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.
. -- CONFLICTS NOT OF AN INTERNATIONAL
[p.28] HISTORICAL INTRODUCTION
This Article, which is common to all four Geneva Conventions, 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 international obligations. It is an almost unhoped-for extension of Article 2
The importance of the Article, in which the whole of the rules applying to non-international conflicts are concentrated, makes it necessary to say something of its origin and of its development by the Diplomatic Conference (1).
1. ' Origin and development of the idea '
Up to 1949, the Geneva Conventions were designed to assist only the victims of wars between States. The principle of respect for human personality, the basis on which all the Conventions rest, had found expression in them only in its application to military personnel. Actually, however, it was concerned with people as human beings, without regard to their uniform, their allegiance, their race or their beliefs, without regard even to any obligations which the authority on which they depended might have assumed in their name or in their behalf.
There is nothing astonishing, therefore, in the fact that the Red Cross has long been trying to aid the victims of civil wars and internal conflicts, the dangers of which are sometimes even greater than those of international wars. But in this connection particularly difficult problems arose. 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 victims on the other side as [p.29] inadmissible aid to guilty parties. Applications by a foreign Red Cross Society or by the International Committee of the Red Cross for permission to engage in relief work have more than once been treated as unfriendly attempts to interfere in the domestic affairs of the country concerned. This conception still prevailed when the International Red Cross Conference in 1912 refused to consider a draft Convention on the rôle of the Red Cross in the event of civil war or insurrection.
The Red Cross was not discouraged. In spite of frequent lack of understanding on the part of the authorities, it was able in some 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 of all victims of civil wars or social or revolutionary disturbances to relief in conformity with the general principles of the Red Cross. The resolution further laid down in considerable detail the duties of the relevant National Red Cross Society and, in the event of that Society being unable to take action on an adequate scale, the course to be followed by the International Committee of the Red Cross or foreign National Societies with a view to making relief available (3). 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 at the time of the 1921 plebiscite in Upper
Silesia and the civil war in Spain -- to induce both sides to give some kind of undertaking to respect the principles of the Geneva Convention (4).
Observing these results, the XVIth International Red Cross Conference, held at London in 1938, passed the following resolution which did much to supplement and strengthen that of 1921:
"The XVIth International Red Cross Conference ... requests the International Committee and the National Red Cross Societies to endeavour to obtain:
(a) the application of the humanitarian principles which were formulated
in the Geneva Conventions 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
[p.30] (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, ..."
The London Conference was thus envisaging, explicitly and for the first time, the application 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, the contending parties should be invited to declare their readiness to apply the principles of the Convention on a basis of reciprocity. The suggestion, modest enough but which took account of realities, was no more at that stage than an attempt to provide a practice that had already yielded satisfactory results with some kind of legal footing. 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 take sides with the advocates of humanitarian ideas, and that the suffering caused by civil wars would be appreciably reduced as a result. 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 matter by a recommendation to insert at the beginning of each of the Conventions an Article to the effect that: "In the case of armed 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 it intention to the contrary" (5).
Such was the view of the Red Cross movement. What would be thought of it in Government circles remained to be seen. There was reason to fear that there might be objections to the idea of imposing 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 [p.31] convened by the International Committee of the Red Cross in 1947, did not take that 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 recommended at least a partial application of the provisions of the Convention in the case of civil war. As a result of their efforts an Article was drafted by the terms of which the principles of the Convention were to be applied in civil wars by the Contracting Party, subject to the adverse Party also conforming thereto (6). 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 hen only on a basis of reciprocity.
On the strength of the opinions thus expressed, however, the International Committee added a fourth and last paragraph to Article 2
of the draft Conventions which it submitted to the XVIIth International Red Cross Conference at Stockholm. The wording was 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 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 actually 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 draft text was the subject of lengthy discussion at the Stockholm Conference, at which Governments as well as Red Cross Societies were represented. In the end the Conference adopted the proposals of the International Committee of the Red Cross for the First and Second Conventions, and in the case of the Third and Fourth Conventions made the application of the Convention subject to the proviso that the adverse Party should also comply with it.
It was in this form that the proposal came before the Diplomatic Conference of 1949.
[p.32] 2. ' The discussions at the Diplomatic Conference of 1949 '
From the very outset, divergences of view became apparent (7). 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 all forms of insurrections, rebellion, 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 conflict to apply to such a conflict the whole of the provisions of a Convention expressly concluded to cover the case of war would mean giving its enemies, who might be no more than 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 ordinary criminals being encouraged to give themselves a semblance of organization as a pretext
for claiming the benefit of the Convention, representing their crimes as "acts of war" in order to escape punishment for them. A rebel party, however small, would be entitled under the Convention 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 captured rebels as soon as order was re-established, 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 support, would hamper the Government in its measures of legitimate repression.
