Bases de données du CICR sur le droit international humanitaire
Traités, États parties et Commentaires
  • Print page
Commentaire of 2016 
Introduction
Contents

  • A. The ICRC project to update the Commentaries
  • B. Drafting process
  • C. Methodology
  • D. Structure of the commentaries
  • E. The First Geneva Convention
  • Select bibliography
    A. The ICRC project to update the Commentaries
    1. Background and scope of the project
    1  The 1949 Geneva Conventions and their 1977 Additional Protocols constitute the foundation of international humanitarian law today. They contain the essential rules of humanitarian law protecting civilians, persons who are hors de combat and medical and religious personnel, as well as a range of protected objects such as civilian objects and medical units and transports. At the time of writing, the Geneva Conventions have been universally ratified or adhered to. Furthermore, a large majority of countries, more than five out of every six, are party to the 1977 Additional Protocols.[1]
    2  Upon the adoption of the Conventions in 1949, a group of ICRC lawyers who had been involved in the drafting and negotiation of the Conventions set out to write a detailed commentary on each of their provisions. This led to the publication between 1952 and 1960 of a Commentary on each of the four Conventions, under the general editorship of Jean Pictet.[2] Similarly, when the Additional Protocols were adopted in 1977, ICRC lawyers involved in their negotiation set out to write a commentary on both Protocols. These were published in 1986–1987.[3]
    3  Over the years, these six ICRC Commentaries have come to be recognized as well-respected and authoritative interpretations of the Conventions and their 1977 Additional Protocols, essential for the understanding and application of the law.[4]
    4  The original Commentaries were based primarily on the negotiating history of these treaties, as observed at first hand by the authors, and on prior practice. In this respect, they retain their historic value. They often contain a detailed comparison with previous conventions, e.g. a comparison between the 1949 Conventions and the 1929 Geneva Conventions on the Wounded and Sick and on Prisoners of War.
    5  However, with the passage of time and the development of practice, a genuine need was felt to update the Commentaries. The ICRC therefore decided to embark upon an ambitious project to achieve that purpose. This update seeks to reflect the practice that has developed in applying and interpreting the Conventions and Protocols during the decades since their adoption, while preserving those elements of the original Commentaries that are still relevant. The objective is to ensure that the new editions reflect contemporary practice and legal interpretation. Therefore, the new editions are more detailed as they have the benefit of more than 60 years of application of the Conventions – 40 years in the case of the 1977 Additional Protocols – and their interpretation by States, courts and scholars. The new Commentaries reflect the ICRC’s current interpretations of the law, where they exist. They also indicate the main diverging views where these have been identified.
    6  The update preserves the format of the original Commentaries, that is to say an article-by-article analysis of each of the provisions of the Conventions and Protocols. The commentaries on the common articles in the First Convention have been drafted to cover the four Conventions. They will be adapted to the specific context of a Convention where this is particularly relevant, for example to provide a definition of ‘shipwrecked’ in the context of the Second Convention.
    7  The present volume is the first instalment in a series of six updated Commentaries. A commentary on Additional Protocol III that was published in 2007 is not being updated as part of this project.[5]
    Back to top
    2. The ICRC’s role in the interpretation of the Conventions and Protocols
    8  The ICRC mandated the writing of the original Commentaries pursuant to its role as guardian and promoter of humanitarian law. The same is true for the current updated edition. This role is recognized in the Statutes of the International Red Cross and Red Crescent Movement, in particular the ICRC’s role ‘to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof’.[6] But it also follows from its role ‘to undertake the tasks incumbent upon it under the Geneva Conventions’ and ‘to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law’.[7] In many cases, these tasks require the ICRC to interpret the humanitarian law treaties underlying this mandate. Hence, the interpretation of humanitarian law is at the heart of the organization’s daily work across its operations.
    9  A wide variety of other actors also interpret the Conventions and Protocols, in particular States (through government lawyers in ministries, military commanders, staff officers and lawyers, advocates before courts), national and international courts and tribunals, arbitral tribunals, international organizations, components of the Red Cross and Red Crescent Movement, and non-governmental organizations and academics. Where relevant, the interpretations given by these actors have been taken into account in this Commentary, in particular interpretations by States and decisions of courts and tribunals which are among the most important sources of interpretative guidance.
    10  In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.
    Back to top
    B. Drafting process
    11  The research and coordination for this Commentary has been carried out by an ICRC project team. Together with a group of external contributors and some additional ICRC staff lawyers, they drafted this Commentary. All draft commentaries were submitted for review to the group of contributors, the Reading Committee.
