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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
-- RESPECT FOR THE CONVENTION
A clause of this kind appeared, in a slightly different form, in the 1929 Conventions. Its prominent position at the beginning of each of the 1949 Conventions gives it increased importance. By undertaking at the very outset to respect the clauses of the Convention, the Contracting Parties drew attention to the special character of that instrument. It is not 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 such a lofty one, so universally recognized as an imperative call 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 an opponent, indeed perhaps even more
for the former reason than for the latter.
[p.16] The Contracting Parties do not undertake merely to respect the Convention, but also to ' ensure respect ' for it. The wording may seem redundant. When a State contracts an engagement, the engagement extends eo ipso to all those over whom it has authority, as well as to the representatives of its authority; and it is under an obligation to issue the necessary orders. The use in all four Conventions of the words "and to ensure respect for" was, however, deliberate: they were intended to emphasize the responsibility of the Contracting Parties. Article 29
expressly states, moreover, that the Party to the conflict is responsible for the treatment accorded to protected persons. It would not, for example, be enough for a State to give orders or directions to a few civilian or military authorities, leaving it to them to arrange as they pleased for their detailed execution. It is for the State to supervise the execution of the orders it gives. Furthermore, if it is to fulfil the solemn undertaking it has given, the State must of necessity prepare in
advance, that is to say in peacetime, the legal, material or other means of ensuring the faithful enforcement of the Convention when the occasion arises. It follows, therefore, that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and 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 Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.
The words "in all circumstances" which appear in this Article, do not, of course, cover the case of civil war (1), as the rules to be followed in such conflicts are laid down by the Convention itself, in Article 3
. The expression refers to all situations in which the Convention has to be applied, as described, for example, in Article 2
. Disregarding the provisions applicable in peacetime, and Article 3
which relates only to conflicts not of an international character, the words "in all circumstances" mean that as soon as one of the conditions of application for which Article 2
provides, is present, no Contracting Party can offer any valid pretext, legal or otherwise, for not respecting the Convention in its entirety. The words in question also mean that the application of the Convention does not depend on the character of the conflict. Whether a war is "just" or "unjust", whether it is a war of aggression or of resistance to aggression, whether the intention is [p.17] merely to occupy territory or to annex it, in no way affects the treatment protected persons should receive.
In view of the foregoing considerations and the fact that the provisions for the repression of violations have been considerably strengthened (2), it is clear that Article 1
is no mere empty form of words, but has been deliberately invested with imperative force. It must be taken in its literal meaning.
Notes: (1) [(1) p.16] 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.17] 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;