a captured field hospital and its stores? Article 33 answers in three parts. The material of mobile medical units of the armed forces which falls into enemy hands shall be reserved for the care of the wounded and sick, which means it is not war booty, cannot be appropriated for other uses, and follows the humanitarian purpose rather than the captor's convenience. The buildings, material and stores of fixed medical establishments remain subject to the laws of war, since as immovable property they fall to be dealt with under the law of occupation, but they may not be diverted from their purpose so long as they are required for the care of the wounded and sick. Commanders of forces in the field may nevertheless make use of them in case of urgent military necessity, provided they make previous arrangements for the welfare of the wounded and sick nursed in them, which is the only necessity clause in this part of the Convention and is doubly qualified, first by the adjective urgent and second by the condition of prior provision. Finally, the material and stores defined in the article shall not be intentionally destroyed, a prohibition to which no necessity exception attaches. Article 19 adds that the personnel of a captured unit remain free to pursue their duties until the capturing Power has itself ensured the necessary care of the wounded and sick found there.

2. Why is the protection of medical aircraft under article 36 weaker than the protection of a field hospital, and what did Protocol I do about it? Because it is conditional on agreement. Article 36 protects medical aircraft, meaning aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment, from attack only while flying at heights, times and on routes specifically agreed upon between the belligerents concerned. An aircraft flying outside an agreed corridor has no immunity under the article at all, and flights over enemy or enemy occupied territory are prohibited unless otherwise agreed. Aircraft must also obey every summons to land, and on an involuntary landing in enemy territory the wounded, sick and crew become prisoners of war while medical personnel are treated under article 24 and following. The reason for the conditionality is practical: an aircraft cannot be identified at the range at which it is engaged, so the drafters substituted prior notification for visual recognition. Additional Protocol I, in articles 24 to 31, replaced the single agreement requirement with a scheme graded by area. Over land or sea controlled by friendly forces, medical aircraft are respected without any agreement. In contact zones and over areas controlled by the adverse party, protection is fully effective only by prior agreement, though respect is due once an aircraft has in fact been recognised as medical. The improvement is real but the underlying identification problem is not solved.

3. Why does article 34 classify aid society property as private property? Because the classification determines what an occupying Power may lawfully do with it. Under the law of occupation, derived from the Hague Regulations, public movable property susceptible of military use may be seized, and public immovable property may be administered by the occupant as usufructuary, whereas private property must be respected and cannot be confiscated. By providing that the real and personal property of aid societies admitted to the privileges of the Convention shall be regarded as private property, article 34 places the buildings, vehicles, stores and equipment of a National Red Cross Society or a recognised relief society into the protected category, so that they cannot simply be taken over as an enemy State asset. The article then goes further than the general law by restricting even the right of requisition, which the laws and customs of war otherwise permit against private property for the needs of the army of occupation: it may not be exercised except in case of urgent necessity, and only after the welfare of the wounded and sick has been ensured. The effect is to insulate the material means of humanitarian relief from the ordinary consequences of occupation, which is essential if National Societies are to function on both sides of a front.

Article 44 states it. The emblem and the words Red Cross or Geneva Cross may not be employed, in peace or war, except to indicate or protect the medical units, personnel and material protected by the Conventions.

National Societies may in peacetime use the name and emblem for their other activities in conformity with the principles laid down by the International Red Cross Conferences, and when such activities are carried out in time of war the conditions of use must be such that the emblem cannot be considered as conferring the protection of the Convention: it shall be comparatively small in size and may not be placed on armlets or on the roofs of buildings.

International Red Cross organizations and their duly authorized personnel may use the emblem at all times.

And as an exceptional measure, with the express permission of a National Society, the emblem may be used in peacetime to identify ambulances and to mark aid stations giving free treatment.

Displaying it

Article 39: under the direction of the competent military authority, the emblem shall be displayed on the flags, armlets and on all equipment employed in the Medical Service.

Article 40: article 24, 26 and 27 personnel wear a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority, on the left arm, and carry a special identity card bearing the emblem, water-resistant, pocket-sized, in the national language, giving name, date of birth, rank and service number, stating the capacity entitling the bearer to protection, with a photograph and signature or fingerprints, embossed with the military authority's stamp. In no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet.

Article 41: article 25 auxiliary personnel wear a white armlet bearing in its centre the distinctive sign in miniature, and only while carrying out medical duties.

Article 42: the distinctive flag is hoisted only over such medical units and establishments as are entitled to be respected, and only with the consent of the military authorities. It may be accompanied by the national flag, except that units fallen into enemy hands shall not fly any flag other than that of the Convention. And parties must take steps, so far as military considerations permit, to make the emblems clearly visible to the enemy land, air or naval forces.

Article 43: neutral country medical units authorised under article 27 fly the flag of the Convention along with the national flag of the belligerent they serve, and may generally fly their own national flag.

Misuse

Article 44's first paragraph is the prohibition, and articles 53 and 54 supply the enforcement, which [The First Convention: Execution and Repression] takes.

Three kinds of misuse are distinguished in the literature and are worth naming.

Imitation, meaning the use of a sign that can be confused with the emblem, typically by commercial pharmacies and medical products.

Usurpation, meaning use by persons or bodies not entitled, including well-meaning use by civilian doctors and ambulances not authorised.

Perfidy, meaning use of the emblem to feign protected status in order to kill, injure or capture an adversary. That is the gravest, it is prohibited by article 37(1)(d) of Protocol I, and the perfidious use of the distinctive emblem of the red cross resulting in death or serious personal injury is a grave breach under article 85(3)(f) of Protocol I and a war crime under article 8(2)(b)(vii) of the Rome Statute.

Why any of this matters: the emblem protects only because it means exactly one thing. Every ordinary misuse erodes the recognition on which the protective use depends, which is why the Convention prohibits even harmless commercial imitation.

Worked example

A question asks about the distinctive emblems and their misuse, which is concept 1.22 in this book's contract.

Give the three emblems of article 38 and the origin of the cross as the reversed Swiss flag, stating expressly that it has no religious meaning.

Explain that the list was closed, give the Magen David Adom deadlock, and give Protocol III of 2005 with the red crystal and the 2006 admissions.

Then give the protective and indicative distinction with size and control, quoting article 44 on comparatively small in size and not on armlets or roofs.

Then give the three kinds of misuse and the criminal consequence of perfidious use.

Close with the reason, that the protective value of the emblem is entirely a function of its unambiguity.

What it does NOT mean

It does not mean the emblem confers protection. Protection comes from the Conventions; the emblem announces it. An unmarked medical unit is still protected, and a marked unit that is not entitled is not.

It does not mean the red cross is a Christian symbol. Article 38 records the actual origin.

And it does not mean the crystal replaced the other emblems. All four have equal status.

Quick revision

• Article 38: red cross on a white ground, the reversed Swiss federal colours, a compliment to Switzerland; plus red crescent and red lion and sun for countries already using them.
• Protocol III, 2005: the red crystal, a red square frame on a corner, free of national, religious or political meaning. Magen David Adom and the Palestine Red Crescent Society admitted 2006.
• Protective use: as large as possible, military authority's consent. Indicative use: comparatively small, not on armlets or on the roofs of buildings.
• Article 40: armlet on the left arm plus an identity card; personnel may in no circumstances be deprived of them.
• Article 41: auxiliary personnel, miniature sign, only while carrying out medical duties.
• Article 42: units in enemy hands fly no flag other than that of the Convention.
• Misuse: imitation, usurpation, perfidy. Perfidious use causing death or serious injury is a grave breach under article 85(3)(f) of Protocol I.

Test yourself

1. Why are there four emblems, and what problem did each later one solve? Article 38 of the First Convention retains the red cross on a white ground, formed by reversing the Swiss federal colours as a compliment to Switzerland, as the distinctive sign of the medical services, and recognises in addition the red crescent and the red lion and sun for those countries which were already using them in place of the cross. The crescent and the lion and sun exist because, despite the emblem's purely heraldic origin, it was read as a Christian symbol by States in which that association was unacceptable, and rather than lose the protection those States were permitted to substitute their own signs. The list was closed by the words already use, so no further emblem could be adopted under the 1949 text. That closure created a long deadlock, because Israel's national society used a red shield of David which was not recognised, and a society using an unrecognised emblem could not be admitted to the Movement. Additional Protocol III of 8 December 2005 resolved it by creating a fourth emblem, the red crystal, a red square frame standing on one of its corners on a white ground, chosen precisely because it carries no national, religious or political connotation, enjoying the same protection as the other three and permitting a National Society to place its own indicative sign inside it for indicative use. Magen David Adom and the Palestine Red Crescent Society were admitted to the Movement in June 2006.

2. Distinguish protective from indicative use of the emblem and explain how article 44 gives effect to the distinction. Protective use signifies that the person, unit, transport or building displaying the emblem is protected by the Conventions and must not be attacked. It is reserved to the medical services of the armed forces and to the personnel, units and material authorised under the Conventions, it requires the consent of the military authorities, and the emblem is displayed as large as possible so that it can be recognised at the greatest distance, on flags, on roofs and on armlets. Indicative use signifies only that the person or object belongs to the International Red Cross and Red Crescent Movement, carries no immunity from attack, and is governed by national legislation and by the rules of the Movement. Article 44 gives effect to the distinction by prohibiting all use of the emblem and of the words Red Cross or Geneva Cross except to indicate or protect the units, personnel and material protected by the Conventions, while permitting National Societies in time of peace to use the name and emblem for their other activities in conformity with the principles of the International Red Cross Conferences, and requiring that when such activities are carried on in time of war the conditions of use must be such that the emblem cannot be considered as conferring the protection of the Convention, being comparatively small in size and placed neither on armlets nor on the roofs of buildings.

3. What are the three forms of misuse of the emblem, and why does the Convention prohibit even the harmless kind? Imitation is the use of a sign which by its shape or colour may be confused with the emblem, typically by pharmacies, manufacturers of medical products and vehicle operators seeking to signal a medical connection. Usurpation is the use of the actual emblem by bodies or persons not entitled to it, which includes commercial exploitation and also the well intentioned use by civilian doctors, private ambulances and aid organisations which have not been authorised. Perfidy is the use of the emblem to feign protected status in order to kill, injure or capture an adversary; it is prohibited by article 37(1)(d) of Additional Protocol I, its perfidious use resulting in death or serious personal injury is a grave breach under article 85(3)(f) of that Protocol, and it is a war crime under article 8(2)(b)(vii) of the Rome Statute. The Convention prohibits even the harmless commercial imitation, at all times and irrespective of the date of adoption of the mark, because the emblem's protective value depends entirely on its being unambiguous. A soldier deciding in a few seconds whether a vehicle is protected must be able to treat the sign as meaning one thing only. Every ordinary appearance of a red cross on a chemist's window or a first aid kit weakens that recognition, so articles 53 and 54 require States to prohibit such use and to legislate for its repression at all times, in peace as in war.

Suppress the rest. Each party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches.

And a guarantee for the accused: in all circumstances they shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Third Convention.

The words regardless of their nationality are the foundation of universal jurisdiction over grave breaches, and [Universal Jurisdiction over Grave Breaches] takes the point in full.

No absolution: article 51

No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.

This article defeats the amnesty and the peace-treaty waiver. After the Second World War, waivers of claims in peace settlements had extinguished the position of victims; article 51 makes such a waiver ineffective as regards liability for grave breaches.

Read it with articles 6 and 7. No agreement may worsen the protected person's position; the protected person may not renounce; and no State may absolve itself or another of liability. The three together shut every route by which the obligations could be traded away.

Enquiry: article 52

At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation. Failing agreement on procedure, the Parties should agree on the choice of an umpire who will decide upon the procedure. Once a violation is established, the parties shall put an end to it and shall repress it with the least possible delay.

Article 52 has never once been used. It requires the agreement of the party accused, which is exactly the agreement that a party accused withholds. That failure is why the drafters of Protocol I created a standing body instead, which [The International Fact-Finding Commission] describes.

The emblem: articles 53 and 54

Article 53 prohibits at all times the use by individuals, societies, firms or companies of the emblem, of the designations Red Cross or Geneva Cross, or any sign or designation constituting an imitation thereof, whatever the object of the use and irrespective of the date of its adoption. It extends the prohibition to the arms of the Swiss Confederation and imitations of them, given the confusion that may arise from the reversed colours. A transitional period of not more than three years was allowed to prior users in States that had not been party to the 1929 Convention.

Article 54 then requires parties, if their legislation is not already adequate, to take the measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 53.

Article 54 is a peacetime legislative duty, and India discharged it in sections 12 and 13 of the Geneva Conventions Act 1960, which [The Geneva Conventions Act 1960: Procedure and the Emblem] examines.

Worked example

A question asks how the Geneva Conventions are enforced.

Say first that enforcement is the weakest part of the system, and then show what the Convention actually provides.

Give the peacetime duties: article 47 dissemination in peace as in war and in military and civil instruction, article 48 communication of translations and implementing laws, and article 54 legislation against emblem abuse.

Give the grave breaches regime: the four acts in article 50, and the four obligations in article 49, quoting regardless of their nationality.

Give article 51 and explain that it prevents the liability being waived away in a peace settlement.

Give article 52 and say plainly that it has never been used, and why: it requires the accused party's consent.

Then say what fills the gap: the ad hoc tribunals, the International Criminal Court, national universal jurisdiction prosecutions, and the ICRC's confidential bilateral method.

What it does NOT mean

It does not mean every violation is a grave breach. Only the four listed acts against protected persons or property are, and article 49's fourth paragraph deals with the rest by requiring suppression rather than penal sanction.

It does not mean a State may choose not to prosecute. The duty is to search and to bring before its own courts, or to hand over on a prima facie case; there is no third option of inaction.

And it does not mean the enquiry procedure is worthless as a text. It failed because of its consent requirement, which is the diagnosis Protocol I acted on.

Quick revision

• Article 45: commanders-in-chief ensure detailed execution and provide for unforeseen cases.
• Article 46: reprisals prohibited against the wounded, sick, personnel, buildings and equipment.
• Article 47: disseminate in time of peace as in time of war, in military and, if possible, civil instruction.
• Article 48: communicate official translations and implementing laws.
• Article 50, four grave breaches: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
• Article 49: enact, search, bring before its own courts regardless of their nationality or hand over on a prima facie case, and suppress all other breaches; trial safeguards not less favourable than article 105 of the Third Convention.
• Article 51: no party may absolve itself or any other of liability.
• Article 52: enquiry by agreement, with an umpire on procedure. Never used.
• Articles 53 and 54: prohibit misuse and imitation of the emblem and of the arms of the Swiss Confederation, and legislate for prevention and repression at all times.

Test yourself

1. Set out the grave breaches regime in articles 49 and 50 and identify what each element requires. Article 50 defines grave breaches as those involving any of four acts when committed against persons or property protected by the Convention: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. Two limits are built in: the victim or property must be protected by the Convention, and the fourth item carries its own necessity qualifier which the first three do not.

Article 49 then imposes four obligations. States undertake to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering grave breaches, which is a peacetime legislative duty that cannot be postponed until a conflict begins. Each State is under an obligation to search for persons alleged to have committed or ordered such breaches. Each shall bring such persons, regardless of their nationality, before its own courts, or may if it prefers hand them over for trial to another party which has made out a prima facie case, so the choice is between prosecuting and extraditing and never includes doing nothing. And each shall take measures necessary for the suppression of all acts contrary to the Convention other than grave breaches. The accused is guaranteed safeguards of proper trial and defence no less favourable than those in article 105 and following of the Third Convention.

2. What does article 51 prevent, and why was it thought necessary in 1949? Article 51 provides that no High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred in respect of grave breaches. It prevents the liability arising from grave breaches from being extinguished by agreement, whether by a State purporting to release itself, by two States agreeing to release each other, or by a peace settlement in which claims are waived. It was thought necessary because the practice of settling war claims by comprehensive waiver clauses in peace treaties was well established and had the effect of extinguishing the position of individual victims by an arrangement made between governments over their heads. The drafters had also seen the difficulty of pursuing responsibility once political settlement had been reached. Article 51 has to be read with articles 6 and 7, which respectively forbid special agreements that adversely affect protected persons and forbid protected persons from renouncing their rights. Taken together the three articles close every route by which the obligations could be bargained away: not by the States acting jointly, not by the individual acting alone, and not by a settlement purporting to wipe the slate clean. The article is also the textual foundation for the modern argument against blanket amnesties for grave breaches.

3. Why has the enquiry procedure in article 52 never been used, and what was done about the failure? Article 52 provides that at the request of a party to the conflict an enquiry shall be instituted, in a manner to be decided between the interested parties, concerning any alleged violation of the Convention, that failing agreement on procedure the parties should agree on the choice of an umpire to decide the procedure, and that once a violation is established the parties shall put an end to it and repress it with the least possible delay. The defect is structural. Every step requires the agreement of both parties, including the party against which the allegation is made, and a party accused of grave violations has no incentive to agree to the procedure by which they would be established, still less to agree on an umpire. The procedure therefore depends on precisely the cooperation whose absence gives rise to the need for it, and it has never been invoked. The drafters of Additional Protocol I responded by creating a standing body rather than an ad hoc one: article 90 establishes the International Fact Finding Commission, a permanent commission of fifteen members which came into existence once twenty States had accepted its competence. But the same consent problem was reproduced in a milder form, since the Commission's competence over a particular allegation depends on acceptance by the States concerned, and it has been able to conduct only one enquiry, in 2017, in relation to the Organization for Security and Co-operation in Europe mission in Ukraine.

The four cross-Convention links are worth memorising because examiners like them.

Article 20 of the First Convention: hospital ships shall not be attacked from the land.

Article 23 of the Second Convention: establishments ashore entitled to the protection of the First Convention shall be protected from bombardment or attack from the sea.

Article 20 of the Second Convention: if dead persons are landed, the First Convention applies to them.

Article 37 of the Second Convention: retained personnel are subject, on landing, to the provisions of the First Convention.

Together these four articles make the two Conventions a single scheme with a shoreline running through it, and they exist because a war fought partly at sea would otherwise contain a gap at the water's edge.

The three ways a person leaves the Convention's protection

A person protected at sea can pass into a different regime in three ways, and the Convention regulates each.

Into enemy hands. Article 16: subject to article 12, the wounded, sick and shipwrecked who fall into enemy hands shall be prisoners of war, and the captor may decide whether to hold them, convey them to a port of its own country, to a neutral port, or even to a port in enemy territory, in which case those returned home may not serve for the duration of the war.

Onto a neutral warship or aircraft. Article 15: it shall be ensured, where so required by international law, that they can take no further part in operations of war.

Into a neutral port. Article 17: persons landed in neutral ports with the consent of the local authorities shall be so guarded by the neutral Power that they cannot again take part in operations of war, with the cost of hospital accommodation and internment borne by the Power on which they depend.

The common thread is neutralisation rather than punishment. In every case the object is to remove the person from the conflict, not to detain them as an offender.

Worked example

An introduction to any question on the Second Convention, including her question 2.

Say why the sea required its own instrument, with the three environmental points, because that is the analytical opening and most answers begin with the history instead.

Give the lineage: Hague III of 1899, Hague X of 1907, and the Convention of 1949.

Note that articles 1 to 11 are common, and identify them, which shows the structure of the four Conventions is understood.

Then give the four cross-Convention links as evidence that the scheme is continuous across the shoreline.

Then go to the substance, which is [The Shipwrecked, and What Shipwreck Means] and [Hospital Ships].

What it does NOT mean

It does not mean the Second Convention regulates naval warfare. It protects the victims. Blockade, contraband, visit and search, and the targeting of warships are outside it, and Protocol I's article 49(3) preserves that position.

It does not mean civilians at sea are covered. The protected categories in article 13 are the same six as the First Convention's, and shipwrecked civilians are covered by the Fourth Convention and by Protocol I.

And it does not mean a hospital ship may not be inspected. Article 31 gives the parties an extensive right of control and search, examined in [Hospital Ships].

Quick revision

• Sixty-three articles, plus an annex containing an identity card.
• Lineage: Hague Convention III of 1899, Hague Convention X of 1907, Second Geneva Convention 1949.
• Articles 1 to 11 are the common general provisions; article 4 adds that forces put ashore come under the First Convention.
• Cross links: hospital ships not attacked from the land (First Convention article 20); shore establishments protected from bombardment or attack from the sea (article 23); dead landed fall under the First Convention (article 20); retained personnel on landing fall under the First Convention (article 37).
• Article 16: those falling into enemy hands shall be prisoners of war; those returned to their home country may not serve for the duration of the war.
• Article 15: taken aboard a neutral warship, they can take no further part in operations of war.
• Article 17: landed in a neutral port, guarded so they cannot again take part in operations of war, at their own Power's cost.

Test yourself

1. Why was a separate Convention necessary for war at sea? Because three features of the maritime environment make the land Convention unworkable there. First, the environment itself is lethal. A wounded soldier left on a battlefield may survive until collected, whereas a shipwrecked sailor in the water will drown or die of exposure within hours, so the obligation to search for and collect the victims is both more urgent and more directly connected to their survival, and its breach kills rather than merely neglecting. Second, there is no ground to hold and nothing fixed to protect. On land a medical unit occupies a position, can be marked, and can be respected where it stands; at sea protection must attach to a moving vessel which at any distance is indistinguishable from a warship except by its markings, which is why the Convention devotes fourteen articles to hospital ships, requires notification of their names and descriptions ten days in advance, and specifies the characteristics to be notified. Third, neutrals are physically present on the same sea and are often the first to reach survivors, which is why articles 21 and 25 provide for neutral merchant vessels responding to an appeal and for hospital ships of neutral societies, and why articles 15 and 17 regulate what happens when the rescued are taken aboard a neutral warship or landed in a neutral port.

2. What are the four provisions that join the First and Second Conventions across the shoreline, and why are they needed? Article 20 of the First Convention provides that hospital ships entitled to the protection of the Second Convention shall not be attacked from the land. Article 23 of the Second Convention provides that establishments ashore entitled to the protection of the First Convention shall be protected from bombardment or attack from the sea. Article 20 of the Second Convention provides that if dead persons are landed, the First Convention applies to them. Article 37 of the Second Convention provides that personnel retained at sea shall be subject, on landing, to the provisions of the First Convention. They are needed because the two Conventions define their scope by reference to a place rather than to a person, and a war fought partly at sea and partly on land would otherwise contain a gap exactly at the water's edge, in which a hospital ship could be fired on by a shore battery, a field hospital shelled by a cruiser, and a rescued sailor or a retained doctor fall out of protection at the moment of stepping ashore. Article 4 of the Second Convention completes the scheme by providing that in hostilities between land and naval forces the Convention applies only to forces on board ship, and that forces put ashore come immediately under the First Convention.

3. What are the three ways a person protected under the Second Convention can pass out of its regime, and what do they have in common? Falling into enemy hands, being taken aboard a neutral warship or military aircraft, and being landed in a neutral port. Article 16 provides that, subject to article 12, the wounded, sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war, and that the captor may decide according to circumstances whether it is expedient to hold them, to convey them to a port in the captor's own country, to a neutral port, or even to a port in enemy territory, in which last case prisoners so returned may not serve for the duration of the war. Article 15 provides that if such persons are taken on board a neutral warship or a neutral military aircraft, it shall be ensured, where so required by international law, that they can take no further part in operations of war. Article 17 provides that persons landed in neutral ports with the consent of the local authorities shall, failing contrary arrangements, be so guarded by the neutral Power that they cannot again take part in operations of war, with the costs of hospital accommodation and internment borne by the Power on which they depend. What the three have in common is that the object in each case is neutralisation rather than punishment: the law removes the person from the conflict and secures that they do not return to it, and detention follows only from that purpose.

Article 13: the same six categories

Identical to the First Convention's article 13, including the four conditions for militias and organised resistance movements, war correspondents and supply contractors accompanying the forces, members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft, and the levée en masse.

Category 5 does more work at sea than on land, because merchant seamen are constantly present in a naval war and are not combatants.

Article 14: surrender to a warship

All warships of a belligerent Party shall have the right to demand that the wounded, sick or shipwrecked on board military hospital ships, and hospital ships belonging to relief societies or to private individuals, as well as merchant vessels, yachts and other craft shall be surrendered, whatever their nationality, provided two conditions are met: that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities for necessary medical treatment.

This is a striking provision and it is often misread. The hospital ship itself cannot be captured; its patients can be demanded. The two conditions protect the patient, and the words whatever their nationality mean the warship may take off its own nationals and the enemy's alike.

Articles 15 to 17: neutrals and captors

Set out in [The Second Convention: War at Sea], and the three routes are article 16 into enemy hands as prisoners of war, article 15 aboard a neutral warship, and article 17 landed in a neutral port.

Article 18: search and collection

After each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.

Note the difference from the land article. The First Convention says at all times, and particularly after an engagement; the Second says after each engagement. The naval drafters were realistic about what is possible while an action is in progress.

And local arrangements are to be concluded whenever circumstances permit for the removal of the wounded and sick by sea from a besieged or encircled area and for the passage of medical and religious personnel and equipment.

Article 18 is the article that the practice of leaving survivors in the water violates, and the record of both world wars on that point is what makes the article necessary.

Article 19: identification

The same eight particulars as the First Convention's article 16, forwarded to the information bureau under article 122 of the Third Convention and transmitted through the Protecting Power and the Central Prisoners of War Agency, with one half of the double identity disc, or the identity disc itself if it is a single disc, wills, money and articles of value sent in sealed packets with a complete list of contents.

Article 20: burial at sea

Burial at sea of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made.

Where a double identity disc is used, one half should remain on the body. And if dead persons are landed, the First Convention applies.

The requirement of individual burial and prior examination is the maritime answer to the same concern that produces the Graves Registration Service on land: that a family should be able to learn what happened.

Article 21: neutral merchant vessels

Parties may appeal to the charity of commanders of neutral merchant vessels, yachts or other craft, to take on board and care for wounded, sick or shipwrecked persons, and to collect the dead.

