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Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Refugees and stateless persons
[p.845] Article 73
-- Refugees and stateless persons
2936 "Protected persons" under the fourth Convention are persons who "find themselves, in case of a conflict or occupation, in the hands (1) of a Party [...] of which they are not nationals" (Article 4
, paragraph 1). (2)
[p.846] 2937 Stateless persons (3) therefore by implication enjoy the status of protected persons. The present Article 73
explicitly grants them such status.
2938 As regards refugees, (4) the fourth Convention lays down explicit rules with regard to some relationships only: on the one hand, those with the State of refuge or the State of residence (Articles 44
, paragraph 4), and on the other hand, those with the Occupying Power when the latter is their country of origin (Article 70
, paragraph 2; this special provision constitutes an exception to the definition of "protected persons").
2939 Already during the Conference of Government Experts, which preceded the CDDH, the United Nations High Commissioner for Refugees (UNHCR) expressed the opinion, which was shared by the ICRC, that these provisions of the fourth Convention were insufficient and that it was appropriate to grant refugees a status which would apply with equal force vis-à-vis all Parties to the conflict, i.e., including the Party of which they are nationals.
2940 The draft article presented by the ICRC did not meet any opposition on this principle. Only one written amendment of substance was proposed (5) and accepted (see infra, point 2.1).
2941 To properly understand the scope of Article 73
it is necessary to first define the protection to which refugees are entitled under the fourth Convention, either as civilians, (6) or specifically as refugees. In order to draw a complete picture of the protection of refugees, reference is also made below to the relevant provisions of Protocol I. (7)
1. The situation of refugees under the Fourth Convention and protocol I (without applying to Article 73
1.1.' Definition '
2942 The fourth Convention does not give a definition of the term "refugee": it merely uses the criterion of de facto absence of
protection by any government. The term "refugee" is therefore
understood in a broad sense. (8)
1.2.' Protection of refugees as civilians '
2943 In the fourth Convention a distinction can be made between the rules covering the civilian population irrespective of nationality,
and those covering "protected persons", i.e., civilians who are not
nationals of the Power in whose hands they find themselves.
2944 As civilians, refugees fall under both categories of rules, of which the main ones are as follows:
a) ' Rules applicable to civilians -- and to refugees -- addressed to all Parties to the conflict (including the State of which they are nationals) '
-- general protection against the effects of hostilities (Fourth Convention: Articles 16
; Protocol I: Articles 48
' Basic rule, ' 51 -- ' Protection of the civilian population, '
-- ' Precautions in attack, ' 58
-- ' Precautions against the
effects of attacks, ' 76
-- ' Protection of women, ' 77
' Protection of children, ' and 78
-- ' Evacuation of
-- the right to take refuge in protected zones (Fourth Convention: Articles 14
; Protocol I: Articles 59
-- ' Non-defended
localities ' and 60
-- ' Demilitarized zones); '
-- the right of families to know the fate of their relatives (Fourth Convention: Articles 25
; Protocol I: Articles 32
' General principle ' and 74
-- ' Reunion of dispersed
-- the right to relief actions (Fourth Convention: Articles 23
-111, and 142
; Protocol I: Articles 69
-- ' Basic needs
in occupied territory ' and 70
-- ' Relief actions); '
-- fundamental guarantees, i.e., minimum standard of humane treatment and judicial guarantees (Protocol I: Article 75
' Fundamental guarantees ').
