ICRC databases on international humanitarian law
  • Print page
Commentary of 1960 

    According to the present provision, the Convention replaces the Tenth Hague Convention of 1907 in relations between the High Contracting Parties. That means that the Convention has mandatory force only between the States party to it, and the Hague Convention continues to bind in their mutual relations States which are party to it without being party to the present Convention. In the same way, the Hague Convention will govern the mutual relations between States when one is party only to it, the other being party to both the Hague Convention and the present Convention.
    In accordance with Article 25 of the Tenth Hague Convention of 1907, this is also the case as regards the Convention of July 29, 1899, for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. The fact that the present Article mentions only the Hague Convention of 1907 and not the 1899 Convention in no way implies that the authors intended to abrogate the latter, since the 1907 Convention states expressly that it continues in force.
    Three successive Conventions thus co-exist in international law.
    What would be the position with regard to two States, one of which was party to the 1949 Convention only and the other to the 1907 Convention only?
    [p.278] If the Conventions were not of such vital importance for mankind, one might consider that in strict law the two States would not be bound in their mutual relations by either Convention. But the very nature of the Conventions of Geneva and The Hague, which deal with respect for the human person, demands a less academic interpretation.
    The 1949 Convention contains the substance of the 1907 instrument, of which it is really a revised and corrected version, just as in the case of the Geneva Conventions which were drawn up successively on the occasion of each revision. The more recent version is not necessarily, however, the more liberal in all respects. It is not necessarily the older version which contains the more limited provisions and must therefore be taken as applicable.
    The following general principle is therefore justifiable: the States should consider themselves bound, at any rate morally, by everything which is common to the two Conventions, beginning with the great humanitarian principles which they contain. An effort should be made to settle by special agreement matters dealt with differently in the two Conventions; in the absence of such an agreement, the Parties would apply the provisions which entailed the least extensive obligations.
    Above all, however, it is to be hoped that a State involved in armed conflict will hasten to accede to the 1949 text if it has not already done so. Such a case is actually becoming less and less probable as the 1949 Conventions approach universality.