Treaties, States Parties and Commentaries
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Commentary of 1958 


The earlier humanitarian Conventions, in particular the Hague Conventions of 1899 and 1907 and the Geneva Conventions of 1864, 1906 and 1929, did not include any definition of the cases to which they applied. Their very titles made it clear that they were intended for use in wartime, and the meaning of war was evident and needed no defining. The Hague Convention relative to the Opening of Hostilities provided that "hostilities ... must not commence without previous and explicit warning, in the form of a declaration of war, giving reasons, or of an ultimatum with conditional declaration of war". Since 1907 experience has shown that many armed conflicts, displaying all the characteristics of a war, may arise without being [p.18] preceded by any of the formalities laid down in the 1907 Hague Convention. Furthermore, there have been many cases where States at war have contested the legitimacy of the enemy Government and therefore refused to recognize the existence of a state of war. In the same way, the temporary disappearance of sovereign States as
a result of annexation or capitulation, has been put forward as a pretext for not observing one or other of the humanitarian Conventions. It was necessary to find a remedy for this state of affairs, and the change which had taken place in the whole conception of such Conventions pointed the same way. They are coming to be regarded less and less as contracts concluded on a basis of reciprocity in the national interests of the parties and more and more as a solemn affirmation of principles respected for their own sake, a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. A State does not proclaim the principle of the protection due to civilians in the hope of improving the lot of a certain number of its own nationals. It does so out of respect for the human person. The XVIth International Red Cross Conference accordingly drew attention in 1938 to the necessity of providing, in any future revision of the Conventions, for their application to undeclared as well as to declared wars. This became even more necessary after the cruel experience of the Second World War.
The International Committee of the Red Cross took the matter up. The Preliminary Conference of National Red Cross Societies, which it convened in 1946, fell in with the views of the Committee and recommended that a new Article, worded as follows, should be introduced at the beginning of the Convention: "The present Convention is applicable between the High Contracting Parties from the moment hostilities have actually broken out, even if no declaration of war has been made and whatever the form that such armed intervention may take" (1).
The Conference of Government Experts, which was also convened by the International Committee, recommended in its turn that the Conventions should be applicable to "any armed conflict, whether the latter is or is not recognized as a state of war by the parties concerned", and also to "cases of occupation of territories in the absence of any state of war" (2).
[p.19] Taking into account the recommendations of these two Conferences, which tallied incidentally with its own opinion, the International Committee of the Red Cross drew up a draft text, which was adopted by the XVIIth International Red Cross Conference and subsequently became Article 2 of the Convention, as reproduced above.
There was no discussion, at the Diplomatic Conference, on the Committee's proposal (which did not include the second sentence of paragraph 3); the experience of the Second World War had convinced all concerned of the necessity of including the provisions in question in the new Convention. But the draft text said nothing about the relations between a belligerent, or belligerents, bound by the Conventions on the one hand and a belligerent, or belligerents, not bound by it on the other hand. There could be no question of obliging a State to observe the Convention in its dealings with an adverse Party which deliberately refused to accept its provisions. On the other hand, a Convention is res inter alios acta so far as concerns a State which is not bound by it, and it cannot, therefore, lay any obligation on such a State.
Although there was no solution to the question from the legal point of view, it was necessary to find one on the humanitarian plane. The Committee accordingly suggested to the Governments represented at the Diplomatic Conference of 1949 that the following two sentences be added to Article 2:

"In the event of an international conflict between one of the High Contracting Parties and a Power which is not bound by the present Convention, the Contracting Party shall apply the provisions thereof. This obligation shall stand unless, after a reasonable lapse of time, the Power not bound by the present Convention states its refusal to apply it, or in fact fails to apply it (3)."

The Diplomatic Conference also considered two other proposals (4) -- one, from the Canadian Delegation, suggesting that the Convention should be applicable to a Power not party to the Convention so long as that Power complied with its provisions, and another, from the Belgian Delegation, which read as follows: "The Powers which are a party to the Convention shall invite the Power which is not a party to it to accept the terms of the said Convention; as from the latter Power's acceptance of the Convention, all Powers concerned shall be bound by it."
[p.20] The discussion turned solely on the conditions to be fulfilled. The condition underlying both the Canadian proposal and the proposal of the International Committee of the Red Cross, was resolutive, while the Belgian proposal was based on a suspensive condition. As agreement could not be reached on any of these proposals, they were discarded in favour of the compromise wording of the present text.
The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: "As a general rule, a Convention could lay obligations only on Contracting States. But, according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized. The text adopted by the Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-Contracting adverse State, in so far as the latter accepted and applied the provisions thereof" (5).


