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X Civilians in the Hands of a Party to the Conflict
Chapter Contents
10.1 Introduction 10.2 National-Level GC Implementation Measures
10.3 Protected Person Status 10.4 Derogation for Security Reasons
10.5 Humane Treatment and Other Basic Protections for Protected
Persons 10.6 Measures of Control and Security 10.7 General
Treatment of Protected Persons in a Belligerents Home Territory
10.8 Expulsion From Areas Within a Belligerents Home Territory and
Departure
and Transfers of Protected Persons From a Belligerents Home
Territory 10.9 Internment 10.10 Segregation of Internees 10.11
Safety, Hygiene, and Living Conditions in Places of Internment
10.12 Canteens for Internees 10.13 Food, Water, Tobacco, and
Clothing for Internees 10.14 Medical Attention for Internees 10.15
Religious Exercise by Internees 10.16 Intellectual, Physical, and
Recreational Activities 10.17 Internee Labor 10.18 Internees
Articles of Personal Use 10.19 Financial Resources of Internees
10.20 Administration of Places of Internment and Discipline 10.21
Internee Petitions, Complaints, and Reports About Conditions of
Internment 10.22 Internee Committees 10.23 Internee
Correspondence and Relief Shipments 10.24 Private Legal Matters of
Internees 10.25 Internees and Visits of Family and Friends 10.26
Internee Escapes 10.27 General Provisions Applicable to Both
Judicial and Disciplinary Sanctions
Regarding Internees 10.28 Disciplinary Proceedings and
Punishment 10.29 Judicial Proceedings Regarding Protected Persons
in Occupied Territory or
Internees in a Belligerents Home Territory 10.30 Transfers of
Internees From the Place of Internment 10.31 National Accounting
for Protected Persons in Its Power 10.32 Role of the Protecting
Power in the GC 10.33 Access to Internees by Protecting Powers,
ICRC, and Other Relief
Organizations 10.34 Death of Internees 10.35 Release, Return,
Repatriation of Internees After the Close of Hostilities
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10.1 INTRODUCTION
This Chapter addresses protection of civilians in the hands of a
party to an international armed conflict. In particular, the
Chapter addresses civilians who are interned in the home territory
of a belligerent or occupied territory.
Rules for the protection of civilians in the conduct of
hostilities are addressed in Chapter V. Rules for the protection of
civilians that are specific to occupied territory are addressed in
Chapter XI, while rules that apply to both civilians in occupied
territory and civilians in a belligerents home territory are
addressed in this Chapter.
Interpretation and Application of the GC. The GC underlies most
of the 10.1.1international law rules applicable to the United
States for the treatment of civilians in the hands of a party to
the conflict.
As with the GPW, the GCs provisions should be interpreted in
light of the principles that underlie the treatment of civilians
and, in particular, in light of the goal of advancing the humane
treatment of protected persons.1 The subsequent practice of States
in applying the GC could also assist in interpreting its provisions
because States decades of experience in applying the GC may be very
helpful in understanding its requirements.2
10.1.1.1 GC Notes on Terminology. In the GC, protected persons
does not simply refer to persons who are civilians in the sense of
not being members of the military; rather, protected persons refers
to persons who are protected by the GC in connection with
international armed conflict or occupation.3
In the GC, internees refers to protected persons who are
interned.
In the GC, the Detaining Power refers to the State that holds
the internee.
In the GC, the Protecting Power refers to a neutral State that
helps implement the GC.4
10.1.1.2 Special Agreements Under the GC. Under the GC, States
may conclude a variety of special agreements during international
armed conflict to facilitate the protection of civilians. The GC
specifically provides for agreements:
to entrust to an effective and impartial organization the duties
of the Protecting Powers;5
to establish and recognize civilian hospital zones and
localities;6
1 Refer to 9.1.2 (Interpretation and Application of the GPW). 2
Refer to 1.7.4 (Use of Certain Subsequent Practice in Treaty
Interpretation). 3 Refer to 10.3.1 (Protected Person Notes on
Terminology). 4 Refer to 18.15.1.1 (Protecting Power Under the 1949
Geneva Conventions). 5 Refer to 18.15.2.1 (Agreement for an
Impartial and Effective Organization to Perform Protecting Power
Duties Under the 1949 Geneva Conventions).
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to establish and determine the conditions of neutralized
zones;7
for the removal of wounded, sick, infirm, and aged persons,
children, and maternity cases, from besieged or encircled areas or
for the passage of medical and religious personnel on their way to
such areas;8
to settle practical details regarding the departure of protected
persons from a belligerents home territory;9
to establish the conditions for the sending of individual
parcels and collective relief shipments;10
for the release, repatriation, the return to places of residence
or the accommodation in a neutral country of certain classes of
internees, in particular children, pregnant women and mothers with
infants and young children, wounded and sick, and internees who
have been detained for a long time;11 and
on the procedure, or to select an umpire who will decide the
procedure, to be followed for an inquiry concerning any alleged
violation of the GC.12
In addition to the agreements expressly provided for in Articles
11, 14, 15, 17, 36, 108, 109, 132, 133, and 149 of the GC, Parties
to the GC may conclude other special agreements for all matters
concerning which they may deem it suitable to make separate
provision.13 No special agreement shall adversely affect the
situation of protected persons, as defined by the GC, nor restrict
the rights that it confers upon them.14
Protected persons shall continue to have the benefit of such
agreements as long as the GC is applicable to them, except where
express provisions to the contrary are contained in these
6 Refer to 5.14.3.1 (Civilian Hospital and Safety Zones and
Localities). 7 Refer to 5.14.3.3 (Neutralized Zones). 8 Refer to
5.19.2 (Removal and Passage of Certain Personnel Vulnerable
Civilians, Diplomatic and Consular Personnel, the Wounded and Sick,
and Medical Personnel). 9 Refer to 10.8.2 (Departures of Protected
Persons From a Belligerents Home Territory). 10 Refer to 10.23.3.3
(Special Agreements Concerning Relief Shipments). 11 Refer to
10.9.6 (Agreements for the Release, Return, or Accommodation in a
Neutral Country of Certain Classes of Internees). 12 Refer to
18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions). 13 GC
art. 7 (In addition to the agreements expressly provided for in
Articles 11, 14, 15, 17, 36, 108, 109, 132, 133 and 149, the High
Contracting Parties may conclude other special agreements for all
matters concerning which they may deem it suitable to make separate
provision.). 14 GC art. 7 (No special agreement shall adversely
affect the situation of protected persons, as defined by the
present Convention, nor restrict the rights which it confers upon
them.).
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agreements or in subsequent agreements, or where more favorable
measures have been taken with regard to them by one or other of the
parties to the conflict.15
DoD Policies and Regulations for the Treatment of Internees. DoD
policies and 10.1.2regulations regarding the treatment of internees
provide authoritative guidance for DoD personnel and fill an
important role in implementing the complex requirements of the
GC.16 Practitioners are advised to consult all applicable policies
and regulations, as these, in many cases, exceed the requirements
of the GC, U.S. statutes, and Executive Orders.
10.2 NATIONAL-LEVEL GC IMPLEMENTATION MEASURES
The GC requires a number of measures at the national level to
facilitate protection for protected persons.
Appointment or Establishment of Entities. The GC provides for
certain bodies or 10.2.1entities to be appointed or
established.
10.2.1.1 Appointment of a Protecting Power. The GC contemplates
that a Protecting Power has been appointed to assist in the
implementation of the GC.17 A Protecting Power has a variety of
roles under the GC related to the protection of protected
persons.18
10.2.1.2 Establishment of a National Protected Person
Information Bureau. A National Protected Person Information Bureau
shall be established by each of the parties to the conflict.19
10.2.1.3 Establishment of a Central Information Agency for
Protected Persons. A Central Information Agency for protected
persons shall be established in a neutral country.20
Notification of Certain Laws or Policies Between Belligerents.
Parties to a 10.2.2conflict must notify opposing belligerents or
the Protecting Power of certain matters relating to protected
persons.
10.2.2.1 Location and Marking of Places of Internment Camps. The
Detaining Power shall provide the Powers concerned useful
information regarding the geographic location of places of
internment, and agreements on their markings may be reached.21
15 GC art. 7 (Protected persons shall continue to have the
benefit of such agreements as long as the Convention is applicable
to them, except where express provisions to the contrary are
contained in the aforesaid or in subsequent agreements, or where
more favourable measures have been taken with regard to them by one
or other of the Parties to the conflict.). 16 Refer to 18.7
(Instructions, Regulations, and Procedures to Implement and Enforce
the Law of War). 17 Refer to 18.15.1.1 (Protecting Power Under the
1949 Geneva Conventions). 18 Refer to 10.32 (Role of the Protecting
Power in the GC). 19 Refer to 10.31.2 (National Protected Person
Information Bureau). 20 Refer to 10.31.3 (Central Information
Agency for Protected Persons).
