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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
-- CONFLICTS NOT OF AN INTERNATIONAL CHARACTER
[p.26] HISTORICAL INTRODUCTION
This Article, which is common to all four Geneva Conventions, marks a new step forward in the unceasing development of the idea on which the Red Cross is based, and in the embodiment of that idea in international obligations. It is an almost unhoped-for extension of Article 2
Born on the battlefield, the Red Cross called into being the first Geneva Convention to protect wounded and sick military personnel. Extending its solicitude little by little to other categories of war victims, in logical application of its fundamental principle, it pointed the way, first to the revision of the original Convention, and then to the extension of legal protection in turn to prisoners of war and civilians. The same logical process could not fail to lead to the idea of applying the principle to ' all ' cases of armed conflict, including internal ones.
The importance of the Article, in which the whole of the rules applying to non-international conflicts are concentrated, makes it necessary, before embarking on analysis and commentary proper, to say something of its origin and of the principal phases of its development by the Diplomatic Conference in the course of the twenty-five meetings which were devoted to it (1).
1. ' Origin and development of the idea '
All international Conventions, including this one, are primarily the affair of Governments. Governments discuss them and sign them, and it is upon Governments that the duty of applying them devolves. But it is impossible to speak of the Geneva Conventions, and in particular of their application to civil war, without reference to the part played by the Red Cross.
The principle of respect for human personality, the basis on which all the Geneva Conventions rest, was not a product of the Conventions. It is older than they are and independent of them. Until 1949 it only found expression in the Conventions in its application to military [p.27] personnel. But it was not applied to them because of their military status: it is concerned with people, not as soldiers but simply as human beings, without regard to their uniform, their allegiance, their race or their beliefs, without regard even to any obligations which the authority on which they depend may have assumed in their name or in their behalf. Wounded or sick, they are entitled as such to the care and aid which the respect for human personality enjoins.
There is nothing astonishing, therefore, in the fact that the Red Cross has long been trying to aid the victims of internal conflicts, the horrors of which are sometimes even more terrible than those of international wars because of the fratricidal hatred they engender. But the difficulties which the Red Cross encountered in its efforts in this connection -- as always when endeavouring to go a step beyond the text of the Conventions -- were enhanced in this case by special obstacles arising out of the home policies of the States in which the conflicts raged. In a civil war the lawful Government, or that which so styles itself, tends to regard its adversaries as common criminals. This attitude has sometimes led governmental authorities to look upon relief given by the Red Cross to war victims on the other side as indirect aid to guilty parties. Applications by a foreign Red Cross Society or by the International Committee of the Red Cross for permission to engage in relief work have more than once been treated as unfriendly attempts to
interfere in the domestic affairs of the country concerned. This conception still prevailed when a draft Convention on the role of the Red Cross in civil wars or insurrections was submitted, for the first time, to the International Red Cross Conference in 1912. The subject was not even discussed.
The Red Cross was not discouraged. In spite of frequent lack of understanding on the part of the authorities, it was able in some cases to carry out a certain amount of humanitarian work in civil conflicts (2). The question was again placed on the agenda of the Xth International Red Cross Conference in 1921, and a resolution was passed affirming the right of all victims of civil wars, or social or revolutionary disturbances, to relief in conformity with the general principles of the Red Cross. The resolution further laid down in considerable detail the duties of the National Red Cross Society of the country in question and, in the event of that Society being unable to take action on an adequate scale, the course to be followed by the International Committee of the Red Cross or foreign National Societies with a view to making the necessary relief available. The resolution, as such, had not the force of a Convention, but it enabled the International Committee [p.28] in at least two cases -- the civil war in the plebiscite
area of Upper Silesia in 1921 and the civil war in Spain -- to induce both sides to give some kind of undertaking to respect the principles of the Geneva Convention (3).
