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The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit1

  • Frits Kalshoven

The four Geneva Conventions of 1949 for the protection of war victims open with an unusual provision: it is the undertaking of the contracting states ‘to respect and to ensure respect for [the Conventions] in all circumstances’. Why reaffirm that contracting states are bound to ‘respect’ their treaty obligations? Does ‘all circumstances’ add anything special to this fundamental rule of the law of treaties? And what about ‘ensure respect’: should that not be regarded as implicit in ‘respect’, in the sense of a positive counterpart to the negative duty not to violate the terms of the Conventions?

I readily admit that common Article 1 was not the first provision of the Conventions to capture my attention: there was, after all, so much to discover in these impressive structures that Article 1 could easily be passed over as an innocuous sort of opening phrase. Two things have changed this. One was the insistence of the International Committee of the Red Cross (ICRC) that a State Party to the Conventions is not only itself bound to comply with its obligations under these instruments but is under a legal obligation to make sure that other States Parties do likewise. The more this thesis of the ICRC was forced upon us, the less likely it seemed to me that this could indeed be an international legal obligation upon contracting states.

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3. Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field, 1949, 75 UNTS (1950) 31 (Roberts, A. and Guelff, R., Documents on the Laws of War 2nd edn. (Oxford, Clarendon Press 1989) p. 169; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 1949, 75 UNTS (1950) 85 (Roberts and Guelff, p. 193); Geneva Convention III Relative to the Treatment of Prisoners of War, 1949, 75 UNTS (1950) 135 (Roberts and Guelff, p. 215); and Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS (1950) 287 (Roberts and Guelff, p. 271).

4. The quotations concerning the case (which has not been published) are from documents in the author's possession. It appeared in the first instance before the Executive Office for Immigration Review, Harlingen, Texas, upon an Order to Show Cause, filed by the Immigration and Naturalization Service, on 29 March 1984, in reference to the respondent. The Immigration Judge rendered his decision on 25 July 1985 (Case No. A26 949 415: In the Matter of Jesus del Carmen Medina, in Deportation Proceedings), ordering moreover that it be certified to the Board of Immigration Appeals because this case involves unusually complex and novel questions of law. The Board handed down its Decision on 7 October 1988 (Case No. A26 949 415 — Harlingen, In re. Jesus del Carmen Medina, in Deportation Proceedings: Certification).

5. Common Article 3 provides in relevant part that in the event of an internal armed conflict, ‘each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’ (etc.)

6. Convention Relating to the Status of Refugees, 1951, 189 UNTS (1951) 137; Protocol Relating to the Status of Refugees, 1967, 606 UNTS (1967) 267.

7. According to available information, Ms Medina was never deported, having become a beneficiary of a new US policy granting ‘temporary protected status’ to persons who had fled a war zone.

The Geneva Conventions are referred to in another case which was decided in September 1988 by the US Court of Appeals, Fourth Circuit. The case concerned a Salvadoran draft evader, who petitioned for review of a final order of deportation, issued by the Board of Immigration Appeals in December 1987, denying his motion to reopen deportation proceedings to allow a hearing on his request for political asylum in the US. Holding that petitioner had made out a prima facie case, and that he merited political asylum on the basis of his sincere refusal to participate in acts of atrocity committed by the Salvadoran Armed Forces and the likelihood that he would be punished for his refusal to serve with those forces, the Court ‘reversed and remanded’ the Board's decision. The petitioner had also claimed that he should not be forced to return to a country which was regularly violating the Geneva Conventions. The Court mentions this claim in a footnote, stating that it was unclear whether it could be maintained. It specifies that El Salvador was a party to the Conventions as well as to Additional Protocol II of 1977, the United States only to the Conventions. Since the latter ‘protect those individuals who are endangered by international armed conflicts, while Protocol II protects potential victims of non-international conflicts’, petitioner's request amounted to a demand ‘that we apply the norms of the Conventions which the United States have signed to a situation to which they do not explicitly extend’. This was a remarkable statement, given that the Court had earlier quoted extensively from common Article 3. The claim played no part in the decision to reverse and remand. M.A. A26851062 v. US Immigration and Naturalization Service, 29 September 1988. 858 F.2d 210 (4th Cir. 1988).

8. For an exposé that goes back farther into history, the reader is referred to the comments on common Article 1 in the Commentary to the Conventions, published under the general editorship of Jean S. Pictet; see infra section 3.

9. Schindler, D. and Toman, J., The Laws of Armed Conflicts, A Collection of Conventions, Resolutions and Other Documents, 3rd edn. (Dordrecht, Martinus Nijhoff 1988) pp. 325, 339.

10. Art. 34. The earlier Conventions were the Geneva Convention for the Amelioration of the Condition of the Wounded in Annies in the Field of 22 August 1864 (the original Convention at the root of the entire structure of Geneva law) and the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field of 6 July 1906. For texts of the earlier Conventions, see Schindler and Toman, op. cit. n. 9, at pp. 279, 301. Also available online at the ICRC's IHL treaty database:

11. Chapter 2 of the Regulations. For the text of the 1899 and 1907 versions of the Hague Convention and Regulations, see Schindler and Toman, op. cit. n. 9, at p. 63.

12. Art. 2 of the Convention, Schindler and Toman, op. cit. n. 9, at p. 71. The version of 1907 contains a simpler text, to the effect that the provisions of the Convention and Regulations ‘do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention’.

13. Art. 24 of the 1906 Convention. It should be noted that the original Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, of 1864, had not contained any provision on the issue of its applicability.

14. In practice, contracting states to the various conventions containing a si omnes clause had not given it effect in the course of the First World War.