The advocates of the Stockholm draft, on the other hand, regarded the proposed text 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. It was argued, moreover, that the behaviour of the insurgents in the field would show whether they were in fact mere felons, or, on the contrary, real combatants who deserved to receive protection under the Conventions, Again, it was pointed out that the inclusion of the reciprocity clause in all four 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 "disorder" in the case of rebels who [p.33] 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 considered 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 (8), the very first meeting of which produced a whole series of amendments and proposals. One amendment proposed the rejection ' en bloc ' of the Stockholm text. On the other hand there was one proposal in favour of accepting it 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, which in their turn gave rise to new amendments. It seemed difficult to reach a majority in favour of any one solution.
The French Delegation must be given the credit for ending the deadlock in the Committee. Reverting to an idea previously put forward by the Italian Delegation, 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."
The idea was a good one. But the suggested text had one defect. It referred to a draft Preamble which had not yet been adopted, and was, incidentally, never to be adopted (9). Moreover, the draft Preamble simply stated that certain things were prohibited. 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 [p.34] principles applicable, together with a minimum of mandatory rules. The definition was to be based on the principles of the Preamble which the International Committee of the Red Cross had itself proposed for all four Conventions, together with certain mandatory 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. Certain delegates still preferred the previous draft and the USSR Delegation proposed a new text which read 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 prisoners of war; - compliance with all established rules connected with the prisoners-of-war régime; - prohibition of all discriminatory treatment of prisoners of war 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 in the method employed, preferring a general wording referring to certain provisions of the Convention.
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. It 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 (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 will be the only Article 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. [p.35] It is very different from the original draft produced by the International Committee of the Red Cross, which provided for the application of the Conventions in their entirety. But the wording finally adopted was certainly the best 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 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 intolerable interference in the internal affairs of a State. This text has the additional advantage of being applicable automatically, without any condition in regard to reciprocity. Its observance does Hot depend upon preliminary discussions on the nature of the conflict or the particular clauses to be respected. It is true that it merely provides for the application of the principles of the Convention, but it defines those principles and in addition lays down certain rules for their application. Finally, it has the advantage of expressing, in each of the four Conventions, the common principle which governs them.
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"? The expression is 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 -- and this would come to the same thing -- that a list should be given of a certain number of conditions on which the application of the Convention would depend. The idea was finally abandoned, and wisely so. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list drawn from the various amendments discussed; they are as follows (13):
[p.36] (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 organization purporting to have the
characteristics of a State.
(b) That the insurgent civil authority exercises de facto authority
over the population within a determinate portion of the national
(c) That the armed forces act under the direction of an organized
authority and are prepared to observe the ordinary laws of war.
(d) That the insurgent civil authority agrees to be bound by the
provisions of the Convention.
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? We do not subscribe to this view. We think, on the contrary, that the scope of application of the Article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, 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 embodied in the national legislation 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 torture and mutilate prisoners and take hostages? No Government can
object to observing, in its dealings [p.37] with enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, when dealing with common criminals.
Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with ' armed forces ' on either side engaged in ' hostilities ' -- conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.
B. ' Obligations of the Parties. ' The words "each Party" mark a step forward in international law. 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 need not even represent a legal entity capable of undertaking international obligations. It had not been thought possible to conclude an agreement without reciprocal undertakings and such undertakings would imply that the contracting parties were already in existence. As we have seen, however, the present Convention no longer includes a reciprocity clause. This great step forward cleared the way for the provisions of Article 3, although, it is true, it is offset by the fact that it is no longer the Convention as a whole which will be applicable, but only the provisions of Article 3 itself.
The obligation resting on the Party to the conflict which represents established authority is not open to question. The mere fact of 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? Doubts have been expressed on this subject. How could insurgents 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 142 (14).
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 [p.38] 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 inhuman 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. The time may come when, in accordance with the law of nations, the adversary may be bound by humanitarian obligations which go farther than the minimum requirement stated in Article 3. For instance, if one Party to a conflict is recognized by third parties as being a belligerent, that Party would then have to respect the Hague rules.
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 to dispense with a Preamble.
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, it might be thought that each Convention should merely have referred to the relevant category of victims. It was thought preferable, however, in view of the indivisible nature of the principle proclaimed, and its brevity, to enunciate it in 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 the treatment of prisoners of war, who are covered by the Third Convention.
