Treaties, States Parties and Commentaries
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Commentary of 1958 


The right of complaint is an indispensable guarantee that the provisions of the Convention are being duly applied. It is a corollary of the provisions of the preceding Articles designed to ensure that the internees have a chance to study the text of the Convention in detail.
This right was not included in the Hague Regulations concerning prisoners of war. It was during the First World War that the custom was established of allowing prisoners to put forward complaints under certain circumstances. An agreement concluded between Germany and France, on March 15, 191 8, authorized prisoners, through welfare [p.434] committees, to put their complaints and petitions before the camp commandants who could attach their comments before transmitting them to the Protecting Power. On the strength of this precedent, the authors of the 1929 Convention relative to the Treatment of Prisoners of War inserted the principles in Article 42 which were repeated in the 1949 Convention (1). They were (1) the right to petition the Detaining Power; (2) the right to complain to the Protecting Power; (3) the stipulations that such complaints and petitions should be transmitted immediately and should never, in any circumstances give rise to any punishment.
The regulations concerning internees are based on the same principles.


"Petitions" differ from "complaints" in that they do not constitute allegations that the Convention has been violated. They are comments or requests dealing exclusively with conditions of internment and submitted to the detaining authorities. The plural in this case means that while the person to whom the petition must be presented in the first instance is the commandant of the place of internment -- by virtue of his personal responsibility for the execution of the Convention under Article 99 -- it may fall within the competence of his superiors, in which case his duty is to transmit it as stated in paragraph 3 of this Article.
The Convention does not state in detail the procedure for submitting petitions, but obviously it must be compatible with the normal requirements of discipline and the administration of the place of internment and petitions must not be used for purposes other than those arising under the Convention. It will be for the commandant of the place of internment to issue regulations concerning the exercise of this right, and particularly to say whether petitions can be submitted orally or in writing and in what form.


"Complaints", unlike petitions, are of a contentious nature. They may be made because the detaining authorities have not given satisfaction or have not replied to a petition, but they may also, independently of any prior petition, constitute an appeal against an alleged violation of the provisions of the Convention.
As already seen, the procedure established during the First World War for the transmission of complaints called for the intervention [p.435] of "welfare committees". The text under discussion makes reference to a similar institution -- the Internee Committees. This action through an intermediary may present certain advantages, particularly if the Committee adds appropriate comments in support of the complainant, but it may also in certain cases hinder the free expression of the complaint and it was wished to give the internee the opportunity of applying direct, if he so desired, to the Protecting Power. It must be emphasized that complaints, like petitions, must be strictly concerned with conditions of internment, failing which they would not be accepted.
An important question arises in connection with this paragraph, a question not dealt with in the text. May internees submit their complaints to the International Committee of the Red Cross? In practice, during the Second World War, particularly when as a result of the events prisoners of war were deprived of a Protecting Power, the International Committee of the Red Cross often received complaints and transmitted them. The Committee's intervention was not of the same nature as that of the Protecting Power, which ordinarily restricted itself to arranging with the Power of Origin to make diplomatic approaches to the Detaining Power. Now it was noted that the publicity given to these diplomatic steps and their official character was not always very advantageous to the prisoners, whereas the discreet and less circumscribed action of the International Committee of the Red Cross was frequently effective (2). It is important that the benefit of this experience should not be lost and as Article 143 of the Convention concerning supervision mentions the International Committee of the Red Cross by name and says that the Committee's delegates shall enjoy the same prerogatives as the delegates of the Protecting Power, it may be deduced from this that internees' complaints may also be addressed to the International Committee of the Red Cross. The reason why the Committee is not named in Article 101 is precisely to avoid any stigma of contention attaching to any intervention it might undertake. Thus allowance is made for the susceptibilities of the Detaining Power and in many cases this will make successful approaches easier.


The transmission "forthwith" of complaints and petitions and the absence of punishment even when they are not well founded is in [p.436] conformity with the procedure established with regard to prisoners of war during the two world wars.
The Fourth Convention of 1949 has introduced a particularly important idea by stating that the transmission shall take place "without alteration". This wording was rejected by the authors of the Third Geneva Convention in order to respect the Detaining Power's right of censorship. The discussions at the Diplomatic Conference concerning the Fourth Convention showed that there was a specific wish to avoid any suggestion of censorship with regard to civilians. It was nevertheless said that some supervision by the Detaining Power must be allowed "for security reasons" (3).
The prohibition of punishment for making even unfounded complaints and petitions finds ample justification from the humanitarian point of view. Internees often find themselves in conditions so distressing that they may commit errors of judgment under the influence of ideas hostile to the Detaining Power. It is therefore only reasonable to be indulgent towards them, even if they are mistaken. Furthermore, if they were to fear any sort of punishment as the result of the steps they were taking, they would be deprived of a right which in part guarantees respect for the person and which constitutes one of the four fundamental freedoms mentioned in the Preamble to the Universal Declaration of Human Rights (4).


It is in order to appreciate with full knowledge of the facts the truth of any complaints submitted that the Protecting Power needs to be informed as exactly and regularly as possible of internment conditions. It will thus be able to find out whether the facts of which it is informed are exceptions or are the consequences of malpractices which should be set right. Some of the Government Experts who met in 1947 had envisaged making it obligatory to transmit periodically to the Protecting Power reports drafted on a model form. This opinion did not prevail in the sense that it was given mandatory form; the idea of periodical reports was retained, but the Convention leaves it to the Internee Committees to submit their reports when and how they think fit.
[p.437] These reports are intended for the Protecting Power but in many cases the information which they contain will be of greater interest to the relief organizations. It will therefore be part of the duty of the Protecting Power to transmit as rapidly as possible any information of interest to the institutions capable of assisting those concerned. Thus the Protecting Power should make the fullest possible use of this source of information; it will act itself if diplomatic action is needed and will approach the relief organizations if the assistance to be given to the detained is within the scope of their activities.

Notes: (1) [(1) p.434] See Third Convention, Article 78;

(2) [(1) p.435] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, pp. 341-342;

(3) [(1) p.436] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 681-682;

(4) [(2) p.436] "Whereas... the advent of a world in which
human beings shall enjoy freedom of speech and belief and
freedom from fear and want has been proclaimed as the
highest aspiration of the common people..." (Universal
Declaration of Human Rights, Preamble, para. 2);