Vessels responding to the appeal, and those having of their own accord collected such persons, shall enjoy special protection and facilities. They may in no case be captured on account of any such transport, though they remain liable to capture for any violations of neutrality committed.

Article 21 is the maritime counterpart of article 18 of the First Convention, and it carries the same principle: the law protects the rescuer, and rescue is never itself an unneutral act.

Worked example

Her question 2: the legal evolution of the protection of the shipwrecked at sea, and the humanization of welfare during maritime conflicts.

Take the evolution in four steps. The 1864 Convention protected the wounded on land only. Hague Convention III of 1899 adapted its principles to sea warfare. Hague Convention X of 1907 revised that adaptation and governed both world wars. The Second Convention of 1949 replaced it and, for the first time, made shipwrecked a protected category in its own right.

Then give the definition verbatim, and make the three points: any cause, aircraft included, and no injury required.

Then give the operative protections: article 12's humane treatment and triage rule, article 18's duty to search and collect after each engagement, article 21's protection of the neutral rescuer, and article 20's requirement of individual burial after examination.

Then answer the humanization half, using [The Humanization of Welfare in Maritime Conflict], and be honest that the law of naval warfare itself was not humanised to the same extent.

What it does NOT mean

It does not mean a shipwrecked person may not be captured. Article 16 makes them prisoners of war on falling into enemy hands.

It does not mean the cause of the shipwreck is legally irrelevant for every purpose. It is irrelevant to the person's protected status; whether the attack that caused it was lawful is a separate question under the law of naval warfare.

And it does not mean an uninjured survivor loses protection. Shipwreck is a condition independent of wounds or sickness.

Quick revision

• Article 12: shipwreck from any cause, including forced landings at sea by or from aircraft; respected and protected in all circumstances; only urgent medical reasons may set priority.
• Shipwreck needs no injury, and it ends when the condition ends.
• Article 13: the same six categories, including masters, pilots and apprentices of the merchant marine.
• Article 14: a warship may demand surrender of the wounded on hospital ships and other craft, whatever their nationality, if they are in a fit state to be moved and the warship can provide adequate facilities.
• Article 18: after each engagement, search and collect without delay.
• Article 19: eight particulars, the Central Prisoners of War Agency.
• Article 20: burial at sea individually as far as circumstances permit, after examination.
• Article 21: neutral rescuers may in no case be captured on account of any such transport.

Test yourself

1. Give the definition of shipwreck in article 12 and explain why each element of it matters. Article 12 provides that members of the armed forces and the other persons listed in article 13 who are at sea and who are wounded, sick or shipwrecked shall be respected and protected in all circumstances, it being understood that the term shipwreck means shipwreck from any cause and includes forced landings at sea by or from aircraft. Three elements matter. The words from any cause make the origin of the shipwreck legally irrelevant to the victim's status, so it is nothing to the point whether the vessel was sunk by enemy action, by a mine, by its own side, by weather or by accident, and no argument about causation can be used to withhold protection. The inclusion of forced landings at sea by or from aircraft closes a gap the 1907 Hague Convention could not have anticipated, and it covers both the crew of a ditched aircraft and a person who descends into the water by parachute, though a person descending by parachute from an aircraft in distress is separately protected by article 42 of Additional Protocol I. And the recognition of shipwreck as a category alongside wounded and sick means no injury or illness is required at all: a wholly uninjured sailor in the water is protected by reason of the situation he is in, which is the specifically maritime contribution of this Convention.

2. Explain article 14 and why it does not contradict the immunity of hospital ships. Article 14 provides that all warships of a belligerent party have the right to demand that the wounded, sick or shipwrecked on board military hospital ships, hospital ships belonging to relief societies or private individuals, and merchant vessels, yachts and other craft be surrendered, whatever their nationality, provided that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities for the necessary medical treatment. It does not contradict the immunity of hospital ships because the two provisions operate on different objects. Article 22 protects the ship: a military hospital ship may in no circumstances be attacked or captured, provided its name and description were notified ten days before employment. Article 14 concerns the persons on board, who are enemy nationals liable to become prisoners of war under article 16 and who do not acquire immunity from capture merely by being aboard a protected vessel. The two conditions are protective of the individual rather than of the ship: the person must be fit to be moved, so the transfer must not endanger them, and the warship must be able to provide the medical treatment they need, so the transfer must not deprive them of care. The words whatever their nationality mean the right extends to the warship's own nationals as well as the enemy's.

3. What does article 21 provide, and what principle does it share with article 18 of the First Convention? Article 21 permits the parties to the conflict to appeal to the charity of commanders of neutral merchant vessels, yachts or other craft to take on board and care for the wounded, sick or shipwrecked and to collect the dead. Vessels of any kind responding to such an appeal, and those which have of their own accord collected such persons, enjoy special protection and facilities to carry out the assistance, and may in no case be captured on account of any such transport, although in the absence of a promise to the contrary they remain liable to capture for any violations of neutrality they may have committed. The principle it shares with article 18 of the First Convention, which permits an appeal to the charity of the inhabitants and provides that no one may ever be molested or convicted for having nursed the wounded or sick, is that the law protects the rescuer. Rescue is never itself to be treated as a hostile or unneutral act, and no adverse legal consequence may attach to the humanitarian act itself. The point is practical as well as principled: at sea and on land alike, the great majority of those who reach a victim first are not part of any medical service, and a rule that exposed them to capture or prosecution would ensure that they did not act.

Article 27: coastal rescue craft. Small craft employed by the State or by officially recognized lifeboat institutions for coastal rescue operations shall also be respected and protected, so far as operational requirements permit, and the same applies so far as possible to fixed coastal installations used exclusively by them.

The qualification on article 27 is real. Coastal rescue craft receive a weaker protection than hospital ships, because they operate inshore where naval operations are dense.

Article 28: sick-bays in warships. Should fighting occur on board a warship, the sick-bays shall be respected and spared as far as possible. They remain subject to the laws of warfare but may not be diverted from their purpose so long as they are required for the wounded and sick, and the commander into whose power they fall may apply them to other purposes in case of urgent military necessity, after ensuring proper care of the wounded and sick in them.

Article 29 is short and important: Any hospital ship in a port which falls into the hands of the enemy shall be authorized to leave the said port.

The duties of a hospital ship: article 30

Four obligations, and a warning.

They shall afford relief and assistance to the wounded, sick and shipwrecked without distinction of nationality.

The High Contracting Parties undertake not to use these vessels for any military purpose.

Such vessels shall in no wise hamper the movements of the combatants.

And then the warning: During and after an engagement, they will act at their own risk.

That last sentence is the honest limit of the protection. A hospital ship that sails into an ongoing engagement to rescue survivors is not thereby made a target, but the law does not guarantee its safety in the middle of a battle.

Control and search: article 31

The parties have extensive rights over hospital ships, and this surprises candidates who expect immunity to mean immunity from interference.

They may control and search the vessels; refuse assistance from them; order them off; make them take a certain course; control the use of their wireless and other means of communication; and even detain them for a period not exceeding seven days from the time of interception, if the gravity of the circumstances so requires.

They may put a commissioner temporarily on board whose sole task is to see that orders are carried out, and shall so far as possible enter the orders given in the ship's log in a language he can understand. And parties may place neutral observers on board to verify observance of the Convention.

Article 32 provides that hospital ships are not classed as warships as regards their stay in a neutral port, so the neutrality rules limiting a warship's stay do not apply to them.

Loss of protection: articles 34 and 35

Article 34 repeats article 21 of the First Convention exactly. Protection shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy, and may cease only after due warning has been given, naming in all appropriate cases a reasonable time limit, and after such warning has remained unheeded.

And it adds one maritime prohibition: hospital ships may not possess or use a secret code for their wireless or other means of communication.

That clause caused real difficulty, because it deprives a hospital ship of encrypted communications that any modern vessel needs for safety. Article 22 of Additional Protocol I addressed the position of the wireless, and the practical modern view is that a hospital ship may use modern encrypted navigational and safety systems provided it transmits no information of military value.

Article 35 lists five conditions that do not deprive a ship of protection.

1. That the crews of ships or sick-bays are armed for the maintenance of order, for their own defence or that of the sick and wounded.
2. The presence on board of apparatus exclusively intended to facilitate navigation or communication.
3. The discovery on board of portable arms and ammunition taken from the wounded, sick and shipwrecked and not yet handed to the proper service.
4. That the humanitarian activities extend to the care of wounded, sick or shipwrecked civilians.
5. The transport of equipment and of personnel intended exclusively for medical duties, over and above the normal requirements.

Marking: article 43

All exterior surfaces shall be white, and one or more dark red crosses, as large as possible, shall be painted and displayed on each side of the hull and on the horizontal surfaces, placed for the greatest possible visibility from the sea and from the air.

All hospital ships shall make themselves known by hoisting their national flag, plus, if neutral, the flag of the party whose direction they have accepted, and a white flag with a red cross shall be flown at the mainmast as high as possible.

Lifeboats, coastal lifeboats and small craft are painted white with dark red crosses. Ships wishing to ensure protection by night and in times of reduced visibility must take the necessary measures to render their painting and emblems sufficiently apparent, subject to the assent of the party in whose power they are.

A hospital ship provisionally detained under article 31 must haul down the flag of the party in whose service it is. And parties shall at all times endeavour to conclude mutual agreements in order to use the most modern methods available to facilitate the identification of hospital ships.

Worked example

A question asks about the protection of hospital ships.

Give article 22 with both immunities, and stress that immunity from capture is what distinguishes a hospital ship from a land medical unit.

Give the notification requirement and the three particulars, because they are concrete and easy marks.

Then the extension to society, private, neutral and coastal craft, noting that article 27's protection is qualified by operational requirements.

Then the duties in article 30, including the crucial at their own risk clause.

Then article 31, to show that immunity does not mean freedom from interference: search, diversion, control of communications, and detention for up to seven days.

Then loss of protection under article 34 with the warning requirement, the secret code prohibition, and article 35's five preserved conditions.

Close with marking, and with the modern communications difficulty, which is a good discriminating point.

What it does NOT mean

It does not mean a hospital ship is free from control. Article 31 is extensive and includes detention for seven days.

It does not mean a converted merchant ship may revert. Article 33 forbids any other use for the duration of hostilities.

And it does not mean a hospital ship in an engagement is safe. Article 30 says in terms that during and after an engagement they act at their own risk.

Quick revision

• Article 22: may in no circumstances be attacked or captured; specially and solely equipped; notification ten days before employment with registered gross tonnage, the length from stem to stern and the number of masts and funnels.
• Articles 24, 25: society, private and neutral ships, on official commission and, if neutral, under a party's control with its own government's consent.
• Article 26: any tonnage; prefer over 2,000 tons gross for long distances.
• Article 27: coastal rescue craft, so far as operational requirements permit.
• Article 28: sick-bays respected and spared as far as possible; diversion only for urgent military necessity after care is ensured.
• Article 29: a hospital ship in a captured port shall be authorized to leave.
• Article 30: assistance without distinction of nationality; no military purpose; no hampering of combatants; during and after an engagement, they will act at their own risk.
• Article 31: control, search, refusal, diversion, control of wireless, detention for a period not exceeding seven days, a commissioner on board, neutral observers.
• Article 33: a transformed merchant vessel cannot be put to any other use for the duration.
• Article 34: loss only for acts harmful to the enemy after an unheeded warning; no secret code.
• Article 35: five preserved conditions.
• Article 43: all exterior surfaces white, dark red crosses as large as possible, white flag with a red cross at the mainmast.

Test yourself

1. What protection does article 22 confer, and what conditions attach to it? Article 22 provides that military hospital ships, meaning ships built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured but shall at all times be respected and protected. Two immunities are conferred rather than one. Immunity from attack corresponds to the protection given to a medical unit on land. Immunity from capture goes further than anything in the First Convention, where a captured field hospital passes into the captor's hands subject to the duty to devote its material to the wounded, and it exists because a captured hospital ship would simply stop performing its function. The condition is notification: the names and descriptions of the ships must have been notified to the parties to the conflict ten days before the ships are employed, and the characteristics notified must include registered gross tonnage, the length from stem to stern and the number of masts and funnels. The definition is strict in its own terms. The words specially and solely exclude a warship with a well equipped sick bay, and article 33 reinforces the point by providing that merchant vessels transformed into hospital ships cannot be put to any other use throughout the duration of hostilities, which prevents a party from converting a ship for a single protected voyage.

2. Reconcile the immunity of a hospital ship with the powers conferred by article 31. They are not in conflict because they address different risks. Immunity under article 22 protects the ship against being attacked or captured, that is against being destroyed or permanently taken. Article 31 addresses the belligerent's legitimate concern that a vessel enjoying that immunity might be used to gather intelligence, to carry combatants or materiel, or to interfere with naval operations, and it does so by conferring extensive powers of control short of capture. The parties may control and search the vessels, refuse their assistance, order them off, make them take a certain course, control the use of their wireless and other means of communication, and detain them for a period not exceeding seven days from the time of interception if the gravity of the circumstances so requires. A commissioner may be placed temporarily on board whose sole task is to see that such orders are carried out, the orders given should so far as possible be entered in the ship's log in a language the captain can understand, and neutral observers may be placed on board by agreement to verify observance of the Convention. Article 43 adds that a ship provisionally detained under article 31 must haul down the flag of the party in whose service it is. The scheme thus substitutes supervision for capture, which is what makes an unconditional immunity acceptable to belligerents.

3. How may a hospital ship lose its protection, and what difficulty does the prohibition of secret codes create? Article 34 reproduces the land rule exactly: protection shall not cease unless the ship is used to commit, outside its humanitarian duties, acts harmful to the enemy, and may cease only after due warning has been given, naming in all appropriate cases a reasonable time limit, and after that warning has remained unheeded. Article 35 then lists five conditions which do not deprive a ship of protection: that crews are armed for the maintenance of order, for their own defence or that of the sick and wounded; the presence of apparatus exclusively intended to facilitate navigation or communication; the discovery of portable arms and ammunition taken from the wounded and not yet handed in; the extension of humanitarian activities to civilian wounded, sick or shipwrecked; and the transport of equipment and personnel intended exclusively for medical duties over and above normal requirements.

Article 34 adds a specifically maritime prohibition: hospital ships may not possess or use a secret code for their wireless or other means of communication. The difficulty is that modern navigation and safety at sea depend on satellite systems and encrypted transmissions which every merchant vessel uses, so a literal application would leave a hospital ship less safe than an ordinary ship. Article 22 of Additional Protocol I addressed part of the problem, and the practical modern reading is that encrypted navigational and safety communications are permissible so long as no information of military value is transmitted, since the purpose of the prohibition is to prevent the ship being used as a means of military communication rather than to deny it the ability to navigate.

Article 39: medical aircraft. The same regime as article 36 of the First Convention. Protected while flying at heights, at times and on routes specifically agreed upon; marked with the emblem and national colours on lower, upper and lateral surfaces; overflight of enemy or enemy-occupied territory prohibited unless agreed; shall obey every summons to alight on land or water; and on an involuntary landing in enemy territory the wounded, sick and shipwrecked, as well as the crew of the aircraft shall be prisoners of war, with medical personnel treated under articles 36 and 37.

Article 40: neutral territory. Overflight of neutral Powers with previous notice, immunity only on agreed routes, heights and times, conditions applied equally to all parties, and wounded disembarked on neutral territory detained so that they cannot again take part in operations of war.

The emblem: articles 41 to 45

Article 41 repeats article 38 of the First Convention: the emblem of the red cross on a white ground shall be displayed on the flags, armlets and on all equipment employed in the Medical Service, with the red crescent and the red lion and sun recognised for countries already using them. [The Distinctive Emblem] covers this material for both Conventions.

Article 42 repeats the armlet and identity card provisions: a water-resistant armlet on the left arm, plus a special identity card bearing the emblem, water-resistant, pocket-sized, giving name, date of birth, rank and service number, stating the capacity entitling the bearer to protection, with photograph and signature or fingerprints and the military authority's stamp. In no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet.

Article 43: the marking of ships

This is the article without an equivalent on land, and it is worth learning in detail.

All exterior surfaces shall be white.

One or more dark red crosses, as large as possible, shall be painted and displayed on each side of the hull and on the horizontal surfaces, so placed as to afford the greatest possible visibility from the sea and from the air.

All hospital ships shall make themselves known by hoisting their national flag, and if neutral, the flag of the party whose direction they have accepted, and a white flag with a red cross shall be flown at the mainmast as high as possible.

Lifeboats, coastal lifeboats and all small craft used by the Medical Service are painted white with dark red crosses prominently displayed.

By night and in times of reduced visibility, ships wishing to ensure protection must, subject to the assent of the party in whose power they are, take the necessary measures to render their painting and distinctive emblems sufficiently apparent.

A hospital ship provisionally detained under article 31 must haul down the flag of the party in whose service it is.

Coastal lifeboats operating with the consent of an Occupying Power from an occupied base may be allowed, when away from base, to fly their own national colours along with a red cross flag, subject to prior notification to all parties.

And the forward-looking clause: parties shall at all times endeavour to conclude mutual agreements in order to use the most modern methods available to facilitate the identification of hospital ships.

That last sentence is the drafters admitting the limits of paint. A white hull with a red cross is invisible to radar and to a submarine's sonar, and the whole identification scheme assumes visual recognition at short range. Chapter III of Annex I to Additional Protocol I, on distinctive signals, is the successor to it, providing for a blue flashing light, radio signals and electronic identification.

Worked example

A question on the personnel and marking of hospital ships, or a short note on either.

Give article 36 first and stress its two unusual features, crew included and protection independent of patients on board, and give the functional reason.

Contrast article 37, where personnel from other vessels are respected, continue their duties, and are returned as soon as practicable, with landing preferred if they are retained.

Then give article 43's marking scheme in its detail, because it is specific, quotable and easy to score on.

Then make the analytical point about the limits of visual identification and the modern successor provisions on distinctive signals.

What it does NOT mean

It does not mean hospital ship personnel are free to act as they wish. They are subject to article 31's controls with the ship, including detention for up to seven days.

It does not mean the crew becomes protected on any ship. The immunity attaches to service on a hospital ship, and ends when that service ends.

And it does not mean the marking is optional. A vessel claiming article 22 protection must be marked and notified; the protection derives from the Convention but its practical enjoyment depends on being recognised.

Quick revision

• Article 36: hospital ship personnel and their crews may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on board.
• Article 37: personnel from other vessels respected, continue duties as long as necessary, sent back as soon as the Commander-in-Chief considers it practicable; retained personnel to be landed as early as possible and then governed by the First Convention.
• Article 38: chartered equipment ships, notified and approved; the adverse Power may board but not capture them or seize the equipment.
• Article 39: medical aircraft on agreed heights, times and routes; obey every summons to alight.
• Article 42: armlet and identity card; personnel may in no circumstances be deprived of them.
• Article 43: all exterior surfaces white; dark red crosses as large as possible on each side of the hull and on horizontal surfaces; national flag plus a white flag with a red cross at the mainmast as high as possible; detained ships haul down the party's flag; most modern methods available to be agreed.

Test yourself

1. Why is the protection of hospital ship personnel under article 36 stronger than the protection of medical personnel on land? Article 36 provides that the religious, medical and hospital personnel of hospital ships and their crews shall be respected and protected, and that they may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on board. Two features make it stronger than the land regime. First, the whole crew is covered, not merely those exclusively engaged in medical or administrative duties together with chaplains, which is the limit of article 24 of the First Convention. Engineers, deck hands and stewards on a hospital ship are immune from capture, whereas their equivalents supporting a field hospital are not. Second, the immunity does not depend on the presence of patients: the words whether or not there are wounded and sick on board make the ship's mission rather than its current occupancy the operative fact, so a hospital ship steaming empty to a rendezvous carries fully protected personnel. The reason for both is functional and follows from article 22. A hospital ship may in no circumstances be captured, and a ship without its crew cannot sail; capturing the crew would therefore achieve exactly what the prohibition on capturing the ship is designed to prevent. Land medical units require no comparable rule because they do not move.

2. Set out the marking scheme in article 43 and explain what it assumes. All exterior surfaces of a hospital ship shall be white, and one or more dark red crosses, as large as possible, shall be painted and displayed on each side of the hull and on the horizontal surfaces, placed so as to afford the greatest possible visibility from the sea and from the air. Every hospital ship shall make itself known by hoisting its national flag, and if it belongs to a neutral State also the flag of the party whose direction it has accepted, and a white flag with a red cross shall be flown at the mainmast as high as possible. Lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service are painted white with dark red crosses prominently displayed. Vessels wishing to ensure protection by night or in reduced visibility must, with the assent of the party in whose power they are, take the necessary measures to render their painting and emblems sufficiently apparent. A hospital ship provisionally detained under article 31 must haul down the flag of the party in whose service it is.

The scheme assumes visual recognition at short range in daylight. That assumption was already questionable in 1949 and is now plainly inadequate against radar, sonar and beyond visual range weapons, which is why the same article requires parties at all times to endeavour to agree on the most modern methods available for identification, and why Annex I to Additional Protocol I later provided for a blue flashing light, radio signals and electronic identification.

3. Compare article 37 of the Second Convention with article 28 of the First. Both deal with medical and religious personnel who come into enemy hands, and both refuse to treat them as ordinary prisoners of war, but the maritime article is shaped by the fact that a warship is not a place to keep anybody. Article 28 of the First Convention provides that permanent medical personnel and chaplains falling into enemy hands shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require, shall not be deemed prisoners of war, and shall continue to carry out their medical and spiritual duties for prisoners of war, with specified facilities including visits to prisoners outside the camp, a senior medical officer with direct access to the camp authorities, and exemption from non medical work.

Article 37 of the Second Convention provides that personnel assigned to the care of the persons designated in articles 12 and 13, if they fall into enemy hands, shall be respected and protected and may continue their duties as long as this is necessary for the care of the wounded and sick, and shall afterwards be sent back as soon as the Commander in Chief considers it practicable, taking their personal property with them. If retention proves necessary because of the needs of prisoners of war, everything possible shall be done for their earliest possible landing, and once landed they fall under the First Convention. The maritime rule therefore adds a bias towards early release and towards transferring the question ashore, which is the sensible response to holding non combatants on a fighting ship.

The word vessels is the addition. Hospital ships, coastal rescue craft and chartered medical transports are covered by name, which matters because a ship is a high-value target of a kind that has no land equivalent, and a reprisal against enemy shipping is a classical naval measure.

What the grave breaches regime looks like at sea

The four listed acts read differently against a maritime background, and it is worth spelling out.

Wilful killing covers firing on survivors in the water, which is the historic maritime atrocity and the reason article 18's duty to search and collect exists.

Torture or inhuman treatment covers the treatment of rescued personnel aboard the capturing vessel.

Wilfully causing great suffering or serious injury covers leaving survivors in the water where rescue was practicable, since a deliberate omission causing suffering is within the words.

Extensive destruction and appropriation of property covers the sinking of a hospital ship or the seizure of its equipment, both of which article 22 and article 38 forbid.

The gap this chapter has to name

Nothing in articles 46 to 53 supplies an enforcement mechanism that operates without the consent of the accused.

Article 53 requires agreement with the party alleged to have violated the Convention, which is the same defect as article 52 of the First Convention, and it has never been used.

What actually operates instead is set out in Module III: national prosecutions under universal jurisdiction, the international criminal tribunals and the International Criminal Court, and the ICRC's confidential representations. [Why Implementation Fails] assesses the record.

Worked example

A question asks whether the Second Convention adds anything to the enforcement machinery of the Conventions.

Answer directly: substantively, one word. The prohibition of reprisals in article 47 names vessels, which the land article could not.

Then set out the identical scheme, using the mapping table so that the answer covers both Conventions at once.

Then make the point that repetition is deliberate. The four Conventions were drafted as a single set with common general provisions and common execution provisions precisely so that a party's obligations do not vary with the theatre of operations, and a candidate who shows that the four are one scheme rather than four instruments is answering better than one who treats them separately.

Then apply the four grave breaches to maritime facts, which is where the marks are, and give firing on survivors as the paradigm.

Close with the enforcement gap and what fills it.

What it does NOT mean

It does not mean the Second Convention is merely a copy. Chapters II to VI, on the shipwrecked, hospital ships, personnel, transports and marking, are substantially different from the First Convention.

It does not mean naval commanders have separate obligations. Article 46 puts execution on Commanders-in-Chief exactly as on land.

And it does not mean a grave breach at sea requires a different analysis. The definition is identical; only the facts are maritime.

Quick revision

• Mapping: execution 46, reprisals 47, dissemination 48, communication 49, penal duties 50, grave breaches 51, no absolution 52, enquiry 53.
• Article 47 adds vessels: reprisals prohibited against the wounded, sick and shipwrecked, the personnel, the vessels or the equipment.
• Article 50: enact, search, try regardless of their nationality or hand over on a prima facie case, suppress the rest.
• Article 51: the same four grave breaches.
• Article 52: no party may absolve itself or any other of liability.
• Article 53: enquiry by agreement, umpire on procedure, never used.

Test yourself

1. What does the Second Convention add to the execution and repression scheme, and why is the rest identical? Substantively it adds one thing: article 47 prohibits reprisals against the wounded, sick and shipwrecked persons, the personnel, the vessels or the equipment protected by the Convention, and the word vessels has no land equivalent. That addition matters because a ship is a discrete, valuable and identifiable target of a kind a field hospital is not, and reprisal against enemy shipping is a classical measure of naval warfare, so the drafters were closing a route that would otherwise have been argued.

The rest is identical because the four Conventions of 1949 were drafted as one instrument in four parts. They share their general provisions in articles 1 to 11 and they share their execution and repression provisions, so that a State's obligations do not vary according to whether its forces are fighting on land or at sea. Article 46 places detailed execution on Commanders in Chief, article 48 requires dissemination in peace as in war including in military and if possible civil instruction, article 49 requires communication of official translations and implementing laws, article 50 imposes the duties to enact, to search, to bring before its own courts regardless of nationality or to hand over on a prima facie case, and to suppress other breaches, article 51 defines the four grave breaches in the same words, article 52 forbids absolution from liability, and article 53 provides the enquiry procedure.

