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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- CONFLICTS NOT OF AN INTERNATIONAL
[p.38] HISTORICAL INTRODUCTION
This Article is common to all four of the Geneva Conventions of 1949, and is one of their most important Articles. It marks a new step forward in the unceasing development of the idea on which the Red Cross is based, and in the embodiment of that idea in the form of international obligations. It is an almost unhoped for extension of Article 2
Born on the battlefield, the Red Cross called into being the First Geneva Convention to protect wounded or sick military personnel. Extending its solicitude little by little to other categories of war victims, in logical application of its fundamental principle, it pointed the way, first to the revision of the original Convention, and then to the extension of legal protection in turn to prisoners of war and civilians. The same logical process could not fail to lead to the idea of applying the principle to all cases of armed conflicts, including those of an internal character.
The importance of the Article, in which the whole of the Convention is concentrated, so far as non-international conflicts are concerned, makes it necessary, before embarking on analysis and commentary proper, to say something of the origin of the Article and of the principal phases of its development by the Diplomatic Conference in the course of the twenty-five meetings which were devoted to it. (1)
[p.39] 1. ' Origin and development of the idea '
All international Conventions, including the one with which we are concerned, are primarily the affair of Governments. Governments discuss them and sign them, and it is upon Governments that the duty of applying them devolves. But it is impossible to speak of the Geneva Conventions, and in particular of their application to civil war, without reference to the part played by the Red Cross.
The principle of respect for human personality, which is at the root of all the Geneva Conventions, was not a product of the Conventions. It is older than they are and independent of them. Until 1949 it only found expression in the Conventions in its application to military personnel. But it was not applied to them because of their military status: it is concerned with persons, not as soldiers but as human beings, without regard to their uniform, their allegiance, their race, or their religious or other beliefs, without regard even to any obligations the authority on which they depend may have assumed in their name or in their behalf. Wounded or sick, they are entitled as such to the care and aid which the respect for human personality enjoins.
There is nothing astonishing, therefore, in the fact that the Red Cross has long been trying to aid the victims of internal conflicts, the horrors of which sometimes surpass the horrors of international wars by reason of the fratricidal hatred which they engender. But the difficulties which the Red Cross encountered in its efforts in this connection -- as always when endeavouring to go a step beyond the text of the Conventions -- were enhanced in this case by special obstacles arising out of the internal politics of the States in which the conflict raged. In a civil war the lawful Government, or that which so styles itself, tends to regard its adversaries as common criminals. This attitude has sometimes led governmental authorities to look upon relief given by the Red Cross to war victims of the other Party to the conflict as indirect aid to those who are guilty. Applications by a foreign Red Cross or by the International Committee of the Red Cross have more than once been treated as unfriendly attempts to interfere in the internal
affairs of the country concerned. This conception still prevailed when a draft Convention on the role of the Red Cross in civil wars or insurrections was submitted, for the first time, to the International Red Cross Conference in 1912. The subject was not even discussed.
[p.40] But the Red Cross was not discouraged. In spite of frequent lack of understanding on the part of the authorities, it was able in certain cases to carry out a certain amount of humanitarian work in civil conflicts. (2) The question was again placed on the agenda of the Xth International Red Cross Conference in 1921, and a Resolution was passed affirming the right to relief of all victims of civil wars or social or revolutionary disturbances in accordance with the general principles of the Red Cross. The Resolution further laid down in considerable detail the duties of the National Red Cross of the country in question and, in the event of the National Red Cross being unable to take action, the course to be followed by the International Committee of the Red Cross or foreign National Societies with a view to making available the necessary relief. The Resolution, as such, had not the force of a Convention. But it enabled the International Committee in at least two cases -- the civil war in the plebiscite area of Upper Silesia in 1921, and the civil war in
Spain -- to induce both sides to undertake more or less to respect the principles of the Geneva Convention. (3)
Noting the results achieved by the International Committee of the Red Cross, the XVIth International Red Cross Conference in 1938 passed a Resolution which did much to supplement and strengthen that of 1921. The text of the 1938 Resolution is worth quoting. It is as follows:
having taken cognizance with keen interest of the Report presented by the International Committee of the Red Cross on the role and activity of the Red Cross in time of civil war,
recalling the Resolution relating to civil war adopted by the Xth Conference in 1921,
pays tribute to the work spontaneously undertaken by the International Committee of the Red Cross in hostilities of the nature of civil war, and relies on the Committee to continue its activity in this connection with the co-operation of the National Societies, with a view to ensuring on such occasions respect for the high principles which are at the basis of the Red Cross movement,
requests the International Committee and the National Red Cross Societies to endeavour to obtain:
[p.41] (a) the application of the humanitarian principles which were formulated
in the Geneva Convention of 1929 and the Tenth Hague Convention of
1907, especially as regards the treatment of the wounded, the sick,
and prisoners of war, and the safety of medical personnel and medical
(b) humane treatment for all political prisoners, their exchange and, so
far as possible, their release;
(c) respect of the life and liberty of non-combatants;
(d) facilities for the transmission of news of a personal nature and for
the reunion of families;
(e) effective measures for the protection of children,
requests the International Committee, making use of its practical experience, to continue the general study of the problems raised by civil war as regards the Red Cross, and to submit the results of its study to the next International Red Cross Conference."
