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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.
. -- APPLICATION OF THE CONVENTION
[p.27] Neither the Tenth Hague Convention of 1907 nor the Geneva Conventions of 1929 defined the conditions for their application. Their very titles and purpose made it clear that they were intended for use in war-time and that notion Heeded no defining. The Hague Convention relative to the Opening of Hostilities provided that "hostilities... must not commence without previous and explicit warning, in the form either of a declaration of war giving the reasons on which it is based or of an ultimatum with conditional declaration of war" (1). Since 1907, Parties to a conflict have in many instances contested the legitimacy of the Government of the adverse Party on various pretexts, or have refused to recognize the existence of a state of war. Now, the Geneva Conventions are not so much contracts concluded on a basis of reciprocity in the interest of the parties as a solemn affirmation of principles respected for their own sake, a series of unconditional commitments on the part of each of the Contracting Parties ' vis-à-vis ' the others.
Furthermore, as we shall see later, the application of the Hague Conventions was still subject to the lausula si omnes. If one of the belligerents was not a Contracting Party, the other belligerents were relieved from all their obligations.
Lastly, the Geneva Conventions have today achieved a much greater degree of universality than the 1907 Conventions.
For all these reasons, since the provisions applicable to maritime warfare have been embodied in the "Geneva law", their application is now more extensive (2).
PARAGRAPH 1. -- ARMED CONFLICTS INVOLVING
THE APPLICATION OF THE CONVENTION
By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for [p.28] evading their obligations. There is no need for a formal declaration of war, or for recognition of the existence of a state of war, as preliminaries to the application of the Convention. The occurrence of de facto hostilities is sufficient.
It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is Hot making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such arguments less easy. Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2
, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims. Nor, incidentally, does the application of the Convention necessarily involve the intervention of cumbrous machinery. It all depends on circumstances. If there is only a single shipwrecked person as a result of the conflict, the Convention will have been applied as soon as he has been collected and tended, the provisions of Article 12
observed in his case, and his identity notified to the Power on which he depends. All that can be done by anyone; it is merely a case of taking the trouble to save a human life.
PARAGRAPH 2. -- OCCUPIED TERRITORIES
This paragraph, which is new, is more aptly placed in the Fourth (Civilians) Convention, and may at first sight seem superfluous here, for if there is no military resistance, what victims will there be ? The provision is not without value, however. To provide for the protection and care of wounded, sick and shipwrecked members of the armed forces the Convention also protects a whole series of persons, establishments and property; and without this paragraph it would be possible for an Occupying Power to refuse [p.29] to care for the sick military personnel of the occupied Power. It might requisition or sequestrate for its own purposes hospital ships which happened to be in port or in territorial waters. It might also take into its service the military personnel of the occupied Power, including the doctors and other members of the naval medical service. Thanks to the present paragraph the establishments and property covered by the Convention will always be available for their charitable purpose.
PARAGRAPH 3. -- CONFLICTS IN WHICH THE BELLIGERENTS
ARE NOT ALL PARTIES TO THE CONVENTION
1. ' Relations between belligerents party to the Convention '
This provision, which is taken from Article 25, paragraph 2, of the 1929 Convention
, is sufficiently explicit to require no comment. It is consistent with the practice followed in two world wars. The Tenth Convention of The Hague still contained the dangerous ' clausula si omnes ' (3). It is to the credit of the belligerent Powers in 1914-1918 and, as regards war at sea, 1939-1945, that they did not avail themselves of it.
2. ' Relations between Contracting and non-Contracting Parties '
The second sentence, added by the Diplomatic Conference of 1949, is less explicit. It is actually a compromise, which does not indicate clearly whether application by the Contracting Party is subject to the suspensive or the resolutive condition. In other words, is the Contracting Party absolved from applying the Convention so long as the non-Contracting Party does not accept or apply its provisions, or, on the contrary, must it honour its signature from the outset, with the possibility of being released from its obligations later if the adverse Party does not accept them and carry them out?
An answer to this question may be found in the first report by the Special Committee to the joint Committee of the Diplomatic [p.30] Conference, which states: "according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized" (4).
The spirit and character of the Conventions lead perforce to the conclusion that the Contracting Party must apply their provisions from the moment hostilities break out, and at least until the adverse Party has had the time and an opportunity to state any contrary intentions. That may not be a strictly legal interpretation, but it seems the only reasonable solution. It follows from the spirit of the Conventions and is in accordance with their character. It is also in accordance with the understandable moral interest of the Contracting Party, since it invites the latter to honour a signature given before the world. Lastly, it is in accordance with the practical interest of the Contracting Party because the fact of its beginning itself to apply the Convention will encourage the non-Contracting Party to declare its acceptance, whereas any postponement of application of the Convention by the Contracting Party would give the non-Contracting Party a pretext for nonacceptance.
There are two conditions to be fulfilled under this part of the paragraph -- (a) acceptance and (b) de facto application of the Convention. Does this mean that a formal and explicit declaration by the non-Contracting State is indispensable, and that if the second condition -- de facto application -- is alone fulfilled, the Contracting Party is released from its obligations?
Contrary to the opinion of the Rapporteur of the Special Committee (5), it does not appear possible to maintain such an interpretation. It would bring about a paradoxical -- not to say, monstrous -- situation. It would entitle a Power to disregard rules solemnly proclaimed by itself, while its adversary, though not legally bound to those rules, was scrupulously applying them; and all this only because of the omission of the latter to make a declaration, or because of delay in the transmission of such a declaration.
[p.31] ' Summum jus, summa injuria '. The saying should never be true of a humanitarian Convention. The present Convention, like its three sister Conventions, rightly condemns reprisals in the most categorical terms. But would it not be worse than any reprisals to abandon, ill-treat or put to death wounded, sick or shipwrecked persons before one's adversary had done so, merely because it was inferred from his silence that he was intending to do so?
In the absence of any express stipulations in the present paragraph, it must therefore be assumed that acceptance may be tacit. It may even be implicit in de facto application.
These considerations do not in any way minimize the importance of an explicit declaration by the non-Contracting Power. It is, on the contrary, most desirable that the latter should always make such a declaration, and with the least possible delay. The International Committee of the Red Cross for its part, when offering its services at the beginning of a Conflict, never fails to ask Parties to the conflict which are not legally bound by the Convention to declare their intention of applying it or of observing at least its principles, as the case may be.
In practice, any Contracting Power in conflict with a non Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party's declaration. It will take into account facts above all.
Furthermore, although the Convention, as a concession to legal form, provides that in certain circumstances a Contracting Power may legally be released from its obligations, its spirit encourages the Power in question to persevere in applying humanitarian principles, whatever the attitude of the adverse Party may be.
* (1) [(1) p.27] Third Convention of The Hague of 1907, Article
1. On the other hand, the Third Hague Convention of 1899
contained the following provision in Article 11, paragraph
1: "The rules contained in the above Articles are binding
only on the Contracting Powers, in case of war between two
or more of them";
(2) [(2) p.27] The Commentary on the First Convention contains
a study on the history of this Article and its preparation
at the Diplomatic Conference. See ' Commentary I, ' p. 28
(3) [(1) p.29] See above, p. 27;
(4) [(1) p.30] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, p. 108;
(5) [(2) p.30] Ibid., p. 109;
See the Commentary of 2017
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