Taken literally, the phrase "including members of armed forces who have laid down their arms" can be interpreted (in the French version) in one of two ways, depending on whether the words "who have laid down their arms" are taken as referring to "members" [p.39] or "armed forces". The discussions at the 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 this Article. The Convention refers to individuals and not to units of troops, and a man who has surrendered individually is entitled to the same humane treatment as 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.
We shall endeavour to explain later, when discussing Article 13, the sense in which "humane treatment" should be understood. The definition is not an easy one. 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.
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 whether the list is a complete one. At one stage of the discussions, additions were considered -- with particular reference to the biological "experiments" carried out on detained persons. 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 great the care taken in drawing up a list of all the various forms of infliction, it would never be possible 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 have in the past been fairly general in war-time. But although they were common practice, they are nevertheless shocking to the civilized mind. The taking of hostages is contrary to the modern idea of justice in that it is based on the principle of collective responsibility for crime and strikes at persons who are innocent of the crime which it is intended to prevent or punish.
Sentences and executions without previous trial are by definition open to error. "Summary justice" may be effective on account of [p.40] the fear it arouses, but it adds too many 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 judicial 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.
As can be seen, Article 3 does not protect an insurgent who falls into the hands of the opposing side from prosecution in accordance with the law, even if he has committed no crime except that of carrying arms and fighting loyally. In such a case, however, once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4. A.(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals.
Reprisals do not appear here in the list of prohibited acts. Does that mean that reprisals on prisoners of war, while formally prohibited under Article 13, are allowed in the case of non-international conflicts, Article 3 being the only Article which then applies? 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 subparagraph (1).
It should be noted that the acts prohibited in items (a) to (d) are also prohibited under other Articles of the Convention, in particular Articles 13, 16, 44, 45, 52 and 82-108.
As already mentioned, Article 3 has an extremely wide field of application, embracing persons who do not take part in the hostilities as well as members of the armed forces who have laid down their arms or have been placed ' hors de combat. '
All the persons referred to in Article 3 without distinction are entitled to humane treatment. Criteria which might be employed by an ill-intentioned Detaining Power as a basis for discrimination against one class of persons or another are enumerated in the provision, and their validity denied. Article 4 of the 1929 Convention had already banned all differences of treatment other than those based on "the [p.41] military rank, the state of physical or mental health, the professional abilities, or the sex of those who benefit from them".
To the same end, Article 16 of the present Convention gives a list of similar criteria. Memories of the crimes perpetrated during the last World War led the authors of the 1949 Conventions to adopt this formula. It will be seen that the idea of nationality has not been included here, although it is mentioned in Article 16. That does not in any way mean that people of a given nationality may be treated in an arbitrary manner; everyone, whatever his nationality, is entitled to humane treatment. It would be the very denial of the spirit of the Geneva Conventions to avail oneself of the fact that the criterion of nationality had been set aside as a pretext for treating foreigners, in a civil war, in a manner incompatible with the requirements of humane treatment, for torturing them, or for leaving them to die of hunger. It was certainly not the intention of the Diplomatic Conference to allow this, and while from the judicial point of view, nationality may be held to be an aggravating or a mitigating circumstance, the same is not true in regard to humane
treatment in the sense of this Article; in this case, nationality is one of the "other similar criteria".
B. ' Sub-paragraph (2); Care of the wounded and sick ' (15). -- Article 3 here reaffirms, in generalized form, the fundamental principle underlying the original Geneva Convention of 1864. The clause, which is numbered separately, even though it is already included in the preceding provision, is concise and particularly forceful. It expresses a categorical obligation which cannot be restricted and needs no explanation.
PARAGRAPH 2. -- RIGHT OF HUMANITARIAN INITIATIVE
On various occasions, the International Committee of the Red Cross has offered its humanitarian services in time of civil war or international conflict alike, whenever it deemed such action necessary in behalf of victims. An offer of this kind does not constitute a precedent for subsequent cases. This paragraph is, however, more than a decorative provision; it has great moral and practical value, and the International Committee itself asked for nothing more. Article 3 in fact constitutes an adapted version of Article 9 of the Convention to the scale of this "Convention in miniature".
[p.42] 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 closed against it, the mere offer of charitable services being regarded as an unfriendly act -- an attempt to interfere in the internal affairs of the State. Article 3 precludes any such inference, an impartial humanitarian organization now being entitled under the Convention to offer its services. The Parties to the conflict may, of course, decline the offer if they can do without it. But they can no longer look upon it as an unfriendly act, or 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 should only, be supplementary. It is for the Parties to the conflict to conform to Article 3 and ensure the observance of all its provisions.
