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Commentary of 1987 
Fundamental guarantees
[p.861] Article 75 -- Fundamental guarantees

[p.863] 3000 This article is one of the longest in the entire Protocol. It was the object of lengthy discussion in the Conference itself and in informal meetings of delegates. (1)

[p.864] 3001 When it presented the draft article, the ICRC expressed its concern that a minimum of protection should be granted in time of armed conflict to any person who was, for one reason or another, unable to claim a particular status, such as that of prisoner of war, civilian internee in accordance with the fourth Convention, wounded, sick or shipwrecked.

3002 The article was the object of many amendments and proposals during the deliberations in the Working Group. Several of the amendments were related to details concerning the guarantees to be accorded.

3003 On the other hand, two amendments on points of substance are worth mentioning. The first comes from the Finnish delegation. (2) It has the merit of great clarity. As we saw above, (3) the Finnish government made a declaration on the lines of this amendment upon ratification of the Protocol.

[p.865] 3004 The other amendment came from a group of socialist States and related to the punishment of war crimes. (4) The Diplomatic Conference took it into account in paragraph 7 of the article.

3005 Committee III examined and discussed this provision for over two weeks: the Working Group also spent a great deal of time on this article, which was finally adopted during the last session of the Diplomatic Conference in 1977. The work of the Conference was greatly facilitated by unofficial consultations conducted in March and April 1977, i.e., before the opening of the fourth session of the Conference. They were concerned with sorting out the amendments and amalgamating them so as to reduce their number. Moreover, Committee III was guided by the work done on Protocol II during the second session of the Conference. Committee III decided to include in Article 65 (which has become Article 75 ) the text drawn up for Articles 4 ' (Fundamental guarantees) ' and 6 ' (Penal prosecutions) ' of Protocol II, except where there was a good reason to change the wording in view of the fact that Protocol I deals with international and not non-international conflicts. It should be recalled that Articles 4 ' (Fundamental guarantees) ' and 6 ' (Penal prosecutions) ' of Protocol II reproduce, in some cases word for word, the corresponding provisions of the Covenant on Civil and Political Rights (hereafter: the Covenant).

3006 As a detailed examination of the text will show, Article 75 contains imprecise and obscure points. However, it represents an important step forward in humanitarian law by laying down several minimum rules of protection for the benefit of all those who find themselves in time of armed conflict in the power of a Party to the conflict, whereas in such circumstances provisions of human rights law are subject to possible derogations. (5) This article must therefore be seen as a victory for humanitarian law, and its mission is truly to play a role of great importance.

3007 In addition, Article 75 , even more than common Article 3 of the 1949 Conventions, which was called a "mini Convention", constitutes a sort of "summary of the law" particularly in the very complex field of judicial guarantees, which will certainly facilitate the dissemination of humanitarian law and the promulgation of its fundamental principles.

[p.866] Paragraph 1

3008 This paragraph was only adopted after all the others, and after laborious negotiations. (6) The meaning to be ascribed to this paragraph is not immediately clear. In fact, during the deliberations speakers expressed divergent opinions in this respect. (7)

3009 Under the terms of this paragraph, individuals who are covered must fulfil the following three conditions:

-- they must be in the power of a Party to the conflict;
-- they must be affected by armed conflict or by occupation;
-- they must not benefit from more favourable treatment under the Conventions or under this Protocol.

' Brief analysis of these three concepts '

1. ' Being in the power of a Party to the conflict '

3010 The meaning of these words was determined in the analysis of the title of the Section, which includes these words. (8) The question is why the expression is repeated here, since the title covers all the articles of the Section. Thus, for example, Article 76 ' (Protection of women) ' only covers women who are in the power of a Party to the conflict, although that article does not specify this explicitly. These matters seem self-evident, but in this case it was considered appropriate to repeat them.

2. ' Being affected by armed conflict or occupation '

3011 The word "affected" in this context means: touched by or concerned. It remains to determine how far this category of persons extends. When there is armed conflict, all those who find themselves in the territory of the countries at war or in occupied territory, are affected in some way or another. This is very probably [p.867] not what was intended, particularly because of the words "in so far"; it cannot therefore be denied that there are persons who are not affected in the sense of this article. In general those who contravene the normal laws of the State (ordinary criminals) and who are punished on these grounds, are not "affected" within the meaning of this article. On the other hand, if security measures are taken against certain individuals because of their attitude, whether true or alleged, with regard to the conflict, Article 75 certainly applies to them. (9)

3012 The situation may be more complex when internal strife is added to international armed conflict, which might lead to nationals taking up the cause of the adverse nation, and even giving support to its military action. There are numerous examples of such situations in the distant and recent past. The Conference did not express itself on this point, but it should be recalled that the national legislation of many countries includes judicial guarantees equivalent to those of Article 75 , and sometimes even goes further.

3013 In the armed conflicts referred to in Article 1 ' (General principles and scope of application), ' paragraph 4, the situation is different: in that situation the individuals engaged in the conflict technically have the same nationality, but the question whether the guarantees provided will be applied will not depend on this fact alone, for international law overrides the criterion of nationality and any provisions which punish aid to the enemy, treason, insurrection, desertion etc. on the basis of nationality. In fact, captured combatants and civilians who are subject to security measures must be considered as enemy nationals and treated accordingly. They are not actually bound by a duty of allegiance with respect to the State in whose territory they find themselves or of which they bear the nationality. In other words, in such a conflict, captured combatants and civilians interned, arrested or prosecuted because of their attitude towards the conflict, should have the benefit of all the provisions of the Geneva Conventions; combatants must be treated as prisoners of war, and civilians as protected persons under the fourth Convention.

3014 If in such a situation there were nevertheless cases in which the status of prisoner of war or of protected person were denied to certain individuals, the protection of Article 75 must be applied to them as a minimum.

3. ' Not benefitting from more favourable treatment under the Conventions or under this Protocol '

3015 The protections which follow from Article 75 apply above all to those who cannot lay claim to application of the Conventions or to their application in full, taking into account the derogations provided for in Article 5 of the fourth Convention. As we have seen with regard to the title of this Section, it covers civilians, and therefore it is the fourth Convention and the status of persons [p.868] protected by that Convention with which we are concerned here. However, cases may occur of civilians who have committed hostile acts claiming prisoner-of-war status and treatment in accordance with Article 4A and Article 5 of the Third Convention.

3016 Thus persons protected by the fourth Convention will therefore be entitled to the treatment provided for them by that Convention. However, as we will see below, situations may arise where Article 75 will contain protections for such persons which are not explicitly provided in the fourth Convention; it is clear that they may avail themselves of these, since the article is only a minimum standard.

3017 During and following the Diplomatic Conference paragraph 1 gave rise to numerous difficult controversies, particularly as regards the application of Article 75 to own nationals. It seems that the Diplomatic Conference did not wish to adopt a more precise wording in order to achieve a consensus, and the decision of the Finnish government to clarify the obligations it took upon itself in this respect upon ratification is understandable.

3018 There was in particular a point of view based on the fact that the ICRC draft explicitly mentioned the Party to the conflict's own nationals; the same applied to the above-mentioned Finnish amendment; the amendment to Article 63 of the draft (the present Article 72 -- ' Field of application ') had the same tenor. (10) This precision disappeared in the text proposed by the Working Group and adopted by Committee III and later by the Conference itself. What conclusion can be drawn from this? Some claim that the fact that the reference to own nationals was deleted reveals an intention to exclude nationals from the application of the provisions of Article 75 . Others believe that precisely by virtue of the wording of Article 72 ' (Field of application) ' and Article 75 there was no need to mention nationals of the Parties to the conflict explicitly.