2. Apply the four grave breaches to maritime facts. Wilful killing covers the deliberate killing of shipwrecked persons, of which the paradigm is firing on survivors in the water or on their lifeboats, an act which is the historic maritime atrocity and the reason article 18 imposes the duty to search for and collect the shipwrecked after each engagement. Torture or inhuman treatment, including biological experiments, covers the treatment of rescued or captured personnel aboard the capturing vessel and in the camps to which they are subsequently sent, and it applies from the moment of rescue because article 12 protects them in all circumstances.

Wilfully causing great suffering or serious injury to body or health covers the deliberate omission to rescue where rescue was practicable, since the words are wide enough to include an omission and article 18 supplies the underlying duty; it also covers conditions imposed on survivors aboard ship. Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly covers the sinking of a hospital ship, which article 22 protects absolutely from attack and capture, the seizure of the equipment of a chartered medical transport, which article 38 forbids, and the destruction of the equipment of a coastal rescue institution. In each case the victim or property must be shown to be protected by the Convention, so status is the first element of the analysis.

3. Why does the enquiry procedure in article 53 not work, and what operates in its place? Because every step of it requires the agreement of the party against which the allegation is made. Article 53 provides that at the request of a party to the conflict an enquiry shall be instituted in a manner to be decided between the interested parties, that failing agreement on procedure the parties should agree on the choice of an umpire to decide the procedure, and that once a violation is established the parties shall put an end to it and repress it with the least possible delay. A party accused of grave violations will not agree to the establishment of the enquiry, will not agree on an umpire, and will not agree on procedure, so the mechanism depends on precisely the cooperation whose absence created the need for it. It has never been used.

What operates instead is described in Module III. National courts exercising the jurisdiction that article 50 requires States to establish, including over foreign nationals, have tried a small number of cases. The ad hoc international tribunals for the former Yugoslavia and for Rwanda tried many more, and the International Criminal Court now has jurisdiction over war crimes under article 8 of the Rome Statute. The International Fact Finding Commission created by article 90 of Additional Protocol I is a standing body rather than an ad hoc one, though its competence also depends on acceptance. And the International Committee of the Red Cross operates continuously by confidential bilateral representation, which is not enforcement but is the only mechanism that functions during the fighting.

1977: Protocol I

Protocol I extends the protection beyond members of the armed forces. Part II covers the wounded, sick and shipwrecked whether military or civilian, which the Second Convention did not, and article 8(b) defines shipwrecked to include any person in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them, who refrains from any act of hostility.

Article 42 protects a person parachuting from an aircraft in distress, who shall not be made the object of attack during his descent, and who on reaching the ground in territory controlled by an adverse party shall be given an opportunity to surrender before being made the object of attack. Airborne troops are excluded.

And article 49(3) preserves the existing law of naval warfare, which is where the process stops.

What was humanised, and what was not

Set the two columns side by side, because that contrast is the answer to her question.

The submarine row is the sharpest. A submarine that surfaces to rescue survivors exposes itself and loses the advantage on which its survival depends, and the practice of both world wars reflected that. The law's answer, that the duty to search and collect is subject to what is possible, is honest but thin.

The three mechanisms that carried the change

Naming them shows the process rather than merely listing the treaties.

Reciprocity. Every naval power expects its own sailors to be in the water at some point, which made protection of the shipwrecked easy to agree in a way that protection of an insurgent was not.

Atrocity followed by codification. The 1949 revision follows the experience of unrestricted submarine warfare and of survivors left or fired on, exactly as the Fourth Convention follows the treatment of civilians.

Institutional advocacy. The ICRC drafted, convened and pressed, and the Second Convention like the others is substantially its product.

Worked example

Her question 2 in full: examine the legal evolution of the protection of shipwrecked members of armed forces at sea and the humanization of welfare during maritime conflicts.

Open by noting the University's wording. She prints welfare; the field says warfare; the substance is the same and you will use hers.

Then give the four steps with dates, 1864 excluding the sea, 1899 Hague III, 1907 Hague X, 1949 the Second Convention, and 1977 Protocol I extending it to civilians.

Then give the definition in article 12 verbatim, and make the three points about it: any cause, aircraft included, no injury required.

Then give the operative protections: article 12 humane treatment and the triage rule, article 13's six categories, article 14 on surrender to a warship, article 18's duty after each engagement, article 21's protection of the neutral rescuer, article 20 on burial, and the hospital ship regime in outline.

Then assess. Say what was humanised and what was not, using the two columns, and give the submarine as the illustration of why.

Close with the honest verdict. The victims of war at sea are now among the best protected persons in the law of armed conflict on paper, and the conduct that produces them is among the least regulated, which is the specifically maritime form of the general problem this paper studies.

What it does NOT mean

It does not mean naval warfare is lawless. Distinction, proportionality and precautions apply to attacks from the sea against objectives on land, and customary law governs much of the rest.

It does not mean the Second Convention protects civilians at sea. It protects the six categories in article 13; Protocol I extended the protection to civilians.

And it does not mean the process is complete. There is no modern treaty on naval warfare, and the most influential text is a manual adopted by experts rather than by States.

Quick revision

• 1864 land only; 1899 Hague III adapts Geneva to the sea; 1907 Hague X revises it and governs both world wars; 1949 Second Convention; 1977 Protocol I extends to civilians.
• Article 12: shipwreck from any cause, including forced landings at sea by or from aircraft.
• Article 18: after each engagement, search and collect without delay.
• Article 21: neutral rescuers may in no case be captured on account of any such transport.
• Protocol I article 8(b) defines shipwrecked to include any person in peril at sea who refrains from any act of hostility; article 42 protects a person parachuting from an aircraft in distress, excluding airborne troops.
• Article 49(3) of Protocol I preserves the law of naval warfare.
• Humanised: the victims. Not humanised: blockade, contraband, naval targeting, mines at sea.

Test yourself

1. Trace the legal evolution of the protection of the shipwrecked. The Geneva Convention of 1864 protected only the wounded of armies in the field, so the victims of naval battle were owed nothing by treaty; an attempt in 1868 to extend it to maritime warfare produced articles that were never ratified. The First Hague Peace Conference of 1899 adopted Convention III, which adapted the principles of the 1864 Convention to maritime warfare, recognised hospital ships and exempted them from capture, and required respect for the wounded and sick at sea. The Second Hague Peace Conference of 1907 replaced it with Convention X, which governed both world wars and failed in two respects: it did not recognise the shipwrecked as a protected category distinct from the wounded and sick, and it contained no machinery of enforcement.

The Second Geneva Convention of 1949 made the decisive change by protecting the wounded, sick and shipwrecked alike, and by defining shipwreck inside article 12 as shipwreck from any cause, including forced landings at sea by or from aircraft, so that neither the cause nor the presence of injury is relevant to status. It added an express duty in article 18 to search for and collect the shipwrecked after each engagement without delay, fourteen articles on hospital ships, and the whole grave breaches regime. Additional Protocol I of 1977 completed the extension by covering civilians as well as members of the armed forces, defining the shipwrecked in article 8(b) as any person in peril at sea who refrains from any act of hostility, and protecting in article 42 a person parachuting from an aircraft in distress.

2. What was humanised in maritime conflict, and what was not? What was humanised is the law about the victims. The shipwrecked went from having no status to being a protected category defined by situation rather than injury. Hospital ships went from a courtesy recognised in 1899 to an immunity from attack and from capture, supported by notification, marking, a rule on loss of protection requiring a warning with a reasonable time limit, and a list of conditions that do not remove protection. The duty to search for and collect survivors went from custom to treaty obligation. The rescuer was protected: a neutral merchant vessel responding to an appeal may in no case be captured on account of the transport. And identification, burial at sea after examination, and the transmission of effects to families were regulated in detail.

What was not humanised is the law about naval operations. Blockade remains substantially uncodified. Contraband, visit and search, and the treatment of neutral and enemy merchant shipping rest on custom and on nineteenth century practice. Mines at sea are still governed by Hague Convention VIII of 1907. Article 49(3) of Additional Protocol I expressly preserves that position by providing that the Protocol does not otherwise affect the rules applicable to armed conflict at sea. The sharpest illustration is the submarine, whose survival depends on remaining submerged and which therefore cannot in practice discharge the duty to surface and rescue, a conflict the law resolves only by qualifying the duty with what is possible.

3. Why did the law about victims at sea develop faster than the law about naval operations? Three mechanisms explain it, and they are the same three that explain the general pattern in this subject. The first is reciprocity. Every naval power expects that its own sailors will at some point be in the water in enemy reach, so an obligation to rescue and to treat survivors humanely costs nothing that is not repaid, whereas a restriction on blockade or on the targeting of merchant shipping bears asymmetrically on the power with the stronger fleet and is resisted accordingly.

The second is that codification follows atrocity. The 1949 revision was drafted with the experience of unrestricted submarine warfare and of survivors left in the water or fired upon immediately behind it, in the same way as the Fourth Convention was drafted with the treatment of civilians behind it, so the law grew where the failure had been most visible. The third is institutional advocacy. The International Committee of the Red Cross drafted, convened and pressed for the protective instruments, and there is no comparable institution with an interest in codifying the law of naval operations, which is why the most influential modern statement of that law is a manual adopted by a group of experts rather than a treaty adopted by States.

The four conditions, and where they come from

They are the Hague Regulations' conditions of 1899 and 1907, carried into the Convention unchanged, and they represent the bargain the law makes with irregular forces: distinguish yourself from the civilian population and obey the law, and you get the status.

Category 1 does not carry them expressly, which is the point most often missed. Members of the regular armed forces are prisoners of war by virtue of membership, and the conditions are presumed to be met by the organisation of a regular army rather than tested individually.

Category 6, the levée en masse, dispenses with two of them. No command structure and no distinctive sign are required; only open carriage of arms and respect for the laws and customs of war.

Article 4B: two extensions

Persons belonging or having belonged to the armed forces of an occupied country, if the occupying Power considers it necessary to intern them by reason of that allegiance, even though it had originally liberated them.

Persons in the listed categories received by neutral or non-belligerent Powers and interned by them under international law, with certain articles excepted.

Article 4C preserves the position of medical personnel and chaplains under article 33, who are retained rather than made prisoners of war.

Article 5: duration, and the doubt rule

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

And the second paragraph is the most litigated sentence in the Convention.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Three things follow.

The presumption is in favour of the status. Doubt operates for the prisoner, not against.

The determination must be by a tribunal, not by the captor's executive decision. The Convention does not define competent tribunal, but the requirement is of a body applying a procedure, and a commander's assertion is not enough.

And protection continues until the determination is made. A person held while their status is disputed is entitled to prisoner of war treatment throughout.

Article 45 of Additional Protocol I strengthens this. A person taking part in hostilities and falling into enemy hands is presumed a prisoner of war if he claims the status, or appears entitled to it, or the party on whom he depends claims it for him, and if any doubt arises he retains the status until determined by a competent tribunal. It adds that a person not entitled to prisoner of war status shall have the right at all times to the protection of Article 75.

So there is no gap. A person who fails article 4 is not outside the law; they fall into the residual protection of article 75, which [Article 75, and the Fundamental Guarantees] sets out.

What Protocol I changed for guerrillas

Article 44(3) of Protocol I relaxed the distinctive sign requirement for situations where, owing to the nature of the hostilities, an armed combatant cannot so distinguish himself. In such situations he retains the status provided he carries his arms openly during each military engagement, and during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack.

This was one of the most contested provisions of the Protocol and is among the reasons several States have not ratified it. A candidate should state the rule and note that its customary status is disputed.

Articles 6 to 11

Article 6 permits special agreements but forbids any that adversely affect the situation of prisoners of war or restrict their rights.

Article 7: prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them.

Articles 8 to 11 are the Protecting Power machinery, identical to the First Convention's, and treated in [Protecting Powers, and Their Substitutes]. Articles 1, 2 and 3 are the common articles.

Worked example

Her question 1's second half, or her short note at question 7(a).

Open with why status matters, and give combatant immunity in one sentence, because it explains the stakes.

Then give the six categories, and the four conditions verbatim.

Then make the two structural points: that category 1 does not carry the conditions expressly, and that category 6 dispenses with two of them.

Then give article 5's doubt rule verbatim, and article 45 of Protocol I with the article 75 fallback.

Then note article 44(3) and say that it is contested.

Close with articles 6 and 7, which make the resulting rights unbargainable, and then turn to treatment, which is [The General Protection of Prisoners of War].

What it does NOT mean

It does not mean a prisoner of war can never be prosecuted. They may be tried for war crimes and for ordinary offences committed before or during captivity; what they may not be tried for is lawful participation in hostilities.

It does not mean a person outside article 4 has no rights. Article 75 of Protocol I, common article 3 and, where applicable, the Fourth Convention protect them.

And it does not mean the captor decides status. Article 5 requires a competent tribunal.

Quick revision

• Article 4A, six categories: armed forces; other militias and organized resistance movements on four conditions; regular forces of an unrecognised authority; persons who accompany the armed forces; merchant marine and civil aircraft crews; levée en masse.
• Four conditions: commanded by a person responsible for his subordinates; a fixed distinctive sign recognizable at a distance; carrying arms openly; conducting their operations in accordance with the laws and customs of war.
• Article 4B: forces of an occupied country re-interned; persons interned by neutrals.
• Article 5: protection from the time they fall into the power of the enemy and until their final release and repatriation; doubt resolved in favour of status until determined by a competent tribunal.
• Protocol I article 45: presumption of status, and the right at all times to the protection of Article 75 if the status is denied.
• Protocol I article 44(3): arms carried openly during each military engagement and during visible deployment preceding an attack. Contested.
• Articles 6 and 7: no adverse special agreement, no renunciation.

Test yourself

1. Why does prisoner of war status matter so much, and what turns on article 4? Because the status carries combatant immunity. A person entitled to it may not be prosecuted by the captor for lawful acts of war, so killing enemy soldiers, destroying military objectives and participating in hostilities are not offences for which they can be tried. The same acts committed by a person not entitled to the status are ordinary crimes under the captor's domestic law, prosecutable as murder, attempted murder and criminal damage, and punishable accordingly. Everything therefore turns on whether the person falls within one of the six categories of article 4A.

The stakes explain why the four conditions attached to the second category have been fought over for a century. They require command by a person responsible for subordinates, a fixed distinctive sign recognisable at a distance, the open carrying of arms, and the conduct of operations in accordance with the laws and customs of war. They come from the Hague Regulations and they express a bargain: an irregular force that distinguishes itself from the civilian population and obeys the law receives the status; one that hides among civilians does not. Two features of the scheme are frequently missed. Category 1, members of the armed forces, does not carry the conditions expressly, since membership of a regular force is treated as satisfying them. And category 6, the levée en masse, requires only open carriage of arms and respect for the laws and customs of war, dispensing with command structure and distinctive sign because there has been no time to form either.

2. State the rule in article 5 and explain its three consequences. Article 5 provides that the Convention applies to the persons referred to in article 4 from the time they fall into the power of the enemy until their final release and repatriation, and that should any doubt arise as to whether persons who have committed a belligerent act and fallen into enemy hands belong to any of the article 4 categories, such persons shall enjoy the protection of the Convention until such time as their status has been determined by a competent tribunal.

Three consequences follow. First, the presumption runs in favour of the status, so doubt operates for the captured person and not for the captor, which reverses what a detaining authority would otherwise be inclined to do. Second, the determination must be made by a competent tribunal, that is by a body applying a procedure, and not by the assertion of the capturing commander or by an executive designation, so a blanket declaration that a class of detainees is outside the Convention does not comply with the article. Third, protection continues throughout, so a person whose status is disputed must be treated as a prisoner of war for as long as the dispute lasts. Article 45 of Additional Protocol I strengthens all three and adds that a person finally held not to be entitled to prisoner of war status has the right at all times to the protection of article 75, so no one falls outside the law altogether.

3. What did article 44(3) of Protocol I change, and why is it controversial? Article 44(3) addresses the guerrilla who cannot comply with the requirement of a fixed distinctive sign recognisable at a distance without being immediately identified and destroyed. It reaffirms the general obligation of combatants to distinguish themselves from the civilian population while engaged in an attack or in a military operation preparatory to an attack, but then provides that recognising that there are situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant cannot so distinguish himself, he shall retain his status as a combatant provided that he carries his arms 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.

It is controversial for two reasons. Substantively, it lowers the threshold that article 4A(2) sets, replacing a continuous obligation to wear a distinctive sign with an obligation to carry arms openly at two defined moments, and States with counter insurgency experience regard that as removing the protection that the rule of distinction gives to civilians. Textually, the phrase military deployment preceding the launching of an attack was left undefined, and States made divergent interpretive declarations on ratification about how much of the approach it covers. Several major military powers have not ratified the Protocol, and article 44(3) is among the reasons commonly given. A candidate should state the rule accurately and add that its customary status is disputed rather than presenting it as settled law.

Insults and public curiosity is a single protected interest, and it covers the parading of prisoners, their photographing and filming for propaganda, and the broadcasting of their images and statements. The Convention treats humiliation as an injury, not merely as bad taste, and the rule is engaged by modern practice whenever captured personnel appear in released footage.

Article 14: persons and honour

Prisoners of war are entitled in all circumstances to respect for their persons and their honour.

Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men.

And the civil capacity rule: prisoners shall retain the full civil capacity which they enjoyed at the time of their capture, and the Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires.

Article 14's third paragraph matters practically. A prisoner remains able to marry, to make a will, to hold and dispose of property, to bring or defend proceedings, and to exercise parental rights, subject only to what captivity actually requires. Captivity is not civil death.

Article 15: maintenance

The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health.

Free of charge is the operative phrase, and it means the Detaining Power cannot charge the prisoner, cannot deduct the cost from the prisoner's pay or account, and cannot make maintenance conditional on work.

Article 16: equality

Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.

Note the structure. The article opens by preserving the distinctions the Convention itself permits, which are rank, sex, health, age and professional qualification, and then prohibits every other adverse distinction. This is the same technique as article 12 of the First Convention: permitted differentiations are named, and the residue is prohibited.

How this material appears in her paper

Question 1 asks for the specific facilities provided for the protection of prisoners of war under the Geneva Convention. Articles 12 to 16 are the general foundation on which those facilities rest, and an answer that begins with them and then goes to the specific chapters on quarters, food, work, money, correspondence and penal procedure is answering the question as asked.

Question 7(a) is a short note on prisoners of war, for which articles 12 to 16 plus article 4 and article 118 make a complete answer.

Worked example

A question asks what general protections a prisoner of war enjoys.

Give article 12's opening sentence verbatim, and explain the three things it does.

Then the transfer rule with its three stages: only to a party willing and able, responsibility passes with custody, and the duty to correct or request return with such requests must be complied with.

Then article 13's four limbs: humane treatment at all times, the prohibition of acts and omissions endangering health, the prohibition of mutilation and experiments, and protection against insults and public curiosity, plus the prohibition of reprisals.

Then article 14 on persons, honour, women and civil capacity, and article 15 on free maintenance.

Close with article 16's structure, permitted distinctions named and all others prohibited.

What it does NOT mean

It does not mean prisoners may not be interned. Article 21 permits internment; what is prohibited is close confinement except as the Convention allows.

It does not mean all prisoners are treated identically. Rank, sex, age, health and professional qualification are expressly preserved as grounds of differentiation.

And it does not mean a transferring Power is discharged by the transfer. Its residual duty to correct or recall survives.

Quick revision

• Article 12: in the hands of the enemy Power, but not of the individuals or military units who have captured them; transfer only to a party willing and able to apply the Convention; the transferor must take effective measures to correct the situation or shall request the return, and such requests must be complied with.
• Article 13: must at all times be humanely treated; no act or omission causing death or seriously endangering the health; no physical mutilation or medical or scientific experiments; protection against acts of violence or intimidation and against insults and public curiosity; measures of reprisal prohibited.
• Article 14: respect for their persons and their honour; women as favourable as that granted to men; full civil capacity retained except so far as captivity requires.
• Article 15: maintenance and medical attention free of charge.
• Article 16: all treated alike, subject to rank and sex, and to state of health, age or professional qualifications.

Test yourself

1. Explain the significance of the opening sentence of article 12 and of the transfer rule that follows it. The opening sentence provides that prisoners of war are in the hands of the enemy Power but not of the individuals or military units who have captured them, and that irrespective of individual responsibilities the Detaining Power is responsible for the treatment given them. It fixes responsibility on the State rather than on the capturing soldiers, which means that a State cannot answer an allegation of mistreatment by disowning the conduct of a unit. It removes any notion that prisoners belong to their captors and may be disposed of, ransomed or dealt with locally. And by the words irrespective of the individual responsibilities that may exist it preserves the criminal liability of the individual perpetrator alongside the responsibility of the State, so the two run together rather than one excluding the other.

The transfer rule then operates in three stages. Prisoners may be transferred only to a Power which is a party to the Convention, and only after the transferring Power has satisfied itself of that Power's willingness and ability to apply it, which is a duty of prior inquiry. On transfer, responsibility for application passes to the receiving Power while the prisoners are in its custody. But if the receiving Power fails to carry out the Convention in any important respect, the transferring Power, on being notified by the Protecting Power, shall take effective measures to correct the situation or shall request the return of the prisoners, and such requests must be complied with. The transferring State is therefore never wholly discharged, and the article is a stronger protection than the modern rule against transfer to a risk of ill treatment because it imposes an affirmative duty to take the prisoners back.

2. What does article 13 protect against insults and public curiosity, and why is the provision important today? Article 13 requires that prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. The phrase treats humiliation and exposure as an injury to the prisoner rather than as a matter of taste, and it covers the parading of prisoners before crowds, their display to the press, the photographing and filming of identifiable prisoners, and the broadcasting of images or of statements extracted from them. The rule is anchored in the same idea as article 14, that prisoners are entitled in all circumstances to respect for their persons and their honour.

Its importance today is greater than in 1949 because the means of exposure are greater. Footage of captured personnel is routinely released by belligerents and circulated instantly, sometimes with the prisoner speaking under conditions that cannot be assessed, and each such release is capable of violating the article. The ICRC's consistent position is that images allowing individual identification should not be transmitted, and that statements by prisoners obtained in captivity engage both this article and the prohibition of coercion in article 17. A candidate should also note the connection to article 17's rule that prisoners who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment, since a filmed interrogation combines both breaches.

3. What does article 14 mean by full civil capacity, and what limit does it place on the Detaining Power? Article 14 provides that prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture, and that the Detaining Power may not restrict the exercise, either within or without its own territory, of the rights which that capacity confers except in so far as the captivity requires. Civil capacity means the legal ability to hold and exercise private rights: to own, acquire and dispose of property, to make a will, to marry, to exercise parental authority, to enter into contracts, and to bring or defend legal proceedings. The article makes clear that captivity is not civil death, which was the position of a captured enemy under older law and remained a live question in 1949.

The limit on the Detaining Power is expressed in the words except in so far as the captivity requires, which is a test of necessity and not of convenience. Physical presence at a marriage, personal attendance at a hearing or the free management of a business may genuinely be impossible for a person held in a camp, and to that extent the exercise of the right may be restricted. What the Detaining Power may not do is suspend the capacity itself, treat contracts made by prisoners as void, refuse to permit the execution of documents, or bar proceedings brought outside its own territory. The Convention supports the guarantee elsewhere by requiring facilities for legal documents in the correspondence and relief articles, so that the capacity preserved by article 14 can actually be exercised from inside a camp.

At no time should prisoners of war be without identity documents, and the Detaining Power must supply them to prisoners who have none.

Badges of rank and nationality, decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war.

Money and valuables

Sums of money may not be taken away except by order of an officer, and only after the amount and the owner's particulars have been recorded in a special register and an itemized receipt given, legibly inscribed with the name, rank and unit of the person issuing it.

Sums in the Detaining Power's currency, or converted at the prisoner's request, go to the credit of the prisoner's account under article 64.

Articles of value may be withdrawn only for reasons of security, under the same recorded procedure, and objects and foreign currency shall be returned in their initial shape to prisoners of war at the end of their captivity.

The procedural detail is the protection. A register, a receipt naming the officer, and a duty of return in the original form are what convert a prohibition on pillage into something a prisoner can enforce afterwards.

Article 19: evacuation

Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.

Only those who, owing to wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept back in a danger zone.

Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.

Article 20: the conditions of evacuation

Evacuation shall always be effected humanely and in conditions similar to those for the forces of the Detaining Power in their changes of station.

The Detaining Power shall supply prisoners with sufficient food and potable water, and with the necessary clothing and medical attention, and shall take all suitable precautions to ensure their safety during evacuation.

And a list of the evacuated prisoners must be established as soon as possible.

If prisoners must pass through transit camps during evacuation, their stay there shall be as brief as possible.

Why this material is examined

It is the beginning of captivity, and it is where the worst treatment historically occurs. The period between capture and arrival at a camp is the period of least supervision, the highest emotion and the greatest intelligence value, and articles 17 to 20 are addressed to exactly that period.

Article 17 is also the provision most often argued about in public, because interrogation of prisoners is where the pressure to depart from the law is strongest, and its language admits of no exception.

Worked example

A question on the treatment of prisoners at capture, or the first part of a broader question on facilities for prisoners of war.

Give the four particulars and the sanction for refusal, noting that the sanction is a restriction of privileges only.

Then give the prohibition in article 17 in both its sentences, and stress that the second is what closes the gap left by the first.

Then article 18's property scheme, and make the point that the register and the receipt are the mechanism, not decoration.

Then articles 19 and 20 on evacuation, with the exception for those who would be endangered by the journey.

Close by saying why this stage matters, which is the analytical point that lifts an answer above a list.

What it does NOT mean

It does not mean a prisoner may not be questioned. It means questioning must be without coercion, in a language they understand, and that silence carries no adverse consequence.

It does not mean nothing may be taken. Arms, horses, military equipment and military documents may be taken, and money and valuables may be impounded under the recorded procedure.

And it does not mean evacuation is always immediate. The wounded may be kept back where evacuation would endanger them.