Observing the results achieved by the International Committee of the Red Cross, the XVIth International Red Cross Conference in 1938 passed a resolution which did much to supplement and strengthen that of 1921. The text of the 1938 resolution is well worth quoting:
requests the International Committee and the National Red Cross Societies to endeavour to obtain:
(a) the application of the humanitarian principles which were formulated
in the Geneva Convention of 1929 and the Tenth Hague Convention of
1907, especially as regards the treatment of the wounded, the sick,
and prisoners of war, and the safety of medical personnel and medical
(b) humane treatment for all political prisoners, their exchange and, so
far as possible, their release;
(c) respect of the life and liberty of non-combatants;
(d) facilities for the transmission of news of a personal nature and for
the reunion of families;
(e) effective measures for the protection of children,"
The International Conference was thus envisaging, explicitly and for the first time, the application by the Parties to a civil war, if not of all the provisions of the Geneva Conventions, at any rate of their essential principles. This resolution, coupled with the results achieved in the two conflicts mentioned above, encouraged the International Committee of the Red Cross to reconsider the possibility of inserting provisions relating to civil war in the Conventions themselves.
At the Preliminary Conference of National Red Cross Societies in 1946 the International Committee proposed that, in the event of civil war within a country, the contending parties should be invited to declare their readiness to apply the principles of the Convention on a basis of reciprocity. The suggestion, modest enough since it took [p.29] account of realities, was no more at that stage than an attempt to provide a practice that had already yielded satisfactory results with a more solid foundation in the future by giving it some kind of legal footing in the Conventions. It was based on the belief that an invitation to the Parties to the conflict to make an explicit declaration (which it would undoubtedly be difficult for them to refuse) would encourage them to take sides with the advocates of humanitarian ideas, and that the suffering caused by civil wars would be appreciably reduced as a result. The Preliminary Conference of National Red Cross Societies did not merely approve the suggestion: it went further. It went in fact straight to the
root of the matter by a recommendation to insert at the beginning of each of the Conventions an Article to the effect that: "In the case of armed conflict within the borders of a State, the Convention shall also be applied by each of the adverse Parties, unless one of them announces expressly its intention to the contrary" (4).
Such was the view, idealistic but logical, of the Red Cross movement. What would be thought of it in Government circles remained to be seen. There was reason to fear that Governments would be reluctant to impose international obligations on States in connection with their internal affairs, and that it would be said to be impossible to bind provisional Governments, or political parties, or groups not yet in existence, by a Convention. But the Conference of Government Experts, which was convened by the International Committee of the Red Cross in 1947, did not take that view. Far from repeating the arguments which the charitable efforts of the International Committee of the Red Cross had so often encountered in the past, it admitted the necessity of making provision in the Convention for at least a partial extension of its provisions to the case of civil war. As a result of its efforts an Article was drafted under the terms of which the principles of the Convention were to be applied in civil wars by the Contracting Party, subject to the adverse Party also conforming thereto (5).
This proposal fell a long way short of that of the Red Cross Societies. It spoke only of the application of the ' principles ' of the Convention, and then only on a basis of reciprocity. But it nevertheless encouraged [p.30] the International Committee of the Red Cross to continue its efforts.
On the strength of the opinions thus expressed, the International Committee added a fourth and last paragraph to Article 2
of the revised and new Draft Conventions for the Protection of War Victims which it submitted to the XVIIth International Red Cross Conference at Stockholm. The wording was as follows:
"In all cases of armed conflict which are not of an international character, especially cases of civil war, colonial conflicts, or wars of religion, which may occur in the territory of one or more of the High Contracting Parties, the implementing of the principles of the present Convention shall be obligatory on each of the adversaries. The application of the Convention in these circumstances shall in no wise depend on the legal status of the Parties to the conflict and shall have no effect on that status."
The first part of this paragraph gave effect to the recommendation of the Red Cross Societies, and actually omitted the condition which the latter had contemplated. The second sentence embodied a wish expressed at the Conference of Government Experts. Its object was, first, to prevent the de jure Government from pleading non-recognition of its opponents as a reason for refusing to apply the Convention and, secondly, to prevent the other party from basing a claim for recognition as a regular Government on the respect it had shown for the Convention.
The draft text was the subject of lengthy discussion at the Stockholm Conference, at which Governments as well as Red Cross Societies were represented. In the end, the Conference adopted the proposals of the International Committee of the Red Cross for the First and Second Conventions, and in the case of the Third and Fourth Conventions made the application of the Convention subject to the proviso that the adverse party should also comply with it.