    12  At the same time, many drafts were also submitted for review to other ICRC staff, including staff working in the field of integration and promotion of the law, policy, cooperation within the Red Cross and Red Crescent Movement, protection and assistance. For specific issues, additional consultations with governmental, military and National Red Cross or Red Crescent Society lawyers took place.
    13  The draft commentaries were subsequently submitted to an Editorial Committee comprising senior ICRC and external humanitarian law experts for review. Based on the Committee’s comments, new drafts were prepared and submitted to a comprehensive process of peer review by a wide selection of 60 scholars and practitioners from around the world involved in the study and implementation of humanitarian law. Based on the feedback from the peer review, the project team prepared a final draft for approval by the Editorial Committee. The final text is thus the result of a collaborative process.[8]
    14  These various steps of consultation and review sought to ensure that the updated Commentary, being written more than 60 years after the initial 1952 Commentary, reflects current practice as accurately as possible and provides up-to-date legal interpretations based on the latest practice, case law, academic commentary and ICRC experience. Details on the treaties, other documents, military manuals, national legislation, national and international case-law referred to can be found in the corresponding tables at the end of this volume.
    15  The updated Commentary has been drafted to serve a wide audience including, in particular, practitioners of international humanitarian law such as military commanders, staff officers and lawyers, judges and lawyers at national and international courts and tribunals, the ICRC and other components of the Red Cross and Red Crescent Movement, NGO staff, as well as academics and scholars.
    Back to top
    C. Methodology
    1. Introduction
    16  The updated Commentary applies the methodology for treaty interpretation as set out in the Vienna Convention on the Law of Treaties, in particular Articles 31–33.[9] Even though that Convention was adopted 20 years after the Geneva Conventions, these rules are generally considered to reflect customary international law.[10]
    17  The text below addresses how the methodology has been applied to the interpretation of the Conventions, in particular the First Convention.
    18  Pursuant to Article 31 of the Vienna Convention on the Law of Treaties, a treaty must be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Although this rule of interpretation has different elements, which are examined under separate headings below, the interpretation itself must combine all the elements.[11]
    19  The obligation to interpret the terms of a treaty in good faith flows from the general obligation to respect treaty obligations in good faith, known under the Latin maxim as pacta sunt servanda (‘agreements must be honoured’).[12]
    Back to top
    2. Ordinary meaning of the terms
    20  The ordinary meaning of most of the terms in the Conventions can easily be ascertained. They tend to be written in plain language and provide significant details in the provisions themselves (see e.g. many of the detailed provisions of the Third Convention).
    21  In order to achieve their objectives, the Conventions were drafted in such a way that they should easily be understood by soldiers and their commanders, as well as by civilians. The Conventions provide for their study to be included in programmes of military instruction,[13] and for the Third Convention to be posted in its entirety in POW camps, ‘in the prisoners’ own language, at places where all may read [it]’.[14] The purpose is for POWs to be able to read the Convention and to be made fully aware of their rights under the Convention during their internment. Similarly the Conventions foresee a role for the civilian population, for example in the search for and collection of the wounded and sick, and hence it is important that civilians be able to understand the (plain) text of the Conventions. Furthermore, civilians are protected under the Fourth Convention, which makes it all the more relevant that they be able to fully understand this treaty.
    22  However, as practice in the application and interpretation of the Conventions over the past 6 decades have shown, the meaning of the Conventions’ terms is not always clear or may give rise to a need for further interpretation. Where necessary, this Commentary determines the ordinary meaning of terms with reference to authoritative, standard English dictionaries such as the Concise Oxford English Dictionary, or legal dictionaries such as Black’s Law Dictionary.
    23  Although the updated Commentary has been drafted in English, the authors have consistently consulted and compared the French version of the Convention, which is equally authentic.[15] Where divergences between the two versions appear to exist, the Commentary proposes an interpretation which reconciles both versions.[16] To ascertain the meaning of the terms in the French version of the Convention, the authors consulted authoritative, standard French dictionaries, such as Le Petit Robert or Le Petit Larousse.
    Back to top
    3. Context
    24  Pursuant to Article 31(1) of the Vienna Convention on the Law of Treaties, in order to determine the ordinary meaning to be given to the terms of the treaty those terms have be placed ‘in their context’. According to Article 31(2), the context to be considered for treaty interpretation comprises not only the text of treaty, but also its preamble and annexes.