15. Actes de la Conférence diplomatique de Genève de 1929. See, inter alia, the records of the 14th session of the First Commission, 16 July 1929, pp. 321–322, where the ICRC proposal is read out: Les dispositions de la présente Convention ne sont obligatoires que pour les Puissances contractantes en cas de guerre entre deux ou plusieurs d'entre elles.

Elles ne cessent de l'être qu'au cas où l'un de ces Etats se trouve avoir à combatlre les forces armées d'un ou autre Etat qui ne serait pas partie à cette Convention et à l'égard de cet Etat seulement.

16. Ibid., p. 322: Les dispositions de la présente Convention doivent être respectées par les Hautes Parties Contractantes en toutes circonstances, sauf le cas où une Puissance belligérante ne serait pas partie à cette dernière. En ce cas, les dispositions de la Convention ne seront pas applicables entre ce belligérant et ses adversaires, mais devront néanmoins être respectées dans les rapports entre les belligérants parties à la Convention.

17. La Convention de Genève du 27 juillet 1929, Commentaire par Paul Des Gouttes (1930), p. 186: On a voulu signaler ici que la Convention doit s'appliquer en toutes circonstances — ce que ne disait pas celle de 1906 — en temps de paix comme en temps de guerre, quant aux dispositions qui se trouvent appliquables dans l'un comme dans l'autre cas. On a insisté sur son caractère d'obligation générale.

18. It should be noted that this argument does not find support in any language in the Convention, which in fact is completely silent on its scope ratione temporis.

19. Supra n. 15, pp. 329–330: remark by Mr Chi Hung Hsiao (China), reply by Mr Warner (UK), comment by the Chairman of the Commission.

20. Ibid., pp. 621–622. The rapporteur of the Second Commission had less to say about the identical Article 82 in the Prisoners of War Convention (pp. 636–637). Obviously, the argument about the significance of that Article is the same as about Article 25 of the Sick and Wounded Convention.

21. Ibid. The author continued: ‘Mais il serait hautement souhaitable que les partis dressés l'un contre l'autre dans une guerre civile se souvinssent des dispositions humaines de la Convention afin de les observer entre eux.’ See also infra subsection 3.14.

22. For an excerpt of the resolution (No. XIV) see International Committee of the Red Cross, International Federation of Red Cross and Red Crescent Societies, Handbook of the Red Cross and Red Crescent Movement, 13th edn., (Geneva, ICRC 1994) [hereinafter, Handbook] p. 784.

23. First or Sick and Wounded Convention; Second or Maritime Warfare Convention; Third or Prisoners of War Convention; Fourth or Civilians Convention. While Conventions I–III were revisions of earlier Conventions of 1906 and 1929, the Convention on the protection of civilians was entirely new. For full references, see supra n. 3.

24. Article II: ‘Les dispositions de la présente Convention doivent être respectées en toute circonstance.’ The note, dated 11 April 1947, is found in a dossier entitled ‘Notices ayant servi à la Revision des Conventions remises au classement telles-quelles en Sept. ‘47 par Cl. Pilloud.’

25. Note dated 18 August 1947 by Cl. Pilloud, Head of the Legal Division: ‘Documentation à l'intention des participants à la séance du 25 août 1947 à 14h.30.’

26. The Conference requested the ICRC and national societies ‘to endeavour to obtain’:

a) the application of the humanitarian principles which were formulated in the Geneva Conventions of 1929 and the Xth Hague Convention of 1907, especially as regards the treatment of the wounded, the sick, and prisoners of war, and the safety of medical personnel and medical stores;

b) humane treatment for all political prisoners, their exchange and, so far as possible, their release;

c) respect of the life and liberty of non-combatants;

d) facilities for the transmission of news of a personal nature and for the reunion of families;

e) effective measures for the protection of children,… (etc.)

For text of Res. XIV, see Handbook, op. cit. n. 22, p. 642.

27. A great deal has been written about the drafting history of common Article 3. I may refer the reader to the survey by Abi-Saab, Rosemary in her book Droit humanitaire et conflits internes: Origines et èvolution de la réglementation internationale (Paris, Pedone 1986); on the various preparatory meetings, pp. 43–47.

As regards reciprocity, it is of interest to compare the above discussion with the situation of 1929. In that year, the rule that in the event of an international armed conflict the Conventions would ‘be binding as between all the belligerents who are parties thereto’ but not in the relations between those parties and a non-party belligerent, had been introduced as a device to get rid of the earlier si omnes clause in law of war treaties and, thus, as a step forward.

28. Note by Pilloud dated 18 August 1947, supra n. 25, p. 4.

La formule adoptée par les experts au sujet de la guerre civile ne semble pas donner satisfaction, car elle implique le principe de la réciprocité que la Division juridique voudrait, dans toute la mesure du possible, éliminer. C'est pourquoi la Division juridique désirerait mettre sur pied une disposition qui prévoit que les Gouvernements, en signant la Convention, s'engagent non seulement en tant que Gouvernements, mais engagent aussi l'ensemble de la population dont ils sont les représentants. On pourrait alors en déduire que toutes parties de la population d'un Etat qui entreprend une action en guerre civile est liée ipso facto par la Convention.

Ce serait en somme une formule analogue à celle de la Charte des Nations unies qui commence par les mots ‘Nous les peuples des Nations unies…’

En tout état de cause, la Division juridique préférerait une formule analogue à celle qui avait été prévue par la Conférence préliminaire des Croix-Rouges de l'an dernier disant que la Convention sera appliquée par les parties au conflit aussi longtemps que l'une d'elles n'aura pas déclaré publiquement qu'elle ne peut pas s'y soumettre.