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10.2.2.2 Notification of Measures Taken for Implementing GC
Provisions That Address Relations Between Internees and the
Exterior. Immediately upon interning protected persons, the
Detaining Power shall inform them, the Power to which they owe
allegiance, and their Protecting Power of the measures taken for
executing the provisions of Chapter VIII of Section IV of the GC,
which address the relations between internees and the exterior
(e.g., correspondence, relief shipments, family visits).22 The
Detaining Power shall likewise inform the Parties concerned of any
subsequent modifications of such measures.23
10.3 PROTECTED PERSON STATUS
In general, the GC uses the concept of protected person to
define the individuals who are entitled to receive its protections.
Principally, protected persons include persons of enemy nationality
living in the territory of a belligerent State and the inhabitants
of occupied territories.24 Even if persons are not protected
persons under the GC, other rules may be applicable to them. For
example, certain baseline rules apply to the treatment of all
detainees, including those who are not protected persons or
POWs.25
Protected Person Notes on Terminology. Protected persons is used
in the GC as 10.3.1a term to refer to persons who are protected by
the GC in connection with international armed conflict or
occupation.
Protected persons is often understood as a term that is specific
to the GC. In a few places, however, the GPW, the GWS, and the
GWS-Sea also refer to protected persons or persons protected.26 In
such cases, protected persons and persons protected refer to
persons protected by that respective convention, as opposed to
protected persons for purposes of the GC.
21 Refer to 10.11.1.2 (Sharing Information on the Location of
Places of Internment); 10.11.1.3 (Marking of Internment Camps). 22
GC art. 105 (Immediately upon interning protected persons, the
Detaining Powers shall inform them, the Power to which they owe
allegiance and their Protecting Power of the measures taken for
executing the provisions of the present Chapter.). 23 GC art. 105
(The Detaining Powers shall likewise inform the Parties concerned
of any subsequent modifications of such measures.). 24 GC
COMMENTARY 45 (When work was begun on the preparation of the texts,
it became clearas early as the time of the Tokyo Draftthat there
were two main classes of civilian to whom protection against
arbitrary action on the part of the enemy was essential in time of
waron the one hand, persons of enemy nationality living in the
territory of a belligerent State, and on the other, the inhabitants
of occupied territories. The idea that the Convention should cover
these two categories was accepted from the first and has never
really been disputed. Any discussions which have taken place on the
subject have been concerned with points of detail which we shall
consider later. This Article [4 of the GC] is, in a sense, the key
to the Convention; for it defines the people to whom it refers.).
25 Refer to 8.1.1 (Overview of Detention Rules in This Manual and
the Scope of Chapter VIII). 26 See, e.g., GPW art. 11 (In cases
where they deem it advisable in the interest of protected persons,
particularly in cases of disagreement between the Parties to the
conflict as to the application or interpretation of the provisions
of the present Convention, the Protecting Powers shall lend their
good offices with a view to settling the disagreement.).
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Although the GC addresses the protection of civilians, protected
persons may include certain unprivileged belligerents. Certain
rights and privileges that protected persons who are unprivileged
belligerents receive, however, are subject to derogation for
security reasons.27
Persons Who Receive Protected Person Status Under the GC.
Subject to certain 10.3.2exceptions addressed below, persons
protected by the GC are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or
occupation, in the hands of a party to the conflict or Occupying
Power of which they are not nationals.28
Because the definition of protected person is framed negatively
in terms of persons who are in the hands of a State of which they
are not nationals, the definition of protected person allows for
the possibility that persons without any nationality may be
protected persons.29
10.3.2.1 Find Themselves. The persons must find themselves in
the hands of a party to the conflict or Occupying Power, which
suggests an element of happenstance or coincidence.30 For example,
nationals of a neutral or non-belligerent State who travel to an
occupied State to fight the Occupying Power cannot be said to have
found themselves within that occupied territory within the meaning
of Article 4 of the GC.
10.3.2.2 In Occupied Territory or the Home Territory of a Party
to the Conflict. To be entitled to the protections provided under
the GC for protected persons, a person must be located in either
(1) occupied territory or (2) the home territory of a party to the
conflict.31
27 Refer to 10.4 (Derogation for Security Reasons). 28 GC art. 4
(Persons protected by the Convention are those who, at a given
moment and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a Party to the conflict or
Occupying Power of which they are not nationals.). 29 GC COMMENTARY
47 (It will be observed that owing to its negative form the
definition covers persons without any nationality. The Rapporteur
to Committee III pointed out that it thus complied with the
recommendation made to the Diplomatic Conference by the
representative of the International Refugee Organization. In the
actual course of the discussions, however, certain speakers
observed that the term nationals (ressortissants, in the French
version) did not cover all cases, in particular cases where men and
women had fled from their homeland and no longer considered
themselves, or were no longer considered, to be nationals of that
country. Such cases exist, it is true, but it will be for the Power
in whose hands they are to decide whether the persons concerned
should or should not be regarded as citizens of the country from
which they have fled. The problem presents so many varied aspects
that it was difficult to deal with it fully in the Convention.). 30
Jack L. Goldsmith III, Assistant Attorney General, Protected Person
Status in Occupied Iraq Under the Fourth Geneva Convention, Mar.
18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 51
(Alternatively, the phrase find themselves [in Article 4 of the GC]
can be read more narrowly to suggest an element of happenstance or
coincidence, and to connote a lack of deliberate action relating to
the circumstances that leave the persons in question in the hands
of an occupying power.). 31 See Jack L. Goldsmith III, Assistant
Attorney General, Protected Person Status in Occupied Iraq Under
the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE
OFFICE OF LEGAL COUNSEL 35, 41 (To receive the protections provided
for protected persons, one must be located in either (1) occupied
territory, or (2) the territory of a party to the conflict. This
limitation does not emerge from article 4 itself, but rather from
other provisions in GC.); GC COMMENTARY 46 (Nevertheless,
disregarding points of detail, it will be seen that there are two
main classes of protected person: (1) enemy nationals within the
national territory of each of the Parties to the conflict and (2)
the whole population of occupied territories (excluding nationals
of the Occupying Power). The other distinctions and, exceptions
extend or restrict these limits, but not to any appreciable
extent.).
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The references in the GC that limit the scope of protections for
protected persons to those in the territory of a Party to the
conflict refer to the home territory of the party to the conflict
in whose hands the protected person finds himself or herself.32 For
example, Section II of Part III of the GC, which applies to Aliens
in the Territory of a Party to the Conflict, addresses the
protection of aliens present on the home territory of a party to
the conflict in relation to that State.
10.3.2.3 Not Protected by the GWS, GWS-Sea, or the GPW. Persons
protected by the GWS, the GWS-Sea, or the GPW shall not be
considered as protected persons within the meaning of the GC.33 For
example, persons who receive POW status under the GPW are not
considered as protected persons within the meaning of the GC.34
10.3.2.4 Unprivileged Belligerents Not Per Se Excluded From
Protected Person Status. The fact that a person has engaged in
hostile or belligerent conduct does not per se exclude that person
from protected person status under the GC.35
Certain rights and privileges of the GC that a protected person
who has engaged in such conduct would otherwise receive are,
however, subject to derogation for security reasons.36
32 Jack L. Goldsmith III, Assistant Attorney General, Protected
Person Status in Occupied Iraq Under the Fourth Geneva Convention,
Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41
(The meaning of the phrase territory of a Party to the conflict,
considered in isolation, is not self-evident. At first glance, one
might think that the phrase includes occupied territory, because
the occupied power (to whom the territory belongs) is a party to
the conflict. But in the context of the entire Convention, the
phrase clearly refers to the home territory of the party to the
conflict in whose hands the protected person finds himself. This is
evident from several provisions in GC4.). 33 GC art. 4 (Persons
protected by the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field of
August 12, 1949, or by the Geneva Convention for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea of August 12, 1949, or by the Geneva Convention
relative to the Treatment of Prisoners of War of August 12, 1949,
shall not be considered as protected persons within the meaning of
the present Convention.). 34 Refer to 9.3.2 (Persons Entitled to
POW Status). 35 See Jack L. Goldsmith III, Assistant Attorney
General, Protected Person Status in Occupied Iraq Under the Fourth
Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF
LEGAL COUNSEL 35, 48 (GC4s full titleGeneva Convention Relative to
the Protection of Civilian Persons in Time of War, (emphasis
added)suggests that [t]he main object of the Convention is to
protect a strictly defined category of civilians. 4 Pictet,
Commentary at 10 (emphasis added). Consistent with this title,
article 4(4) of GC expressly excludes lawful combatants who enjoy
POW status from protected person status. These factors, combined
with the fact that unlawful combatants generally receive less
favorable treatment than lawful combatants under the Geneva
Convention system, see, e.g., Memorandum for Alberto R. Gonzales,
Counsel to the President, from Jay S. Bybee, Assistant Attorney
General, Re: Status of Taliban Forces Under Article 4 of the Third
Geneva Convention of 1949 at 1-7 (Feb. 7, 2002) (concluding that
GPW withholds protections from persons who engage in hostilities
but fail to satisfy criteria for lawful combatancy), might lead one
to assume that unlawful combatants are categorically excluded from
protected person status under GC. GCs text, however, contemplates
that persons who find themselves in occupied territory within the
meaning of article 4 may engage in at least some forms of unlawful
belligerency without forfeiting all of the benefits of protected
person status.); 1956 FM 27-10 (Change No. 1 1976) 247b (Subject to
qualifications set forth in paragraph 248 [relating to
derogations], those protected by GC also include all persons who
have engaged in hostile or belligerent conduct but who are not
entitled to treatment as prisoners of war.). 36 Refer to 10.4
(Derogation for Security Reasons).