3019 In any case the number of nationals covered by this article will be considerably reduced, since they can only avail themselves of it insofar as they are affected by a situation referred to in Article 1 ' (General principles and scope of application). ' It is this restriction which, as the Rapporteur indicated, made it possible to adopt the article by consensus.

3020 It was also claimed that the Protocol, which is additional to the Conventions, could not modify the basic concepts of the Geneva Conventions. The point is that these Conventions are concerned with protecting the individual from arbitrary and oppressive enemy action and not with determining the relationship between the individual and his own government. This line of argument seems tenuous: it is not clear why the Protocol should not increase the category of protected persons as it does, for example, for certain combatants. Admittedly it would certainly have been very useful to mention explicitly that nationals are included, but no negative conclusions should be drawn from the absence of such mention.

3021 It was also argued that here the expression "in the power of a Party to the conflict" is used, while Articles II ' (Protection of persons), ' 44 ' (Combatants and prisoners of war), ' 45 ' (Protection of persons who have taken part in hostilities) ' and 46 ' (Spies) ' use the expression "in the power of an adverse Party". It may justifiably [p.869] be considered that the wording of this paragraph covers persons in the power of any Party to the conflict, even that of which the individual is a national. However, it should be noted that the Protocol uses both the terms "Party to the conflict" and "adverse Party" repeatedly without making any difference to the category of persons covered by the two expressions.

' Categories of persons covered by Article 75 '

3022 The Convention did not draw up a systematic list of persons whom it intended should be covered by this article. However, the discussions and drafts provide some idea in this respect, which can be summarized as follows:

1. ' Nationals of States not parties to the Conventions '

3023 This is highly theoretical since the 1949 Conventions have virtually universal participation. (11)

2. ' Nationals of States not Parties to the conflict '

3024 As provided in Article 4 of the fourth Convention, such nationals are not, except in occupied territories, considered as protected persons as long as the State of which they are nationals has normal diplomatic representation in the State in whose power they find themselves.

3025 According to paragraph 8 of Article 75 , no provision of the same article may be construed as limiting or infringing any other more favourable provision granting greater protection to persons covered by paragraph 1.

3026 Nationals of States not Parties to the conflict may rely on bilateral treaties on establishment and residence, as well as, where applicable, on the Hague Convention of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land.

3. ' Nationals of allied States '

3027 Nationals of allied States will normally have the benefit of protection by their own authorities. However, if the State of their nationality does not have normal diplomatic representation in the State in whose power they find themselves, they are protected persons under the fourth Convention.

4. ' Refugees and stateless persons '

3028 Article 73 ' (Refugees and stateless persons) ' puts refugees and stateless persons considered as such ' before the beginning of hostilities ' on the same footing as [p.870] protected persons under the fourth Convention. Persons who have become refugees ' after the beginning of hostilities ' are covered by Article 75 . Stateless persons enjoy the protection of the fourth Convention in any event, as shown in the commentary on Article 73 ' (Refugees and stateless persons) ' (supra, p. 854).

5. ' Mercenaries '

3029 In its report (12) Committee III expresses itself as follows on the subject of the new article (13) relating to mercenaries:

"Finally, although the proposed new article makes no reference to the fundamental protections of Article 65, it was understood by the Committee that mercenaries would be one of the groups entitled to the protections of that article which establishes minimum standards of treatment for persons not entitled to more favourable treatment under the Conventions and Protocol I."

3030 This explanation given by Committee III is a statement of the obvious, but the discussions had led to some doubts which were now removed. Moreover, although mercenaries may be denied the status of combatant and consequently that of prisoner of war, they are civilians covered by the fourth Convention.

6. ' Other persons denied prisoner-of-war status '

3031 According to Article 45 ' (Protection of persons who have taken part in hostilities), ' paragraph 3, any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the fourth Convention has the right at all times to the protection of Article 75 . This covers persons who not only cannot claim prisoner-of-war status, but are also not protected persons under the fourth Convention. It will be noted that this definition covers mercenaries who are not covered by Article 4 of the fourth Convention.

7. ' Protected persons subject to Article 5 of the Fourth Convention '

3032 These are persons who, on the basis of Article 5 of the fourth Convention, are deprived of certain rights laid down by that Convention during detention. There can be no doubt that Article 75 constitutes a minimum standard which does not allow for any exceptions. Such persons must regain all the rights and privileges laid down by the Convention as soon as circumstances permit.

3033 The formula of non-discrimination contained in this paragraph is similar to that used, for example, in Article 2 of Protocol II ' (Personal field of application), ' Article 12 of the first Convention, Article 16 of the Third Convention, and [p.871] Article 27 of the fourth Convention. Comparable formulae can also be found in human rights instruments. (14)

3034 As regards respect for the person, honour and religious convictions and practices, this wording was used already in the Geneva Conventions (Articles 14 and 34 , Third Convention; Article 27, fourth Convention). However, as pointed out in the commentary on Article 27 of the fourth Convention, respect for "religious convictions and practices" should be understood in a broad sense. It covers all philosophical and ethical convictions. We know that in some armies there are nowadays, in addition to chaplains, counsellors on moral matters to whom members of the armed forces can go for assistance. This should be seen as an example of the modern tendency of individuals to look for a moral code also outside religion.

3035 When it discussed Article 67 (the present Article 76 -- ' Protection of women '), proposals were submitted to Committee III aimed at preventing women from being arrested or imprisoned solely on account of their convictions. In the end the Committee decided not to take into account these proposals in order to avoid the possibility of an a contrario argument to the effect that other persons could be legitimately arrested or imprisoned solely on the ground of their convictions. Committee III preferred to deal with this question in a special new article to apply to everyone. (15) These discussions took place during the last session of the Conference and there was no time for Committee III to deal with this problem. (16)

3036 The report of the Working Group was not contested in Committee III or during the plenary meetings where this article was adopted. Thus respect for convictions implies that a person professing any particular convictions cannot be arrested or imprisoned for this reason alone. For that matter, this view can be found in human rights instruments, in particular in the Covenant, of which Article 19, paragraph 1, provides that everyone has "the right to hold opinions without interference". However, Article 19 is not one of the articles from which no derogation may be made.

Paragraph 2

3037 A number of fundamental rules applicable to all persons defined in paragraph 1 are pronouned here. The other paragraphs of the article cover certain more restricted categories which are duly defined. This pronouncement is directly [p.872] inspired by the text of common Article 3 of the Conventions which applies to conflicts not of an international character; it is also very similar to Article 4 , paragraph 2, of Protocol II ' (Fundamental guarantees) '; as far as possible, Committee III followed the text of that Article 4 ' (Fundamental guarantees), ' which had already been adopted.

3038 The terminology of the French text adopted here is curious: it reads "sont et demeureront prohibés". Why the use of the future tense as the verb "demeurer" in this context covers the future? The french text of Article 3 common to the Conventions uses the present tense: "sont et demeurent prohibés", which seems clearer and more logical. At any rate the meaning is the same and the English text uses the same wording as that of common Article 3 : "the following acts are and shall remain prohibited".

3039 "At any time and in any place": the meaning of this expression is not immediately clear. There is no doubt that Article 75 , like the Protocol as a whole, only applies in situations as provided for in Article 1 ' (General principles and scope of application) ' and only in territories of Parties to the conflict or territories under their control. Why then this terminology, which suggests that, following the example of the rules relating to human rights, the article applies in time of peace as well as in time of war? On this point the Conference merely followed the proposals of the ICRC. Apparently one must deduce from this expression that the article applies throughout the situations provided for in Article 1 ' (General principles and scope of application) ' and in all the territories covered by such situations. A confirmation of the foregoing can be found in the text of Article 3 , sub-paragraph (b), of the Protocol ' (Beginning and end of application) ' and in paragraph 6 of the present Article 75 .

3040 The reference to civilian or military agents is very useful; this is taken from Article 32 of the fourth Convention and is concerned with establishing the responsibility of anyone acting in the name of a Party to the conflict.