b) ' Rules applicable solely to civilians -- and to refugees -- who are not nationals of the Power in whose hands they find
themselves (i.e., who are "protected persons") '
-- respect for the person and humane treatment (Fourth Convention: Articles 27
-- prohibition on using protected persons to render certain points immune from military operations (Fourth Convention: Article 28
- the possibility of making application to any relief organization that might assist, for example, the ICRC and UNHCR (Fourth
Convention: Article 30
-- retention of status held prior to the conflict (Fourth Convention: Articles 38
-- the right to leave the territory (Fourth Convention, Articles 35
-- the most severe measures of control are those of assigned residence and internment (Fourth Convention: Article 41
-- prohibition of deportations from occupied territory (Fourth Convention: Article 49
-- as regards offences committed before occupation, the penal jurisdiction of the Occupying Power is limited to breaches of the
laws and customs of war (Fourth Convention: Article 70
1.3.' Specific protection of refugees '
2945 Article 44
of the fourth Convention, which applies to aliens in the territory of a Party to the conflict (Part III, Section II),
provides that the State of refuge or the State of residence, when it
takes measures of control as laid down in the Convention, must not
treat refugees as enemy aliens exclusively on the ground that their
nationality de jure is that of an enemy State. Article 45
4, contained in the same Section, provides that "in no circumstances
shall a protected person be transferred to a country where he or she
may have reason to fear persecution for his or her political opinions
or religious beliefs" (principle of non-refoulement).
2946 Article 70
, paragraph 2, applicable to occupied territories (Part III, Section III) provides that the penal jurisdiction of the
Occupying Power over its own nationals who have sought refuge in the
occupied territory before the conflict is limited to offences
committed after the outbreak of hostilities and to offences under
normal domestic law committed before the outbreak of hostilities
which would have justified extradition in time of peace.
1.4.' Omission with regard to the protection of refugees '
2947 The category of persons protected, as defined in paragraphs 1 and 2 of Article 4
of the fourth Convention, based on nationality, does
not take into account the situation of refugees, who no longer enjoy
the protection of the State of which they are nationals.
2948 When the fourth Convention was adopted in 1949 some speakers remarked that the concept of "nationals" did not cover all cases, and
in particular failed to cover the case of individuals who, having
fled their country, no longer considered themselves, or were no
longer considered as nationals of that country. Despite these
remarks, it is for the Power in whose hands they are to decide
whether the persons concerned should or should not be regarded as
nationals of the country from which they have fled, i.e., as
protected persons or not.(9) This unsatisfactory situation,
particularly when the State of refuge is invaded by the refugee's
State of origin, led to the adoption of Article 73
in Protocol I.
2. Persons covered by Article 73
of protocol I: Stateless persons and refugees considered as such before the outbreak of
2.1.' General remarks '
2949 The article specifies how the terms "stateless persons" an "refugees" should be understood: they are persons considered as such, either "under the relevant international instruments" or "under the
national legislation of the State of refuge or State of residence".
2950 The State of refuge is the State which has granted to the person in question the status of refugee or stateless person; the State of
residence is the State which has permitted the refugee or stateless
person to reside in its territory. These two concepts may apply to
the same State or to two different States. In the latter case this
means that one State -- the State of residence -- has agreed to
harbour in its territory a refugee or stateless person considered as
such by another State -- the State of refuge.
2951 The international instruments referred to are to be understood as acts adopted by an international organization, irrespective of
whether they have binding force or not. (10) They include in
particular treaties, conventions, agreements, protocols, resolutions,
recommendations and declarations. All instruments containing a
definition of refugees or stateless persons are relevant.
2952 Such instruments must have been "accepted by the Parties concerned". This phrase, which was not included in the ICRC draft,
was introduced to include the substance of the only written amendment
proposed with regard to this article. Its object is to clearly
establish that international instruments concerning stateless persons
and refugees only apply to States which have accepted these
instruments, in other words, States which are Parties to them if they
are treaties, or States which have given them binding force, or which
recognize their binding force, if they are resolutions. There can
indeed be no question that States which have not accepted such
instruments would be indirectly bound by them on the basis of this
Protocol (see also the commentary on Article 32
, pp. 346-347).
