Geneva and Hague Conventions

Initial Developments

From early in its history, the United States was a leader in the development of rules to govern the conduct of war. In 1785, Benjamin Franklin and Frederick the Great of Prussia concluded a treaty of friendship and commerce that also codified principles for the conduct of war. The treaty is credited with being one of the first international agreements to contain such principles in written form. During the Civil War, the War Department approved the drafting of General Orders No. 100, the first official guidelines on the use of armed force and the proper treatment of prisoners and enemy civilians.

In 1864, several European states drafted the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, a treaty aimed at protecting [Page 307]victims of armed conflict in distinction to restricting the means and methods of warfare. The convention grew out of the efforts of a Swiss businessman, J. Henri Dunant, who also inspired the creation of what became the International Committee of the Red Cross (ICRC).

The 1864 Geneva Convention was followed by additional conferences and discussions, culminating in the major agreements reached in the two Hague Peace Conferences of 1899 and 1907. The 1899 conference adopted various declarations prohibiting the use of certain weapons, as well as Convention (II) with Respect to the Laws and Customs of War on Land that included an annex of regulations on the conduct of land warfare. In 1907, the 1899 conventions were modified and additional conventions and declarations were added. The annex on land warfare became part of Hague Convention IV of 1907. The preamble of both Hague II of 1899 and Hague IV of 1907 contains what is known as the Martens Clause, a progressive and binding set of principles applicable in all warfare and requiring “respect for the laws of humanity and the dictates of public conscience.”

The 20th Century

At the outbreak of World War I, the Geneva and Hague conventions formed the basic law binding on the major belligerents. Nevertheless, the conventions were widely violated. In response, the victorious allies, including the United States, added a requirement to the Treaty of Versailles that those who had violated the law of war among the defeated states be tried and punished, including Germany's kaiser. The kaiser evaded trial by fleeing to the Netherlands. The Germans did hold a few trials at Leipzig and handed out a few mild sentences, but generally the obligation to hold accountable those who had committed war crimes was ignored by all sides.

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