Bases de données du CICR sur le droit international humanitaire
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Commentaire of 2016 
Introduction to the First Geneva Convention
The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field is the first of four Conventions adopted by the Diplomatic Conference of Geneva of 1949.
The decision to revise the two 1929 Conventions and to establish a fuller legal framework for the protection of victims of armed conflict was prompted by the violence of the Second World War, which was unprecedented in its scope and in the suffering it caused among both combatants and the civilian population. While improvements of the protection afforded by international humanitarian law had been under discussion well before the outbreak of the Second World War, the experiences of that war persuaded the governments participating in the Diplomatic Conference to fill some of the gaps in conventional international humanitarian law that the Second World War had exposed.
Over 65 years later, the four Geneva Conventions of 1949 continue to constitute the bedrock of international humanitarian law, and are among the most important treaties governing the protection of victims of armed conflict. These victims include the wounded and sick, the shipwrecked, prisoners of war, civilian internees and civilians living under the control of an enemy State, under occupation or in the territory of an adverse Party, including specific categories of persons, such as women, children and displaced people. As such, the Conventions contain the essential rules protecting persons who are not, or no longer, taking a direct part in hostilities.
The 1949 Conventions rapidly gained broad acceptance by States and, without exception, have always been ratified by them as a set. The four Conventions entered into force on 21 October 1950 after the first two ratifications.[1] They were ratified by another 74 States in the 1950s and obtained a further 48 ratifications in the 1960s. The ratifications steadily increased in the 1970s and 1980s. A wave of 26 new ratifications occurred in the early 1990s, resulting in particular from the break-up of the Soviet Union, Czechoslovakia and the former Yugoslavia. With the last few ratifications since the year 2000, the applicability of the Geneva Conventions has become universal, with 196 States Parties at the time of writing.[2] Furthermore, they are generally considered to be part of customary law.[3] The universal ratification of the four Geneva Conventions and the customary-law character of their rules are important testimony to the commonly shared conviction that wars must have limits.
Historical background
The origin of the First Convention is inseparable from the history of the ICRC and its original founders. At the end of his book A Memory of Solferino, published in October 1862, Henry Dunant had expressed a twofold wish – first, that each country should in peacetime set up a relief society that would aid the army medical service in times of war; and, second, that States should ratify by convention a solemn principle which would give international recognition to such societies to assist the medical service of the armed forces during armed conflict. Red Cross and Red Crescent Societies continue to translate the first of these aspirations into reality. It was the second aspiration, however, that led to the conclusion of the very first Geneva Convention, the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. The adoption of that treaty in such a short time was achieved in large part due to the vision and determination of the ICRC’s founders.
The 1864 Convention consisted of only 10 articles, but it laid a foundation that has never since been shaken. It embodied the principle that members of the armed forces who are hors de combat because they are wounded or sick, and without means of defence, must be protected and cared for regardless of their nationality. As a corollary, and in the exclusive interest of the wounded, it added that ambulances and military hospitals, as well as the medical personnel, were to be protected against hostile acts. The distinctive emblem of a red cross on a white ground was chosen as the visible sign of this protection.
The importance of the codification of the principle that the wounded and sick of the armed forces must be protected and cared for without distinction cannot be overemphasized. It was the starting point for unceasing efforts by governments, the ICRC and National Societies to revise and improve the protection afforded to victims in times of war. While this protection was initially extended only to the wounded and sick in the armed forces and did not cover civilians, it developed into the comprehensive body of international humanitarian treaty law that today governs the protection of all victims of armed conflict.
As early as 1868, a Diplomatic Conference met to discuss the adaptation of the 1864 Convention to warfare at sea, but the additional articles produced at this Conference were never ratified.
The Diplomatic Conference of 1906 adopted a new and expanded Convention on the Wounded and Sick, increasing the number of articles to 33. The 1906 Geneva Convention added the notion of ‘respect for the wounded and sick’ to the general obligation to collect and care for mentioned in the 1864 Convention, and included new provisions concerning the burial of the dead and the transmission of information regarding their identity.