' Sub-paragraph ' (a)

3041 This paragraph gives a number of examples of acts detrimental to life, health or physical or mental well-being.

' Sub-paragraph ' (a)(i)

3042 This relates to the wilful or intentional killing of a human being. Article 147 of the fourth Convention uses the expression "wilful killing". It covers all cases of manslaughter, including by wilful negligence, such as, for example, cases of a deliberate refusal to administer care with intent to cause death. (17)

[p.873] ' Sub-paragraph ' (a)(ii)

3043 According to the Declaration on torture adopted on 9 December 1975 by the United Nations General Assembly (Resolution 3452 (XXX)):

"torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons".

It may be recalled that the torture of protected persons is prohibited by Article 17 of the Third Convention, Article 32 of the fourth Convention, as well as by Article 3 common to the Conventions.

3044 In our time torture is universally condemned and in various circles great efforts are being made to eliminate this scourge. (18) Although agreement was easily reached on the principle of prohibiting it, it is more difficult to establish effective methods making it possible for governments to be sure that no acts of torture are committed by agents under their authority. In time of armed conflict it is the responsibility of governments to strengthen the measures of control and the powers of which they dispose if they are to be certain that they will not be held responsible for acts of torture committed by their agents, whether civilian or military.

3045 For its part the Covenant prohibits torture in its Article 7, which does not allow for any derogation.

' Sub-paragraph (a)(iii) and (iv) '

3046 Article 75 here reiterates prohibitions already contained in the Conventions (common Article 3 ; Articles 13 and 88 of the Third Convention; Article 32 of the fourth Convention). The prohibition of mutilation is duplicated in Article 11 of the Protocol ' (Protection of persons). '

' Sub-paragraph (b) '

3047 This refers to acts which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing them, or even forcing them to perform degrading acts.

3048 Such provisions are contained in the Conventions (common Article 3 ; Articles 14 and 52 , Third Convention; Article 27 , fourth Convention).

[p.874] 3049 The provision relating in Article 75 to enforced prostitution and indecent assault applies to everybody covered by the article, regardless of sex. Article 76 ' (Protection of women), ' relating to the special protection to which women are entitled, reiterates the provision relating to enforced prostitution and indecent assault, specifically mentioning rape.

3050 Degrading treatment is also prohibited by Article 7 of the Covenant.

' Sub-paragraph (c) '

3051 During recent years the term "hostages" has acquired different meanings. It seems that in Article 75 this term must be understood in the same way as in Article 34 of the fourth Convention, which prohibits the taking of hostages. We are therefore faced here with the problem of hostages taken by an authority -- and not by individuals -- and who are detained for the purpose of obtaining certain advantages.

3052 This means that hostages are persons who find themselves, willingly or unwillingly, in the power of the enemy and who answer with their freedom or their life for compliance with the orders of the latter and for upholding the security of its armed forces.

3053 Article 3 common to the Conventions also contains a prohibition on the taking of hostages.

' Sub-paragraph (d) '

3054 This prohibition was added by the Conference, as it was afraid that collective punishments might be inflicted by processes other than proper judicial procedures and that in that case they would not be covered by paragraph 4(b). Article 33 of the fourth Convention prohibits collective penalties.

3055 The concept of collective punishment must be understood in the broadest sense: it covers not only legal sentences but sanctions and harassment of any sort, administrative, by police action or otherwise.

' Sub-paragraph (e) '

3056 This prohibition is actually concerned with intimidation; a similar formula was used in Article 40 of the Protocol ' (Quarter). ' Measures of intimidation are prohibited by Article 33 of the fourth Convention.

3057 In its draft the ICRC had proposed to also include a prohibition on physical or moral coercion, particularly when applied in order to obtain information; similar clauses exist for prisoners of war (Article 17 , Third Convention) and for protected civilians (Article 31 , fourth Convention). According to the Rapporteur of Committee III the prohibition of torture together with the more general prohibition on causing harm to life, health and physical and mental well-being, was considered sufficient to omit a reference to coercion. It might be added that [p.875] in this field individuals are also protected by paragraph 4(f) which says that no one may be compelled to confess guilt.

3058 Similarly Committee III considered it unnecessary to include separately a prohibition of intimidation, harassment and threats aimed at forced movement or migration of individuals or groups of the population in occupied territories; sub-paragraph (e) of this paragraph covers such situations.

Paragraph 3

3059 This paragraph is important, but the terms used are sometimes ambiguous and raise problems or interpretation.

3060 The phrase "any person" almost certainly means any person complying with the definition of paragraph 1 of the article. Thus this refers primarily to civilians, as combatants are not covered by Article 75 , and, in particular, not by its paragraph 3, unless prisoner-of-war status is refused them in case of capture. In this case, provided for in Article 45 ' (Protection of persons who have taken part in hostilities), ' paragraph 3, if they do not have the benefit of the fourth Convention, they have at least the right to the protection of Article 75 .

3061 "Arrested": this means the period that a person is in the hands of the police, preceding the trial stage which is dealt with in paragraph 4, or prior to internment.

3062 "Detained": in general this expression refers to deprivation of liberty, usually suffered in prison or other penitentiary institutions; here the term refers to detention prior to sentence or prior to a decision on internment.

3063 "Interned": this term generally means deprivation of liberty ordered by the executive authorities when no specific criminal charge is made against the individual concerned.

3064 These three expressions are actually closely related and each refers to a different way in which a person can be deprived of his liberty. In part this terminology can also be found in human rights instruments (Universal Declaration, Article 9; Covenant, Article 9). Internment is the only concept which seems reserved for time of armed conflict.

3065 "For actions": this expression is easy to understand when it refers to persons who have committed criminal acts. However, it often happens that people are subjected to banishment, assigned residence or even internment, without being charged with committing any specific act, but because of their previous activities or their general behaviour, such as having revealed sympathy for the adversary, opposition to the Occupying Power or even pacifist opinions. As regards the State's own citizens, their ethnic or racial origin has sometimes been used as a legitimate cause for suspicion. Internees will therefore generally be informed of the reason for such measures in broad terms, such as legitimate suspicion, precaution, unpatriotic attitude, nationality, origin, etc. without any specific reasons being given.

3066 "Related to the armed conflict": this phrase leads to the greatest problems for the interpretation of this article, as it uses different expressions several times, though they seem to refer to the same thing.

3067 It is the terminology used in all the paragraphs of the article, except in paragraph 1, which refers back to Article 1 of the Protocol ' (General principles ' [p.876] and scope of application) and this in turn refers in particular to the situations provided for in common Article 2 of the Conventions. The interesting point is that paragraph 2 of that common Article 2 covers cases of occupation meeting with no armed resistance. It must therefore be concluded that the expression "armed conflict" was used in the various paragraphs of Article 75 to cover all the situations within the purview of the substantive provisions determining the scope of the Conventions and of the Protocol.

3068 First of all, paragraph 1 uses the words "affected by a situation referred to in Article 1 ", and we saw above what this means. This formula is equivalent, if slightly broader than that of paragraph 3, since it covers persons who may be affected by armed conflict without having committed any acts related to that conflict, for example, on the basis of their nationality or ethnic origin.

3069 Later paragraph 4 refers to "a penal offence related to the armed conflict". Paragraphs 5 and 6 use the expression "for reasons related to the armed conflict". Finally, Article 76 ' (Protection of women) ' also refers to "reasons related to the armed conflict" (although in the French text there is a slight difference between the wording used in paragraphs 5 and 6 of Article 75 and that used in Article 76 ).