Quick revision

• Article 17: surname, first names and rank, date of birth, and army, regimental, personal or serial number. Refusal costs only a restriction of the privileges accorded to his rank or status.
• Identity card shown on demand but may in no case be taken away from him; 6.5 by 10 cm, in duplicate.
• No physical or mental torture, nor any other form of coercion, to secure information of any kind whatever; those who refuse may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
• Questioning in a language which they understand.
• Article 18: personal effects retained except arms, horses, military equipment and military documents; badges of rank and nationality, decorations and articles having above all a personal or sentimental value may not be taken; money only by order of an officer, with a special register and an itemized receipt; valuables returned in their initial shape.
• Article 19: evacuate as soon as possible out of the danger zone; keep back only those endangered by the journey.
• Article 20: humane evacuation, food, water, clothing and medical attention, and a list of the evacuated.

Test yourself

1. What is a prisoner of war obliged to disclose, and what may the captor do if he says nothing more? Article 17 provides that every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this equivalent information. Four particulars are owed and nothing beyond them. The purpose is identification, which is what the Convention needs in order to notify the Power on which the prisoner depends, to record him with the Information Bureau and the Central Agency, and to inform his family. The only consequence of wilfully infringing the rule, that is of refusing to give even those four particulars, is that the prisoner may render himself liable to a restriction of the privileges accorded to his rank or status, which is a withdrawal of privilege and not a punishment.

If the prisoner declines to say anything further, the captor may do nothing at all. Article 17 provides that no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever, and that prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. The first sentence forbids coercion applied to extract information; the second forbids the imposition of any disadvantage in response to silence, which is what a detaining authority would otherwise use as a substitute. Together they leave no lawful means of compulsion. There is no exception for urgency, for the value of the information, or for pressure falling short of torture, and the phrases of any kind whatever and of any kind were chosen to exclude precisely those arguments.

2. How does article 18 protect a prisoner's property, and what makes the protection effective? Article 18 provides that all effects and articles of personal use, except arms, horses, military equipment and military documents, shall remain in the possession of prisoners of war, together with their metal helmets, gas masks and like articles issued for personal protection, and effects and articles used for clothing or feeding even if they belong to regulation military equipment. It requires that prisoners never be without identity documents and that the Detaining Power supply them where none exist. And it provides that badges of rank and nationality, decorations and articles having above all a personal or sentimental value may not be taken at all, which places medals, insignia and family items beyond the reach of any procedure.

What makes the protection effective is procedural. Sums of money may not be taken away except by order of an officer, and only after the amount and the particulars of the owner have been recorded in a special register and an itemised receipt has been given, legibly inscribed with the name, rank and unit of the person issuing it. Sums in the Detaining Power's currency, or converted at the prisoner's request, are credited to his account under article 64. Articles of value may be withdrawn only for reasons of security, under the same procedure, and such objects together with foreign currency are kept in the custody of the Detaining Power and returned in their initial shape at the end of captivity. A register, a named officer, a receipt and a duty of return in the original form convert a prohibition on pillage into an obligation that can be tested afterwards, which is the difference between a rule and a hope.

3. Why do articles 19 and 20 concentrate on the period immediately after capture? Because that period is the most dangerous one for a prisoner, for three reasons. It is the period of least supervision: there is no camp commander, no posted copy of the Convention, no prisoners' representative, no Protecting Power delegate and no ICRC visit, so none of the safeguards the Convention builds into camp life is yet operating. It is the period of highest emotion, immediately after fighting in which the captors may have taken casualties from the very men now in their hands. And it is the period of greatest intelligence value, when the pressure to interrogate by whatever means is at its strongest.

Articles 19 and 20 respond directly. Prisoners are to be evacuated as soon as possible after capture to camps situated far enough from the combat zone to be out of danger, and only those who would run greater risks from the journey than from remaining, by reason of wounds or sickness, may be temporarily kept back. They are not to be unnecessarily exposed to danger while awaiting evacuation. Evacuation is to be effected humanely and in conditions similar to those under which the Detaining Power moves its own forces, with sufficient food and potable water, necessary clothing and medical attention, and suitable precautions for safety. A list of the evacuated must be established as soon as possible, which is the first step by which a prisoner becomes visible to the Information Bureau, and any stay in a transit camp is to be as brief as possible.

Article 23: safety and marking

No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.

That second limb is the prohibition of using prisoners as human shields, and it predates the equivalent provision for civilians in article 51(7) of Protocol I.

Shelters: prisoners shall have shelters against air bombardment and other hazards to the same extent as the local civilian population, and may enter them as soon as possible after the alarm, except those engaged in protecting their quarters. Any other protective measure taken in favour of the population shall also apply to them.

Location information: Detaining Powers shall give the Powers concerned, through the Protecting Powers, all useful information regarding the geographical location of prisoner of war camps.

Marking: whenever military considerations permit, camps shall be indicated in the day-time by the letters PW or PG, placed so as to be clearly visible from the air. Other systems may be agreed. Only prisoner of war camps shall be marked as such.

Article 24 applies the same conditions to transit or screening camps of a permanent kind.

Quarters: article 25

Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area.

The comparator is the standard. The Convention does not specify square metres; it ties the prisoner's conditions to the captor's own troops in the same area, which is a self-adjusting standard that no State can claim to be unable to meet.

Conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health, and the rule applies in particular to dormitories as regards both total surface and minimum cubic space, and the general installations, bedding and blankets.

Premises shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out, with all precautions against fire.

Separate dormitories shall be provided for women prisoners of war in any camp accommodating both.

Food: article 26

The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies.

Account shall also be taken of the habitual diet of the prisoners, which covers religious and cultural dietary requirements as well as what the prisoners are used to eating.

Working prisoners receive additional rations as the labour requires. Sufficient drinking water shall be supplied. The use of tobacco shall be permitted.

Prisoners shall as far as possible be associated with the preparation of their meals, may be employed in the kitchens, and shall be given the means of preparing additional food in their possession. Adequate premises shall be provided for messing.

And the closing prohibition: Collective disciplinary measures affecting food are prohibited.

That sentence forbids the oldest camp punishment there is, and it is absolute. Food may not be reduced as a disciplinary measure against a group, whatever the provocation.

Clothing: article 27

Clothing, underwear and footwear shall be supplied in sufficient quantities, with allowance for the climate. Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the climate, be made available to clothe prisoners of war.

Regular replacement and repair shall be assured, and working prisoners receive appropriate clothing where the nature of the work demands it.

Article 28 requires canteens to be installed in all camps, where prisoners may procure foodstuffs, soap, tobacco and ordinary articles at prices not in excess of local market prices, with profits used for the benefit of the prisoners and a special fund created for that purpose.

Worked example

Her question 1's second half asks about the specific facilities provided for the protection of Prisoners of War under the Geneva Convention, and this is the material she means by facilities.

Organise by chapter rather than by article number. Internment and safety, then quarters, food and clothing, then hygiene and medical attention, then religion and recreation, then discipline and rank.

Give the comparator standard for quarters, because it shows how the Convention makes its requirements enforceable without specifying figures.

Give the marking rule with PW or PG, which is concrete and memorable.

Give the two absolute prohibitions in this block: no use as human shields in article 23, and no collective disciplinary measures affecting food in article 26.

Then continue into the following chapters, which [Hygiene, Medical Attention, Religion and Recreation] and the chapters after it supply.

What it does NOT mean

It does not mean a prisoner may not be confined. Internment is expressly permitted; close confinement is what is restricted.

It does not mean camps must always be marked. Marking is required whenever military considerations permit.

And it does not mean the food standard is fixed. It is a standard of sufficiency measured by health, weight and nutritional deficiency, adjusted for habitual diet and for work.

Quick revision

• Article 21: internment permitted; close confinement only under the penal provisions or where necessary to safeguard their health; no prisoner shall be compelled to accept liberty on parole.
• Article 22: only in premises located on land; not in penitentiaries save in the prisoners' own interest; removal from injurious climates; assembly by nationality, language and customs.
• Article 23: never exposed to the fire of the combat zone; presence not used to render certain points or areas immune; shelters to the same extent as the local civilian population; camps marked PW or PG clearly visible from the air.
• Article 25: quarters as favourable as those for the forces of the Detaining Power billeted in the same area; separate dormitories for women.
• Article 26: rations sufficient to prevent loss of weight or the development of nutritional deficiencies; habitual diet considered; tobacco permitted; collective disciplinary measures affecting food are prohibited.
• Article 27: clothing supplied and replaced; captured enemy uniforms may be used.
• Article 28: canteens at local prices, profits to the prisoners' benefit.

Test yourself

1. Distinguish internment from close confinement, and explain when each is permitted. Internment is the ordinary condition of a prisoner of war. Article 21 provides that the Detaining Power may subject prisoners of war to internment and may impose on them the obligation not to leave the camp beyond certain limits or, where the camp is fenced, not to go outside its perimeter. It is a measure of security, justified by the fact that the prisoner would otherwise return to the fighting, and it carries no punitive character. That is why the Convention's standards for quarters, food, clothing, hygiene, recreation and pay are framed by reference to the Detaining Power's own soldiers rather than to its prisons.

Close confinement is different in kind and is prohibited except on two grounds. The first is under the Convention's own penal and disciplinary provisions, which regulate confinement as a disciplinary punishment and as pre trial detention and which impose limits on its duration and conditions. The second is where confinement is necessary to safeguard the prisoner's health, and then only during the continuation of the circumstances which make it necessary, which covers medical isolation for contagious disease and comparable situations. Outside those two grounds a prisoner may not be held in close confinement at all, which means that solitary confinement as a routine security measure, as an interrogation technique, or as an administrative convenience is a violation. Article 22 reinforces the point by prohibiting internment in penitentiaries except in particular cases justified by the interest of the prisoners themselves.

2. How does the Convention set the standard for quarters and food, and why is the technique effective? For quarters, article 25 provides that prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area, with allowance for the habits and customs of the prisoners and in no case prejudicial to their health, and it applies the standard in particular to dormitories as regards total surface and minimum cubic space, and to general installations, bedding and blankets. Premises must be entirely protected from dampness and adequately heated and lighted, particularly between dusk and lights out, with precautions against fire, and separate dormitories are required where women are accommodated.

For food, article 26 sets an outcome standard rather than a comparator: rations must be sufficient in quantity, quality and variety to keep prisoners in good health and to prevent loss of weight or the development of nutritional deficiencies, with account taken of the habitual diet of the prisoners, additional rations for those who work, sufficient drinking water, permission to use tobacco, association of prisoners with the preparation of meals, and adequate messing premises. The techniques are effective for the same reason. Neither depends on a figure that a State can say it cannot afford or that becomes obsolete. The quarters standard is self adjusting, because a Power that houses its own troops adequately must house its prisoners equally, and a Power whose troops are poorly housed is measured against its own practice. The food standard is measured by observable results, weight loss and nutritional deficiency, which can be verified on a camp visit.

3. What does article 23 prohibit, and how does it relate to the later rule on human shields? Article 23 contains two prohibitions in its first sentence. No prisoner of war may at any time be sent to, or detained in, areas where he may be exposed to the fire of the combat zone; and his presence may not be used to render certain points or areas immune from military operations. The first protects the prisoner from the ordinary dangers of the front, and is reinforced by article 19's requirement of evacuation to camps far enough from the combat zone to be out of danger. The second prohibits using prisoners as human shields, and it does so in 1949, well before any equivalent rule existed for civilians.

The relationship to the later rule is one of extension. Article 51(7) of Additional Protocol I of 1977 prohibits the use of the presence or movements of the civilian population or individual civilians to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attack, and article 51(8) provides that violation of that prohibition does not release the adverse party from its own obligations, including precautions. The same structure applies to prisoners: a Detaining Power that places a camp beside an ammunition depot violates article 23, and the attacker is not thereby licensed to disregard proportionality and precautions in respect of the camp. Article 23 also supports the protection with practical measures, requiring shelters to the same extent as for the local civilian population, communication of the geographical location of camps through the Protecting Powers, and marking with the letters PW or PG clearly visible from the air whenever military considerations permit, with the proviso that only prisoner of war camps shall be so marked.

They continue to be prisoners of war, but receive the same treatment as corresponding retained medical personnel and shall be exempted from any other work under Article 49.

Retained personnel: article 33

Members of the medical personnel and chaplains retained to assist prisoners of war shall not be considered as prisoners of war. They receive as a minimum the benefits and protection of the Convention, and all facilities necessary to provide for the medical care of, and religious ministration to prisoners of war.

They continue to exercise their medical and spiritual functions, preferably for the forces on which they depend, within the Detaining Power's military laws and regulations and under the control of its competent services, in accordance with their professional etiquette.

Article 33 is the Third Convention's counterpart to article 28 of the First, and the two must be read together.

Religion: articles 34 to 37

Article 34: prisoners shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition of compliance with the disciplinary routine, and adequate premises shall be provided where religious services may be held.

Article 35: chaplains retained to assist prisoners shall be allowed to minister to them and to exercise freely their ministry amongst prisoners of war of the same religion, in accordance with their religious conscience. They are allocated among camps and labour detachments containing prisoners of the same forces, language or religion, enjoy the necessary facilities including transport for visiting the prisoners of war outside their camp, and are free to correspond, subject to censorship, on matters concerning their religious duties with the ecclesiastical authorities.

Article 36: prisoners who are ministers of religion without having officiated as chaplains shall be at liberty, whatever their denomination, to minister freely to the members of their community, receive the same treatment as retained chaplains, and shall not be obliged to do any other work.

Article 37: where prisoners have no retained chaplain and no prisoner minister of their faith, a minister belonging to the prisoners' or a similar denomination, or in his absence a qualified layman, shall be appointed at the request of the prisoners concerned, subject to the approval of the Detaining Power, with the agreement of the community of prisoners and where necessary the approval of the local religious authorities.

The three articles form a descending scale. A retained chaplain first; failing that a prisoner who is a minister; failing that an appointed minister or a qualified layman. The Convention takes real trouble to ensure that no group of prisoners is left without religious ministry.

Recreation: article 38

While respecting the individual preferences of every prisoner, the Detaining Power shall encourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners, and shall provide adequate premises and necessary equipment.

Prisoners shall have opportunities for taking physical exercise, including sports and games, and for being out of doors, with sufficient open spaces provided for this purpose in all camps.

The rationale is stated in article 49 rather than here: labour is permitted with a view particularly to maintaining them in a good state of physical and mental health. The Convention treats mental deterioration in captivity as an injury the Detaining Power must work against.

Worked example

A question on the facilities provided for prisoners of war, or a short note on their conditions of internment.

Group the material into four heads: hygiene, medical care, religion, and mental and physical activity.

Under medical care, give article 31's monthly inspection with the recorded weight, and explain why it matters. That single observation is worth more than a list of the other provisions.

Under religion, give the descending scale in articles 35 to 37, which shows the Convention's method: a primary rule, a substitute, and a substitute for the substitute.

Under activity, connect article 38 to article 49's purpose clause, physical and mental health, which is the analytical link.

What it does NOT mean

It does not mean prisoners choose their own doctors. Article 30 expresses a preference for medical personnel of their own Power and nationality, not a right.

It does not mean religious practice is unregulated. Article 34 conditions it on compliance with the camp's disciplinary routine.

And it does not mean a qualified prisoner may be made to do any medical work. Article 32 confines it to work in the interests of prisoners dependent on the same Power.

Quick revision

• Article 29: sanitary measures to prevent epidemics; conveniences day and night; separate conveniences for women; sufficient water and soap.
• Article 30: an adequate infirmary; isolation wards; admission to any medical unit even if their repatriation is contemplated in the near future; special facilities for the disabled, in particular the blind.
• Article 31: inspection at least once a month, including the checking and the recording of the weight of each prisoner of war; tuberculosis, malaria and venereal disease.
• Article 32: medically qualified prisoners may be required to serve prisoners of the same Power; exempted from any other work.
• Article 33: retained medical personnel and chaplains shall not be considered as prisoners of war.
• Article 34: complete latitude in the exercise of their religious duties; adequate premises.
• Articles 35 to 37: retained chaplain, then a prisoner minister, then a qualified layman.
• Article 38: intellectual, educational and recreational pursuits; sufficient open spaces in all camps.

Test yourself

1. Why is the monthly medical inspection in article 31 more important than its length suggests? Because it makes the Convention's food obligation verifiable. Article 26 requires that basic daily rations be sufficient in quantity, quality and variety to keep prisoners in good health and to prevent loss of weight or the development of nutritional deficiencies, but a standard of that kind is easy to assert compliance with and hard to test from outside, since a Detaining Power can always produce a ration scale on paper. Article 31 requires medical inspections at least once a month and requires that they include the checking and the recording of the weight of each prisoner of war.

A recorded series of weights is objective, individual and cumulative. A Protecting Power delegate or an ICRC visitor examining the camp records can see at once whether prisoners are losing weight, and can see it for named individuals over successive months, without any argument about calorific tables or about what a prisoner ought to weigh. The article adds that the inspections shall have particular regard to the general state of health, nutrition and cleanliness of prisoners and to the detection of contagious disease, naming tuberculosis, malaria and venereal disease, and directing the use of the most efficient methods available, giving as an example periodic mass miniature radiography for the early detection of tuberculosis. The technique the article uses, converting a substantive standard into a recorded measurement, is the same technique article 18 uses for money and article 65 uses for accounts, and it is what distinguishes an enforceable obligation from a pious one.

2. How does the Convention ensure that prisoners have access to religious ministry? By a descending scale of three provisions, so that the failure of one does not leave a group of prisoners unserved. Article 34 states the underlying entitlement: prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities, and adequate premises shall be provided where religious services may be held. Article 33 then provides that chaplains retained to assist prisoners are not to be considered prisoners of war and must be granted the facilities necessary for religious ministration.

Article 35 governs the first case, the retained chaplain, who is to be allowed to minister freely to prisoners of the same religion in accordance with his religious conscience, to be allocated among camps and labour detachments containing prisoners of the same forces, language or religion, to be given the facilities including transport necessary to visit prisoners outside his camp, and to correspond subject to censorship with the ecclesiastical authorities. Article 36 governs the second case, a prisoner who is a minister of religion but never officiated as a chaplain, who is at liberty whatever his denomination to minister to members of his community, receives the treatment of a retained chaplain, and shall not be obliged to do any other work. Article 37 governs the third, where neither exists: a minister of the prisoners' or a similar denomination, or in his absence a qualified layman, is to be appointed at the prisoners' request, subject to the approval of the Detaining Power and with the agreement of the community of prisoners.

3. What is the purpose of article 38, and how does it connect with the rest of the Convention? Article 38 requires the Detaining Power, while respecting the individual preferences of every prisoner, to encourage the practice of intellectual, educational and recreational pursuits, sports and games among prisoners, and to provide adequate premises and necessary equipment for them. It requires opportunities for physical exercise including sports and games, and for being out of doors, and requires sufficient open spaces to be provided in all camps. On its face it is a provision about leisure. Its purpose is health, and specifically mental health.

The connection is made explicit elsewhere. Article 49 permits the Detaining Power to use the labour of physically fit prisoners, taking account of age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good state of physical and mental health, which states the same rationale for work that article 38 states for recreation. Article 30 requires isolation wards to be set aside where necessary for cases of contagious or mental disease, which recognises that captivity produces psychiatric casualties. Article 71 requires that prisoners be allowed to send and receive letters and cards, and article 72 that they receive relief shipments including books and study material. Read together, these provisions treat the deterioration of a prisoner over a long captivity as a foreseeable injury which the Detaining Power is obliged to work against, rather than as a natural consequence of confinement for which nobody is answerable.

Article 42: escape and the use of weapons

The use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances.

Two rules in one sentence. Firing on prisoners is an extreme measure, which means a last resort and not a routine response. And it must always be preceded by warnings appropriate to the circumstances.

The article is to be read with articles 91 to 94 on escape, which provide that escape is not an offence attracting judicial punishment, that a prisoner who escapes successfully and is recaptured later is not liable to punishment for the earlier escape, and that unsuccessful escape attracts only disciplinary punishment. [Disciplinary Sanctions] takes those articles.

The scheme is coherent. Escape is treated as a natural act of a soldier rather than as a crime, so the response to it is graduated and firing is the last step.

Rank: articles 43 to 45

Article 43: on the outbreak of hostilities the parties shall communicate to one another the titles and ranks of all the persons mentioned in Article 4, in order to ensure equality of treatment between prisoners of equivalent rank, with similar communications for ranks subsequently created. The Detaining Power shall recognize promotions in rank duly notified by the Power on which the prisoners depend.

Article 44: Officers and prisoners of equivalent status shall be treated with the regard due to their rank and age. Other ranks of the same armed forces, so far as possible speaking the same language, shall be assigned in sufficient numbers to serve in officers' camps, and such orderlies shall not be required to perform any other work. Supervision of the mess by the officers themselves shall be facilitated.

Article 45: prisoners other than officers shall be treated with the regard due to their rank and age, and supervision of the mess by the prisoners themselves shall be facilitated.

Rank distinctions are preserved deliberately. Article 16 permits them expressly, article 49 exempts officers from compulsory labour, and article 60 pays by rank. The Convention treats a prisoner as a member of an armed force whose internal structure survives capture.

Transfer between camps: articles 46 to 48

Article 46: in deciding on transfer the Detaining Power shall take into account the interests of the prisoners themselves, more especially so as not to increase the difficulty of their repatriation. Transfer shall be effected humanely and in conditions not less favourable than those under which the forces of the Detaining Power are transferred, with account taken of the climatic conditions to which the prisoners are accustomed, and shall in no case be prejudicial to their health. Sufficient food, drinking water, clothing, shelter and medical attention must be supplied.

Article 47: Sick or wounded prisoners of war shall not be transferred as long as their recovery may be endangered by the journey, unless their safety imperatively demands it. If the combat zone draws closer to a camp, prisoners shall not be transferred unless their transfer can be carried out in adequate conditions of safety, or unless they are exposed to greater risks by remaining on the spot.

Article 48: prisoners shall be officially advised of their departure and of their new postal address, in time to pack their luggage and inform their next of kin. They may take their personal effects and correspondence and parcels addressed to them.

Article 48's postal address requirement is not administrative detail. A prisoner whose family loses track of him is a prisoner nobody can ask after, and the Convention's whole information system depends on the chain of notification being unbroken.

Worked example

A question on camp administration and discipline, or on how the Convention seeks to secure its own observance inside a camp.

Give article 39 first, and stress that it identifies a person: a regular commissioned officer, holding the text, responsible for its application.

Then article 41, and make the point that posting the Convention in the prisoners' own language is what makes the internal complaint machinery in article 78 usable.

Then article 42 with the escape articles, and explain the coherence of treating escape as a soldier's duty rather than a crime.

Then rank in articles 43 to 45, connecting to article 16's permitted distinctions, article 49's exemption of officers and article 60's pay scale.

Close with transfer, and note article 46's instruction not to increase the difficulty of repatriation.

What it does NOT mean

It does not mean prisoners may never be fired on. Article 42 makes it an extreme measure preceded by warnings, not an absolute prohibition.

It does not mean rank confers better food or quarters. It confers regard due to rank, exemption of officers from compulsory work, orderlies in officers' camps, and a higher rate of advance of pay.

And it does not mean a camp commander bears sole responsibility. He is responsible under the direction of his government, and article 12 fixes responsibility on the Detaining Power.

Quick revision

• Article 39: camp under a responsible commissioned officer belonging to the regular armed forces, who shall have in his possession a copy of the present Convention and shall ensure the staff and guard know it.
• Saluting: all but officers salute all officers; officers salute higher ranks and the camp commander regardless of his rank.
• Article 40: badges of rank and nationality, as well as of decorations permitted.
• Article 41: the Convention posted, in the prisoners' own language, in places where all may read them; every individual order in a language which they understand.
• Article 42: weapons against escapers are an extreme measure, always preceded by warnings appropriate to the circumstances.
• Article 43: ranks communicated at the outbreak; promotions recognized.
• Article 44: orderlies for officers' camps shall not be required to perform any other work.
• Article 46: transfer not to increase the difficulty of their repatriation; conditions not less favourable than for the Detaining Power's own forces.
• Article 47: no transfer of the sick where recovery may be endangered, unless their safety imperatively demands it.
• Article 48: notice of departure and of their new postal address.

Test yourself

1. What does article 39 require, and why does identifying a single officer matter? Article 39 requires that every prisoner of war camp be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power, that such officer have in his possession a copy of the Convention, that he ensure that its provisions are known to the camp staff and the guard, and that he be responsible, under the direction of his government, for its application. Four distinct requirements are packed into one paragraph: a named individual, drawn from the regular forces rather than from a militia or a security service, in personal possession of the text, and personally charged both with disseminating it internally and with applying it.

Identifying a single officer matters for three reasons. It creates a person to whom the prisoners' representative under article 79, the Protecting Power delegate under article 126 and the ICRC can address themselves, which is what makes the Convention's supervisory machinery operable at camp level. It removes the defence of diffused responsibility, since a failure of camp conditions is attributable to a person whose duty it was and who cannot say the matter belonged to somebody else. And it supplies the factual foundation for command responsibility, since an officer who holds the text, is required to know it, and is required to make it known cannot claim ignorance of the standard he is accused of failing to enforce. The requirement that the officer be of the regular armed forces also prevents camps being handed to bodies outside the ordinary military chain of discipline.

2. Why does article 41 require the Convention to be posted in the prisoners' own language? Because the Convention's internal safeguards depend on the prisoners knowing what they are entitled to. Article 41 requires that the text of the Convention, its annexes, and the contents of any special agreement under article 6 be posted in every camp, in the prisoners' own language, in places where all may read them, with copies supplied on request to prisoners who cannot reach the posted copy. It requires that regulations, orders, notices and publications relating to the conduct of prisoners be issued in a language they understand and posted in the same way, with copies handed to the prisoners' representative, and that every order or command addressed to a prisoner individually likewise be given in a language he understands.