The International Conference was thus envisaging, explicitly and for the first time, the application by the Parties to a civil war, if not of all the provisions of the Geneva Conventions, at any rate of their essential principles. This Resolution, coupled with the results achieved in the two conflicts mentioned above, encouraged the International Committee of the Red Cross to reconsider the possibility of inserting provisions relating to civil war in the Conventions themselves.
At the Preliminary Conference of National Red Cross Societies in 1946 the International Committee proposed that, in the event of civil war in a country, the parties should be invited to state that they were prepared to apply the principles of the Convention on a basis of reciprocity. The suggestion was modest enough owing to the fact that it took account of "realities". It was merely an attempt to provide a practice, which had already yielded satisfactory results, with a more solid foundation in the future by giving it some sort of legal footing in the Conventions. It was based on the belief that an invitation to the Parties to the conflict to make an explicit declaration (which it would undoubtedly be difficult for them to refuse) would encourage them to line up with the advocates of humanitarian ideas, and that the sufferings arising out of civil wars would thereby be appreciably reduced. The Preliminary Conference of National Red Cross Societies did not merely approve the suggestion: it went further. It went in fact straight to the root of the problem by a
recommendation to insert at the beginning of the Geneva Convention an Article to the effect that: "In the case of armed [p.42] conflict within the borders of a State, the Convention shall also be applied by each of the adverse Parties, unless one of them announces expressly its intention to the contrary". (4)
Such was the view, idealistic but logical, of the Red Cross world. It remained to be seen what would be thought of it in Government circles. There was reason to fear that Governments would be reluctant to impose international obligations on States in connection with their internal affairs, and that it would be said to be impossible to bind provisional Governments, or political parties, or groups not yet in existence, by a Convention! But the Conference of Government Experts, which was convened by the International Committee of the Red Cross in 1947, did not take this view. Far from repeating the arguments which the charitable efforts of the International Committee of the Red Cross had so often encountered in the past, they admitted the necessity of making provision in the Convention for at least a partial extension of the latter to the case of civil war. As the result of their labours an Article was drafted, under which the principles of the Convention were to be applied in civil wars by the Contracting Party, provided the adverse Party did the same. (5)
This proposal fell a long way short of that of the Red Cross Societies. It spoke only of the application of the ' principles ' of the Convention, and made even their application subject to reciprocity. But it served nevertheless to encourage the International Committee of the Red Cross to continue its labours.
Strengthened by these expressions of opinion, the International Committee proceeded to complete Article 2
of the revised and new Draft Conventions for the Protection of War Victims which it submitted to the XVIIth International Red Cross Conference at Stockholm, by the addition of a fourth and last paragraph worded as follows:
"In all cases of armed conflict which are not of an international character, especially cases of civil war, colonial conflicts, or wars of religion, which may occur in the territory of one or more of the High Contracting Parties, the implementing of the principles of the present Convention shall be obligatory on each, of the adversaries. The [p.43] application of the Convention in these circumstances shall in no wise depend on the legal status of the Parties to the conflict and shall have no effect on that status."
The first part of this paragraph gave effect to the recommendation of the Red Cross Societies, and even omitted the condition which the latter had contemplated. The second sentence embodied a wish expressed at the Conference of Government Experts. Its object was, first, to prevent the de jure Government from pleading non-recognition of its opponents as a reason for refusing to apply the Convention and, secondly, to prevent the other party from basing a claim for recognition as a regular Government on the respect it had shown for the Convention.
The proposal gave rise to lengthy discussion at the Stockholm Conference, at which Governments were represented as well as Red Cross Societies. All the arguments for and against it found expression, but there is no need to reproduce them here, since they were all to be repeated at the Diplomatic Conference of 1949. In the end the draft text submitted by the International Committee of the Red Cross was approved with the exception of the words "especially cases of civil war, colonial conflicts, or wars of religion" which were omitted. The omission of these words, far from weakening the text, enlarged its scope.
It was in this form that the proposal came before the Diplomatic Conference of 1949.
2. ' The discussions at the Diplomatic Conference of 1949 '
From the very outset, in the course of the first discussions of a general character, divergences of view became apparent. (6) A considerable number of delegations were opposed, if not to any and every provision in regard to civil war, at any rate to the unqualified application of the Convention to such conflicts. The principal criticisms of the Stockholm draft may be summed up as follows. It was said that it would cover in advance all forms of insurrection, rebellion, anarchy, and the break-up of States, and even plain brigandage, Attempts to protect individuals - might well prove to be at the expense of the equally legitimate protection of the State. To compel the Government of a State in the throes of internal convulsions to apply to these internal disturbances the whole body of provisions of a Convention expressly concluded to cover the [p.44] case of war would mean giving its enemies, who might be no more that a handful of rebels or common brigands, the status of belligerents, and possibly even a certain degree of legal
recognition. There was also a risk of common or ordinary criminals being encouraged to give themselves a semblance of organization as a pretext for claiming the benefit of the Conventions, representing their crimes as "acts of war" in order to escape punishment for them. A party of rebels, however small, would be entitled under the Conventions to ask for the assistance and intervention of a Protecting Power. Moreover, it was asked, would not the de jure Government be compelled to release the captured rebels as soon as the troubles were over, since the application of the Convention would place them on the same footing as prisoners of war? Any such proposals giving insurgents a legal status, and consequently increased authority, would hamper and handicap the Government in its perfectly legitimate measures of repression.