It was in this form that the proposal came before the Diplomatic Conference of 1949.
2. ' The discussions at the Diplomatic Conference of 1949 '
From the very outset, in the course of the first discussions of a general character, divergences of view became apparent (6). A considerable number of delegations were opposed, if not to any and every [p.31] provision in regard to civil war, at any rate to the unqualified application of the Convention to such conflicts. The principal criticisms of the Stockholm draft may be summed up as follows. It was said that it would cover in advance all forms of insurrection, rebellion, anarchy, and the break-up of States, and even plain brigandage. Attempts to protect individuals might well prove to be at the expense of the equally legitimate protection of the State. To compel the Government of a State in the throes of internal conflict to apply to such a conflict the whole of the provisions of a Convention expressly concluded to cover the case of war would mean giving its enemies, who might be no more than a handful of rebels or common brigands the status of belligerents, and possibly even a certain degree of legal recognition. There was also a risk of
ordinary criminals being encouraged to give themselves a semblance of organization as a pretext for claiming the benefit of the Convention, representing their crimes as "acts of war" in order to escape punishment for them.
A rebel party, however small, would be entitled under the Conventions to ask for the assistance and intervention of a Protecting Power. Moreover, it was asked, would not the de jure Government be compelled to release captured rebels as soon as the troubles were over, since the application of the Convention would place them on the same footing as prisoners of war? Any such proposals giving insurgents a legal status, and consequently increased authority, would hamper and handicap the Government in its measures of legitimate repression.
The advocates of the Stockholm draft, on the other hand, regarded the proposed text as an act of courage. Insurgents, said some, are not all brigands. It sometimes happens in a civil war that those who are regarded as rebels are in actual fact patriots struggling for the independence and the dignity of their country. Others argued that the behaviour of the insurgents in the field would show whether they were in fact mere brigands or, on the contrary, fought like real soldiers who deserved to receive protection under the Conventions. Again, it was pointed out that the inclusion of the reciprocity clause in all four Conventions, and not merely (as had been proposed at Stockholm) in the Third and Fourth Conventions, would be sufficient to allay the apprehensions of the opponents of the Stockholm proposals. It was not possible to talk of "terrorism", "anarchy" or "disorders" in the case of rebels who complied with humanitarian principles. Finally, the adoption of the Stockholm proposals would not in any way prevent a de jure Government from taking
measures under its own laws for the repression of acts considered by it to be dangerous to the order and security of the State.
[p.32] Faced with such widely varying opinions, the Conference referred the study of the Article to a small Committee (7), the very first meeting of which produced a whole series of amendments and proposals. Only one amendment proposed the rejection ' en bloc ' of the Stockholm text. On the other hand there was only one proposal in favour of accepting it as it stood. Between these two extremes there were six amendments which proposed limiting the application of the Conventions to conflicts which, though internal in character, exhibited the features of real war. The amendments in question suggested a number of alternative or cumulative conditions, which one or other of the Parties to the conflict must fulfil for the Convention to be applicable.
A Working Party was instructed to prepare two successive drafts, which in their turn gave rise to new amendments and provoked criticism. It seemed difficult to reach a majority in favour of any one solution.
The French Delegation must be given the credit for ending the deadlock in the Committee. Reverting to an idea previously put forward by the Italian Delegation to meet the case of conflicts not of an international character which failed to fulfil the stipulated conditions, the French Delegation suggested that in all cases of non-international conflict the principles of the Convention should alone be applicable. The following text was proposed:
"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 apply the provisions of the Preamble to the Convention for the Protection of Civilian Persons in Time of War."
Faced with almost universal opposition to the application of the Convention, with all its provisions, to all cases of non-international conflict, the Committee had until then tried to solve the problem by limiting the number of cases in which the Convention was to be applicable. The French proposal now sought a solution in a new direction, namely in the limitation of the provisions which applied.
The idea was a good one. But the suggested text had one defect. It referred to a draft Preamble which had not yet been adopted, and was, incidentally, never to be adopted (8). Moreover, that draft Preamble simply stated that certain things were prohibited. It alluded to principles, but did not define them.