    25  The First Convention has two annexes: the first is a draft agreement relating to hospital zones and localities and the second is a model identity card for medical and religious personnel attached to the armed forces. These annexes are referred to where relevant in the context of a particular provision.[17] The commentaries on the annexes themselves have not been updated, as this was not considered of sufficient practical relevance.
    26  The context also comprises the structure of the Conventions, their titles, the chapter headings and the text of the other articles. The Final Act and the annexed 11 resolutions adopted by the 1949 Diplomatic Conference of Geneva are also considered part of the context for the purposes of interpretation of these respective treaties.[18]
    27  In the case of the Conventions, the marginal titles are neither part of the text nor of the context because these were established after the Diplomatic Conference by the depositary, the Swiss Federal Council. This was done for ease of reference, as the articles of the Conventions have no titles, unlike the articles of the Protocols.[19] The marginal titles of some articles have been slightly adapted in the present Commentary to better identify their subject matter.
    Back to top
    4. Object and purpose
    28  Strictly speaking the object of a treaty may be said to refer to the rights and obligations stipulated by the treaty,[20] while the purpose refers to the aim which is to be achieved by the treaty provisions.[21] However, the terms ‘object and purpose’ are used as ‘a combined whole’.[22] Thus, a treaty’s object and purpose is said to refer to its ‘raison d’être’,[23] its ‘fundamental core’,[24] or ‘its essential content’.[25]
    29  Consideration in good faith of the object and purpose will ensure the effectiveness of the treaty’s terms:
    When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation be adopted.[26]
    30  As can be seen from this quote, and as recognized by the ICJ, a treaty may have several objects and purposes.[27] A usual place to look for the object and purpose of a treaty is its preamble.[28] In the case of the Geneva Conventions, the preambles are very short and provide only limited guidance, contrary to the Additional Protocols which have more substantial preambles.[29] However, beyond the preambles, the whole text of the Conventions, including the titles and annexes, has to be taken into account in ascertaining their object and purpose.[30]
    31  On this basis, it can be ascertained that the overall object and purpose of the First Convention is to ensure respect for and protection of the wounded and sick, as well as the dead, in international armed conflict. The other provisions in the Convention are geared towards this purpose, for example the rules on the search for and collection of the wounded and sick and of the dead. In addition, the rules that require respect for and protection of medical and religious personnel, units and transports and the distinctive emblems all serve the purpose of protecting and caring for the wounded and sick. Finally, a number of other provisions are intended to ensure respect for the Convention through its promotion, implementation and enforcement.
    32  Common Article 3 provides the First Convention, and indeed all four Conventions, with another object and purpose, as it serves to protect persons not or no longer participating in hostilities in situations of non-international armed conflict.
    33  The balance between humanitarian considerations, on the one hand, and military necessity, on the other, is a hallmark of international humanitarian law. This balance is reflected in the text of the Conventions adopted by the Diplomatic Conference of 1949.
    Back to top
    5. Additional elements of interpretation
    34  Pursuant to Article 31(3) of the Vienna Convention on the Law of Treaties, together with the context, the interpretation provided in the Commentary also has to take into account:
    (a) any subsequent agreement between the Parties regarding the interpretation of the treaty or the application of its provisions;
    (b) any subsequent practice in the application of the treaty which establishes the agreement of the Parties regarding its interpretation;
    (c) any relevant rules of international law applicable in the relations between the Parties.
    Items (b) and (c) are particularly important considerations when interpreting the Geneva Conventions. It is important to ascertain the subsequent practice in the application of the Conventions which has accumulated over the decades since their adoption.
    35  Subsequent practice that does not fulfil the criteria of this provision, i.e. to establish the agreement of the Parties regarding the interpretation of a treaty, may still be relevant as a supplementary means of interpretation under Article 32.[31] This consists of conduct by one or more Parties in the application of the treaty after its conclusion.[32] The weight of such practice may depend on its clarity and specificity, as well as its repetition.[33] The six decades since the adoption of the Geneva Conventions have seen the development of significant practice in their application, which is particularly useful in this respect.
    36  Other relevant rules of international law include customary humanitarian law and the three Additional Protocols, as well as other relevant treaties of international law, including international criminal law and human rights law where applicable.[34] The latter bodies of law were still in their infancy when the Geneva Conventions were adopted in 1949 but have grown significantly since then. As stated by the ICJ: ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.’[35]
    Back to top
    a. International criminal law
    37  With respect to international criminal law, for example, the growing body of case law from the various international criminal courts and tribunals, as well as national courts, illustrates the way in which identical or similar concepts and obligations of international humanitarian law have been applied and interpreted for the purpose of assessing individual criminal responsibility. To the extent that this is relevant for the interpretation of the Conventions, this has been examined.
