In the year 1859, European businessman and founder of the Young Men’s Christian Association (YMCA) Henry Durant visited Emperor Napoleon III’s headquarters in northern Italy to ask for land rights for a particular business venture. During his travel, he came across the Battle of Solferino where the armies of Imperial Austria and Franco-Sardinia Alliance fought a bloody battle to result in the death of 40,000 men who died due to the lack of medical attention. His experiences of human pain and suffering were written by him in his book in 1862: A Memory of Solferino, wherein he proposed that nations and their leaders must come together to create a group of well-trained, enthusiastic and devoted volunteers who would be tasked with treating the wounded soldiers in the battlefield while providing humanitarian assistance to every individual affected by the negative aspects of war. Durant called these groups to be relief societies whose held and aid shall be neutral and impartial in times of war; additionally, Durant called upon the nations to sign and ratify an international agreement to officially recognise the status of medical professionals and services while upholding the rights of the wounded individuals in a war on not only the allied side but also the enemy side. In response to Durant’s appeal, the International Committee for Relief to the Wounded was established in 1863 with its charter founded in the same year; additionally, the First Geneva Convention was adopted in 1864 with 12 nations ratifying the agreement. It is worth noting that the International Committee of the Red Cross was awarded the first Nobel Peace Prize for their work in caring for the prisoners of war; however, major improvements and amendments to the convention were undertaken by 35 nations under the aegis of the Swiss Government, wherein human rights and protections were extended to not only the prisoners of war but also the medical professionals who are tasked with removing the individuals from the scene of the war (and battlefield), transporting them ad subsequently, treating them.
First Geneva Convention
The 1st Geneva Convention was signed on August 22, 1864, as the Convention for the Amelioration of the Condition of the Wounded in Time of War, wherein the convention outlined four major contentions: a) Institutions established for the treatment of the wounded and sick soldiers are immune from any attempts of capture and destruction by any party in the war, b) The medical professionals must treat all victims equally without any bias and partiality in their reception and treatment, c) The medical professionals and civilians involved in the treatment of the aforementioned persons must be protected from the war and conflict at all times, and d) The said institutions and medical personnel must be identified with the symbol of a red cross to be covered under the ambit of the convention. The signing of the convention was presided over by General Guillaume Henri Dufour at Geneva’s Hotel de Ville where the Swiss Federation, Kingdom of Italy, Grand Duchy of Baden, Kingdom of Netherlands, Kingdom of Belgium, Kingdom of Portugal, Kingdom of Denmark, Kingdom of Spain, Kingdom of Prussia, Kingdom of Wurttemberg, Empire of France and the Grand Duchy of Hesse. Out of the 64 articles of the convention, Article 12 stands out since it talks about protecting and caring for the wounded persons of either the armed forces or the civilian crowd under all circumstances respectfully and humanely by the party to the conflict (under whom the said person is held), wherein the care must be impartial, devoid of any discrimination based on sex, race, nationality, religion, political affiliations; additionally, Article 12 bars the aforementioned party to subject the said person to any mutilation, outrages upon personal dignity, violence, torture, extermination and execution, murder, biological experimentation, exposure to biological contagion/ infection, wherein the party to the conflict is dutifully bound to provide medical assistance to the said prisoner of war. Article 15 substantiates Article 12 by highlighting the duty of the party to a conflict to take all possible measures without delay to search and collect all the wounded persons (either directly or indirectly due to the conflict) from the conflict zone, wherein the party must extend adequate care to the wounded persons while ensuring their protection from ill-treatment and pillage; conversely, in situations where the conflict zone has dead persons, the party to the conflict (within whose territory the dead person exists) must ensure the recovery of the dead person to prevent its despoiling. At the times conflict zone may be inaccessible due to the constant threat of ammunition and unrest, herein, the parties to the conflict must reach an understanding/ armistice to arrange for the removal and transport of the wounded persons in the zone. Article 3 entrusts the International Committee of the Red Cross, an impartial international humanitarian organization whose services may be called upon by the parties to the conflict. Article 13 outlines six categories of individuals who are protected under the aegis of the convention for a conflict between nations X and Y:
- Members of the armed forces of X, including the members of other militias associated with the aforementioned armed forces.
