II. The geneva conventions (amendment) act 1995: A generally minimalist approach

International and Comparative Law Quarterly

Volumn 45, Issue 2, 1996, Pages 476-484

  Warbrick, Colin ^a   Mcgoldrick, Dominic ^a   Rowe, Peter ^a   Meyer, Michael A ^a  

^a LANCASTER UNIVERSITY   (United Kingdom)

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EID: 85022669248     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S002058930005911X     Document Type: Article

References (37)

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.
3. Idem, p.18.
4. HL Hansard, Vol.564, col.1084.
5. Bothe et al., HL Hansard, at p. 17.
6. HL Hansard.
7. Both are set out in the Manual of Military Law, Part III (1958), HMSO.
8. HL Hansard, Vol.564, col.1084.
9. Cheney v. Conn (Inspector of Taxes) [1968] 1 All E.R. 779.782.
10. See also R. v. Starkey 14 Dec. 1987 (unrep. Lexis).
11. Cf. Hampson, “The Geneva Conventions and the Detention of Civilians and Prisoners of War” [1991] Pub.L. 507,517–519.
12. McNair, The Law of Treaties (1960), p.89.
13. His view is supported by Brownlie, Principles of Public International Law (1991), p.48
14. Shaw, International Law (1991), p.l15.
15. Cf. Higgins in Jacobs and Roberts (Eds), The Effect of Treaties in Domestic Law (1987), p.126, n.6.
16. 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.
17. See Greenwood in Rowe (Ed.), The Gulf War 1990–91 in International and English Law (1993), chap.4.
18. HL Hansard, col.1863 (14 June 1995).
19. See Arts.49, 50,129 and 146 in each of the four 1949 Conventions. Art.85(l) of the First Additional Protocol refers back to the structure of the 1949 Conventions with respect to breaches and grave breaches of the Protocol.
20. Idem, para.3 to each of the four Articles of the 1949 Conventions. See also Arts.l(l) and 80(1) and Art.86(l) of Protocol I.
21. See Hale, Pleas of the Crown, Vol.1, p.433
22. R. v. Page [1953] 2 All E.R. 1355
23. R. v. Howe [1987] A.C. 417, 429 (Lord Hailsham LC).
24. See also Professor Sir John Smith QC, Justification and Excuse in the Criminal Law (1989). pp.30–31.
25. See Rowe, “Murder and the Law of War” (1991) 42 N.I.L.Q. 216.
26. 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.
27. S.30, Army Act 1955.
28. Idem, s.34.
29. 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.
30. HL Hansard, col.1862 (14 June 1995).
31. For reprisal action in general see Greenwood, in Meyer (Ed.), Armed Conflict and the New Law (1989), chap.9
32. Kalshoven. Belligerent Reprisals (1971).
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.
34. 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.
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/al “Dule”, 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 law” for the purposes of an emergency derogation under Art.l5(l) of the European Convention on Human Rights.