29. Report on meeting of representatives of the Bureau and the Legal Division of the ICRC,25–27 August 1947; the meeting adopted for internal armed conflict a draft Article 1(3), phrased as follows: ‘En car de conflit armé à l'intérieur d'un Etat et de ses dépendances, les dispositions de la Convention seront également appliquées par les parties au conflit.’

30. Note of Jean S. Pictet to the members of the Bureau and the Juridical Commission of the ICRC. The only novelty in the note was a suggestion to add an Article 1 providing that the wounded and sick shall be respected and protected ‘in all circumstances’.

31. Pilloud appears to have used the phrase in a sense diametrically opposite to its meaning in that preamble, which is formulated (though probably not seriously intended) as an endeavour of the peoples to bind their governments.

32. Projet de Conventions revisées ou nouvelles protégeant les victimes de la guerre. The ICRC archives do not contain any internal document explaining this sudden appearance. Most regrettable is the absence of Pilloud's private papers concerning this period; it is assumed that he disposed of them. In the recollection of René-Jean Wilhelm, at the time Pilloud's colleague in the legal office, the preparation of the common articles was entirely left to Frederic Siordet, adviser to the ICRC, and Pilloud; letter to the author dated 19 August 1992.

33. Ibid., p. 4: Art. 1. In the original French: ‘Les Hautes Parties contractantes s'engagent, au nom de leur peuple, à respecter et à faire respecter la présente Convention en toutes circonstances.’

34. Ibid., p. 5.

35.Le CICR juge nécessaire de faire ressortir que le système de protection prévu par la présente Convention exige, pour être efficace, que les Hautes Parties contractantes ne se bornent pas à appliquer elles-mêmes la Convention, mais qu'elles fassent également tout ce qui est en leur pouvoir pour que les principes humanitaires qui sont à la base de cette Convention soient universellement appliqués.’

36. ‘… le CICR a eu l'intention d'associer les peuples eux-mêmes au respect des principes qui sont à la base de la présente Convention et à l'exécution des obligations qui en découlent. Le texte aura, en outre, l'avantage de faciliter l'application de la Convention, notamment en temps de guerre civile.’

It seems somewhat surprising that, in contrast with Pilloud's note, the commentary links the reference to civil war to the third element with its remark about the ‘peoples’, rather than to the preceding paragraph about ensuring respect. In comparison, the later product cannot be said to have brought greater clarity to the matter at issue.

37. Stenographic record of the Legal Commission, pp. 33–36: 4th session, 27 August 1948.

38. Professor Castberg's statement, rendered in French, reads in part: ‘Je ne présente pas d'autre formule, mais je tiens à préciser que nous marquons noire accord quant à l'intention que les dispositions seront obligatoires pour les individus, surtout en cas de guerre civile.’ (my emphasis)

39. While Mr Starr offered no argument for this act of surgery, it may simply have stemmed from fear of something new that had not figured in earlier texts. The record only mentions the fact that he spoke on behalf of the sub-commission that examined the draft Prisoners of War Convention. Of this body, no records have been found. Mr Starr, charged with international affairs in the American Red Cross, subsequently took part in the Diplomatic Conference of 1949 as a member of the American delegation.

40. Draft Conventions ‘as approved by the XVIIth International Red Cross Conference’ and submitted to the Diplomatic Conference of 1949. Final Record of the Diplomatic Conference of 1949 (hereinafter Final Record), Vol. 1, pp. 47, 61, 73, 113.

41. Ibid.

42. Final Record, Vol. I, p. 113. A final paragraph specified that: ‘These rules, which constitute the basis of universal human law, shall be respected without prejudice to the special stipulations provided for in the present Convention in favour of protected persons’.

As I was told by René-Jean Wilhelm, who was already with the ICRC at the time of the Stockholm Conference, one of the French delegates, Mr Albert Lamarle, at the time of the Second World War had been involved with the resistance in France. That experience and his ensuing interest in human rights may well have prompted his proposing a text which clearly reflected the ideas on human rights that were being developed at the time.

43. Regulations Respecting the Laws and Customs of War on Land, Section III: Military Authority over the Territory of the Hostile State. The Regulations are an annex to the Convention (IV) Respecting the Laws and Customs of War on Land, signed at The Hague on 18 October 1907. For text, see Schindler and Toman, op. cit. n. 9, p. 69.

44. Attempts undertaken by the ICRC before the War to make governments accept more adequate rules for such situations reaped no result.

45. Text in a note dated February 1949 and entitled Remarks and Proposals submitted by the International Committee of the Red Cross — Documents for the consideration of Governments invited by the Swiss Federal Council to attend the Diplomatic Conference of Geneva (April 21, 1949). I have not been able to obtain a copy of the note in English. The first two paragraphs are reprinted in the Commentary to each Convention (e.g., Commentary I, p. 21). In the (original) French version, the third paragraph, different for each Convention, reads as follows (p. 8):

Les Hautes Parties contractantes affirment solennellement leur volonté de se conformer à ce principe. Elles entendent en régler l'pplication aux … par la présente Convention, et s'engagent à respecter et à faire respecter celle-ci en toutes circonstances.

46. Ibid.

47. Ibid. Regrettably, the ‘Remarks and Proposals’ are not included in the Final Record: neither in Vol. I as an annex to the Stockholm draft Conventions, nor in Vol. III, with the amendments submitted during the Conference.

48. The official title of the Conference was ‘Diplomatic Conference convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims and Held at Geneva from 21 April to 12 August 1949.’ For the list of delegates, experts and observers, see Final Record, Vo. I, pp. 158 et seq.