- Members of organized resistance groups, belonging and affiliated to X, either operated within or outside the territory of X, such resistance groups/ corps must be commanded by a superior source of command, must have a fixed and distinctive sign recognizable from a considerable distance, must be seen carrying arms openly, must conduct their resistance and operations in accordance with the law of the land and customs of warfare.
- Members of armed forces not recognized by the detaining party Y, provided the force pledge their allegiance with either a specific country’s government or authority.
- Crew members of the armed forces and its modalities: aircraft (pilots, technicians) and ships (captains); the same is extended to cover the crew members of merchant ships and civilian aircraft.
- Individuals accompanying members of the armed forces in the conflict zone, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces of X, which they accompany.
- If an area is unoccupied by the armed forces of X and Y and if members of either of the armed forces encroach upon the said area, wherein the inhabitants of the area had no time to coalesce themselves into an organized military unit and if the said inhabitants carry arms open to protect themselves from the encroaching armed forces of either X or Y, then the inhabitants are covered under Article 3 of the convention, provided the protective resistance conforms to the law of the land and the customs of war.
It is worth noting that the convention applies to all armed conflicts and declaratory wars between two or more parties to the convention, even if the status of war is not recognized by any one of the conflicting parties; additionally, the convention applies to situations where a significant portion of the territory of a party is either partially or fully occupied by a conflicting party, even if the latter’s occupation faces no armed resistance from the former. In situations where if one of the parties to the conflict is not a signatory to the convention, then the other parties to the conflict who were parties to the convention will be bound by the provisions of the convention under Article 2.
In 1906, thirty-five nations attended a conference organized by the then Swiss government to gauge any improvements and amendments to the First Geneva Convention, wherein an amendment was adopted on July 6, 1906, titled ‘The Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.’ The atrocities of World War I forced the world leaders to convene a conference in 1929 to consider the provisions available for the prisoners of war, wherein one of the fore-running proposals was to make the food provided to the prisoners of war sufficient in quantity and quality so as to keep the prisoners of war in good health while preventing the development of nutritional deficiencies in the bodies of the said prisoners. Although Germany had signed the Second Geneva Convention in 1929, the horrific acts committed by the populace of the country during World War II on and off the combat zone and in the military concentration camps; hence, the provisions of the convention were expanded in 1949 in the aftermath of World War II. The Third Geneva Convention was signed on August 12, 1949, wherein the signatories to the convention were mandated to not only abide by certain humanitarian principles but also enact any legislation necessary to effectively enforce the provisions of the convention while imposing legal sanctions against the nations who violate the said principles. The Third Geneva Convention of 1949 aimed to protect the interests of the soldiers in and out of the battlefield while expanding the original ten articles of the First Geneva Convention of 1864 to sixty-four articles in the present form of 1949, wherein the scope of protected persons was expanded to cover the aforementioned individuals. The Geneva Convention, 1949, restated the humanitarian principles codified by the convention in 1864 because the activities in the war by the two sides seemed to disregard the said principles in totality. In 1950, India became the fifth nation in the world to not only sign but also ratify the Geneva Convention, 1949, wherein the regional centre for the International Committee of the Red Cross (ICRC) was established in India in 1982; however, the humanitarian efforts of the committee was extended towards the victims of the conflict between India and Pakistan in 1947, 1962, 1965 and 1971.
One of the glaring examples of India’s involvement with the ICRC was the Indo-China war of 1962 where China had captured and held approximately 3,000 Indian soldiers in Chinese territory. Although the People’s Republic of China was a signatory to the Geneva Convention, 1949, its regime ignored the convention’s mandate of protecting all victims of international and cross-border armed conflicts by placing the Indian soldiers in solitary confinement while brainwashing with Chinese propaganda aimed to convince the prisoners that India was the wrongdoer in the war. China declared that the 1962 conflict does not amount to war and situation can be resolved by direct bilateral talks between New Delhi and Beijing, wherein the Chinese held that any intervention by the ICRC was unwarranted; however, the Indian side held the exact opposite and plead for support from the other non-aligned nations in the region. On December 28, 1962, the ICRC submitted a note to the Regional Red Cross in China, which described the following:
- The People’s Republic of China captured approximately 2,000 Indian soldiers as prisoners of war during the duration of the war: October to December of 1962.
