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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- CONFLICTS NOT OF AN INTERNATIONAL
[p.32] This Article, which is common to all four Geneva Conventions (1), marks a new step forward in the unceasing development of the idea on which the Red Cross is based and of the humanitarian law resulting from it. It constitutes an extension of Article 2
and embodies all the rules applicable to conflicts not of an international character. The Second Convention adapts the principles of the [p.33] First Convention to maritime Warfare; for a study of the origin of this Article and its elaboration during the twenty-five meetings devoted to it at the 1949 Diplomatic Conference, the reader should therefore refer to the Commentary on the First Convention (2).
Article 3, which has been called a "Convention in miniature" within the Geneva Conventions, applies to non-international conflicts only, and will be the sole Article applicable to them until such time as the Parties have agreed to bring into force between them all or part of the other provisions of the Convention.
It is applicable automatically without requiring a prior determination as to the nature of the conflict, and without any condition in regard to reciprocity. It is true that it provides for the application merely of the principles of the Conventions and not of specific provisions, but it defines those principles and in addition lays down certain brief and imperative rules.
Finally, Article 3 has the advantage of expressing briefly, in each of the four Conventions, the common principle which governs them.
PARAGRAPH 1. -- APPLICABLE PROVISIONS
1. ' First sentence. -- Field of application of the Article '
A. ' Cases of armed conflict. -- ' What is meant by "armed conflict not of an international character"?
The expression is so general, so vague that one might have feared that it might cover any act committed by force of arms -- any form of anarchy, rebellion, or even plain banditry.
Such was not the authors' intention, however; they did not consider the term "armed conflict" as applying to any and every isolated event involving the use of force and obliging the officers of the peace to have resort to their weapons.
In general, Article 2
should be recognized as applying to armed conflicts consisting of ' hostilities ' in which ' armed forces ' on either side are engaged -- in other words, conflicts which are in many respects similar to an international war, but take place within the confines of a single country.
[p.34] B. ' Obligations of the Parties. -- ' The obligation is absolute for each of the Parties, with no reciprocity clause. This is offset, it is true, by the fact that it is no longer the Convention as a whole which will be applicable, but only the provisions of Article 3 itself.
The obligation resting on the Party to the conflict which represents established authority is not open to question. On the other hand, what justification is there for the obligation on the adverse Party in revolt against the established authority? Some doubt has been expressed as to whether insurgents can be legally bound by a Convention which they have not themselves signed. The answer is provided in most national legislations; by the fact of ratification, an international Convention becomes part of law and is therefore binding upon all the individuals of that country. But this system is not universal. However that may be and without embarking on a discussion of international law which cannot be settled in the same way everywhere, one may state this: if the responsible authority at the head of the insurgents exercises effective sovereignty, it is bound by the very fact that it claims to represent the country, or part of the country.
If an insurgent party applies Article 3, so much the better for the victims of the conflict. No one will complain. If it does not apply it, it will prove that those who regard its actions as mere acts of anarchy or brigandage are right. As for the de jure Government, it cannot possibly claim that it is ' entitled ' to make use of torture and other inhuman acts prohibited by the Convention, as a means of combating its enemies.
Care has been taken to state, in Article 3, that the applicable provisions represent a compulsory minimum. The words "as a minimum" must be understood in that sense. At the same time they are an invitation to exceed that minimum.
2. ' Sub-paragraphs (1) and (2). -- Extent of the obligation '
A. ' Sub-paragraph (1): Humane treatment. -- ' We find expressed here the fundamental principle underlying the four Geneva Conventions. It is most fortunate that it should have been set forth in this Article, in view of the decision to dispense with a Preamble or prefatory Article which would have referred to it.
[p.35] The value of the provision is not limited to the field dealt with in Article 3. Representing, as it does, the minimum which must be applied in the least determinate of conflicts, its terms must a fortiori be respected in the case of international conflicts proper, when all the provisions of the Convention are applicable. For "the greater obligation includes the lesser", as one might say.
It is not necessary for an armed force as a whole to have laid down its arms for its members to be entitled to protection under the Article. The Convention, it should be recalled, refers to individuals and not to units of troops, and a man who has surrendered individually is entitled to the same humane treatment that he would receive if the whole army to which he belongs had capitulated (3).
We shall endeavour to explain later, when discussing Article 12
, the sense in which "humane treatment" should be understood (4). The definition is not an easy one; on the other hand, there is less difficulty in enumerating things which are incompatible with humane treatment. That is the method followed in the Convention when it proclaims four absolute prohibitions. The wording adopted could not be more definite:" To this end, the following acts ' are and shall remain prohibited at any time and in any place whatsoever..." ' No possible loophole is left; there can be no excuse, no extenuating circumstances.
Items (a) and (c) concern acts which world public opinion finds particularly revolting -- acts which were committed frequently during the Second World War. The wording adopted is flexible -- for here there is always the risk of being unable to catch up with the imagination of future torturers -- and, at the same time, precise.
Items (b) (taking of hostages) and (d) (sentences and executions without a proper trial) prohibit practices which have in the past been fairly general in war-time. But although they were common practice, they are nevertheless shocking to the civilized mind.
[p.36] Sentences and executions without previous trial are too open to error. "Summary justice" may be effective on account of the fear it arouses, but it adds too many innocent victims to all the other innocent victims of the conflict. All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors. The Convention has rightly proclaimed that it is essential to do this even in time of civil war or international war. We must be very clear about one point: it is only "summary" justice which is prohibited. The State retains its full right to prosecute, sentence and punish according to the law.
Reprisals do not appear here in the list of prohibited acts, but any reprisal entailing one or other of the acts referred to under items (a) to (d) is prohibited and so, speaking generally, is any measure incompatible with the "humane treatment" demanded unconditionally in the first clause of sub-paragraph (1).