49. Final Record, Vol. 1, pp. 181, at 185: Rules 15–17.

50. Final Record, Vol. IIA, pp. 21–24: 4th plenary meeting, 25 April 1949: Procedure for the Discussion of the Articles Common to all four Conventions. The Joint Committee met under the chairmanship of Professor Maurice Bourquin (Belgium), Chairman of Committee II.

51. Final Record, Vol. IIB, p. 16: 3rd meeting of the Joint Committee, 29 April 1949.

52. Ibid., p. 26: 7th meeting of the Joint Committee, 17 May 1949.

53. Final Record, Vol. IIA, p. 620: statement of the Chairman in opening the 2nd meeting of Committee III: ‘It was proposed to submit the Preamble to the Joint Committee for consideration, and several members of Committee III had suggested the advisability of awaiting the results of the discussion by the Joint Committee before embarking on any discussion in Committee III.’ In a similar vein: Mr Abercrombie (UK) at the 4th meeting of Committee I, 28 April 1949; Final Record, Vol. IIA, p. 51.

54. Final Record, Vol. IIB, p. 9: meeting of 26 April 1949. As the Chairman said: ‘Up to the present only in one Convention is proposed a Preamble, namely in the Convention for the Protection of Civilians. But it had been suggested — and the suggestion had met with considerable approval — that all the Conventions should have a Preamble. But Preambles, like the prefaces of books, although placed at the beginning of the Conventions, were written after them.’

55. Both Pictet and Wilhelm confirmed this preference more than once in the course of the proceedings. See, e.g., Final Record, Vol. IIA, pp. 112–114 (Pictet, speaking under the item Consideration of Preambles for the Sick and Wounded and Maritime Warfare Conventions, ‘said that the I.C.R.C. had really intended that the text suggested in “Remarks and Proposals” should form the first Article of the Conventions rather than a Preamble to them'); Ibid., p. 322 (Wilhelm, speaking to the subject of a preamble to the Prisoners of War Convention, concluded that ‘The I.C.R.C. suggested that the Preamble should figure as Article 1, because experience had shown that Conventions were very often reproduced without their preambles.’)

56. Final Record, Vol. IIA, p. 33: 6th Plen. Meeting, 30 May 1949, statement of the President.

57. Final Record, Vol. IIB, p. 26: 7th meeting, 17 May 1949.

58. Ibid.

59. Final Record, Vol. IIB, p. 53: 9th meeting, 25 May 1949.

60. Mr Yingling added that ‘Article 1 did not imply the obligation to enact penal sanctions’. This remark may have been inspired by the difficult discussions with the Soviet bloc about penal sanctions for war crimes.

It is of interest to note that at a different time and place and in respect of a different convention, the identical words were interpreted in the opposite sense. In a case involving Art. 1(1) of the American Convention of Human Rights, the Inter-American Court of Human Rights interpreted the obligation of the states parties to ‘ensure’ the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction, as implying their duty to ‘prevent, investigate and punish any violation’ of those rights. I/A Court H.R., Velásquez Rodríguez case, Judgment of 29 July 1988, Series C No. 4, para. 166.

61. This delegate (whom we met earlier in the context of the Stockholm Conference; supra n. 42) in effect ‘considered that the term “to ensure respect” had the same purpose as the expression “in the name of their peoples”, which had been deleted without a modification’.

62. final Record, Vol. IIB, p. 53: 9th meeting, 25 May 1949.

63. Upon the report of the Special Committee (1st report, Final Record, Vol. IIB, p. 107), the Joint Committee in its 8th meeting unanimously adopted ‘the new Article 1, reproducing the text of Stockholm’ (29 June 1949, Ibid., p. 27). Since the Article had passed the Joint Committee without discussion, its report to the Plenary Assembly does not provide any comment on the Article (Ibid., p. 128). The 18th Plenary meeting on 28 July 1949 adopted common Articles 1 and 2 at a stroke (Ibid., p. 325).

64. Final Record, Vol. IIB, p. 79: 24th meeting, 15 June 1949; my italics.

65. Ibid.

66. Ibid., p. 84: 28th meeting, 24 June 1949; my italics.

67. It is of interest to note that when the Special Committee began its work, one of the proposals on draft Art. 2(4), submitted by France, suggested ‘to restrict the application of the provisions of the Convention, within the scope of the fourth paragraph to Article 2, to the case when the adverse party possessed an organized military force, an authority responsible for its acts acting within a determinate territory and having the means of respecting and ensuring respect for the Convention’. (my italics). Ibid., p. 121: 7th Report of the Special Committee, 16 July 1949.

68. Final Record, Vol. IIA, pp. 691–694: 23rd meeting, 25 May 1949; pp. 694–697: 24th meeting, 27 May 1949.

69. Final Record, Vol. Ill, p. 98: Annex 191; the full text reads as follows:

The High Contracting Parties confirm their unanimous resolution to make every attempt and to do all that lies in their power to protect present and future generations from the scourge of war. They feel, however, that it is indispensable in cases where, notwithstanding their wishes and endeavours, a conflict might arise, to take all measures which may contribute to the prevention of a recurrence of the atrocities committed during recent world wars and to the protection of civilian populations from the tragic consequences of the conflict.

Their desire is inspired by the eternal principles of law, which are the foundation and the safeguard of civilization.