    38  For example, the 1979 International Convention against the Taking of Hostages has become a starting point for the interpretation of the notion of the taking of hostages. This is also borne out by subsequent practice, e.g. in the form of the war crime of hostage-taking in the ICC Statute of 1998, the definition in the ICC Elements of Crimes of 2002, and case law.[36]
    39  That being said, it is important to underscore that the humanitarian treaty obligation may be broader than the criminalized parts of it in a rule contained in an instrument of international criminal law. The humanitarian treaty obligation exists independently of the rule of international criminal law on which the case law is founded. The content of the obligation may therefore not be identical in both bodies of law and differences are pointed out wherever they exist.
    Back to top
    b. International human rights law
    40  With respect to the relationship between humanitarian law and human rights law, it is generally recognized that human rights law applicable in situations of armed conflict complements the protection afforded by humanitarian law because the two bodies of law share a common value of protecting human life and dignity.[37] The relationship between these bodies of law is, however, complex and still subject to further clarification and evolution. It is also highly contextual and therefore the interaction between the two bodies of law depends on the issue at hand. The Commentaries do not purport to set forth a general theory of the relationship applicable to all possible interactions between every rule of the Conventions and human rights law. It will address the relationship on a case-by-case basis, based on the premise of the complementary nature of both bodies of law.
    41  Therefore, human rights law has been referred to where relevant in order to interpret shared concepts (e.g. cruel, inhuman and degrading treatment). This does not mean that human rights law and interpretations can be transposed mechanically to humanitarian law provisions and differences have been pointed out where relevant. For example, the definition of torture is set forth in the 1984 Convention against Torture, although ICTY case law and the ICC Elements of Crimes have interpreted this notion to be wider in humanitarian law than in the Convention against Torture.[38]
    42  Human rights law, while retaining its separate existence and scope of application, may also be relevant where the application of the Conventions may be affected by international human rights obligations. For example, the commentary on common Article 3 (and on Articles 100–101 of the Third Convention and Article 68 of the Fourth Convention) which anticipates the possibility of the use of the death penalty, would be incomplete without a reference to international treaties aiming to abolish the death penalty.[39] These references are not so much a matter of interpreting the obligations in the Conventions through human rights law, but of mentioning parallel obligations in order to provide a complete overview of the relevant international legal rules.
    Back to top
    c. The Additional Protocols
    43  A special issue is the relationship between the Geneva Conventions of 1949 and the Additional Protocols of 1977 and 2005. The original Commentaries on the Conventions were drafted prior to the adoption of the Additional Protocols. The updated Commentaries aim to provide the clearest picture of the content of the obligations set forth in each article of the Conventions, in the light of the obligations for States that are party to the Additional Protocols.
    44  Therefore, the updated Commentaries indicate, where relevant, the legal impact of relevant Protocol rules on the interpretation of the Conventions. The commentary on the Additional Protocols will indicate in detail how a Protocol rule has altered, supplemented and/or reinforced a related rule in the Conventions. For example, the impact of the definitions of medical personnel, units and transports in Article 8(k) of Additional Protocol I will be mentioned briefly in the commentaries on the relevant provisions in the First Convention, while the commentary on Article 8 of the Protocol itself will discuss these definitions in more detail.
    Back to top
    d. Customary international humanitarian law
    45  Another issue is the relationship between treaty law and customary humanitarian law. The Geneva Conventions have been ratified by 196 States and are generally considered to be part of customary law.[40] Nevertheless, references have been made to relevant rules of customary international humanitarian law as identified by international courts or other bodies, or from the ICRC study on the subject, in situating a provision of the Conventions in the general context of international law.
    46  However, the updated Commentaries do not seek to determine for each provision whether it amounts to customary law, because this is beyond their scope and, as noted, the Conventions are generally considered to be customary. Therefore, the absence of a reference to the customary status of a provision should not be interpreted as meaning that that provision is not part of customary international law; the issue was simply not examined as part of updating the Commentaries.
    Back to top
    6. Special meaning of terms
    47  According to Article 31(4) of the Vienna Convention on the Law of Treaties, ‘a special meaning shall be given to a term if it is established that the Parties so intended’. With respect to the First Convention, this rule is relevant, for example, to the definition of the wounded and sick, which is both narrower and wider than the ordinary meaning of these words.[41]
    Back to top
    7. Preparatory work
    48  Finally, according to Article 32 of the Vienna Convention on the Law of Treaties ‘recourse may be had’ to the treaty’s preparatory work and the circumstances of its conclusion in order to confirm the meaning resulting from the application of the general rule of interpretation, or to determine the meaning when the application of the general rule leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.
