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II. The Geneva Conventions (Amendment) Act 1995: A Generally Minimalist Approach

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick ,
Peter Rowe  and
Michael A. Meyer
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Extract

The government's decision, announced on 22 October 1993, to ratify the 1977 Additional Protocols to the Geneva Conventions of 1949 as soon as amendments to the Geneva Conventions Act 1957 could be made led to a race to pass the bill through all its stages in both Houses before 4 December 1995.1 This was the date of the International Conference of the Red Cross and Red Crescent held in Geneva and it was argued in the House of Lords that the British Red Cross should be able to attend the conference and to say that the necessary domestic legislation had been passed to enable ratification to take place. The bill had started its life in the House of Lords and had received its second reading only on 25 May 1995. It was, in fact, given the royal assent on 19 July 1995.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 45 , Issue 2 , April 1996 , pp. 476 - 484
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. The bill was proposed by Lord Archer of Weston-Super-Mare, who concluded his speech by saying that when “the Minister walks out of this Chamber and sees her civil servants, I hope she will say to them, ‘I am damn well going to have this through by 4th December 1995.’”: HL Hansard. Vol.564, col.1086 (25 May 1995).

2. Bothe, , Macalister-Smith, and Kurzidem, (Eds), National Implementation of International Humanitarian Law (1990), pp.16–17.Google Scholar

3. Idem, p.18.

4. This was not the first time that legislation of this nature, enacted to enable the UK to ratify a treaty (in this case, two), went through Parliament as a private member's bill (the Antarctic Acts of 1967 and 1994 are earlier examples). All-party support was essential in order to have the Act passed so rapidly, and Labour MP Barbara Roche sponsored the bill in the Commons. This general backing was in line with the universal character and object of international humanitarian law, of which the 1977 Protocols are an integral part, and with the neutrality of the British Red Cross, and of the Red Cross Movement generally.

5. HL Hansard, Vol.564, col.1084.

6. Bothe et al. op. cit. supra n.2, at p. 17.

7. Ibid.

8. Both are set out in the Manual of Military Law. Part III (1958), HMSO.

9. HL Hansard, Vol.564, col.1084.

10. In fact the bill as passed goes beyond this, generally strengthening the protection given to the red cross and other protective emblems, designations, signs and signals, and making minor amendments and repeals to bring the 1957 Act up to date. Like the earlier Geneva Conventions Acts, the provisions of the 1995 Act may be extended to the Channel Islands, Isle of Man and colonies by Order in Council.

11. Reference will subsequently be made to English law but the Act applies to Scotland and Northern Ireland; not, it is anticipated, that the legal effects will be different in the other jurisdictions.

12. Cheney v. Conn (Inspector of Taxes) [1968] 1 All E.R. 779.782. See also R. v. Starkey 14 Dec. 1987 (unrep. Lexis). Cf. Hampson, “The Geneva Conventions and the Detention of Civilians and Prisoners of War.” [1991] Pub.L. 507, 517–519.

13. McNair, , The Law of Treaties (1960), p.89.Google Scholar His view is supported by Brownlie, , Principles of Public International Law (1991), p.48Google Scholar and Shaw, , International Law (1991), p.115.Google Scholar Cf. Higgins in Jacobs, and Roberts, (Eds), The Effect of Treaties in Domestic Law (1987), p.126Google Scholar, n.6. See, however, the Prisoner of War (Discipline) Regulations 1958, which implement large sections of the Third Geneva Convention 1949. No specific power is granted in the 1957 Geneva Conventions Act to make regulations for this purpose.

14. See Greenwood, in Rowe, (Ed.), The Gulf War 1990–91 in International and English Law (1993), chap.4.Google Scholar

15. HL Hansard, col.1863 (14 June 1995).

16. See Arts.49, 50, 129 and 146 in each of the four 1949 Conventions. Art.85(1) of the First Additional Protocol refers back to the structure of the 1949 Conventions with respect to breaches and grave breaches of the Protocol.

17. Idem, para.3 to each of the four Articles of the 1949 Conventions. See also Arts.1(1) and 80(1) and Art.86(l) of Protocol I.