By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for recognition of the existence of a state of war, as preliminaries to the application of the Convention. The occurrence of de facto hostilities is sufficient.
It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such arguments less easy. Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The [p.21] respect due to the human person as such is not measured by the number of victims.
The Convention only provides for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war. Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests.


Here too the wording adopted was based on the experience of the Second World War, which saw territories occupied without hostilities, the Government of the occupied country considering that armed resistance was useless. In such cases the interests of protected persons are, of course, just as deserving of protection as when the occupation is carried out by force.
Article 2 deals with the entry into force of the Convention as between the Contracting Parties. There may be no case of practical application, owing to there being no protected person on the territory of the belligerents, and no territory which is occupied, but such instances will obviously be very rare. In the same way, the number of persons protected may vary according to the course followed by military operations and the march of events, but as soon as any person answers to the definition given in Article 4 , the Convention automatically applies to him.
In case of war being declared or of armed conflict, the Convention enters into force; the fact that the territory of one or other of the belligerents is later occupied in the course of hostilities does not in any way affect this; the inhabitants of the occupied territory simply become protected persons as they fall into the hands of the Occupying Power.
The sense in which the paragraph under consideration should be understood is thus quite clear. It does not refer to cases in which territory is occupied during hostilities; in such cases the Convention will have been in force since the outbreak of hostilities or since the time war was declared. The paragraph only refers to cases where the occupation has taken place without a declaration of war and without hostilities, and makes provision for the entry into force of the Convention in those particular circumstances. The wording of the paragraph [p.22] is not very clear, the text adopted by the Government Experts being more explicit (6). Nevertheless, a simultaneous examination of paragraphs 1 and 2 leaves no doubt as to the latter's sense: it was intended to fill the gap left by paragraph 1.
The application of the Convention to territories which are occupied at a later date, in virtue of an armistice or a capitulation, does not follow from this paragraph, but from paragraph 1. An armistice suspends hostilities and a capitulation ends them, but neither ends the state of war, and any occupation carried out in wartime is covered by paragraph 1. It is, for that matter, when a country is defeated that the need for international protection is most felt. The full application of the Convention under those circumstances is limited in point of time by Article 6 .


1. ' Relations between belligerents party to the Convention '

This provision appears to state an elementary truth; but that was not always the case. The Hague Conventions of 1907 and the Geneva Conventions of 1906 all contained a clausula si omnes under which the Convention was not applicable unless all the Parties to the conflict were equally bound by it.
The point raised may still be of some importance in conflicts involving several Powers fighting under a unified command. The International Committee of the Red Cross will always maintain, for its part, that should it not be possible to differentiate between the responsibilities of the different States forming the coalition, the most extensive obligations assumed in the humanitarian sphere by one or more members of the coalition must be binding on the coalition as a whole.

2. ' Relations between Contracting and non-Contracting Parties '