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Categories of Nationals Specifically Excluded From the
Definition of Protected 10.3.3Person Under the GC. As discussed in
this subsection, the GC specifically excludes certain classes of
persons from the definition of protected person.37
The provisions of Part II of the GC, which address the general
protection of populations against certain consequences of war, are,
however, wider in application, as defined in Article 13 of the
GC.38 These provisions cover the whole of the populations in
conflict without any adverse distinction based, in particular, on
race, nationality, religion, or political opinion, and are intended
to alleviate the sufferings caused by war.39 Thus, persons excluded
by reason of their nationality from the definition of protected
person may nonetheless receive the protections of Part II of the
GC.
10.3.3.1 A States Own Nationals. In general, a States own
nationals who are in its hands are not protected persons under the
GC.40 This exclusion from the definition of protected person in the
GC is consistent with a traditional principle of international
lawthe GC does not interfere in a States relations with its own
nationals.41 However, the GC does limit the arrest, prosecution,
conviction, or deportation of nationals of any Occupying Power who,
before the outbreak of hostilities, have sought refuge in the
territory of the occupied State.42
10.3.3.2 Nationals of a State That Is Not Bound by the GC.
Nationals of a State that is not bound by the GC are not protected
by it.43 This provision of the GC reflects a legal principle
underlying the GC: a State must accept the burdens of the GC in
order to receive its benefits.44
37 Compare 4.4.4 (Nationality and Combatant Status). 38 See GC
art. 4 (The provisions of Part II are, however, wider in
application, as defined in Article 13.). 39 GC art. 13 (The
provisions of Part II cover the whole of the populations of the
countries in conflict, without any adverse distinction based, in
particular, on race, nationality, religion or political opinion,
and are intended to alleviate the sufferings caused by war.). 40 GC
art. 4 (Persons protected by the Convention are those who, at a
given moment and in any manner whatsoever, find themselves, in case
of a conflict or occupation, in the hands of a Party to the
conflict or Occupying Power of which they are not nationals.)
(emphasis added). 41 GC COMMENTARY 46 (The definition has been put
in a negative form; as it is intended to cover anyone who is not a
national of the Party to the conflict or Occupying Power in whose
hands he is. The Convention thus remains faithful to a recognized
principle of international law: it does not interfere in a States
relations with its own nationals. The only exception to this rule
is the second paragraph of Article 70, which refers to nationals of
the Occupying Power who sought refuge in the territory of the
occupied State before the outbreak of hostilities. This is a very
special case, based on the position such people have taken up with
regard to their own country.). 42 Refer to 11.11.7 (Limitation on
Criminal Jurisdiction With Respect to Pre-Occupation Acts). 43 GC
art. 4 (Nationals of a State which is not bound by the Convention
are not protected by it.). 44 Jack L. Goldsmith III, Assistant
Attorney General, Protected Person Status in Occupied Iraq Under
the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE
OFFICE OF LEGAL COUNSEL 35, 54 (The benefits-burdens principle also
finds expression in article 4(2), which provides: Nationals of a
State which is not bound by the Convention are not protected by it.
The ICRCs Official Commentary states that article 4(2)s exception
to the definition of protected person in article 4(1) is a truism
and an unnecessary addition that follows naturally from article
2(1) even in the absence of article 4(2). See 4 Pictet, Commentary
at 48. Whether or not this is true, article 4(2) makes this much
clear: persons in occupied territory, including those who commit
hostile acts there, are not
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10.3.3.3 Nationals of a Neutral State or Co-Belligerent State
While Normal Diplomatic Representation Exists. Nationals of a
neutral State who find themselves in the territory of a belligerent
State, and nationals of a co-belligerent State, shall not be
regarded as protected persons while the State of which they are
nationals has normal diplomatic representation in the State in
whose hands they are.45
These persons were omitted from the GCs definition of protected
person in order to avoid creating complications or inconsistencies
in procedures should both the GC and the law applicable to normal
diplomatic representation apply.46
Nationals of a neutral State in occupied territory, however, are
regarded as protected persons under the GC.47
Commencement and Duration of Protected Person Status. As with
the general 10.3.4application of the GC, protected persons shall
receive their protections from the outset of any conflict or
occupation mentioned in Article 2 of the GC.48 In general, the
application of protected person status also ceases when the GC
ceases to apply.
In the territory of parties to the conflict, the application of
the GC shall cease on the general close of military operations.49
In most cases, the general close of military operations will be the
final end of all fighting between all those concerned.50
protected persons under GC if the State that represents them has
not formally accepted the Conventions burdens.). 45 GC art. 4
(Nationals of a neutral State who find themselves in the territory
of a belligerent State, and nationals of a co-belligerent State,
shall not be regarded as protected persons while the State of which
they are nationals has normal diplomatic representation in the
State in whose hands they are.). 46 See II-A FINAL RECORD OF THE
DIPLOMATIC CONFERENCE OF GENEVA OF 1949 814 (At the first reading
several Delegates argued that the Convention should merely regulate
the relations between a belligerent State and the nationals of an
enemy State, and that it should not include relations between the
State and nationals of a neutral country. Other delegates, however,
argued that stateless persons should be borne in mind and that,
moreover, there might be, in the territory of a belligerent State,
nationals of foreign States who did not benefit by any diplomatic
representation either because their home country had broken off
diplomatic relations with the country where they were or because
they had themselves broken away from their country of origin. Our
Committee gave the most careful consideration to this problem and
the majority recognized the weight of the reasons put forward by
States sheltering a large number of aliens: the superposition of
normal diplomatic representation and of the protection ensured by
the Convention, would lead to complications and would be
indefensible from the point of view of consistency of procedure.).
47 Refer to 15.6.4.1 (Protected Person Status of Neutral Persons in
Occupied Territory). 48 GC art. 6 (The present Convention shall
apply from the outset of any conflict or occupation mentioned in
Article 2.). 49 GC art. 6 (In the territory of Parties to the
conflict, the application of the present Convention shall cease on
the general close of military operations.). 50 GC COMMENTARY 62
(What should be understood by the words general close of military
operations? In the opinion of the Rapporteur of Committee III, the
general close of military operations was when the last shot has
been fired. There are, however, a certain number of other factors
to be taken into account. When the struggle takes place between two
States the date of the close of hostilities is fairly easy to
decide: it will depend either on an armistice, a capitulation or
simply on debellatio. On the other hand, when there are several
States on one or both of
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In the case of occupied territory, the application of the GC
shall cease one year after the general close of military
operations; however, the Occupying Power shall be bound, for the
duration of the occupation, to the extent that such Power exercises
the functions of government in such territory, by the provisions of
the following Articles of the GC: 1 through 12, 27, 29 through 34,
47, 49, 51, 52, 53, 59, 61 through 77, and 143.51
Protected persons whose release, repatriation, or
re-establishment may take place after such dates shall meanwhile
continue to benefit from the protection of the GC.52
Re-establishment refers to protected persons who cannot be
repatriated because, for example, they would be liable to
persecution in their own country or because their homes have been
destroyed.53
State Responsibility for Its Agents Treatment of Protected
Persons. A party to the 10.3.5conflict is responsible for the
treatment accorded to protected persons by its agents, irrespective
of any individual responsibility that may be incurred.54
Non-Renunciation of Rights Secured by the GC. Protected persons
may in no 10.3.6circumstances renounce in part or in entirety the
rights secured to them by the GC or by special agreements, if any,
referred to in Article 7 of the GC.55 A similar provision of the
GPW applies to POWs, and similar provisions of the GWS and GWS-Sea
apply to the wounded, sick, shipwrecked, and military medical and
religious personnel.56
the sides, the question is harder to settle. It must be agreed
that in most cases the general close of military operations will be
the final end of all fighting between all those concerned.). 51
Refer to 11.3.2 (Duration of GC Obligations in the Case of Occupied
Territory). 52 GC art. 6 (Protected persons whose release,
repatriation or re-establishment may take place after such dates
shall meanwhile continue to benefit by the present Convention.). 53
1956 FM 27-10 (Change No. 1 1976) 249b (Reestablishment of
Protected Persons. The word reestablishment, as used in a, refers
to protected persons who cannot be repatriated because, for
example, they would be liable to persecution in their own country,
or because their homes have been destroyed.). See also GC
COMMENTARY 64 (The time when the Convention as a whole ceases to
apply, both in the territory of the Parties to the conflict and in
occupied territory, may quite conceivably come before the protected
persons have been able to resume a normal existence, especially if
they have to be repatriated or assisted to resettle. The word
resettlement is used in regard to protected persons who cannot be
repatriated for one reason or another and are not allowed to settle
permanently in the country where they are living. In such cases
another country must be found where they will be received and
allowed to settle. It was in particular the experience gained at
the end of the Second World War which led to the adoption of this
clause.). 54 GC art. 29 (The Party to the conflict in whose hands
protected persons may be, is responsible for the treatment accorded
to them by its agents, irrespective of any individual
responsibility which may be incurred.). Refer to 18.9.1 (State
Responsibility for Violations of the Law of War by Its Armed
Forces). 55 GC art. 8 (Protected persons may in no circumstances
renounce in part or in entirety the rights secured to them by the
present Convention, and by the special agreements referred to in
the foregoing Article, if such there be.). Refer to 10.1.1.2
(Special Agreements Under the GC). 56 Refer to 7.2.2
(Non-Renunciation of Rights Secured by the GWS or GWS-Sea); 9.3.7
(Non-Renunciation of Rights Secured by the GPW).