- China handed over approximately 600 wounded soldiers to India at the beginning of December 1962; additionally, the Chinese Red Cross informed the Indian Red Cross about the health status of 528 Indian prisoners in accordance with Article 16 of the convention.
- India did not hold any Chinese prisoner of war either during the war or in the aftermath of the conflict.
- On November 1, 1962, the ICRC requested the governments of the People’s Republic of China and India to talk to each other via their respective representatives in Geneva about the application of the Geneva Convention in their respective nations since the former had ratified the convention on December 28, 1956, while the latter ratified the same on November 9, 1950.
- The ICRC asked the Chinese officials for the health information of all the Indian prisoners of war while receiving authorization from the Chinese government for a representative from the ICRC to visit the said prisoners in Tibet.
It is worth noting that the Indian Red Cross sent a letter to the Chinese officials on December 2, 1962, asking for authorization from them regarding the visitation of an Indian representative to the Indian prisoners in China’s captivity.
The coalesced efforts of the Indian officials and the ICRC pressurized the Chinese officials to released 64 wounded prisoners on December 5 via the town of Bomdila in India. Around December 19, another batch of wounded prisoners was handed over by the Chinese officials via the town of Dirang, wherein the Indian Red Cross (IRC) and the Indian armed forces coordinated to deliver approximately 2,000 parcels of food for the remaining Indian prisoners in Tibet. The Chinese officials released the names of 1,132 Indian prisoners to the IRC in early January of 1963; however, the ICRC informed the IRC that there was a discrepancy of about 2,000 prisoners of war; the same was proven when an announcement was made on the television channels of Chinese News Agencies about the Chinese officials detaining 2,156-3,350 Indian soldiers in its territory; consequently, the ICRC wrote a letter to the Chinese Minister of Foreign Affairs, Marshal Chen Yi, on February 6, 1963; however, the ministry denied the ill-treatment of the Indian personnel in China while claiming that India attacked China first and the capture of the Indian prisoners occurred as a counter-attack in self-defence. The ICRC declared on February 27 that the total number of Indian prisoners of war held by the Chinese officials was 3,319, wherein the same were released by the Chinese officials on April 4 after pressure from the ICRC. The recent involvement of the ICRC happened in the aftermath of the clash between the armed forces of India and China in the Galwan Valley in the union territory of Ladakh in June 2020, which claimed the lives of twenty Indian soldiers, wherein the ICRC reminded the violations of the Geneva Convention, 1949, committed by each side in the wake of the conflict even if the two are signatories to the convention.
It is worth noting that the discrimination clause under Article 12 of the convention was heavily modified from 1929 to 1949, wherein the limitation of nationality-based discrimination was expanded to cover discrimination in the avenues of sex, race, religion, political affiliations, etcetera. Table 1 elucidates the major differences between the 1929 convention and the 1949 convention, wherein the latter widens the limited scope of the former.
|Article||Provision||1929 Convention||1949 Convention|
|13||Protected Persons||Members of armed forces and other personnel directly attached to the said force.||Members of other militias, volunteer corps, including the persons of organized resistance movements, belonging to the conflicting nation while operating either inside or outside the territory of the said nation. Crew members, including the pilots and captains of civilian aircraft and merchant ships of the conflicting nation.|
|15||Search for Casualties and Evacuation||Temporary suspension of conflict to search, collect and remove the respective wounded soldiers and civilians from the conflict zone.||Termination of local conflicts for the search, collection, removal and exchange of respective casualties and fatalities from the conflict zone. Termination for safe passage of medical personnel and equipment is upheld.|
|18||Role of the Civilian Population||Authorizing the armed forces to call upon the volunteering of the civilian population to search, collect and treat the wounded and sick personnel/ combatants of the respective nation.||Apart from the said authorization, the civilian population is asked to respect the wounded and sick while abstaining from any violent behaviour towards them (including molestation). The civilians are not convicted for caring for the said wounded and sick persons.|
|25, 28 and 29||Retained/ Detained Personnel||Medical personnel are immune from capture as prisoners of war with the express prohibition against their detention by any party to the conflict.
