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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- RESPECT FOR THE CONVENTION
[p.25] The Conventions of 1864 and 1906 had no similar provision. The 1864 Convention (Article 8
) merely said: "The implementing of the present Convention shall be ensured by the Commanders-in-Chief of the belligerent armies, following the instructions of their respective Governments, and in accordance with the general principles set forth in this Convention." The 1906 Convention (Article 25
) reproduced this provision in approximately the same terms.
The provision did not mean that the entire responsibility for the execution of the Conventions was left to the Commanders-in-Chief. The ratification by two States of a treaty in itself constitutes an obligation to respect its terms. It was in 1929 that the need for making the provision more explicit was first felt. Article 25 of the 1929 Convention
said that "The provisions of the present Convention shall be respected by the High Contracting Parties in all circumstances". The idea was to give a more formal character to the mutual undertaking by insisting on its character as a general obligation. It was desired to avoid the possibility of a belligerent State finding some pretext for evading its obligation to apply the whole or part of the Convention.
The provision adopted in 1949 has the effect of strengthening that of 1929. This is due both to the prominent position which it is given at the beginning of the Convention and to its actual wording. By undertaking at the very outset to respect the clauses of the Convention, the Contracting Parties draw attention to the special character of that instrument. It is not an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations ' vis-à-vis ' itself and at the same time ' vis-à-vis ' the others. The motive of the Convention is such a lofty one, so universally recognized as an imperative call of civilization, that one feels the need for its assertion, as much because of the respect one has for it oneself as because of the respect for it which one expects from one's opponent, and perhaps even more for the former reason than for the latter.
The Contracting Parties do not undertake merely to respect the Convention, but also to ' ensure respect for ' it. The wording may seem redundant. When a State contracts an engagement, the engagement extends eo ipso to all those over whom it has authority, as well as to the [p.26] representatives of its authority; and it is under an obligation to issue the necessary orders. The use of the words "and to ensure respect" was, however, deliberate: they were intended to emphasize and strengthen the responsibility of the Contracting Parties. It would not, for example, be enough for a State to give orders or directives to a few civilian or military authorities, leaving it to them to arrange as they pleased for the details of their execution. (1) It is for the State to supervise their execution. Furthermore, if it is to keep its solemn engagements, the State must of necessity prepare in advance, that is to say in peacetime, the legal, material or other means of loyal enforcement of the Convention as and when the occasion arises. It follows, therefore, that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention.
The Convention is to be applicable in ' all circumstances '. How should this be interpreted? The commentator on the 1929 Convention held that the intention behind these words was to emphasize the general obligation imposed by the Convention, and to make it plain that the Convention must be respected in peace as well as in war in the case of those of its provisions which are applicable both in peace and in war. He added: "Can it be that the words "in all circumstances" were meant to imply civil war? We do not think so... The obligation between the States is international. But it is eminently desirable that the opposing parties in a civil war should bear in mind the humane provisions of the Convention for observance as between themselves". (2)
The commentator's aspiration has not always been fulfilled; but it has not remained entirely vain. On certain occasions, during the Spanish Civil War, for example, both sides have undertaken to respect, in a greater or lesser degree, the humanitarian principles of the Convention. (3) The Diplomatic Conference of 1949 went much further. In Article 3
, common to all four Conventions, the signatory States undertook in advance, in the event of a non-international conflict, to respect, if not the Convention, at least the regulations contained in that Article
[p.27] It may therefore be said, with the commentator of 1929, that the words "in all circumstances" do not relate to civil war. But the reason is no longer the one that was given by the commentator -- namely, that the States do not contract other than international obligations. The reason is that since the commentator wrote, the States have bound themselves explicitly in the case of non-international conflicts -- a development which is tantamount to a revolution in international law. Disregarding the provisions applicable in peacetime, and Article 3
which relates only to non-international conflicts, the words "in all circumstances" mean that, as soon as one of the conditions of application for which Article 2
provides is present, no Power bound by the Convention can offer any valid pretext, legal or other, for not respecting the Convention in all its parts. The words "in all circumstances" mean in short that the application of the Convention does not depend on the character of the conflict. Whether a war is "just" or "unjust", whether
it is a war of aggression or of resistance to aggression, the protection and care due to the wounded and sick are in no way affected.
In view of the preceding considerations and of the fact that the provisions for the repression of violations have been considerably strengthened (5), it is evident that Article 1
is no mere stylistic clause, but is deliberately invested with imperative force, and must be obeyed to the letter.
Notes: (1) [(1) p.26] See below, on Article 45, page 340;
(2) [(2) p.26] See Paul DES GOUTTES, ' Commentaire de la
Convention de Genève du 27 juillet 1929, ' Genève, 1930,
on Article 25, pages 186 ff.;
(3) [(3) p.26] See Frédéric SIORDET, ' The Geneva Conventions
and Civil War, ' Supplement to the ' Revue internationale
de la Croix-Rouge, ' Vol. III Nos. 8, 9 and 11, Geneva,
August, September and November 1950;
(4) [(4) p.26] See below, pages 37 ff.;
(5) [(1) p.27] The Contracting Parties are no longer merely
required to take the necessary legislative action to
prevent or repress violations. They are under obligation
to search for, and prosecute, guilty parties, and cannot
evade their responsibility. See below, on Chapter IX,
Articles 49 ff, page 362;
See the Commentary of 2016
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