    49  The formulation ‘recourse may be had’ gives the impression that recourse to the preparatory work is optional. In practice, however, most academic commentaries on treaties examine the preparatory work as a matter of standard research, and do not use it only in cases where the meaning is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.[42]
    50  Indeed, it seems logical for a thorough examination of all the issues to examine the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’ which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 33 and 34 of the First Convention dealing with the fate of buildings and material of medical units of the armed forces and aid societies after they fall into enemy hands.
    51  The preparatory work that has been examined in this Commentary is listed in the corresponding table at the end of this volume.
    Back to top
    8. Absence of practice and desuetude
    52  Certain provisions of the Convention do not seem to have been applied extensively in the past six decades. However, the absence of practice in the application of a provision does not, in and of itself, lead to the falling into desuetude of such a provision. Desuetude means that a treaty rule is no longer applicable or has been modified, a conclusion that should not be reached lightly. It is subject to stringent conditions and requires the agreement, at least tacit, of the Parties or the emergence of an inconsistent rule of customary international law.[43]
    53  Examples of provisions in the First Convention with no or only limited practice include:
    – Articles 8 and 10 on Protecting Powers and their substitutes, which have rarely been used since 1949;
    – Articles 11 and 52 on the conciliation and enquiry procedure, which have not been relied upon as such in recent conflicts;
    – Article 26 on personnel of National Red Cross and Red Crescent Societies placed at the disposal of army medical services. This has rarely been done since 1949. Article 34 on the property of these Societies also has not been used in practice.
    – Articles 27, 32 and 43 dealing with medical units belonging to aid societies of neutral countries and their staff have not been put into practice since 1949.
    – Articles 28, 30 and 31 on the retention of medical and religious personnel have rarely been an issue in recent armed conflicts.
    Yet these provisions continue to exist as valid treaty rules and must be applied where their conditions for application are fulfilled.
    Back to top
    D. Structure of the commentaries
    54  Each commentary presents the text of the provision in question. For multiple-paragraph articles, the paragraph numbers have been added for ease of reference. Following the text of the provision, reservations and declarations as at the time of publication are listed.
    55  The commentary itself is preceded by a table of contents which serves as an outline of the issues addressed. It allows the reader to navigate easily within a commentary and to identify quickly which parts of a commentary may be most relevant. Each commentary is structured in a similar way:
    56  Introduction: The introduction serves as an executive summary of the commentary. It highlights the main issues covered and allows for a quick overview of what a given provision deals with. Further details can be found in the discussion section. In some cases the introduction is merged with the next section on historical background.
    57  Historical background: This part highlights the main phases in the development of a specific provision, rather than seeking to give an exhaustive overview of the entire drafting history. The length of this part depends on the relevance of the historical background for the current understanding of the provision and the amount of change and development over time for a specific provision. The footnotes in this part guide the reader to the necessary details.
    58  Those elements of the drafting history that have a direct impact on the interpretation of a particular aspect of a provision are included in the discussion section.
    59  For multiple-paragraph articles, such as common Article 3, this section focuses on the general historical background of the provision rather than on that of each paragraph. The historical background of a specific paragraph may then be set out in a separate section, or elements of it may be interwoven with the introduction or with the discussion of the paragraph.
    60  Discussion: This part forms the core of each commentary. For single-paragraph articles this part may be divided into thematic sections. For multiple-paragraph articles, it is divided by paragraph and may have additional thematic subsections. The commentary outlines and explains the content of the provision. As noted, the commentary follows the rules on interpretation set out in the Vienna Convention on the Law of Treaties. The precise content of the discussion section depends on the article under scrutiny, but in general the aims of this section include:
    – providing an interpretation of the ordinary meaning of the text in the light of its context and the object and purpose;
    – setting out the practice in implementing a provision where this helps to clarify its scope and content;
    – analytically describing any interpretations of the article by international courts and tribunals;
    – indicating areas where the exact requirements of a rule are subject to debate;
    – setting forth the broad outlines, including references, of the most authoritative academic doctrine on the issue focusing on the main fault lines among diverging opinions;
    – indicating the ICRC position, if any, in relation to how the article should be interpreted and applied and the rationale for this position;
    – providing key elements for implementing the obligation from a practical perspective, both humanitarian and military;
    – describing briefly, where relevant, how the application in practice of a provision may affect women, men, girls and boys differently; and
    – indicating briefly, where relevant, whether a violation of a provision entails the individual criminal responsibility of the author under international law.
