Treaties, States Parties and Commentaries
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Commentary of 1958 

1. ' General '

Among the enemy aliens in the territory of a Party to a conflict there may be one category whose position warrants special consideration [p.263] -- namely refugees who have been forced by events or by persecution to leave their native land and seek asylum in another country.
When the country in which they have taken refuge is involved in a war with their country of origin, they become enemy aliens, since they are citizens of an enemy Power. Their position, however, is a special one, for they are expatriates who have no longer any connection with their State of origin and do not enjoy the assistance of a Protecting Power. On the other hand, they have not established any permanent connection with the country which has granted them asylum. Consequently they do not enjoy the protection of any government.
During the Second World War the number of refugees living in the territory of the belligerents was greater than ever before. Various belligerent countries made allowances for this state of affairs by introducing laws exempting such persons from measures taken against enemy aliens.
This course was, for example, adopted in certain English-speaking countries where the number of refugees was particularly high. The countries in question entrusted the consideration of individual cases to special tribunals set up in different parts of the country; their task was to establish a clear distinction between enemy aliens "real enemies") and refugees who originally came from an enemy country ("friendly enemies"). The latter enjoyed a status which was appreciably more favourable than that possessed by the former. The right to appeal to advisory committees composed of independent persons of some standing was an added safeguard for those who wished to claim refugee status (2).
Article 44, which deals exclusively with refugees, was adopted by the Diplomatic Conference in order to take account of this situation and of certain observations made by the International Refugee Organization and the Israel Delegation.

2. ' Definition. Treatment '

Several instruments of international law -- the Constitution of the International Refugee Organization, the Statutes of the Office of the High Commissioner for Refugees and the Convention on the Status of Refugees of July 28, 1951 (3) -- have defined the term refugee. The [p.264] definitions in question are valid for the particular purposes of law for which they were formulated, but are too technical and too limited in scope to meet the requirements of the Geneva Convention.
The Convention does not define the term refugee. It merely notes the fact that certain persons do not "enjoy the protection of any government": if a protected person who is in law a national of an enemy State is in actual fact without any diplomatic protection (whether because he has broken with his country's government or because he does not wish to claim its protection), this provision applies to that person. The clause should be interpreted in this broad sense, in accordance with the spirit of the Convention.
People who are in fact the first victims of the Power at war with their country of asylum and who are in certain cases in favour of the latter's cause, obviously cannot be treated as enemies. The purely formal criterion of nationality must therefore be adjusted, for it rests on an essentially legal and technical conception, and the strict application of such a criterion would be in contradiction to human reality and contrary to justice and morality.
When the Convention stipulates that the position of an enemy alien must not be considered solely in the light of his legal nationality, it in fact invites belligerents to take into consideration a whole set of circumstances which may reveal what might be called the "spiritual affinity" or "ideological allegiance" of a protected person. A State must decide whether the application of security measures is justified or not on the basis of these data and not by applying the superficial criterion of nationality. As has been very rightly stressed (4), there is justification for the assumption that nationals who enjoy the protection of their government and of its agent, the Protecting Power, sympathise with the cause of their country and may represent a danger to the safety of the country where they are living. In the case of refugees, on the other hand, the contrary is to be presumed; the term refugee tends to imply that the persons concerned are opposed to the political system in force in their home country and have no reason to promote its success in
any manner whatsoever.
The Article does not give refugees an absolute right to exemption from security measures. It is only an urgent recommendation to belligerents. The status of refugees does not of itself give anyone a right to immunity. It does not prevent the adoption of security measures, internment for example. There may conceivably be among the refugees people whose political convictions or activities represent [p.265] a danger to the security of the State, which would then be entitled to resort to the necessary control measures to the same extent and subject to the same conditions as for any person protected under the Convention (5).
In view of the complexity of the problem and the variety of cases which may occur in practice, the Conference had to confine itself to laying down general rules of a sufficiently flexible character, leaving a great deal to the discretion of governments. In the absence of more detailed rules, which it did not appear either possible or advisable to lay down, it is to be hoped that belligerents will apply this Article in the broadest humanitarian spirit, in order that the maximum use may be made of the resources it offers for the protection of refugees.

Notes: (1) [(3) p.262] For the discussions leading up to the Article,
see ' Final Record, ' Vol. II-A, pp. 660, 758, 809, 826;
Vol. II-B, pp. 411-413; Vol. III, p. 128;

(2) [(1) p.263] For further details, see R. M. W. KEMPNER:
' The Enemy Alien Problem in the Present War ', American
Journal of International Law, 1940, pp. 443 et seq.; R. A.
WILSON: ' Treatment of Civilian Alien Enemies, ' loc.
cit., 1943, pp. 30 et seq.; and G. LEIBHOLZ: ' Die
völkerrechtliche Stellung der "Refugees" im Krieg ',
Archiv für Völkerrecht, 1949, pp. 146-147.

(3) [(2) p.263] Article 8 of that Convention embodies a
provision similar to this one;

(4) [(1) p.264] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. III, pp. 122-123;

(5) [(1) p.265] See ' Final Record, ' Vol. II-B, pp. 411-413
and Vol. III, pp. 122-123;