The High Contracting Parties solemnly condemn the acts of barbarism which have revolted the conscience of mankind, and intend to prevent their recurrence. To this effect, they desire to ensure the respect of human personality and dignity by putting beyond reach of attack those rights and liberties which are the essence of its existence. Whatever their nationality, race, sex, political opinion, philosophy or religion, human beings shall have every guarantee of protection for their physical integrity and their spiritual independence. Those who suffer, the wounded, sick, infirm, as well as prisoners or internees, must receive aid and proper care. All are entitled to protection and assistance.

Preliminary Provisions

The following acts shall be prohibited and shall remain prohibited at any time or in any place whatsoever:

(a) human beings shall not be subjected to attempts against their life or injury to their physical integrity. The following shall be considered grave crimes: murder, torture, mutilation, including scientific experiments, as well as any other means for the extermination of the civilian population;

(b) the taking of hostages;

(c) deportations, either individual or collective;

(d) attacks against the dignity of persons, in particular humiliating or degrading treatment or discriminatory treatment based upon differences of race, colour, religion, beliefs, sex, birth or social status;

(e) the pronouncement of sentences and penal sanctions carried out without preliminary trial by a regularly constituted tribunal giving all the necessary legal guarantees recognized by civilized nations as indispensable;

(f) collective penalties as well as any measures of intimidation or terrorism; the destruction of any real and personal property belonging to private individuals or to the State, as well as to social and cooperative organizations when this is not rendered absolutely necessary by military operations.

70. Final Record, Vol. IIA, pp. 777–782: 45th meeting, 9 July 1949.

71. Supra n. 55. Pictet defined ‘the great fundamental principle underlying the Geneva Conventions’ as ‘respect for those who suffered, and for those who, being disarmed, were no longer friends or foes, but simply defenceless beings’.

72. Final Record, Vol. IIA, pp. 112–114: 24th meeting, 31 May 1949.

73. Ibid., p. 323: 20th meeting, 16 June 1949; Committee II referred the proposal to its Drafting Committee No. 2.

74. Ibid., p. 164: 34th meeting of Committee I, 30 June 1949: report of the Working Party.

75. The text read as follows: ‘This principle commands the alleviation of sufferings occasioned by war and requires that all those who are not directly engaged in the hostilities as combatants and all those who, because of sickness, wounds, capture or any other circumstances, have been withdrawn from hostilities, shall be duly respected and protected and that those among them who are suffering shall be aided and cared for regardless of race, nationality, religion, political opinion or other circumstance.’

76. It read: ‘Respect for the personality and dignity of the human being is a universal principle which is binding even without contractual undertakings. Religions proclaim its divine origin and all people consider it a fundamental of civilization.’

77. Final Record, Vol. IIA, pp. 165–168: 35th meeting, 1 July 1949. In the course of the debate, Pictet once again explained the position and concerns of the ICRC. Its object ‘had been to place at the beginning of the Conventions, so that it would be easily and clearly grasped by [the] general public, the guiding principle underlying the Conventions and inspiring all their provisions, namely that of respect for the human person. It was a corollary of that respect that those who were not taking part in hostilities and those who had been placed hors de combat, should be protected, whether friends or foes, without any distinction based on nationality, race, religion or political opinion.

That principle was the corner stone of the whole institution of the Red Cross and the Geneva Conventions. It was thanks to it that the Red Cross had become universal and had been able to accomplish its work. (…) The International Committee of the Red Cross, therefore, ventured to recommend that the Preamble to be adopted should be an element of union, emboding [sic] at least the one principle on which all could agree — that of respect for suffering humanity. The purpose of the Conference was to agree upon the provisions in the humanitarian conventions, and not upon the philosophical or metaphysical motives which inspired them and which might be different for different nations. He hoped that if the proposal to omit the Preamble was adopted, it would at least be possible to retain the basic principles set out in the second paragraph.’

78. Col. Crawford (Canada) suggested an amendment to the second paragraph, to replace ‘requires that all those’ by ‘requires that members of the armed forces’. The amendment was adopted by 18 votes to 2, with 8 abstentions.

79. Final Record, Vol. IIA, p. 366: 27th meeting, 7 July 1949. The report of Drafting Committee No. 2 showed that it had taken the text adopted by Committee I as the basis for its discussion. An USSR amendment aimed to remove the reference to religion and to include an express statement about the will to punish; a Swiss amendment amounted to an almost literal reproduction of the text adopted by Committee I.

80. Ibid., pp. 393–394: 31th meeting, 12 July 1949; pp. 395–398: 32nd meeting, 15 July 1949.

81. Ibid., pp. 397–398. The final vote reflects the feeling in Committee II that a preamble should be unanimously adopted or rejected. On the question of the utility of a debate with such an uncertain outcome, Mr Stroehlin (Switzerland) had noted that ‘[e]ven if it was decided not to have a preamble, it would be useful, from the point of view of the future, to have the views expressed on that subject recorded in the Final Record of the Conference.’ Ibid., p. 393.

82. Final Record, Vol. IIB, p. 145: meeting of 18 July 1949, proposal of Thailand.

83. Final Record, Vol. IIA, pp. 181–182: 39th meeting, 18 July 1949, i.e., the same day as the recommendation by the Coordination Committee.

84. Final Record, Vol. IIB, p. 522: 36th Plenary Meeting, 11 August 1949.

85. After the Conference, Frédéric Siordet published an article entitled ‘Les Conventions de Genève et la guerre civile’ (Revue Internationale de la Croix-Rouge (1950) pp. 104122, 187212). While his main focus is on the drafting history of Art. 3, he also discusses the difficulty involved in holding rebels bound to respect rules of international law they never adhered to, and and the efforts made by the ICRC to overcome this difficulty. In that context he mentions the proposal for Art 1: ‘Les Hautes Parties Contractantes s'engagent, au nom de leur peuple, à respecter et faire respecter la présente Convention en toute circonstance.’ (pp. 120–121 (his italics)). He fails to mention that the Stockholm Conference had deleted the ‘name of the people’). Further on, he reiterates how the ICRC first believed that to bind a rebel party to an international convention might be impossible; and then points to the words in Art 3: ‘Chacune des Parties au conflit sera tenue …,’ a phrase which as he notes caused very little discussion, the only concern of governments being to prevent the rebel party acquiring a legal status.

