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In a hypothetical situation, if a country which is a signatory to a Geneva Convention is fighting a war against a country which is NOT a signatory, is the former country obligated to abide by Geneva Convention rules in this conflict?

Or is that only legally applicable when both sides are signatories?

(to address @CsBalazsHungary's answer, I am open to an answer that's more nuanced than "yes" or "no" - e.g. one that says that it applies but only if the non-signatory follows the rules of the Convention even without signing it).

  • The question is about legal obligations only, not moral/ethical angles. – user4012 Mar 11 '13 at 14:31
  • Please note that I'm not seeking opinions, but something based on existing legal rulings/precedents. – user4012 Mar 11 '13 at 14:38
  • The focus on legal rulings/precedents is quite typical of US/Common law legal thinking but not necessarily as important as you might think in other contexts. – Relaxed Dec 27 '15 at 1:10
  • If a non-signatory acts contrary to the terms of a treaty which it didn't sign, can its behavior be a justifiable cause of war for a signatory? – rosends Dec 29 '16 at 19:24
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By Wikipedia it is compulsorial. "The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions.[14]"

A signer shall not be the one who breaks the conventions first. If the opposing country breaks it, the convention doesn't apply anymore

I checked the source, it is not a short one, I am not sure it is there but maybe it can be trusted. Further check would be good. Here is the related source.


An update: From 1952 Commentary, published under the general editorship of Jean S. PICTET, Director for General Affairs of the Internatonal Committee of the Red Cross:

The passage of the report just quoted shows how this not very clear provision should be interpreted. The Conventions, it says, should be regarded "as being the codification of rules which are generally recognized", and it is in their spirit that the Contracficg States "shall apply them, in so far as possible"

So it seems in those extreme cases when the convention is violated by a non-signer, the signer should keep the convention as long as possible. But this is just a moral guide, they don't mention any penalty, enforcement.

  • 2
    `but only if the opposing nation "accepts and applies the provisions" of the Conventions' seems like a pretty huge caveat. The way this sounds to me is more of "it only applies if both sides abide by the Convention even if they didn't sign". – user4012 Mar 11 '13 at 15:01
  • true, well, I can just refer to the basic contracts. If the other person openly doesn't keep the contract, nobody can force you as well. But I am not sure it applies on country level. – CsBalazsHungary Mar 11 '13 at 15:05
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    @Chad good point. A signer shall not be the one who breaks the conventions first. If the opposing country breaks it, the convention doesn't apply anymore. – CsBalazsHungary Mar 11 '13 at 15:07
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    @CsBalazsHungary - And the countries know this so they pretend to follow them. Usually that the rules were broken is found out in the aftermath by the victors. – SoylentGray Mar 11 '13 at 15:23
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    That last source is interesting, but I would view it as more of an opinion than anything legally binding (coming from Red Cross). – user4012 Mar 11 '13 at 15:55
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A Convention is a treaty between sovereign entities. Treaties are "gentleman's agreements." Nothing more.

As there is no authority over these sovereign entities, the term "legality" really doesn't apply. Even if a country breaks the Geneva Convention, there is no "legal" authority with rights to punish offenders - the effects of noncompliance are:

  1. Prisoners from the offending country already taken would no longer be "guaranteed" the rights afforded them - but technically there would have been no one to "guarantee" it the first place.

  2. The offending country would be subject to censure from "the rest of the world," but the truth is they already were in that place before the supposed breach of the convention.

As such, these "obligations" are already voluntary - there is no "legal" force behind them that can be brought to bear.

  • What about ICC? UN? – user4012 Mar 11 '13 at 16:37
  • The UN is not bound to enforce the Geneva conventions. ICC could take action against the individuals responsible for the war crimes but not the nation that was responsible. The Geneva conventions are for nations not individuals. – SoylentGray Mar 11 '13 at 16:44
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    (-1) As there is no authority over these sovereign entities, the term "legality" really doesn't apply is a massive non-sequitur, you're confusing enforcement/effectiveness and legality. – Relaxed Dec 27 '15 at 1:07
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I will answer this in a round about way so please forgive me.

First, here is my straight answer. From a de jure standpoint, no they are not.

The de facto obligations are much more interesting and nuanced in my opinion. An actor may chose to abide by the rules in a de facto manner because they face the threat and enforcement of punitive measures of a more powerful nation should they lose. The flip is certainly true as well. If a powerful nation does not feel threatened by the enforcement mechanisms of the treaty, they will be apt to break it. The Unites States is a prime example here. We push for other to obey the Geneva Convention, but in our own conflicts some of our actions push the boundaries. We realize we are powerful enough that enforcement will not entangle us.

Furthermore, if it did a powerful and hegemonic nation like the U.S. may just release itself from the treaty. Think of the United States and the International Criminal Court. We push for people to abide by the statues and punishments handed out by court but we are not members. We stepped out after an unfavorable decision. (http://en.wikipedia.org/wiki/International_Court_of_Justice)

Finally, the case of non-state aligned actors adds something to the mix as well. If a state actor is fighting a non-state actor (i.e. terrorist group), how can one define the conflict and both parties?

So with that explanation I believe participation comes down to three major factors, of which I am open to criticism

1) degree of future punitive action 2) degree of hegemony by actors 3) degree of state affiliation

-1

First of all treaties are agreements/contracts between countries/nation states. As in contract law should one party fail to comply with the contract stipulations the contract is null and void.

Secondly the Geneva convention was intended to set civilized rules of warfare in order to minimize the death and destruction of warfare.

Terrorist groups do not comply with the Geneva convention as they are not nation states and did not sign the agreement therefore they are not inclined to follow any rules of warfare. The Geneva convention goes contrary to the goals of terrorists groups which is open warfare with civilization as in no holds barred warfare.

Nation states see terrorist groups as barbaric uncivilized criminal groups seeking to create open warfare with nation states in order to kill, maim and destroy, 9/11 is a perfect example. Their reasoning is inconsequential as they are not reasonable and will use suicide bombs to kill, maim and destroy the people and property of civilized nation states.

Sovereign nation states are created to protect the lives and property of their citizens. That is their primary reason for being a sovereign nation state. Should the sovereign nation state be attacked and its citizens killed their property destroyed by another nation state or terrorist group it is the primary directive of that nation state to defend by any means their citizens and the property of their citizens or cease being a sovereign nation state. Anarchy would result there would be no laws and no government to enforce them should the nation state cease to exist.

  • Jake, welcome to SE. While this is a good start at a first answer, it could be dramatically improved. Most importantly, links to appropriate resources would be helpful, especially in questions of international law. I would point out, however, that your answer not correct, either. Most modern treaties are not bilateral, which means that one defection does not negate the treaty. Furthermore, the digression about terrorists doesn't answer the question asked, which is in cases between nation states is the treaty only law if both countries are signatories. – The Pompitous of Love Jan 4 '16 at 21:37

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