The provision is the hinge between the Convention's substantive rules and its enforcement. Article 78 gives prisoners the right to make known to the military authorities their requests regarding conditions of captivity, and an unlimited right of complaint to the representatives of the Protecting Powers. Article 79 provides for a prisoners' representative to act for them. Article 126 gives Protecting Power and ICRC delegates access to camps and the right to interview prisoners without witnesses. None of that machinery works if the prisoners do not know the standard against which conditions are to be measured. A prisoner who has read article 26 can complain about rations by reference to it; a prisoner who has read article 31 can ask why he has not been weighed. Posting the text converts the Convention from an instrument between governments into something the protected persons can invoke themselves.

3. How does the Convention treat escape, and is the treatment coherent? It treats escape as a natural act of a soldier rather than as a crime, and the treatment is coherent across several articles. Article 42 provides that the use of weapons against prisoners of war, especially against those escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances, so lethal force is the last resort and never the first response. Articles 91 to 94 complete the scheme. A prisoner whose escape is successful, meaning that he has rejoined his own or an allied force, left the territory of the Detaining Power, or reached a neutral ship, is not liable to punishment for the escape if he is recaptured later. A prisoner recaptured before the escape is successful is liable only to disciplinary punishment for it, not to judicial punishment, and even repeated escapes attract only disciplinary sanction.

Offences committed in the course of an escape with the sole intention of facilitating it, and which do not entail violence against life or limb, such as offences against public property, theft without intention of self enrichment, the drawing up or use of false papers, or the wearing of civilian clothing, attract only disciplinary punishment. Prisoners who aid or abet an escape are likewise liable only to disciplinary punishment. And article 92 provides that a prisoner recaptured shall be handed over without delay to the competent military authority, and that notwithstanding article 88 he may be subjected to special surveillance which must not affect his state of health and must not deprive him of any of the safeguards of the Convention. The coherence lies in the premise: a soldier in captivity retains a duty to his own force, so escape is expected, and the law regulates the response to it rather than criminalising it.

Prisoners shall receive training and be provided with the means of protection suitable to the work, similar to those accorded to nationals, and subject to article 52 may be submitted to the normal risks run by these civilian workers.

Conditions of labour shall in no case be rendered more arduous by disciplinary measures.

Article 51 is the domestic labour law of the Detaining Power made applicable to prisoners, which is a more effective technique than writing a labour code into a treaty, because it is enforced by existing inspectors and known to existing employers.

Article 52: prohibited work

Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature.

No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Power's own forces.

The removal of mines or similar devices shall be considered as dangerous labour.

The mine clearance sentence exists because of what happened after 1945, when prisoners were used in large numbers to clear minefields and were killed doing it. The Convention did not prohibit it outright; it required a volunteer.

Article 52's second paragraph uses the same comparator technique as article 25 and article 51. What counts as humiliating is measured by the Detaining Power's own view of its own soldiers, which removes the argument that the work is normal for the prisoners' country.

Article 53: hours and rest

The duration of the daily labour, including the time of the journey to and fro, shall not be excessive, and must in no case exceed that permitted for civilian workers in the district, being nationals of the Detaining Power employed on the same work.

A rest of not less than one hour in the middle of the day's work, longer if that is what the Detaining Power's own workers get.

A rest of twenty-four consecutive hours every week, preferably on Sunday or the day of rest in their country of origin.

And every prisoner who has worked for one year shall be granted a rest of eight consecutive days, during which his working pay shall be paid him.

Where piece work is used, the length of the working period shall not be rendered excessive thereby.

Articles 54 to 57: pay, fitness, detachments and private employers

Article 54: working pay is fixed under article 62. Prisoners who sustain accidents in connection with work, or who contract a disease in the course, or in consequence of their work, shall receive all the care their condition may require, and the Detaining Power shall deliver a medical certificate enabling them to submit their claims to the Power on which they depend, with a duplicate to the Central Prisoners of War Agency.

Article 55: fitness for work verified by medical examinations at least once a month, with particular regard to the nature of the work. A prisoner who considers himself incapable of working shall be permitted to appear before the medical authorities of his camp, and physicians may recommend exemption.

Article 56: labour detachments are organised like camps, remain under the control of and administratively part of a prisoner of war camp, and the camp commander is responsible for the Convention's observance in them. He shall keep an up-to-date record of the labour detachments and communicate it to delegates of the Protecting Power, of the ICRC or of other agencies giving relief to prisoners of war, who may visit the camp.

Article 57: prisoners working for private persons, even if the latter are responsible for guarding and protecting them, shall not receive treatment inferior to the Convention's. The Detaining Power, the military authorities and the commander of the camp shall be entirely responsible for the maintenance, care, treatment, and payment of such prisoners, who shall have the right to remain in communication with the prisoners' representatives.

Article 57 is the anti-outsourcing article. Handing prisoners to a private employer transfers none of the responsibility, which is a rule modern practice on contractors has had to relearn.

Worked example

A question on prisoner of war labour, or as part of an answer on facilities and treatment.

Give the rank rule first, because it is clean and scores: officers may in no circumstances be compelled, non-commissioned officers only supervisory work, other ranks may be compelled.

Then the six classes with their exclusions, quoting no military character or purpose.

Then the three comparator standards: conditions not inferior to the Detaining Power's own nationals in similar work, hours not exceeding those of civilian workers in the district, and nothing humiliating for a member of the Detaining Power's own forces.

Then article 52's prohibitions and the express classification of mine removal as dangerous labour.

Then the rest entitlements, one hour at midday, twenty-four consecutive hours weekly, and eight consecutive days after a year with pay.

Close with article 57, that private employment transfers no responsibility.

What it does NOT mean

It does not mean prisoners may not do dangerous work at all. They may volunteer, and mine clearance is expressly classified as dangerous rather than prohibited.

It does not mean all camp work is compulsory work. Work connected with camp administration, installation or maintenance sits outside the six classes and is separately permitted.

And it does not mean an officer may not work. He may ask for work and it shall be found so far as possible; what is prohibited is compulsion.

Quick revision

• Article 49: labour of the physically fit, with a view to maintaining them in a good state of physical and mental health; officers may in no circumstances be compelled to work; NCOs only supervisory work.
• Article 50, six classes: agriculture; raw materials and manufacturing except metallurgical, machinery and chemical industries, and public works of no military character or purpose; non-military transport and stores; commercial business, arts and crafts; domestic service; non-military public utilities.
• Article 51: conditions not inferior to those enjoyed by nationals of the Detaining Power employed in similar work; the Detaining Power's labour protection legislation applies; conditions never rendered more arduous by disciplinary measures.
• Article 52: no unhealthy or dangerous labour unless a volunteer; nothing humiliating for a member of the Detaining Power's own forces; the removal of mines or similar devices shall be considered as dangerous labour.
• Article 53: one hour midday rest; twenty-four consecutive hours every week; eight consecutive days after a year, with pay.
• Article 55: fitness verified at least once a month; a prisoner may appear before the medical authorities.
• Article 56: detachments part of a camp; an up-to-date record communicated to visiting delegates.
• Article 57: private employment transfers no responsibility.

Test yourself

1. Who may be compelled to work, and on what? Rank governs compulsion. Article 49 permits the Detaining Power to use the labour of prisoners of war who are physically fit, taking account of their age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good state of physical and mental health. Non-commissioned officers shall only be required to do supervisory work, and those not so required may ask for other suitable work, which shall so far as possible be found for them. Officers and persons of equivalent status may ask for suitable work and it shall be found so far as possible, but they may in no circumstances be compelled to work.

As to what, article 50 provides that besides work connected with camp administration, installation or maintenance, prisoners may be compelled to do only work within six classes: agriculture; industries connected with the production or extraction of raw materials and manufacturing industries, excluding metallurgical, machinery and chemical industries, together with public works and building operations having no military character or purpose; transport and handling of stores which are not military in character or purpose; commercial business and arts and crafts; domestic service; and public utility services having no military character or purpose. The exclusions carry the weight. A prisoner may be made to bring in a harvest, work in a shop or maintain a water supply; he may not be made to work in an arms factory, load military stores or build fortifications, because that would be to compel him to contribute to the war effort against his own side. If the provisions are infringed prisoners are to be allowed to exercise their right of complaint under article 78.

2. How does the Convention regulate the conditions of prisoner labour, and what technique does it use? It uses comparators drawn from the Detaining Power's own practice rather than absolute standards, which makes the obligations self adjusting and locally verifiable. Article 51 requires suitable working conditions, especially as regards accommodation, food, clothing and equipment, and provides that such conditions shall not be inferior to those enjoyed by nationals of the Detaining Power employed in similar work, with account taken of climatic conditions. It requires that in areas where prisoners are employed the national legislation concerning the protection of labour, and more particularly the regulations for the safety of workers, be duly applied, and that prisoners receive training and the means of protection suitable to the work and similar to those given to nationals.

Article 53 measures hours by the same method: the duration of daily labour including travel time shall not be excessive and must in no case exceed that permitted for civilian workers in the district who are nationals of the Detaining Power employed on the same work. Article 52 measures dignity the same way, prohibiting any labour which would be looked upon as humiliating for a member of the Detaining Power's own forces. The advantages of the technique are that no figure becomes obsolete, no State can plead inability without condemning its treatment of its own workers, and enforcement can rely on existing labour inspectorates and existing safety regulations rather than on a code invented for the Convention. Article 53 adds fixed entitlements where a comparator would not do: a midday rest of not less than one hour, twenty-four consecutive hours every week preferably on Sunday or the prisoners' own day of rest, and eight consecutive days of rest with pay after a year of work.

3. Why does article 52 classify mine removal expressly, and what does article 57 add about private employers? Article 52 provides that unless he be a volunteer no prisoner of war may be employed on labour of an unhealthy or dangerous nature, and then states expressly that the removal of mines or similar devices shall be considered as dangerous labour. The express classification exists because of the practice after the Second World War, when prisoners were used in very large numbers to clear minefields and were killed and maimed in doing so, and because a Detaining Power could otherwise have argued that clearance is ordinary engineering work of a non military character. The Convention did not prohibit the employment outright, which would have removed a source of skilled labour for a task that had to be done; it required that the prisoner be a volunteer, which places the decision with the person who bears the risk.

Article 57 addresses a different evasion. It provides that the treatment of prisoners of war who work for private persons, even if those persons are responsible for guarding and protecting them, shall not be inferior to that provided by the Convention, and that the Detaining Power, the military authorities and the commander of the camp to which such prisoners belong shall be entirely responsible for their maintenance, care, treatment and the payment of their working pay. It adds that such prisoners have the right to remain in communication with the prisoners' representatives in the camps on which they depend. The effect is that hiring prisoners out transfers labour but transfers no responsibility, and the chain of accountability runs back to the named camp commander of article 39 in every case. Article 56 supports this by requiring labour detachments to remain administratively part of a camp and by requiring the commander to keep an up to date record of them for visiting delegates.

The prisoners' representative, his advisers and assistants are paid out of the fund maintained by canteen profits, at a scale fixed by the representative and approved by the camp commander.

The quarter franc figure is a floor, not a wage. It was low in 1949 and is negligible now, and a candidate should say so while noting that the Convention's purpose here is to prevent unpaid forced labour rather than to fix a market rate.

Remittances and transfers: article 63

Prisoners of war shall be permitted to receive remittances of money addressed to them individually or collectively.

Every prisoner shall have at his disposal the credit balance of his account, within limits fixed by the Detaining Power, which shall make requested payments. Subject to financial or monetary restrictions which the Detaining Power regards as essential, prisoners of war may also have payments made abroad, and payments addressed by prisoners of war to dependents shall be given priority.

And subject to the consent of the Power on which they depend, prisoners may have payments made in their own country, by a notification procedure running through the Protecting Power.

The priority for dependents is the humane core of the article. A prisoner's family loses its earner, and the Convention gives the family's claim precedence over any other use of his balance.

The account: articles 64 and 65

Article 64: the Detaining Power shall hold an account for each prisoner of war, showing at least the amounts due to or received by him as advances, working pay or from any other source; sums in the Detaining Power's currency taken from him; sums taken and converted at his request; payments made to him in cash or otherwise; payments made on his behalf at his request; and sums transferred under article 63.

Article 65 is where the protection lies.

Every item entered in the account of a prisoner of war shall be countersigned or initialled by him, or by the prisoners' representative acting on his behalf.

Prisoners of war shall at all times be afforded reasonable facilities for consulting and obtaining copies of their accounts, which may likewise be inspected by the representatives of the Protecting Powers at the time of visits to the camp.

On transfer between camps the personal accounts follow the prisoner. On transfer from one Detaining Power to another, monies which are their property and not in the currency of the Detaining Power follow them, and certificates are given for other balances.

Countersignature plus inspection is the same technique as the register and receipt in article 18 and the recorded weight in article 31: a rule made verifiable by a document the prisoner has seen and a third party may examine.

Termination: article 66

On termination of captivity by release or repatriation, the Detaining Power shall give the prisoner a statement, signed by an authorized officer, showing the credit balance then due to him.

And it shall send through the Protecting Power to the prisoner's government lists giving all appropriate particulars of all prisoners whose captivity has been terminated by repatriation, release, escape, death or any other means, showing the amount of their credit balances, certified on each sheet.

The Power on which the prisoner of war depends shall be responsible for settling with him any credit balance due to him from the Detaining Power.

That last sentence is the practical answer to an obvious problem. A released prisoner cannot sue an enemy State for his camp balance, so his own government pays him and settles with the former Detaining Power under article 67.

Compensation: article 68

Claims for injury or disability arising out of work are referred to the Power on which the prisoner depends, through the Protecting Power, with a statement from the Detaining Power showing the nature of the injury, the circumstances and the medical particulars, signed by a responsible officer and certified by a medical officer.

Claims for personal effects, monies or valuables impounded under article 18 and not forthcoming on repatriation, or for loss due to the fault of the Detaining Power or its servants, are likewise referred to the prisoner's own Power. Personal effects required for use in captivity shall be replaced at the expense of the Detaining Power.

Note the structure. The Detaining Power documents; the prisoner's own Power pays; the two States settle between themselves. The individual is not left to litigate against a foreign State, which is a realistic solution and also the reason compensation for prisoners has historically depended on inter-State settlement rather than individual claim.

Worked example

A question on the financial position of prisoners of war, or as a part of a broader answer on facilities.

Give the three sources of money: advances of pay by rank, working pay at not less than a quarter of a Swiss franc a day, and remittances from outside.

Give the account machinery, and make the point about countersignature and inspection.

Give article 66's certified statement and lists, and the rule that the prisoner's own Power settles.

Then assess. The figures are obsolete, the amounts were never a wage, and the value of the scheme lies in its documentation, which produces a record that can be tested after the conflict. Then note the limits: everything depends on the Protecting Power machinery and on inter-State settlement, both of which have largely failed in practice, which is [Reparation, State Responsibility and the Victim].

What it does NOT mean

It does not mean prisoners are paid a wage. The advance is an advance recoverable from their own State, and working pay has a floor rather than a market rate.

It does not mean a prisoner may hold unlimited cash. Article 58 permits a maximum to be fixed, with the excess credited to his account.

And it does not mean the Detaining Power ultimately bears the cost. Article 67 makes advances a charge on the Power on which the prisoners depend, settled at the close of hostilities.

Quick revision

• Article 58: a maximum cash holding may be fixed; the excess placed to their account, and not converted into any other currency without their consent.
• Article 60, monthly advances: 8, 12, 50, 60 and 75 Swiss francs by category.
• Article 62: a fair working rate of pay, at no time less than one-fourth of one Swiss franc for a full working day; paid also to those doing camp duties and spiritual or medical duties on behalf of their comrades.
• Article 63: remittances received; payments abroad permitted; payments to dependents shall be given priority.
• Article 65: every item countersigned or initialled by him, or by the prisoners' representative; accounts consulted and copied, and inspected by the Protecting Powers; accounts follow the prisoner on transfer.
• Article 66: a signed statement showing the credit balance, and certified lists to his government; the Power on which the prisoner depends settles with him.
• Article 67: advances are made on behalf of the Power on which they depend, settled between Powers at the close of hostilities.
• Article 68: claims referred through the Protecting Power, documented by the Detaining Power; effects needed in captivity replaced at the expense of the Detaining Power.

Test yourself

1. What are the three sources of money available to a prisoner of war, and how do they differ? The first is the monthly advance of pay under article 60, granted by the Detaining Power to all prisoners at rates fixed by conversion of stated sums in Swiss francs: eight for prisoners ranking below sergeants, twelve for sergeants and other non-commissioned officers, fifty for warrant officers and commissioned officers below major, sixty for majors, lieutenant colonels and colonels, and seventy five for general officers. It is not a payment by the Detaining Power in an economic sense, because article 67 provides that such advances are considered as made on behalf of the Power on which the prisoners depend and are to form the subject of arrangements between the Powers at the close of hostilities.

The second is working pay under article 62, paid direct by the detaining authorities at a fair rate which shall at no time be less than one fourth of one Swiss franc for a full working day, notified to the prisoners and to their own Power through the Protecting Power, and payable also to prisoners permanently detailed to camp duties and to those required to carry out spiritual or medical duties for their comrades. Unlike the advance it is genuinely a payment for labour and is not recovered from the prisoner's own State. The third is remittances under article 63, money sent to prisoners individually or collectively from outside, together with supplementary pay sent by their own Power under article 61. All three flow into the single account required by article 64.

2. How does the Convention make the financial provisions verifiable? By requiring a documented account whose entries the prisoner has himself approved and which a third party may inspect. Article 64 requires the Detaining Power to hold an account for each prisoner showing at least the amounts due to or received by him as advances of pay, as working pay or from any other source, the sums in the Detaining Power's currency taken from him, the sums taken and converted at his request, the payments made to him in cash or otherwise, the payments made on his behalf at his request, and sums transferred abroad under article 63.

Article 65 then supplies the safeguards. Every item entered in the account must be countersigned or initialled by the prisoner, or by the prisoners' representative acting on his behalf, so no entry can be made unilaterally. Prisoners must at all times be afforded reasonable facilities for consulting and obtaining copies of their accounts, so they can keep their own record. The accounts may be inspected by representatives of the Protecting Powers at the time of camp visits, which brings an outside party into the audit. Accounts follow prisoners on transfer between camps, and on transfer between Detaining Powers their property in foreign currency follows them with certificates for the rest. Article 66 completes the chain on release with a statement signed by an authorised officer showing the credit balance, and certified lists sent to the prisoner's own government showing the balances of all prisoners whose captivity has ended by repatriation, release, escape or death. This is the same technique the Convention uses for impounded property in article 18 and for nutrition in article 31.

3. Assess the practical value of these articles. Two things are worth saying, and a good answer says both. The figures are obsolete and were never generous. Eight Swiss francs a month for a private soldier was modest in 1949 and is negligible now, and a quarter of a Swiss franc for a full working day was never a wage. The Convention permits modification by special agreement, subject to article 6's rule that no agreement may adversely affect the prisoners' position, but in practice the amounts have not been revised, so the monetary substance of the scheme has largely evaporated.

What has not evaporated is the documentary discipline. The requirement of an individual account, of countersigned entries, of inspection by the Protecting Power, of accounts that travel with the prisoner, and of a certified statement and certified lists at the end of captivity produces a record that exists independently of the Detaining Power's later account of itself. That record supports the compensation route in article 68, under which claims for injury arising out of work and for impounded property not returned are referred to the prisoner's own Power through the Protecting Power, documented by a statement from the Detaining Power signed by a responsible officer and certified by a medical officer. The weakness of the scheme is that it depends on two institutions that have largely failed: the Protecting Power machinery, which has operated in only a handful of conflicts, and inter State settlement at the close of hostilities, which subordinates the individual's claim to a political negotiation between governments.

Article 72: relief shipments

Prisoners of war shall be allowed to receive by post or by any other means individual parcels or collective shipments containing, in particular, foodstuffs, clothing, medical supplies and articles of a religious, educational or recreational character, including books, devotional articles, scientific equipment, examination papers, musical instruments, sports outfits and materials allowing prisoners of war to pursue their studies or their cultural activities.

And then the sentence that matters most: Such shipments shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the present Convention.

That sentence prevents relief from becoming a substitute for duty. A camp that is fed by parcels is not thereby a compliant camp, and the Detaining Power's obligations under article 26 on food, article 27 on clothing and article 30 on medical care remain undiminished.

The list is worth noticing for what it includes. Examination papers and scientific equipment are named, which reflects the practice of prisoners taking professional and university examinations in captivity, and connects to article 38's duty to encourage educational pursuits.

Limits on shipments may be proposed only by the Protecting Power in the prisoners' own interest, or by the ICRC or another assisting organisation, in respect of their own shipments, on account of exceptional strain on transport and communications.

Article 73: collective relief

In the absence of special agreements, the rules annexed to the Convention govern the receipt and distribution of collective relief shipments.

No agreement may restrict the right of prisoners' representatives to take possession of collective relief shipments intended for prisoners of war, to proceed to their distribution or to dispose of them in the interest of the prisoners.

Nor may any agreement restrict the right of representatives of the Protecting Power, the ICRC or another assisting organisation responsible for forwarding collective shipments to supervise their distribution to the recipients.

Distribution is given to the prisoners themselves through their elected representative, which removes the most obvious opportunity for relief to be used as an instrument of control.

Article 74: charges

All relief shipments for prisoners of war shall be exempt from import, customs and other dues.

Correspondence, relief shipments and authorized remittances addressed to or despatched by prisoners through the post office, direct or through the Information Bureaux under article 122 and the Central Agency under article 123, shall be exempt from any postal dues, both in the countries of origin and destination, and in intermediate countries.

Where relief cannot go by post by reason of weight or otherwise, the cost of transportation shall be borne by the Detaining Power in all the territories under its control, and by the other parties in their own territories.

Article 75: transport in emergency

Should military operations prevent the Powers concerned from fulfilling their obligation to assure transport, the Protecting Powers, the ICRC or another duly approved organisation may undertake to ensure the conveyance of such shipments by suitable means, and the parties shall endeavour to supply them with such transport and to allow its circulation, especially by granting the necessary safe-conducts.

Such transport may also carry the correspondence, lists and reports exchanged between the Central Agency and the National Bureaux, and the delegates of the Protecting Powers and the ICRC.

Article 76: censorship

The censoring of correspondence shall be done as quickly as possible. Mail shall be censored only by the despatching State and the receiving State, and once only by each.

Examination of consignments shall not expose the goods to deterioration and, except for written or printed matter, shall be done in the presence of the addressee, or of a fellow-prisoner duly delegated by him.

Delivery shall not be delayed under the pretext of difficulties of censorship.

Any prohibition of correspondence ordered for military or political reasons shall be only temporary and its duration shall be as short as possible.

Article 76 is a study in closing loopholes. Censorship is permitted, and then every technique by which censorship could be used to suppress correspondence in practice is prohibited: repeated censoring, slow censoring, damaging parcels, opening them out of sight, and indefinite prohibitions dressed as temporary ones.

Article 77: legal documents

The Detaining Powers shall provide all facilities for the transmission, through the Protecting Power or the Central Agency, of instruments, papers or documents intended for prisoners of war or despatched by them, especially powers of attorney and wills.

In all cases they shall facilitate the preparation and execution of such documents, and in particular, they shall allow them to consult a lawyer and shall take what measures are necessary for the authentication of their signatures.

Article 77 is what makes article 14's preservation of civil capacity real. A prisoner who retains full civil capacity but cannot execute a document has nothing; the right to consult a lawyer and to have signatures authenticated is what turns the capacity into a usable power.

Worked example

A question on the relations of prisoners with the outside world, or as part of an answer on facilities.

Give article 70 first and give the time limit, because the capture card is the provision with the greatest human consequence.

Then article 71's floor, two letters and four cards, and the point that only the prisoners' own Power may limit incoming mail.

Then article 72 with the non-substitution sentence quoted, and article 73's rule that distribution belongs to the prisoners' representative.

Then article 76 as a list of closed loopholes.

Close with article 77 and connect it to article 14, which shows how two distant articles work together.

What it does NOT mean

It does not mean correspondence is uncensored. Censorship is permitted, once by each State, done quickly.

It does not mean relief shipments are unlimited. Limits may be proposed by the Protecting Power in the prisoners' interest or by the forwarding organisation for reasons of transport strain.

And it does not mean parcels reduce the Detaining Power's duties. Article 72 says the opposite in terms.

Quick revision

• Article 70: a capture card immediately upon capture, or not more than one week after arrival at a camp, to family and to the Central Prisoners of War Agency, giving capture, address and state of health, may not be delayed in any manner.
• Article 71: at least two letters and four cards monthly; further limits only if the Protecting Power is satisfied it is in the prisoners' interest; incoming limits only by the Power on which the prisoners depend.
• Article 72: parcels including books, devotional articles, scientific equipment, examination papers, musical instruments, sports outfits; shall in no way free the Detaining Power from the obligations imposed upon it.
• Article 73: the prisoners' representative takes possession and distributes; supervision by the Protecting Power or the ICRC.
• Article 74: exempt from import, customs and other dues and from any postal dues; carriage at the Detaining Power's cost in its own territory.
• Article 76: censored once only by each State; parcels opened in the presence of the addressee; prohibitions only temporary.
• Article 77: powers of attorney and wills; allow them to consult a lawyer and authenticate signatures.

Test yourself

1. Why is the capture card in article 70 so important, and what are its terms? Because it is the moment a missing soldier becomes a known prisoner, and the difference for a family is total. Article 70 provides that immediately upon capture, or not more than one week after arrival at a camp even if it is a transit camp, and likewise in case of sickness or transfer to hospital or to another camp, every prisoner of war shall be enabled to write direct to his family on the one hand and to the Central Prisoners of War Agency provided for in article 123 on the other, a card informing his relatives of his capture, address and state of health. It adds that the cards shall be forwarded as rapidly as possible and may not be delayed in any manner.

