Treaties, States Parties and Commentaries
  • Print page
Commentary of 2017 
Article 46 : Detailed execution. Unforeseen cases
Text of the provision
Each Party to the conflict, acting through its Commanders-in-Chief, shall ensure the detailed execution of the preceding Articles and provide for unforeseen cases, in conformity with the general principles of the present Convention.
Reservations or declarations
None
Contents

A. Introduction
2814  Article 46, like its mirror provision Article 45 in the First Convention, underlines the crucial importance of ensuring respect for the Geneva Conventions during armed conflict and emphasizes the particular role of the military authorities in this regard. While it is during armed conflict that the majority of the provisions must actually be put into effect, failure to take adequate measures during peacetime to ensure their execution directly jeopardizes their observance.
2815  Given that the application of the Conventions in conflict situations falls to a large extent within the scope of responsibility of the military authorities, it is particularly important for commanders of the armed forces to ensure that, in conformity with this article, military doctrine integrates the detailed execution of the Conventions and provides for unforeseen cases.
2816  The obligation in Article 46 to take all necessary measures of execution usefully complements common Article 1 of the four Conventions: ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’[1] The general undertaking in common Article 1 ‘to respect and to ensure respect’ is translated into more concrete obligations by a number of other provisions, among which the present article occupies an important place.[2] It deals with one particular aspect of the duty of implementation, namely the obligation to ensure the detailed execution of the Convention during armed conflict through the military chain of command. It thereby focuses on a crucial period of the implementation process, during which a lack of commitment of the Parties to the conflict and their military authorities to ensuring respect for the rules therein may directly translate into violations of the Convention.
2817  It is therefore essential to ensure that respect for international humanitarian law is firmly integrated into the operational practice of the armed forces. This must already be done in peacetime by incorporating respect for humanitarian law into military doctrine, education, training and equipment, and sanctions.[3]
Back to top
B. Historical background
2818  The obligation to ensure the detailed execution of the Convention and to provide for unforeseen cases has a number of predecessors in earlier treaties. Article 46 largely reproduces the text of Article 26 of the 1929 Geneva Convention on the Wounded and Sick,[4] as well as Article 19 of the 1907 Hague Convention (X), which adapted the principles of the 1906 Geneva Convention to maritime warfare.[5] A similar provision is to be found in the 1906 Geneva Convention,[6] and even in the 1864 Geneva Convention.[7]
2819  One important difference exists, however, between the present provision and its predecessors. The earlier provisions primarily stipulated obligations of the commanders-in-chief and, by obligating them to act in accordance with the instructions of their respective governments, only hinted at the ultimate responsibility of the Parties to the conflict.[8] The present provision, on the contrary, improves on the previous texts by clearly designating the Parties to the conflict as the responsible entities, mentioning the commanders-in-chief as the organs entrusted with ensuring the detailed execution of the Convention and providing for unforeseen cases.
Back to top
C. Discussion
1. Scope of application
a. Detailed execution of the Convention during armed conflict
2820  The obligation to ensure the detailed execution of the Convention and to provide for unforeseen cases is addressed to ‘[e]ach Party to the conflict’ rather than to ‘[t]he High Contracting Parties’ more generally, as is the case, for example, in Articles 48 (dissemination) and 49 (translations, implementing laws and regulations). Hence, it applies only to the Convention’s execution during armed conflict and thus only to one part of the broader spectrum of necessary measures of implementation. This does not mean, however, that there is no obligation on the High Contracting Parties to take the necessary preparatory measures prior to the outbreak of an armed conflict. That obligation flows from the undertaking to respect and to ensure respect for the Conventions expressed in common Article 1 and a number of specific provisions.[9] Therefore, even though this article places particular emphasis on the obligation of ensuring compliance during conflict situations, it is without prejudice to the preparatory measures which are central to faithful adherence to humanitarian law during actual armed conflict.
2821  Each Party to the conflict must ensure the detailed execution of ‘the preceding Articles’. Based on the ordinary meaning of these words, this formulation covers all the provisions of the Convention, including common Article 3. Given that Article 3 contains obligations for both State and non-State Parties to a conflict, Article 46 should be construed as covering non-State Parties as well.