86. Commentary, Foreword, para. 2.

87. Ibid.

88. Text at note 17; after stating that the drafters of Art. 25 had wished to emphasize that the Convention applied both in war and peace, Des Gouttes added the comment that: ‘On a insisté sur son caractère d'obligation générale.’

89. Commentary I, p. 25.

90. Ibid., pp. 18–19; footnote omitted.

91. In support of the contention in the text, I refer to a letter Mr René-Jean Wilhelm wrote to me on 19 August 1992. Mentioning that neither Mr Siordet nor Mr Pilloud (who within the ICRC had been responsible for the general provisions) was a specialist in international law, he writes: ‘Il me semble que si de vrais ‘publicistes’ avaient participé à la rédaction du projet d'article 1, ils n'auraient sans doute pas fait figurer dans le même membre de phrase une obligation (I) disons classique, à savoir l'obligation d'un Etat partie de prendre tant les mesures législatives, administratives, etc. internes qu'implique pour cet Etat, en vertu du droit international général, le fait de devenir el d'être partie à une Convention […], et une obligation (Il) d'une toute autre nature, une obligation qui est alors un “novum”, à savoir de faire en sorte que les autres Etats parties respectent les Conventions, obligation qui serait aussi celle d'Etats non impliqués dans le conflit.’ He goes on to suggest that interpretation II was devised only after the 1949 Conference, in the course of the writing of the Commentary. This is precisely my contention too.

92. In later years, the argument against the equality of belligerents would be used by or on behalf of those involved in wars of national liberation. Their contention that the colonial Powers were aggressors and therefore the peoples fighting for self-determination were entitled to disregard any constraints of humanitarian law, met the same counter-argument that this went against the very core of humanity as the basis of that body of law.

93. Commentary IV (English version published in 1958), pp. 15–17.

94. Commentary III (English version published in 1960), pp. 17–18.

95. Commentary II (English version published in 1960), pp. 24–26.

96. When I got to know Claude Pilloud in the early 1970s, he was as firmly dedicated as ever to the cause of humanitarian law. At the same time, he was only too well aware of the tremendous difficulties attending its enforcement.

97. Schindler and Toman, op. cit n. 9, p. 259; Handbook, op. cit. n. 22, at p. 773.

98. Veuthey, Michel, Guérilla et droit humanitaire (Geneva, Institut Henry-Dunant 1976) pp. 245 et seq.

99. Suter, K.D., An International Law of Guerrilla Warfare (New York, St. Martin's press 1984). Chapter 2, ‘Creating the issue: the 1968 United Nations Human Rights Conference and Non Governmental Organizations,’ provides detailed information about Sean Mac Bride's authorship of the resolution.

100. The Nobel symposium on ‘International Protection of Human Rights', Oslo, September 1967; Suter, Ibid., pp. 26, 27.

101. Suter, op. cit. n. 99, pp. 27–28.

102. A/CONF.32/C.2/L.45.

103. A/CONF.32/C.2/L.45/Rev.1; sponsors: Czechoslovakia, India, Jamaica, Uganda, United Arab Republic.

104. A/CONF.32/C.2/SR.13.

105. The phrase, ‘a more complete code of the laws of war’, is found at the outset of the soolled Martens clause, a preambular paragraph in the 1907 Convention which reads as follows: ‘Until a more complete code of the laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from die usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.’

106. Res. XXIII on ‘Human Rights in Armed Conflicts’; A/CONF.32/41, Final Act p.18.

107. Protocol I Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS (1979) 3 (Roberts and Guelff, op. cit. n. 3, p. 387); Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS (1979) 609 (Roberts and Guelff, op. cit. n. 3, p. 447).

108. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, with annexed Protocols on Non-Detectable Fragments (Protocol I), Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) and Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), adopted 10 October 1980; 1342 UNTS (1980) 137 (Roberts and Guelff, op. cit. n. 3, p. 471).

109. Its Official Records (hereinafter: Records), in 16 volumes, were published by the Swiss Federal Political Department in 1978. More readily accessible sources to the same material are Levie, Howard S., Protection of War Victims: Protocol I to the 1949 Geneva Conventions, Vols. I–IV (Dobbs Ferry, NY, Oceana Publ. 19791981) with Supplement (Dobbs Ferry NY, Oceana Publ. 1985); and, by the same author, The Law of Non-International Armed Conflict, Protocol II to the 1949 Geneva Conventions (Dordrecht, Nijhoff 1987).

110. Records, Vol. I Part III, pp. 3 et seq.

111. Explaining this omission, Antoine Martin said that most of the experts the ICRC had consulted had seen no need to reaffirm the general principles common to the Geneva Conventions, or common Article 1 in particular. Meeting of Committee I, 15 March 1974 (CDDH/SR.6), para. 28. On the preparatory phase and in particular the two sessions of the Conference of Government Experts (1971, 1972), see Kalshoven, F., ‘Reaffirmation and development of international humanitarian law applicable in armed conflicts: the Conference of Government Experts, 24 May–12 June 1971’, 2 NYIL (1971) pp. 6890, and Kalshoven, F., ‘Reaffirmation and development of international humanitarian law applicable in armed conflicts: the Conference of Government Experts (second session), 3 May–2 June 1972’, 3 NYIL (1972) pp. 1861. On the first session of the Diplomatic Conference, see Kalshoven, F., ‘Reaffirmation and development of international humanitarian law applicable in armed conflicts: the first session of the diplomatic conference, Geneva, 20 February–29 March 1974’, 5 NYIL (1974) pp. 334.