Three features make it effective. The outside time limit is short and is fixed to arrival at a camp rather than to any discretionary event, and transit camps are expressly included so that a prisoner cannot be held incommunicado in one. The card goes to two destinations, the family and the Central Agency, so that the information enters the international tracing system even if the family card is lost. And the prohibition on delay is absolute in its terms, admitting no exception for military reasons, which distinguishes it from ordinary correspondence under article 76 where a temporary prohibition is permitted for military or political reasons. The card operates together with the Information Bureau under article 122, which must collect and transmit prisoner information, and with the Central Agency under article 123, whose function is tracing.

2. What does article 72 provide about relief, and why does its second paragraph matter more than its first? The first paragraph provides that prisoners of war shall be allowed to receive by post or by any other means individual parcels or collective shipments containing in particular foodstuffs, clothing, medical supplies and articles of a religious, educational or recreational character which may meet their needs, including books, devotional articles, scientific equipment, examination papers, musical instruments, sports outfits and materials allowing prisoners to pursue their studies or their cultural activities. The list is generous and its detail reflects real practice, including prisoners sitting professional and university examinations in captivity.

The second paragraph matters more because it prevents the first from being turned against the prisoners. It provides that such shipments shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the Convention. Without it, a Detaining Power could argue that a camp adequately supplied by the ICRC and by families needs less from it, and that its obligations under article 26 on food, article 27 on clothing and article 30 on medical care are pro tanto discharged. That argument would make the level of protection depend on the wealth and organisation of the prisoners' own society and would penalise prisoners whose families cannot send parcels. The paragraph forecloses it, so relief is additional in law as well as in fact. Article 73 supports the scheme by giving the prisoners' representative the right to take possession of collective shipments and to distribute them, which prevents relief being used as an instrument of control inside the camp.

3. How does article 76 permit censorship while preventing its abuse? It permits censorship and then closes each of the practical routes by which censorship could be used to suppress communication. Censorship as such is allowed, since correspondence leaving and entering a camp in wartime plainly carries a risk of military information passing. But mail shall be censored only by the despatching State and the receiving State, and once only by each, which prevents cumulative delay through repeated examination by intermediate authorities or by successive services within one State. Censoring shall be done as quickly as possible, which makes delay itself a breach rather than an incident.

Examination of consignments shall not be carried out under conditions that will expose the goods to deterioration, which prevents parcels being spoiled by careless or deliberate handling. Except for written or printed matter, examination shall be done in the presence of the addressee or of a fellow prisoner duly delegated by him, which removes the opportunity for pilferage and makes any loss visible at once. Delivery shall not be delayed under the pretext of difficulties of censorship, which is directed at the most obvious excuse. And any prohibition of correspondence ordered by parties to the conflict, whether for military or political reasons, shall be only temporary and its duration shall be as short as possible. Article 71 completes the protection by fixing a floor of two letters and four cards a month and by allowing further limitation only where the Protecting Power is satisfied that it serves the prisoners' interests because the Detaining Power lacks qualified linguists.

Article 80: duties

Prisoners' representatives shall further the physical, spiritual and intellectual well-being of prisoners of war.

Where prisoners organise a system of mutual assistance among themselves, this will be within the province of the prisoners' representative, in addition to the special duties entrusted to him by other provisions.

And the protective clause: Prisoners' representatives shall not be held responsible, simply by reason of their duties, for any offences committed by prisoners of war.

That sentence prevents the office from being used as a hostage. A representative who could be punished for what his fellow prisoners do would be an instrument of collective punishment, which article 87 separately prohibits.

Article 81: facilities

Prisoners' representatives shall not be required to perform any other work, if the accomplishment of their duties is thereby made more difficult.

They may appoint assistants from among the prisoners, and all material facilities shall be granted them, particularly a certain freedom of movement necessary for the accomplishment of their duties, including inspection of labour detachments and receipt of supplies.

They shall be permitted to visit premises where prisoners of war are detained, and every prisoner of war shall have the right to consult freely his prisoners' representative.

All facilities shall likewise be accorded for communication by post and telegraph with the detaining authorities, the Protecting Powers, the ICRC and their delegates, with the Mixed Medical Commissions and with bodies giving assistance. Representatives of labour detachments enjoy the same facilities for communication with the representative of the principal camp, and such communications shall not be restricted, nor considered as forming a part of the quota under article 71.

A representative who is transferred must be allowed reasonable time to acquaint his successor with current affairs.

In case of dismissal, the reasons shall be communicated to the Protecting Power.

Where the representative appears in the rest of the Convention

The office is not decorative. The prisoners' representative appears throughout, and listing the appearances is a good way to show how the Convention builds an internal counterweight.

Worked example

A question on the machinery by which the Convention is observed inside a camp.

Give the three internal mechanisms together, because they work as one: the posted text in article 41, the complaint right in article 78, and the representative in articles 79 to 81.

Quote the two protective sentences, article 78's rule that unfounded complaints may not be punished and article 80's rule that the representative is not responsible for others' offences. Both exist because the mechanism would otherwise be a means of identifying and punishing the people who use it.

Then list the representative's functions across the Convention, which shows the office is structural rather than symbolic.

Then be honest about the limit. All of this depends on a Protecting Power or an ICRC delegate actually visiting under article 126, and where none does, the internal machinery has nowhere to report.

What it does NOT mean

It does not mean the representative is chosen freely in every camp. In officers' camps the senior officer holds the office by seniority, not election, and every elected representative requires the Detaining Power's approval.

It does not mean complaints must be founded. Article 78 expressly protects unfounded complaints.

And it does not mean the representative is immune. He may be punished for his own offences, and may be dismissed, though the reasons must go to the Protecting Power.

Quick revision

• Article 78: requests to the military authorities, and an unrestricted right to apply to the representatives of the Protecting Powers, through the representative or, if they consider it necessary, direct; not part of the correspondence quota; transmitted immediately; even if they are recognized to be unfounded, they may not give rise to any punishment.
• Article 79: elected by secret ballot, every six months, re-eligible; in officers' camps the senior officer; approval by the Detaining Power, refusal reported to the Protecting Power; same nationality, language and customs.
• Article 80: further the physical, spiritual and intellectual well-being; not held responsible, simply by reason of their duties, for any offences committed by prisoners of war.
• Article 81: not required to do other work; assistants; freedom of movement; inspection of labour detachments; free consultation by every prisoner; unrestricted communications; time to brief a successor; reasons for dismissal to the Protecting Power.

Test yourself

1. What does article 78 give a prisoner, and why is its final sentence indispensable? Article 78 gives two things. First, the right to make known to the military authorities in whose power they are their requests regarding the conditions of captivity to which they are subjected, which is an internal channel to the camp commander identified by article 39. Second, an unrestricted right to apply to the representatives of the Protecting Powers, either through the prisoners' representative or, if they consider it necessary, direct, in order to draw attention to any points on which they have complaints about their conditions. The word direct matters, because it prevents the prisoners' representative from becoming a filter that a Detaining Power could control.

Three safeguards follow. Requests and complaints shall not be limited nor considered part of the correspondence quota under article 71, so exercising the right costs the prisoner none of his two letters and four cards a month. They must be transmitted immediately, so delay is itself a breach. And even if they are recognised to be unfounded, they may not give rise to any punishment. The last is indispensable because without it the right would identify its users and expose them. A prisoner deciding whether to complain would have to assess in advance whether the authority determining the complaint would find it well founded, which is exactly the calculation that deters complaint. The Convention removes the calculation entirely, and it does so without qualification for repeated or ill judged complaints.

2. How is the prisoners' representative chosen, and what protects the office? Article 79 provides that in all places where there are prisoners of war, except those where there are officers, the prisoners shall freely elect by secret ballot, every six months and also in case of vacancies, prisoners' representatives entrusted with representing them before the military authorities, the Protecting Powers, the International Committee of the Red Cross and any other assisting organisation, and that they are eligible for re-election. In camps for officers and in mixed camps the senior officer among the prisoners is recognised as the representative, assisted in officers' camps by advisers chosen by the officers and in mixed camps by assistants elected by the non-officer prisoners. Representatives must be of the same nationality, language and customs as the prisoners they represent, and every elected representative must be approved by the Detaining Power, whose reasons for refusing approval must be communicated to the Protecting Power.

Two provisions protect the office. Article 80 provides that prisoners' representatives shall not be held responsible, simply by reason of their duties, for any offences committed by prisoners of war, which prevents the office being used as a hostage and complements the prohibition of collective punishment in article 87. Article 81 provides that they shall not be required to perform other work if their duties would thereby be made more difficult, may appoint assistants, shall be granted material facilities including freedom of movement to inspect labour detachments and receive supplies, shall be permitted to visit places of detention, shall have unrestricted communications outside the correspondence quota, shall be allowed to brief a successor on transfer, and if dismissed shall have the reasons communicated to the Protecting Power.

3. What is the limit of the Convention's internal machinery? That it terminates in a body which may not exist. The internal machinery is well designed: article 41 posts the text of the Convention in the prisoners' own language where all may read it, article 39 identifies a named commissioned officer responsible for its application, articles 79 to 81 create an elected representative with facilities, free consultation and unrestricted communications, and article 78 gives every prisoner an unpunishable and unrestricted right of complaint. Each element is drafted to close the obvious means of frustrating it.

But the complaint is addressed to the representatives of the Protecting Powers, and article 126 gives the right of access to Protecting Power delegates and to delegates of the International Committee of the Red Cross, who may go to all places where prisoners are, may interview prisoners without witnesses, and may choose the places they visit. If no Protecting Power has been designated, and if the Detaining Power refuses ICRC access, the internal machinery has nowhere to report. The Protecting Power system has operated in only a handful of conflicts since 1949, for the reasons examined in the chapter on Protecting Powers, so in most conflicts the entire weight has fallen on the ICRC, whose access depends on the consent of the Detaining Power. The machinery is therefore excellent within a camp that admits an outside visitor and inert in one that does not, which is the general shape of the implementation problem in this subject.

One sentence, and it does a great deal. A prisoner tried for a war crime committed before capture is still a prisoner of war throughout the trial and after conviction. Status is not forfeited by criminality, and the Convention's protections continue to apply to a convicted person.

Several States entered reservations to article 85, taking the position that a prisoner convicted of war crimes should lose the benefits, and those reservations remain among the most significant to the Conventions.

Article 86: no double punishment

No prisoner of war may be punished more than once for the same act or on the same charge.

Article 87: penalties

Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.

And the mitigation rule, which is unusual and examinable.

When fixing the penalty, the courts or authorities shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will.

The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.

That is a treaty overriding a domestic mandatory minimum. It reflects the moral position of a prisoner accurately: he is being judged by a legal system he never consented to, for conduct in a place he did not choose to be.

Article 87 also prohibits collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight, and in general any form of torture or cruelty, and prohibits deprivation of rank or of the right to wear badges.

Article 88: equality of treatment in punishment

Officers, non-commissioned officers and men undergoing a disciplinary or judicial punishment shall not be subjected to more severe treatment than that applied to members of the armed forces of the Detaining Power of equivalent rank.

A woman prisoner of war shall not be awarded or sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a woman member of the armed forces of the Detaining Power dealt with for a similar offence.

In no case may a woman prisoner of war be awarded or sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a male member of the armed forces of the Detaining Power dealt with for a similar offence.

The two women's paragraphs work together and neither is redundant. The first sets the comparator as a woman of the Detaining Power's own forces; the second adds a ceiling by reference to a man of those forces, so that a Detaining Power which punishes its own women more harshly than its men cannot pass that discrimination on to prisoners.

Article 88's final paragraph provides that a prisoner who has finished a punishment shall not be treated differently from other prisoners.

The assimilation principle

The whole chapter rests on one idea worth naming in an answer. A prisoner of war is assimilated to a member of the Detaining Power's own armed forces for penal purposes: same law, same courts, same penalties, same conditions of punishment, and never worse.

Assimilation has two virtues. It supplies a standard that adjusts automatically to each State without the Convention having to write a penal code. And it makes discrimination visible, because any departure requires the Detaining Power to say that it treats prisoners differently from its own soldiers.

And it has one limit. Assimilation to a Power whose own military justice is poor gives the prisoner poor justice, which is why article 84's independent requirement of essential guarantees and article 105's rights of defence are stated separately and absolutely.

Worked example

A question on the penal regime applicable to prisoners of war.

Name the assimilation principle and give article 82 with its second paragraph.

Then article 83's presumption in favour of disciplinary measures, which frames everything after it.

Then article 84's two absolute requirements, quoting in no circumstances whatever.

Then article 85, and note the reservations, which shows awareness that the point was contested.

Then article 87's mitigation rule, which is the most distinctive provision in the chapter, and article 88's two women's paragraphs.

Close with the limit of assimilation and the separate absolute guarantees in articles 84 and 105.

What it does NOT mean

It does not mean a prisoner may be tried for fighting. Combatant immunity means lawful acts of war are not offences at all; this chapter concerns other offences.

It does not mean a convicted prisoner loses status. Article 85 says the opposite, subject to reservations by some States.

And it does not mean a Detaining Power may apply its ordinary criminal courts. Article 84 requires a military court unless its own soldiers would be tried by a civil court for that offence.

Quick revision

• Article 82: subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; acts punishable only for prisoners shall entail disciplinary punishments only.
• Article 83: the greatest leniency, and disciplinary rather than judicial measures wherever possible.
• Article 84: tried only by a military court; in no circumstances whatever a court lacking the essential guarantees of independence and impartiality and the defence rights of article 105.
• Article 85: prosecution for pre-capture acts leaves the benefits of the Convention intact even if convicted. Reservations entered by several States.
• Article 86: no punishment more than once for the same act or on the same charge.
• Article 87: only penalties applicable to the Detaining Power's own forces; mitigation for no duty of allegiance and presence as the result of circumstances independent of his own will; not bound to apply the minimum penalty prescribed; no collective punishment, corporal punishment or imprisonment without daylight.
• Article 88: treatment no worse than the Detaining Power's own forces of equivalent rank; women measured against a woman member and capped by a male member of those forces.

Test yourself

1. Explain the assimilation principle and identify the provisions that carry it. The principle is that for penal and disciplinary purposes a prisoner of war is assimilated to a member of the Detaining Power's own armed forces, so that the same law applies, the same courts try him, the same penalties are available, and the conditions of punishment are no worse. Article 82 supplies the base rule, providing that a prisoner is subject to the laws, regulations and orders in force in the armed forces of the Detaining Power, which may take judicial or disciplinary measures for offences against them, subject always to the chapter. Its second paragraph prevents the obvious evasion by providing that where an act is punishable for a prisoner but would not be punishable if committed by a member of the Detaining Power's own forces, it shall entail disciplinary punishment only.

Article 84 carries the principle to the forum, requiring trial by a military court unless the Detaining Power's existing law expressly permits its civil courts to try its own service personnel for that offence. Article 87 carries it to the sentence, providing that no penalty may be imposed except those available against members of the Detaining Power's own forces for the same acts, and prohibiting collective punishment for individual acts, corporal punishment, imprisonment without daylight and any form of torture or cruelty. Article 88 carries it to the execution of punishment, requiring treatment no more severe than for members of the Detaining Power's forces of equivalent rank. The virtue of the technique is that it supplies a standard which adjusts to each State without the Convention writing a penal code, and which makes any discrimination visible because departure has to be admitted.

2. What does article 87's second paragraph require, and why is it unusual? It requires that when fixing the penalty the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. It then provides that those courts or authorities shall be at liberty to reduce the penalty prescribed for the violation and shall therefore not be bound to apply the minimum penalty prescribed.

It is unusual for two reasons. First, it is a treaty provision that displaces a domestic mandatory minimum sentence. Most sentencing legislation binds the court, and a legislature that fixes a floor has decided that judicial discretion below it is unavailable; article 87 restores that discretion in the case of a prisoner of war, which is a direct intrusion of international law into the sentencing power of the domestic court. Second, the reasons given are moral rather than technical. A national who breaks the law of his own State breaks a law he is presumed to have consented to and owes allegiance to. A prisoner of war is subject to a legal order he never accepted, in a country he did not choose to enter, by reason of a capture he did not control. The article requires the court to hold both facts in mind, which is an unusually candid acknowledgement in a treaty that the ordinary basis of criminal responsibility is weaker in this case.

3. Why does article 88 contain two separate paragraphs about women prisoners? Because each closes a different gap, and either alone would be inadequate. The first provides that a woman prisoner of war shall not be awarded or sentenced to a punishment more severe, or treated while undergoing punishment more severely, than a woman member of the armed forces of the Detaining Power dealt with for a similar offence. That applies the assimilation principle with the appropriate comparator, a woman in the Detaining Power's own forces, and it prevents a woman prisoner being treated worse than the Detaining Power treats its own servicewomen.

The second provides that in no case may a woman prisoner of war be awarded or sentenced to a punishment more severe, or treated while undergoing punishment more severely, than a male member of the armed forces of the Detaining Power dealt with for a similar offence. It supplies a ceiling that does not depend on how the Detaining Power treats its own women. If a State punishes women in its armed forces more harshly than men, the first paragraph alone would permit that harsher standard to be applied to women prisoners, since the comparator would be met. The second forbids it, capping the punishment of a woman prisoner by reference to what a man of the Detaining Power's forces would receive. Together they mean that a woman prisoner receives the more favourable of the two comparators, and that the Detaining Power's own discrimination against women cannot be exported to prisoners.

Prisoners who have made good their escape and who are recaptured shall not be liable to any punishment in respect of their previous escape.

Unsuccessful escape

Article 92: a prisoner who attempts to escape and is recaptured before making good his escape shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated offence.

He shall be handed over without delay to the competent military authority.

He may be subjected to special surveillance, which must not affect the state of their health, must be undergone in a prisoner of war camp, and must not entail the suppression of any of the safeguards granted them by the present Convention.

Offences during escape

Article 93: escape or attempted escape, even if it is a repeated offence, shall not be deemed an aggravating circumstance if the prisoner is tried judicially for an offence committed during the escape.

Offences committed with the sole intention of facilitating escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, or the wearing of civilian clothing, shall occasion disciplinary punishment only.

Prisoners who aid or abet an escape or an attempt to escape shall be liable on this count to disciplinary punishment only.

Article 94: if an escaped prisoner is recaptured, the Power on which he depends shall be notified under article 122, provided notification of the escape was made.

The scheme is internally consistent and it rests on a premise worth stating. A captured soldier remains under a duty to his own force, so escape is expected conduct rather than delinquency, and the law regulates the response to it instead of criminalising it. Article 42's rule that firing on escapers is an extreme measure preceded by warnings belongs with these articles.

Procedure: articles 95 and 96

Article 95: a prisoner accused of a disciplinary offence shall not be kept in confinement pending the hearing unless a member of the Detaining Power's forces would be so kept for a similar offence, or if it is essential in the interests of camp order and discipline. Any such period shall be reduced to an absolute minimum and shall not exceed fourteen days.

Article 96: offences shall be investigated immediately.

Disciplinary punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by a responsible officer who replaces him or to whom he has delegated his disciplinary powers.

In no case may such powers be delegated to a prisoner of war or be exercised by a prisoner of war.

Before any disciplinary award is pronounced, the accused shall be given precise information regarding the offences of which he is accused, and given an opportunity of explaining his conduct and of defending himself, in particular by calling witnesses and having recourse to a qualified interpreter where necessary.

The decision shall be announced to the accused prisoner and to the prisoners' representative, and a record of disciplinary punishments shall be kept by the camp commander and shall be open to inspection by representatives of the Protecting Power.

The prohibition on prisoners exercising disciplinary powers is important. It prevents a Detaining Power from devolving camp discipline onto a favoured group of prisoners, which is the mechanism by which camp systems have historically become brutal.

Conditions of punishment: articles 97 and 98

Article 97: prisoners shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment.

All premises in which disciplinary punishments are undergone shall conform to the sanitary requirements set forth in Article 25, and the prisoner shall be enabled to keep himself clean under article 29.

Officers shall not be lodged in the same quarters as non-commissioned officers or men, and women prisoners undergoing disciplinary punishment shall be confined in separate quarters from men and shall be under the immediate supervision of women.

Article 98: a prisoner undergoing confinement shall continue to enjoy the benefits of the provisions of this Convention except in so far as these are necessarily rendered inapplicable by the mere fact that he is confined.

In no case may he be deprived of the benefits of the provisions of Articles 78 and 126.

That sentence is the most important in the chapter. Article 78 is the right of complaint to the Protecting Power; article 126 is the right of Protecting Power and ICRC delegates to visit and to interview prisoners without witnesses. A prisoner in punishment cells retains both, absolutely, which means the place of punishment cannot be a place outside supervision.

A prisoner awarded disciplinary punishment may not be deprived of the prerogatives attached to his rank, shall be allowed to exercise and to stay in the open air at least two hours daily, shall be allowed on request to attend the daily medical inspections, shall receive the attention his health requires and if necessary be removed to the camp infirmary or hospital, and shall be allowed to read and write, and to send and receive letters, though parcels and remittances may be withheld until the punishment is complete and are meanwhile entrusted to the prisoners' representative.

Worked example

A question on disciplinary punishment, or on the treatment of escape.

Give the four punishments and stress that the list is exhaustive, and that only privileges over and above the Convention may be withdrawn.

Give the thirty day cap with its two anti-avoidance rules, aggregation and the three day interval.

Give the escape scheme in its logic: succeeded escape unpunishable, unsuccessful escape disciplinary only even if repeated, facilitating offences without violence disciplinary only, aiding and abetting disciplinary only, and escape never an aggravating circumstance.

Give article 96's procedural minimum: immediate investigation, decision only by the camp commander or a delegate who is not a prisoner, precise information of the charge, an opportunity to explain and defend, witnesses, an interpreter, announcement to the prisoners' representative, and a record open to the Protecting Power.

Close with article 98 and quote the reference to articles 78 and 126.

What it does NOT mean

It does not mean escape carries no consequence. It attracts disciplinary punishment and special surveillance, and it may be met with force as an extreme measure under article 42.

It does not mean confinement is unavailable. It is the fourth listed punishment, capped at thirty days.

And it does not mean violence during an escape is excused. Article 93 protects only offences without violence against life or limb.

Quick revision

• Article 89, four punishments: a fine of up to 50 per cent of pay for up to thirty days; discontinuance of privileges over and above the Convention; fatigue duties not exceeding two hours daily, not for officers; confinement. Never inhuman, brutal or dangerous to the health.
• Article 90: any single punishment shall in no case exceed thirty days; pre-hearing confinement deducted; cap not exceeded by aggregating several acts; at least three days between two punishments where one is ten days or more.
• Article 91: escape succeeds by joining friendly forces, leaving the territory, or boarding a friendly ship; no punishment for a successful escape after later recapture.
• Article 92: unsuccessful escape, disciplinary punishment only, even if it is a repeated offence; special surveillance in a camp with no suppression of safeguards.
• Article 93: escape not an aggravating circumstance; theft without intention of self-enrichment, false papers, civilian clothing, disciplinary only; aiding and abetting disciplinary only.
• Article 95: pre-hearing confinement shall not exceed fourteen days.
• Article 96: investigated immediately; ordered only by the camp commander or his delegate, never by a prisoner of war; precise information, explanation and defence, witnesses, an interpreter; record open to the Protecting Power.
• Article 97: never in penitentiary establishments; women under the immediate supervision of women.
• Article 98: benefits continue; in no case deprived of articles 78 and 126; at least two hours daily in the open air; reading, writing and letters.

Test yourself

1. Set out the four disciplinary punishments and the limits on their duration. Article 89 provides that the disciplinary punishments applicable to prisoners of war are a fine which shall not exceed fifty per cent of the advances of pay and working pay the prisoner would otherwise receive under articles 60 and 62 during a period of not more than thirty days; discontinuance of privileges granted over and above the treatment provided for by the Convention; fatigue duties not exceeding two hours daily, which shall not be applied to officers; and confinement. It adds that in no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of prisoners of war. The list is exhaustive, so no other sanction is lawful, and the wording of the second item confines withdrawal to privileges above the Convention's own guarantees, so nothing the Convention requires may be taken away as a punishment.

Article 90 limits duration. The duration of any single punishment shall in no case exceed thirty days, and any period of confinement awaiting the hearing or the award must be deducted from it. The thirty day maximum may not be exceeded even where the prisoner is answerable for several acts at the same time, whether related or not, which prevents the cap being defeated by aggregating charges. The period between pronouncing an award and executing it shall not exceed one month. And where a further punishment is awarded, at least three days must elapse between the execution of any two punishments if the duration of one of them is ten days or more, which prevents the cap being defeated by consecutive awards. Article 95 adds that confinement awaiting the disposal of a disciplinary offence shall be reduced to an absolute minimum and shall not exceed fourteen days.

2. How does the Convention deal with escape, and what premise underlies its approach? Article 91 defines when escape has succeeded: when the prisoner has joined the armed forces of his own or an allied Power, has left the territory under the control of the Detaining Power or its ally, or has joined a ship flying his own or an allied flag in the Detaining Power's territorial waters, that ship not being under its control. A prisoner who has made good his escape in that sense and is later recaptured shall not be liable to any punishment for the previous escape. Article 92 provides that a prisoner recaptured before making good his escape is liable only to disciplinary punishment for that act, even if it is a repeated offence, must be handed over without delay to the competent military authority, and may be subjected to special surveillance which must not affect his health, must be undergone in a prisoner of war camp, and must not suppress any safeguard of the Convention.

Article 93 provides that escape or attempted escape, even if repeated, shall not be an aggravating circumstance in a judicial trial for an offence committed during it, that offences committed with the sole intention of facilitating escape and involving no violence against life or limb, such as offences against public property, theft without intention of self enrichment, the making or use of false papers, or the wearing of civilian clothing, attract disciplinary punishment only, and that aiding or abetting an escape likewise attracts disciplinary punishment only. Article 42 completes the scheme by making the use of weapons against escapers an extreme measure always preceded by warnings. The premise is that a captured soldier remains under a duty to his own force, so escape is expected conduct and not delinquency, and the law's task is to regulate the response rather than to criminalise the act.