    61  Select bibliography: When specific literature on the provision is available, a select bibliography is appended to the commentary. This includes the specific works cited, as well as further reading. Treaties, other documents, military manuals, national legislation, national and international case-law referred to are referenced in the tables at the end of this volume.
    Back to top
    E. The First Geneva Convention
    1. Introduction
    62  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.
    63  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.
    64  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.
    65  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.[44] 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.[45] Furthermore, they are generally considered to be part of customary law.[46] 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.
    Back to top
    2. Historical background
    66  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.
    67  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.
    68  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.
    69  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.
    70  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.
    71  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.
    72  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.[47] 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.[48]
    73  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.
    74  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.
    75  Besides numerous working groups,[49] a Coordination Committee and a Drafting Committee, which edited the text for uniformity and consistency, were formed towards the end of the Conference.
    76  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,[50] 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.
    Back to top
    3. Content of the First Geneva Convention
    77  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.
    78  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.
    79  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.
    80  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.
    81  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.[51] 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.
    82  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,[52] 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.[53] 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.
    83  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.
    Back to top
    4. Structure
    84  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.
    85  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.
    86  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.
    87  Chapter III deals with the protection of medical units and establishments and provides for the creation of safety zones and localities.
    88  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.
    89  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.
    90  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.
    91  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.
    92  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.
    93  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.
    94  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.
    Back to top
    5. Contemporary relevance and challenges
    95  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.
    96  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.
    97  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.
    98  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[54] 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.[55] 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.
    99  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.
    100  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.
    Back to top
    Select bibliography
    Abi-Saab, Georges, ‘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.
    Aust, Anthony, Modern Treaty Law and Practice, 3rd edition, Cambridge University Press, 2013, pp. 205–226.
    Buffard, Isabelle and Zemanek, Karl, ‘The “Object and Purpose” of a Treaty: An Enigma?’, Austrian Review of International & European Law, Vol. 3, 1998, pp. 311–343.
    Corten, Olivier and Klein, Pierre (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Oxford University Press, 2011.
    Dörr, Oliver and Schmalenbach, Kirsten (eds), Vienna Convention on the Law of Treaties: A Commentary, Springer, Berlin, 2012.
    Fitzmaurice, Gerald, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points, British Year Book of International Law, Vol. 33, 1957, pp. 203–293.
    Gardiner, Richard K., ‘The Vienna Convention Rules on Treaty Interpretation’, in Duncan B. Hollis, The Oxford Guide to Treaties, 2012, pp. 475–506.
    Treaty Interpretation, 2nd edition, Oxford University Press, 2015.
    Reuter, Paul, Introduction to the Law of Treaties, 2nd edition, Graduate Institute of International Studies, Geneva, 1995.
    Sinclair, Ian, The Vienna Convention on the Law of Treaties, 2nd edition, Manchester University Press, 1984.
    Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009.

    1 - For a continuous update, see the websites of the ICRC (http://www.icrc.org/ihl) and the depositary (www.fdfa.admin.ch/depositary).
    2 - Geneva Convention I: commentary by Jean S. Pictet, with contributions by Frédéric Siordet, Claude Pilloud, Jean-Pierre Schoenholzer, René-Jean Wilhelm and Oscar M. Uhler, published in 1952 (French original and English). Geneva Convention II: commentary by Jean S. Pictet, with the co-operation of Rear-Admiral M.W. Mouton (Netherlands), with contributions by Frédéric Siordet, Claude Pilloud, Jean-Pierre Schoenholzer, René-Jean Wilhelm and Oscar M. Uhler, published in 1959 in French and in 1960 in English. Geneva Convention III: commentary by Jean de Preux, with contributions by Frédéric Siordet, Claude Pilloud, Henri Coursier, René-Jean Wilhelm, Oscar M. Uhler and Jean-Pierre Schoenholzer, published in 1958 in French and in 1960 in English. Geneva Convention IV: commentary by Oscar M. Uhler and Henri Coursier, with Frédéric Siordet, Claude Pilloud, Roger Boppe, René-Jean Wilhelm and Jean-Pierre Schoenholzer, published in 1956 in French and in 1958 in English.