2953 However, every Party to the conflict will of course be obliged to respect decisions taken by another Party granting the status of
refugee or stateless person, whether such decisions are taken on the
basis of an international instrument, on the basis of national
legislation, or on the basis of both. In other words, the decision of
the State of refuge or the State of residence is binding upon all
Parties to the conflict, even if they have not accepted any relevant
international instrument. In fact, a decision based on the national
legislation of the State of refuge is clearly sufficient under the
terms of the article; a decision based on an international instrument
could consequently not have the effect of reducing protection and
rendering Article 73
inapplicable. This does not mean that a Party
[p.850] to the conflict can be bound indirectly to an international
instrument which it has not accepted: it only means respecting a
decision taken within the domestic framework of another State, which
is, in any case, in accordance with the principle of the
inviolability of rights laid down in Articles 38
of the fourth
2.2.' Restriction of the category of beneficiaries in time ' (ratione temporis)
2954 Article 73
is concerned with persons considered to be stateless persons or refugees "before the beginning of hostilities".
2955 However, as regards stateless persons, we shall see below (point 2.5, letter b)) that even those who only came to be considered as
such after the beginning of hostilities are protected, namely under
, paragraph 1, of the fourth Convention.
2956 As regards refugees, the main consequence of the restriction is to limit in practice the field of application of the article
' ratione personae ' to refugees who have fled from persecution or
the threat of persecution. However, other refugees, i.e., persons
displaced by the conflict outside or within their own country, will
enjoy protection or relief provided for civilians, particularly by
' (Fundamental guarantees) ' (see supra, point 1.2). On
the other hand, they will also benefit from the relevant provisions
of international law on refugees which remain applicable despite the
2.3.' Definition of stateless persons '
2957 One treaty of universal application is entirely devoted to the protection of stateless persons: this is the Convention Relating to
the Status of Stateless Persons of 28 September 1954. (11) It gives
the following definition in Article l: "the term 'stateless person'
means a person who is not considered as a national by any State under
the operation of its law". The main causes of statelessness are: lack
of harmonization of rules of private international law (conflict of
laws), having stateless parents at birth, and disappearance of the
State of origin. Thus it is a status created by factual circumstances
or legal rules, rather than a status that is conferred.
2958 Apart from the 1954 Convention which defines the status of stateless persons, there is another Convention that should be
mentioned, one which deals with the actual source of the problem of
statelessness: the Convention on the Reduction of Statelessness of 30
August 1961. (12)
2.4.' Definition of refugees '
2959 In some States there will be concordance between the definitions of international instruments and national definitions, as the
national law will have used the definition of an international
instrument. In other States there will be a difference, either
because the State is not Party to any international treaty giving a
definition -- so that it is free to have its own definition -- or
because the definition it has adopted in its own national legislation
is more extensive than that of the treaties to which it is a Party.
In this last case the national definition will prevail as it is more
favourable to the victims.
2960 The following definitions are given in the main relevant international instruments:
a) ' Convention Relating to the Status of Refugees of 28 July 1951 ' (13)
2961 According to Article 1, Section A, paragraph (2), the term "refugee" applies to any person who:
"as a result of events occuring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country;
or who, not having a nationality and being outside the
country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to
return to it".
2962 Section B, paragraph (1) of the same article provides that the words "events occuring before 1 January 1951" are to be understood,
as States may elect, to mean either "events occurring in Europe" or
"events occurring in Europe or elsewhere".
2963 In short, they are persons fleeing from persecution or from the threat of persecution.
b) ' Protocol Relating to the Status of Refugees of 31 January 1967 ' (14)
2964 In substance the definition in the Protocol is identical to that of the 1951 Convention; the aim of the Protocol is to eliminate the
time-limit ("before 1 January 1951") and the geographical restriction
c) ' Statute of the Office of the United Nations High Commissioner for Refugees (HCR) of 14 December 1950 (15) and resolutions
adopted within the framework of the United Nations '
2965 Under the terms of this Statute the UNHCR's competence extends to all persons covered by the definition of the 1951 Convention, and
"any other person, who is outside the country of his nationality or, if he has no nationality, the country of his