[p.33] After discussion, a second Working Party was appointed with instructions to draw up a text containing a definition of the humanitarian principles applicable to all cases of non-international conflict, together with a minimum of mandatory rules. The Working Party produced a definition based on the principles of the Preamble which the International Committee of the Red Cross had itself proposed for all four Conventions (9), together with certain mandatory rules based on the draft Preamble to the Fourth (Civilians) Convention (10). The Working Party's draft, with certain minor modifications, was the text finally adopted. But it did not immediately rally unanimous support. Certain delegates still preferred the previous draft. On the other hand, the USSR Delegation took the view that it was not possible to sum up in so few lines such important provisions as those of the Convention which were to be equally applicable to civil and to international wars. Accordingly that delegation proposed a new text which read as follows:
"In the case of armed conflict not of an international character occurring in the territory of one of the States parties to the present Convention, each Party to the conflict shall apply all the provisions of the present Convention guaranteeing:
-- humane treatment of the civilian population;
-- prohibition, on the territory occupied by the armed forces of either
of the parties, of reprisals against the civilian population, the
taking of hostages, the destruction and damaging of property which
are not justified by the necessities of war;
-- prohibition of any discriminatory treatment of the civilian
population practised on the basis of differences of race, colour,
religion, sex, birth or fortune."
The Soviet proposal was based on the same idea as the French proposal -- namely, limitation of the provisions applicable, but differed from it in the method employed, preferring a general provision specifying the particular provisions of the Convention which were to be applicable.
As no one text commanded a majority, the three proposals were put to the Joint Committee (11). The proposal of the second Working Party obtained a clear majority over the others. It was finally adopted, [p.34] in the form in which it appears at the beginning of the commentary on this Article, at a plenary meeting of the Conference, though not without lengthy discussion, during which delegates who were opposed to it on principle or were in favour of one of the other proposals, had ample opportunity for expressing their points of view (12).
To borrow the phrase of one of the delegates, Article 3 is like a "Convention in miniature". It applies to non-international conflicts only, and will be the only Article applicable to them until such time as a special agreement between the Parties has brought into force between them all or part of the other provisions of the Convention. It is very different from the original draft produced by the International Committee of the Red Cross, which provided for the application of the Conventions in their entirety. But, as the International Committee's representative at the Diplomatic Conference remarked, since that text had obviously no chance of being accepted by the Governments and it was necessary to fall back on a less far-reaching solution, the wording finally adopted was the one which was to be preferred amongst the various drafts prepared during the Conference. It has the merit of being simple and clear. It at least ensures the application of the rules of humanity which are recognized as essential by civilized nations, and provides a legal basis for charitable
interventions by the International Committee of the Red Cross or any other impartial humanitarian organization -- interventions which in the past were all too often refused on the ground that they represented unfriendly interference in the internal affairs of a State. This text has the additional advantage of being applicable automatically, without any condition in regard to reciprocity. Its observance does not depend upon preliminary discussions on the nature of the conflict or the particular clauses to be respected, as would have been the case with the other drafts discussed. It is true that it merely provides for the application of the principles of the Convention and not for the application of specific provisions, but it defines those principles and in addition lays down certain mandatory rules. Finally, it has the advantage of expressing, in each of the four Conventions, the common principle which governs them.
[p.35] PARAGRAPH 1. -- APPLICABLE PROVISIONS
1. ' Introductory sentence -- Field of application of the Article '
A. ' Cases of armed conflict '. -- What is meant by "armed conflict not of an international character"?
That was the burning question which arose again and again at the Diplomatic Conference. The expression was so general, so vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms -- any form of anarchy, rebellion, or even plain banditry. For example, if a handful of individuals were to rise in rebellion against the State and attack a police station, would that suffice to bring into being an armed conflict within the meaning of the Article? In order to reply to questions of this sort, it was suggested that the term "conflict" should be defined or -- and this would come to the same thing -- that a list should be given of a certain number of conditions on which the application of the Convention would depend. The idea was finally abandoned -- wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list drawn from the various amendments discussed; they are as follows (13):
1. That the Party in revolt against the de jure Government possesses an
organized military force, an authority responsible for its acts,
acting within a determinate territory and having the means of
respecting and ensuring respect for the Convention.