The second sentence, added by the Diplomatic Conference of 1949, certainly presents the typical features of a compromise; for it does not come to a clear decision between the suspensive and resolutive conditions. At first sight it appears to incline towards [p.23] the Belgian amendment (7). But whereas that amendment only made the Convention applicable as from the time of its formal acceptance by the non-Contracting Power, the sentence adopted by the Diplomatic Conference drops all reference to an invitation to be made to the non-Contracting Power, and substitutes for the words "as from the latter Power's acceptance" the words "if the latter accepts and applies the provisions thereof".
What, then, is the position in the interval between the launching of hostilities and the non-contracting belligerent's acceptance? 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 accordance with their spirit that the Contracting States "shall apply them, in so far as possible".
The spirit and character of the Conventions lead perforce to the conclusion that the Contracting Power must at least apply their provisions from the moment hostilities break out until such time as the adverse Party has had the time and an opportunity of stating his intentions. That may not be a strictly legal interpretation; it does not altogether follow from the text itself; but it is in our opinion the only honourable and reasonable solution. It follows from the spirit of the Conventions, and is in accordance with their character, as has already been stated. It is also in accordance with the moral interest of the Contracting Power, inasmuch as it invites the latter to honour a signature given before the world. It is finally to its advantage from a more practical point of view, because the fact of its beginning itself to apply the Convention will encourage the non-Contracting Party to declare its acceptance, whereas any postponement of the application of the Convention by the Contracting Party would give the non-Contracting Party a pretext for non-acceptance.
There are two conditions to be fulfilled under this part of the paragraph -- (a) acceptance and (b) de facto application of the Convention. What happens if the non-Contracting Party makes no declaration, but in actual fact applies the Convention? Before answering this question, it must be seen what is meant by "accepting" the provisions of the Convention.
Is a formal and explicit declaration by a non-Contracting State indispensable? The Rapporteur of the Special Committee seems to say that it is. "A declaration", he wrote, "was necessary, contrary to the Canadian amendment, according to which an attitude on the part of the non-Contracting State in conformity with the Convention would [p.24] have sufficed to make it applicable". He added, it is true, that it was not possible to lay down any uniform procedure in the matter, and that "the Convention would be applicable as soon as the declaration was made. It would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the non-contracting belligerent".
Does it follow from this that if the second condition -- namely the application of the Convention de facto -- is alone fulfilled, the Contracting Party is released from its obligations?
Closely as that may seem to follow from the letter of the text, it does not appear possible to maintain such an interpretation. It would make the application of the Convention dependent on a suspensive condition even more rigid than that of the Belgian proposal, which was itself regarded as being too strict. It would bring about a paradoxical -- not to say, a monstrous -- situation. It would entitle a Power to disregard rules solemnly proclaimed by itself, while its adversary, though not legally bound by those rules, was scrupulously applying them; and all this only because of the omission of the latter to make a declaration, or because of delay in the transmission of such a declaration.
' Summum jus summa injuria. ' The saying may often be true; but it should never be cited in reference to a humanitarian Convention. The present Convention, like its three sister Conventions, rightly condemns reprisals in the most categorical terms. But would it not be worse than any reprisals to ill-treat civilians even before one's adversary had done so, merely because it was inferred from his silence that he was intending to do so?
The two conditions laid down for the non-Contracting Power are that it should ' accept ' and ' apply ' the provisions of the Convention. In the absence of any further indication, there is no reason to assume that "acceptance" necessarily implies an explicit declaration. It can equally well be tacit. It may be implicit in de facto application. These considerations do not in any way minimize the importance of an explicit declaration by the non-Contracting Power. It is, on the contrary, most desirable that the latter should make such a declaration, and with the least possible delay. The International Committee of the Red Cross for its part, when it offers its services at the beginning of a conflict, never fails to ask Parties to the conflict which are not legally bound by the Convention to declare their intention of applying it or of observing at least its essential principles, as the case may be.
In practice any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party's declaration. It will take into account facts above all.
[p.25] Furthermore, although the Convention, as a concession to legal form, provides that in certain circumstances a Contracting Power may legally be released from its obligations, its spirit encourages the Power in question to persevere in applying humanitarian principles, whatever the attitude of the adverse Party may be.

Notes: (1) [(1) p.18] ' Report on the Work of the Preliminary
Conference of National Red Cross Societies for the Study
of the Conventions and of Various Problems relative to the
Red Cross ' (Geneva, July 26 - August 3, 1946), Geneva,
1947, p. 15;

(2) [(2) p.18] ' Report on the Works of the Conference of
Government Experts for the Study of the Conventions for
the Protection of War Victims ' (Geneva, April 14 - 26,
1947), Geneva, 1947, p. 8;

(3) [(1) p.19] See ' Remarks and Proposals submitted by the
International Committee of the Red Cross ', Geneva,
February 1949, page 9;

(4) [(2) p.19] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, pp. 53-54 and 107-108;

(5) [(1) p.20] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, page 108 (First Report
drawn up by the Special Committee of the Joint Committee);

(6) [(1) p.22] See above, p. 18;

(7) [(1) p.23] See above, p. 19;