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Commentary - Art. 2. Part I : General provisions
    [p.19] ARTICLE 2. -- APPLICATION OF THE CONVENTION


    GENERAL AND HISTORICAL

    The Hague Convention of 1899, in Article 2 , stated that the annexed Regulations concerning the Laws and Customs of War on Land were applicable "in case of war". This definition was not repeated either in 1907 at The Hague or in 1929 at Geneva; the very title and purpose of the Conventions made it clear that they were intended for use in war-time, and the meaning of war seemed to require 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 experience has shown that many armed conflicts, displaying all the characteristics of a war, may arise without being preceded by any of the formalities laid down in the Hague Convention. Furthermore, there have been many cases where Parties to a conflict have contested the legitimacy of the enemy Government and therefore refused to recognize the existence of a state of war. In the same way, the temporary disappearance of sovereign States as a result of annexation or capitulation has been put forward as a pretext for not observing one or other of the [p.20] humanitarian Conventions. It was necessary to find a remedy to this state of affairs and the change which had taken place in the whole conception of such Conventions pointed the same way. The Geneva Conventions are coming to be regarded less and less as contracts concluded on a basis of reciprocity in the national interests of the parties, and more and more as a solemn affirmation of principles respected for their own sake, a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. A State does not proclaim the principle of the protection due to prisoners of war merely in the hope of improving the lot of a certain number of its own nationals. It does so out of respect for the human person. The XVIth International Red Cross Conference accordingly drew attention in 1938 to
    the necessity of providing, in any future revision of the Conventions, for their application to undeclared as well as to declared wars. This became even more necessary after the cruel experience of the Second World War.
    The Preliminary Conference of National Red Cross Societies, which the International Committee of the Red Cross convened in 1946, fell in with the views of the Committee and recommended that a new Article, worded as follows, should be introduced at the beginning of the Convention: "The present Convention is applicable between the High Contracting Parties from the moment hostilities have actually broken out, even if no declaration of war has been made and whatever the form that such armed intervention may take" (2).
    The Conference of Government Experts recommended in its turn that the Convention should be applicable to "any armed conflict, whether the latter is or is not recognized as a state of war by the parties concerned", and also to "cases of occupation of territories in the absence of any state of war" (3).
    Taking into account these recommendations, the International Committee of the Red Cross drew up a draft text, which was adopted by the XVIIth International Red Cross Conference and subsequently became Article 2 of the Convention, as reproduced above.
    There was no discussion, at the 1949 Diplomatic Conference, on the Committee's proposal (which did not include the second sentence of paragraph 3); the experience of the Second World War had [p.21] convinced all concerned that it was necessary. But the draft text said nothing about the relations between a belligerent, or belligerents, bound by the Conventions on the one hand, and a belligerent, or belligerents, not bound by it on the other hand. The ' clausula si omnes ' (4) which was included in the 1906 Geneva Convention -- but which was never invoked during the First World War, although it might appropriately have been in the case of Montenegro -- was omitted in 1929. But although the Convention was binding upon the Contracting States in their relations as between each other, they were still under no obligation in regard to States which were not parties to that instrument. The ideal solution would obviously have been that all the Parties to a conflict should be obliged to apply the Convention in all circumstances, i.e. even if the adversary was not a party to it, and despite the fact that the Convention would be a ' res inter alios acta ' for the latter.
    There could be no question of reverting to the ' clausula si omnes ', which had fortunately been abandoned in recent times, since it no longer corresponded to humanitarian needs. The 1929 Convention had already departed from it by stating in the second paragraph of Article 82 that "in time of war, if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto". Thus the provisions concerning prisoners of war were given the binding force of which they had been deprived by the solutions adopted at the Peace Conferences. The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.
    Although from the legal point of view there was no way to extend the scope of the Convention, it was necessary to find one on the humanitarian plane. The Committee accordingly suggested to the Governments represented at the Diplomatic Conference of 1949 that the following two sentences be added to Article 2 :