    3 - Additional Protocol I (and Annex I): commentary by Claude Pilloud, Jean de Preux, Yves Sandoz, Bruno Zimmermann, Philippe Eberlin, Hans-Peter Gasser and Claude F. Wenger. Additional Protocol II: commentary by Sylvie-S. Junod. Both commentaries were prepared under the editorship of Yves Sandoz, Christophe Swinarski and Bruno Zimmermann and published in French in 1986 and in English in 1987.
    4 - See e.g. W. Hays Parks, ‘Pictet’s Commentaries’, 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. 495–497.
    5 - Jean-François Quéguiner, ‘Commentary on the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III)’, International Review of the Red Cross, Vol. 89, No. 865, March 2007, pp. 175–207.
    6 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(2)(g). On the ICRC’s role in the interpretation of international humanitarian law, see also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 914–922.
    7 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(2)(c).
    8 - For details concerning the persons involved in the research, drafting and review, see the Acknowledgements.
    9 - What follows is only a summary of the issues raised by these articles. For a more detailed commentary on these provisions, see Aust, pp. 205–226; Gardiner, 2015; Sinclair, pp. 114–158; and the sections on Articles 31–32 in Corten/Klein, Dörr/Schmalenbach, and Villiger.
    10 - See e.g. ICJ, Kasikili/Sedudu Island case, Judgment, 1999, paras 18–20; Application of the Genocide Convention case, Merits, Judgment, 2007, para. 160; ILC, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 1.1 (provisionally adopted), Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/68/10, 2013, p. 11.
    11 - See ILC, Yearbook of the International Law Commission, Vol. II, 1966, p. 220, paras 9–10; ILC, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 1.5 provisionally adopted, Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/68/10, 2013, p. 11; Gardiner, 2015, pp. 31–32; and Aust, p. 208.
    12 - Vienna Convention on the Law of Treaties (1969), Article 26. For more details, see Gardiner, 2015, pp. 167–181.
    13 - First Convention, Article 47; Second Convention, Article 48; Third Convention, Article 127; and Fourth Convention, Article 144.
    14 - Third Convention, Article 41. Similarly, the Fourth Convention needs to be posted inside camps for civilian internees; see Fourth Convention, Article 99.
    15 - See First Convention, Article 55, and Vienna Convention on the Law of Treaties (1969), Article 33.
    16 - For further details, see the commentary on Article 55, section B.2.
    17 - See the commentaries on Articles 23 and 28 of the First Convention.
    18 - See Aust, p. 211; Gardiner, 2015, p. 86; Sinclair, p. 129; and Villiger, p. 430.
    19 - See Marginal Headings (or Titles of Articles) Established by the Swiss Federal Political Department, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, Part III.
    20 - Reuter, p. 186, para. 283; see also Buffard/Zemanek, pp. 331–332.
    21 - Buffard/Zemanek, pp. 331–332.
    22 - Villiger, p. 427 with further references; Gardiner, 2015, pp. 212–213 (‘a composite item’); David S. Jonas and Thomas N. Saunders, ‘The Object and Purpose of a Treaty: Three Interpretive Methods’, Vanderbilt Journal of Transnational Law, Vol. 43, No. 3, May 2010, pp. 565–609, at 578 (‘a unitary concept’).
    23 - ICJ, Reservations to the Genocide Convention case, Advisory Opinion, 1951, para. 23.
    24 - Alain Pellet, ‘Article 19. Formulation of reservations’, in Corten/Klein, pp. 405–488, at 450–451.
    25 - David S. Jonas and Thomas N. Saunders, ‘The Object and Purpose of a Treaty: Three Interpretive Methods’, Vanderbilt Journal of Transnational Law, Vol. 43, No. 3, May 2010, pp. 565–609, at 576.
    26 - ILC, Yearbook of the International Law Commission, Vol. II, 1966, p. 219, para. 6. See also ICJ, Territorial Dispute case (Libyan Arab Jamahiriya v. Chad), Judgment, 1994, para. 51: in international law, effet utile is regarded as ‘one of the fundamental principles of interpretation of treaties’.
    27 - ICJ, Morocco case, Judgment, 1952, p. 196; see also Villiger, p. 427, para. 11; Mark E. Villiger, Customary International Law and Treaties, Martinus Nijhoff Publishers, Dordrecht, 1985, pp. 321–322; Gardiner, 2015, p. 214 (‘sometimes there seems no particularity in distinguishing between the object and purpose of the treaty and the purpose of particular provisions’); Sinclair, p. 130; and Fitzmaurice, p. 228. But see Jan Klabbers, ‘Some Problems Regarding the Object and Purpose of Treaties’, Finnish Yearbook of International Law, Vol. 8, 1997, pp. 138–160, at 152–153 (potential problems of admitting arguments based on object and purpose of individual provisions).