The advocates of the Stockholm draft, on the other hand, regarded the proposals in that instrument as an act of courage. Insurgents, said some, are not all brigands. It sometimes happens in a civil war that those who are regarded as rebels are in actual fact patriots struggling for the independence and the dignity of their country. Others argued that the behaviour of the insurgents in the field would show whether they were in fact mere brigands, or, on the contrary, genuine soldiers deserving of the benefit of the Conventions. Again, it was pointed out that the inclusion of the reciprocity clause in all four Conventions, and not merely (as had been proposed at Stockholm) in the Third and Fourth Conventions, would be sufficient to allay the apprehensions of the opponents of the Stockholm proposals. It was not possible to talk of "terrorism", "anarchy" or "disorders" in the case of rebels who complied with humanitarian principles. Finally, the adoption of the Stockholm proposals would not in any way prevent a de jure Government from taking
measures under its own laws for the repression of acts judged by it to be dangerous to the order and security of the State.
Faced with such widely varying opinions, the Conference referred the study of the Article to a small Committee (7), the first meeting of which [p.45] produced a whole series of amendments and proposals. Only one amendment proposed the rejection ' en bloc ' of the Stockholm text. On the other hand there was only one proposal in favour of its acceptance as it stood. Between these two extremes there were six amendments which proposed limiting the application of the Conventions to conflicts which, though internal in character, exhibited the features of real war. The amendments in question suggested a number of alternative or cumulative conditions, which one or other of the Parties to the conflict must fulfil for the Convention to be applicable.
A Working Party was instructed to prepare two successive drafts. It will be of interest to give here the text of the second draft, which it was proposed to insert in the First, Second and Third Conventions. In this text, pains were taken to take all views and suggestions into account and, as a result, it represents a very fair summary of the different trends of opinion at the Diplomatic Conference. The text was as follows:
"(1)In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties,
each Party to the conflict shall be bound to apply the provisions of
the present Convention, provided:
(a) that the de jure Government has recognized the status of
belligerency of the adverse party, even for the sole purposes of
the application of the present Convention or
(b) that the adverse party possesses an organized civil authority
exercising de facto governmental functions over the population of
a determinate portion of the national territory, an organized
military force under the direction of the above civil authority,
and the means of enforcing the Convention and the other laws and
customs of war; application of the Convention in these
circumstances shall in no wise depend on the legal status of the
Parties to the conflict.
(2) This obligation presupposes, furthermore, that the adverse party
likewise recognizes its obligation in the conflict at issue to comply
with the present Convention and the other laws and customs of war.
(3) The provisions relating to the Protecting Powers shall, however, not
be applicable, except in the instance of special agreement between
the Parties to the conflict. In the absence of such agreement, an
impartial humanitarian body, such as the International Committee of
the Red Cross, may offer its services to the Parties to the conflict.
(4) In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties,
but which does not fulfil the conditions as set out above, the
Parties to the conflict should endeavour to bring [p.46] into force,
by means of special agreements, all or part of the provisions of the
present Convention, and in all circumstances shall act in accordance
with the underlying humanitarian principles of the present
(5) In all cases foreseen in the foregoing provisions, total or partial
application of the present Convention shall not affect the legal
status of the Parties to the conflict.
Before it was discussed, this text gave rise to new amendments and provoked criticism, Some delegations wished to add further conditions. Others objected that the text would lead, at the beginning of each conflict, to interminable discussion as to the nature of that conflict. There was no provision for any kind of judicial authority to decide whether the conditions stipulated were fulfilled, or not. In practice they would rarely all be fulfilled. In short, the application of the Conventions, and consequently the greater or lesser degree of cruelty of the hostilities, would depend solely on the whim of the de jure Government.
The French Delegation must take the credit for having put an end to the deadlock in the Committee. Reverting to an idea previously put forward by the Italian Delegation for the case of conflicts not of an international character, which failed to fulfil the stipulated conditions, the French Delegation suggested that in all cases of non-international conflict the principles of the Convention should alone be applicable. The following text was proposed:
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall apply the provisions of the Preamble to the Convention for the Protection of Civilian Persons in Time of War."
Faced with almost universal opposition to the application of the Convention, with all its provisions, to all cases of non-international conflict, the Committee had until then tried to solve the problem by limiting the number of cases in which the Convention was to be applicable. The French proposal now sought a solution in a new direction, namely in the limitation of the provisions applicable.
The idea was a good one. But the suggested text had one fault. It referred to a draft Preamble which had not yet been adopted, and was, incidentally, never to be adopted. (8) Moreover, this draft Preamble [p.47] did no more that specify certain prohibitions. It alluded to principles, but did not define them.
