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Commentary - Art. Preamble

    [p.23] Preamble


    [p.24] General remarks

    10 The Conventions do not have a preamble as such, but an introductory paragraph indicating for which particular task of revision or drafting the plenipotentiaries met. This was not due to any lack of ideas regarding what a preamble might have contained: in fact, it was the existence of contradictory proposals and the impossibility of reconciling them that led the Diplomatic Conference to abandon the idea of a real preamble in 1949. (1)

    11 Even though a preamble does not always contain rules that can be applied as such, it often constitutes an explanatory memorandum that can be used as guidance in the interpretation of the treaty and to cover any gaps. (2) These two objectives formed the basis of the draft preamble of the Protocol submitted to the Conference.

    12 Presented with three amendments and with proposals formulated by the Working Group, (3) the Conference retained therefrom what is nowlaid down in the second, fourth and fifth paragraphs, so that the Preamble is undoubtedly more substantial than the draft had been.

    13 The Committee decided by consensus that the so-called "Martens clause", which had meanwhile become paragraph 2 of Article 1 ' (General principles and scope of application), ' no longer needed to be contained in the Preamble, as it had been in the draft, and subsequently it adopted the Preamble by consensus. (4) The plenary Conference adopted the same text by consensus after amendments to the second to fifth paragraphs had been rejected or withdrawn. (5)

    [p.25] "The High Contracting Parties"

    14 The Conventions and the Protocol regularly use the expression "High Contracting Parties" to refer to the Parties to these treaties. This unquestionably refers to the States for which these treaties are in force in accordance with their relevant provisions, i.e., for the Protocol, Article 95 ' (Entry into force). '

    15 Thus this expression should not be given the meaning which the Vienna Convention on the Law of Treaties of 23 May 1969, for its own purposes, gives to a similar expression, "contracting State", namely "a State which has consented to be bound by the treaty, whether or not the treaty has entered into force" (Article 2, Use of terms, paragraph 1(f)). On the contrary, "High Contracting Parties" must be understood in the Conventions and the Protocol in the sense given by the same Vienna Convention to the word "Party", namely "a State which has consented to be bound by the treaty, and for which the treaty is in force". (Article 2, paragraph 1 (g)).

    16 Finally the expression only directly covers the Parties in a strict sense, i.e., such Parties as have given their consent to be bound by those treaties through ratification, accession or notification of succession. Nevertheless, this rule also applies, like the Conventions and the Protocol, to a Party to a conflict which, without being bound by one of such methods, accepts and applies these treaties. (6) The same applies, in relation to the conflict concerned, with regard to an authority representing a people engaged in a conflict of the type mentioned in paragraph 4 of Article 1 ' (General principles and scope of application) ' against a High Contracting Party, and which has made a declaration as laid down in Article 96 ' (Treaty relations upon entry into force of this Protocol), ' paragraph 3, in which subparagraph (b) does not leave any room for doubt in this respect. The same also applies, at least in a conflict to which a newly independent State is a Party, to that State if, instead of giving notification of succession, it has made a declaration on the provisional application of treaties covering humanitarian law, in the sense of the Vienna Convention on the Succession of States in respect of Treaties of 23 August 1978. (7)

    First paragraph

    17 This paragraph is inspired by the Preamble of the United Nations Charter, which starts with the words: "We the Peoples of the United Nations, determined to save succeeding generations from the scourge of war". The Diplomatic Conference of 1949 had already expressed a similar aim in its Resolution 8 when it formulated "its earnest hope [...] that, in the future, Governments may never have to apply the Geneva Conventions" and that "peace shall reign on earth forever".

    18 This touches upon the central problem, which also underlies the following three paragraphs, regarding the justification and the aims of international humanitarian law. What is the purpose of having, and even developing the laws [p.26] of armed conflict, and how should this be done when the threat or use of force has actually been prohibited in international relations by the Charter of the United Nations? (8) for the sake of brevity, we refer hereafter only to the use of force, although the ' threat ' of such use is by no means irrelevant since this may involve the application of the Conventions and the Protocol depending on the security measures taken in conjunction with such a threat.

    19 First, the United Nations itself may decide to use force, though this is only a marginal issue. (9) Next, there is the inherent right of individual or collective self-defence when an armed attack occurs against a State -- which presupposes that the prohibition has been violated. (10) Finally, and above all, it cannot be denied that, despite the Charter, the phenomenon of international armed conflict has by no means disappeared.