112. ‘The present Protocol, which supplements the Geneva Conventions of August 12, 1949, for the Protection of War Victims, shall apply in the situations referred to in Article 2 common to these Conventions.’

113. One, CDDH/I/5, sponsored by Algeria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, the Soviet Union and Tanzania, proposed to include ‘armed conflicts where peoples fight against colonial and alien domination and against racist regimes’ among the international armed conflicts. The other, CDDH/I/11, sponsored by Algeria, Australia, Cameroon, Egypt, Ivory Coast, Kuwait, Libya, Nigeria, Norway, Pakistan, Sudan, Syria, Democratic Yemen, Yugoslavia and Zaire, sought the same result with respect to ‘armed struggles waged by peoples in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and defined by the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations’. Variations on the same theme were subsequently presented in rapid succession by various groups of delegations, ultimately resulting in a merger of the two main ideas.

114. CDDH/I/12 and Corr.l and Add.l, 8 March 1974, sponsors: Argentina, Austria, Belgium, the Federal Republic of Germany, Italy, the Netherlands, Pakistan, and the United Kingdom.

115. Meeting of Committee I, 11 March 1974 (CDDH/I/SR.3), para. 11: Mr De Breucker (Belgium): ‘Paragraph 1 of amendment CDDH/I/12 and Add.l had been taken from the Geneva Conventions'; para. 31: Mr Cristescu (Romania) ‘considered that paragraph 1 of proposed amendment CDDH/I/12 and Add.l was acceptable (…)’. Meeting of Committee I, 15 March 1974 (CDDH/I/SR.6), para. 24: Mr Obradović ‘appreciated the value of paragraphs 1 and 3 of amendment CDDH/I/12 and Add.l and Corr 1’ (…).

116. Meeting of Committee I, 12 March 1974 (CDDH/I/SR.4), para. 26.

117. Ibid., para. 35.

118. Text quoted in section 3.1.4, supra.

119. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, English version, p. xiii.

120. Text at n. 87 supra.

121. Supra n. 119.

122. Editors' note, p. xxvi.

123. Ibid., p. xxv.

124. Apart from the Conference of Government Experts, referred to supra in n. 111, there had also been various private meetings and discussions with Red Cross experts.

125. Supra, n. 119, p. xxxi.

126. Ibid., p. 34: para. 36.

127. Ibid., p. 35: para. 37.

128. Interestingly, the footnote after the referral to the earlier Commentary does not refer to one or other of its versions but to the paper by Condorelli, Luigi and de Chazournes, Laurence Boisson, ‘Quelques remarques à propos de l'obligation de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circumstances’, in Swinarski, C.., ed., Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l'honneur de Jean Pictet (Geneva, ICRC, The Hague, Martinus Nijhoff Publishers 1984) pp. 1735; see also infra text at n. 150.

129. Op. cit n. 119, paras. 39, 40.

130. Ibid., p. 41. Article 80 prescribes ‘all necessary measures for the execution of [the] obligations under the Conventions and this Protocol’, and enjoins ‘The High Contracting Parties and the Parties to the conflict’ to ‘give orders and instructions to ensure observance of the Conventions and this Protocol, and [to] supervise their execution’.

131. ‘In the event of a Power failing to fulfil its obligations, each of the other Contracting Parties, (neutral, allied or enemy) should endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the States which are parties to it should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that it is respected universally.’ Ibid., para. 42.

132. See also supra section 3.2.

133. Commentary, p. 36, para. 43: ‘This interpretation was not contested and it is on this interpretation that the ICRC has taken a number of steps, confidentially or publicly, individually or generally, to encourage States, even those not Party to a conflict, to use their influence or offer their cooperation to ensure respect for humanitarian law. Leaving aside any bilateral or multilateral measures taken by States, which rarely become known, it should be pointed out that the organized international community has frequently and emphatically manifested its concern that humanitarian law should be respected.’

134. Ibid., paras. 44, 45. Arts. 7 and 89, referred to in the quoted text, read as follows: ‘Art. 7 — The depositary of this Protocol shall convene a meeting of the High Contracting Parties, at the request of one or more of the said Parties and upon the approval of the majority of the said Parties, to consider general problems concerning the application of the Conventions and of the Protocol.

Art. 89 — In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.’

135. Commentary, pp. 36–37, para. 46.

136. Ibid.

137. Ibid., p. 37–38, paras. 49–51.

138. The final paragraph of the comments on Art 1 elaborates the point ‘The prohibition against invoking reciprocity in order to shirk the obligations of humanitarian law is absolute. This applies irrespective of the violation allegedly committed by the adversary. It does not allow the suspension of the application of the law either in part or as a whole, even if this is aimed at obtaining reparations from the adversary or a return to a respect of the law from him. This was confirmed quite unambiguously in Article 60 of the Vienna Convention on the Law of Treaties, which lays down under what conditions a material breach of a treaty can permit its suspension or termination; that article specifically exempts treaties of a humanitarian character.’

139. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. (1986) p. 14.