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 be ' humane ' and ' impartial ' also. The International Committee of the Red Cross is mentioned here for two reasons -- firstly on its own account, as an organization called upon, by 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 (16).
PARAGRAPH 3. -- SPECIAL AGREEMENTS
In the case of armed conflict not of an international character, and subject to what has been stated above regarding the recognition by third parties of a state of belligerence, the Parties to the conflict are legally only bound to observe Article 3, and may ignore all the other Articles. But each one of them is completely free -- and should be encouraged -- to apply all or part of the remaining Articles of the Convention. An internal conflict may, as it continues, become to all intents and purposes a real war. The situation of thousands of sufferers is then such that it is no longer enough for Article 3 to be respected. Surely the most practical step 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 moral duty: "The Parties to the conflict should further endeavour..."
[p.43] Is there no danger of the paragraph becoming inoperative as a result of the fear of increasing the power of the rebel party, which was so often expressed during the discussions? Will a de jure Government 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 existence and belligerent status of the party concerned? It should be remembered that although the Government must endeavour to conclude such agreements, it is not expressly required to do so. It is also free to make the express stipulation that adherence to such an agreement in no way confers the status of a belligerent on the opposing party. Besides, in practice the conclusion of the agreements provided for in paragraph 3 will depend on circumstances. They will generally only be concluded because of an existing situation which neither of the parties can deny.
Lastly, it must not be forgotten that this provision, like those which precede it, is governed by the last clause of the Article.
PARAGRAPH 4. -- LACK OF EFFECT ON THE LEGAL STATUS
OF THE PARTIES TO THE CONFLICT
This clause is essential. Without it Article 3 would probably never have been adopted. It meets the fear 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 suppression of the revolt by conferring belligerent status, and consequently increased authority and power, upon the adverse Party. The provision was first suggested at the Conference of Government Experts in 1947 (17) and was reintroduced in much the same words in all the succeeding draft Conventions. It makes it absolutely clear that the object of the clause 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 in all circumstances.
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 by all the means -- including arms -- provided by its own laws; nor does it in any way affect that Government's right to prosecute, try and sentence its adversaries, according to its own laws.
[p.44] In the same way, the fact of the adverse Party applying the Article does not give it any right to any new international status, whatever it may be and whatever title it may give itself or claim (18).
* (1) [(1) p.28] Twenty-five meetings were devoted to it. See F.
SIORDET: ' The Geneva Conventions and Civil War.
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.29] See ' Revue internationale de la Croix-Rouge, '
December 15, 1919, pp. 1427 ff.;
(3) [(2) p.29] Resolution No. XIV;
(4) [(3) p.29] See the following documents of the XVIth
International Red Cross Conference: Document No. 12
' (General Report of the International Committee of the
Red Cross on its Activities from August 1934 to March
1938) ', and Document No. 12bis ' (Supplementary Report by
the International Committee on its Activities in
(5) [(1) p.30] 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, ' pp. 14 ff. and 51;
(6) [(1) p.31] See ' Report on the Work of the Conference of
Government Experts, ' p. 8;
(7) [(1) p.32] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, Article 2, pp. 9-15;
(8) [(1) p.33] This was the Special Committee of the Joint
Committee. The provision in question was discussed, first
as Article 2, paragraph 4 (i.e. with the numbering it had
in the Stockholm draft), and later as Article 2A. See
' Final Record of the Diplomatic Conference of Geneva of
1949, ' Vol. II-B, pp. 40-48, 75-79, 82-84, 90, 93-95,
(9) [(2) p.33] See above, p. 12 ff.;
(10) [(1) p.34] See p. 14;
(11) [(2) p.34] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, pp. 34-35;
(12) [(3) p.34] Ibid., Article 2A, pp. 325-339;
(13) [(1) p.35] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, p. 121;
(14) [(1) p.37] Such denunciation would, in any case, have
legal effect only if the denouncing authority was
recognized internationally as the competent Government. It
should also be noted that, under Article 142, denunciation
does not take effect immediately;
(15) [(1) p.41] Articles 29 to 32 of the Convention relate to
the medical safeguards afforded to prisoners of war;
(16) [(1) p.42] For further reference, see the commentary on
Article 9 below;
(17) [(1) p.43] See ' Report on the Work of the Conference of
Government Experts, ' p. 9;
(18) [(1) p.44] Since 1949, the International Committee of the
Red Cross has several times had occasion to invoke Article
3 in cases of various internal conflicts, and to offer its
assistance to the combatants. This offer was often
accepted and the International Committee was able to visit
prisoners and detainees held by both sides, and to give
assistance to them;