Medical personnel include hospital orderlies, nurses and auxiliary stretcher-bearers, wherein they receive respect and protection from the enemy when they come in contact with the enemy whilst carrying out their medical duties.
|Medical personnel may be detained to meet the medical needs of the wounded and sick prisoners at the party to the conflict, wherein they are not deemed as prisoners of war. Medical personnel perform their medical duties towards the other prisoners in hospitals outside the camp, wherein the transport to the same is organized by the detaining authority. Medical personnel are barred from performing any duties outside of their medical duties. Medical personnel shall perform the medical duties as so far as the need arises.|
|36 and 37||Medical Aircraft||The medical aircraft shall bear the distinctive emblem, together with their national colours on their upper and lower surfaces.
No mention about the flying of a medical aircraft over a neutral territory.
|The medical aircraft shall bear the distinctive emblem, together with their national colours on their lower, lateral and upper sides. The medical aircraft is employed for not only the removal and transport of the sick and wounded persons but also the transport of medical personnel and equipment, wherein the aircraft is immune from being attacked by the parties to the conflict, provided the aircraft flies at a height, on a time and along a route specifically agreed by the conflicting nations (flying over enemy-occupied territory is barred).
The aircraft of parties to the conflict may fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call. They shall give the neutral Powers previous notice of the said passage, wherein the neutral powers may impose restrictions or conditions upon the use of its airspace.
Chapter IX of the convention talks about the breach of the convention by the parties to the convention (X), wherein Articles 49 to 54 are included within the said chapter:
- Article 49 says that X is obligated to enact any legislative statute to prevent and suppress persons from committing any grave breaches to the provisions of the convention. It is worth noting that Article 253 of the Indian Constitution empowers the Union Parliament to legislate for either the whole territory of India or a particular region of India for implementing the provisions of this convention ratified by India with the United Nations in 1950, wherein the limitations imposed upon the Union Parliament by Articles 245 and 246 are overridden subordinately by Article 253, such that the entire field of legislation within the latter rests with the Union Parliament even if the subject matter of the prospective law is exclusive to the State Legislative Assembly, i.e. the Union Parliament enjoys the Doctrine of Dominion Paramountcy, wherein the laws made by the Union Parliament under the aegis of Article 253 will make other provincial laws inoperative and unobservable (on either similar subject matters or entries exclusively in the State List) over the prevalence of the higher Union Parliament. The convention allows X to produce any individual before its court of law on the allegations of committed (or ordered to commit) any grave breaches to the convention even if the said individual is not of X’s nationality; additionally, if another party (Y) has made a prima facie case regarding the actions of X affecting them, then X is under the obligation to hand over the individual to Y in accordance with the legislative statutes of X for trial in the court of law of Y. Article 49 empowers X to take any necessary and reasonable measure to suppress any actions that could hamper the provisions of the convention; additionally, persons accused of committing such actions shall be allowed the benefit of a sound and fair trial. Article 54 tells the nations who are parties to the convention to take adequate measures in concurrence with its legislative statutes to repress any act that can violate the convention.
- Article 50 underlines the actions that can be construed as grave breaches under Article 49 as unlawful and wanton, wherein no such grave action is necessitated by the armed forces/ military of X: a) Actions committed against any person/ institution protected by the edicts of the convention, b) Wilful and mindful killing of another human being; this includes torture (or any inhumane treatment), victimization in biological experimentations, c) Wilful infliction of great suffering in the form of a serious injury to the body; this includes actions causing serious damage to a person’s health, and d) Extensive damage to a person’s property. In such cases, the liability for committing such actions leading to a grave breach of the Convention rests with the person’s country, wherein any absolution from the liability is barred under Article 51.
- If two nations to the convention are in conflict, then either one nation can request for an inquiry against the other party for the supposed breach of the convention, wherein the procedure for the said enquiry shall be mutually agreed by both nations; however, if such an agreement is not possible, then the two nations can agree upon a third-party entity who shall decide the procedure for the said enquiry. Article 52 mandates the nation against whom the allegations for the violation of the convention have been proven to take immediate action without any delay to suppress and put an end to the causatives of the violation.