3070 The diversity of the expressions used might be considered rather perplexing. In fact, each of the expressions mentioned above refers to acts or reasons, the reasons covering cases of internment, while the acts may lead to criminal prosecution and in due course to internment. Although it is relatively easy to think of reasons for which a State might wish to take security measures such as internment or assigned residence, it is, on the other hand, more difficult to determine how penal offences should be understood in relation to armed conflict. This question is examined in greater detail with regard to paragraph 4.

3071 "In a language he understands". This phrase does not require lengthy explanation. It is a formula which has been used since 1929 in the Geneva Conventions. (19) It covers both written and verbal communications.

3072 "Promptly": unfortunately this expression is rather imprecise. Article 9 of the Covenant provides that anyone who is arrested will be informed at the time of his arrest of the reasons for his arrest. However, Article 9 is not one of the articles from which derogation is not allowed, even in case of war (Article 4). According to Article 71 of the fourth Convention, anyone who is charged and prosecuted by the Occupying Power will be informed promptly of the charges made against him. These examples reveal the clear intention that those arrested should be advised promptly of the reasons for their arrest; it is difficult to determine a precise time limit, but ten days would seem the maximum period.

3073 Legal practice in most countries recognizes preventive custody, i.e., a period during which the police or the public prosecutor can detain a person in custody without having to charge him with a specific accusation; in peacetime this period is no more than two or three days, but sometimes it is longer for particular offences (acts of terrorism) and in time of armed conflict it is often prolonged. [p.877] Useful indications can be found in national legislation. In any case, even in time of armed conflict, detaining a person for longer than, say, ten days without informing the detainee of the reasons for his detention would be contrary to this paragraph.

3074 The second sentence of the paragraph is not very clear and requires some comment.

3075 "Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible": it seems clear that detainees not charged with a criminal offence within the period mentioned must be released; this is laid down in all national legislation. However, in time of armed conflict States often assume the right to take security measures with regard to certain persons who are considered dangerous.

3076 "And in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist": this provision is based on Articles 43 and 132 of the fourth Convention, which are concerned with periodic review of internment decisions. It is understandable that internment decisions are taken because of circumstances (armed conflict, combat in a nearby area, hostile movement in the population etc.). On the other hand, it is difficult to accept that people are arrested or detained because of circumstances; such decisions should be based on a presumption of a criminal offence. Perhaps the intention was to indicate that sometimes internment is preceded by arrest and detention sanctioned by court order. However, the reference to "the circumstances" should not be taken too literally, but these words should be understood as meaning "the facts".

3077 The Report of Committee III expresses itself as follows on this paragraph:

"Paragraph 3 was added to the ICRC text pursuant to a proposal by the representative of Belgium to cover the period of arrest prior to that dealt with in the judicial safeguards of paragraph 4" (20)

3078 The intentions of the drafters are therefore quite clear, even if the wording is not so clear. In conclusion the following points should be recalled:

3079-- Within a period which should not exceed, say, ten days, any one deprived of liberty for actions related to the armed conflict must be informed of the reasons for this measure unless he is released.

3080-- If the person in question is charged with a specific offence, legal proceedings should take their course; if he is to be interned, a decision should duly and properly be taken and communicated to the person concerned.

[p.878] Paragraph 4

' Introductory sentence '

3081 The scope of application of this paragraph requires us to pause and give it due thought; it refers primarily to civilians in the power of a Party to the conflict who are affected by a situation as referred to in Article 1 ' (General principles and scope of application) ' and who do not benefit from more favourable treatment under the Conventions or this Protocol; moreover, they must have been found guilty of a penal offence related to the armed conflict.

3082 Thus this paragraph does not cover protected persons defined in Article 4 of the fourth Convention, or persons defined in Article 73 of the Protocol ' (Refugees and stateless persons). ' It is intended to cover all civilians of foreign nationality who are not protected persons in the sense of Article 4 , and who are in the territory of a Party to the conflict, as well as the whole of the civilian population of occupied territories with the exception of those protected by the fourth Convention. Some combatants who are denied prisoner-of-war status in case of capture are also covered, (21) if they are not already covered by the fourth Convention. Finally, the Party to the conflict's own nationals are covered insofar as they fulfil the conditions laid down in paragraph 1.

3083 For persons covered by the fourth Convention the guarantees of this article are of course supplementary. Thus for enemy nationals in another State's national territory, Article 75 contains important improvements; in fact, while the treatment of such persons is generally provided for in Articles 35 to 46, and in case of internment, in Articles 79 -141 of the fourth Convention, no special guarantees are provided in the case they are tried and sentenced for penal offences. For the inhabitants of occupied territories, Articles 64 -78 of the fourth Convention contain guarantees on penal matters which are more or less equivalent to those of Article 75 , and indeed go even further, since intervention by the Protecting Power is expressly provided for. However, it should be noted that Article 75 acknowledges a presumption of innocence, a concept which is not contained in the fourth Convention.

3084 The wording of this introductory sentence is based on common Article 3 . However, Article 3 refers to a "regularly constituted court", while this paragraph uses the expression "impartial and regularly constituted court". The difference is slight, but it emphasizes the need for administering justice as impartially as possible, even in the extreme circumstances of armed conflict, when the value of human life is sometimes small. Article 3 relies on the "judicial guarantees which are recognized as indispensable by civilized peoples", while Article 75 rightly spells out these guarantees. Thus this article, and to an even greater extent, Article 6 of Protocol II ' (Penal prosecutions), ' gives valuable indications to help explain the terms of Article 3 on guarantees.

3085 For enemy nationals in another State's national territory intervention by the Protecting Power in case of criminal prosecution seems possible on the basis of [p.879] Articles 9 , 30 and 43 of the fourth Convention; the representatives of the Protecting Power could call upon the guarantees provided for and demand that they are observed. For inhabitants of occupied territories intervention by the Protecting Power is laid down in detail in Articles 71 -74 of the Fourth Convention.

3086 Refugees and stateless persons have to be treated as protected persons under the fourth Convention, in accordance with Article 73 of this Protocol ' (Refugees and stateless persons), ' and they can therefore fall back on the Protecting Power of the State of refuge, failing which it may reasonably be expected that the United Nations High Commissioner for Refugees will exercise a similar role to that of a Protecting Power in such circumstances.

3087 However, if the High Commissioner for Refugees found it impossible to act, such persons could turn to any organization capable of assisting them, in accordance with Article 30 of the fourth Convention. The same applies for foreigners in the national territory of a belligerent and for foreign residents of occupied territories who do not have the protection of diplomatic representation or the aid of a Protecting Power.

3088 One organization which could aid such persons is, of course, the International Committee of the Red Cross, which under Article 10 of the fourth Convention may undertake humanitarian activities for the protection of civilians and for their relief, subject to the consent of the Parties to the conflict concerned.

3089 It is to be hoped that in the difficult circumstances of penal proceedings in time of war, none of the persons referred to above will be deprived of the assistance of a Protecting Power, or at least the assistance of a humanitarian organization.

3090 As regards nationals of the State in the name of which the proceedings and sentencing take place, the situation is more complicated; the accused may avail himself of the guarantees listed in this paragraph, but it is hardly conceivable that a Protecting Power could, or would wish to intervene in the trial and sentence of a national of that State by his own judiciary. On the other hand, intervention by a humanitarian organization such as the ICRC is not excluded, provided that it is accepted by the State concerned. For that matter, the ICRC has played that role many times in the past on the basis of its right of initiative.

3091 Let us add a remark about the judicial system. This introductory sentence assumes that prior to conviction there will be a judgement finding the accused guilty. It is a fact that in several European countries penal proceedings are carried out in two phases: first, the court pronounces its verdict on culpability and subsequently it decides on the punishment to be meted out. However, there are also countries where the court rules on culpability and punishment in the same decision and at the same time. Such a system is not in contradiction with this paragraph.