Back to top
b. Ensuring the execution of the Convention by the military authorities
2822  Article 46 requires each Party to the conflict ‘acting through its Commanders-in-Chief’ to ensure the detailed execution of the Convention. The Conventions do not define the notion of ‘Commanders-in-Chief’. The reference to the commanders-in-chief in the plural indicates that the term does not denote just the supreme commander of the armed forces, nor is it limited to the highest level of command; it refers to the military command generally.[10] This is also how the term is understood in Article 37(1) of the Second Convention.[11] This broad understanding of the notion of ‘Commanders-in-Chief’ corresponds to the purpose of Article 46, i.e. to commit Parties to effectively ensuring respect for the Convention’s provisions through the military chain of command, and to the increasing emphasis on the role played by military commanders at all levels in this respect.[12] Pursuant to Article 13(2) of the Second Convention, the obligation to ensure the detailed execution of the Convention extends to commanders of militias and volunteer corps outside the regular command structure of the State armed forces.
2823  Article 46 specifically designates commanders-in-chief as the agents through which the Parties to the conflict must ensure the detailed execution of the Convention and provide for unforeseen cases. This exclusive reference to the military authorities is not surprising as the implementation of the Convention is primarily the responsibility of the armed forces.[13] Military authorities are in fact in a unique position to ensure and enforce compliance with the Conventions by means of orders and instructions to subordinate levels of the military hierarchy, close supervision of their execution, and sanctions in case of breaches.
2824  Although for practical reasons commanders are singled out as the primary agents responsible for ensuring compliance, ultimate responsibility under international law lies with the Parties to the conflict. They must answer for any failure on the part of their military authorities to exercise their duties and must take the necessary measures to ensure that the Conventions are observed. Hence, each Party to the conflict remains fully responsible for the acts and omissions of its commanders-in-chief and is, consequently, bound to ensure that these actually take the necessary measures of execution.[14]
2825  Even though the present provision does not as such create individual obligations for commanders-in-chief, they may also be personally responsible for violations committed pursuant to their orders, as well as for a failure to take all necessary and reasonable measures to prevent war crimes from being committed by their subordinates or, if such crimes have been committed, to punish the perpetrators.[15]
2826  Although Article 46 does not address this, the Parties to the conflict may decide to delegate certain tasks to civilian authorities.[16] In such a case, the Parties to the conflict remain bound by the general rules, in particular common Article 1, to ensure respect for the Conventions by and through such civilian authorities.
Back to top
c. Absence of a similar provision in the Third and Fourth Conventions
2827  This provision appears only in the first two Conventions (see also Article 45 of the First Convention), and the possibility of inserting a corresponding article in the Third and Fourth Conventions was apparently never considered. The earlier 1929 Geneva Convention on Prisoners of War similarly did not contain a provision equivalent to Article 26 of the 1929 Geneva Convention on the Wounded and Sick. It seems, therefore, that the current disparity is essentially inherited from the 1929 Conventions.
2828  However, the 1929 Geneva Convention on Prisoners of War required that each prisoner-of-war camp ‘be placed under the authority of a responsible officer’,[17] thereby indicating the responsibility of the military to ensure the execution of the provisions relating to such camps. This interpretation is confirmed by the Third Convention, which specifies that a commissioned officer ‘shall be responsible, under the direction of his government, for [the Convention’s] application’.[18] A similar provision exists in the Fourth Convention for internment camps.[19] More generally, both the Third and Fourth Conventions provide for the responsibility of the High Contracting Parties for the treatment accorded to protected persons by their agents.[20] When read together with common Article 1, this implies an obligation on the State to ensure observance of the Conventions by and through its agents.
2829  Additional Protocol I, meanwhile, provides for the obligation to take measures of execution in a comprehensive manner covering both the Protocol and the four Conventions: ‘The High Contracting Parties and the Parties to the conflict shall without delay take all necessary measures for the execution of their obligations under the Conventions and this Protocol.’[21]
Back to top
2. The obligations flowing from Article 46
a. The obligation to ensure the detailed execution of the Convention
2830  The obligation to ensure the detailed execution of the Convention concerns its application in actual conflict situations. This task falls primarily on the armed forces as the provisions of the Convention concern first and foremost personnel within the military chain of command. This means that military commanders must take the decisions required by the Convention, give orders and instructions to ensure their execution, supervise compliance and ensure, if breaches have been committed, that disciplinary and, if necessary, penal sanctions are imposed.[22] Through their authority to issue orders and instructions, backed up by an effective system of sanctions, military commanders are able to exercise effective command and control over subordinate levels. This authority must be used to ensure the detailed execution of the Convention.
