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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.
-- RESPONSIBILITY OF CONTRACTING PARTIES
[p.373] This is an entirely new Article. It was inserted in all four Conventions on the proposal of the Italian Delegation, who contended that it was a logical sequel to the preceding Article
. The State, in their view, was responsible for breaches of the Convention, and could not refuse to admit liability on the grounds that the authors of the breaches had been punished. It was, for example, still bound to pay compensation. The Italian Delegation had previously endeavoured unsuccessfully to introduce the idea in Article 6
relating to special agreements.
The Article, the sense of which is not altogether clear, was not adopted too readily by the Conference, the Joint Committee only approving it by eighteen votes to thirteen, with three abstentions.
In order to bring out the meaning of this provision more clearly, it should be compared with Article 3
of the Fourth Hague Convention of 1907, which reads as follows:
"A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts commited by persons forming part of its armed forces."
In our opinion, the purpose of Article 51 is to prevent the defeated party from being compelled in an armistice agreement or peace treaty to abandon all claims due for infractions committed by persons in the service of the victor. In this matter of material reparation for infractions of the Convention it is not possible, at any rate as the law at present stands, to imagine an injured party being able to bring an action individually against the State in whose service the author of the infraction was. Only a State can put forward such claims against another State. These claims fall in the ordinary way into the category of what are called "war reparations". It would seem unfair that individuals should be punished, if the State in whose behalf -- and often on the instructions of which -- they have acted were absolved of all responsibility.
This provision does not, of course, affect the obligation to prosecute and punish the authors of infractions, since that obligation is absolute under Article 49
. If any doubt still existed, however, the present Article would remove it.
See the Commentary of 2016