    20 In short, as the prohibition on the use of force is not absolute, and is not immune to violation, it is necessary and justified to develop a body of law to govern international armed conflicts: the violation of the law of peace, which includes certain exceptions ' (jus ad bellum) ' to the general prohibition of the use of force, neither prevents nor exempts any Party to a conflict from respecting the law applicable in such a situation ' (jus in bello) '. (11) A moral and humanitarian argument can be added to this legal aspect: just as the dissemination of humanitarian law contributes to the promotion of humanitarian ideals and of a spirit of peace among nations, (12) the faithful application of such law can contribute to reestablishing peace, by limiting the effects of hostilities.

    21 Thus there is no contradiction between expressing a desire for peace on the one hand and developing a law of armed conflicts on the other, as both actions proceed from the same "faith in fundamental human rights, in the dignity and worth of the human person". (13) The second aim takes into account the realities of life, so that those situations where legal regulation is essential are not in a legal vacuum on the pretext that they arise from a violation of law; it results from the general wish of the contemporary international community that relations between States in their totality should be regulated by law.

    [p.27] Second paragraph

    22 This point was added by the Conference, establishing a logical connection between the preceding and the following paragraphs. In the words of one of the co-sponsors, it correctly underlined the point that in our time the maintenance of peace should not simply be the wish of the contracting Parties -- it is actually a peremptory norm of international law ' (jus cogens) '. (14)

    23 In this respect the question was raised whether the reference to the Charter of the United Nations was necessary and sufficient for the second and fourth paragraphs of the Preamble, as not all the nations of the world are Members of the United Nations. (15) The opinion prevailed that this reference had the advantage of being specific, and that States not Members of the United Nations were subject to the same obligations under principles of international law which correspond to the provisions of the Charter of the United Nations. (16)

    24 Thus, by referring to the Charter of the United Nations, the Conference adopted a text repeating almost word for word Article 2, paragraph 4, of the Charter, though adding the word "sovereignty". (17) Moreover, paragraph 6 of the same Article 2 lays down that the United Nations shall ensure that States which are not Members shall "act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security".

    Third paragraph

    25 This point was accepted by the Conference without any objections, once the new second paragraph had been introduced, expressing the context more logically. The Conference preferred to retain the reference made in the draft to "provisions protecting the victims of armed conflicts", rather than referring only to the Geneva Conventions, as was proposed in an amendment. (18) In fact, a formulation in general terms, which also covers, in particular, the Hague [p.28] Conventions of 1899 and 1907 respecting the Laws and Customs of War on Land, was more appropriate. (19)

    26 It is actually this paragraph which provides the ' raison d'être ' of the two aspects of the entire undertaking to reaffirm and develop humanitarian law: to supplement the substantive rules, and to reinforce the measures ensuring their application. (20)

    Fourth paragraph

    27 This point supplements the second paragraph and actually stems from the same proposal. (21) Its aim is more specifically to prevent any interpretation of humanitarian law that could serve to legitimize any use of force inconsistent with the Charter of the United Nations: humanitarian law cannot set aside the rules of ' jus ad bellum ' which are in force. The same idea also appears in Articles 4 ' (Legal status of the Parties to the conflict) ' and 5 ' (Appointment of Protecting Powers and of their substitute), ' paragraph 5, of the Protocol.

    28 Just as the second paragraph only serves as a reminder, the fourth paragraph results from a concern for prudence, and not from real necessity. Such an interpretation would in any case be incompatible with Article 103 of the Charter of the United Nations and -- the prohibition on the use of force, as formulated in the Charter of the United Nations, being ' jus cogens ' -- by Article 53 of the Vienna Convention on the Law of Treaties. (22)

    29 The Conference decided not to include a specific reference to the Definition of aggression adopted in 1974 by the United Nations General Assembly. (23)

    Fifth paragraph

    30 The fourth paragraph states that ' jus in bello ' cannot affect ' jus ad bellum; ' this point confirms the reverse.

    31 The Conventions and the Protocol contain numerous prohibitions on making any adverse distinction based on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria. (24)

    [p.29] 32 This is a reaffirmation that humanitarian law should apply in all circumstances to all persons (and objects) protected by it, without taking into account the nature or origin of the conflict, or the causes actually espoused by or attributed to the Parties to the conflict. The fact of being the aggressor or the victim of aggression, of espousing a just or an unjust cause, does not absolve anyone from his obligations nor deprive anyone of the guarantees laid down by humanitarian law, even though it may be relevant and have an effect in other fields of international Jaw.