After discussion, a second Working Party was appointed with instructions to draw up a text containing a definition of the humanitarian principles applicable to all cases of non-international conflicts, together with a minimum of imperative rules. The Working Party produced a definition based on the principles of the Preamble which the International Committee of the Red Cross had itself proposed for all four Conventions (9), together with certain imperative rules based on the draft Preamble to the Fourth (Civilians) Convention. (10) The Working Party's draft, with certain minor modifications, was the text finally adopted. But it was not immediately accepted unanimously. Certain delegates still supported the previous draft. On the other hand, the USSR Delegation took the view that it was not possible to sum up in so few lines such important provisions as those of the Convention which were to be equally applicable to civil and to international wars. Accordingly the said delegation proposed a new text which reads as follows:
"In the case of armed conflict not of an international character occurring in the territory of one of the States parties to the present Convention, each Party to the conflict shall apply all the provisions of the present Convention guaranteeing: -- humane treatment for the wounded and sick; -- prohibition of all discriminatory treatment of wounded and sick
practised on the basis of differences of race, colour, religion, sex,
birth or fortune."
The Soviet proposal was based on the same idea as the French proposal -- namely, limitation of the provisions applicable, but differed from it insofar as it preferred a general provision specifying the particular provisions of the Convention which were to be applicable.
As no one text commanded a majority, the three proposals were put to the Joint Committee. (11) The proposal of the second Working Party obtained a clear majority over the others, and was finally adopted, in the form in which it appears at the beginning of the commentary on this Article, at a plenary meeting of the Conference, though not without lengthy discussion, during which delegates who were opposed to it on [p.48] principle or were in favour of the other proposals, had ample opportunity for expressing their points of view (12).
To borrow the phrase of one of the delegates, Article 3 is like a "Convention in miniature". It applies to non-international conflicts only, and is only applicable to them until such time as a special agreement between the Parties has brought into force between them all or part of the other provisions of the Convention. It is very different from the original draft produced by the International Committee of the Red Cross and adopted at Stockholm, the latter providing for the application of the Conventions in their entirety. But, as the representative of the International Committee at the Diplomatic Conference remarked, since the text originally adopted at Stockholm had no chance of being accepted by the Governments and it was necessary to fall back on an intermediate solution, the text finally adopted was the one which was to be preferred amongst the various drafts prepared during the Conference. It has the merit of being simple and clear. It at least ensures the application of the rules of humanity which are recognized as essential by civilized
nations and provides a legal basis for charitable interventions by the International Committee of the Red Cross or any other impartial humanitarian organization -- interventions which in the past were all too often refused on the ground that they represented unfriendly interference in the internal affairs of a State. The text in question has the additional advantage of being applicable automatically, without any condition of reciprocity. Its observance does not depend upon preliminary discussions as to the nature of the conflict or the particular clauses to be respected, as would have been the case with the other drafts discussed. It is true that it merely provides for the application of the principles of the Convention and not for the application of specific provisions, but it defines those principles and in addition lays down certain imperative rules. Finally, it has the advantage of expressing, in each of the four Conventions, the common principle which governs them.
[p.49] PARAGRAPH 1 -- APPLICABLE PROVISIONS
1. ' Introductory sentence -- Field of application of the Article '
A. ' Cases of armed conflict '. -- What is meant by "armed conflict not of an international character"?
That was the burning question which arose again and again at the Diplomatic Conference. The expression was so general, so vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms -- any form of anarchy, rebellion, or even plain banditry. For example, if a handful of individuals were to rise in rebellion against the State and attack a police station, would that suffice to bring into being an armed conflict within the meaning of the Article? In order to reply to questions of this sort, it was suggested that the term "conflict" should be defined or, which would come to the same thing, that a certain number of conditions for the application of the Convention should be enumerated. The idea was finally abandoned -- wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list of those contained in the various amendments discussed; they are as follows: (13)
(1) That the Party in revolt against the de jure Government possesses an
organized military force, an authority responsible for its acts,
acting within a determinate territory and having the means of
respecting and ensuring respect for the Convention.
(2) That the legal Government is obliged to have recourse to the regular
military forces against insurgents organized as military and in
possession of a part of the national territory.
(3) (a) That the de jure Government has recognized the insurgents as
(b) that it has claimed for itself the rights of a belligerent; or
(c) that it has accorded the insurgents recognition as belligerents
for the purposes only of the present Convention; or
(d) that the dispute has been admitted to the agenda of the Security
Council or the General Assembly of the United Nations as being a
threat to international peace, a breach of the peace, or an act
(4) (a) That the insurgents have an organisation purporting to have the
characteristics of a State.
(b) That the insurgent civil authority exercises de facto authority
over persons within a determinate territory.
(c) That the armed forces act under the direction of the organized
civil authority and are prepared to observe the ordinary laws of
(d) That the insurgent civil authority agrees to be bound by the
provisions of the Convention.
The above criteria are useful as a means of distinguishing a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection.
Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfil any of the above conditions (which are not obligatory and are only mentioned as an indication)? We do not subscribe to this view. We think, on the contrary, that the Article should be applied as widely as possible. There can be no reason against this. For, contrary to what may have been thought, the Article in its reduced form does not in any way limit the right of a State to put down rebellion. Nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and enacted in the municipal law of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to inflict
torture and mutilations and to take hostages? However useful, therefore, the Various conditions stated above may be, they are not indispensable, since no Government can object to respecting, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact respects daily, under its own laws, even when dealing with common criminals.
[p.51] B. ' Obligations of the Parties '. -- The words "each Party" mark the great progress which the passage of a few years has sufficed to bring about in international law. For until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party -- a Party, moreover, which was not yet in existence and which was not even required to represent a legal entity capable of undertaking international obligations.
