Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- RESPECT FOR THE CONVENTION
A clause of this kind appeared, in a slightly different form, in Article 82, paragraph 1
, of the 1929 Convention (1). Its prominent position at the beginning of each of the 1949 Conventions gives it increased importance. By undertaking this obligation at the very outset, the Contracting Parties drew attention to the fact that it is [p.18] not merely an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations ' vis-à-vis ' itself and at the same time ' vis-à-vis ' the others. The motive of the Convention is so essential for the maintenance of civilization that the need is felt for its assertion, as much out of respect for it on the part of the signatory State itself as in the expectation of such respect from all parties.
The Contracting Parties do not undertake merely to respect the Convention, but also to ' ensure respect ' for it. It is self-evident that it would not be enough for a Government to give orders or directions and leave the military authorities to arrange as they pleased for their detailed execution. It is for the Government to supervise the execution of the orders it gives (2). Furthermore, if it is to fulfil the solemn undertaking it has given, the Government must of necessity prepare in advance, that is to say in peace-time, the legal, material or other means of ensuring the faithful enforcement of the Convention when the occasion arises. This applies to the respect of each individual State for the Convention, but that is not all: in the event of a Power failing to fulfil its obligations, each of the other Contracting Parties (neutral, allied or enemy) should endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the States which are parties to it should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that it is respected universally.
The words "in all circumstances" refer to all situations in which the Convention has to be applied and these are defined in Article 2
. It is clear, therefore, that the application of the Convention does not depend on whether the conflict is just or unjust. Whether or not it is a war of aggression, prisoners of war belonging to either party are entitled to the protection afforded by the Convention.
In view of the foregoing considerations and the fact that the provisions for the repression of breaches have been considerably strengthened (3) it is clear that Article 1
is no mere empty form of words but has been deliberately invested with imperative force.
* (1) [(2) p.17] See below, p. 681;
(2) [(1) p.18] Article 12, which expressly states that the
Party to the conflict is responsible for the treatment
given to prisoners, is based on this consideration;
(3) [(2) p.18] The Contracting Parties are no longer merely
required to take the necessary legislative action to
prevent or repress violations. They are under an
obligation to seek out and prosecute the guilty parties,
and cannot evade their responsibility;