2. That the legal Government is obliged to have recourse to the regular
military forces against insurgents organized as military and in
possession of a part of the national territory.
3. (a) That the de jure Government has recognized the insurgents as
(b) That it has claimed for itself the rights of a belligerent; or
(c) That it has accorded the insurgents recognition as belligerents
for the purposes only of the present Convention; or
(d) That the dispute has been admitted to the agenda of the Security
Council or the General Assembly of the United Nations as being a
threat to international peace, a breach of the peace, or an act
[p.36] 4. (a) That the insurgents have an organization purporting to have the
characteristics of a State.
(b) That the insurgent civil authority exercises de facto authority
over persons within a determinate portion of the national
(c) That the armed forces act under the direction of an organized
authority and are prepared to observe the ordinary laws of war.
(d) That the insurgent civil authority agrees to be bound by the
provisions of the Convention.
The above criteria are useful as a means of distinguishing a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection.
Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfil any of the above conditions (which are not obligatory and are only mentioned as an indication)? We do not subscribe to this view. We think, on the contrary, that the scope of application of the article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and embodied in the municipal law of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture
and mutilate prisoners and take hostages? However useful, therefore, the various conditions stated above may be, they are not indispensable, since no Government can object to observing, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, even when dealing with common criminals.
Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities -- conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country. In many cases, each of the Parties is in possession of a portion of the national territory, and there is often some sort of front.
[p.37] B. ' Obligations of the Parties '. -- The words "each Party" mark the great progress which the passage of a few years had brought about in international law. Until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party -- a Party, moreover, which was not yet in existence and which need not even represent a legal entity capable of undertaking international obligations.
The obligation is absolute for each of the Parties. The reciprocity clause, which appeared in the Stockholm draft of the Fourth Convention, has been deliberately dropped. That represents a great step forward -- offset, it is true, by the fact that it is no longer the Convention as a whole which will be applicable, but only the actual provisions of Article 3 itself.
The obligation resting on the Party to the conflict which represents established authority is not open to question. The mere fact of the legality of a Government involved in an internal conflict suffices to bind that Government as a Contracting Party to the Convention. On the other hand, what justification is there for the obligation on the adverse Party in revolt against the established authority? At the Diplomatic Conference doubt was expressed as to whether insurgents could be legally bound by a Convention which they had not themselves signed. But if the responsible authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent the country, or part of the country. The "authority" in question can only free itself from its obligations under the Convention by following the procedure for denunciation laid down in Article 158
. But the denunciation would not be valid, and could not in point of fact be effected, unless the denouncing authority was recognized internationally as a competent Government. It
should, moreover, be noted that under Article 158
denunciation does not take effect immediately.
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, the effect on it of applying Article 3 cannot be in any way prejudicial; for no Government can 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.
[p.38] 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 Preamble or prefatory Article, in which it would normally have been placed. The subparagraph defines the principle which, not then expressed, led to the founding of the Red Cross movement and to the conclusion of the original Geneva Convention.
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.
In view of the fact that four Conventions were being drawn up, each providing protection for a particular category of war victims, it might be thought that the paragraph should have been divided up, the relevant portion only being included in each Convention. (In the Fourth Convention, for example, mention might have been made only of civilians.) It was thought preferable, however, in view of the indivisible and inviolable nature of the principle proclaimed, and its brevity, to enunciate it in its entirety and in an absolutely identical manner in all four Conventions. In this Commentary we shall confine ourselves to points which more particularly concern persons protected under the Fourth Convention.
What Article 3 guarantees such persons is ' humane treatment '.
We shall explain later, when discussing Article 27
, the sense in which "humane treatment" should be understood. The definition is not a very precise one, as we shall see. 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 attenuating circumstances.
Items (a) and (c) concern acts which world public opinion finds particularly revolting -- acts which were committed frequently during the Second World War. It may be asked whether the list is a complete one. At one stage of the discussions, additions were considered -- with [p.39] particular reference to the biological "experiments" of evil memory, practised on inmates of concentration camps. The idea was rightly abandoned, since biological experiments are among the acts covered by (a). Besides, it is always dangerous to try to go into too much detail -- especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and, at the same time, precise. The same is true of item (c).
