Treaties, States Parties and Commentaries
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Commentary of 1958 

1. ' General Observations and Historical Survey '

When the Geneva Diplomatic Conference of 1929 expressed a wish for an improvement in the protection of civilians under international law, it might have been thought that such protection could be ensured by a development of the Fourth Hague Convention of 1907.
However, the tragic events of which so many civilians were victim during the Second World War showed that such a vital problem could only be solved by means of special regulations, and it was recognized that a completely new and separate diplomatic instrument would have to be drawn up. Those who took part in the preparatory work had such an instrument in mind.
Once the text was drawn up, it was necessary to specify the relationship between the new Convention and the Hague Regulations, which contain general provisions forming the basis for the protection of civilians in time of war, particularly in occupied territory. Article 154 is therefore based on the need to specify the relationship of the Convention with the Hague Regulations. Various drafts were put forward. Some had thought that the new Convention could be said to "replace" the 1907 Hague Regulations in respect of subjects dealt with in the Convention. Finally, the 1949 Diplomatic Conference decided in favour of a proposal made by the International Committee of the Red Cross at the Conference of Government Experts in 1947.
The wording adopted by the Diplomatic Conference is similar to that which specifies the relationship between the Third Geneva [p.614] Convention relative to the Treatment of Prisoners of War and the 1907 Hague Regulations. The Third Geneva Convention, however, repeats everything in the Hague Regulations which concerns prisoners of war, whereas in the Fourth Convention some of the provisions of those Regulations which deal with civilians have been omitted or amended. The explanation is simple: the Hague Regulations codify the laws and customs of war and are intended above all to serve as a guide to the armed forces, whereas the Fourth Convention aims principally at the protection of civilians.
Generally speaking, however, it may rightly be claimed that the Convention as a whole determines the treatment of civilians in time of war so that in that connection, with the few exceptions discussed later, the new provisions have entirely replaced the 1907 Regulations. For that reason, when a State is party to the Fourth Geneva Convention of 1949, it is almost superfluous to enquire whether it is also bound by the Fourth Hague Convention of 1907 or the Second of 1899. Furthermore, the Hague Regulations are considered to have given written expression to international custom and no State would be justified today in claiming that the Regulations are not binding on it because it is not party to them. The International Military Tribunal sitting at Nuremberg stated as much when it said that in 1939 the Regulations annexed to the Convention (the Fourth Hague Convention of 1907) were accepted by all civilized States and regarded by them as the codified expression of the laws and customs of war to which Article 6(b) of its Chapter referred.
There is no need, therefore, in particular cases, to wonder whether the Hague Regulations and the Fourth Geneva Convention are both applicable. If the Geneva Convention is applicable, the Hague Regulations are also applicable ' a fortiori ' in respect of all matters concerning civilian persons in time of war not contained in the 1949 Convention.
A detailed examination of those provisions of the Hague Regulations (sections II and III) which affect the situation of civilian persons is necessary to determine what points have been omitted in the Fourth Convention.

2. ' Examination of the provisions of the Hague Regulations '

"' Article 23 '. -- In addition to the prohibitions provided by special Conventions, it is especially forbidden:


(g) to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war."

[p.615] Without expressing an opinion on the subject, it may perhaps be permissible to refer to the inordinately wide use which has been made of the pretext of "the necessities of war" to justify destruction and seizure.
The Fourth Convention has repeated this prohibition in Article 53 in respect of destruction in occupied territory only. Furthermore, the prohibition relates only to destruction carried out by the Occupying Power. Destruction caused by other belligerents, particularly by bombing, is not mentioned.
The provision of the Hague Regulations, in so far as it is considered still applicable, therefore remains valid for all seizures of enemy property and for destruction not carried out by the Occupying Power in occupied territory.

"' Article 23 '. -- ... it is especially forbidden...
(h) to declare abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile Party."

The Geneva Convention contains no explicit provision of this type, since as a general rule it does not deal with the protection of property. It therefore remains completely valid, although, in truth, it has not always been observed by belligerents.

"' Article 23, paragraph 2 '. -- A belligerent is likewise forbidden to compel the nationals of the hostile Party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war."

