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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.
[p.411] ARTICLE 63
PARAGRAPH 1 -- RIGHT OF DENUNCIATION
This clause gives any Contracting Power the right to withdraw unilaterally from the community of States parties to the Convention. In the absence of such a provision, a withdrawal would not be possible except by consent of the other Contracting Parties.
The clause might be said to be a matter of form; for the Geneva Convention has been in existence for nearly a century and during that time no State has ever denounced it. Can it really be thought that in the future any Power may wish to repudiate such elementary rules of humanity and civilization? The most which one could possibly conceive of would be a denunciation made with the sole object of bringing an earlier version of the Convention into force.
[p.412] Besides, even if a State were to denounce the Geneva Convention, it would still be bound by the principles of that Convention, which are to-day the essential expression of valid international law in this sphere. (1)
PARAGRAPH 2 -- NOTIFICATION
Denunciations, like accessions, must be notified in writing to the Swiss federal Council, in its capacity as depositary of the Geneva Conventions. The Federal Council will transmit them to the other Contracting Parties.
PARAGRAPH 3 -- NOTICE
A denunciation will not take effect immediately; under normal peacetime conditions, it will only take effect after one year has elapsed.
Should the denouncing Power be involved in a conflict (2), the waiting period will be prolonged, the denunciation not taking effect until peace has been concluded (3), or even, where applicable, until the release and repatriation of protected persons is complete. (4) This clause is the counterpart of the preceding Article
; it, too, is dictated by the best interests of the victims of war.
According to the actual letter of the Convention, the prolongation of the waiting period only affects denunciations notified "at a time when the denouncing Power is involved in a conflict" and not those notified before the conflict began, the latter being subject to a waiting period of one year. But the spirit of this Article, like that of the preceding one, demands that it should be applied in a broader sense and that a denunciation notified less than a year before a conflict breaks out should also have its effect suspended until the end of the conflict in question. This is the solution provided for in the corresponding Article of the 1929 Convention (Article 38, paragraph 3
), and it is the only one which meets [p.413] humanitarian requirements. The restrictive character assumed by the 1949 text in regard to this point would appear to have resulted purely and simply from a drafting error.
PARAGRAPH 4 -- EFFECT OF DENUNCIATION
The paragraph begins by laying down that the denunciation is to have effect only in respect of the denouncing Power. That is self-evident.
The next sentence, which did not exist in the earlier Conventions but originated in a proposal by the XVIIth International Red Cross Conference, is no less logical. It lays down that the denunciation is not to impair the obligations which the Parties to the conflict remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.
Vague and self-evident as it undoubtedly is, such a clause is nevertheless useful, as it reaffirms the value and permanence of the lofty principles underlying the Convention. These principles exist independently of the Convention and are not limited to the field covered by it. The clause shows clearly, as we have said above, that a Power which denounced the Convention would nevertheless remain bound by the principles contained in it insofar as they are the expression of inalienable and universal rules of customary international law.
The provision takes its whole significance from the fact that the Convention contains no proper Preamble. (5) That is where it would have been most appropriately placed. Its affinity to the eighth paragraph of the Preamble to the fourth Hague Convention of 1907 -- the so-called Martens clause -- is evident.
* (1) [(1) p.412] See comments on paragraph 3;
(2) [(2) p.412] The word "conflict" must obviously be
understood in its broadest sense; it covers the various
situations described in Articles 2 and 3;
(3) [(3) p.412] The wording used shows clearly that it is the
formal conclusion of the peace treaty which is meant and
nor merely the ending of military operations. In cases of
conflict not of an international character, it will mean
the effective re-establishment of peaceful conditions;
(4) [(4) p.412] This provision may be compared with Article 5.
See above, page 64;
(5) [(1) p.413] See above, page 22;
See the Commentary of 2016
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