Items (b) (taking of hostages) and (d) (sentences and executions without a proper trial) prohibit practices which are fairly general in wartime. But although they were common practice until quite recently, they are nevertheless shocking to the civilized mind. The taking of hostages, like reprisals, to which it is often the prelude, is contrary to the modern idea of justice in that it is based on the principle of collective responsibility for crime. Both strike at persons who are innocent of the crime which it is intended to prevent or punish.
Sentences and executions without previous trial are too open to error. "Summary justice" may be effective on account of the fear it arouses -- though that has yet to be proved -- but it adds too many further 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 war. We must be very clear about one point: it is only "summary" justice which it is intended to prohibit. No sort of immunity is given to anyone under this provision. There is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law.
Reprisals, to which we have just referred, do not appear here in the list of prohibited acts. Does that mean that reprisals, while formally prohibited under Article 33
(14), are allowed in the case of non-international conflicts, Article 3 being the only Article which then applies? As we have seen, the acts referred to under items (a) to (d) are prohibited absolutely and permanently, no exception or excuse being tolerated. Consequently, any reprisal which entails one of these acts is prohibited, and so, speaking generally, is any reprisal incompatible [p.40] with the "humane treatment" demanded unconditionally in the first clause of sub-paragraph (1).
It should be noted that the acts prohibited in items (a) to (d) are also prohibited under other Articles of the Convention, in particular Articles 27
to 34, and 64
As we have already mentioned, Article 3 has an extremely wide field of application and covers members of the armed forces as well as persons who do not take part in the hostilities. In this instance, however, the Article naturally applies first and foremost to civilians -- that is to people who do not bear arms. In the case of members of the armed forces, it is the corresponding Article in the Third Convention to which in most cases appeal will be made. All the persons referred to in (1) without distinction are entitled to humane treatment. Criteria which might be employed as a basis for discrimination against one class of persons or another are enumerated in the provision, and their validity denied. Memories of the crimes perpetrated during the last World War led the authors of the 1949 Convention to adopt this formula, which is repeated in several other clauses of the Convention, in particular in Articles 13
. It will be seen that the idea of nationality has not been included in Article 27
. That does not in any way mean that people of a
given nationality may be treated in an arbitrary manner; everyone, whatever his nationality, is entitled to humane treatment. On the other hand it is quite possible that special security measures may be taken in the case of civilians of a given nationality; it is also possible that certain offences may be regarded as more serious or less serious according to whether they have been committed by citizens of the country concerned or by aliens. It is a matter of administrative measures or judicial proceedings which depend on the criterion of nationality, but such measures and proceedings do not affect the treatment of individuals, which must be humane in all cases.
B. ' Sub-paragraph (2): Care of the wounded and sick '. -- Article 3 here reaffirms, in generalized form, the fundamental principle underlying the original Geneva Convention of 1864. The clause, which is numbered separately, does not form part of the preceding provision, although it completes it; it is concise and particularly forceful. It expresses a categorical imperative which cannot be restricted and needs no explanation. There is every reason to be satisfied with it.
The safeguards enjoyed by the military wounded and sick under the First Convention are, as we know, extended by the present Convention to wounded and sick civilians. In its Article 12
the First Convention says that the wounded and sick are to "be respected and [p.41] protected in all circumstances", while under Article 16
of the present Convention they are to "be the object of particular protection and respect". In spite of a slight difference in wording, the basic idea is the same in both cases; the wounded and sick must be respected and protected.
PARAGRAPH 2. -- HUMANITARIAN INITIATIVE
It is obvious that any organization can "offer its services" to the Parties to the conflict at any time, just as any individual can. The offer of services costs little and, what is more important, in no way binds the recipient, since they need not be accepted. The International Committee of the Red Cross, for its part, has not failed to offer its services for humanitarian purposes during various civil wars, whenever it considered that this was in the interests of those suffering as a result of hostilities, just as it has offered them when any international conflict has broken out. This paragraph may therefore appear at first sight to be merely decorative and without any real significance. Nevertheless, it is of great moral and practical value. Although it is extremely simple, it is adequate, and the International Committee itself asked for nothing more. It is a reduction, to the scale of the "Convention in miniature" represented by Article 3, of the provision contained in Article 9
below, which applies to international conflicts,
when the whole Convention is applicable.