3092 Most of the guarantees listed in sub-paragraphs (a)-(j) are contained in the Conventions and the Covenant on Human Rights, (22) but in each of these treaties there is a clause permitting derogations from the articles in question in time of war. Article 75 is not subject to any possibility of derogation or suspension and consequently it is these provisions which will play a decisive role in the case of [p.880] armed conflict. Besides, the provisions in all these instruments are more or less equivalent.

3093 Finally, it is necessary to try and determine what is meant by a penal offence related to the armed conflict. We have tried to determine, with regard to paragraph 1, what should be understood by persons "affected by a situation referred to in Article 1", and reference can be made to what was said.

3094 As regards penal offences, there is no doubt at all that violations of the normal provisions of criminal law should be excluded, even if they are indirectly linked to the armed conflict: for example, someone who commits a robbery because he has lost his job as a result of the armed conflict and is unable to support himself. On the other hand, it is accepted in general that a State at war may require that its citizens and residents in its territory carry out special tasks and services: the State may impose compulsory military service on men and women; it may compel those who are not drafted into the armed forces to work in factories or on the land; it may also evacuate certain areas, requisition moveable and immoveable property, etc. In other words, in the circumstances of war when the very existence of the nation is at stake, the State may mobilize all the country's resources for the purpose of survival.

3095 In fact, such distinctions, though seemingly logical, are not based on a clear text, and it would have been preferable for the Protocol itself to have defined the penal offences for which the accused may claim the guarantees of Article 75 .

' Sub-paragraph ' (a)

3096 The first part of the sentence repeats to a large extent what was said in paragraph 3. However, according to paragraph 3, the information, whether written or oral, must be given in a language the arrested person understands. That obligation is not repeated here, but the second part of the sentence guarantees the accused all necessary rights and means of defence; it is therefore clear that a defendant who does not understand the language used by the judicial authorities must be provided with an interpreter. By the same token, he must be able to understand the assistance given by a qualified defence lawyer. If these conditions were not fulfilled, the defendant would not have the benefit of all necessary rights and means of defence.

3097 On the other hand, reference is made here to the "particulars of the offence", a detail which is not contained in paragraph 3.

' Sub-paragraph ' (b)

3098 After the Second World War and ever since, international public opinion has condemned convictions of persons on account of their membership of a group or organization. Objections were also raised against collective punishment inflicted indiscriminately on families or on the population of a district or building. In the same vein, the execution of hostages, which was not prohibited by international law in all circumstances, was considered contrary to the moral rule which should guide international society. It was therefore decided to outlaw all convictions and [p.881] punishments which are not based on individual responsibility -- in accordance with the now universally accepted principle that no one may be punished for an act he has not personally committed -- as well as reprisals. This is the origin of a series of provisions contained in the four Conventions, in particular in Article 33 of the fourth Convention, which prohibits collective penalties and reprisals and Article 34 of the same Convention, which prohibits the taking of hostages.

3099 Of course, this does not cover cases of complicity or incitement, which are punishable offences in themselves and may lead to a conviction; national legislation determines the conditions of punishment and the degree of culpability. However, the Conventions and the Protocol contain two particular provisions regarding punishment of grave breaches. The Conventions provide in case of grave breaches for the punishment both of those who committed them directly, and of those who have given the order to commit them (Articles 49 /50 /129 /146 ). Article 86 of the Protocol ' (Failure to act) ' lays down provisions for the punishment of commanders who have not taken the necessary measures to prevent their subordinates from committing grave breaches of the Conventions and the Protocol.

3100 Admittedly, ' stricto jure, ' these provisions are only applicable to grave breaches of the Conventions and the Protocol, but they do provide useful indications to determine whether or not there is an individual penal responsibility.

' Sub-paragraph ' (c)

3101 This provision reproduces almost word-for-word paragraph 1 of Article 15 of the Covenant on Civil and Political Rights. According to Article 4 of that Covenant, there is no possibility of derogation from this provision in time of armed conflict. Article 6 of Protocol II ' (Penal prosecutions), ' paragraph 2(c), contains the same provision. However, the paragraph under consideration here uses a slightly different expression at the beginning: "no one shall be accused or convicted of", while in the Covenant and in Protocol II the sentence starts as follows: "No one shall be held guilty of". There is a minor difference between Protocol II and the Covenant in the French text (not in English) which is of no practical significance. On the other hand, by adding the word "accused" the drafters of Article 75 had a specific purpose in mind: several delegations had expressed the fear that the provision would lead persons to be considered guilty before being tried. (23)

3102 Several delegations considered that the reference to "national or international law" was clear. During the debates which took place on this subject in Committee I with regard to an identical provision in Protocol II (Article 6 -- ' Penal prosecutions, ' paragraph 2(c)), some delegations suggested replacing that expression by "under the applicable law" (24) or alternatively by "under applicable [p.882] domestic or international law", (25) but Committee I retained the present text and Committee III adopted it without further discussion to include it in this article.

3103 In matters of criminal law national courts apply primarily their own national legislation; in many countries they can only apply provisions of international conventions insofar as those provisions have been incorporated in the national legislation by a special legislative act. Thus in several European countries the punishment of war crimes and crimes against humanity has, since the Second World War, frequently encountered obstacles which could only be overcome by invoking the need to repress crimes rightly condemned by all nations, even in the absence of rules of application. This reference to international law has often been called the "Nuremberg clause". The European Human Rights Convention, which contains the same phraseology, clarifies this expression in paragraph 2 of Article 7: "This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations."

3104 In fact, although the principle of legality ' (nullum crimen, nulla poena sine lege) ' is a pillar of domestic criminal law, the lex should be understood in the international context as comprising not only written law, but also unwritten law, since international law is in part customary law. Thus the second "principle of Nuremberg" reads: "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law" (26)

3105 Let us stress that it is in a government's own interests to adopt the necessary legislation, even in peacetime, for the repression of certain crimes punishable under international law. In this way they can avoid the criticism of acting arbitrarily by promulgating retroactive penal laws, even though international law may authorize them to do so.

3106 The second and third sentences of this sub-paragraph express generally recognized principles.

' Sub-paragraph ' (d)

3107 This rule is found in all human rights documents. (27) It is also included in Article 6 ' (Penal prosecutions) ' of Protocol II.

3108 It is a widely recognized legal principle that it is not the responsibility of the accused to prove he is innocent, but of the accuser to prove he is guilty. This concept may play an important role when criminal prosecutions are brought against persons on the basis of their membership of a group. (28)

[p.883] ' Sub-paragraph ' (e)

3109 This rule is contained in a slightly different form in Article 14, paragraph 3(d), of the Covenant ("to be tried in his presence") and in identical wording in Protocol II, Article 6 ' (Penal prosecutions) ', paragraph 2(e). The Rapporteur of Committee III noted that it was understood that persistent misconduct by a defendant could justify his removal from the courtroom. (29) This sub-paragraph does not exclude sentencing a defendant in his absence if the law of the State permits judgement in absentia.

3110 In some countries the discussions of the judges of the court are public and take place before the defendant; in other countries the discussion is held in camera, and only the verdict is made public. Finally, there are countries where the court's decision is communicated to the defendant by the clerk of the court in the absence of the judges. This sub-paragraph does not prohibit any such practices: the important thing is that the defendant is present at the sessions where the prosecution puts its case, when oral arguments are heard, etc. In addition, the defendant must be able to hear the witnesses and experts, to ask questions himself and to make his objections or propose corrections. (30)

' Sub-paragraph ' (f)

3111 The majority of national judiciary systems contain provisions of this nature, but it took many centuries before the legality of torturing defendants to obtain confessions and information on their accomplices was abandoned. However, it was appropriate to include here a reminder of this legal guarantee, which is recognized today, as all too often the police or examining magistrates tend to use questionable means to extract a confession which they consider to be the "final proof".