2831  To make this possible, preparatory work on military doctrine is of paramount importance. ‘Doctrine’ is understood as all standard principles that guide the action of armed forces at the strategic, operational and tactical levels. It therefore encompasses all directives, policies, procedures, codes of conduct and reference manuals, on which the military are educated and trained during their careers, giving them a common vocabulary and shaping the decision-making process, tactics and behaviour in operations.[23] Doctrine offers the ‘standard solution’ to commanders as they face new challenges and, while it does not contain all the answers, it does provide the frame for military thinking and decision-making. The obligation to ensure the detailed execution of the Convention, read together with common Article 1, implies, therefore, an obligation to ensure that military doctrine is in conformity with the Convention.
2832  Practically every provision of the Second Convention requires implementing measures after the outbreak of an armed conflict in order to ensure the Convention’s detailed execution. These measures include:
– Ensuring respect for and protection of protected persons and objects: For a commander, this entails issuing orders and instructions to respect and protect the wounded, sick and shipwrecked pursuant to Article 12 and supervising the execution of these orders and instructions during operations. They must do likewise for other persons and objects protected under the Second Convention.[24]
– Organizing search and rescue operations: It is a requirement, pursuant to Article 18(1), to organize after each engagement, without delay, the search for and collection of the wounded, sick and shipwrecked and the search for the dead.
– Concluding local arrangements: Whenever circumstances permit, this entails, pursuant to Article 18(2), concluding local arrangements for the removal of the wounded and sick by sea from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area.
– Appealing to the charity of commanders of neutral merchant vessels, yachts or other craft: This involves appealing to the charity of such commanders to take on board and care for wounded, sick and shipwrecked persons and to collect the dead, pursuant to Article 21(1).
– Notification of the names and descriptions of hospital ships and coastal rescue craft: The Parties to the conflict must be notified of this information ten days before the ships or craft are employed, pursuant to Articles 22, 24, 25 and 27. In addition, Articles 24 and 27 require an official commission for hospital ships and coastal rescue craft utilized by relief societies or private persons of a Party to the conflict.
– Regulating the use of weapons by crews of hospital ships or sick-bays: Crews of hospital ships or sick-bays may be authorized by their commanders to be equipped with light individual weapons for self-defence or the defence of the wounded and sick in their charge.[25]
– Determining the fate of sick-bays: Pursuant to Article 28, sick-bays may not be diverted from their purpose so long as they are required for the wounded and sick. However, after ensuring the proper care of the wounded and sick, a commander may decide to apply them to other purposes in case of urgent military necessity.
– Determining the fate of captured religious and medical personnel: It is the role of military commanders to determine to what extent personnel designated in Article 37 are allowed to continue to carry out their duties on behalf of the wounded, sick and shipwrecked in their care at the time of their capture.
– Arranging the return of medical and religious personnel: Military commanders must, pursuant to Article 37(2), ensure that personnel who have been thus retained benefit from the earliest possible landing.
– Ensuring the proper use of the emblem and preventing its misuse: This entails, pursuant to Articles 41–43, ensuring appropriate marking of medical and religious personnel, medical equipment, hospital ships and coastal rescue craft designated in Articles 22, 24, 25 and 27 and taking measures to prevent misuse of the emblem pursuant to Articles 44–45.
b. The obligation to provide for unforeseen cases
2833  Article 46 also requires each Party to the conflict, acting through its commanders-in-chief, to provide for unforeseen cases, in conformity with the general principles of the Convention. This takes account of the fact that the Convention, even though it contains detailed provisions, cannot provide an answer for every possible question that may arise in practice. Three examples illustrate this point.[26]
2834  The first example concerns the protection of personnel of coastal rescue craft. The question arises whether Articles 36 or 37 of the Second Convention regulate their status, including whether they may be captured. The Convention does not provide an answer.[27]
2835  Second, the Convention does not specify whether fixed coastal installations used exclusively for coastal rescue operations (Article 27(2)) are entitled to display the distinctive emblem of the Convention.[28]
2836  Lastly, the Convention contains no specific regulation of the protection of religious objects used by religious personnel. In the light of the duty to respect and protect religious personnel under Articles 36–37, it seems, however, that such objects should similarly be respected and protected.[29]
2837  To the extent that these ‘unforeseen cases’ may be identified before the outbreak of an armed conflict, as is the case for the three examples given above, and to the extent that this is both possible and reasonable, the High Contracting Parties should already in peacetime provide for these cases in a general manner in their military doctrine, education and training. This ensures that in actual conflict situations these cases will be dealt with in a consistent manner and in accordance with the general principles of the Convention.