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10.4 DEROGATION FOR SECURITY REASONS
Certain rights and privileges of the GC that protected persons
receive are subject to derogation for security reasons.
Derogation in Home Territory. Where, in the territory of a party
to the conflict, 10.4.1the latter is satisfied that an individual
protected person is definitely suspected of or engaged in
activities hostile to the security of the State, such individual
person shall not be entitled to claim such rights and privileges
under the GC as would, if exercised in the favor of such individual
person, be prejudicial to the security of such State.57
Derogation in Occupied Territory. Where in occupied territory an
individual 10.4.2protected person is detained as a spy or saboteur,
or as a person under definite suspicion of activity hostile to the
security of the Occupying Power, such person shall, in those cases
where absolute military security so requires, be regarded as having
forfeited rights of communication under the GC.58 For example, it
may be necessary to keep the fact of detention secret temporarily
so as not to compromise an ongoing operation against a conspiracy
or network of spies.59
The derogation provisions relating to the home territory of a
belligerent are not applicable in occupied territory, even though
the occupied territory may arguably be characterized as the home
territory of the opposing belligerent (i.e., the country being
occupied).
Derogation in Other Areas. To the extent that the rights and
privileges of 10.4.3protected persons afforded by the GC are
applied outside the home territory of a party to the conflict or
outside occupied territory, it would be reasonable for such rights
and privileges similarly to be subject to derogation. Thus, if a
party to the conflict is satisfied that an individual protected
person is definitely suspected of or engaged in activities hostile
to the security of the State in other contexts, such individual
person similarly could be deemed not entitled to claim such rights
and privileges under the GC as would, if exercised in favor of such
individual person, be prejudicial to the security of such
State.60
57 GC art. 5 (Where, in the territory of a Party to the
conflict, the latter is satisfied that an individual protected
person is definitely suspected of or engaged in activities hostile
to the security of the State, such individual person shall not be
entitled to claim such rights and privileges under the present
Convention as would, if exercised in the favour of such individual
person, be prejudicial to the security of such State.). 58 GC art.
5 (Where in occupied territory an individual protected person is
detained as a spy or saboteur, or as a person under definite
suspicion of activity hostile to the security of the Occupying
Power, such person, shall, in those cases where absolute military
security so requires, be regarded as having forfeited rights of
communication under the present Convention.). 59 GC COMMENTARY 53
(There may of course be occasions when it is desirable to keep the
fact of an arrest secret in the hope of capturing a whole
organization or spy ring.). 60 1956 FM 27-10 (Change No. 1 1976)
248b (Where, in territories other than those mentioned in a above,
a Party to the conflict is satisfied that an individual protected
person is definitely suspected of or engaged in activities hostile
to the security of the State, such individual person is similarly
not entitled to claim such rights and privileges under GC as would,
if exercised in favor of such individual person, be prejudicial to
the security of such State.).
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Limits on Derogation. In each case, such persons shall
nevertheless be treated 10.4.4with humanity, and in case of trial,
shall not be deprived of the rights of fair and regular trial
prescribed by the GC.61 No derogation from the provision of humane
treatment and the rights of fair and regular trial is
permitted.62
Such persons shall also be granted the full rights and
privileges of a protected person under the GC at the earliest date
consistent with the security of the State or Occupying Power, as
the case may be.63
10.5 HUMANE TREATMENT AND OTHER BASIC PROTECTIONS FOR PROTECTED
PERSONS
Protected persons are entitled, in all circumstances, to respect
for their persons, their honor, their family rights, their
religious convictions and practices, and their manners and customs.
They shall at all times be humanely treated, and shall be protected
especially against all acts of violence or threats of violence, and
against insults and public curiosity.64
Protection Against Violence or Threats. Protected persons must
at all times be 10.5.1protected, particularly against acts or
threats of violence. For example, the murder of protected persons
is forbidden.
Protected persons should be protected not only against unlawful
acts by the agents of the Detaining Power, but also against
violence from other protected persons, such as during internment
or, in the case of protected persons in a belligerents home
territory, violence from members of the civilian population.
10.5.1.1 Measures of Physical Suffering, Extermination, or Other
Brutality. The Parties to the GC specifically agree that each of
them is prohibited from taking any measure of such a character as
to cause the physical suffering or extermination of protected
persons in their hands.65 This prohibition applies not only to
murder, torture, corporal punishment, mutilation, 61 GC art. 5 (In
each case, such persons shall nevertheless be treated with
humanity, and in case of trial, shall not be deprived of the rights
of fair and regular trial prescribed by the present Convention.).
62 Refer to 10.5 (Humane Treatment and Other Basic Protections for
Protected Persons); 10.29 (Judicial Proceedings Regarding Protected
Persons in Occupied Territory or Internees). 63 GC art. 5 (They
shall also be granted the full rights and privileges of a protected
person under the present Convention at the earliest date consistent
with the security of the State or Occupying Power, as the case may
be.). 64 GC art. 27 (Protected persons are entitled, in all
circumstances, to respect for their persons, their honour, their
family rights, their religious convictions and practices, and their
manners and customs. They shall at all times be humanely treated,
and shall be protected especially against all acts of violence or
threats thereof and against insults and public curiosity.). See
also GC COMMENTARY 199-200 (Article 27, placed at the head of Part
III, occupies a key position among the Articles of the Convention.
It is the basis of the Convention, proclaiming as it does the
principles on which the whole of Geneva Law is founded. It
proclaims the principle of respect for the human person and the
inviolable character of the basic rights of individual men and
women. The statement of these principles in an international
convention gives them the character of legal obligations and marks
an essential stage in the history of international law -- in
particular international humanitarian law, which is concerned above
all with man as man.). 65 GC art. 32 (The High Contracting Parties
specifically agree that each of them is prohibited from taking any
measure of such a character as to cause the physical suffering or
extermination of protected persons in their hands.).
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and medical or scientific experiments not necessitated by the
medical treatment of a protected person, but also to any other
measures of brutality whether applied by civilian or military
agents.66
10.5.1.2 Protection for Women Against Rape or Other Indecent
Assault. Women shall be especially protected against any attack on
their honor, in particular against rape, enforced prostitution, or
any form of indecent assault.67
Although the GC provides special protection for women against
these offenses, all individuals, including children and men, should
also be protected against these offenses. Indecent assault is
generally referred to today as sexual assault.