This prohibition is general in scope and applies both to the inhabitants of occupied territory and to enemy nationals in the territory of the State concerned.
The Fourth Convention, in paragraph 1 of Article 51 , confirms this prohibition in respect of occupied territory, extends it and makes it more precise. It prohibits not only compulsion, but also forbids any pressure or propaganda which aims at securing voluntary enlistment. It is not restricted to warlike operations against the country of the protected persons, but prohibits all military service.
The situation of enemy aliens in the territory of a belligerent is governed by paragraph 2 of Article 40 , which contains the same prohibition as the Hague Regulations.

"' Article 27 '. -- In sieges and bombardments, all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not being used at the same time for military purposes.
[p.616] It is the duty of the besieged to indicate the place of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand."

The protection of civilian hospitals is henceforth ensured by Articles 18 and 20 of the Convention; subject to certain conditions, they may be marked by means of the red cross emblem.
As regards all other buildings and establishments, however, the provision in the Hague Regulations remains valid.

"' Article 28 '. -- The pillage of a town or place, even when taken by assault, is prohibited."

Article 33 of the Fourth Geneva Convention of 1949 repeats this prohibition in absolutely general terms.

"' Article 29 '. -- A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.
Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: soldiers and civilians carrying out their mission openly, entrusted with the delivery of despatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory."

The definition of a spy given in this Article remains completely valid since the Geneva Convention contains no similar provision. However, a spy is also a protected person in so far as he conforms to the definition given in Article 4 of the Fourth Convention. Under Article 5 of the Convention, the spy may nevertheless be deprived temporarily of certain rights, particularly the right of communication.

"' Article 30 '. -- A spy taken in the act shall not be punished without previous trial."

The Convention contains several provisions in this respect which extend the principle and make it precise. Thus Article 3 prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples".
Article 3 , although it applies only to armed conflicts not of an international character, contains rules of absolutely general application. The prohibition mentioned is, moreover, confirmed by Article 5 and Articles 64 -76.
[p.617] It should also be noted that paragraph 2 of Article 68 authorizes the Occupying Power under certain conditions to inflict the death penalty on protected persons found guilty of espionage.

"' Article 31 '. -- A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage."

This rule remains valid.

"' Article 42 '. -- Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only the territories where such authority has been established and can be exercised."

As stated above, the Geneva Convention is a complete document containing its own rules of application. Those rules are based above all on the individual. Once the individual is in the power of the enemy he becomes by that very fact a protected person in the sense of Article 4 . Article 42 of the Hague Regulations, therefore, has no direct influence on the application of the Fourth Convention to civilian persons protected by its terms.

"' Article 43 '. -- The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

This Article imposes obligations of a general nature on the Occupying Power, intended to protect not only the inhabitants of the occupied territory, but also, for example, the State, political institutions, etc.
The Geneva Convention does not deal with the observance of the laws in force except in so far as they are directly connected with civilian persons. For that reason, it contains specific provisions concerning penal legislation (Article 64 et sqq.) and labour legislation (Article 51 ).
With regard to the maintenance of public order and safety, the Fourth Convention only deals with such aspects as are directly connected with the protection of civilian persons, particularly ensuring food and medical supplies for the population (Article 55 ), preserving hygiene and public health (Article 56 ) and giving spiritual assistance (Article 58 ).
It may therefore be concluded that the Convention has taken from this provision of the Hague Regulations those parts essential for the protection of civilian persons. In all other respects, Article 43 of the Regulations remains valid.

[p.618] "' Article 44 '. -- A belligerent is forbidden to force inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defence."

Article 31 of the Geneva Convention contains a general prohibition on the exercise of physical or moral coercion, in particular to obtain information from protected persons or from third parties. Article 44 of the Regulations therefore no longer has any point.

"' Article 45 '. -- It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power."

There is no exactly similar provision in the Fourth Convention, but its substance is certainly contained in Article 27 , which provides that protected persons are entitled to respect for their persons and honour. Furthermore, Article 68 emphasizes that protected persons who are not nationals of the Occupying Power are not bound to it by any duty of allegiance.
It may therefore be considered that, while the Convention does deal with this point in general terms, the specific prohibition contained in the Hague Regulations remains valid.

"' Article 46 '. -- Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
Private property cannot be confiscated."

Everything in this Article which concerns the protection of the individual has been repeated, developed and made more precise in the Convention, especially in Article 27 .
On the other hand, respect for private property is not covered by the Geneva Convention.

"' Article 47 '. -- Pillage is formally forbidden."