3112 The Geneva Conventions as a whole are aimed at preventing victims of war from becoming the object of brutality intended to extract information from them or from third parties (Article 17 , Third Convention; Article 31 , fourth Convention). Protocol II contains the same rule (Article 6 -- ' Penal prosecutions, ' paragraph 2(f)) as does the Covenant (Article 14, paragraph 3(g)).

[p.884] ' Sub-paragraph ' (g)

3113 This clause has the same wording as the corresponding clause of the Covenant (Article 14, paragraph 3(e)).

3114 According to the Rapporteur of Committee III, this provision was worded so as to be compatible with both the system of cross-examination of witnesses and with the inquisitorial system in which the judge himself conducts the interrogation.

3115 It is clear that the possibility of examining witnesses is an essential prerequisite for an effective defence.

' Sub-paragraph ' (h)

3116 Once again the drafters of the article have tried to stay as close as possible to the Covenant (Article 14, paragraph 7). The Rapporteur expressed himself as follows about it:

"the provision on ne bis in idem [...] is drawn from the United Nations Covenant on Civil and Political Rights [...] and is so drafted as to pose the minimum difficulties to States in an area where practice varies widely". (31)

We would like to believe the Rapporteur, but one cannot help thinking that a defendant could find himself in a difficult situation when subjected to a second trial, after the courts of another Party to the conflict or another State have already tried him on the same charges and he has been acquitted or, if he was convicted, has already served his sentence. In such circumstances defendants could no doubt invoke either the rule contained in the European Convention or that in the Covenant: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country" (Covenant, Article 14, paragraph 7).

3117 Respect for ' res judicata ' is one of the basic principles of penal procedure, and it is important to uphold this principle.

' Sub-paragraph ' (i)

3118 It is an essential element of fair justice that judgments should be pronounced publicly. Of course, a clear distinction should be made between proceedings and judgment. It may be necessary because of the circumstances and the nature of the case to hold the proceedings in camera, but the judgment itself must be made in public, unless, as the Rapporteur pointed out, this is prejudicial to the defendant himself; this could be the case for a juvenile offender. (32)

[p.885] 3119 As regards holding oral proceedings in camera, Article 14, paragraph 1, of the Covenant gives some clear indications:

"The Press and the public may be excluded from all or part of a trial for reasons of morals, public order ' (ordre public) ' or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

3120 It should be noted that Article 74 of the fourth Convention gives representatives of the Protecting Power the right to be present at sessions of any court trying a protected person in occupied territories, unless the hearing in exceptional circumstances must take place in camera in the interests of the security of the Occupying Power. In this case the Protecting Power must be informed.

' Sub-paragraph ' (j)

3121 The wording of this provision is clear. However, it should be noted that in many countries judgments in penal matters are not subject to appeal; in such cases there is often the possibility of resorting to an appeal on the law (cassation), i.e., of invoking an error in the application of the law. As regards the "other remedies", this no doubt refers to a pardon or reprieve. In some countries judgments of military courts must be confirmed by a superior military authority.

Paragraph 5

3122 It will be noted at once that the wording is slightly different from that contained in paragraph 3. In paragraph 5 reference is made to "women whose liberty has been restricted for reasons related to the armed conflict", while paragraph 3 contains the expression "persons arrested, detained or interned for actions related to the armed conflict". Should the difference in these phrases be seen as indicating a specific intention? This does not seem to be the case. It certainly seems that the word "reasons" is more appropriate for the situations that are intended to be covered. In fact, in cases of internment the decision is often made on the basis of "reasons" and not of "actions", for example, the political attitude of the internee. Thus, paragraph 5, like paragraph 3, covers women who have been arrested, detained or interned, as the expression "whose liberty has bee restricted" covers all three cases.

3123 The idea of granting women special respect is already contained in Articles 27 , 76 and 85 of the fourth Convention. Article 25 of the Third Convention also provides that women must be accommodated separately and benefit from treatment at least as favourable as that granted to men (Articles 14 and 88 ). Article 108 of the Third Convention provides that women prisoners of war serving a prison sentence must be under the supervision of women. A similar rule is contained in the Standard Minimum Rules for the Treatment of Prisoners in the version approved by ECOSOC in 1977, Rule 53, paragraph 3 of which provides that "women prisoners shall be attended and supervised only by women officers".

3124 As regards bringing together families in the same premises, this idea is already contained in the Fourth Convention (Article 82 ).

Paragraph 6

3125 This paragraph takes up an idea that was already contained in Article 6 of the Fourth Convention and is repeated in Article of 3 of this Protocol ' (Beginning and end of application) ', sub-paragraph (b).

3126 The ICRC draft did not contain such a provision since it was already contained in Article 6 of the Fourth Convention and it was therefore unnecessary to repeat it in the Protocol; on the other hand, there was a proposal to include it in Article 75 , which in itself constituted a mini-convention, containing clauses providing for the beginning and end of application. The Conference preferred to repeat the substance of the relevant provision of the Fourth Convention in Article 3 ' (Beginning and end of application) ' and retained what is now paragraph 6. This has resulted in some repetition, though it is superfluous. It should be noted that while Article 3 ' (Beginning and end of application) ' covers armed conflicts ' and ' occupation, paragraph 6 of Article 75 refers only to the end of the armed conflict; however, as we saw with regards to paragraph 3, this is of no consequence.

3127 The usefulness of the provision is clear: frequently people only return to normal conditions after the end of armed conflict; sometimes internment goes on, judgments have not been pronounced immediately, and in some cases the trial of suspects has even been delayed until the end of the conflict. Thus, it is logical that the guarantees laid down in this article should continue to apply as long as necessary.

3128 The paragraph does not state explicitly that the guarantees provided also apply to persons who might be arrested, detained or interned after the end of armed conflict. For nationals in their own State this is an important matter for the immediate post-war period is often like a day of reckoning, and it is then that suspects have most needs of guarantees, both in the judicial and in the administrative field. It seems clear that such guarantees, primarily introduced for time of conflict or occupation, apply a fortiori after the end of armed conflict in favour of persons prosecuted for reasons related to the conflict.

3129 Article 6 of the Fourth Convention refers to "release", while Article 3 ' (Beginning and end of application) ' and 75 use the term "final release". This is not a big difference, but we live in a time of overstatement; it is clear that is assigned residence is substituted for internment, this is not a release nor a final release. However, the intention of the drafter is clear: the release must be total.

3130 Repatriation obviously refers only to aliens. As regards re-establishment, this concerns persons who cannot be repatriated or simply released where they are and for whom a State of refuge or State of residence must therefore be found.

[p.887] Paragraph 7

3131 As stated above, (33) this paragraph was not contained in the ICRC draft; it is the result of an amendment submitted jointly by a group of countries. (34)

3132 Although they did not oppose the amendment some other delegates doubted its usefulness and even its necessity. Finally, as we see, the Working Group prepared a more detailed text which was accepted without discussion by Committee III and by the Conference itself.

3133 However, it is of interest to mention the explanations of some delegations. One delegation stated that:

"The phrase "prosecution and trial in accordance with the applicable rules of international law" [...] undoubtedly meant that the national law applicable in such cases must be strictly in conformity with the respective rules of international law." (35)

3134 The position adopted by that delegation seems logical, since, as we have seen, in many countries a suspect cannot be taken to court on the sole basis of the rules of international law.

