Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- RESPECT FOR THE CONVENTION
[p.25] Article 19
of the Tenth Hague Convention of 1907 specified that "The commanders-in-chief of the belligerent fleets must see that the above Articles are properly carried out; they will also have to see to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention" (1).
That provision did not mean that the entire responsibility for execution of the Conventions was left to the commanders-in-chief. The ratification of a treaty by two States in itself constitutes an obligation to respect its terms. Yet in 1929 the need for making the provision more explicit was felt. Article 25 of the 1929 Convention
stated that "The provisions of the present Convention shall be respected by the High Contracting Parties in all circumstances" (2).
The Contracting Parties undertake not 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 representatives of its authority; and it is under an obligation to issue the necessary orders. The use in all four Conventions of the words "and to ensure respect for..." was, however, deliberate; they were intended to emphasize the responsibility of the Contracting Parties. It would not, for example, be enough for a State to give orders or directives to the military authorities, leaving it to them to arrange as they pleased for their detailed execution. The State must supervise their execution. Furthermore, if it is to fulfil the solemn undertaking it has given, the State must of necessity prepare in advance, that is to say in peace-time, the legal, material or other means of ensuring the faithful enforcement of the Convention when the occasion arises. Thus, 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 proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties [p.26] should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.
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 its entirety and in regard to all whom it protects.
The words in question also mean that the application of the Convention does not depend on the character of the conflict. Whether the war is "just" or "unjust", whether it is a war of aggression or of resistance to aggression, in no way affects the treatment which the wounded, sick and shipwrecked should receive.
In view of the foregoing considerations and the fact that the provisions for the repression of violations have been considerably strengthened (3), it is clear that Article 1
is no mere empty form of words, but has been deliberately invested with imperative force. It must be taken in its literal meaning.
* (1) [(1) p.25] See the commentary on Article 46, p. 251 below;
(2) [(2) p.25] A similar provision was included in Article 82,
paragraph 1, of the 1929 Convention relative to the
Treatment of Prisoners of War;
(3) [(1) p.26] The Contracting Parties are no longer merely
required to take or propose to Parliament the necessary
legislative action to repress violations. They are also
under an obligation to fix penal sanctions for grave
breaches and to seek out and prosecute the guilty parties,
and cannot evade their responsibility;