Although the International Committee of the Red Cross has been able to do a considerable amount of humanitarian work in certain civil wars, in others the doors have been churlishly closed against it, the mere offer of charitable services being regarded as an unfriendly act -- an inadmissible attempt to interfere in the internal affairs of the State. The adoption of Article 3 has placed matters on a different footing, an impartial humanitarian organization now being legally entitled to offer its services. The Parties to the conflict may, of course, decline the offer if they can do without it. But they can no longer look upon it as an unfriendly act, nor resent the fact that the organization making the offer has tried to come to the aid of the victims of the conflict.
It is obvious that outside help can only, and should only, be supplementary. It is for the Parties to the conflict to apply Article 3 and ensure the observance of all its provisions. It is also obvious that it is, in the first place, for the National Red Cross Society of each country, in its capacity as an auxiliary organization, to help in this and, by its words and actions, win recognition for the requirements of humanity throughout the national territory. But the national authorities and National Red Cross Society of a country may not always be able to cope with requirements; nor may the National Red Cross always be in [p.42] a position to act everywhere with the necessary efficiency. Additional help will then be necessary. The Party to the conflict which in such cases refuses offers of charitable service from outside its frontiers will incur a heavy moral responsibility.
For offers of service to be legitimate, and acceptable, they must come from an organization which is 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. The reader should refer, for further remarks on the subject, to the commentary on Article 9
PARAGRAPH 3. -- SPECIAL AGREEMENTS
If the Convention was to include provisions applicable to all non-international conflicts, it was necessary, as we have seen, to give up any idea of insisting on the application to such conflicts of the Convention in its entirety. Legally, therefore, the Parties to the conflict are bound to observe Article 3 and may ignore all the other Articles. It is obvious, however, that each one of them is completely free -- and should be encouraged -- to declare its intention of applying all or part of the remaining provisions. Another possibility is that 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. It becomes desirable to settle in detail the treatment they are to receive, the relief which is to be brought to them, and various other matters. A time may come when it is as much in the interest of the Parties to the conflict as of the victims that this should be done, and surely the most
practical way of doing it is not to negotiate special agreements in great detail, but simply to refer to the Convention as it stands, or at all events to certain of its provisions.
The provision does not merely offer a convenient possibility, but makes an urgent request, points out a duty: "The Parties to the conflict should further endeavour..." Although the only provisions which each of the Parties is bound to apply unilaterally are those contained in Article 3, they are nevertheless under an obligation to try to bring about a fuller application of the Convention by means of a bilateral agreement.
Is there no danger of the paragraph becoming inoperative as a result of the fear of increasing the power of the rebel party, which [p.43] was so often expressed during the discussions? Will a de jure Government not be afraid that the conclusion of such agreements may increase the authority of those who have risen in revolt against it, by constituting an implicit recognition of the legal existence and belligerent status of the party concerned? It should be remembered that although the de jure Government must endeavour to conclude such agreements, it remains free in regard to its final decision. It is also free to make the express stipulation that its adherence to the agreement in no way implies recognition of the legality of 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 can deny, no matter what the legal aspect of the situation may in their opinion be.
Lastly, it must not be forgotten that this provision, like those which precede it, is governed by the last clause of the Article.