former habitual residence, because he has or had well-founded
fear of persecution by reason of his race, religion,
nationality or political opinion and is unable or, because of
such fear, is unwilling to avail himself of the protection of
the Government of the country of his nationality, or, if he
has no nationality, to return to the country of his former
2966 The substance of this definition is identical to the definition of the 1967 Protocol.
2967 Over the years the UNHCR has been led, on the basis of resolutions of the General Assembly, the Economic and Social Council
and the Executive Committee (16) to extend his activities of
protection and assistance to other categories of persons in similar
situations, particularly to those "who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public
order in either part of, or the whole of their country of origin or
nationality are compelled to seek refuge outside that country". (17)
2968 The UNHCR's mandate therefore extends not only to persons fleeing persecution or the threat of persecution, but also those fleeing from
armed conflict or disturbances.
2969 If a State has recognized the competence of the UNHCR with regard to certain persons before the beginning of hostilities, this means
that they will benefit from Article 73
independently of the fact
whether or not they were considered refugees under a relevant
d) ' Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September
1969 ' (18)
2970 This Convention provides that the term "refugee" applies to refugees as defined in the 1967 Protocol, as well as:
[p.853] "to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his country of
origin or nationality, is compelled to leave his place of
habitual residence in order to seek refuge in another place
outside his country of origin or nationality".
e) ' Principles relating to the treatment of refugees adopted by the Afro-Asian Legal Consultative Committee ' (19)
2971 The principles adopted in 1966 give the following definition of the refugee:
"A refugee is a person who, owing to persecution or well-founded fear of persecution for reasons of race, colour,
religion, political belief or membership of a particular
(a) leaves the State of which he is a national, or the Country of his nationality, or, if he has no nationality, the
State or Country of which he is a habitual resident; or,
(b) being outside such State or Country, is unable or unwilling to return to it or to avail himself of its
2972 According to an Addendum of 1970, the principles of 1966
"mainly contemplate the status of what may be called political refugees who have been deprived of the protection
of their own Government and do not provide adequately for the
case of other refugees or displaced persons".
2973 Consequently the Addendum purports to protect also such other persons, i.e.:
"Any person who because of foreign domination, external aggression or occupation has left his habitual place of
residence, or being outside such place, desires to return
thereto but is prevented from so doing by the Government or
authorities in control of such place of his habitual
2.5.' The effects of Article 73
a) ' General remarks '
2974 Stateless persons and refugees "shall be protected persons within the meaning of Parts I and III of the fourth Convention", provided
they are considered as such before the events leading to the
application of the Protocol.
2975 In fact, this means that they will enjoy the protection laid down by the fourth Convention as a whole, as Part II already applies to
them in the sense that it covers the whole of the civilian population
in the territory of Parties to the conflict without any adverse
distinction, in particular of nationality.
2976 Such protection will be given "in all circumstances", i.e., in all situations where humanitarian law applies. Furthermore it will be
granted "without any adverse [p.854] distinction", i.e., without any
discrimination, unless this is based on a different need for
protection or assistance.
2977 It should be noted that acts qualified as grave breaches in the Conventions constitute grave breaches of the Protocol if they are
committed against persons protected by Article 73
(see Article 85
' Repression of breaches of this Protocol, ' paragraph 2, and Article
, Fourth Convention).
b) ' Effect on stateless persons '
2978 Although they are not explicitly protected by the 1949 Conventions, stateless persons enjoy the protection of all the
provisions of the fourth Convention by virtue of Article 4
1. (20) According to this provision, "persons protected by the
Conventions are those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in
the hands of a Party to the conflict or Occupying Power of which they
are not nationals". On the other hand, they do not fall under the
exceptions to the general rule which are contained in paragraphs 2
and 4 of the same Article 4
. This proves that they are protected
persons under the fourth Convention. The article under consideration
here is therefore merely a formal confirmation of this right.