Back to top
c. The general principles of the Convention
2838  Article 46 requires the Parties to the conflict to ensure the detailed execution of the preceding articles and to provide for unforeseen cases, ‘in conformity with the general principles of the present Convention’. This wording indicates that the principles of the Convention govern not only unforeseen cases, but also the execution of the treaty more generally.[30] This interpretation is supported by the fact that Article 8 of the 1864 Geneva Convention, as one of the predecessor provisions, referred to the general principles of the Convention, even though it did not yet mention unforeseen cases.[31]
2839  The general principles of the Convention correspond to the fundamental ideas from which the more specific stipulations are derived. They include, in particular:
– Respect for and protection of the wounded, sick and shipwrecked: The wounded, sick and shipwrecked must be respected and protected in all circumstances, treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria (see Article 12(1)–(2)). They must be searched for and collected, and protected against pillage and ill-treatment (see Article 18(1)).
– Respect for the dead: The dead must be searched for and protected from despoliation (see Article 18(1)).
– Prevention of persons going missing: Any particulars which may assist in the identification of the wounded, the sick or the dead must be recorded (see Article 19(1)). Burial of the dead must be preceded by a careful examination with a view to establishing their identity (see Article 20(1)).
– Respect for and protection of medical and religious personnel: Medical and religious personnel of hospital ships and other vessels must be respected and protected by the Parties to the conflict (see Articles 36–37).
– Respect for and protection of hospital ships and coastal rescue craft: Hospital ships and coastal rescue craft may not be attacked but must be respected and protected by the Parties to the conflict (see Articles 22, 24–25 and 27).
– Respect for and control of the use of the emblems and prevention of their misuse at all times (see Articles 41–45).
2840  These principles should inform decisions of military commanders when they encounter cases not foreseen by the Conventions. This requirement can also be seen as a reflection of the obligation under general international law to apply a treaty in good faith.[32]
Back to top
Select bibliography
de Mulinen, Frédéric, ‘Law of War and Armed Forces’, The Military Law and the Law of War Review, Vol. 21, 1982, pp. 35–48.
– ‘Transformation of modern law of war into documents for practical application’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 445–455.
– ‘Law of war training within armed forces. Twenty years experience’, International Review of the Red Cross, Vol. 27, No. 257, April 1987, pp. 168–179.
ICRC, Integrating the Law, ICRC, Geneva, 2007.
Handbook on International Rules Governing Military Operations, ICRC, Geneva, 2013.

1 - See 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007, Res. 3, para. 21, which ‘recalls that the obligation to respect international humanitarian law cannot be fulfilled without domestic implementation of international obligations and therefore reiterates the need for States to adopt all the legislative, regulatory and practical measures that are necessary to incorporate international humanitarian law into domestic law and practice’.
2 - See also e.g. Articles 48 on dissemination and 49 on communication of translations and implementing laws and regulations. For further details, see the commentary on common Article 1, section E.
3 - See ICRC, Handbook on International Rules Governing Military Operations, pp. 27–39.
4 - Geneva Convention on the Wounded and Sick (1929), Article 26: ‘The Commanders-in-Chief of belligerent armies shall arrange the details for carrying out the preceding articles as well as for cases not provided for in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.’
5 - Hague Convention (X) (1907), Article 19: ‘The commanders-in-chief of the belligerent fleets must see that the above articles are properly carried out; they will have also to see to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.’
6 - Geneva Convention (1906), Article 25: ‘It shall be the duty of the commanders in chief of the belligerent armies to provide for the details of execution of the foregoing articles, as well as for unforeseen cases, in accordance with the instructions of their respective governments, and conformably to the general principles of this convention.’
7 - Geneva Convention (1864), Article 8: ‘The implementing of the present Convention shall be arranged by the Commanders-in-Chief of the belligerent armies following the instructions of their respective Governments and in accordance with the general principles set forth in this Convention.’