3. What does article 98 preserve, and why is its reference to articles 78 and 126 the most important sentence in the chapter? Article 98 provides that a prisoner undergoing confinement as a disciplinary punishment shall continue to enjoy the benefits of the Convention except in so far as these are necessarily rendered inapplicable by the mere fact of confinement, that he may not be deprived of the prerogatives attached to his rank, that he shall be allowed to exercise and to stay in the open air at least two hours daily, that he shall be allowed on request to attend the daily medical inspections and shall receive the attention his health requires with removal to the infirmary or hospital if necessary, and that he shall be allowed to read and write and to send and receive letters, though parcels and remittances may be withheld until the punishment is complete and are meanwhile entrusted to the prisoners' representative.

Its central sentence is that in no case may he be deprived of the benefits of the provisions of articles 78 and 126. Article 78 is the unrestricted right to apply to the representatives of the Protecting Powers with complaints about the conditions of captivity, which may not be limited, must be transmitted immediately, and may not be punished even if unfounded. Article 126 is the right of Protecting Power and ICRC delegates to go to all places where prisoners are, to interview prisoners without witnesses, and to choose the places they visit. Preserving both absolutely means that the punishment cells cannot become a place outside supervision, which is precisely what happens in camp systems where punishment is used to isolate. The sentence converts every other guarantee in the chapter into something that can be checked by an outsider while it is being applied.

The same communication goes to the prisoners' representative. If no evidence is submitted at the trial that the notification was received three weeks in advance, the trial may not proceed and must be adjourned.

Article 104 is drafted to be enforceable from inside the courtroom. The three week period is not a diplomatic courtesy: proof of it is a precondition of proceeding.

Article 105: rights of defence

The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights in due time before the trial.

Failing a choice by the prisoner, the Protecting Power shall find him an advocate or counsel and shall have at least one week for the purpose, with the Detaining Power supplying on request a list of qualified persons. Failing a choice by either, the Detaining Power shall appoint a competent advocate or counsel.

Counsel shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence, including free visits to the accused and interviews in private, and may confer with witnesses including prisoners of war.

Representatives of the Protecting Power shall be entitled to attend the trial unless it is held in camera in the interest of State security, of which the Detaining Power must advise the Protecting Power.

Article 105 is the provision article 84 refers to when it prohibits trial by any court whose procedure does not afford these rights, and it is also the standard imported by article 49 of the First Convention for the trial of persons accused of grave breaches.

Article 106: appeal

Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit.

Article 107: reporting

Any judgment and sentence shall be immediately reported to the Protecting Power in the form of a summary communication, indicating whether there is a right of appeal, and sent likewise to the prisoners' representative and to the prisoner himself in a language he understands if the sentence was not pronounced in his presence.

The Detaining Power shall also immediately communicate the prisoner's decision to use or waive his right of appeal.

Where a prisoner is finally convicted, or sentenced in the first instance to death, the Detaining Power shall send the Protecting Power a detailed communication containing the precise wording of the finding and sentence, a summarised report of any investigation and trial emphasising the elements of prosecution and defence, and where applicable the place where the sentence will be served.

Articles 100 and 101: the death penalty

Article 100: prisoners and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the Detaining Power's laws.

Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power on which the prisoners of war depend.

And no death sentence may be pronounced unless the court's attention has been particularly called, in accordance with article 87's second paragraph, to the fact that the accused is not a national of the Detaining Power, is not bound to it by any duty of allegiance, and is in its power as the result of circumstances independent of his own will.

Article 101: where the death penalty is pronounced, the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated address, the detailed communication provided for in Article 107.

The six month period exists to make intervention possible. It runs from receipt by the Protecting Power, not from sentence, so a Detaining Power cannot start the clock by sending a communication nobody receives. It gives the prisoner's own State, the Protecting Power and the ICRC time to make representations, and it makes an execution carried out quickly a plain violation regardless of the merits of the conviction.

Additional Protocol I went further. Article 76(3) and article 77(5) prohibit the execution of a death sentence on pregnant women and mothers of dependent infants, and on persons who were under eighteen at the time of the offence.

Article 108: serving the sentence

Sentences after a conviction has become duly enforceable shall be served in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power, and those conditions shall in all cases conform to the requirements of health and humanity.

A woman prisoner shall be confined in separate quarters and shall be under the supervision of women.

And the preservation clause again: prisoners sentenced to a penalty depriving them of liberty shall retain the benefit of the provisions of Articles 78 and 126, and shall be entitled to receive and despatch correspondence, to receive at least one relief parcel monthly, to take regular exercise in the open air, to have the medical care their state of health requires and the spiritual assistance they may desire, and to be visited.

Articles 98 and 108 together mean that no prisoner, whether under disciplinary punishment or serving a judicial sentence, can be placed outside the reach of a complaint or a visit.

Worked example

A question on judicial guarantees for prisoners of war, or on the death penalty.

Give article 99's three principles first, and note that the right to counsel is a condition of conviction.

Then the procedural chain in order: article 103 on pre-trial confinement capped at three months and deducted; article 104's three weeks' notice with proof required in court; article 105's defence rights with two weeks for counsel and private interviews; article 106's appeal; and article 107's reporting.

Then the death penalty, with article 100's notification and concurrence rules and article 101's six month delay, explaining what the delay is for.

Then article 108 and quote the reference to articles 78 and 126.

Close by connecting to article 84, which makes these guarantees a condition of the lawfulness of the court itself, and to article 75 of Protocol I, which extends comparable guarantees to persons who are not prisoners of war.

What it does NOT mean

It does not mean a prisoner cannot be sentenced to death. The Convention regulates the sentence rather than prohibiting it, though Protocol I adds prohibitions for particular categories.

It does not mean the trial must be public. Article 105 permits proceedings in camera in the interest of State security, with notice to the Protecting Power.

And it does not mean the Detaining Power chooses counsel. It appoints only where neither the prisoner nor the Protecting Power has chosen.

Quick revision

• Article 99: no trial for an act not forbidden at the time the said act was committed; no moral or physical coercion to induce a confession; no conviction without the assistance of a qualified advocate or counsel.
• Article 102: valid sentence only from the same courts according to the same procedure as for the Detaining Power's own forces.
• Article 103: pre-trial confinement only as for its own forces or where essential in the interests of national security, in no circumstances exceeding three months, and deducted.
• Article 104: notice to the Protecting Power at least three weeks before the opening of the trial, with named contents; without proof, the trial is adjourned.
• Article 105: a prisoner comrade, counsel of his own choice, witnesses, an interpreter; the Protecting Power has at least one week to find counsel; counsel has two weeks at least and private interviews; the Protecting Power may attend unless the trial is in camera.
• Article 106: appeal in the same manner as the members of the armed forces of the Detaining Power.
• Article 100: capital offences notified; new ones need the concurrence of the Power on which the prisoners of war depend; the court's attention particularly called to the absence of allegiance.
• Article 101: no execution before at least six months from the date when the Protecting Power receives the detailed communication.
• Article 108: same establishments and conditions; women under the supervision of women; articles 78 and 126 retained; one relief parcel monthly, exercise, medical care and spiritual assistance.

Test yourself

1. Set out the procedural protections that operate between the decision to prosecute and the verdict. Article 103 requires judicial investigations to be conducted as rapidly as circumstances permit so that trial takes place as soon as possible, prohibits pre-trial confinement unless a member of the Detaining Power's own forces would be confined for a similar offence or it is essential in the interests of national security, caps such confinement at three months in all circumstances, and requires any period of it to be deducted from any sentence of imprisonment and taken into account in fixing any penalty. Article 104 requires the Detaining Power to notify the Protecting Power as soon as possible and at least three weeks before the opening of the trial, the period running from receipt at the address the Protecting Power has indicated, and specifies the contents: name, rank, number, date of birth and profession, place of internment or confinement, the specification of the charge with the applicable legal provisions, the court, and the date and place of trial. The same communication goes to the prisoners' representative, and if no evidence is submitted at the trial that the notification was received three weeks beforehand, the trial may not proceed and must be adjourned.

Article 105 supplies the defence rights: assistance by one of his prisoner comrades, defence by a qualified advocate or counsel of his own choice, the calling of witnesses, and a competent interpreter if he deems it necessary, of all of which he must be advised in due time. Failing his choice the Protecting Power finds counsel with at least a week to do so, and failing that the Detaining Power appoints. Counsel has at least two weeks before trial and the facilities to prepare, including free visits and interviews in private, and may confer with witnesses. Representatives of the Protecting Power are entitled to attend unless the trial is held in camera in the interest of State security.

2. Why does article 101 impose a six month delay, and how is the period calculated? Because the delay is the only practical opportunity for intervention. The Convention does not prohibit the death penalty for prisoners of war, so what it does instead is to make the sentence visible and to hold it in suspense long enough for others to act. Article 101 provides that if the death penalty is pronounced on a prisoner of war the sentence shall not be executed before the expiration of a period of at least six months from the date on which the Protecting Power receives, at an indicated address, the detailed communication provided for in article 107.

The method of calculation is deliberate. The period runs not from the date of sentence, and not from the date the Detaining Power despatches anything, but from the date of receipt by the Protecting Power at an address that Power has itself indicated. A Detaining Power therefore cannot start the clock by sending a document to nobody, and cannot shorten the period by delaying the communication. During those six months the prisoner's own State, the Protecting Power and the ICRC can make representations, evidence can be examined, and appeals under article 106 can be pursued. Article 107 supports it by requiring the detailed communication to contain the precise wording of the finding and sentence and a summarised report of the investigation and trial emphasising the elements of prosecution and defence, so what is received is enough to act on. An execution carried out sooner is a violation on the face of the record whatever the merits of the conviction.

3. What do articles 98 and 108 have in common, and why does it matter? Both preserve articles 78 and 126 for a prisoner who is being punished. Article 98 provides that a prisoner undergoing confinement as a disciplinary punishment continues to enjoy the benefits of the Convention except so far as they are necessarily rendered inapplicable by the mere fact of confinement, and that in no case may he be deprived of the benefits of articles 78 and 126. Article 108 provides that prisoners sentenced to a penalty depriving them of liberty shall retain the benefit of the same two articles, and adds entitlements to correspondence, at least one relief parcel a month, regular exercise in the open air, medical care as their health requires, spiritual assistance and visits.

It matters because those two articles are the whole of the Convention's supervisory machinery as it reaches the individual. Article 78 gives the unrestricted right to apply to the representatives of the Protecting Powers, directly if the prisoner considers it necessary, outside any correspondence quota, transmitted immediately, and unpunishable even if the complaint is found unfounded. Article 126 gives Protecting Power and ICRC delegates permission to go to all places where prisoners are, including places of internment, imprisonment and labour, to have access to all premises occupied by prisoners, and to interview prisoners without witnesses. Punishment is exactly the situation in which a detaining authority would most wish to remove a prisoner from view, and it is the situation in which abuse historically occurs. By preserving both articles absolutely in both punishment regimes, the Convention ensures that there is no place inside a camp system where a prisoner is beyond the reach of a complaint or a visit.

The Mixed Medical Commissions: articles 112 and 113

Article 112: upon the outbreak of hostilities, Mixed Medical Commissions shall be appointed to examine sick and wounded prisoners of war, and to make all appropriate decisions regarding them, in conformity with the Regulations annexed to the Convention.

Prisoners who, in the opinion of the medical authorities of the Detaining Power, are manifestly seriously injured or seriously sick, may be repatriated without having to be examined by a Mixed Medical Commission.

The Annex provides the composition: three members, two belonging to a neutral country and appointed by the ICRC in agreement with the Protecting Power, and one appointed by the Detaining Power. One of the two neutral members shall preside.

A two to one neutral majority with a neutral chair is the structural point. The Detaining Power is represented but cannot control the outcome, which is unusual in this Convention and is why the Commissions worked where the Protecting Power system did not.

Article 113 lists who may present themselves for examination beyond those designated by the Detaining Power's medical authorities:

1. Wounded and sick proposed by a physician or surgeon who is of the same nationality, or of an allied Power, and who exercises his functions in the camp.
2. Wounded and sick proposed by their prisoners' representative.
3. Wounded and sick proposed by the Power on which they depend, or by an organization duly recognized by the said Power and giving assistance to the prisoners.

Prisoners who do not belong to these three categories may nevertheless present themselves for examination, but shall be examined only after those who do.

The physician or surgeon of the prisoner's own nationality, and the representative, and the prisoner's own Power are three independent routes to an examination that the Detaining Power does not control.

Articles 114 to 117

Article 114: prisoners who meet with accidents have the benefit of the repatriation provisions unless the injury is self-inflicted.

Article 115: no prisoner of war on whom a disciplinary punishment has been imposed and who is eligible for repatriation or for accommodation in a neutral country may be kept back on the plea that he has not undergone his punishment.

Prisoners detained in connection with a judicial prosecution or conviction may benefit before the end of the proceedings or the completion of the punishment, if the Detaining Power consents, and the parties shall communicate to each other the names of those who will be detained.

Article 116: the cost of repatriating prisoners of war or of transporting them to a neutral country shall be borne, from the frontiers of the Detaining Power, by the Power on which the said prisoners depend.

Article 117: No repatriated person may be employed on active military service.

Article 117 is the consideration for article 109. A State can accept the return of enemy soldiers during a war only if they will not be sent back to fight, and the prohibition binds the receiving State.

Worked example

A question on repatriation during hostilities, or her short note on repatriation at question 7(c), which pairs it with local integration and belongs partly to Module IV.

Give article 109's obligation with its two striking features, during hostilities and regardless of number or rank, and the rule against involuntary repatriation.

Give the three direct categories and the two neutral country categories, and note the recognition that captivity itself damages health.

Give the Mixed Medical Commissions with their composition, and make the point about the two to one neutral majority and the neutral chair.

Give article 113's three routes to examination.

Close with articles 115 to 117: punishment is no bar, cost falls on the prisoner's own Power from the frontier, and no repatriated person may be employed on active military service.

What it does NOT mean

It does not mean a prisoner may be sent home against his will. Article 109 forbids involuntary repatriation during hostilities of those eligible under its first paragraph.

It does not mean every sick prisoner goes home. The categories are defined by medical criteria and by the Commission's decision.

And it does not mean a Detaining Power decides alone. The Commission has a neutral majority and a neutral chair, and three parties independent of the Detaining Power may propose prisoners for examination.

Quick revision

• Article 109: bound to send back regardless of number or rank the seriously wounded and seriously sick, after care until fit to travel; no repatriation against his will during hostilities.
• Article 110, direct: incurable with gravely diminished fitness; unlikely to recover within one year with gravely diminished fitness; recovered but gravely and permanently diminished.
• Article 110, neutral country: recovery expected within a year with better prospects there; and those whose health is seriously threatened by continued captivity.
• Article 112: Mixed Medical Commissions appointed at the outbreak; the manifestly serious may go without examination.
• Composition: three members, two neutral appointed by the ICRC in agreement with the Protecting Power, one by the Detaining Power, a neutral member presiding.
• Article 113: proposal by a physician of the same nationality in the camp, by the prisoners' representative, or by the Power on which they depend.
• Article 114: accidents count unless the injury is self-inflicted.
• Article 115: disciplinary punishment is no plea for keeping a prisoner back.
• Article 116: cost borne from the frontiers of the Detaining Power by the prisoners' own Power.
• Article 117: No repatriated person may be employed on active military service.

Test yourself

1. What does article 109 oblige a Detaining Power to do during hostilities, and what makes the obligation unusual? It obliges parties to the conflict to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel. It further requires parties throughout the duration of hostilities to endeavour, with the cooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of the less seriously affected categories, and permits agreements for the direct repatriation or internment in a neutral country of able bodied prisoners who have undergone a long period of captivity. It ends by providing that no sick or injured prisoner eligible for repatriation under the first paragraph may be repatriated against his will during hostilities.

Two features make it unusual. It operates during the conflict rather than at its close, so it requires a belligerent to hand back enemy personnel while the fighting continues, which no other provision of the Convention does. And the phrase regardless of number or rank forecloses the two objections a Detaining Power would naturally raise: that returning many men at once assists the enemy's manpower, and that senior officers should be retained for their value. The safeguard against involuntary repatriation reflects the reality that a prisoner may have well founded reasons to fear return to his own authorities, a concern which the refugee material in Module IV develops in a different setting. Article 117 supplies the consideration that makes the whole scheme acceptable by prohibiting the employment of a repatriated person on active military service.

2. Describe the Mixed Medical Commissions and explain why their composition matters. Article 112 requires that upon the outbreak of hostilities Mixed Medical Commissions be appointed to examine sick and wounded prisoners of war and to make all appropriate decisions regarding them, in conformity with the Regulations annexed to the Convention, and permits the repatriation without examination of prisoners who in the opinion of the Detaining Power's own medical authorities are manifestly seriously injured or seriously sick. The Annex provides that each Commission consists of three members, two of whom belong to a neutral country and are appointed by the International Committee of the Red Cross in agreement with the Protecting Power, while the third is appointed by the Detaining Power, and that one of the two neutral members shall preside.

The composition matters because it is the only decision making body in the Convention on which the Detaining Power is in a minority and does not hold the chair. Everywhere else the Convention relies on the Detaining Power's own officers, subject to outside supervision and reporting, and on Protecting Powers whose access depends on designation. Here the decision whether a prisoner is repatriated is taken by a body with a two to one neutral majority and a neutral president, appointed by the ICRC in agreement with the Protecting Power. Article 113 reinforces the independence by allowing prisoners to be proposed for examination by a physician of their own or an allied nationality working in the camp, by the prisoners' representative, or by their own Power or a recognised assisting organisation, so the Detaining Power cannot control who is examined either.

3. What happens to a prisoner who is eligible for repatriation but is undergoing punishment or facing trial? Article 115 distinguishes the two situations. A prisoner on whom a disciplinary punishment has been imposed and who is eligible for repatriation or for accommodation in a neutral country may not be kept back on the plea that he has not undergone his punishment, so a disciplinary award is no obstacle at all and cannot be used to defeat the medical entitlement. A prisoner detained in connection with a judicial prosecution or conviction who is designated for repatriation or accommodation may benefit by those measures before the end of the proceedings or the completion of the punishment, but only if the Detaining Power consents, so here the entitlement yields to the criminal process. Parties are required to communicate to each other the names of those who will be detained until the end of proceedings or completion of punishment, which prevents such prisoners from disappearing from the accounting.

The distinction is coherent with the rest of the chapter on penal matters. Disciplinary punishment is capped at thirty days by article 90, is imposed by the camp commander under article 96, and concerns camp order rather than criminal responsibility, so it cannot be allowed to override a medical judgment made by a neutral majority commission. Judicial proceedings concern offences under the law of the Detaining Power, to which the prisoner is subject by article 82, and the Convention does not require a State to abandon a prosecution because the accused has become medically eligible for repatriation. Article 114 adds that a prisoner who meets with an accident has the benefit of the repatriation provisions unless the injury is self inflicted, which prevents self harm from becoming a route home while preserving the entitlement for genuine accidents.

On repatriation, any articles of value impounded under article 18, and any foreign currency not converted, shall be restored. Anything not restored shall be despatched to the Information Bureau set up under Article 122.

Prisoners shall be allowed to take with them their personal effects, and any correspondence and parcels which have arrived for them, with the weight limited if circumstances require to what they can reasonably carry, and in all cases each prisoner shall be permitted to carry at least twenty-five kilograms.

Their other personal effects shall be left in the charge of the Detaining Power, which shall forward them as soon as it has concluded an agreement to that effect.

Article 120: wills and death

Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country of origin, which will inform the Detaining Power of its requirements. At the prisoner's request and in all cases after death, the will shall be transmitted without delay to the Protecting Power, with a certified copy to the Central Agency.

Death certificates, in the form annexed to the Convention, or certified lists of all persons who die as prisoners of war, shall be forwarded as rapidly as possible to the Information Bureau under article 122, showing the particulars of identity, the date and place of death, the cause of death, the date and place of burial and all particulars necessary to identify the graves.

The burial or cremation shall be preceded by a medical examination of the body with a view to confirming death and enabling a report to be made and, where necessary, establishing identity.

The detaining authorities shall ensure that prisoners who have died in captivity are honourably buried, if possible according to the rites of the religion to which they belonged, that their graves are respected, suitably maintained and marked so as to be found at any time, and that they are buried individually unless unavoidable circumstances require a collective grave. Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his express wish, and the fact and reasons must be stated in the death certificate.

A Graves Registration Service shall be established to allow subsequent exhumations, to ensure identification whatever the site of the graves and possible transport to the home country, with lists of graves and particulars communicated to the Power on which the deceased depended.

Article 121: enquiry into deaths

Every death or serious injury of a prisoner of war caused or suspected to have been caused by a sentry, another prisoner of war, or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power.

A communication on this subject shall be sent immediately to the Protecting Power.

Statements shall be taken from witnesses, especially from those who are prisoners of war, and a report including such statements shall be forwarded to the Protecting Power.

If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all measures for the prosecution of the person or persons responsible.

Article 121 is the Convention's investigation duty, and it is broader than it looks.

The trigger includes a death whose cause is unknown, so a Detaining Power cannot avoid the duty by failing to determine what happened. It includes serious injury as well as death. It includes injury caused by another prisoner, so violence inside the camp is covered. Statements must be taken from prisoners, which means the enquiry cannot be conducted on the guards' accounts alone. The report goes to the Protecting Power, so the enquiry is not internal. And prosecution follows a finding of guilt as a duty, not a discretion.

Read with article 12's rule that the Detaining Power is responsible for the treatment given, and with article 129's duty to search for and try those who commit grave breaches, article 121 is the point at which the Convention's accountability machinery attaches to an individual case.

Worked example

Her question 7(c) short note pairs repatriation with local integration, which is a Module IV pairing, but a question on prisoners of war may ask about release at the close of hostilities.

Give article 118's first sentence verbatim and identify the trigger as the factual cessation of active hostilities rather than a peace treaty, and say why that was chosen.

Then take the three arguments, and on the second give both readings and the reconciliation, connecting forward to [Non-Refoulement].

Then give the only textual exception, article 119's pending indictable proceedings.

Then give article 119's property rules and the twenty-five kilogram entitlement, which is concrete.

Close with article 121, and set out the five features that make the investigation duty broad.

What it does NOT mean

It does not mean release awaits a peace treaty. The trigger is the cessation of active hostilities.

It does not mean a prisoner may be repatriated into danger. Practice recognises that a prisoner with a well founded fear of persecution is not to be returned against his will.

And it does not mean a Detaining Power may hold prisoners as leverage. The only permitted retention is for pending indictable proceedings or an unserved sentence, with names communicated.

Quick revision

• Article 118: released and repatriated without delay after the cessation of active hostilities; failing agreement, the Detaining Power establishes and executes a plan; measures brought to the prisoners' knowledge.
• Trigger is factual, not a peace treaty. Not conditional and not a bargaining counter.
• Article 119: conditions as for transfer under articles 46 to 48; valuables and foreign currency restored, anything not restored sent to the Information Bureau; at least twenty-five kilograms carried; detention only for pending indictable proceedings or an unserved sentence, with names communicated.
• Article 120: wills valid by the legislation of their country of origin, transmitted to the Protecting Power; death certificates or certified lists to the Information Bureau; medical examination before burial or cremation; honourably buried, individually, graves marked; Graves Registration Service.
• Article 121: official enquiry into every death or serious injury caused or suspected to be caused by a sentry, another prisoner or any other person, as well as any death the cause of which is unknown; immediate communication to the Protecting Power; statements from witnesses, especially from those who are prisoners of war; prosecution where guilt is indicated.

Test yourself

1. What does article 118 require, and what three questions has it generated? It requires that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities, and that in the absence of stipulations to that effect in any agreement for the cessation of hostilities, or failing any such agreement, each Detaining Power shall itself establish and execute without delay a plan of repatriation in conformity with that principle, the measures adopted being brought to the knowledge of the prisoners.

The first question is what the trigger means. It is the factual cessation of active hostilities, not the conclusion of a peace treaty, and that was chosen deliberately because after both world wars prisoners were held for years while settlements were negotiated. The second is whether repatriation is mandatory against the prisoner's will. The text is unqualified, but practice since 1949 has consistently recognised that a prisoner with a well founded fear of persecution on return is not to be repatriated by force, drawing on the principle of non refoulement. The readings can be reconciled: the Detaining Power's duty is to release and to offer repatriation without delay, and the prisoner cannot be compelled to accept. The third is whether repatriation may be made conditional on other matters, and the answer is no, since using prisoners as leverage in a settlement is exactly the practice the article was written to end. The only textual exception is in article 119, permitting detention of prisoners against whom criminal proceedings for an indictable offence are pending, and if necessary until completion of punishment, with names communicated between the parties.

2. What does article 120 provide about death in captivity? It provides for wills, for certification, for examination, for burial and for records. Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country of origin, which is to inform the Detaining Power of those requirements, and at the prisoner's request and in all cases after death the will shall be transmitted without delay to the Protecting Power with a certified copy to the Central Agency. Death certificates in the annexed form, or lists certified by a responsible officer of all persons who die as prisoners of war, shall be forwarded as rapidly as possible to the Information Bureau established under article 122, showing the particulars of identity, the date and place of death, the cause of death, the date and place of burial and all particulars necessary to identify the graves.

Burial or cremation must be preceded by a medical examination of the body to confirm death, to enable a report to be made and where necessary to establish identity. The detaining authorities must ensure that prisoners who die in captivity are honourably buried, if possible according to the rites of their religion, that their graves are respected, suitably maintained and marked so as to be found at any time, and that burial is individual unless unavoidable circumstances require a collective grave. Cremation is permitted only for imperative reasons of hygiene, on account of the religion of the deceased or in accordance with his express wish, and the fact and reasons must be stated in the death certificate. A Graves Registration Service must be established to permit exhumation, identification and possible transport home, with lists communicated to the Power on which the deceased depended.

3. Why is the investigation duty in article 121 broader than it first appears? Because of five features of its drafting. The trigger is not confined to deaths caused by the detaining authorities: it covers every death or serious injury caused or suspected to have been caused by a sentry, by another prisoner of war, or by any other person, so violence between prisoners and by third parties is included, and it extends to serious injury and not only to death. It also expressly covers any death the cause of which is unknown, which means that a Detaining Power cannot escape the duty by failing to establish what happened, since ignorance is itself a trigger.