10.5.1.3 Presence May Not Be Used to Render Places Immune From
Military Operations. The presence of a protected person may not be
used to render certain points or areas immune from military
operations.68
10.5.1.4 Taking of Hostages. The taking of hostages is
prohibited.69
Protection Against Insults and Public Curiosity. Internees must
at all times be 10.5.2protected against insults and public
curiosity. For example, displaying internees in a humiliating
fashion on television or on the internet would be prohibited.70 For
this reason and others, DoD policy has prohibited the taking of
photographs of detainees except for authorized purposes.71
Other Prohibited Measures. 10.5.3
10.5.3.1 No Physical or Moral Coercion. No physical or moral
coercion shall be exercised against protected persons, in
particular to obtain information from them or from third parties.72
For example, protected persons in occupied territory may not be
compelled to provide information about their States military
defenses.73 Other requirements, including the requirements of U.S.
law and policy, would apply to the interrogation of protected
persons.74
66 GC art. 32 (This prohibition applies not only to murder,
torture, corporal punishment, mutilation and medical or scientific
experiments not necessitated by the medical treatment of a
protected person, but also to any other measures of brutality
whether applied by civilian or military agents.). 67 GC art. 27
(Women shall be especially protected against any attack on their
honour, in particular against rape, enforced prostitution, or any
form of indecent assault.). 68 GC art. 28 (The presence of a
protected person may not be used to render certain points or areas
immune from military operations.). 69 GC art. 34 (The taking of
hostages is prohibited.). 70 Compare 9.5.3 (Protection Against
Insults and Public Curiosity). 71 Refer to 8.2.2.3 (DoD Practice of
Generally Prohibiting Taking Photographs Without Authorization). 72
GC art. 31 (No physical or moral coercion shall be exercised
against protected persons, in particular to obtain information from
them or from third parties.). 73 Refer to 11.20.1.4 (Prohibition
Against Forcing Inhabitants to Provide Information About the
Opposing Army or Its Means of Defense). 74 Refer to 10.6.2
(Interrogation of Protected Persons).
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The GCs prohibition against the use of coercion does not apply
to those measures implicitly or explicitly authorized by the GC
(such as the use of force to prevent one internee from harming
another) or other lawful measures that are otherwise consistent
with the GC (such as the use of force to prevent internees from
escaping internment).75
10.5.3.2 Collective Penalties and Measures of Intimidation or
Terrorism. No protected person may be punished for an offense he or
she has not personally committed.76 Collective penalties and
likewise all measures of intimidation or of terrorism are
prohibited.77
Collective penalties are prohibited as a general matter.78
10.5.3.3 Pillage Against Protected Persons. Pillage is
prohibited.79 In addition to this specific prohibition in the GC,
pillage is prohibited as a general matter.80
Reprisals Against Protected Persons and Their Property.
Reprisals against 10.5.4protected persons and their property are
prohibited.81
No Adverse Distinction Based on Race, Religion, or Political
Opinion. Without 10.5.5prejudice to the provisions of the GC
relating to their state of health, age, and sex, all protected
persons shall be treated with the same consideration by the party
to the conflict in whose power they are, without any adverse
distinction based, in particular, on race, religion, or political
opinion.82
75 GC COMMENTARY 220 (The general nature of the new provision
marks an important step forward in international law. For its exact
significance to be appreciated, it should not be considered in
isolation but rather in the light of the other provisions of the
Convention. It will then be seen that there is no question of
absolute prohibition, as might be thought at first sight. The
prohibition only applies in so far as the other provisions of the
Convention do not implicitly or explicitly authorize a resort to
coercion. Thus, Article 31 is subject to the unspoken reservation
that force is permitted whenever it is necessary to use it in the
application of measures taken under the Convention. This power is
embodied and expressed particularly in penal legislation and in the
control and security regulations enacted by the belligerents and to
which protected persons are subject.). 76 GC art. 33 (No protected
person may be punished for an offence he or she has not personally
committed.). 77 GC art. 33 (Collective penalties and likewise all
measures of intimidation or of terrorism are prohibited.). Consider
AP I art. 51(2) (Acts or threats of violence the primary purpose of
which is to spread terror among the civilian population are
prohibited.). 78 Refer to 8.16.2.1 (Individual Penal Responsibility
and No Collective Punishment). 79 GC art. 33 (Pillage is
prohibited.). 80 Refer to 5.17.4 (Pillage Prohibited). 81 Refer to
18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions). 82
GC art. 27 (Without prejudice to the provisions relating to their
state of health, age and sex, all protected persons shall be
treated with the same consideration by the Party to the conflict in
whose power they are, without any adverse distinction based, in
particular, on race, religion or political opinion.).
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Distinctions are permitted, and in some cases required, for
humanitarian reasons.83 For example, the GC provides for special
treatment for children during internment.84
Distinction based on religion, political opinion, or other
similar criteria may also be made so long as it is not adverse and
it is made to advance legitimate interests, such as maintaining
order in a place of internment.85
Facility for Applying to the Protecting Powers and Assistance
Organizations Such 10.5.6as the ICRC. Protected persons shall have
every facility for making application to the Protecting Powers, the
ICRC, the National Red Cross (Red Crescent, Red Lion and Sun)
Society of the country where they may be, as well as to any
organization that might assist them.86
These several organizations shall be granted all facilities for
that purpose by the authorities, within the bounds set by military
or security considerations.87
Apart from the visits of the delegates of the Protecting Powers
and of the ICRC, provided for by Article 143 of the GC, the
Detaining or Occupying Powers shall facilitate as much as possible
visits to protected persons by the representatives of other
organizations whose object is to give spiritual aid or material
relief to such persons.88
83 GC COMMENTARY 426 (All discrimination contrary to Article 27
is prohibited. On the other hand implicit authority is given for
the discrimination permitted by that Article for humanitarian
reasons, in order to favour classes of people who are in particular
need of help (the infirm, the sick, pregnant women, etc.). All this
is an example of the application of the principle of
non-discrimination, as understood in humanitarian law--that is to
say the rule which forbids all differentiation based on race,
political opinions, religion or social class, but at the same time
demands that the different degrees of suffering should be
alleviated by different degrees of assistance.). 84 Refer to 4.20.4
(Protection for Children in the Context of Internment Under the
GC). 85 Compare 9.5.5 (No Adverse Distinction Based on Race,
Nationality, Religion, or Political Belief). 86 GC art. 30
(Protected persons shall have every facility for making application
to the Protecting Powers, the International Committee of the Red
Cross, the National Red Cross (Red Crescent, Red Lion and Sun)
Society of the country where they may be, as well as to any
organization that might assist them.). 87 GC art. 30 (These several
organizations shall be granted all facilities for that purpose by
the authorities, within the bounds set by military or security
considerations.). See also GC COMMENTARY 218 (The Convention
requires the Parties to the conflict to grant all facilities to the
Protecting Powers and relief organizations. That means that it will
not be enough merely to authorize them to carry out their work;
their task must be facilitated and promoted. It is the duty of the
authorities to take all necessary steps to allow approved
organizations to take rapid and effective action wherever they are
asked to give assistance. Among examples of such measures can be
mentioned the provision of facilities for delegates to move about
and carry on correspondence, to have free access to all places
where protected persons are living, transport facilities and
facilities for distributing relief, etc. The obligation to
facilitate this work is limited however by military or security
considerations, as stated in the reservation at the end of the
paragraph. It is essential, however, that the belligerents, who
will be sole judges o [sic] the validity of the reasons put
forward, should show moderation in the use they make of this
reservation and only apply it in cases of real necessity). 88 GC
art. 30 (Apart from the visits of the delegates of the Protecting
Powers and of the International Committee of the Red Cross,
provided for by Article 143, the Detaining or Occupying Powers
shall facilitate as much as possible visits to protected persons by
the representatives of other organizations whose object is to give
spiritual aid or material relief to such persons.).
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10.6 MEASURES OF CONTROL AND SECURITY
The parties to the conflict may take such measures of control
and security in regard to protected persons as may be necessary as
a result of the war.89 For example, in a belligerents home
territory, measures of control are normally taken with respect to,
at the very least, persons known to be active or reserve members of
a hostile army, persons who would be liable to service in the enemy
forces, and persons who it is expected would furnish information or
other aid to a hostile State.90
These measures may include, for example, requiring protected
persons: (1) to register with and report periodically to the police
authorities; (2) to carry identity cards or special papers; (3) to
refrain from carrying weapons; (4) to refrain from changing their
place of residence without permission; (5) to refrain from
accessing certain areas; (6) to have an assigned residence; and (7)
to be interned.91
This section addresses searches, interrogation, and general
rules for measures of control and security applied to protected
persons, which must be applied consistent with humane treatment
requirements.92
General Authority of a Belligerent to Search and Secure
Protected Persons and 10.6.1Their Property. The measures of control
and security that a belligerent may take in regard to protected
persons include searching and securing protected persons and their
property when necessary as a result of the war (e.g., for security
reasons and intelligence purposes).93
10.6.1.1 Searches of Protected Persons. The dignity and honor of
the protected person being searched should be protected to the
greatest degree possible under the circumstances.94 The person
conducting the search should avoid doing or saying anything likely
to be regarded as indecent. In some circumstances, it may be
appropriate for a witness to
89 GC art. 27 (However, the Parties to the conflict may take
such measures of control and security in regard to protected
persons as may be necessary as a result of the war.). 90 1956 FM
27-10 (Change No. 1 1976) 26 (Measures of control are normally
taken with respect to at least persons known to be active or
reserve members of a hostile army, persons who would be liable to
service in the enemy forces, and persons who it is expected would
furnish information or other aid to a hostile State.). 91 GC
COMMENTARY 207 (The various security measures which States might
take are not specified; the Article merely lays down a general
provision. There are a great many measures, ranging from
comparatively mild restrictions such as the duty of registering
with and reporting periodically to the police authorities, the
carrying of identity cards or special papers, or a ban on the
carrying of arms, to harsher provisions such as a prohibition on
any change in place of residence without permission, prohibition of
access to certain areas, restrictions of movement, or even assigned
residence and internment (which, according to Article 41, are the
two most severe measures a belligerent may inflict on protected
persons). A great deal is thus left to the discretion of the
Parties to the conflict as regards the choice of means. What is
essential is that the measures of constraint they adopt should not
affect the fundamental rights of the persons concerned.). 92 Refer
to 10.5 (Humane Treatment and Other Basic Protections for Protected
Persons). 93 Compare 9.6 (Security Measures With Respect to POWs).