In 1929, a new Convention was adopted which, based on the experience of the First World War, expanded upon the earlier provisions. The most significant changes were the abolition of the clausula si omnes, according to which the Convention was applicable only if all the belligerents in a conflict were party to the Convention; the addition of the clauses recognizing the introduction of medical aircraft; the extension of the use of the emblem to the peacetime activities of National Societies; and the requirement to repress violations of the Convention.
As noted above, the revisions that followed 20 years later were heavily influenced by the experience of the Second World War. A choice had to be made between developing more detailed rules covering all possible eventualities, or formulating general principles sufficiently flexible to be adapted to the existing circumstances in each country. In the end, the Diplomatic Conference agreed on a compromise that involved detailed provisions and included certain general and inviolable principles. It is these principles that today give the Geneva Conventions their specific legal characteristics. They ensure that protection under the Convention is absolute and that the Conventions’ reach extends beyond the inter-State level to ultimate beneficiaries who cannot renounce the rights secured to them.[4] While the possibility was left open for special agreements along the lines indicated by the model agreements and regulations annexed to the Conventions, these agreements cannot lower the level of protection provided by the Conventions. For the first time, the Conventions explicitly provide that the States Parties undertake to respect and ensure respect for the Conventions. The interests protected by the Conventions are of such fundamental importance that every State Party has a legal interest in their observance. The proper functioning of the system of protection provided by the Conventions demands that States Parties not only apply the provisions themselves, but also do everything reasonably in their power to ensure that the provisions are respected universally. The Conventions thus create obligations erga omnes partes, i.e. obligations towards all of the other High Contracting Parties.[5]
To get to these results, several expert conferences were convened in Geneva, where preparatory material gathered by the ICRC and first drafts were centralized and discussed. The most important were the Preliminary Conference of National Red Cross Societies in 1946 and the Conference of Government Experts in 1947. The drafts prepared by these Conferences were presented to the 1948 International Conference of the Red Cross in Stockholm, where further amendments were adopted.
The Stockholm Drafts served as the basis for negotiation at the Diplomatic Conference, which, convened by the Swiss Federal Council as depositary of the 1929 Conventions, met in Geneva from 21 April to 12 August 1949. Fifty-nine States were officially represented by delegations with full powers to discuss the texts; four States sent observers. The Conference immediately set up four main committees, which sat simultaneously and considered (1) the revision of the First Geneva Convention and the drafting of the Second Geneva Convention, which adapts the First Convention to sea warfare; (2) the revision of the Geneva Convention on Prisoners of War; (3) the drafting of a completely new convention that for the first time addressed the protection of civilians; and (4) the provisions common to all four Conventions.
Besides numerous working groups,[6] a Coordination Committee and a Drafting Committee, which edited the text for uniformity and consistency, were formed towards the end of the Conference.
The discussions and results obtained in these different committees and working groups are reflected in the commentaries on the individual articles, usually in the historical background sections, and thus need not be summarized here. Nevertheless, it merits mentioning that the records of the Diplomatic Conference, which are published,[7] as well as the reports from individual participants, testify to the plenipotentiaries’ unstinting work for almost four months. They reflect a remarkable humanitarian spirit and a willingness to cooperate that, despite divergent opinions, prevailed throughout the Diplomatic Conference.
Content of the First Geneva Convention
The basic principle underlying all four Conventions is respect for the life and dignity of the individual, even – or especially – in situations of armed conflict. Those who suffer during armed conflict must be aided, protected and cared for. They must in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth, wealth or any other similar criteria.
This principle is the basis for the specific rules found in the First Convention with regard to wounded and sick members of the armed forces, which above all contain the central obligation for the Parties to respect and protect them in all circumstances, treat them humanely and care for them without any adverse distinction. The wounded and sick members of the armed forces must be searched for and collected, and protected against pillage and ill-treatment.
Closely related to this obligation are the provisions related to the dead. These demand that the dead be searched for and protected from despoliation, that they be given an honourable burial and that their graves be respected. Measures must be taken to record information that can assist in the identification of the wounded, sick or dead, so that information about their fate can be forwarded to the Power on which they depend and, ultimately, to their families. Burial of the dead must be preceded by a careful examination with a view to establishing identity, and their graves must be properly marked and their location recorded.
