Section 5p. 5

PUBLIC INTERNATIONAL LAW COMPENDIUM VOLUME II

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The Conventions apply to a signatory nation even

if the opposing nation is not a signatory, but only

if the opposing nation "accepts and applies the

provisions"

of

the

Conventions.

Source:

1952

Commentary on the Geneva Conventions , edited

by Jean Pictet.

Enforcement of the Geneva Conventions

The Geneva Conventions provide for universal jurisdiction ,

as opposed to a more traditional (and limited) territorial

jurisdiction that was designed to respect the sovereignty

of States over their citizens. The doctrine of universal

jurisdiction is based on the notion that some crimes, such

as genocide , crimes against humanity , torture , and war

crimes , are so exceptionally grave that they affect the

fundamental interests of the international community as

a whole. It renders the convicts or accused of such crimes

to the jurisdiction of all signatory States , regardless of

their nationality or territoriality of their crime.

Every State bound by the treaties is under the legal

obligation to search for and prosecute those in its territory

suspected of committing such crimes, regardless of the

nationality of the suspect or victim, or of the place where

the act was allegedly committed. The State may hand the

suspect over to another State or an international tribunal

for trial. Where domestic law does not allow for the

exercise of universal jurisdiction, a State must introduce

the necessary domestic legislative provisions before it can

do so, and must actually exercise the jurisdiction , unless it

hands

the

suspect

over

to

another

country

or

international tribunal .

Despite being signatory to the Conventions, there are

some notable and often-criticized U.S. cases involving

conduct that would otherwise be prohibited by the

Conventions, such as Hamdi v. Rumsfield (2004). In

Hamdi , a U.S. citizen was accused of being a member of

the Taliban forces on U.S. soil as an "enemy combatant,"

and was detained by unilateral Executive decision; The

U.S. Supreme Court ruled on the validity of his detention.

Hamdi argued that such detention was illegal under the

Geneva

Conventions,

without

express

Congressional

consent. The Court rejected this argument and held that

consent exised since September 11, 2001, through an

Authorization

for

Use

of

Military

Forces

(AUMF),

a

Congressional

resolution

which

empowered

the

President to use all necessary and appropriate forces

against any nations, organizations, or persons that he

determined to have planned, authorized, committed, or

aided in the September 11, 2001 attacks.

Convention (I) for the Amelioration of the

Condition of the Wounded and Sick in Armed

Forces in the Field.

Preamble

The undersigned Plenipotentiaries of the Governments

represented at the Diplomatic Conference held at Geneva

from April 21 to August 12, 1949, for the purpose of revising

the Geneva Convention for the Relief of the Wounded

and Sick in Armies in the Field of July 27, 1929, have

agreed as follows:

Chapter I. General Provisions

Art 1. The High Contracting Parties undertake to respect

and to ensure respect for the present Convention in all

circumstances.

Art. 2. In addition to the provisions which shall be

implemented in peacetime, the present 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.

The Convention shall also apply to all cases of partial or

total occupation of the territory of a High Contracting

Party, even if the said occupation meets with no armed

resistance.

Although one of the Powers in conflict may not be a party

to the present Convention, the Powers who are parties

thereto shall remain bound by it in their mutual relations.

They shall furthermore be bound by the Convention in

relation to the said Power, if the latter accepts and applies

the provisions thereof.

Art. 3. In the case of armed conflict not of an international

character occurring in the territory of one of the High

Contracting Parties, each Party to the conflict shall be

bound to apply, as a minimum, the following provisions:

(1)

Persons

taking

no

active

part

in

the

hostilities,

including members of armed forces who have laid down

their arms and those placed hors de combat by sickness,

wounds,

detention,

or

any

other

cause,

shall in all

circumstances be treated humanely, without any adverse

distinction founded on race, colour, religion or faith, sex,

birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain

prohibited at any time and in any place whatsoever with

respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all

kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c)

outrages

upon

personal

dignity,

in

particular

humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of

executions without previous judgement pronounced by a

regularly

constituted

court,

affording

all the judicial

guarantees which are recognized as indispensable by

civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International

Committee of the Red Cross, may offer its services to the

Parties to the conflict.

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 application of the preceding provisions shall not

affect the legal status of the Parties to the conflict.

Art.

4.

Neutral

Powers

shall

apply

by

analogy

the

provisions of the present Convention to the wounded and

sick, and to members of the medical personnel and to

chaplains of the armed forces of the Parties to the

conflict, received or interned in their territory, as well as to

dead persons found.

Art. 5. For the protected persons who have fallen into the

hands of the enemy, the present Convention shall apply

until their final repatriation.

Art. 6. In addition to the agreements expressly provided

for in Articles 10, 15, 23, 28, 31, 36, 37 and 52, the High

Contracting

Parties

may

conclude

other

special

agreements for all matters concerning which they may

deem it suitable to make separate provision. 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 present Convention, nor

restrict the rights which it confers upon them.

Wounded and sick, as well as medical personnel and

chaplains, shall continue to have the benefit of such

agreements as long as the Convention is applicable to

them, except where express provisions to the contrary are

contained in the aforesaid or in subsequent agreements,

or where more favourable measures have been taken

© Compiled by RGL

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