Treaties, States Parties and Commentaries
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Commentary of 1958 
[p.232] SECTION II


' ALIENS WITHIN THE TERRITORY OF A PARTY
TO THE CONFLICT '

INTRODUCTION

In the course of history the legal status of civilians of enemy nationality living in the territory of belligerent States has undergone numerous changes. Treated as slaves under Roman law, they were still regarded as prisoners of war in the time of Grotius; but their position gradually improved under the impact of new ideas. Many States concluded treaties in peacetime guaranteeing that nationals of other Parties to the treaty would be free to leave the country should a war break out. An unwritten law (1) was thus created and the authors of the Hague Regulations may be said to have endorsed it when they refrained from stipulating that nationals of a belligerent residing within the territory of the adverse party were not to be interned. They felt that it went without saying (2).
The First World War was to modify this liberal concept profoundly. As soon as the conflict broke out the belligerent States closed their frontiers, sometimes preventing any foreigners from leaving, and interning large numbers of civilians of enemy nationality.
The change in their attitude may be explained by the general adoption of a system of compulsory military service. This raised a danger which had not existed when armies were formed of mercenaries or when conscription was carried out by drawing lots (up to the beginning of the 20th century). Nowadays every enemy national is a potential soldier and his internment becomes understandable. Internees, [p.233] however, were usually forced to live in deplorable conditions and the voice of the Red Cross was raised in protest. In order to improve the treatment accorded to them, the International Committee prepared a preliminary Draft Convention which was adopted by the XVth International Conference (Tokyo, 1934).
The outbreak of hostilities in 1939 unfortunately prevented the draft from entering into force, but the International Committee of the Red Cross was able to arrange for civilian internees to be given the benefit, by analogy, of the provisions of the 1929 Prisoners of War Convention; as a result of the Committee's action some 160,000 civilians, of fifty different nationalities, received the same treatment as prisoners of war throughout the duration of hostilities.
A gap remained, however, and the provisions in this Section are intended to fill it. They give protected persons (3) a legal status in the form of a comprehensive series of safeguards set out in detail.


Notes: (1) [(1) p.232] See Robert R. WILSON: ' Treatment of Civilian
Alien Enemies ' (American Journal of International Law,
1943, p. 32);

(2) [(2) p.232] See article by Max HUBER in the ' Jahrbuch des
öffentlichen Rechts, ' Vol. II, 1908, pp. 579-580;

(3) [(1) p.233] It must be remembered that under Article 4 of
the Convention, nationals of a neutral or co-belligerent
State are not regarded as protected persons "while the
State of which they are national has normal diplomatic
representation in the State in whose hands they are";