Each of the Parties will thus be required to apply Article 3 by the mere fact of that Party's existence and of the existence of an armed conflict between it and the other Party. The obligation is absolute for each of the Parties, and independent of the obligation on the other Party. The reciprocity clause has been omitted intentionally. It had already been omitted in the Stockholm draft (14) in spite of the fact that the latter provided for the application of the Convention as a whole to cases of non-international conflict; for it was considered that the First and Second Conventions, unlike the Third and Fourth, set no difficult problems and implied no complicated material obligations. There was even less reason for including such a clause now that the obligation resting on the Parties was limited to the observance of the principles underlying the Conventions and of a few essential rules.
The obligation resting on the Party to the conflict which represents established authority is not open to question. The legality of a Government involved in an internal conflict suffices to bind that Government as a Contracting Party to the Convention. On the other hand, what justification is there for the obligation on the adverse Party in revolt against the established authority? At the Diplomatic Conference doubt was expressed as to whether insurgents could be legally bound by a Convention which they had not themselves signed. But if the responsible authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent the country, or part of the country. The "authority" in question can only free itself from its obligations under the Convention by following the procedure for denunciation laid down in Article 63
. (15) But the denunciation would not be valid, and could not in point of fact be effected, unless the denouncing authority was recognized internationally as a competent
Government. [p.52] It should, moreover, be noted that under Article 63
denunciation does not take effect immediately.
If an insurgent party applies Article 3, so much the better for the Victims of the conflict. No one will complain. If it does not apply it, it will prove that those who regard its actions as mere acts of anarchy or brigandage are right. As for the de jure Government, the effect on it of applying Article 3 cannot be in any way prejudicial; for no Government can possibly claim that it is ' entitled ' to make use of torture and other inhumane acts prohibited by the Convention, as a means of combating its enemies.
Care has been taken to state, in Article 3, that the applicable provisions represent a compulsory minimum. The words "as a minimum" must be understood in that sense. At the same time they are an invitation to exceed that minimum.
2. ' Sub-paragraphs (1) and (2) -- Extent of the obligation '
A. ' Sub-paragraph (1): Humane treatment '. -- We find expressed here the fundamental principle underlying the four Geneva Conventions. It is most fortunate that it should have been set forth in this Article, in view of the decision not to have a Preamble, or prefatory Article, in which it would normally have been placed. The sub-paragraph defines the principle which, not then expressed, led to the founding of the Red Cross movement and to the conclusion of the original Geneva Convention.
The value of the provision is not limited to the field dealt with in Article 3. Representing, as it does, the minimum which must be applied in the least determinate of conflicts, its terms must a fortiori be respected in the case of international conflicts proper when all the provisions of the Convention are applicable. For "the greater obligation includes the lesser", as one might say.
In view of the fact that four Conventions were being drawn up, each providing protection for a particular category of war victims, one might think that the paragraph should have been divided up, the relevant portion only being included in each Convention. (In the First Convention, for example, one might have spoken only of members of armed forces placed ' hors de combat ' by sickness or wounds). It was thought preferable, however, in View of the indivisible and inviolable nature of the principle proclaimed, and its brevity, to enunciate it in [p.53] its entirety and in an absolutely identical manner in all four Conventions. In this Commentary we shall confine ourselves to points which more particularly concern persons protected under the Convention with which we are dealing.
Taken literally, the phrase "including members of armed forces who have laid down their arms" may be understood (in the French version) in one of two ways, depending on whether the words "who have laid down their arms" are taken to apply to ' members ' or ' armed forces '. The discussions at the Diplomatic Conference brought out clearly that it is not necessary for an armed force as a whole to have laid down its arms, for its members to be entitled to protection under the Article. The Convention refers to individuals and not to bodies of troops, and a man who has surrendered individually is entitled to the same humane treatment that he would receive if the whole army to which he belongs had capitulated. The important thing is that the man in question will be taking no further part in the fighting. (16)
What Article 3 guarantees such persons is ' humane treatment '.
Lengthy definition of expressions such as "humane treatment" or "to treat humanely" is unnecessary, as they have entered sufficiently into current parlance to be understood. It would therefore be pointless and even dangerous to try to enumerate things with which a human being must be provided for his normal maintenance as distinct from that of an animal, or to lay down in detail the manner in which one must behave towards him in order to show that one is treating him "humanely", that is to say as a fellow human being and not as a beast or a thing. The details of such treatment may, moreover, vary according to circumstances -- particularly the climate -- and to what is feasible.
On the other hand, there is less difficulty in enumerating things which are incompatible with humane treatment. That is the method followed in the Convention when it proclaims four absolute prohibitions. The wording adopted could not be more definite: "To this end, the following acts ' are ' and ' shall remain prohibited at any time and in any place whatsoever... '" No possible loophole is left; there can be no excuse, no attenuating circumstances.
[p.54] Items (a) and (c) concern acts which world public opinion finds particularly revolting -- acts which were committed frequently during the Second World War. One may ask if the list is a complete one. At one stage of the discussions, additions were considered -- with particular reference to the biological "experiments" of evil memory, practised on inmates of concentration camps. The idea was rightly abandoned, since biological experiments are among the acts covered by (a). Besides, it is always dangerous to try to go into too much detail -- especially in this domain. However much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible and, at the same time, precise. The same is true of item (c).