94 Refer to 10.5 (Humane Treatment and Other Basic Protections for
Protected Persons).
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observe the search so as to protect both the person being
searched from abuse and the person conducting the search from
unfounded accusations of abuse.
10.6.1.2 Search of Female Protected Persons. It is appropriate
for female protected persons to be searched by female personnel, if
possible. This practice helps reduce the risk of accusations of
indecent behavior.
A woman internee shall not be searched except by a woman.95
10.6.1.3 Securing Protected Persons With Handcuffs and Other
Security Devices. When necessary for security reasons, protected
persons may be secured temporarily with handcuffs, flex cuffs,
blindfolds, or other security devices.96
10.6.1.4 Search of the Property of Protected Persons. When
necessary as a result of the war, items in the possession of
protected persons may be removed and searched, but property should
be returned as soon as possible, absent a legal basis for the
seizure of the property.97
Interrogation of Protected Persons. The law of war does not
prohibit interrogation 10.6.2of protected persons, but specifies
conditions and limitations for conducting interrogation.
10.6.2.1 Humane Treatment During Interrogation. Interrogation
must be carried out in a manner consistent with the requirements
for humane treatment, including the prohibition against acts of
violence or intimidation, and insults.98
No physical or moral coercion shall be exercised against
protected persons to obtain information from them or from third
parties.99
10.6.2.2 Additional U.S. Law and Policy on Interrogation. U.S.
law and policy impose additional requirements on the interrogation
of protected persons.100
No Measures of Control More Severe Than Assigned Residence or
Internment. If 10.6.3the measures of control mentioned in the GC
for protected persons are considered to be inadequate by the Power
imposing them, that Power may not have recourse to any other
measure of control more severe than that of assigned residence or
internment, in accordance with the provisions of Articles 42 and 43
of the GC.101
95 GC art. 97 (A woman internee shall not be searched except by
a woman.). 96 Compare 9.6.2 (Securing POWs With Handcuffs and Other
Security Devices). 97 Refer to 5.17 (Seizure and Destruction of
Enemy Property). 98 Refer to 10.5 (Humane Treatment and Other Basic
Protections for Protected Persons). 99 Refer to 10.5.3.1 (No
Physical or Moral Coercion). 100 Refer to, e.g., 8.4.2 (Additional
U.S. Law and Policy on Interrogation). 101 GC art. 41 (Should the
Power in whose hands protected persons may be consider the measures
of control mentioned in the present Convention to be inadequate, it
may not have recourse to any other measure of control
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Similarly, if the Occupying Power considers it necessary, for
imperative reasons of security, to take safety measures concerning
protected persons, it may, at the most, subject them to assigned
residence or to internment.102
Support to Persons Who Are Assigned Residence Should Be Guided
by 10.6.4Internment Standards. In applying the provisions of the
second paragraph of Article 39 of the GC to the cases of persons
required to leave their usual places of residence by virtue of a
decision placing them in assigned residence elsewhere, the
Detaining Power shall be guided as closely as possible by the
standards of welfare set forth in Part III, Section IV of the
GC.103 In other words, if the State assigns residence to a
protected person in its home territory that results in the
protected person being unable to support himself or herself and his
or her dependents, the State shall provide support to that
protected person and his or her dependents, being guided as closely
as possible by the standards of welfare set forth in Part III,
Section IV of the GC, which provides regulations for the treatment
of internees.
Similarly, in occupied territory, protected persons made subject
to assigned residence and thus required to leave their homes shall
enjoy the full benefit of Article 39 of the GC.104 For example, the
internment standards in the GC should also be a guide for support
to protected persons and their dependents who are subject to
assigned residence in occupied territory.
Refugees Who Do Not Enjoy the Protection of Any Government. In
applying the 10.6.5measures of control mentioned in the GC to
protected persons in its home territory, the Detaining Power shall
not treat as enemy aliens exclusively on the basis of their
nationality de jure of an enemy State, refugees who do not, in
fact, enjoy the protection of any government.105 For example, a
refugee who is not actually protected by his or her government
should not be automatically subject to control measures simply on
the basis of enemy nationality, but may be subject to any other
recognized control measure if there are additional reasons for such
action.106
more severe than that of assigned residence or internment, in
accordance with the provisions of Articles 42 and 43.). 102 GC art.
78 (If the Occupying Power considers it necessary, for imperative
reasons of security, to take safety measures concerning protected
persons, it may, at the most, subject them to assigned residence or
to internment.). 103 GC art. 41 (In applying the provisions of
Article 39, second paragraph, to the cases of persons required to
leave their usual places of residence by virtue of a decision
placing them in assigned residence elsewhere, the Detaining Power
shall be guided as closely as possible by the standards of welfare
set forth in Part III, Section IV of this Convention.). 104 GC art.
78 (Protected persons made subject to assigned residence and thus
required to leave their homes shall enjoy the full benefit of
Article 39 of the present Convention.). 105 GC art. 44 (In applying
the measures of control mentioned in the present Convention, the
Detaining Power shall not treat as enemy aliens exclusively on the
basis of their nationality de jure of an enemy State, refugees who
do not, in fact, enjoy the protection of any government.). 106 See
1956 FM 27-10 (Change No. 1 1976) 283b (The purpose of the
foregoing article [37 of the GC] is to insure that refugees who may
only technically remain enemy aliens are not on that basis
automatically subject to control measures, notwithstanding the fact
they actually are not protected by their government. However, the
quoted provision does not in any way deny the right of a State to
intern any such person or subject him to any other recognized
measure of control when there is any additional reason that renders
necessary the taking of such action as may be required for the
security of the State in a moment of national crisis.).
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10.7 GENERAL TREATMENT OF PROTECTED PERSONS IN A BELLIGERENTS
HOME TERRITORY
Regulation of the Situation of Protected Persons, in Principle,
by Provisions 10.7.1Applicable to Aliens in Time of Peace. With the
exception of special measures authorized by the GC, in particular
by Articles 27 and 41 of the GC (i.e., measures of control and
security, such as internment), the situation of protected persons
shall continue to be regulated, in principle, by the provisions
concerning aliens in time of peace.107 In any case, the following
rights shall be granted to them:
They shall be enabled to receive the individual or collective
relief that may be sent to them (e.g., by their home country or
national or international relief organizations, such as the
ICRC).
They shall, if their state of health so requires, receive
medical attention and hospital treatment to the same extent as the
nationals of the State concerned.
They shall be allowed to practice their religion and to receive
spiritual assistance from ministers of their faith.
If they reside in an area particularly exposed to the dangers of
war, they shall be authorized to move from that area to the same
extent as the nationals of the State concerned.
Children under fifteen years, pregnant women, and mothers of
children under seven years shall benefit from any preferential
treatment to the same extent as the nationals of the State
concerned.108
Opportunity for Employment and Other Support. Protected persons
who, as a 10.7.2result of the war, have lost their gainful
employment, shall be granted the opportunity to find paid
employment.109 That opportunity shall, subject to security
considerations and to the
107 GC art. 38 (With the exception of special measures
authorized by the present Convention, in particular by Articles 27
and 41 thereof, the situation of protected persons shall continue
to be regulated, in principle, by the provisions concerning aliens
in time of peace.). 108 GC art. 38 (In any case, the following
rights shall be granted to them: (1) They shall be enabled to
receive the individual or collective relief that may be sent to
them. (2) They shall, if their state of health so requires, receive
medical attention and hospital treatment to the same extent as the
nationals of the State concerned. (3) They shall be allowed to
practise their religion and to receive spiritual assistance from
ministers of their faith. (4) If they reside in an area
particularly exposed to the dangers of war, they shall be
authorized to move from that area to the same extent as the
nationals of the State concerned. (5) Children under fifteen years,
pregnant women and mothers of children under seven years shall
benefit by any preferential treatment to the same extent as the
nationals of the State concerned.). 109 GC art. 39 (Protected
persons who, as a result of the war, have lost their gainful
employment, shall be granted the opportunity to find paid
employment.).