As an essential condition for the wounded and sick to be collected and cared for, the First Convention affords protection to military medical personnel, material and transports, as well as to the buildings which shelter them. This protection applies both on the battlefield and when they are in enemy hands. The First Convention also stipulates certain circumstances under which such protection may be lost. These clearly defined and limited circumstances, however, only add weight to the fundamental obligation that military medical and religious personnel and facilities, including, under certain circumstances, auxiliary personnel, may not be attacked and must be respected and protected by the Parties to the conflict.
As a means of improving the protection of wounded and sick soldiers and members of the armed forces’ medical service, the First Convention confirms the red cross or red crescent on a white ground as the distinctive emblem to be used by the medical service of a country’s armed forces.[8] The distinctive emblem indicates that its bearers enjoy specific protection from attack, harm, or other interference with their tasks. The medical service of the armed forces is considered to be the primary user of the emblems. At the same time, the Convention confirms that National Red Cross and Red Crescent Societies may use the red cross or red crescent emblem to indicate their connection to the International Red Cross and Red Crescent Movement, without implying protection under the Geneva Conventions or any intention to invoke them. The First Convention requires the Parties to respect and ensure respect for and control of the use of the emblems and to prevent their misuse at all times.
Given that the majority of today’s armed conflicts are of a non-international character, common Article 3, which applies to such conflicts, has become one of the key provisions of international humanitarian law and has gained an importance that was probably not foreseen by the drafters in 1949. Common Article 3 was the first treaty provision to specifically address non-international armed conflict. It is, in many respects, a mini-convention within the Convention,[9] and the fundamental character of its provisions has been recognized as a reflection of ‘elementary considerations of humanity’ and as a ‘minimum yardstick’ binding in all armed conflicts.[10] Common Article 3 has been supplemented in a number of important areas by Additional Protocol II and by the continuous development of customary international law in this area.
Finally, the First Convention contains a comprehensive set of provisions on the suppression of abuses and penal sanctions, aimed at ensuring respect for the First Convention and increasing the protection it provides. These provisions were completely new in 1949, and similar provisions were incorporated in all four Conventions. Article 49 obliges States Parties to enact legislation providing effective penal sanctions, and to either prosecute or extradite, regardless of their nationality, alleged offenders who are suspected of having committed one of the grave breaches listed in Article 50.
Structure
The First Convention starts with the common provisions which are practically identical in all four Conventions. These common provisions contained in Chapter I deal with the obligation to respect and to ensure respect for the Conventions, and set out the Conventions’ scope of application. They also provide for the conclusion of special agreements between the Parties, prohibiting those that might waive or lower the level of protection afforded in the Convention, and they confirm the inalienability of the rights of protected persons. They outline the role foreseen for the Protecting Powers or their substitutes, and provide for a conciliation procedure between Parties. They also enshrine the right of the ICRC and other impartial humanitarian organizations to offer their humanitarian activities for the protection of the wounded and sick to the Parties to an international armed conflict. As mentioned above, common Article 3 is a convention in miniature that sets out, for the first time in treaty law, rules on non-international armed conflict.
Provisions common to the four Conventions are also found at the end of the First Convention, notably those on dissemination, translations, reprisals and penal sanctions, and the final provisions, which define the procedure for signature, ratification and entry into force of the Convention, and for accession to it.
The common provisions in Chapter I are followed by Chapter II, which represents the core of the Convention, as it contains the rules regarding the protection of the wounded and sick of the armed forces. Article 12 contains a list of prohibited acts, which include attempts upon life, torture, and wilfully leaving the wounded and sick without medical assistance and care. Article 12 is complemented by Article 15, which imposes on the Parties certain core obligations vis-à-vis the wounded and sick, including the obligation to search for them and to collect and remove them from the danger zone. While Article 13 enumerates the categories of persons entitled to protection under the Convention when they are wounded or sick, Article 14 makes it clear that the military wounded and sick who fall into enemy hands are prisoners of war and, as such, enjoy the protection of both the First and the Third Conventions. The information to be given about wounded captives and the duties in respect of the dead are defined in Articles 16 and 17.
Chapter III deals with the protection of medical units and establishments and provides for the creation of safety zones and localities.