3135 The following statement of a delegation should also be noted. It emphasized that "the provisions laid down in the paragraph in no way obligate any State to act in a way that might constitute a derogation from the general principle ' nulla poena sine lege ' and due process of law". (36)

3136 In actual fact this interpretative statement does not seem to be very relevant. The obligation to track down and prosecute persons accused of war crimes or crimes against humanity does not actually arise from Article 75 . Such obligations result rather from the provisions of the Geneva Conventions (Articles 49 /50 /129 /146 ), supplemented by Article 85 of the Protocol ' (Repression of breaches of this Protocol), ' as well as from international instruments such as the Charter of the Nuremberg Tribunal, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity etc. (37)

[p.888] 3137 Finally, it is relevant to quote an important statement made by one delegation:

"As the Soviet delegation understands Article 65 [75 ], its effects do not extend to war criminals and spies. National legislation should apply to this category of persons, and they should not enjoy international protection. We should like to record in this connection the reservation which the USSR made to Article 85 of the 1949 Geneva Convention on the treatment of prisoners of war. The reservation says, in particular, that persons "who have been convicted under the law of the Detaining Power, in accordance with the principles of the Nürnberg Trial, for war crimes and crimes against humanity [...] must be subject to the conditions obtaining in the country in question for those who undergo their punishment'. The position thus taken by the USSR remains unchanged" (38)

3138 This statement requires some comment. The reservation made by the USSR to Article 85 of the Third Convention applies only to the treatment of prisoners of war after they have been convicted for war crimes or crimes against humanity. There is no doubt that the same applies to persons who are not prisoners of war but are convicted of such crimes. The guarantees of Article 75 are in the first place judicial guarantees and they operate before the judgment condemning the defendant; they must therefore apply to persons being prosecuted. Clauses concerning the system of detention, which therefore apply beyond the moment of conviction, are contained in paragraphs 1, 6 and 7.

3139 The relevant common article of the Conventions (49 /50 /129 /146 ), provides that those who are charged with breaches of these Conventions will have the benefit of judicial and free defence guarantees which are not jess favourable than those provided by Articles 105 ff. of the Third Convention. (39)

3140 "War crimes" should be understood to mean serious breaches of the laws and customs of war. (40) "Crimes agains humanity" are:

"inhumane acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural ground by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities." (41)

3141 After all, sub-paragraph 7(a) merely accepts as law the rules of international law which provide for the repression of such crimes, without creating new obligations; thus it should be seen primarily as a confirmation of existing rules. [p.889] As regards the expression "the applicable rules of international law", it would seem that the interpretation given above by a delegation is valid. (42)

3142 Sub-paragraph (b) is subject to any more favourable treatment available under the Conventions or this Protocol. Prisoners of war who have the benefit of important judicial guarantees are of course not covered, since Article 75 does not concern combatants. In accordance with common Article 49 /50 /129 /146 , civilians who are guilty of breaches of the Conventions or the Protocol will have the benefit of guarantees not less favourable than those provided for in Articles 105 et seq. of the Third Convention. It is not certain whether those guarantees are more favourable than the ones set out in Article 75 . In case of doubt, the defendant can always invoke the most favourable provision. In occupied territories, protected persons benefit from the guarantees provided in Articles 64 et seq. of the Fourth Convention. Finally, it may happen that civilians are prosecuted for war crimes which constitute a breach of provisions other than those of the Conventions and the Protocol or for crimes against humanity. In that case they would benefit from the standards of treatment provided for in this article.

3143 To summarize: Article 75 is not in any way an obstacle to the prosecution and trial of persons accused of war crimes or crimes against humanity; the text of the Protocol shows this clearly and this paragraph may seem to be redundant. However, it is a fact that often things which are self-evident become even more evident if they are stated. Moreover, the drafters of the provision were right to confirm the guarantees which must apply to trials held for war crimes or crimes against humanity. In fact, it would be deplorable if repression of such crimes were to lead to questionable trials, and public opinion as a result became disappointed and embittered.

[p.890] Paragraph 8

3144 To some extent this paragraph repeats what was said in paragraph 1. However, the latter refers to more favourable treatment under the Conventions and the Protocol, while paragraph 8 refers to more favourable provisions under any applicable rules of international law, which is a broader concept. Are there any categories of persons, outside those covered by the Conventions and the Protocol, who benefit from greater protection under rules of international law?

3145 First, there are the nationals of neutral States who may have recourse to Hague Convention V of 1907 Respecting the Rights and Duties of Neutral Powers and Persons, and also to international customary practices concerning nationals of neutral States. Another category is formed by the diplomats of enemy or neutral States who may invoke international customary practices as well as some provisions of the Vienna Convention of 18 April 1961 on Diplomatic Relations, in particular Article 44 of that Convention. According to that article, the receiving State must, even in case of armed conflict, grant facilities to enable persons enjoying diplomatic status, other than its own nationals, and members of their families, to leave at the earliest possible moment; it must also make available the necessary transport. (43)

3146 The categories of persons mentioned above are only examples, and other cases may arise; if greater protection results from another Convention or from customary law, those provisions must apply, even if the persons concerned are covered by Article 75 .

' C.P./J.P. '


(1) [(1) p.863] The ICRC had submitted a draft article numbered Art. 65, which read as follows: "' Article 65 -- Fundamental guarantees '
1. Persons who would not receive more favourable treatment under the Conventions or the present Protocol, namely, nationals of States no bound by the Conventions and the Parties' own nationals shall, in all circumstances, be treated humanely by the Party in whose power they may be and without any adverse distinction. The present article also applies to persons who are in situations envisaged under Article 5 of the Fourth Convention. All these persons shall enjoy at least the provisions laid down in the following paragraphs.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or military agents:
(a) violence to the life, health and physical or mental well-being of persons, in particular torture, corporal punishment and mutilation;
(b) physical or moral coercion, in particular to obtain information;
(c) medical or scientific experiments, including the removal or transplant of organs, not justified by the medical treatment and no carried out in the patients' own interest;
(d) outrages upon personal dignity, in particular humiliating and degrading treatment;
(e) taking of hostages;
(f) threats to commit any of the foregoing acts.
3. No sentence may be passed or penalty executed on a person found guilty of an offence related to a situation referred to in Article 2 common to the Conventions, except in pursuance of a previous judgment pronounced by an impartial and properly constituted court, affording the following essential guarantees:
(a) no person may be punished for an offence he or she has not personally committed; collective penalties are prohibited;
(b) no person may be prosecuted or punished for an offence in respect of which a final judgment has been previously passed, acquitting or convicting that person;
(c) everyone charged with an offence is presumed to be innocent until proved guilty according to law;
(d) no person may be sentenced except in pursuance of those provisions of law which were in force at the time the offence was committed, subject to later more favourable provisions.
4. Women whose liberty has been restricted shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. This does not apply to those cases where members of the same family are together in the same place of internment.
5. The persons mentioned in paragraph 1, detained by reason of a situation referred to in Article 2 common to the Conventions and who are released, repatriated or established after the general cessation of hostilities, shall enjoy, in the meantime, the protection of the present article.";

(2) [(2) p.864] The text reads as follows: "Persons who would not receive more favourable treatment under the Conventions or the present Protocol, namely nationals of States not bound by the> Conventions, the Parties' own nationals and nationals of neutral or co-belligerent States having normal diplomatic representation with the Party in whose power they are shall, in all circumstances, be treated humanely by that Party and without any adverse distinction. The present Article also applies to persons who are in situations under Article 5 of the Fourth Convention. All these persons shall enjoy at least the provisions laid down in the following paragraphs." (O.R. III, p. 295, CDDH/III/319);

(3) [(3) p.864] Cf. introduction to this Section, supra, p. 838;

(4) [(4) p.865] The text read as follows: "None of the provisions of this Protocol may be used to prevent the prosecution and punishment of persons accused of war crimes and crimes against humanity." (O.R. III, p. 293, CDDH/III/315 and Add.1);

(5) [(5) p.865] Covenant, Art. 4; European Convention, Art. 15; American Convention, Art. 27;