Which provisions could most easily be brought into force by means of special agreements (15)? First of all those contained in Articles 27
to 34, which apply both to the territory of the Parties to the conflict and to occupied territory. The provisions dealing with occupied territory could no doubt also be applied. This is also true of those dealing with
the treatment of internees (Articles 79
to 135). It would, on the other hand, be more difficult to apply in case of civil war the provisions relating to aliens in the territory of a Party to the conflict, for in a civil war the struggle takes place in a territory whose citizens are all of the one nationality. That was one of the objections raised to the full and unconditional extension of the Convention to such conflicts. Several delegates pointed out that a great many of its provisions could not be applied in case of civil war, or would at all events have to be modified to a considerable extent. In order to solve the problem, the International Committee of the Red Cross presented the Diplomatic Conference with a definition of protected persons in cases of civil war and of the treatment which should be applied to them. The definition read as follows: "Furthermore, in case of a conflict not international in character, the nationals of the country where the conflict takes place, who do not belong to the armed forces, are likewise protected by the
present Convention, under the provisions relating to occupied territories." (16)
[p.44] PARAGRAPH 4. -- LACK OF EFFECT ON THE LEGAL STATUS
OF THE PARTIES TO THE CONFLICT
This clause is essential. Without it neither Article 3, nor any other Article in its place, would ever have been adopted. It meets the fear -- always the same one -- that the application of the Convention, even to a very limited extent, in cases of civil war may interfere with the de jure Government's lawful suppression of the revolt, or that it may confer belligerent status, and consequently increased authority and power, upon the adverse Party. The provision was first suggested at the Conference of Government Experts convened by the International Committee of the Red Cross in 1947 (17) and has been re-introduced in much the same words in all the succeeding drafts. It makes it absolutely clear that the object of the Convention is a purely humanitarian one, that it is in no way concerned with the internal affairs of States, and that it merely ensures respect for the few essential rules of humanity which all civilized nations consider as valid everywhere and under all circumstances and as being above and outside war itself.
Consequently, the fact of applying Article 3 does not in itself constitute any recognition by the de jure Government that the adverse Party has authority of any kind; it does not limit in any way the Government's right to suppress a rebellion by all the means -- including arms -- provided by its own laws; nor does it in any way affect that Government's right to prosecute, try and sentence its adversaries for their crimes, according to its own laws.
In the same way, the fact of the adverse Party applying the Article does not give it any right to special protection or any immunity, whatever it may be and whatever title it may give itself or claim.
Article 3 resembles the rest of the Convention in that it is only concerned with the individual and the physical treatment to which he is entitled as a human being without regard to his other qualities. It does not affect the legal or political treatment which he may receive as a result of his behaviour.
Notes: (1) [(1) p.26] See F. SIORDET: ' The Geneva Conventions and
Civil War ', Supplement to the ' Revue internationale de
la Croix-Rouge ', Vol. III, Nos. 8, 9 and 11, Geneva,
August, September and November 1950;
(2) [(1) p.27] See ' Revue internationale de la Croix-Rouge ',
December 15, 1919, pp. 1427 ff.;
(3) [(1) p.28] See the following documents of the XVIth
International Red Cross Conference: Document No. 12
' (General Report of the International Red Cross Committee
on its Activities from August 1934 to March 1938) ' and
Document No. 12 bis ' (Supplementary Report by the
International Committee on its Activities in Spain) ';
(4) [(1) p.29] See ' Report on the Work of the Preliminary
Conference of National Red Cross Societies for the Study
of the Conventions and of Various Problems relative to the
Red Cross ' (Geneva, July 26 - August 3, 1946), Geneva,
1947, pp. 14 ff. and 51;
(5) [(2) p.29] 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. 8;
(6) [(1) p.30] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, Article 2, pp. 9-15;
(7) [(1) p.32] This was the Special Committee of the Joint
Committee. The provision in question was discussed, first
as Article 2, ' fourth paragraph ' (i.e. with the
numbering it had in the Stockholm draft), and later as
Article 2A. See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-B, pp. 40-48,
75-79, 82-84, 90, 93-95, 97-102;
(8) [(2) p.32] See above, p. 14;
(9) [(1) p.33] See above, p. 13;
(10) [(2) p.33] See above, p. 12;
(11) [(3) p.33] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, pp. 34-35;
(12) [(1) p.34] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, Article 2A, pp. 325-339;
(13) [(1) p.35] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, p. 121;
(14) [(1) p.39] See below, p. 224;
(15) [(1) p.43] It should be noted that when signing the
present Convention one signatory State (Argentina) made a
reservation stating that Article 3, common to all four
Conventions, was, to the exclusion of all other Articles,
the only one which would be applicable in cases of armed
conflict not of an international character;
(16) [(2) p.43] Cf. ' Remarks and Proposals ', pp. 68-69;
(17) [(1) p.44] 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;
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