Items (b) (taking of hostages) and (d) (sentences and executions without a proper trial) prohibit practices which are fairly general in wartime. But although they were common practice until quite recently, they are nevertheless shocking to the civilized mind. The taking of hostages, like reprisals, to which it is often the prelude, is contrary to the modern idea of justice in that it is based on the principle of collective responsibility for crime. Both strike at persons who are innocent of the crime which it is intended to prevent or punish.
Sentences and executions without previous trial are too open to error. "Summary justice" may be effective on account of the fear which it causes -- though this has yet to be proved; but it adds too many further innocent victims to all the other innocent victims of the conflict. All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of errors. The Convention has rightly proclaimed that it is essential to do this even in time of war. We must be very clear about one point: it is only "summary" justice which it is intended to prohibit. No sort of immunity is given to anyone under this provision. There is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law.
Reprisals, to which we have just referred, do not appear here in the list of prohibited acts. Does that mean that reprisals, while formally [p.55] prohibited under Article 46
(17), are allowed in the case of non-international conflicts, that being the only case dealt with in Article 3? As we have seen, the acts referred to under items (a) to (d) are prohibited absolutely and permanently, no exception or excuse being tolerated. Consequently, any reprisal which entails one of these acts is prohibited; and so, speaking generally, is any reprisal incompatible with the "humane treatment" demanded unconditionally in the first clause of sub-paragraph. (1).
Any person to whom sub-paragraph (1) applies is entitled to humane treatment, without distinction of any sort. Article 6 of the 1864 Convention
reads as follows: "The wounded and sick shall be collected and cared for, ' whatever the nation to which they belong '" whereas the Conventions of 1906 and 1929 use the expression "without distinction of nationality". (18) What the authors of those Conventions had in mind was the traditional type of warfare between two States or groups of States, in which the opposing sides are of different nationalities. The above two phrases indicated clearly enough at that time that when faced with suffering no distinction should be drawn between brothers-in-arms, the enemy and allies. But the memory of acts perpetrated during the last World War and of the racial and ideological wars which raged in conjunction with wars between Powers, prompted the authors of the 1949 Conventions to include an expanded version of the above formula in Article 12
, which corresponds to Article 1 of the 1906
Conventions. (19) It was even more necessary to do so in Article 3, in view of the fact that the latter dealt exclusively with conflicts which were not international, i.e. where factors other than nationality -- such factors as religion, political ideology, race, etc. -- divided the belligerent parties. The formula used ("without any adverse distinction founded on...") is cumbersome. But in view of past atrocities the authors felt it desirable to enter into detail in order to leave no possible loophole. Hence the enumeration, ending, to make sure that nothing was overlooked, with the words "or any other similar criteria".
It will be noted that the criterion of nationality, which reappears in Article 12
below and was the only criterion to be considered in previous Conventions, has disappeared. As we have just pointed out, it is of [p.56] less importance in this Article which is only concerned with non-international conflicts. Aliens may, however, be implicated in a civil war. And it is that very idea which has led, not to the inclusion of nationality among the criteria mentioned in the Article, but to its exclusion. The Working Party which prepared the draft of the final text considered that in cases where aliens took part in an insurrection, the Government should be free to regard them either as more guilty or as less guilty than nationals (20). This view was a perfectly reasonable one, but it would not appear to have any bearing on the point at issue. As we have pointed out on numerous occasions, Article 3 is strictly humanitarian in character. It does not limit in any way a State's essential right to suppress an insurrection, nor its powers of trial and sentence, nor, again, its right to appraise aggravating or attenuating circumstances. It is not a question here of ' legal ' treatment, but of ' humane ' treatment, of ensuring that every man taking no part in hostilities, or placed ' hors de combat ', receives the minimum standard of treatment which the law of the country itself accords to the worst of criminals, even those awaiting execution, when it clothes and feeds them in its prisons and gives them medical treatment when they are sick.
To treat aliens in a civil war in a manner incompatible with humanitarian requirements, or to believe that one was justified in letting them die of hunger or in torturing them, on the grounds that the criterion of nationality had been omitted, would be the Very negation of the spirit of the Geneva Conventions. It is certainly not what the Diplomatic Conference intended. In judicial matters, nationality may, perhaps, be regarded as an aggravating or attenuating circumstance, but it cannot be regarded as affecting in any way the "humane treatment" referred to in the Article. It will therefore be classed among the "other similar criteria".
B. ' Sub-paragraph (2): Care of the wounded and sick '. -- Article 3 here reaffirms, in generalized form, the fundamental principle underlyingthe original Geneva Convention of 1864. The clause, which is numbered separately, does not form part of the preceding provision, although it completes it; it is concise and particularly forceful. It expresses a categorical imperative which cannot be restricted and needs no explanation. There is every reason to be satisfied with it.
[p.57] But why does Article 3 not add that the wounded and sick are to be "respected and ' protected '", using an expression which has been accepted since the 1929 Convention and which appears again in Article 12
(21) of the present Convention?
