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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.

Commentary - Art. 52. Chapter VIII : Repression of abuses and infractions

ARTICLE 52

. -- PENAL SANCTIONS: III. RESPONSIBILITIES

OF THE CONTRACTING PARTIES

This provision naturally does not relate to the obligation to prosecute and punish those committing breaches of the Convention, which Article 50

makes absolute. If, however, any doubt existed on that point, this Article would clear it up completely.

According to the comments on this provision by the Italian Delegation, which proposed it, the State remains responsible for breaches of the Convention and may not absolve itself from responsibility on the grounds that those who committed the breaches have been punished. For example, it remains liable to pay compensation.

For a better understanding of the sense of this provision, it should be compared with Article 3

of the Fourth Hague Convention of 1907, which states the same principle.

Article 52 is intended to prevent the vanquished from being compelled in an armistice agreement or a peace treaty to renounce all compensation due for breaches committed by persons in the service of the victor. As regards material compensation for breaches [p.271] of the Convention, it is inconceivable, at least as the law stands today, that claimants should be able to bring a direct action for damages against the State in whose service the person committing the breaches was working. Only a State can make such claims on another State, and they form part, in general, of what is called "war reparations". It would seem unjust for individuals to be punished while the State in whose name or on whose instructions they acted was released from all liability.