Treaties, States Parties and Commentaries
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Commentary of 1987 
[p.837] Part IV, Section III -- Treatment of persons in the power of a Party to the conflict


2908 Part IV, entitled "Civilian population", comprises three sections: Section I, "General protection against effects of hostilities", Section II, "Relief in favour of the civilian population", and the present Section. The first two Sections deal with the civilian population as a collective concept which, according to Article 50 ' (Definition of civilians and civilian population), ' covers all civilians. In contrast, the present Section, concerning the "treatment of persons in the power of a Party to the conflict" formulates certain rules for the benefit of civilians as individuals. In this connection it should be recalled that, according to Article 50 ' (Definition of civilians and civilian population), ' any person who does not belong to one of the categories of persons referred to in Article 4A (1), (2), (3) and (6) of the Third Convention, or in Article 43 of this Protocol ' (Armed forces) ' is considered to be a civilian.

2909 It will be noted that the heading of this Section does not contain the adjective "civilian". Yet the heading of Part IV ' (Civilian population) ' and that of Article 72 ' (Field of application) ' do not leave any room for doubt: the persons concerned are civilians and the fate of members of the armed forces is provided for elsewhere, in particular in Article 43 ' (Armed forces) ' and the articles following it. However, although combatant and prisoner-of-war status is denied persons who have committed hostile acts, they automatically have the benefit of the provisions of this Section if they do not enjoy more favourable treatment under other provisions. It will be clear from our comments on Article 75 below ' (Fundamental guarantees) ' which categories of persons are particularly concerned. Moreover, as we shall see, that article offers new guarantees for persons who are already protected.

2910 The meaning of the words "in the power of a Party to the conflict" is not immediately clear. Similar phrases were already contained in the Hague Regulations respecting the laws and customs of war on land (1899 and 1907), in Article 4 , relating to prisoners of war. They also appear in the first Geneva Convention of 1949 in Articles 5 , 14 and 32 , in the Third Convention, Article 12 , and in the fourth Convention, Article 4 , paragraph 1. In all these cases the persons concerned are in enemy hands or have fallen into the hands or power of the enemy.

2911 When the persons concerned are neutral nationals, the same Article 4 , paragraph 2, of the fourth Convention uses the expression "who find themselves in the territory of a belligerent State". Similarly, the Conventions on the status [p.838] of stateless persons and on refugees use the words "in which he finds himself" and not the phrase "in the power of". (1)

2912 Do these different expressions denote a substantive difference in meaning? Should the expression "in the power of" be deemed to have the connotation of opposition, dependence or compulsion? We do not believe that this is so, and consider the above expressions to be equivalent. In our view the expression covers not only persons who have fallen into the hands of a Party to the conflict, but also those over whom it exercises, or would be able to exercise, authority, for the sole reason that they live in territory under its control. If this interpretation is accepted, the nationals of the Party to the conflict concerned may also invoke the provisions of this Section, though some ambiguity remains on this point and the discussions during the Diplomatic Conference, particularly in Committee III, were long and difficult; they did not shed a great deal of light on the precise scope of this Section, particularly Article 75 ' (Fundamental guarantees). '

2913 No doubt this led the Finnish government to make the following declaration when it ratified the Protocol on 7 August 1980:

"With reference to [Article 75 ] of the Protocol, the Finnish Government declare their understanding that under Article 72, the field of application of Article 75 shall be interpreted to include also the nationals of the Contracting Party applying the provisions of that Article, as well as the nationals of neutral or other States not Parties to the conflict [...]".

2914 This declaration removes any remaining doubt: the Finnish government commits itself to its own population explicitly and binds itself vis-à-vis the other Contracting States from which it expects a similar attitude.

2915 In general it must be conceded that the provisions of this Section apply to a Party to the conflict's own nationals, except where the article itself indicates otherwise. Thus Article 78 ' (Evacuation of children) ' excludes from its scope of application children who are nationals of the Party to the conflict arranging for the evacuation. In other articles the provisions would be meaningless if they did not apply to nationals of the Party to the conflict concerned. For example, the reunion of dispersed families almost always concerns persons from both Parties (Article 74 -- ' Reunion of dispersed families '). Similarly the rule which prohibits Parties to the conflict from recruiting children under fifteen into their armed forces (Article 77 -- ' Protection of children, ' paragraph 2) only makes sense if it applies to children who are nationals of the Party to the conflict concerned. Finally Article 79 ' (Measures of protection for journalists) ' contains provisions which must be applied by the Party to the conflict of which the journalist is a national.

2916 Having said this, it should be noted that each one of the articles of this Section (with the exception of Article 72 -- ' Field of application, ' which defines the field of application of this Section) contains a brief description of the persons to which it applies.

' C.P./J. P. '


(1) [(1) p.838] Convention Relating to the Status of Stateless Persons, Art. 2: "Every stateless person has duties to the country in which he finds himself [...]"; Convention Relating to the Status of Refugees, Art. 2: "Every refugee has duties to the country in which he finds himself [...]";