As already noted, the field of application of Article 3 is very wide, embracing persons who do not take part in the hostilities as well as combatants who have laid down their arms or been placed ' hors de combat. '
B. ' Sub-paragraph (2): -- Care of the wounded, sick and shipwrecked. -- ' Here the Article reaffirms, in generalized form, and extends to the shipwrecked for this Convention, the fundamental principle underlying the original Geneva Convention of 1864. The clause, which is numbered separately, completes the preceding provision; it is concise and particularly forceful. It expresses a categorical obligation which cannot be restricted and needs no explanation.
PARAGRAPH 2. -- RIGHT OF HUMANITARIAN INITIATIVE
This paragraph is not merely decorative; it is of great moral and practical value. It is the adaptation of Article 9
of the Convention to the "Convention in miniature" represented by Article 3.
Although the International Committee of the Red Cross has been able to do a considerable amount of humanitarian work in certain internal conflicts, in others the doors have been closed against it, the mere offer of its services being regarded as an attempt [p.37] to interfere in the internal affairs of the State. Article 3 no longer permits any such inference. An impartial humanitarian organization is now legally entitled to offer its services. The Parties to the conflict may, of course, decline the offer if they consider they can do without it. But they can no longer look upon it as an unfriendly act or resent the fact that the organization making the offer has tried to come to the aid of the victims of the conflict with complete impartiality.
It is obvious that outside help can only, and should only, be supplementary. It is for the Parties to the conflict to conform to Article 3 and apply its provisions.
For offers of services to be legitimate and acceptable, they must come from an organization which is both ' humanitarian ' and both ' humanitarian ' and ' impartial, ' and the services offered and rendered must be ' humane and impartial ' also. The International Committee of the Red Cross is mentioned here for two reasons -- firstly on its own account, as an organization called upon, by its statutes and traditions, to intervene in cases of conflict, and, secondly, as an example of what is meant by a humanitarian and impartial organization (5).
PARAGRAPH 3. -- SPECIAL AGREEMENTS
In the case of armed conflict not of an international character, the Parties are legally only bound to observe Article 3 and may ignore all the other Articles. Each one of them, however, is completely free -- and should be encouraged -- to apply all or part of the remaining provisions of the Convention. An internal conflict may, as it continues, become to all intents and purposes a real war. The situation of thousands of sufferers is then such that it is no longer enough for Article 3 to be respected. Surely the most practical step is not to negotiate special agreements, but simply to refer to the Convention as it stands, or at all events to certain of its provisions.
[p.38] The provision does not merely offer a convenient possibility, but makes an urgent request, points out a moral duty: "The Parties to the conflict should further endeavour..."
Is there no danger of the paragraph becoming inoperative as a result of the fear of increasing the power of the rebel party, which was often expressed during the discussions? It should be remembered that although the Government must endeavour to conclude such agreements, it is not expressly required to do so. It is also free to stipulate that adherence to such an agreement in no way confers the status of a belligerent on the opposing Party. Besides, in practice the conclusion of the agreements provided for in paragraph 3 will depend on circumstances. They will generally only be concluded because of an existing situation which neither of the Parties to the conflict can deny.
Lastly, it must not be forgotten that this provision, like those which precede it, is governed by the last clause of paragraph 4 below.
PARAGRAPH 4. -- LACK OF EFFECT ON THE LEGAL STATUS OF THE
PARTIES TO THE CONFLICT
This clause is essential. Without it Article 3 would probably never have been adopted. I meets the fear -- always the same one -- that the application of the Convention, even to a very limited extent, in cases of civil war might interfere with the de jure Government's suppression of the revolt by conferring belligerent status, and consequently increased authority and power, upon the adverse Party. The provision was first suggested at the Conference of Government Experts (6), and makes clear the purely humanitarian object of the Convention, which is in no way concerned with the internal affairs of States.
Consequently, the fact of applying Article 3 does not in itself constitute any recognition by the de jure Government that the adverse Party has any authority or any particular status. It does [p.39] not limit in any way the right to suppress a rebellion, by all the means -- including arms -- provided by law; nor does it in any way affect the Government's right to prosecute, try and sentence the rebels, according to its own laws.
In the same way, the fact of the adverse Party applying this Article does not give it any special immunity -- still less any international status -- whichever it may be and whatever title it may give itself or claim.
Article 3, like the rest of the Convention, is concerned only with individuals and the physical and more treatment to which they are entitled as human beings. It does not affect the legal or political treatment which they may deserve as a result of their behaviour.
* (1) [(1) p.32] With the exception of the words "and
shipwrecked" which are included only in the present
(2) [(1) p.33] See ' Commentary I, ' pp. 38-48;
(3) [(1) p.35] The English text leaves no room for doubt in
this regard: "including members of the armed forces ' who
' who ' have laid down their arms". The Conference
deliberately adopted the word "who", which obviously
relates to "members", rather than "which" which would have
referred to "armed forces". See ' Final Record of the
Diplomatic Conference of Geneva of 1949, ' Vol. II-B on
Article 2, paragraph 4, p. 100;
(4) [(2) p.35] See below, pp. 90-91;
(5) [(1) p.37] In this connection, see the commentary on
Article 9 below, p. 64. Since 1949, the International
Committee of the Red Cross has had occasion to invoke
Article 3 and offer its services to the Parties in
conflict several times during various internal conflicts.
This offer has frequently been accepted;
(6) [(1) p.38] See ' Report on the work of the Conference of
Government Experts for the Study of the Conventions for
the Protection of War Victims ' (Geneva, April 14-26,
1947), Geneva, 1947, p. 9;
See the Commentary of 2017
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