Hague Conventions of 1907 (Genocide and Crimes Against Humanity)
The codification of modern international humanitarian law began at the end of the nineteenth century. A peace conference was held at The Hague, Netherlands, in 1899, followed by a second conference, which met in the same city in 1907. The latter adopted a series of international conventions related to the peaceful settlement of international conflicts and the laws of war, which are known collectively as the Hague Conventions. Convention IV, which is the most relevant here, proclaimed the Laws and Customs of War on Land. Still in force, this Convention imposes upon the parties the obligation to issue instructions to their armed land forces in conformity with the Regulations annexed to the Convention. Each party to a conflict is responsible for all acts committed by individuals forming part of its armed forces, including militia and volunteer corps commanded by a person responsible, having a fixed distinctive emblem and carrying arms openly. A belligerent party who violates the provisions of the Regulations shall, if the case requires, be liable to pay compensation. On July 9, 2004, the International Court of Justice, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, referred to the 1907 Hague Convention IV as customary international law binding on all states in the twenty-first century.
The main principle of Hague Convention IV, formulated in Article 22 of the Regulations, proclaims that the right of belligerents to adopt measures of injuring the enemy is not unlimited. Paragraph 8 of the preamble of the Convention must be added: It formulates the socalled Martens clause, which appeared for the first time in the Hague Convention of 1899 and according to which:
In cases not included in the Regulations . . . the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.
It adds that certain provisions of the Regulations must be understood in this sense.
In different sections and chapters of the Convention, the following subjects are covered: the meaning and treatment of belligerents, prisoners of war, and the sick and wounded, as well as the means of injuring the enemy, the end of hostilities, and the military authority over occupied territories. Concerning the treatment of prisoners of war, the main principles affirm that while they are in the power of the hostile government they must be humanely treated, and all their personal belongings, except arms and military papers, remain their property. They may be interned and their labor can be used but must be paid and shall not be used in connection with the operations of war. Prisoners of war shall enjoy complete liberty in the exercise of their religion, on the sole condition that they comply with the measures of order issued by the military authorities. At the conclusion of peace, the repatriation of prisoners of war shall be carried out as quickly as possible.
A single article relates to the rules applicable to the sick and wounded: It only refers to the obligations inscribed in the 1864 Geneva Convention proposed by the International Committee of the Red Cross.
The section on hostilities forbids the employment of poison or poisoned weapons, killing or wounding treacherously individuals belonging to the hostile nation or army, killing or wounding an enemy who, having laid down his arms, or having no longer means of defense, has surrendered. It is also forbidden to declare that no quarter will be given, and to employ arms, projectiles, or material calculated to cause unnecessary suffering. The enemy's property shall not be destroyed or seized, unless such destruction or seizure is imperatively demanded by the necessities of war. It is forbidden to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war.
The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings that are undefended is prohibited. The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his or her power to warn the authorities. In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is, however, the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs. In fact the emblem of the Red Cross is used for this purpose. The pillage of a town or place, even taken by assault, is prohibited.
Obtaining information about the enemy and the country plays an important role in armed conflicts. According to the Hague Conventions, ruses of war and the employment of measures necessary for obtaining such information are permissible. Specific provisions are devoted to espionage. A person can only be considered a spy when, acting clandestinely or on false pretenses, he or she obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Soldiers not wearing a disguise, as well as civilians carrying out their mission openly, entrusted with the delivery of despatches, are not considered spies. A spy taken in the act shall not be punished without previous trial.
Various sections also set rules on truce, capitulations, and armistices. A noteworthy section concerns the military authority over the territory of the hostile state. Such territory is considered occupied when it is actually placed under the established and exercised authority of the hostile army. The occupant shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Family honor and rights, the lives of persons, and private property, as well as religious convictions and practices, must be respected and private property cannot be confiscated. Pillage is formally forbidden.
If the occupant collects the taxes, dues, and tolls imposed for the benefit of the state, he or she shall do so, as far as possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate government was so bound. If, in addition, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question and shall be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force. For every contribution a receipt shall be given to the contributors. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible. Requisitions in kind and services shall not be demanded from municipalities or inhabitants, except for the needs of the army of occupation and they shall be in proportion to the resources of the country. Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.
An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the state, as well as of depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the state that may be used for military operations. All appliances adapted for the transmission of news, or for the transport of persons or things, all kinds of arms, or munitions of war may be seized when they belong to private individuals, but must be restored and compensation fixed when peace is made.
The occupying state shall be regarded only as administrator and usufructuary of public building, real estate, forests, and agricultural estates belonging to the hostile state and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct. The property of municipalities, that of institutions dedicated to religion, charity, and education, the arts and sciences, even when state property, shall be treated as private property. All seizure of, destruction or wilful damage done to, institutions of this character, historic monuments, works of art, and science, is forbidden, and should be made the subject of legal proceedings.
The 1907 Hague Conventions had the merit to formulate principles that were applicable during World War I and World War II. In 1949 its rules, which were generally adopted although often not respected, were further developed by the four Geneva Conventions on humanitarian law, themselves completed later by two Protocols adopted in Geneva in 1977. Breaches of all these rules could and should be sanctioned both by national and international jurisdictions.
SEE ALSO Geneva Conventions on the Protection of Victims of War; Humanitarian Law; International Law; War Crimes
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