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Commentary - Preamble
    PREAMBLE


    The extreme brevity of the Preamble will be noted. Unlike the 1929 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. The 1929 Conventions still conformed to this custom but in the Fourth Convention all this has been replaced by a brief statement of the purpose of the Diplomatic Conference, which was to draw up a Convention for the protection of civilians in time of war.
    [p.12] It will be noted that the Convention is a new one: reference is not made, as it was in 1929 in the case of prisoners of war, to a development of the principles which 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. The relationship between the Convention and the Fourth Hague Convention of 1907 is dealt with in Article 154 .
    It is not always a matter of indifference whether a treaty does or does not open with a statement of motives and an 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. The present Convention was very nearly given a Preamble of this kind.
    In the drafts it had submitted to the XVIIth International Red Cross Conference in 1948, the International Committee of the Red Cross had not made any suggestions with regard to a Preamble, preferring to leave the coming Diplomatic Conference to draw up such Preamble as it thought fit. But on the proposal of the French Delegation, the XVIIth International Conference added a Preamble, worded as follows, 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 and
    limb.

    (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 drawn up. The idea was a happy one. On reflection it appeared to the International Committee of the Red Cross that it would be a good thing to enunciate [p.13] the basic principle on which all the Conventions repose, not only in the new Convention but also in the three Conventions under revision. 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 he or she has 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 peacetime, 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 four hundred and more Articles of the four Conventions, and to be able to understand and 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 ... (1)"

    The subject was discussed in great detail in Committee III, which had been entrusted with the task of drawing up the present Convention. [p.14] Most of the delegations were in favour of inserting a Preamble, though their views on the subject of its contents differed. There were, in particular, many objections to the proposal to include a reference to the divine origin of man and to the Creator, regarded as the source of all moral law. Finally, in view of the impossibility of reconciling the different points of view, one delegation proposed dropping the Preamble altogether. This proposal was adopted by 27 votes to 17. In the words of the Rapporteur of Committee III, "No Preamble would be included." (2)

    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 solely on account of non-essential additions that one delegation or another wished to make.
    It was thought necessary to give an account of the discussions concerning this Preamble, despite the fact that it was finally dropped altogether, since some of the ideas it contained have, fortunately, been reproduced in other Articles of the Convention, especially in Article 3 dealing with armed conflicts not of an international character. In drafting this latter Article, its authors based themselves very largely on the general ideas contained in the various draft Preambles. Article 3 mentions, for example, that in an armed conflict which is not international in character, the contending Parties must at least comply with the following rule:
    "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."
    This minimum requirement in the case of a non-international armed conflict, is a fortiori applicable in international conflicts. It proclaims the guiding principle common to all four Geneva Conventions, and from it each of them derives the essential provision around which it is built. That provision in the case of the present Convention is Article 27 .


    Notes: (1) [(1) p.13] 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 of
    Geneva (April 21, 1949), Geneva, February 1949, p. 8;

    (2) [(1) p.14] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A. p. 813;