The answer is that if Article 3 was to be adopted at all, it had to be short -- no more than a statement of principle, together with a few rules regarded as a minimum acceptable to all, even when dealing with rebels. What had to be carefully avoided -- and this was the main difficulty throughout the discussions at the Diplomatic Conference -- was anything which might appear, even in the slightest degree, either to limit the right of the State to put down a rebellion, or to encourage discontented elements, or even common bandits, to rise in revolt against the State in the fallacious belief that the Conventions would "protect" them, or in other words, save them from being duly punished for their misdoings. It was therefore necessary to avoid using an expression about whose meaning there might be some doubt, particularly as it was not in any way essential. A formal order allows of no freedom which conflicts with it. When a superior orders a subordinate to go to the right, he automatically deprives him of the option of going to the left, without
having to say so. In the same way, since the obligation to collect and care for the wounded and sick is absolute and unconditional, any act incompatible with the duty imposed by that obligation is prohibited. Moreover, the obligation in question is reinforced by the general obligation under sub-paragraph (1) (humane treatment) and by the prohibitions which result from it. In actual fact, therefore, the Article certainly provides the wounded and sick with "respect and protection" within the meaning of Article 12
PARAGRAPH 2 -- RIGHT OF HUMANITARIAN INITIATIVE
It is obvious that any organization can "offer its services" to the Parties to the conflict at any time, just as any individual can. To offer one,s services costs nothing and, which is more important, in no way binds the recipient of the offer, since the offer need not be accepted. The International Committee of the Red Cross, for its part, has not failed to offer its services for humanitarian purposes during various civil wars, whenever it considered that this was in the interests of [p.58] those suffering as a result of hostilities, just as it has offered them when any international conflict has broken out. This paragraph may therefore appear at first sight to be merely decorative and without any real significance. Nevertheless, it is of great moral and practical value. Although it is extremely simple, it is adequate, and the International Committee itself asks for nothing more. It is a reduction, to the scale of the "Convention in miniature" represented by Article 3, of the provision contained in Article 9
below, which applies to international conflicts, when the whole Convention is applicable.
Although the International Committee of the Red Cross has been able to do a considerable amount of humanitarian work in certain civil wars, in others the doors have been churlishly closed against it, the mere offer of charitable services being regarded as an unfriendly act -- an inadmissible attempt to interfere in the internal affairs of the State. The adoption of Article 3 has placed matters on a different footing, an impartial humanitarian organization now being legally entitled to offer its services. The Parties to the conflict can, of course, decline the offer if they can do without it. But they can no longer look upon it as an unfriendly act, nor resent the fact that the organization making the offer has tried to come to the aid of the victims of the conflict.
It is obvious that outside help can only, and must only, be supplemental. It is for the Parties to the conflict to apply Article 3 and ensure the observance of all its provisions. It is also obvious that it is, in the first place, for the National Red Cross Society of each country, in its capacity as an auxiliary organization, to help in this, and, by its words and actions, win recognition for the requirements of humanity throughout the national territory. But the national authorities and National Red Cross Society of a country may not always be able to cope with requirements; nor may the National Red Cross always be in a position to act everywhere with the necessary efficiency. Additional help will then be necessary. The Party to the conflict which in such cases refuses offers of charitable service from outside its frontiers will incur a heavy moral responsibility.
For offers of service to be legitimate, and acceptable, they must come from an organization which is both ' humanitarian ' and ' impartial '. And the services offered and rendered must also be ' humane ' and ' impartial '. The International Committee of the Red Cross is mentioned here for two reasons -- firstly on its own account, as an organization called, by [p.59] its statutes and traditions, to intervene in cases of conflict, and, secondly, as an example of what is meant by a humanitarian and impartial organization. The reader should refer, for further remarks on the subject, to the commentary on Article 9
PARAGRAPH 3 -- SPECIAL AGREEMENTS
If the Convention was to include provisions applicable to all non-international conflicts, it was necessary, as we have seen, to give up any idea of insisting on the application to such conflicts of the Convention in its entirety.
Legally, therefore, the Parties to the conflict are only bound to observe Article 3 and may ignore all the other Articles. It is obvious, however, that each one of them is completely free -- and should be encouraged -- to declare its intention of applying all or part of the remaining provisions. Another possibility is that an internal conflict may, as it continues, turn into a real war. The situation of thousands of sufferers is then such that it is no longer enough for Article 3 to be respected. It becomes desirable to settle in detail the treatment they are to receive, the relief which is to be brought to them, and other matters as well. A time may come when it is as much in the interest of the Parties to the conflict as of the victims that this should be done. And surely the most practical way of doing it is not to negotiate special agreements in great detail, but simply to refer to the Convention as it stands, or at all events to certain of its provisions.
The provision does not merely offer a convenient possibility, but makes an urgent request, points out a duty: "The Parties to the conflict should further endeavour..." Although the only provisions which the individual Parties are bound to apply unilaterally are those contained in Article 3, they are nevertheless under an obligation to try to bring about a fuller application of the Convention by means of a bilateral agreement.
