Treaties, States Parties and Commentaries
  • Print page
Commentary of 1960 

The extreme brevity of the Preamble will be noted. Contrary to custom, it contains no list of the Sovereigns or Heads of States of the signatory Powers or of the names of their plenipotentiaries and makes no mention of the presentation or verification of the latters'credentials; nor does it include the usual statement of the motives which led the Powers to conclude the Convention. All this is replaced by a summary indication of the purpose of the meeting of the Diplomatic Conference, which was inter alia to revise the Tenth Hague Convention of 1907.
[p.20] The rest of this Commentary, as it proceeds Article by Article, will make it clear that the work of the Diplomatic Conference of Geneva was much more than mere revision. The Conference hot only strengthened the protection accorded to wounded, sick or shipwrecked military personnel; it also extended that protection to categories of persons who had previously been without it, or had been liable to have their claim to it contested by over-literal interpretation of the earlier texts.
In order to arrive at the precise Purposes of the present Convention, one must go back to the source -- that is to say to the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864. The plenipotentiaries of 1864 stated that they were "animated no less by the desire to mitigate, so far as with them lay, the evils inseparable from war, to put an end to unnecessary hardships, and to ameliorate the lot of Wounded combatants on the battle-field...". That wording covered everything. The opening phrases were again used by the plenipotentiaries in 1899 and 1907 in the Preamble to the two Hague Conventions: "animated no less by the desire to mitigate, so far as with them lay, the evils inseparable from war...". The idea of suppressing unnecessary hardships and of respecting human personality, which even war can no longer ignore, represented a tremendous victory for humanity. It is therefore a matter for regret that the plenipotentiaries in 1949 -- who, like their predecessors, were desirous only of mitigating the evils
of war -- were not able, for reasons which we shall see later, to Proclaim those principles once more in a Preamble.
It is not always a matter of indifference whether a treaty does or does not open with a statement of motives and an exact definition of its object. A Preamble has no legal force; but it frequently facilitates the interpretation of particular provisions which are less precise than they should be, by its indication of the general idea behind them and the spirit in which they should be applied. The present Convention was very nearly given a Preamble of that kind.
In the drafts submitted by it to the XVIIth International Red Cross Conference in 1948, the International Committee of the Red Cross had Hot made any suggestions with regard to a Preamble, preferring to leave the coming Diplomatic Conference to draw up [p.21] such Preamble as it thought fit. But the XVIIth International Conference introduced a Preamble into the draft Convention for the Protection of Civilian Persons in Time of War. The idea was a happy one. On reflection it appeared to the International Committee of the Red Cross that it would be a good thing to enunciate the basic principle on which all the Conventions reposed not only in the new Convention but also in the three Conventions under revision. Realizing that humanitarian law affects nearly everyone and that in a modern war, where the fighting takes place everywhere, anyone may be faced with a situation in which they have either to invoke or to apply the Conventions, the International Committee, alive to the necessity (as expressly laid down in all the four drafts submitted to the
Diplomatic Conference of Geneva) of disseminating knowledge of the new Conventions widely and in peace-time, concluded that it was desirable to make clear to the "man in the street" the guiding principle and ' raison d'être ' of the Conventions by means of a Preamble or initial explanatory Article.
For however carefully the texts had been drawn up, however clearly they had been worded, it would have been too much to expect every soldier and every civilian to know the details of all the Articles -- over four hundred -- of the four Conventions and to be able to understand and apply them. Such knowledge as that can be expected only of jurists and military and civilian authorities with special qualifications. But anyone of good faith is capable of applying more or less correctly what he is called upon to apply under one or other of the Conventions, provided he is acquainted with the basic principle involved. Accordingly, the International Committee of the Red Cross proposed to the Powers assembled at Geneva the text of a Preamble, which was to be identical in each of the four Conventions. It read as follows:

"Respect for the personality and dignity of human beings constitutes a universal principle which is binding even in the absence of any contractual undertaking.

Such a principle demands that, in time of war, all those not actively engaged in the hostilities and all those placed ' hors de combat ' by reason of sickness, wounds, capture, or any other circumstance, shall be given due respect and have protection from the effects of war, and that those among them who are in suffering shall be succoured and tended without [p.22] distinction of race, nationality, religious belief, political opinion or any other quality... (1)."

The proposal met with approval and the First Committee of the Diplomatic Conference, which was the body instructed to draw up the two first Conventions, appointed a sub-committee to submit a text.
The draft quoted above gave rise to no fundamental objections; and the second paragraph, which contained the essential points, formed the basis of the various amendments moved. The resulting discussions were indeed very arduous; but they turned not on anything in the wording of the draft, but on the additions which it was proposed to make to it. Certain delegations urged that the principle of respect for the human being should be justified by an affirmation of the divine origin of man. Other delegations were equally insistent that the Preamble should include provisions relating to the punishment of persons violating the Conventions. The majority took the view that a Preamble should confine itself to the enunciation of a clear statement of principle and that it should contain neither rules of application or sanctions, nor religious considerations representing the convictions of a proportion only of the signatory States. In the end, the Committee adopted by a majority a Preamble which reproduced the essentials of the above draft.
In the meanwhile the same points came up for discussion in the two other Committees, responsible for drawing up the Third and Fourth Conventions. After lengthy debate both these Committees, faced with the uncompromising attitude of the advocates of the proposed additions, abandoned the idea of a Preamble altogether, preferring to do without it rather than insert in it provisions on which unanimity could not be reached. Learning of that decision, the First Committee decided to reverse its previous vote and to leave the First and Second Conventions also without a Preamble (2).
[p.23] Accordingly the essential motive which had brought sixty-four nations together at Geneva was left unexpressed solely on account of non-essential additions that parties on both sides were resolved to make.
In spite of its not having been proclaimed at the head of the Conventions, the expression of the guiding principle underlying them was not altogether discarded. The possible application of the present Convention to conflicts other than international wars was considered by the Conference in connection with what ultimately became Articles 2 and 3 . The drafts submitted to the Conference provided for full application of the Conventions even in cases of civil war, colonial conflicts or wars of religion, which was admittedly going very far. The States, as it proved, were not prepared to bind themselves in advance by all the provisions of the Conventions in the case of their own nationals; but they were nevertheless at one in recognizing the "indivisibility" of the principle underlying the Conventions. They agreed that in the event of non-international conflicts such as civil wars, a minimum of humanitarian provisions should be respected; and in defining that minimum they very naturally reverted to the essential elements of the draft Preambles,
which had been so fully discussed and so strangely rejected (3).
Article 3 refers only to cases of conflict not of an international character. But while these provisions represent the minimum applicable in a non-international conflict, that minimum must a fortiori be applicable in an international conflict. That is the guiding principle common to all the Geneva Conventions and their justification. It is from this principle that each of them derives the essential provision on which it centres. That provision in the case of the present Convention is Article 12 .

* (1) [(1) p.22] See ' Remarks and Proposals submitted by the
International Committee of the Red Cross '; document for
the consideration of Governments invited by the Swiss
Federal Council to attend the Diplomatic Conference at
Geneva (April 21, 1949), Geneva, February 1949, p. 8;

(2) [(2) p.22] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-A, pp. 112 ff; 164-168;

(3) [(1) p.23] See the commentary on Article 3, pp. 32-39