The procedure is not internal. A communication must be sent immediately to the Protecting Power, and a report including the witness statements must be forwarded to it, so an outside body receives both notice and the material. Statements must be taken from witnesses, especially from those who are prisoners of war, which prevents an enquiry conducted on the accounts of guards alone. And the consequence is obligatory rather than discretionary: if the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all measures for the prosecution of those responsible. Read with article 12, which makes the Detaining Power responsible for the treatment given irrespective of individual responsibilities, and with article 129, which requires States to search for and bring before their own courts persons alleged to have committed grave breaches regardless of nationality, article 121 is the point at which the Convention's general accountability machinery fastens onto a particular death.

The function of the Agency shall be to collect all the information it may obtain through official or private channels respecting prisoners of war, and to transmit it as rapidly as possible to the country of origin of the prisoners of war or to the Power on which they depend. It shall receive from the Parties to the conflict all facilities for effecting such transmissions.

The High Contracting Parties, and in particular those whose nationals benefit by the services of the Central Agency, are requested to give the said Agency the financial aid it may require.

And a saving clause: these provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of the Red Cross, or of the relief societies.

The two words that matter: official or private channels

A national Bureau receives official information from its own government. The Central Agency may take information through official or private channels, so it can act on a letter from a family, a report from a released prisoner, or a name given by another prisoner, and it can build a picture from fragments that no government has confirmed.

In practice the Central Agency has been the ICRC's Central Tracing Agency in every conflict since 1949, and the same body operates as the central agency for civilians under article 140 of the Fourth Convention and for the missing under article 33 of Protocol I.

Article 124: charges

The national Information Bureaux and the Central Information Agency shall enjoy free postage for mail, likewise all the exemptions provided for in Article 74, and so far as possible exemption from telegraphic charges or, at least, greatly reduced rates.

Article 125: relief societies

Subject to the measures which the Detaining Powers may consider essential to ensure their security or to meet any other reasonable need, the representatives of religious organizations, relief societies, or any other organization assisting prisoners of war, shall receive all necessary facilities for visiting the prisoners, for distributing relief supplies and material, from any source, intended for religious, educational or recreative purposes, and for assisting them in organizing their leisure time within the camps.

Such societies may be constituted in the territory of the Detaining Power or in any other country, or they may have an international character.

The Detaining Power may limit the number of societies and organizations whose delegates are allowed to carry out their activities, provided such limitation does not prevent effective and adequate relief.

And the ICRC's position is expressly preserved: the special position of the International Committee of the Red Cross in this field shall be recognized and respected at all times.

Why this machinery is the Convention's quiet success

It is the part of the Third Convention that has worked most consistently.

The reason is that information costs a Detaining Power nothing. Telling the enemy that a named soldier is alive and held gives away almost no military advantage, and the reciprocal benefit is immediate: the Power that reports gets reports about its own missing.

Compare the Protecting Power system, which requires a State to accept continuous outside supervision, and which has scarcely operated.

The lesson is the one that recurs across this paper. Where compliance is cheap and reciprocal, the Conventions work well; where compliance means submitting to scrutiny, they do not. [Why Implementation Fails] develops it.

Worked example

A question on the machinery for tracing and informing about prisoners.

Give the two-tier structure: a national Bureau in each party and in neutral Powers, and a Central Agency in a neutral country.

Give the content of the information and the requirement that it enable the next of kin to be advised quickly.

Give the distinguishing feature of the Agency, that it takes information through official or private channels, and identify it as the ICRC's Central Tracing Agency.

Connect it to the rest: article 70's capture card feeds it, article 16 of the First Convention and article 19 of the Second feed it, article 119 sends unreturned valuables to it, article 120 sends death certificates and wills to it, and article 140 of the Fourth Convention creates its civilian counterpart.

Close with the assessment of why this machinery works when others do not.

What it does NOT mean

It does not mean the Agency supervises anything. It collects and transmits information; it has no inspection function, which belongs to article 126.

It does not mean relief societies have a right of access. Article 125 subjects their facilities to measures the Detaining Power considers essential for security, and permits limitation of their number.

And it does not mean the Bureau answers only its own government. It is responsible for replying to all enquiries and must make enquiries to obtain information it does not hold.

Quick revision

• Article 122: an official Information Bureau on the outbreak of conflict and in all cases of occupation, and in neutral Powers holding article 4 persons; information forwarded by the most rapid means through the Protecting Powers and the Central Agency; particulars enabling the next of kin to be advised; weekly reports on the seriously ill; replies to all enquiries; communications authenticated by a signature or a seal; collection and transmission of personal valuables in sealed packets with an inventory.
• Article 123: a Central Prisoners of War Information Agency in a neutral country, proposed by the ICRC if it deems necessary; collects information through official or private channels; all facilities for transmission; financial aid requested; no restriction of ICRC or relief society activities.
• Article 124: free postage, the article 74 exemptions, and reduced telegraphic charges.
• Article 125: facilities for religious organizations, relief societies, and others to visit and distribute; number may be limited provided such limitation does not prevent effective and adequate relief; the special position of the ICRC recognised and respected at all times.

Test yourself

1. Describe the two-tier information system and explain the difference between its two levels. The first tier is national. Article 122 requires each party to a conflict, upon the outbreak of a conflict and in all cases of occupation, to institute an official Information Bureau for the prisoners of war in its power, and requires neutral or non-belligerent Powers that have received persons in the article 4 categories to do the same. The Power must provide the Bureau with the accommodation, equipment and staff needed for efficient working. The Bureau receives from its own authorities, within the shortest possible period, information on prisoners in their power, including transfers, releases, repatriations, escapes, hospital admissions and deaths, and forwards it by the most rapid means to the Powers concerned through the Protecting Powers and through the Central Agency. It answers all enquiries about prisoners, makes enquiries to obtain information it does not hold, authenticates its communications by signature or seal, and collects and transmits the personal valuables and documents left by prisoners who have been repatriated, released, escaped or died.

The second tier is neutral and central. Article 123 requires the creation of a Central Prisoners of War Information Agency in a neutral country, which the ICRC may propose to the Powers concerned, whose function is to collect all the information it may obtain respecting prisoners of war and to transmit it as rapidly as possible to their country of origin or to the Power on which they depend. The decisive difference is the source of information. A national Bureau receives official information from its own government. The Central Agency may take information through official or private channels, so a letter from a family, a name given by a released prisoner or a report from a relief society can all feed it, and it can assemble a record from fragments that no government has confirmed.

2. How does the information machinery connect with the rest of the Conventions? It is fed by provisions scattered across all four. Article 70 of the Third Convention requires every prisoner to be enabled to write a capture card to his family and to the Central Agency within a week of arrival at a camp, giving his capture, address and state of health, and forbids any delay in forwarding it. Article 16 of the First Convention and article 19 of the Second require parties to record eight particulars for each wounded, sick, shipwrecked or dead person of the adverse party falling into their hands and to forward them to the Information Bureau under article 122, which transmits them through the Protecting Power and the Central Agency, together with half of a double identity disc, wills, money and articles of value.

Within the Third Convention itself, article 119 requires articles of value and foreign currency not restored on repatriation to be sent to the Bureau; article 120 requires death certificates or certified lists, and wills, to be forwarded, and requires grave particulars to be communicated; article 94 requires notification when an escaped prisoner is recaptured; and article 54 requires medical certificates for work related injury to be copied to the Central Agency. Article 140 of the Fourth Convention creates the civilian counterpart of the Central Agency, and article 33 of Additional Protocol I imposes the duty to search for persons reported missing and to transmit information. Article 124 supports all of it by giving both tiers free postage, the customs and postal exemptions of article 74, and reduced telegraphic rates.

3. Why has this part of the Convention worked better than most of it? Because compliance is cheap and the benefit is immediate and reciprocal. Reporting that a named enemy soldier is alive and held in a named place gives away almost nothing of military value: it does not disclose dispositions, capabilities or intentions, and the information becomes stale for any operational purpose almost at once. In exchange, the reporting Power receives corresponding information about its own missing personnel, which its own government and its own families want badly. Both sides therefore gain from a functioning system and neither loses much by supporting it, which is why national Bureaux have been established and the Central Tracing Agency has operated in conflict after conflict since 1949.

The contrast with the supervisory machinery is instructive and is worth making in an answer. The Protecting Power system under articles 8 to 11 and article 126 requires a belligerent to accept a foreign State's continuous inspection of its camps, its records and its treatment of prisoners, with interviews conducted without witnesses. That is not cheap: it means submitting conduct to a hostile audience during a war, and it has operated in only a handful of conflicts since 1949. The general lesson runs through the whole of Module III. Provisions that require information tend to be observed; provisions that require scrutiny tend not to be, and the ICRC's confidential method exists because it offers a State something closer to the first than to the second.

And the sentence that this Convention adds and the others do not: Any military or other authorities, who in time of war assume responsibilities in respect of prisoners of war, must possess the text of the Convention and be specially instructed as to its provisions.

That obligation is individual and specific, and it matches article 39's requirement that the camp commander have a copy in his possession. The Convention is not content with general dissemination where prisoners are concerned.

Article 128: communication of official translations and of implementing laws through the Swiss Federal Council and, during hostilities, the Protecting Powers.

Grave breaches: articles 129 and 130

Article 129 is identical to article 49 of the First Convention: enact legislation providing effective penal sanctions; search for persons alleged to have committed, or to have ordered to be committed, such grave breaches; bring such persons, regardless of their nationality, before its own courts or hand them over on a prima facie case; and suppress all other breaches. Safeguards of proper trial not less favourable than article 105 and those following.

Article 130 lists five grave breaches, two more than the First and Second Conventions.

• wilful killing
• torture or inhuman treatment, including biological experiments
• wilfully causing great suffering or serious injury to body or health
• compelling a prisoner of war to serve in the forces of the hostile Power
• wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention

The two additional breaches are specific to prisoners and both are worth naming.

Compelling service in the hostile Power's forces was a practice of the Second World War and it strikes at the whole basis of the status: a prisoner owes allegiance to his own State and cannot be turned into a soldier of the captor.

Wilful deprivation of the rights of fair and regular trial makes the judicial guarantees in articles 99 to 108 criminally enforceable. A sham trial is not merely a procedural failure; it is a grave breach for which the individuals responsible may be prosecuted anywhere.

Article 131: No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred in respect of such breaches.

Article 132: the enquiry procedure, at the request of a party, with an umpire on procedure failing agreement, and an obligation to end and repress an established violation with the least possible delay. Never used, for the reasons given in [The First Convention: Execution and Repression].

Worked example

A question on how the Third Convention is supervised and enforced.

Give article 126 and take its five elements one at a time, saying what practice each defeats. That analysis is what distinguishes a good answer from a recitation.

Then article 127's special sentence about authorities who assume responsibilities in respect of prisoners, connected to article 39's camp commander.

Then articles 129 and 130, and identify the two additional grave breaches and why each is specific to this Convention.

Then article 131 and article 132, and say that the enquiry procedure has never operated.

Close with the internal machinery: article 41's posted text, article 78's complaint right, articles 79 to 81's representative, and articles 98 and 108's preservation of articles 78 and 126 during punishment. The Convention builds a supervisory chain from inside the camp to a neutral delegate, and the chain is only as strong as the access at its far end.

What it does NOT mean

It does not mean the ICRC has a right of access independent of consent. Its delegates enjoy the same prerogatives, but their appointment is subject to the approval of the Detaining Power.

It does not mean visits can never be stopped. Imperative military necessity permits an exceptional and temporary prohibition.

And it does not mean every violation is a grave breach. Five acts are listed; article 129 requires the suppression of the rest by other means.

Quick revision

• Article 126: access to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and to places of departure, passage and arrival; interviews without witnesses; full liberty to select the places they wish to visit; duration and frequency shall not be restricted; prohibition only for imperative military necessity, exceptional and temporary; ICRC delegates the same prerogatives, subject to approval.
• Article 127: dissemination in peace and war; any military or other authorities who in time of war assume responsibilities in respect of prisoners of war must possess the text and be specially instructed.
• Article 129: enact, search, try regardless of their nationality or hand over on a prima facie case, suppress the rest.
• Article 130, five grave breaches: wilful killing; torture or inhuman treatment including biological experiments; wilfully causing great suffering or serious injury; compelling a prisoner of war to serve in the forces of the hostile Power; wilfully depriving a prisoner of war of the rights of fair and regular trial.
• Article 131: no absolution from liability. Article 132: the enquiry procedure, never used.

Test yourself

1. Take article 126 element by element and explain what practice each defeats. The article gives representatives or delegates of the Protecting Powers permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and access to all premises occupied by prisoners. Naming imprisonment and labour defeats the practice of confining supervision to the main camp while punishment cells and outlying work detachments remain unseen, and articles 98 and 108 reinforce it by preserving article 126 for prisoners under disciplinary punishment and under sentence. The extension to places of departure, passage and arrival of prisoners being transferred defeats the practice of ill treating prisoners in transit, when no camp commander is answerable and no records exist.

The right to interview prisoners, and in particular the prisoners' representatives, without witnesses, either personally or through an interpreter, defeats the supervised interview, in which a prisoner speaking in front of his guards says what is safe rather than what is true. Full liberty to select the places they wish to visit defeats the showpiece camp prepared for inspection. The rule that the duration and frequency of visits shall not be restricted defeats the brief and infrequent tour. And the single exception, that visits may not be prohibited except for reasons of imperative military necessity and then only as an exceptional and temporary measure, is doubly qualified in the same way as article 8's restriction on Protecting Power delegates, so that the exception cannot swallow the rule. Delegates of the ICRC enjoy the same prerogatives, subject to the Detaining Power's approval of their appointment.

2. Which two grave breaches are peculiar to the Third Convention, and why does each exist? Article 130 lists five grave breaches where the First and Second Conventions list four. The three shared with them are wilful killing, torture or inhuman treatment including biological experiments, and wilfully causing great suffering or serious injury to body or health. The two additional ones are compelling a prisoner of war to serve in the forces of the hostile Power, and wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in the Convention. Note that the fourth breach of the other Conventions, extensive destruction and appropriation of property, does not appear here, because the Third Convention protects persons rather than property.

Compelling service in the hostile Power's forces exists because the practice was widespread in the Second World War and because it destroys the basis of the status. A prisoner of war is a member of an enemy armed force who owes allegiance to his own State, and article 87 requires courts to remember that he owes none to the Detaining Power; conscripting him inverts that relationship entirely and exposes him to being killed by his own side. Wilful deprivation of the rights of fair and regular trial exists to give criminal force to articles 99 to 108. Without it, a sham trial would be a violation attracting only the general duty of suppression in article 129's third paragraph; with it, the officers and judges responsible commit an offence for which any State party must search for them and bring them before its own courts regardless of nationality.

3. How do the internal and external supervisory mechanisms of the Third Convention fit together? They form a chain, and each link is separately drafted. At the innermost point, article 41 requires the text of the Convention to be posted in the prisoners' own language where all may read it, so the prisoners know the standard. Article 39 identifies a responsible commissioned officer of the regular armed forces who must have a copy of the Convention in his possession and is responsible for its application, so there is a person to whom things can be said, and article 127 requires that any military or other authority assuming responsibilities in respect of prisoners possess the text and be specially instructed in it.

Articles 79 to 81 create a prisoners' representative, elected by secret ballot every six months, who may inspect labour detachments, may be freely consulted by every prisoner, has unrestricted communications, and may not be held responsible for offences committed by other prisoners. Article 78 gives every prisoner the right to make requests to the military authorities and an unrestricted right to complain to the Protecting Power, directly if he considers it necessary, outside any correspondence quota, transmitted immediately and unpunishable even if unfounded. Article 126 supplies the far end: delegates who may go anywhere prisoners are, choose their own destinations, visit as often and as long as they wish, and interview without witnesses. Articles 98 and 108 preserve articles 78 and 126 for prisoners under punishment, so the chain cannot be cut at its most vulnerable point. The whole structure nonetheless depends on a Protecting Power being designated or the ICRC being admitted, and where neither happens the internal links have nowhere to lead.

And the gap it does not close is the State's own population. For them the protection comes from Part II, from human rights law and, in non-international conflict, from common article 3 and Protocol II.

Article 5: the derogation

This is the most restrictive provision in any of the four Conventions, and it must be stated accurately.

In the territory of a party to the conflict, where the party is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

In occupied territory, where an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

The limits on article 5

Four, and an answer must give them.

It is individual. The words an individual protected person exclude any application to a class or a group.

The suspicion must be definite. A general suspicion of a category is not enough.

Only rights whose exercise would be prejudicial to security may be withheld, in belligerent territory; in occupied territory only rights of communication are lost.

And the floor is absolute: In each case, such persons shall nevertheless be treated with humanity and, in case of a trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

So article 5 permits reduction and never removal. Humane treatment and fair trial survive in every case, and full rights revive at the earliest date consistent with security.

Article 75 of Additional Protocol I now supplies the same floor for everyone, which is why [Article 75, and the Fundamental Guarantees] belongs with this material.

The Fourth Convention's own numbering of the common provisions

The general provisions are the same as the other three Conventions' and they are numbered one higher, because the Fourth Convention inserts an article on the definition of protected persons.

Article 2 of the Fourth Convention is common article 2, applying the Convention to declared war or any other armed conflict and to partial or total occupation meeting no armed resistance.

Article 6 is the Fourth Convention's own provision on duration, and it differs from article 5 of the First. The Convention applies from the outset of any conflict or occupation; in the territory of parties to the conflict, application ceases on the general close of military operations; in the case of occupied territory, application ceases one year after the general close of military operations, save that the Occupying Power remains bound for the duration of the occupation, to the extent that it exercises the functions of government, by a long list of articles including 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77 and 143. And protected persons whose release, repatriation or re-establishment takes place later continue to benefit meanwhile.

Article 7 is the special agreements article, in the same terms as article 6 of the First Convention: no agreement may adversely affect the situation of protected persons or restrict the rights the Convention confers. Article 8 is the non-renunciation rule.

Articles 9, 10, 11 and 12 are the Protecting Power machinery: scrutiny by Protecting Powers, the preservation of ICRC humanitarian activities subject to the consent of the parties, substitutes offering all guarantees of impartiality and efficacy, and good offices with a meeting the parties are bound to give effect to. [Protecting Powers, and Their Substitutes] takes them.

The structure of the Convention

Part II is the exception to the whole scheme, and article 4 says so expressly: The provisions of Part II are, however, wider in application, as defined in Article 13.

Article 13: The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war.

So Part II protects everyone, including a State's own nationals, and [Provisions for the Whole of the Populations] takes it.

Worked example

Her question 7(d), a short note on the protection of civilians during war, and any question on the Fourth Convention.

Begin with what the Convention does not do, because that is the point most answers miss. It does not protect civilians generally; it protects those in the hands of a party of which they are not nationals.

Give article 4 with its exclusions, and explain the diplomatic protection logic of the neutral and co-belligerent exclusion.

Then give Part II as the exception, with article 13's words the whole of the populations of the countries in conflict.

Then give article 5 with all four limits and the absolute floor, quoting treated with humanity and the rights of fair and regular trial.

Then note the nationality problem and the purposive reading adopted by the tribunals.

Close by identifying what fills the remaining gaps: Part II, common article 3, Protocol I's Part IV on the civilian population, article 75, and human rights law.

What it does NOT mean

It does not mean the Convention protects civilians from attack. Protection against the effects of hostilities is Part II and, much more fully, Part IV of Protocol I. The Fourth Convention is mostly about civilians in the hands of the enemy.

It does not mean a State's own nationals are protected persons. They are not, under the text.

And it does not mean article 5 removes protection. It permits the withholding of specified rights, and preserves humane treatment and fair trial absolutely.

Quick revision

• Article 4: in the hands of a Party to the conflict or Occupying Power of which they are not nationals; excludes nationals of non-parties, and neutrals and co-belligerents with normal diplomatic representation; excludes persons protected by the other three Conventions.
• Nationality is the formal test; the tribunals have read it purposively as substantial relations and allegiance.
• Article 13: Part II covers the whole of the populations of the countries in conflict.
• Article 5: derogation for a person definitely suspected of or engaged in activities hostile to the security of the State; in occupied territory, loss of rights of communication where absolute military security so requires.
• Article 5's floor: treated with humanity, the rights of fair and regular trial, and full rights restored at the earliest date consistent with the security of the State.
• 159 articles, the largest of the four.

Test yourself

1. Who is a protected person under article 4, and who is excluded? A protected person is one who, at a given moment and in any manner whatsoever, finds himself, in case of a conflict or occupation, in the hands of a party to the conflict or Occupying Power of which he is not a national. The definition therefore turns on two things: being in the hands of a party, which covers presence in its territory as an alien and residence in territory it occupies, and not being a national of that party.

Four exclusions follow. Nationals of a State not bound by the Convention are not protected by it, which has no practical effect today since ratification is universal. Nationals of a neutral State in the territory of a belligerent, and nationals of a co-belligerent State, are not protected persons while their State has normal diplomatic representation in the State in whose hands they are, the logic being that they already have a government able to act for them and the Convention exists for those who have none. Persons protected by the First, Second or Third Conventions are excluded, so the four instruments are mutually exclusive. And by implication a party's own nationals are excluded, since the definition requires that the person not be a national of the party holding them. That last exclusion is the significant one, and it means the Convention does not reach a State's treatment of its own population, for which Part II, common article 3, Protocol II and human rights law must be used instead.

2. What does article 5 permit, and what does it not permit? It permits a reduction of rights in two defined situations. In the territory of a party to the conflict, where that party is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, that person is not entitled to claim such rights and privileges under the Convention as would, if exercised in his favour, be prejudicial to the security of the State. In occupied territory, where an individual protected person is detained as a spy or saboteur or under definite suspicion of activity hostile to the security of the Occupying Power, that person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the Convention.

It does not permit removal of protection, and four limits confine it. The derogation is individual, since the article speaks of an individual protected person, so it cannot be applied to a class, a category or a population. The suspicion must be definite, which excludes generalised suspicion. Only rights whose exercise would be prejudicial to security may be withheld in belligerent territory, and in occupied territory only rights of communication are affected. And the floor is absolute: in each case such persons shall nevertheless be treated with humanity and, in case of a trial, shall not be deprived of the rights of fair and regular trial prescribed by the Convention, and they shall be granted the full rights and privileges of a protected person at the earliest date consistent with the security of the State or Occupying Power.

3. What is the difficulty with the nationality test, and how has it been addressed? The difficulty is that formal nationality is a poor proxy for the danger the Convention was written to meet. Article 4 protects a person in the hands of a party of which he is not a national, which assumes that vulnerability follows from being a foreign national in enemy hands. In conflicts organised around ethnic or communal division rather than around States, the people most at risk are frequently nationals of the very State detaining them, or nationals of a newly formed State that shares its nationality with the detaining authority, and on the literal test they are not protected persons at all. The same literal test also leaves a State's own nationals wholly outside the Convention.

The international criminal tribunals addressed the first part of the problem by reading article 4 purposively. They held that in such conflicts allegiance to a party and the corresponding protection of that party may be the substantial relationship that the drafters had in mind, and that ethnicity may be more determinative than formal nationality, so that persons of the same nominal nationality as their captors could be protected persons. That reading is now widely accepted, though it departs from the text and has been criticised for doing so. The second part of the problem was not solved by interpretation but by other instruments: Part II of the Convention covers the whole of the populations of the countries in conflict by article 13, common article 3 and Additional Protocol II govern non-international conflict, Part IV of Additional Protocol I protects the civilian population against the effects of hostilities regardless of nationality, article 75 supplies fundamental guarantees to anyone in a party's power, and human rights law continues to apply.

Articles 16 and 17: the vulnerable

Article 16: The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.

As far as military considerations allow, each Party shall facilitate the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment.

Article 17: parties shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.

Article 17 is the treaty basis for humanitarian corridors and evacuations from a siege, and its weakness is the word endeavour. It obliges parties to try, not to agree.

Civilian hospitals: articles 18 to 20

Article 18: Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected.

States shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that their buildings are not used for any purpose that would deprive them of protection.

They shall be marked by means of the emblem provided for in article 38 of the First Convention, but only if so authorized by the State, and parties shall so far as military considerations permit take steps to make the emblems clearly visible to enemy forces in order to obviate the possibility of any hostile action. In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives.

Article 19 repeats the loss of protection rule: protection shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy, and only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.

And it adds two preserved conditions: the presence of sick or wounded members of the armed forces in the hospital, and of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered acts harmful to the enemy.

Article 20: Persons regularly and solely engaged in the operation and administration of civilian hospitals, including those engaged in the search for, removal, transport and care of wounded and sick civilians, the infirm and maternity cases, shall be respected and protected. In occupied territory and zones of military operations they are recognisable by an identity card bearing a photograph and the responsible authority's stamp, and by a stamped, water-resistant armlet worn on the left arm while carrying out their duties.

Articles 21 and 22 extend protection to convoys of vehicles, hospital trains and vessels transporting wounded and sick civilians, the infirm and maternity cases, and to aircraft flying at heights, times and on routes specifically agreed upon, which may not be attacked but shall be respected while flying on those terms.

Article 23: relief consignments

Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary.

It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

The obligation is subject to three conditions, that the party is satisfied there are no serious reasons for fearing that the consignments may be diverted from their destination, that the control may not be effective, or that a definite advantage may accrue to the military efforts or economy of the enemy through substitution for goods the enemy would otherwise have supplied.

And a right of inspection: the Power allowing passage may prescribe the technical arrangements under which such passage is allowed, and may make permission conditional on distribution being made under the local supervision of the Protecting Powers.

Article 23 is narrow and it is the ancestor of the modern law on humanitarian access. It covers only medical stores and religious objects for civilians generally, and food and clothing only for children under fifteen, expectant mothers and maternity cases. Articles 70 and 71 of Protocol I widened it substantially, requiring relief actions for a civilian population inadequately provided with supplies, subject to the agreement of the parties concerned.