    ' B.Z. '


    NOTES

    (1) ' Commentaries I-IV, ad ' Preamble, pp. 18-23, 19-23, 12-16, 11-14, respectively;

    (2) Ibid, pp. 20, 20, 14, 12, respectively. Vienna Convention on the Law of Treaties of 23 May 1969, Art. 31 (General rule of interpretation), para. 2;

    (3) O.R. III, pp. 3-4, CDDH/I/56, CDDH/I/337, and Add. 1, and CDDH/439. O.R. X, p. 248, CDDH/405/Rev. 1, Annex 111 (CDDH/I/350/Rev. 1), paras. 33-36;

    (4) O.R. IX, p. 476, CDDH/I/SR.76, para. 15;

    (5) O.R. III, p. 4, CDDH/439. O.R. VII, pp. 165-170, CDDH/SR.54, paras. 1-43;

    (6) Cf. Art. 2, para. 3, common to the Conventions, and Art. 96, para. 2, Protocol I, respectively;

    (7) On ratification, accession, succession and provisional application by a newly independent State, cf. commentary Arts. 93, infra, pp. 1071-1072; and 94, infra, p. 1077;

    (8) Apart from the second and fourth paragraphs, the Charter of the United Nations is mentioned in Arts. 1, para. 4, 89, and 101, para. 1; the Organization is mentioned in Arts. 38, para. 2, 89, 101, paras. 1 and 2; the signs, emblems and uniforms of the Organization are mentioned in Arts. 37, para. 1 (d), and 38, para. 2;

    (9) Charter of the United Nations, Chapter VII (Action with respect to threats to the peace, breaches of the peace and acts of aggression), especially Art. 42; cf. also commentary Art. 89, infra, pp. 1034-1035;

    (10) Charter of the United Nations, Art. 51. For armed struggles against colonial domination and alien occupation and against racist régimes in the exercise of the right of peoples to self-determination, cf. infra, p. 43, ad Art. 1, para. 4;

    (11) On the relationship between ' jus ad bellum ' and ' jus in bello ', cf. infra, ad fourth and fifth paragraphs;

    (12) O.R. I, Part I, p. 214, resolution 21, second preambular paragraph;

    (13) Charter of the United Nations, Preamble. The principles of humanity and respect for the human person are expressed with different wording particularly in the following articles of the Conventions and the Protocol: Conventions, Arts. 12/12/13, 14/16, 27; Protocol, Arts. 1 (para. 2), 10, 11, 75 (para. 1);

    (14) O.R. III, p. 3, CDDH/I/337 and Add. 1. O.R. IX, p. 385, CDDH/I/SR.69, para. 25. The complete text of Art. 53 of the Vienna Convention on the Law of Treaties, in which the second sentence defines the expression ' jus cogens ', is as follows: "' Art. 53 -- Treaties conflicting with a peremptory norm of general international law ' (jus cogens). A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.";

    (15) O.R. III, p. 4. CDDH/439. O.R. VII, p. 165, CDDH/SR.54, para. 3;

    (16) Ibid, pp. 166-170, paras. 7, 9, 14, 25, 28-29, 36 and 38;

    (17) This word was not included in the initial proposal and was added by the Working Group; neither the report of the latter, nor the discussions in the Committee and the plenary Conference explain it. The inclusion of this concept, which is in the Charter of the United Nations (e.g., Art. 2 para. 1), and in particular in the definition of aggression (Art. 1, cf. infra, ad fourth paragraph in fine) does not modify the scope of the present paragraph, which, after all, serves only as a reminder;

    (18) O.R. III, p. 4, CDDH/439;

    (19) O.R. VII, pp. 167-168, CDDH/SR.54, paras. 17-23;

    (20) For a general review of the requirements and the results of these two points of view, cf. supra, General introduction;

    (21) Cf. references to Official Records, supra, note 14;

    (22) Vienna Convention: cf. supra, note 14. The text of Article 103 of the Charter of the United Nations reads as follows: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.";

    (23) Resolution 3314 (XXIX), Annex;

    (24) Enumeration of Art. 75, para. 1. Cf. also, for the Conventions, common Art. 3 (internal conflicts) and Art. 12, para. 2, First Convention; Art. 12, para. 2, Second Convention; Art. 16, Third Convention, and Arts. 13 and 27, para. 3, Fourth Convention. For the Protocol, Arts. 9, para. 1; 69, para. 1; 70, para. 1; 75, para. 1. The non-exhaustive list of prohibited criteria is not given in each case and varies in accordance with the requirements of the context;