8 - See also Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 191–192, identifying as one of the obligations of the commanders-in-chief: ‘recevoir les instructions de leurs gouvernements, car ce sont ces derniers qui portent en définitive la responsabilité’ (‘to receive instructions from their governments, for it is the latter which ultimately bear the responsibility’).
9 - For more details on ‘the provisions which shall be implemented in peacetime’, see the commentary on common Article 2, section C.
10 - See de Mulinen, 1982, p. 35: ‘Article 45 of the First Geneva Convention gives a guide-line showing, below the general responsibility of the State, the role to be played by the military command.’ See also Weston D. Burnett, ‘Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra’, Military Law Review, Vol. 107, 1985, pp. 71–189, at 136–137: The use of the term ‘commander-in-chief’ today denotes a very high-level commander who is likely to be far from the scene of actual hostilities and unable to control fast breaking events in the battle-front. The commanders-in-chief contemplated by the Geneva Conventions, however, are those who are responsible for taking ‘action on the spot during the fighting, to ensure respect and protection for the wounded, sick, and shipwrecked … ,’ including seeing to it that the enemy’s sick bays are protected during the fighting. Clearly, the military commander contemplated is the senior officer commanding at or near the battlefront, not a military commander far removed from the scene of the actual fighting.
11 - See the commentary on Article 37, paras 2524–2526.
12 - See e.g. Additional Protocol I, Articles 80(2) and 87. For the criminal responsibility of commanders, see also ICRC Study on Customary International Humanitarian Law (2005), Rules 152 and 153.
13 - See e.g. Article 41 (‘under the direction of the competent military authority’) and Article 42 (‘issued and stamped by the military authorities’).
14 - See also Hague Convention (IV) (1907), Article 3; Additional Protocol I, Article 91; Draft Articles on State Responsibility (2001), Article 4; and ICRC Study on Customary International Humanitarian Law (2005), Rule 149.
15 - See Additional Protocol I, Articles 86(2) and 87, and ICRC Study on Customary International Humanitarian Law (2005), Rules 152 and 153.
16 - See e.g. de Mulinen, 1984, pp. 446–447: ‘Whereas the first Hague and Geneva Conventions were essentially restricted to the military field, modern law of war is addressing more and more also civilian authorities and individuals.’
17 - Geneva Convention on Prisoners of War (1929), Article 18(1) (emphasis added).
18 - Third Convention, Article 39(1); see also Article 56(2) (Labour detachments).
19 - Fourth Convention, Article 99(1); see also Article 96 (Labour detachments).
20 - Third Convention, Article 12(1), and Fourth Convention, Article 29.
21 - Additional Protocol I, Article 80.
22 - See also Article 50.
23 - ICRC, Integrating the Law, p. 23; Handbook on International Rules Governing Military Operations, pp. 30–31.
24 - See Article 20 (the dead), Articles 22–28 (hospital ships and coastal rescue craft), Articles 36–37 (medical and religious personnel) and Articles 38–40 (ships used for the conveyance of medical equipment, and medical aircraft).
25 - For more details on the arming of medical personnel, see the commentaries on Article 35, section D, and Article 36, paras 2491–2492.
26 - On the meaning of ‘unforeseen cases’, see also de Mulinen, 1987, p. 172: [E]ven with a strategic approach, it will not always be possible to solve all problems immediately. Some gaps will remain, particularly for forces fighting under unusual conditions, such as a hostile natural environment, the possibly very different tactics and means of combat used by opposing forces, fighting in the enemy’s rear or in encircled areas, long and/or difficult transportation, supply and evacuation routes. It is part of the responsibility of the commanders concerned to fill such remaining gaps by ‘providing for unforeseen cases, in conformity with the general principles of the law of war’.
27 - For a full discussion, see the commentary on Article 36, section C.2.d.
28 - For further details, see the commentary on Article 43, section E.2.
29 - Protection of religious equipment is included in Article 18(2), which foresees the conclusion of local arrangements ‘for the passage of medical and religious personnel and equipment’ to besieged or encircled areas.
30 - See also Des Gouttes, p. 192: ‘Il faut que l’esprit de la Convention plane sur toute son exécution, même dans les détails.’ (‘The spirit of the Convention must infuse every aspect of its implementation, even in the details.’)
31 - See also Geneva Convention on the Wounded and Sick (1929), Article 26.
32 - Vienna Convention on the Law of Treaties (1969), Article 26.