    28 - ICJ, Morocco case, Judgment, 1952, p. 196; see also Fitzmaurice, p. 228, and Sinclair, pp. 125–126.
    29 - For more details, see the commentary on the Preamble.
    30 - See Gardiner, 2015, p. 213; Fitzmaurice, p. 228; and Buffard/Zemanek, p. 332.
    31 - ILC, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 1.4 provisionally adopted, Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/68/10, 2013, p. 11.
    32 - Ibid. Conclusion 4.3 provisionally adopted, p. 12.
    33 - ILC, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 8.3 provisionally adopted, Report of the International Law Commission on the work of its sixty-fifth session, UN Doc. A/69/10, 2014, p. 169.
    34 - It should be noted that treaties, other than the Conventions themselves, that are referred to in the Commentaries are used on the understanding that they apply only if all the conditions relating to their geographic, temporal and personal scope of application are fulfilled. In addition, they apply only to States that have ratified or acceded to them, unless and to the extent they reflect customary international law.
    35 - ICJ, Namibia case, Advisory Opinion, 1971, para. 53. For further details, see also ILC, Conclusions of the work of the Study Group on Fragmentation of International Law, Report of the International Law Commission on the work of its fifty-eight session, UN Doc. A/61/10, 2006, para. 251, subparagraphs (17)–(23), pp. 413–415.
    36 - For details, see the commentary on common Article 3, section G.3.
    37 - See e.g. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, para. 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, para. 106; and Armed Activities on the Territory of the Congo, Judgment, 2005, paras 215–220. See also ICRC, Handbook on international rules governing military operations, ICRC, Geneva, December 2013, p. 67; Cordula Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, Israel Law Review, Vol. 40, No. 2, Summer 2007, pp. 310–355; and Cordula Droege, ‘Elective affinities? Human rights and humanitarian law’, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 501–548.
    38 - For details, see the commentaries on Article 3, section G.2 and Article 50, section D.2.a.
    39 - See European Convention on Human Rights (1983), Protocol 6; Second Optional Protocol to the International Covenant on Civil and Political Rights (1989); and Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990).
    40 - See e.g. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, paras 79 and 82; Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 40; and Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 31.
    41 - See the commentary on Article 12, section D.2.
    42 - See e.g. Corten/Klein; Dörr/Schmalenbach; Villiger; Jiří Toman, The Protection of Cultural Property in the Event of Armed Conflict: Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, Dartmouth/UNESCO, Aldershot/Paris, 1996; Stuart Maslen (ed.), Commentaries on Arms Control Treaties, Volume I: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, Oxford University Press, 2004; Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd edition, N.P. Engel, Kehl am Rhein, 2005; Manfred Nowak and Elizabeth McArthur (eds), The United Nations Convention Against Torture: A Commentary, Oxford University Press, 2008; Jiří Toman, Commentary on the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Publishing, Paris, 2009; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010; Gro Nystuen and Stuart Casey-Maslen (eds), The Convention on Cluster Munitions: A Commentary, Oxford University Press, 2010; Dörschner and Felix Machts (eds.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, Oxford University Press, 2011; Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary, 3rd edition, Oxford University Press, 2012; Andreas Zimmermann, Jonas Christian J. Tams, Lars Berster and Björn Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary, Beck/Hart/Nomos, Oxford, 2014; Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015; and Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, 3rd edition, Beck/Hart/Nomos, Oxford, 2016.
    43 - Jan Wouters and Sten Verhoeven, ‘Desuetudo’, version of November 2008, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL, paras 10–11. For example, the current application of Article 38 of the First Convention on the use of the distinctive emblems may be considered a rule that has been modified by a subsequent rule of customary international law, as well as by the tacit agreement of the High Contracting Parties. For further details, see the commentary on Article 38.
    44 - 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 internationale 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.
    45 - 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.
    46 - See e.g. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, paras 79 and 82.
    47 - See common Article 7 (Article 8 in the Fourth Convention). See also Abi-Saab, pp. 267–268.
    48 - 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 Abi-Saab, p. 270.
    49 - 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.
    50 - 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.
    51 - 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.
    52 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 35, 98 and 326.
    53 - See ICJ, Military and Paramilitary Activities in and against Nicaragua, Advisory Opinion, 1986, paras 218–219.
    54 - 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/.
    55 - See e.g. ICRC, Health Care in Danger: Violent Incidents Affecting the Delivery of Health Care, January 2012 to December 2014, ICRC, Geneva, 2015.