18. See Hale, Pleas of the Crown, Vol.1, p.433Google Scholar; R. v. Page [1953] 2 All E.R. 1355; R. v. Howe [1987] A.C. 417, 429 (Lord Hailsham LC). See also Professor SirJohn Smith, QC, Justification and Excuse in the Criminal Law (1989). pp.30–31.Google Scholar

19. S.70 of the Army Act 1955. Similar provisions apply in the other service discipline Acts: the Naval Discipline Act 1957 and the Air Force Act 1955. These Acts give jurisdiction to a court-martial to try offenders outside as well as within (subject to certain limitations) the UK. A soldier may be tried by a criminal court in the UK for acts committed abroad in the same circumstances as his civilian counterpart.

20. See Rowe, “Murder and the Law of War.” (1991) 42 N.I.L.Q. 216.

21. See generally, Rowe and Meyer, “Ratification by the United Kingdom of the 1977 Protocols Additional to the Geneva Conventions of 1949: Selected Problems of Implementation.” (1994) 45 N.I.L.Q. 343. The sentence to be imposed for murder and wilful killing constituting a grave breach is the same. A charge brought in respect of the latter offence may be considered more acceptable than one in respect of the former.

22. S.30, Army Act 1955.

23. Idem., s.34. See also s.36, which deals with disobedience to standing orders.

24. Idem, s.63. It is difficult to imagine an offence that might be charged under this section that would not also be an offence under English law and thus chargeable under Idem, s.70.

25. Such a charge could not be brought under the Prisoner of War (Discipline) Regulations 1958 since the only offence that will give rise to a prisoner of war court-martial for acts committed prior to capture under the Regulations is a grave breach of the Conventions (or when amended, the First Protocol): reg.7. There is a certain logic in limiting the liability of a prisoner of war to a grave breach charge for acts committed prior to capture since this is the only offence transformed into English criminal law by the Geneva Conventions Act 1957. An international tribunal established to try war crimes at the conclusion of the conflict would not, of course, be bound by the 1958 Regulations.

26. Art.88 of the First Protocol refers to mutual assistance in respect of grave breaches only but it is likely that if an enemy soldier breached the Arts, under discussion the evidence against him would be provided by British soldiers and Art.88 would not come into play.

27. HL Hansard, col.1862 (14 June 1995).

28. Part III (1958), p.184.

29. A civilian is defined in Art.50 of the First Protocol; civilian objects are defined in Art.52(1).

30. For reprisal action in general see Greenwood, in Meyer, (Ed.), Armed Conflict and the New Law (1989), chap.9 and Kalshoven. Belligerent Reprisals (1971).Google Scholar

31. If reprisal action were taken by the UK government, it is unlikely that a serviceman who carried out the order would be charged before a British court-martial with committing a grave breach of the Protocol. However, if he refused to carry out the order, he could be charged under s.34. Army Act 1955 (disobedience of a lawful command).

32. One important such departure would be a declaration recognising the competence of the International Fact-Finding Commission established under Art.90 of the First Protocol.

33. The UK entered a reservation to Art.68(2) of the Fourth Geneva Convention of 1949 but withdrew it on 15 Dec. 1971. It made declarations in respect of Art.85 of the Third Convention: see Roberts, and Guelff, , Documents on the Laws of War (2nd edn), p.336. Withdrawal of a reservation or declaration is dealt with by s.4(7) of the 1995 Act and any revision under Art.98 of the First Protocol, covering the technical Annex I containing regulations concerning identification, by s.4(7). Such a revision was made and entered into force on 1 Mar. 1994. It is included in the scheduled First Protocol. On the lawfulness and desirability of reservations to reprisal-prohibiting provisions, see Hampson, “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949.” (1988) 37 I.C.L.Q. 818, 832–835, 838–842.Google Scholar

34. The Swiss heraldic emblem and its imitation require regulation because of the confusion which may arise between the red cross emblem (being a red cross on a white ground) and the arms of Switzerland (being a white cross on a red ground). The instrumental role of Switzerland in establishing and promoting the original Geneva Convention of 1864 and its successors is well known.

35. Regulation-making powers in relation to use of such emblems, etc., are given in the equivalent legislation in some other countries. See e.g. the New Zealand Geneva Conventions Act 1958, as amended in 1987, s.9.

36. Although see the decision of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, Prosecutor v. Dusko Tadic a/k/a/ “Dale”, 2 Oct. 1995.

37. See, in particular, Arts.6(2)(d), (f) and 10(1); and it would be relevant to establishing the UK's “other obligations under international la w.” for the purposes of an emergency derogation under Art.15(1) of the European Convention on Human Rights.

38. Art.19.