Geneva Protocol

“ The feeling of security must be a plant of slow growth, and progress toward disarmament cannot be realized except to the extent that that growth comes. All that can be done now is to make a beginning, and, if too much is attempted, less will be accomplished. The world must rely on the development of the new idea of the reign of law and reach its feeling of security as that reign succeeds and triumphs.
The Protocol of Geneva is one of the most important of modern international documents. This is true whether it comes into force as a binding treaty or whether it does not ”

“ This matter of security is in verity a matter of national feeling, a state of mind in the truest sense. For no human agency, no belief, no will, outside of the country concerned, can alter or affect it. Ourselves alone must say, we and our rulers, whether or not we are in fact secure—if we say yes, that is enough; but if we say no, it is not for any one else to question, much less for any one else to seek to argue the matter.
So I shall merely seek to state the theory of the Protocol in regard to this matter of security. ”

“ After all, that was the fundamental idea of Article 15 of the Covenant, that the Council of the League should lay hold of the dispute, at least to the extent of preventing war from arising out of it. The theory of the Protocol is that every kind of international dispute should be settled either by a Court or by arbitration, that the functions of the Council are those of mediation and conciliation and that the Council is never to consider the merits of the dispute unless the parties thereto at the time of the dispute unanimously wish such consideration. ”

“ Accordingly, the Protocol can come into force as a legal obligation only on the date of the adoption by the Conference of the Plan for the Reduction of Armaments; and from that date till the date when the Council of the League of Nations declares that the Plan has or has not been carried out, it may be said {7} that the Protocol is only provisionally in force; it is subject to avoidance. ”

“ The new system of the Protocol goes further. It closes the circle drawn by the Covenant; it prohibits all wars of aggression. Henceforth no purely private war between nations will be tolerated.
This result is obtained by strengthening the pacific methods of procedure laid down in the Covenant. The Protocol completes them and extends them to all international disputes without exception, by making arbitration compulsory. ”

“ Article 10 of the Protocol decrees sanctions against any State resorting to war without availing itself or in defiance of, the procedure of pacific settlement provided in the Covenant as amplified by the Protocol itself. The amplification of that procedure to cover all cases, so as to remove all excuse for resort to war, has enabled the framers of the Protocol to give a more exact definition of aggression, and to make that definition more certain and more automatic. ”

“ Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention. ”

“ This mitigation of the rigid character of paragraph 8 of Article 15 has been accepted, not only because it is just, but also because it opens no breach in the barrier set up by the Protocol against aggressive war: it in no way infringes the principle—which remains unshaken—that a war undertaken against a State whose exclusive jurisdiction has been formally recognised is an international crime to be avenged collectively by the signatories of the Protocol. ”

“ If there is a binding decision by a tribunal that a dispute arises out of a domestic question, surely a complaining State, under the principles of the Protocol, is bound not to go to war, because it is legally wrong in its claim and has been so adjudged. Just why a State going to war under such circumstances should be presumed to be and be an aggressor if it goes to war before a discussion of the matter subsequent to the decision and not be presumed to be an aggressor but merely be an aggressor, if it goes to war after such discussion, is not logically to be explained. ”

“ They are additional guarantees which give weaker States an absolute assurance that the system of sanctions will never fail. They guarantee that there will always be States prepared immediately to carry out the obligations provided for in Article 11 of the Protocol.
In accordance with Article 18 of the Covenant, it is expressly stated that these agreements will be registered and published by the Secretariat, and it has also been decided that they will remain open for signature to any State Member of the League of Nations which may desire to accede to them. ”

“ There are certain other provisions of the Protocol regarding sanctions which should be mentioned at least for the sake of completeness.
It is the Council [10] which declares that sanctions are at an end and that "normal conditions be re-established" (Article 14) .
To the "extreme limit of its capacity," all costs of an aggression are to be borne by the aggressor (Article 15) . The language concerning the extent of the liability involved is very sweeping, going much farther than the categories of damage mentioned in Annex I of the Reparation clauses of the Treaty of Versailles. ”