Chapter IV addresses the legal status of military medical and religious personnel and requires that they be respected and protected on the battlefield. In principle, when they have fallen into enemy hands, they must be returned to the Party to the conflict to which they belong. However, the First Convention provides that they may, in certain circumstances, be retained to care for prisoners of war. Their special status and the conditions for the return of those not required for the care of wounded and sick prisoners of war have been carefully defined in Articles 28, 30 and 31. In Articles 26, 27 and 30, the chapter also addresses the role and protection of the staff of national aid societies when they are acting as auxiliaries to the medical service of their own or of another State’s armed forces.
Chapter V consists of two articles only. Article 33 regulates the protection of mobile medical units and of fixed medical establishments of the armed forces when they fall into enemy hands. Article 34 provides that the property of aid societies must be regarded as private property and may never be taken as booty of war or confiscated.
Similar provision is made in Chapter VI for the protection of transport vehicles and medical aircraft. Additionally, Article 37 of the First Convention authorizes medical aircraft, in certain circumstances, to fly over neutral countries.
Chapter VII contains the provisions relating to the use and protection of the distinctive emblem of the red cross or red crescent. This chapter reaffirms the protective functions of the distinctive emblem and clarifies the parameters of its use. Additional provisions on preventing and punishing misuses of the emblem can be found in Chapter IX.
Chapter VIII deals with the execution of the Convention and with its dissemination as an essential condition for its effective application and an important element in creating an environment conducive to lawful behaviour. This chapter also contains a provision stipulating an absolute prohibition of belligerent reprisals against the wounded, sick, personnel, buildings or equipment protected by the Convention. It is through this absolute prohibition that persons protected under the First Convention on all sides of an armed conflict are safeguarded from the risk of rapid and disastrous deterioration in the treatment provided to them because of belligerent parties responding to offences by taking identical or similar action.
The First Convention ends with Chapter IX, which contains articles relating to the repression of abuses and infractions, and with a final section containing the final provisions.
Since its adoption in 1949, the First Convention has been supplemented in a number of important areas by Additional Protocol I and by the continuous development of customary international law in this area. Among other things, Additional Protocol I no longer distinguishes between the military and civilian wounded and sick, but affords protection to all wounded and sick persons. This, as well as other additions and clarifications, are addressed in greater detail in the commentary on Additional Protocol I.
Contemporary relevance and challenges
The First Convention is as relevant today as it was at the time of its adoption. The fundamental values of humanity and dignity on which all the Geneva Conventions are based are timeless. Warfare is changing and new weapon systems are being developed, but there remains one distressing constant: armed conflicts continue to be characterized by scores of people in urgent need of medical care and by the destruction of health infrastructure and the large-scale displacement of civilians. Enhancing the protection of medical personnel and resources, thereby facilitating the effective performance of medical duties and ensuring that victims of armed conflict can be assisted and protected, thus continues to be a key challenge.
The First Convention has proven to be crucial for ensuring the care and protection of the wounded and sick of the armed forces, and has had a profound influence on the development of national military policies and procedures and on resource allocation, training and implementation. On the basis of the Convention’s rules, the ICRC calls upon States to abide by certain standards of treatment of the wounded and sick in times of armed conflict; and these rules, among others, enable the ICRC to carry out its humanitarian mission in the field and to offer humanitarian activities during armed conflict.
While the positive effects of the Geneva Conventions are not easy to quantify, this does not mean that they do not exist: ICRC delegates present in armed conflicts around the world witness them time and again. Indeed, the millions of individuals who have been harmed by armed conflict, but who have survived with their dignity intact, are perhaps the greatest testament to the humanitarian influence of the Conventions. The distinctive emblems of the red cross and the red crescent have enhanced the protection of innumerable hospitals, medical units and personnel, as well as countless wounded and sick persons. These emblems, which derive their protective value from the First Convention, are known throughout the world.