As stated with regard to Article 28 of the Regulations, Article 33 of the Convention contains a general prohibition of pillage. Article 47 of the Regulations therefore loses all point as regards civilian persons.

"' Article 48 '. -- If, in the territory occupied, the occupant collects the taxes, dues and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound."

"' Article 49 '. -- If, in addition to the taxes mentioned in the above Article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question."

[p.619] These Articles are not directly connected with the protection of the civilian persons. They are therefore not to be found in the Convention and remain valid.

"' Article 50 '. -- No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."

This provision has given rise to various interpretations. Thus many authors have claimed that it does not prohibit the execution of hostages.
The Convention defined and extended the prohibition on collective punishment in Article 33 . Article 34 forbids the taking of hostages.
Article 50 of the Regulations has thus become very much out-of-date.

"' Article 51 '. -- No contribution shall be collected except under a written order, and on the responsibility of a Commander-in-Chief.
The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force.
For every contribution a receipt shall be given to the contributories."

The reader is referred to the comments on Articles 48 and 49 .

"' Article 52 '. -- Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.
Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.
Contributions in kind shall, as far as possible, be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible."

Here, a distinction must be drawn between requisitions of services and requisitions in kind:

(a) Requisitions of services:
Article 51 of the Convention develops and makes more precise the Article in the Hague Regulations. It constitutes, in fact, a new set of very detailed regulations. On two points, however, the Hague Regulations remain valid: the requisition of services shall be in proportion to the resources of the country and shall only be demanded on the authority of the commander in the locality occupied. The Convention does not mention these two points.
It should also be noted that under Article 54 , judges and public officials benefit from special provisions.

[p.620] (b) Requisitions in kind:
In this sphere the Hague Regulations remain completely valid.
The Convention mentions only some special cases for which special rules are laid down. These include food and medical supplies (Article 55 ) and civilian hospitals and their material and stores (Article 57 ). These requisitions remain subject, as provided in the Hague Regulations, to the authority of the commander in the locality occupied.

' Articles 53 to 55 '.

These Articles, which do not deal directly with the protection of civilian persons, have no equivalent in the Convention and therefore remain completely valid.

"' Article 56 '. -- The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.
All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of arts and science, is forbidden and should be made the subject of legal proceedings."

This Article remains valid. It may be noted that Article 63 of the Convention gives relief societies wider guarantees. Furthermore, the protection of hospitals is dealt with at length in Articles 18 , 19 , 20 , 56 and 57 of the Convention. On this particular point, the Geneva Convention has established a completely new system.

3. ' Conclusions '

An examination of those provisions of the Hague Regulations which relate to the protection of civilian persons shows that the Fourth Convention repeats most of them. Nevertheless, the Hague Regulations remain applicable.
In giving instructions to their armed forces or administrative services with regard to the treatment of civilian persons, especially in occupied territory, States will therefore have to take this situation into account. They could take as a basis for such instructions the Fourth Convention, with the addition of those points on which the Hague Regulations remain valid and must be observed.
In order to facilitate the drawing up of such instructions, the points concerned are summarized as follows:

' In respect of all the belligerent countries: '

(1) Prohibition of the seizure of enemy property and the destruction of
enemy property other than that carried out by the Occupying Power in
occupied territory (Article 23 (g) ); [p.621] (2) Prohibition on declaring abolished, suspended or inadmissible in a
court of law the rights and actions of the nationals of the hostile
party (Article 23 (h) ); (3) Definition of a spy (Articles 29 and 31 );

' Occupied territories: '

(4) The general maintenance of public order and safety and respect for
the laws in force (Article 43 ); (5) Prohibition on coercion of the population to swear allegiance
(Article 45 ); (6) Respect for private property (Article 46 ); (7) Taxes and contributions (Articles 48 , 49 and 51 ); (8) Requisitions of services: they must be proportional to the resources
of the country and only carried out on the authority of the commander
in the locality occupied (Article 52 ); (9) The requisition of foodstuffs and medical material and stores shall
only be demanded on the authority of the commander in the locality
occupied (Article 52 ).

Naturally only those questions which directly concern civilian persons have been mentioned. Of course, provisions of another character, such as Articles 22 , 23 (in part), 24 to 27, 32 to 34, 36 to 41, 42 and 53 to 56 of the Hague Regulations which deal with very different subjects, remain completely valid.