140. Ibid., as quoted in the Judgment, para. 42; p. 31.

141. Ibid., para. 218, p. 114. The Court referred to its Judgment in Corfu Channel, Merits, ICJ Rep. (1949) p. 2.

142. Supra n. 139 para. 220.

143. Ibid.

144. Pp. 181, at 184. Ago entertained ‘serious reservations with regard to the seeming facility with which the Court — while expressly denying that all the customary rules are identical in content to the rules in the treaties (para. 175) — has nevertheless concluded in respect of certain key matters that there is a virtual identity of content as between customary international law and the law enshrined in certain major multilateral treaties concluded on a universal or regional plane. [Thus, he was] most reluctant to be persuaded that any broad identity of content exists between the Geneva Conventions and certain ‘fundamental general principles of humanitarian law’, which, according to the Court, were pre-existent in customary law, to which the Conventions “merely give expression” (para. 220) or of which they are at most “in some respects a development” (para. 218).’

145. Pp. 528, at 537. Jennings continued: ‘Even the Court's view that the [rules of] common Article 3, laying down a “minimum yardstick” (para. 218) for armed conflicts of a non-international character, are applicable as “elementary considerations of humanity”, is not a matter free from difficulty.’

146. An openly critical analysis of the Court's reasoning on the matter of responsibility of the United States for the acts of the contras is found in the Judgement of 15 July 1999 of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, in the Tadić case, Part IV, paras. 99–145. Case No. IT–94–1–A, 15 July 1999.

147. In a discussion I had several years ago with representatives of the Palestinian human rights organization, Al Haq, they showed great surprise at my criticism of the ICRC position, and were not really prepared to take it seriously.

148. Supra n. 128.

149. Ibid., pp. 26–29.

150. Ibid., p. 29 (my translation). The full text of the paragraph reads as follows: ‘On peut conclure que l'impossibilité de rassembler un nombre élevé d'éléments constitutifs de la pratique Internationale ne doit pas être mal évaluée. Les quelques éléments fort suggestifs qu ‘on vient de mettre en lumière, joints à l'absence de contestations concemant la légitimité (et non pas le bienfondé) des démarches prises par des Etats tiers à un conflit auprès des Parties à celui-ci en vue du respect du droit humanitaire, constituent une base suffisante en l'espèce pour affirmer l'existence d'un principe de droit international général comportant l'obligation pour tous les Etats de ‘faire respecter’ le droit humanitaire.

Ce qui a été soutenu précédemment (…) à propos de l'obligation de “respecter” doit alors, à la lumière de ces remarques, être réitéré mutatis mutandis pour ce qui est de l'obligation de “faire respecte”. Le principe de droit international général imposant une telle obligation influence de façon marquée le jeu des normes auxquelles elle se réfere. Cette obligation pèse, en effet, sur tous les Etats pour ce qui est du respect du droit humanitaire coutumier par tout autre Etat. Concemant le respect des normes humanitaires de caractère strictement conventionnel, l'obligation en question pèse sur l'ensemble des Etats Parlies à la convention à l'égard de tout Etat Partie lui aussi à la même convention.

151. Ibid., p. 29. In the words of the authors: ‘Par le jeu de l'article 1 (…) l'obligation de respecter le droit humanitaire général rend donc chaque Etat débiteur du respect de ce droit à l'égard de tous les autres. Ceci implique bien évidemment que tout Etat a un intérêt juridique, indépendemmant de sa participation à un conflit déterminé, à exiger que les autres Etats s'acquittent de leurs obligations humanitaires. Autrement dit, ces obligations semblent appartenir à la catégorie des obligations erga omnes auxquelles se réfère en des termes généraux le célèbre obiter dictum de l'arrêt de la Cour internationale de justice concernant l'affaire de la Barcelona Traction.’

152. Ibid., p. 32: ‘L'article 1 des Conventions de Genève de 1949 et du Protocole additionnel I de 1977 confere aux obligations humanitaires des caractéristiques spécifiques qui en influencent profondément le fonctionnement. Ces caractéristiques trouvent leur source dans la nature particulière qu'imprime aux normes de droit humanitaire le principe grâce auquel les obligations qui en découlent sont inconditionnelles et lew respect intéresse la communauté internationale dans son ensemble.’

153. Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon Press 1989).

154. Pp. 28, 30, referring to the Judgment of the ICJ in the North Sea Continental Shelf Cases, ICJ Rep. (1969) at p. 43.

155. Ibid., pp. 30–31.

156. The reference is to the Decision of the Board in the Medina case, supra n. 4.

157. The Geneva Conventions as Customary Law,’ in 81 AJIL (1987) pp. 348, at 354355.

158. The Board refers here to the ICRC Commentary on the Fourth Convention, which happens to be the only one of the four Commentaries to state bluntly that ‘[t]he words ‘in all circumstances’ which appear in [this Article] do not, of course, cover the case of civil war, as the rules to be followed in such conflicts are laid down by the Convention itself, in Article 3.’ See supra section 3.2.

1 © F. Kalshoven, 1999.

2. Professor emeritus of international humanitarian law, University of Leiden; President, International Fact-Finding Commission; member of the Board of Recommendation, Yearbook of International Humanitarian Law. The author wishes to thank Jean Pictet and René-Jean Wilhelm, lawyers with the International Committee of the Red Cross through World War II and for many years thereafter, for their information, advice and encouragement. He also thanks Ms. Catherine Brown, of the US Department of State, for having involved him in the case of Jesus del Carmen Medina and for her support. And he dedicates this study, which originated as a book-project but transmuted into the present article, to the memory of Claude Pilloud, idealistic realist for long years in the service of the International Committee of the Red Cross, who may have been guilty of ‘creative interpretation’ but doubtless was morally right.

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Yearbook of International Humanitarian Law
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