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provisions of Article 40, be equal to that enjoyed by the
nationals of the Power in whose territory they are.110
10.7.2.1 Support When Measures of Control Are Applied. Where a
party to the conflict applies to a protected person methods of
control that result in that person being unable to support himself
or herself, and especially if such a person is prevented for
reasons of security from finding paid employment on reasonable
conditions, that party shall ensure his or her support and that of
his or her dependents.111
10.7.2.2 Receipt of Allowances. Protected persons may in any
case receive allowances from their home country, the Protecting
Power, or the relief societies referred to in Article 30 of the GC
(e.g., the ICRC).112
Compulsory Work for Protected Persons in a Belligerents Home
Territory. 10.7.3Protected persons may be compelled to work only to
the same extent as nationals of the party to the conflict in whose
territory they are.113
If protected persons are of enemy nationality, they may only be
compelled to do work that is normally necessary to ensure the
feeding, sheltering, clothing, transport, and health of human
beings and that is not directly related to the conduct of military
operations.114
In the cases mentioned in the two preceding paragraphs,
protected persons compelled to work shall have the benefit of the
same working conditions and of the same safeguards as national
workers, in particular as regards wages, hours of labor, clothing
and equipment, previous training, and compensation for occupational
accidents and diseases.115
110 GC art. 39 (That opportunity shall, subject to security
considerations and to the provisions of Article 40, be equal to
that enjoyed by the nationals of the Power in whose territory they
are.). 111 GC art. 39 (Where a Party to the conflict applies to a
protected person methods of control which result in his being
unable to support himself, and especially if such a person is
prevented for reasons of security from finding paid employment on
reasonable conditions, the said Party shall ensure his support and
that of his dependents.). 112 GC art. 39 (Protected persons may in
any case receive allowances from their home country, the Protecting
Power, or the relief societies referred to in Article 30.). 113 GC
art. 40 (Protected persons may be compelled to work only to the
same extent as nationals of the Party to the conflict in whose
territory they are.). 114 GC art. 40 (If protected persons are of
enemy nationality, they may only be compelled to do work which is
normally necessary to ensure the feeding, sheltering, clothing,
transport and health of human beings and which is not directly
related to the conduct of military operations.). 115 GC art. 40 (In
the cases mentioned in the two preceding paragraphs, protected
persons compelled to work shall have the benefit of the same
working conditions and of the same safeguards as national workers,
in particular as regards wages, hours of labour, clothing and
equipment, previous training and compensation for occupational
accidents and diseases.).
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If the above provisions are infringed, protected persons shall
be allowed to exercise their right of complaint in accordance with
Article 30 of the GC.116
Cancellation of Restrictive Measures After Hostilities. In so
far as they have not 10.7.4been previously withdrawn, restrictive
measures taken regarding protected persons shall be cancelled as
soon as possible after the close of hostilities.117 Restrictive
measures affecting their property shall be cancelled, in accordance
with the law of the Detaining Power, as soon as possible after the
close of hostilities.118
10.8 EXPULSION FROM AREAS WITHIN A BELLIGERENTS HOME TERRITORY
AND DEPARTURE AND TRANSFERS OF PROTECTED PERSONS FROM A
BELLIGERENTS HOME TERRITORY
Expulsion From Areas Within a Belligerents Home Territory. At
the outbreak of 10.8.1hostilities, a State may expel or bar the
citizens or subjects of the enemy State from its seaports, the area
surrounding airbases, airports, and fortified places, areas of
possible attack, and the actual or contemplated theaters of
operation.
When such expulsion is decreed, the persons expelled should be
given such reasonable notice, consistent with public safety, as
will enable them to arrange for the collection, disposal, and
removal of their goods and property, and for the settlement of
their personal affairs.119
Although such expulsion must be implemented in a humane manner,
the provisions of the GC addressing a States internment or assigned
residence of civilians of an enemy State in its home territory
(Articles 41-45), including the transfer of internees to other
countries, do not apply to such expulsion.120
116 GC art. 40 (If the above provisions are infringed, protected
persons shall be allowed to exercise their right of complaint in
accordance with Article 30.). Refer to 10.5.6 (Facility for
Applying to the Protecting Powers and Assistance Organizations Such
as the ICRC). 117 GC art. 46 (In so far as they have not been
previously withdrawn, restrictive measures taken regarding
protected persons shall be cancelled as soon as possible after the
close of hostilities.). 118 GC art. 46 (Restrictive measures
affecting their property shall be cancelled, in accordance with the
law of the Detaining Power, as soon as possible after the close of
hostilities.). 119 See 1956 FM 27-10 (Change No. 1 1976) 27 (In
modern practice at the outbreak of hostilities the expulsion of the
citizens or subjects of the enemy is generally decreed from
seaports, the area surrounding airbases, airports, and fortified
places, areas of possible attack, and the actual or contemplated
theaters of operation. When expulsion is decreed, the persons
expelled should be given such reasonable notice, consistent with
public safety, as will enable them to arrange for the collection,
disposal, and removal of their goods and property and for the
settlement of their personal affairs. Such persons do not, however,
benefit from the provisions of Articles 41 through 45, GC (pars.
280-284).). 120 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE
OF GENEVA OF 1949 826 (The internment procedure laid down in
Article 40 is similar to that provided for in Article 32 with
regard to the authorization to leave the territory. Article 40 also
empowers a court or administrative board, to be selected by the
Detaining Power, to take decisions in cases of appeal against
internment or assigned residence. The term assigned residence
obviously denotes a measure applicable to one person or one family,
not the prohibition to enter or reside in a specified zone imposed
upon an anonymous body of people such as all the nationals of a
certain State.).
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Departures of Protected Persons From a Belligerents Home
Territory. All 10.8.2protected persons who may desire to leave the
territory at the outset of or during a conflict shall be entitled
to do so, unless their departure is contrary to the national
interests of the State.121 The applications of such persons to
leave shall be decided in accordance with regularly established
procedures, and the decision shall be taken as rapidly as
possible.122 Those persons permitted to leave may provide
themselves with the necessary funds for their journey and take with
them a reasonable amount of their effects and articles of personal
use.123
If any such person is refused permission to leave the territory,
he or she shall be entitled to have such refusal reconsidered as
soon as possible by an appropriate court or administrative board
designated by the Detaining Power for that purpose.124
Upon request, representatives of the Protecting Power shall,
unless reasons of security prevent it, or the persons concerned
object, be furnished with the reasons for refusal of any request
for permission to leave the territory and be given, as
expeditiously as possible, the names of all persons who have been
denied permission to leave.125
Departures permitted under Article 35 of the GC shall be carried
out in satisfactory conditions as regards safety, hygiene,
sanitation, and food.126 All costs in connection therewith, from
the point of exit in the territory of the Detaining Power, shall be
borne by the country of destination or, in the case of
accommodation in a neutral country, by the Power whose nationals
are benefited.127 The practical details of such movements may, if
necessary, be settled by special agreements between the Powers
concerned.128
121 GC art. 35 (All protected persons who may desire to leave
the territory at the outset of, or during a conflict, shall be
entitled to do so, unless their departure is contrary to the
national interests of the State.). 122 GC art. 35 (The applications
of such persons to leave shall be decided in accordance with
regularly established procedures and the decision shall be taken as
rapidly as possible.). 123 GC art. 35 (Those persons permitted to
leave may provide themselves with the necessary funds for their
journey and take with them a reasonable amount of their effects and
articles of personal use.). 124 GC art. 35 (If any such person is
refused permission to leave the territory, he shall be entitled to
have such refusal reconsidered as soon as possible by an
appropriate court or administrative board designated by the
Detaining Power for that purpose.). 125 GC art. 35 (Upon request,
representatives of the Protecting Power shall, unless reasons of
security prevent it, or the persons concerned object, be furnished
with the reasons for refusal of any request for permission to leave
the territory and be given, as expeditiously as possible, the names
of all persons who have been denied permission to leave.). 126 GC
art. 36 (Departures permitted under the foregoing Article shall be
carried out in satisfactory conditions as regards safety, hygiene,
sanitation and food.). 127 GC art. 36 (All costs in connection
therewith, from the point of exit in the territory of the Detaining
Power, shall be borne by the country of destination, or, in the
case of accommodation in a neutral country, by the Power whose
nationals are benefited.). 128 GC art. 36 (The practical details of
such movements may, if necessary, be settled by special agreements
between the Powers concerned.).