Despite the specific protective regime set up by the First Convention and its successes, the protection of the wounded and sick continues to face challenges. A number of armed forces and many armed groups do not employ distinct medical personnel at all, and in some cases medical personnel, transports and units choose not to identify themselves with the emblem. Contemporary armed conflicts have also been characterized by widespread interference with, and threats and attacks against, medical personnel, facilities and transports. These failures to respect the Convention significantly affect the ability of the wounded and sick to obtain medical care and undermine the efforts to mitigate suffering. The Health Care in Danger project[11] of the International Red Cross and Red Crescent Movement – aimed at making the delivery of health care safer both in armed conflict and in other emergencies – has collected incidents in various countries in which the wounded and sick, as well as medical personnel and objects, have been directly attacked or otherwise harmed in the conduct of hostilities.[12] Medical facilities and transports have also been used for military purposes: for launching attacks, storing and transporting weapons, or establishing military command and control centres. These incidents all too often constitute deliberate violations of unequivocal rules. They might not only lead to a loss of protection under the First Convention, but also undermine the trust in the purely medical character of medical facilities and transports and, as such, put all of them at risk of attack by the opposing Party. This in turn may impede efforts to collect and care for the wounded and sick.
It must be stressed that the fundamental challenges posed by such incidents are not due to the inadequacy of the rules of humanitarian law. The rules contained in the First Convention can only be effective, however, if they are respected and properly implemented by the belligerents. Without neglecting the possibility of and need for specific improvements in the law, the ICRC is therefore convinced that the key to increasing the care and protection of the wounded and sick of the armed forces during armed conflict is respect for and better implementation of the existing rules.
Since the adoption of the 1864 Convention, this body of law has been continually refined. In order to fully appreciate the significance of the First Geneva Convention more than 65 years after its adoption, it must not be viewed in isolation, but in conjunction with the other three Conventions, as well as the Additional Protocols and the large body of customary international humanitarian law that exists today. Taken together, these rules represent the principal legal regime intended to alleviate human suffering during war.

1 - Switzerland and Yugoslavia were the first two countries to ratify the Geneva Conventions, on 31 March and 21 April 1950, respectively; see ‘Les Conventions de Genève du 12 août 1949 entrent dans le droit positif’, Revue de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 32, No. 378, June 1950, p. 448. On the entry into force of the First Convention, see also the commentary on Article 58.
2 - For the current status of ratification and the dates of ratification or accession by States Parties, see www.icrc.org/eng/resources/documents/misc/party_main_treaties.htm or www.fdfa.admin.ch/depositary.
3 - See e.g. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, paras 79 and 82.
4 - See common Article 7 of the Conventions (Article 8 in the Fourth Convention). See also Georges Abi-Saab, ‘The specificities of humanitarian law’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 265–280, at 267–268.
5 - See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, para. 157 (‘In the Court’s view, these rules [of humanitarian law applicable in armed conflict] incorporate obligations which are essentially of an erga omnes character.’); ICTY, Kupreškić Trial Judgment, 2000, para. 519 (‘[N]orms of international humanitarian law do not pose synallagmatic obligations, i.e. obligations of a State vis-à-vis another State. Rather … they lay down obligations towards the international community as a whole …’); and Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 25 (‘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.’). See also the commentary on common Article 1 and Georges Abi-Saab, ‘The specificities of humanitarian law’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 265–280, at 270.
6 - While the French text of the preparatory work refers to ‘groupes de travail’, these groups are referred to as ‘Working Parties’ in the English version.
7 - See Final Record of the Diplomatic Conference of Geneva of 1949, 4 volumes, Volume I, Volume II-A, Volume II-B, Volume III, Federal Political Department, Berne, 1950.
8 - The red lion and sun emblem, which is also mentioned in Article 38 of the First Convention, has not been used by any State since 1980.
9 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 35, 98 and 326.
10 - See ICJ, Military and Paramilitary Activities in and against Nicaragua, Advisory Opinion, 1986, paras 218–219.
11 - Health Care in Danger is an ICRC-led project of the International Red Cross and Red Crescent Movement scheduled to run from 2012 to 2017 and aimed at improving the efficiency and delivery of effective and impartial health care in armed conflict and other emergencies by mobilizing experts to develop practical measures that can be implemented in the field by decision-makers, humanitarian organizations and health professionals. For further information, see healthcareindanger.org/hcid-project/.
12 - See e.g. ICRC, Health Care in Danger: Violent Incidents Affecting the Delivery of Health Care, January 2012 to December 2014, ICRC, Geneva, 2015, www.icrc.org/eng/resources/documents/publication/p4237-violent-incidents.htm.