(6) [(6) p.866] On this subject the Rapporteur expressed himself as follows: "Paragraph 1 of Article 65 [75] was the last paragraph resolved because it raised a delicate question of whether the protections of the article were to be extended to a Party's own nationals. At an early stage it was decided that the scope of the article should be restricted to persons affected by the armed conflict and further restricted to the extent that the actions by a Party in whose power they are so affect them. This is the purpose of the introductory clause of the paragraph. Moreover, paragraphs 3 to 7 inclusive are further limited by their own terms to persons affected in specific ways, e.g., persons "arrested, detained, or interned for action related to the armed conflict' (paragraph 3). Nevertheless, the question of whether or not to specify one's own nationals as protected by the article remained contentious for many days. Ultimately a compromise was reached whereby reference was deleted to all examples of persons covered by the article, at which point the article was quickly approved by the Committee." (O.R. XV, pp. 460-461, CDDH/407/Rev.1, paras. 41-42);

(7) [(7) p.866] See particularly O.R. VI, pp. 261-278, CDDH/SR.43, Annex;

(8) [(8) p.866] See introduction to this Section, supra, p. 837;

(9) [(9) p.867] Without pronouncing the legality of the measure, it may be recalled that during the Second World War the United States prohibited all its nationals of Japanese origin from staying in the Pacific Coast States;

(10) [(10) p.868] See commentary Art. 72, supra, pp. 841-842;

(11) [(11) p.869] On 31 December 1984 there were 161 States Parties to the Conventions. See infra, p. 1549;

(12) [(12) p.870] O.R. XV p. 455 CDDH /407/Rev.1, para. 27;

(13) [(13) p.870] Article 47, Protocol I;

(14) [(14) p.871] For example, the Covenant, Article 2, paragraph 1: "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status";

(15) [(15) p.871] O.R. XV, pp. 463-464, CDDH/407/Rev.1, para. 55;

(16) [(16) p.871] On this subject it is interesting to note the commentary of the Rapporteur: "Fourth, the proposal for a new article 65 bis [...] failed to achieve a consensus. Despite the fact that all delegations agreed with the principle of the proposal -- that no person may be arrested, detained or interned solely because of his convictions -- it proved impossible in the time available to work out an agreed text. Ultimately, the Committee agreed to record its consensus that this rule was implicit in Article 65, paragraph 1 [Article 75 of the Protocol], as adopted by the Committee." (ibid., p. 449, para. 12);

(17) [(17) p.872] For breaches by failure to act, see Art. 86;

(18) [(18) p.873] It is interesting to note the various resolutions of the United Nations General Assembly which, though without binding force of law, nevertheless have a real moral value. The 1975 Declaration was mentioned above. In addition on 10 December 1984 the General Assembly adopted a Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

(19) [(19) p.876] The 1929 Convention Relative to the Treatment of Prisoners of War, Art. 20; Third Convention, Arts. 41, 107, 165; Fourth Convention, Arts. 65, 71, 99;

(20) [(20) p.877] O.R. XV p. 461, CDDH/407/Rev.1, para. 46;

(21) [(21) p.878] Cf. Art. 45, para. 3, Protocol I (spies, mercenaries etc.);

(22) [(22) p.879] Covenant Art. 14; European Convention, Arts. 5-6; American Convention, Art. 8;

(23) [(23) p.881] O.R. XV, p. 461, CDDH/407/Rev.1, para. 47;

(24) [(24) p.881] This is the formula used in the American Convention on Human Rights (Art. 9);

(25) [(25) p.882] O.R. X, p. 144, CDDH/I/317/Rev.2;

(26) [(26) p.882] The formulation adopted in 1950 by the International Law Commission of the principles of international law recognized by the Charter of the Nuremberg Tribunal and in the Judgment of that Tribunal is contained in "The Work of the International Law Commission", UN Office of Public Information, New York, 1980, pp. 116 ff.;

(27) [(27) p.882] Universal Declaration, Art. 11; Covenant, Art. 44; European Convention, Art. 6; American Convention, Art. 8;

(28) [(28) p.882] Cf. commentary sub-paragraph (b), supra, p. 880;

(29) [(29) p.883] O.R. XV, p. 462, CDDH/407/Rev.1, para. 48;

(30) [(30) p.883] In an explanation of vote, one delegation declared that its country interpreted this provision as follows: "in the case of penal proceedings occupying two or more instances, in which the purpose of the last instance was to review only the applicable law and not the findings of the previous instance, the court of review had to decide whether or not the accused had to appear before it at the hearing. The court of review could not impose a higher penalty in the absence of the accused, and all the latter's rights as provided for in Article 65, paragraph 4(e) were therefore fully granted." (0. R. XV, p. 205, CDDH/III/SR.58, para. 10);

(31) [(31) p.884] Ibid., p. 462, CDDH/407/Rev.1, para. 48;

(32) [(32) p.884] Ibid;

(33) [(33) p.887] Supra, p. 863;

(34) [(34) p.887] When he presented this amendment one of the co-sponsors expressed himself as follows: "It was essential to ensure that no provision of the draft Protocol could be invoked by those criminals in order to escape the punishment they deserved. In fact, some of them had tried to evade that punishment by putting forvard interpretations of existing legal principles that were pure casuistry. It should not be possible for the principles laid down in additional Protocols to be used in that way." (O.R. XV, p. 37, CDDH/III/SR.43, para. 60);

(35) [(35) p.887] O.R. XV, p. 205, CDDH/III/SR.58, para. 11; O.R. VI, p. 269, CDDH/SR.43, Annex (Federal Republic of Germany);

(36) [(36) p.887] O.R. VI, p. 272, CDDH/SR.43, Annex (Japan);

(37) [(37) p.887] However, another delegation stated: "We therefore hold the opinion that it is of special importance when, in connexion with the enumeration of fundamental guarantees, Article 65 [85] not only reaffirms the penal responsibility for war crimes and crimes against humanity but requests that persons who are accused of such crimes should be submitted for the purpose of prosecution and trial i accordance with the applicable rules of international law." (O.R. VI, p. 268, CDDH/ SR.43, Annex (German Democratic Republic));

(38) [(38) p.888] Ibid., pp. 277-278 (USSR);

(39) [(39) p.888] See ' Commentary III '. Article 75 contains most of the guarantees provided for in the Third Convention;

(40) [(40) p.888] Report of the International Law Commission, third session, 1951, vol. 2, p. 59;

(41) [(41) p.888] Ibid., thirty-seventh session, 1985, para. 18 (1954 version of the Draft Code of offences against the peace and the security of mankind);

(42) [(42) p.889] It should be noted that the English expression "applicable rules of international law" seems rather more clear than the French version "règles du droit international applicable". The Drafting Committee clearly lacked the time to adapt the French text to read "règles applicables du droit international". In its report, Committee III wrote the word "applicables" with an "s", which was more logical (CDDH/407/Rev.1). The letter "s" disappeared in the final version, though no reason can be found for this in the Official Records of the Conference. The Spanish text is exactly the same as the English text. The same remark applies to paragraph 8, where the expression "règles du droit international applicable" is again used. Article 72 correctly uses the expression "normes applicables du droit international" (in English, "applicable rules of international law"). It is to be regretted that the Drafting Committee was careless in these matters, since "rules" is sometimes translated by "normes" and sometimes by "règles", though the concept referred to was clearly the same. It should also be noted that in Article 2, sub-paragraph (b), the French version of the Protocol uses the expression "règles du droit international applicable dans les conflits armés" (in English, "rules of international law applicable in armed conflict"). In this case the French spelling is quite correct since the word "applicable" is qualified by the words "dans les conflits armés";

(43) [(43) p.890] The Vienna Convention of 24 April 1963 on Consular Relations contains a similar provision in its Article 26. On 31 December 1984, 142 and 109 States respectively were Parties to these Conventions. However, the provisions quoted referred to customary law;