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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
The extreme brevity of the Preamble will be noted. Unlike the 1929 Convention, it contains no list of the Sovereigns or Heads of Stales of the signatory Powers, or of the names of their Plenipotentiaries, and makes no mention of the presentation or verification of the latter's credentials; nor does it include the usual statement of the motives which have led the Powers to conclude the Convention. The 1929 Convention still observed this customary practice. The Heads of States, enumerated [p.19] in alphabetical order, stated that they were "animated no less by the desire to diminish, so far as with them lay, the evils inseparable from war, and seeking to that end to perfect and complete the agreements reached at Geneva on 22 August 1864 and 6 July 1906..." All this is replaced in the present Convention by a summary indication of the purpose of the meeting of the Diplomatic Conference, namely the revision of the Geneva Convention for the Relief of the Wounded and Sick in Armies in the Field of July 27, 1929.
"Revising" is the term used here. Whereas the 1929 Convention spoke of "perfecting" and "completing" the earlier Conventions. Though the two latter conceptions do not actually figure in the new title, they may be said to be implicitly included in the word "revise". The rest of this Commentary, as it proceeds Article by Article, will make it abundantly clear that the work of the Diplomatic Conference of Geneva was much more than mere revision. The Conference not only strengthened the protection accorded to wounded and sick 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 former texts.
As the 1949 Convention was only a "revision" of the 1929 Convention, and as the latter was a Convention to "perfect" and "complete" the earlier instruments of 1864 and 1906, it is essential, if we are to arrive at the precise purposes which the new Convention has in mind, to go back to the source -- that is to say, to the Preamble to the earliest of the Conventions. The Plenipotentiaries of 1864 said 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 battlefield...." All this is included, in shortened form, in the 1949 text; there is the same desire, now extended to others as well as to the wounded and sick, to mitigate the evils inseparable from war, to ameliorate the lot of the war victims, and to put an end to unnecessary hardships. Although the last of these motives ("to put an end to unnecessary hardships") no longer figures in the various revisions of the original Convention, they are
none the less inspired by it. It has an interest all its own as an embodiment of the idea which was born in the mind of Henry Dunant when he saw the thousands of wounded lying uncared-for on the battlefield of Solferino -- an idea which within so few years was to conquer the world. [p.20] Why try to put an end to the unnecessary hardships of war? Out of respect for human personality, which centuries of civilization have gone to create. That end to unnecessary hardships, that respect for human personality, which even war can no longer ignore, represented such a victory for humanity that one is inclined to regret that they are not proclaimed again in the Preambles to the Geneva Conventions.
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 this kind.
In the drafts submitted by it to the XVIIth International Red Cross Conference in 1948, the International Committee of the Red Cross had not made any suggestions with regard to a Preamble, preferring to leave the coming Diplomatic Conference to draw up such Preamble as it thought fit. But the XVIIth International Conference introduced a Preamble in the following terms into the draft Convention for the Protection of Civilian Persons in Time of War:
"The High Contracting Parties, conscious of their obligation to come to an agreement in order to protect civilian populations from the horrors of war, undertake to respect the principles of human rights which constitute the safeguard of civilization and, in particular, to apply, at any time and in all places, the rules given hereunder;
(1) Individuals shall be protected against any violence to their life and limb.
(2) The taking of hostages is prohibited.
(3) Executions may be carried out only if prior judgment has been passed by a regularly constituted court, furnished with the judicial safeguards that civilized peoples recognize to be indispensable.
(4) Torture of any kind is strictly prohibited.
These rules, which constitute the basis of universal human law, shall be respected without prejudice to the special stipulations provided for in the present Convention in favour of protected persons."
The decision to include the above Preamble was explicable in connection with the elaboration of an entirely new Convention, as distinct from the revision of an earlier instrument such as the Wounded and Sick Convention. The idea was a happy one. On reflection it appeared to [p.21] the International Committee of the Red Cross that it would be a good thing to enunciate the basic principle on which all the Conventions repose, not only in the new Convention but also in the three Conventions under revision. Realizing that human rights are the concern more or less of all mankind, and that in modern war, where the fighting is no longer restricted to clearly delimited battlefields, any man or any woman may at any time be faced with a situation in which they have either to invoke, or (it may be) 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 peacetime without waiting
for the outbreak of war, concluded that it was desirable to bring home 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.
However carefully the texts were drawn up, and however clearly they were worded, it would not have been possible to expect every soldier and every civilian to know the details of the odd four hundred Articles of the 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 with approximate accuracy 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 distinction of race, nationality, religious belief, political opinion or any other quality... (1)"
[p.22] The proposal met with approval, and the First Committee, which was the body instructed to draw up the first two 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 human rights should be justified by an affirmation of the divine origin of man. They argued that an affirmation to this effect would add weight to the Preamble and force to the Convention itself. Clearly no such profession of faith was capable of passing without comment a body representing almost all States of the world, and consequently a congeries of profoundly different religions and philosophies. 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 neither contain rules in 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, the text of which reproduced, with a few verbal changes, the essentials of the ICRC 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. On learning of this decision, the First Committee decided to reverse its previous vote, and to leave the First and Second Conventions also without a Preamble. (2)
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.
[p.23] The Preamble having been finally abandoned (apart from the dry introductory formula reproduced at the beginning of this Chapter), it may be asked why there should be so much to say on the subject. The answer is that, in spite of its not having been proclaimed at the head of the Conventions, the expression of the guiding principle underlying them has not been altogether discarded. The possible application of this principle to conflicts other than international wars was considered by the Conference in connection with what ultimately became
of the present Convention. 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 rebelling and launching a civil war; but they were nevertheless at one in recognizing the "indivisibility" of the principle underlying
the Conventions. They agreed that in the case 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. Accordingly we find that Article 3
begins as follows:
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those
placed ' hors de combat ' by sickness, wounds, detention, or any
other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour, religion
or faith, sex, birth or wealth, or any other similar
refers only to cases of conflict not of an international character. But, if these provisions represent (as they do) 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. That is 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.21] 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 of
Geneva (April 21, 1949), Geneva, February 1949, page 8;
(2) [(1) p.22] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-A, pages 112 ff., 164-168,
(3) [(1) p.23] See below, on Article 3, pages 39 ff.;
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