    "In the event of an international conflict between one of the High Contracting Parties and a Power which is not bound by the present Convention, the Contracting Party shall apply the provisions thereof. This obligation shall stand unless, after a reasonable lapse of time, the Power not bound by the present Convention states its refusal to apply it, or in fact fails to apply it." (5)

    [p.22] The Diplomatic Conference also considered two other proposals (6) -- one, from the Canadian Delegation, suggesting that the Convention should also be applicable to a Power not party to the Convention so long as that Power complied with its provisions, and another, from the Belgian Delegation, which read as follows: "The Powers which are a party to the Convention shall invite the Power which is not a party to it to accept the terms of the said Convention; as from the latter Power's acceptance of the Convention, all Powers concerned shall be bound by it."
    The fact that there was no objection to this principle was a sure sign that the time was ripe for this step forward in international law. The discussion turned solely on the conditions to be fulfilled. The condition underlying both the Canadian proposal and the proposal of the International Committee of the Red Cross was resolutive, while the Belgian proposal was based on a suspensive condition. As agreement could not be reached on any of these proposals, they were discarded in favour of the compromise wording of the present text.
    The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: "As a general rule, a Convention could lay obligations only on Contracting States. But, 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. The text adopted by the Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-contracting adverse State, in so far as the latter accepted and applied the provisions thereof" (7).

    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 evading their obligations. There is no need for a formal declaration of war, or for the recognition of the existence of a state of war, as preliminaries [p.23] 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 not 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 (8) 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, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4 . Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.
    The Convention provides only for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests. Even if the existence of a state of war is disputed, Article 3 can be applied.

    PARAGRAPH 2. -- OCCUPIED TERRITORIES

    This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.

    [p.24] PARAGRAPH 3. -- CONFLICTS IN WHICH THE BELLIGERENTS
    ARE NOT ALL PARTIES TO THE CONVENTION

    1. ' Relations between belligerents party to the Convention '

    This provision appears to state an elementary truth; but that was not always the case. The Hague Conventions of 1907 and the Geneva Convention of 1906 all contained a ' clausula si omnes ' (9), and that provision was in force when the First World War broke out in 1914. But despite the fact that the application of the Convention might have been suspended on the ground that one of the belligerents -- Montenegro -- was not a party to it, all the Contracting States in general honoured their signature (10).
    It was essential, however, to clarify the position and to prevent any future recurrence of a situation similar to that of 1914. It should be noted that this problem of relations between opposing Powers is quite distinct from that of the relations between allied Powers fighting under a unified command. The latter case, which is also very important, is considered later in this volume, in connection with Article 12 .

    2. ' Relations between Contracting and non-Contracting Parties '