“ In no case is any State signatory of the Protocol entitled to undertake on its own sole initiative an offensive war against another signatory State or against any non-signatory State which accepts all the obligations assumed by the signatories under the Protocol.
The prohibition affects only aggressive war. It does not, of course, extend to defensive war. The right of legitimate self-defence continues, as it must, to be respected. The State attacked retains complete liberty to resist by all means in its power any acts of aggression of which it may be the victim. ”

“ Sanctions can only be imposed on a State which is not a Member of the League if it refuses to accept the conditions and obligations of the Protocol when invited to do so, and resorts to war against a signatory State. ”

“ In considering the main sanctions provided by the Protocol, the first point to be emphasized is that they cannot come into play until a state of war, in the real sense, exists; hostilities must have broken out, so that the world is confronted with fighting actually taking place. It is true that there is a theoretical exception to this in the fact that a violation of the rules of a demilitarized zone is equivalent to a resort to war ”

“ It is to be hoped that this part of the Protocol may stand; and it must be admitted that there is inherently and ipso facto to some extent a consecration of the legality of the status quo by the outlawry of war and by peaceful settlement of disputes by legal means. ”

“ It further discards the system proposed in the draft Treaty, whereby power was given to the Council to decide on and to direct the military sanctions required. The draft Treaty tended towards the realisation of the idea of the League as a "super-State": the Protocol respects the principle of national sovereignty. Every State retains its own liberty of action: it is still free to choose what it will do. ”

“ Parties do not always agree as to what it is they are differing about and they may in fact be at the same time differing as to more than one question. As to whether or not a State had violated the provisional measures against mobilization contemplated by Article 7 of the Protocol, that document itself recognizes that such a question would require investigation, and in such case and in such case only the Protocol gives the Council the power to determine the question of fact, acting by a two-thirds majority. ”

“ The Italian Delegation finally suggested that the text should run, "such enquiries and investigations shall be carried out with the utmost possible despatch, and the signatory States undertake to afford every facility for carrying them out." This was accepted, with the consequential amendment to the fourth paragraph, which should now begin: "If, as a result of these enquiries and investigations, any infraction," &c. The article thus adopted became article 7 of the final Protocol. ”

“ In answering the question whether a State has or has not fulfilled its obligations in regard to sanctions, a certain elasticity in the obligations laid down in Article 11 allows of the possibility of taking into account, from every point of view, the position of each State which is a signatory to the present Protocol. ”

“ If they do not do so, they are breaking an engagement entered into towards the other signatories of the Protocol, and this breach involves consequences and sanctions according to the degree of gravity of the case.
If the recalcitrant party confines itself to offering passive resistance to the solution arrived at, it will first be the object of pacific pressure from the Council, which must exercise all its influence to persuade it to respect its engagements. If the Council is unsuccessful, it must propose measures calculated to ensure effect being given to the decision. ”

“ Over and over again States, sometimes individually, sometimes some of them collectively, have interfered with the affairs of another State with which they Had strictly no legal concern, on many different occasions and on all sorts of pretexts. They have defended such intervention at times on the vague grounds of the rights of humanity, the interests of commerce, the restoration of order and so on. ”

“ If unanimity cannot be obtained, the Council ceasing to take action, each party is practically free to act as it chooses.
According to the new system defined in the Protocol, the situation is as follows:
1. The dispute arises.
2. The system of peaceful settlement provided for by the Protocol comes into play.
3. The Council intervenes, and if, after arbitration has been refused, war is resorted to, if the provisional preventive measures are not observed, etc., the Council decides which party is the aggressor and calls upon the signatory States to apply the sanctions. ”

“ The reason for that is that, without going into the much debated question as to the "legality" of war, under present international law it can at least be said that a neutral may not object to the belligerent status of two countries at war with each other. Of course a neutral may object to the manner of carrying on the war, or to particular incidents during the fighting; a neutral may protest that a particular blockade is not binding because not effective, and so on ”

“ Such civilians shall not, however, be subject to surrender to any Party which is not their own, or to capture at sea. If they find themselves in the power of a Party to the conflict other than their own they shall be covered by the Fourth Convention and by this Protocol. ”