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The foregoing shall not prejudice such special agreements as may
be concluded between parties to the conflict concerning the
exchange and repatriation of their nationals in enemy hands.129
Protected persons who are confined pending proceedings or
serving a sentence involving loss of liberty shall be treated
humanely during their confinement.130 As soon as they are released,
they may ask to leave the territory in conformity with Articles 35
and 36 of the GC.131
Transfers of Protected Persons From a Belligerents Home
Territory. 10.8.3
10.8.3.1 Requirements for Transfer. Protected persons shall not
be transferred to a Power that is not a Party to the GC.132 This
provision shall in no way constitute an obstacle to the
repatriation of protected persons, or to their return to their
country of residence after the cessation of hostilities.133
Protected persons may be transferred by the Detaining Power only
to a Power that is a Party to the GC and after the Detaining Power
has satisfied itself of the willingness and ability of such
receiving Power to apply the GC.134
In no circumstances shall a protected person be transferred to a
country where he or she may have reason to fear persecution for his
or her political opinions or religious beliefs.135 In addition,
U.S. policy provides that no detainee shall be transferred to
another State if it is more likely than not that the detainee would
be tortured in the receiving country.136
The provisions of Article 45 of the GC do not constitute an
obstacle to the extradition, under extradition treaties concluded
before the outbreak of hostilities, of protected persons accused of
offenses against ordinary criminal law.137
129 GC art. 36 (The foregoing shall not prejudice such special
agreements as may be concluded between Parties to the conflict
concerning the exchange and repatriation of their nationals in
enemy hands.). 130 GC art. 37 (Protected persons who are confined
pending proceedings or serving a sentence involving loss of
liberty, shall during their confinement be humanely treated.). 131
GC art. 37 (As soon as they are released, they may ask to leave the
territory in conformity with the foregoing Articles.). 132 GC art.
45 (Protected persons shall not be transferred to a Power which is
not a party to the Convention.). 133 GC art. 45 (This provision
shall in no way constitute an obstacle to the repatriation of
protected persons, or to their return to their country of residence
after the cessation of hostilities.). 134 GC art. 45 (Protected
persons may be transferred by the Detaining Power only to a Power
which is a party to the present Convention and after the Detaining
Power has satisfied itself of the willingness and ability of such
transferee Power to apply the present Convention.). 135 GC art. 45
(In no circumstances shall a protected person be transferred to a
country where he or she may have reason to fear persecution for his
or her political opinions or religious beliefs.). 136 Refer to
8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which
Detainees Would Likely Be Tortured). 137 GC art. 45 (The provisions
of this Article do not constitute an obstacle to the extradition,
in pursuance of extradition treaties concluded before the outbreak
of hostilities, of protected persons accused of offences against
ordinary criminal law.).
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10.8.3.2 Responsibility Upon Transfer. If protected persons are
transferred under such circumstances, responsibility for the
application of the GC rests on the Power accepting them, while they
are in its custody.138 Nevertheless, if that Power fails to carry
out the provisions of the GC in any important respect, the Power by
which the protected persons were transferred shall, upon being so
notified by the Protecting Power, take effective measures to
correct the situation or shall request the return of the protected
persons.139 Such request must be complied with.140
10.9 INTERNMENT
The parties to the conflict shall not intern protected persons,
except in accordance with the provisions of Articles 41, 42, 43,
68, and 78 of the GC.141
Principles Underlying the Internment of Protected Persons
Compared to Those 10.9.1Underlying POW Internment. In some
respects, the principles underlying the internment of protected
persons are similar to the principles underlying the internment of
POWs.142 For example, the internment of protected persons is
non-punitive, the Detaining Power is responsible for the treatment
of internees in its custody, and humane treatment is required.
However, the GC recognizes that the internment of protected
persons is quite different in character from that of POWs by
requiring the separation of internees from POWs.143 Protected
persons interned for security reasons, in theory, have not
participated in hostilities.144 Thus, their internment shall cease
when the reasons that have necessitated it have ceased, which may
occur before the end of the conflict.145 In practice, however,
internment for security reasons may involve persons who have
participated in hostilities, and such persons continued detention
for the duration of the conflict may be justified in order to
prevent their further participation in the conflict.
138 GC art. 45 (If protected persons are transferred under such
circumstances, responsibility for the application of the present
Convention rests on the Power accepting them, while they are in its
custody.). 139 GC art. 45 (Nevertheless, if that Power fails to
carry out the provisions of the present Convention in any important
respect, the Power by which the protected persons were transferred
shall, upon being so notified by the Protecting Power, take
effective measures to correct the situation or shall request the
return of the protected persons.). 140 GC art. 45 (Such request
must be complied with.). 141 GC art. 79 (The Parties to the
conflict shall not intern protected persons, except in accordance
with the provisions of Articles 41, 42, 43, 68 and 78.). 142 Refer
to 9.2 (General Principles Applicable to the Treatment of POWs).
143 Refer to 10.10.1 (Segregation From Other Types of Detainees).
144 GC COMMENTARY 368 (The persons subjected to these measures [of
assigned residence or internment in accordance with Article 78 of
the GC] are not, in theory, involved in the struggle. The
precautions taken with regard to them cannot, therefore, be in the
nature of a punishment.). 145 Refer to 10.9.5 (Release As Soon As
Reasons for Internment No Longer Exist).
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On the other hand, internees are not members of the armed forces
and, thus, in certain respects, have not earned the special
privileges that POWs have earned.146 For example, although
internees receive allowances, internees do not receive specified
advances of pay like POWs.147 Similarly, internees who have
successfully escaped do not benefit from the immunity from
punishment applicable to POWs who have successfully escaped.148
Procedure for Internment or Assigned Residence on Home
Territory. 10.9.2
10.9.2.1 Internment or Assigned Residence Only if Absolutely
Necessary. The internment or placing in assigned residence of
protected persons may be ordered only if the security of the
Detaining Power makes it absolutely necessary.149
10.9.2.2 Voluntary Internment. If any person, acting through the
representatives of the Protecting Power, voluntarily demands
internment, and if his or her situation renders this step
necessary, he or she shall be interned by the Power in whose hands
he or she may be.150
10.9.2.3 Reconsideration and Periodic Review. Any protected
person who has been interned or placed in assigned residence shall
be entitled to have such action reconsidered as soon as possible by
an appropriate court or administrative board designated by the
Detaining Power for that purpose.151 If the internment or placing
in assigned residence is maintained, the court or administrative
board shall periodically, and at least twice yearly, give
consideration to his or her case, with a view to the favorable
amendment of the initial decision, if circumstances permit.152
10.9.2.4 Notification to the Protecting Power. Unless the
protected persons concerned object, the Detaining Power shall, as
rapidly as possible, give the Protecting Power the names of any
protected persons who have been interned or subjected to assigned
residence,
146 See, e.g., II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF
GENEVA OF 1949 681 (Mr. WERSHOF (Canada) suggested that the first
paragraph should be deleted. He failed to see why the Detaining
Power should make an allowance of any kind to enemy aliens whom it
considered dangerous. He was of the opinion that the analogy
between internees and prisoners of war had been carried too far.
Prisoners of war had earned a standard of treatment which had not
been earned by internees.). 147 Refer to 10.19.2 (Internee
Allowances); 9.18.3 (Advance of Pay). 148 Refer to 10.26 (Internee
Escapes); 9.25.1 (No Punishment for Successful Escape). 149 GC art.
42 (The internment or placing in assigned residence of protected
persons may be ordered only if the security of the Detaining Power
makes it absolutely necessary.). 150 GC art. 42 (If any person,
acting through the representatives of the Protecting Power,
voluntarily demands internment, and if his situation renders this
step necessary, he shall be interned by the Power in whose hands he
may be.). 151 GC art. 43 (Any protected person who has been
interned or placed in assigned residence shall be entitled to have
such action reconsidered as soon as possible by an appropriate
court or administrative board designated by the Detaining Power for
that purpose.). 152 GC art. 43 (If the internment or placing in
assigned residence is maintained, the court or administrative board
shall periodically, and at least twice yearly, give consideration
to his or her case, with a view to the favourable amendment of the
initial decision, if circumstances permit.).
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or who have been released from internment or assigned
residence.153 The decisions of the courts or boards mentioned in
the first paragraph of Article 43 of the GC shall also, subject to
the same conditions, be notified as rapidly as possible to the
Protecting Power.154
Procedure for Internment or Assigned Residence in Occupied
Territory. The 10.9.3requirements in the GC for the procedure for
assigned residence or internment of protected persons in occupied
territory are not as elaborate as those applicable in a
belligerents home territory because of concerns that it would not
be practicable to implement the requirements applicable in a
belligerents home territory in view of the disorder that might
prevail in occupied territory.155
10.9.3.1 Internment or Assigned Residence for Imperative Reasons
of Security. If the Occupying Power considers it necessary, for
imperative reasons of security, to take safety measures concerning
protected persons, it may, at the most, subject them to assigned
residence or to internment.156
Decisions regarding such assigned residence or internment shall
be made according to a regular procedure to be prescribed by the
Occupying Power in accordance with the provisions of the GC.157
This procedure shall include the right of appeal for the parties
concerned.158 Appeals shall be decided with the least possible
delay.159 In the event of the decision being upheld, it shall be
subject to periodic review, if possible every six months, by a
competent body set up by the Occupying Power.160 Competent bodies
to review the internment or assigned residence of protected persons
may be created with advisory functions only, leaving the final
decision to a high official