    The second sentence, added by the Diplomatic Conference of 1949, has certainly the characteristics of a compromise, for it does not come to a decision between the suspensive and resolutive conditions. At first sight it appears to incline towards the Belgian amendment. But whereas the latter only made the Convention applicable as from the time of its formal acceptance by the non-Contracting Power, the sentence adopted by the Diplomatic Conference drops all reference to an invitation to be made to the non-Contracting Power, and substitutes for the words "as from the latter Power's acceptance" the words "if the latter accepts and applies the provisions thereof".
    What, then, is the position in the interval between the launching of hostilities and the non-contracting belligerent's acceptance?
    [p.25] The First Report by the Special Committee of the joint Committee, to which reference has already been made, 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" (11). This passage shows how this not very clear provision should be interpreted.
    The spirit and character of the Conventions lead perforce to the conclusion that the Contracting Power must at least apply their provisions from the moment hostilities break out until such time as the adverse Party has had the time and an opportunity to state his intentions. That may not be a strictly legal interpretation; it does not altogether follow from the text itself; but it is in our opinion 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 moral interest of the Contracting Power, inasmuch as it invites the latter to honour a signature given before the world. It is finally to its advantage from a more practical point of view, 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 the 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. What happens if the non-Contracting Party makes no declaration, but in actual fact applies the Convention? Before answering this question, it must be seen what is meant by "accepting" the provisions of the Convention (11).
    Is a formal and explicit declaration by a non-Contracting State indispensable? The Rapporteur of the Special Committee seems to say that it is. "A declaration" he wrote "was necessary, contrary to the Canadian amendment, according to which an attitude on the part of the non-Contracting State in conformity with the Convention would have sufficed to make it applicable". He added, it is true, that it was not possible to lay down any uniform procedure in the matter, and that "the Convention would be applicable as soon as the declaration was made. It would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the non-contracting belligerent" (12).
    [p.26] Does it follow from this that, if the second condition -- namely the application of the Convention de facto -- is alone fulfilled, the Contracting Party is released from its obligations?
    Closely as that may seem to follow from the letter of the text, it does not appear possible to maintain such an interpretation. It would make the application of the Convention dependent on a suspensive condition even more rigid than that of the Belgian proposal, which was itself regarded as being too strict. It would bring about a paradoxical -- not to say, a 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.
    ' Summum jus summa injuria. ' The saying may often be true; but it should never be cited in reference to a humanitarian Convention. The Third Convention, like its three sister Conventions, rightly condemns reprisals against persons in the most categorical terms. But would it not be worse than any reprisals to ill-treat prisoners even before one's adversary had done so, merely because it was inferred from his silence that he was intending to do so?
    The two conditions laid down for the non-Contracting Power are that it should ' accept ' and ' apply ' the provisions of the Convention. In the absence of any further indication, there is no reason to assume that "acceptance" necessarily implies an explicit declaration. It can equally well be tacit. It may 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 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 [p.27] in question to persevere in applying humanitarian principles, whatever the attitude of the adverse Party may be. (13)


    * (1) [(2) p.19] Third Convention of The Hague of 1907, Article
    1;

    (2) [(1) p.20] ' 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, p. 15;

    (3) [(2) p.20] ' 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;

    (4) [(1) p.21] Clause providing that obligations are binding
    on a belligerent only of ' all ' the belligerents on the
    opposing side (principal adversary and allies of that
    adversary) are also bound by the same obligations;

    (5) [(2) p.21] See ' Remarks and Proposals submitted by the
    International Committee of the Red Cross, ' p. 9;

    (6) [(1) p.22] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, pp. 53-54 and 107-108;

    (7) [(2) p.22] Ibid., Vol. II-B, p. 108 (First Report drawn up
    by the Special Committee of the Joint Committee);

    (8) [(1) p.23] Or assimilated thereunto, pursuant to Article
    4;

    (9) [(1) p.24] See above, p. 21;

    (10) [(2) p.24] As stated in the Commentary on the 1929 Geneva
    Convention, "the facts backed by the signatures of the
    signatories and by the humanitarian interests of all,
    outweighed the law." Paul DES GOUTTES, ' Commentaire de la
    Convention de Genève du 17 juillet 1929, ' Geneva, 1930,
    ad Article 25, p. 188;

    (11) [(1) p.25] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, p. 108;

    (12) [(2) p.25] Ibid., p. 109;

    (13) [(1) p.27] This paragraph of Article 2 was applied during
    the Suez conflict in the autumn of 1956, when the opposing
    Parties were Egypt, on the one hand, and France, Israel
    and the United Kingdom, on the other. Of these, only the
    United Kingdom was not bound by the Conventions, which it
    had not yet ratified. Nevertheless, in reply to a telegram
    from the International Committee of the Red Cross the
    British Prime Minister stated that, pending their formal
    ratification, the United Kingdom Government accepted the
    Conventions and fully intended to apply their provisions,
    should the occasion arise. The ICRC informed the other
    States Party to the conflict of this statement, and none
    of the belligerents contested the applicability of the
    Conventions;