- It is worth understanding that the use of either the official emblem or the designation of “Red Cross/ Geneva Cross” by any person, entities, institutions (either public or private) without being allowed to do so under the provisions of the convention (even the usage constituting an imitation) is a grave breach of the convention, wherein such acts (irrespective of the intent and the object behind the said act) are barred.
The Geneva Convention of 1949 forms the cornerstone of International Humanitarian Law, which is also one of the oldest laws in the world, wherein it finds its roots and birth in the bloodbath and chaos of the Battle of Solferino in 1859 when Swiss businessman Henry Durant witnessed the death of approximately 40,000 men due to lack of adequate medical infrastructure and facilities. Although the convention was viewed as the First Geneva Convention in 1864 with 12 nations as its signatories for the search, rescue and treatment of wounded and sick soldiers from the battlefield on humanitarian grounds, the convention was expanded to its present form in 1949 after being amended in 1906 and 1929 to illustrate 64 articles to protect the rights of the prisoners of war between two nations in an armed conflict even if one of the nations to the conflict is a signatory to the convention, wherein the convention explains the treatment of the prisoners of war and the medical personnel/ equipment associated with the said prisoners at the time of war. The International Committee of the Red Cross acts as the international neutral, impartial and unbiased organization tasked with helming the provisions of the convention. The work of the ICRC was heavily highlighted during the Indo-China War of 1962, wherein the release of approximately 3,000 prisoners of war of India from the People’s Republic of China was driven by the ICRC’s pressurization on China in the light of their violations of the Geneva Convention, 1949.
The convention acts as a guide to gauge, manage and handle any armed conflict involving the parties to the convention.
- Geneva Convention, HISTORY. (Nov. 17, 2017), https://www.history.com/topics/world-war-ii/ geneva-convention.
- History, IFRC. (n.d.), https://www.ifrc.org/en/who-we-are/history (last visited Aug. 03, 2021).
- HISTORY, supra note 1.
- The Beginning of the Red Cross, BRITISH RED CROSS. (n.d.), https://www.redcross.org.uk/about-us/our-history/the-beginning-of-the-red-cross (last visited Aug. 03, 2021).
- HISTORY, supra note 1.
- Malcolm Shaw, Geneva Conventions, BRITANNICA (Jul. 2, 2021), https://www.britannica.com/ event/Geneva-Conventions.
- Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864, ICRC. (n.d.), https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORM StatesParties&xp_treaty Selected=120 (last visited Jul. 03, 2021).
- DIETER FLECK, THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 22 (Oxford University Press ed., 2nd ed. 2013).
- WALTER F. GEORGE, GENEVA CONVENTIONS FOR THE PROTECTION OF WAR VICTIMS: REPORT OF THE COMMITTEE ON FOREIGN RELATIONS ON EXECUTIVES D, E, F, AND G 4 (Committee On Foreign Relations ed., 1955), loc.gov/rr/frd/Military_Law/pdf/GC-senReport.pdf.
- HISTORY, supra note 1.
- Summary of the Geneva Conventions of 1949 and Their Additional Protocols, AMERICAN RED CROSS. (Jul. 254, 2019), https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/International_Humanitarian_Law/IHL_ SummaryGenevaConv.pdf.
- HISTORY, supra note 1.
- Divakaran P. Pillay, Geneva Conventions at 71: An in-depth look from the Indian Perspective, THE ECONOMIC TIMES (Aug. 13, 2020), https://economictimes.indiatimes.com/news/defence/geneva-conventions-at-71-an-in-depth-look-from-the-indian-perspective/articleshow/77519568.cms.
- Exclusive! How China released Indian troops after the 1962 War, REDIFF. (Dec. 06, 2019), https://www.rediff.com/news/special/how-china-released-indian-troops-after-the-1962-war/2019120 6.htm.
- Global Red Cross Body Appeals to India, China to Follow Geneva Conventions, THE WIRE. (Oct. 15, 2020), https://thewire.in/external-affairs/global-red-cross-body-appeals-to-india-china-to-follow-geneva-conventions.
- FLECK, supra note 9, at 8.
- T. Rajkumar & Ors. V. Union of India & Ors., W.P. 17241-17243/ 2015 (2015) (India).
- I. Elangovan v. The Government of Tamil Nadu & Ors., W.P. 35808/ 2007 (2008) (India).