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Treaties, States Parties and Commentaries
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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
The extreme brevity of the Preamble will be noted. Unlike the 1929 Geneva Conventions and the Hague Conventions of 1907, it contains no list of the Sovereigns or Heads of States of the signatory Powers or of the names of their Plenipotentiaries, and makes no mention of the presentation or verification of credentials; nor does it include the usual statement of the motives which have led the Powers to conclude the Convention, as had still been the practice in 1929. The Preamble to the 1929 Convention referred to the duty of every Power to mitigate, as far as possible, the hardships of war and [p.13] to alleviate the fate of prisoners of war; in addition, it contained a solemn statement of the intention of "developing the principles which have inspired the international conventions of The Hague, in particular the Convention concerning the Laws and Customs of War and the Regulations annexed to it".
This Preamble was a greatly simplified version of the first draft text (1). It was none the less of the utmost importance since it referred to the Hague Regulations, and in fact Articles 1
of the Convention made specific mention of those Regulations. The drafters had deemed it appropriate to omit any definition of the concept of a prisoner of war since it depended on the concept of a belligerent and the Hague Regulations gave a definition of the latter which had been universally accepted. Thus the first three Articles of the Hague Regulations determined the categories of persons to whom the 1929 Convention was applicable.
Moreover, with regard to relations between the contracting Powers. Article 89 of the 1929 Convention
referred to Chapter II of the Hague Regulations and the drafters of the 1929 Convention would hardly have ventured to rescind those Regulations, which were considered as a firm legislative foundation inspired by the Declaration of the 1874 Brussels Conference. "From Brussels to The Hague, from The Hague to Geneva, the same idea has been transmitted, being each time supplemented, developed and broadened" (2).
If the idea was unchanged, the attitude of the drafters of the 1949 Convention was rather different. Article 135
of the 1949 Convention [p.14] is identical to Article 89
of the 1929 Convention and maintains the reference to the Hague Regulations; but there is a change in Article 4
, which defines the persons protected by the Convention. At the Conference of Government Experts, which preceded the 1949 Diplomatic Conference, it had been decided that all references to the Hague Regulations should be deleted. There was therefore no justification for referring to them in a Preamble and it was considered simpler to abstain from inserting a Preamble and to replace it by a prefatory sentence, reproduced at the beginning of this Commentary, which merely refers to the fact that the 1949 Convention constitutes a revision of the 1929 instrument.
It is not always a matter of indifference whether a treaty does or does Hot open with a statement of motives and a 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. When submitting the draft Conventions to the XVIIth International Red Cross Conference in 1948, the International Committee of the Red Cross had stated that it preferred to leave the coming Diplomatic Conference to draw up such Preambles as it thought fit. But on the proposal of the French delegation, the Conference added the following Preamble to 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
(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 can be explained by the fact that an entirely new Convention was being prepared, and not merely a revision of an existing Convention. The idea was a happy [p.15] one, and on reflection it appeared to the International Committee of the Red Cross that it would be a good thing to include it in the other three Conventions also. Realizing that humanitarian law affects nearly everyone, and that in a modern war, where the fighting takes place everywhere and is no longer restricted to clearly defined battlefields, any man or any woman may be faced with a situation in which they have either to invoke or 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 in Geneva) of disseminating knowledge of the new Conventions widely and in peace-time, without waiting for the outbreak of war, concluded that it was desirable to make clear 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 have been drawn up, however clearly they are worded, it is too much to expect every soldier and every civilian to know the details of the 449 Articles of the four Conventions and to be able to understand and to 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 more or less correctly what he is called upon to apply under one or the 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..." (3)
The subject was discussed in great detail in Committee II, which had been entrusted with the task of drawing up the present Convention. [p.16] The problem proved difficult, there being divergent views on the question of what general principles it should set forth. Several delegations proposed that the Preamble should include a reference to the divine origin of man and to the Creator, regarded as the source of all moral law; there were many objections to this proposal. Several delegations came round to the point of view that it would be better to have no Preamble at all if no unanimous agreement on a text could be reached. As opinion was divided, the question of inserting a Preamble was put to the vote and the Committee finally decided in the negative by a large majority (4). The authors of the Convention considered nevertheless that there should be a reference to the general principles which should normally have been stated in a Preamble. This reference is to be found in paragraph 4 of Article 142
, which provides that in case of denunciation of the Convention, those principles shall remain in force "as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience".
The other Committees quickly came to the same decision in respect of the Conventions for which they were responsible.
Accordingly, the essential motive which had brought sixty-four nations together at Geneva was left unexpressed. It was thought necessary to give an account of these discussions since a number of the ideas which should have been expressed in a Preamble have fortunately been included in other Articles of the Convention, especially in Article 3
dealing with armed conflicts not of an international character. In drafting this Article, its authors based themselves very largely on the general ideas contained in the various draft Preambles.
The minimum requirement of humanitarian guarantees in the case of a non-international armed conflict is a fortiori applicable in international conflicts. The principle proclaimed in Article 3
is common to all four Geneva Conventions and from it each of them derives its essential provisions which, in the case of the present Convention, are constituted by the whole of Part II (Articles 12
* (1) [(1) p.13] The first draft read as follows:
(list of the Sovereigns or Heads of States)
"Affirming their desire to mitigate the hardships of
war and to alleviate the fate of the victims thereof;
"Considering that it is in the general interest to
extend to all States the advantage of the experience
gained during the world war in regard to the treatment of
prisoners of war, both through the various Conventions
concluded on their behalf between the belligerents and as
a result of action by the International Committee of the
"Being desirous, moreover, of confirming and
developing the principles which have inspired the
international conventions of The Hague, and in particular
the Convention concerning the Laws and Customs of War and
the Regulations annexed to it;
"Recognizing the need to revise and supplement the
provisions of those Regulations relative to prisoners of
war, have resolved to conclude a Convention to this effect
and have appointed the following as their
who, having communicated their full powers, found in good
and due form, have agreed as follows:";
(2) [(2) p.13] See ' Actes de la Conférence Diplomatique de
Genève de 1929, ' Geneva 1930, p. 633;
(3) [(1) p.15] 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 at
Geneva (April 21, 1949), Geneva, February 1949, p. 8;
(4) [(1) p.16] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-A, pp. 393-398 and 561;
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