Is there no danger of the paragraph becoming inoperative as a result of the fear of increasing the power of the rebel party -- a fear which was so often expressed during the discussions? Will a de jure Government [p.60] not be afraid that the conclusion of such agreements may increase the authority of those who have risen in revolt against it, by constituting an implicit recognition of the legal existence and belligerent status of the party concerned? It should be remembered that although the de jure Government must endeavour to conclude such agreements, it remains free in regard to its final decision. It is also free to make the express stipulation that its adherence to the agreement in no way constitutes recognition of the legality of the opposing party. Besides, in practice the conclusion of the agreements provided for in paragraph 3 will be controlled by circumstances. They will generally only be concluded because of an existing situation which neither of the parties can deny, no matter what the legal aspect of the situation may in their opinion be.
Lastly, it must not be forgotten that this provision, like all those which precede it, is governed by the last clause of the Article, to which we now come.
PARAGRAPH 4 -- LACK OF EFFECT ON THE LEGAL STATUS OF THE PARTIES
TO THE CONFLICT
This clause is essential. Without it neither Article 3, nor any other Article in its place, would ever have been adopted. It meets the fear -- always the same one -- that the application of the Convention, even to a very limited extent, in cases of civil war may interfere with the de jure Government's lawful suppression of the revolt, or that it may confer belligerent status, and consequently increased authority, upon the adverse Party. The provision was first suggested at the Conference of Government Experts convened by the International Committee of the Red Cross in 1947 (23) and has been reintroduced with very little change in all the succeeding drafts. It makes it absolutely clear that the object of the Convention is a purely humanitarian one, that it is in no way concerned with the internal affairs of States, and that it merely ensures respect for the few essential rules of humanity which all civilized nations consider as valid everywhere and under all circumstances and as being above and outside war itself.
[p.61] Consequently, the fact of applying Article 3 does not in itself constitute any recognition by the de jure Government that the adverse Party has authority of any kind; it does not limit in any way the Government's right to suppress a rebellion using all the means -- including arms -- provided for under its own laws; it does not in any way affect its right to prosecute, try and sentence its adversaries for their crimes, according to its own laws.
In the same way, the fact of the adverse Party applying the Article does not give it any right to special protection or any immunity, whatever it may be and whatever title it may give itself or claim.
Article 3 resembles the rest of the Convention in that it is only concerned with the individual and the physical treatment to which he is entitled as a human being without regard to his other qualities. It does not affect the legal or political treatment which he may receive as a result of his behaviour.
* (1) [(1) p.38] See Frédéric SIORDET, ' The Geneva Conventions
and Civil War ', Supplement to the ' Revue internationale
de la Croix-Rouge ', Vol. III, Nos. 8, 9 and 11, Geneva,
August, September and November 1950;
(2) [(1) p.40] See ' Revue internationale de la Croix-Rouge ',
15 December 1919, pages 1427 ff.;
(3) [(2) p.40] See the following documents of the XVIth
International Conference: Document No. 12 ' (General
Report of the International Red Cross Committee on its
activities from August ' 1934 ' to March ' 1938) and
Document No. 12 ' bis (Supplementary Report by the
International Committee on its activities in Spain) ';
(4) [(1) p.42] See ' 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, pages 14 ff. and 51;
(5) [(2) p.42] See ' 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, page 8;
(6) [(1) p.43] See ' Final Record of the Diplomatic Conference
of Geneva, 1949 ', Vol. II-B, on Article 2, pages 9-15;
(7) [(1) p.44] This was the Special Committee of the Joint
Committee. The provision in question was discussed, first
is Article 2, fourth paragraph (i.e. with the numbering it
had in the Stockholm draft), and later as Article 2 A.
' See Final Report of the Diplomatic Conference of Geneva,
1949 ', Vol. II-B, pages 40-48, 75-79, 82-84, 90, 93-95,
(8) [(1) p.46] See above, page 20;
(9) [(1) p.47] See above, page 21;
(10) [(2) p.47] See above, page 20;
(11) [(3) p.47] See ' Final Record of the Diplomatic Conference
of Geneva, 1949 ', Vol. 11-B, pages 34-37;
(12) [(1) p.48] See ' Final Record of the Diplomatic Conference
of Geneva, 1949 ', Vol. II-B, on Article 2 A, pages
(13) [(1) p.49] See ' Final Record of the Diplomatic Conference
of Geneva, 1949 ', Vol. II-B, p. 121;
(14) [(1) p.51] It was included in the case of the Third and
Fourth Conventions only;
(15) [(2) p.51] See below, on Article 63, page 411;
(16) [(1) p.53] In the English text of the Article, the
Conference deliberately adopted the wording "who had laid
down their arms" (since "who" can only relate to persons)
after rejecting a proposal to replace "who" by the word
"which". The latter rendering would have made the clause
apply to "armed forces". See ' Final Record of the
Diplomatic Conference, 1949 ', Vol. II-B, on Article 2,
fourth paragraph, page 100;
(17) [(1) p.55] See below, page 341;
(18) [(2) p.55] Geneva Conventions of 1906 and 1929, Article 1;
(19) [(3) p.55] See below, on Article 12, page 133;
(20) [(1) p.56] See ' Final Record of the Diplomatic Conference
of Geneva, 1949 ', Vol. II-B, page 94;
(21) [(1) p.57] See below, on Article 12, page 134;
(22) [(1) p.59] See below, pages 107 ff;
(23) [(1) p.60] See ' 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, page 9;
See the Commentary of 2016