2979 The fact that Article 73
only covers persons considered as stateless persons "before the beginning of hostilities" cannot have
the effect of restricting the protection accorded them by the fourth
Convention, as this would be contrary to the ' ratio legis ' of the
article, which is to improve their protection.
2980 Thus persons who, ' before or after ' the beginning of hostilities are considered as stateless persons under the relevant
international instruments accepted by the Parties concerned or under
the national legislation of the State of refuge or of residence, are
protected by the fourth Convention and Protocol I. (21) As for
refugees, the decision of the State which has acknowledged the status
of stateless person is binding upon the other States concerned.
c) ' Effect on refugees '
2981 As regards Part I of the fourth Convention, Article 73
of the Protocol has the effect of modifying Article 4
of that Convention by
adding to the list of protected persons "refugees in the sense of
of the Protocol" and eliminating the restrictions of
paragraph 2 in respect of them. Thus refugees enjoy the protection of
all the relevant provisions of the Fourth Convention, irrespective of
their nationality and regardless of the Party in whose power they
have fallen. (22)
2982 The reference to Part III might seem superfluous. However, in our view it reveals a willingness to grant refugees the best possible
protection and allows each article of the Convention to be
interpreted in the most favourable light for refugees. This means,
for example, that refugees are entitled to the protection of
[p.855] Article 40
, paragraph 2, of the fourth Convention in all
circumstances, even though that article refers to protected persons
"of enemy nationality", and they may also avail themselves of the
right to leave the territory as laid down in Article 48
in order to
go to a third country, despite the heading of that article, which
refers to repatriation. (23)
2983 The effects with regard to the different Sections of Part III are as follows: the provisions of Part III, Section I (Provisions common
to the territories of the Parties to the conflict and to occupied
territories) apply to refugees, whether they are in the power of the
State of refuge or of the State of residence, which was already the
case before Article 73
came into being, or whether they are in the
State of which they are nationals, which is a new provision.
According to this Section, refugees are entitled in particular to
respect for their persons and to be humanely treated (Articles 27
-34) and they are entitled to make application to the services of
the Protecting Powers (of the State of refuge) and to relief
organizations (Article 30
2984 The provisions of Part III, Section II (Aliens within the territory of a Party to the conflict), already regulated the
relations between refugees and the State of refuge; Article 73
confirms these provisions. Articles 44
, paragraph 4, which are
in this Section are not modified.
2985 The provisions of Part III, Section III (Occupied territories),
become fully applicable to refugees, and this represents a change in
the law when the Occupying Power is the State of which they are
nationals. This Section in particular gives them the right to leave
the occupied territory (Article 48
) and protects them from being
forcibly transferred or deported (Article 49
). In addition, according
to Article 70
, paragraph 1, of the fourth Convention, refugees may
not be arrested, prosecuted or convicted for acts committed or for
opinions expressed before the occupation, with the exception of
breaches of the laws and customs of war. Paragraph 2 of that article
is only applicable to nationals of the Occupying Power who sought
refuge in the occupied territory before the beginning of hostilities,
but without having acquired the status of refugee in the sense of
' C.F.W. '
(1) [(1) p.845] For the meaning of the expression "in the
hands" or "in the power", see introduction to this
Section, supra, p. 837;
(2) [(2) p.845] However, see the other paras. of Art. 4, which restrict or enlarge the group of protected persons:
paragraph 2 provides that nationals of a State which is
not bound by the Convention are not protected by it. It
also provides that nationals of a neutral State (for the
definition of a neutral State, see commentary Art. 2,
sub-para. (c), supra, p. 61) who are in the territory of a
belligerent State, and nationals of a co-belligerent
State, will not be regarded as protected persons while the
State of which they are nationals has normal diplomatic
representation in the State in whose hands they are.
Paragraph 3 refers to Part II, which has a wider scope: it
covers all the populations of countries engaged in
conflict without any distinction of nationality. Paragraph
4 excludes persons protected by the First, Second or Third
(3) [(3) p.846] For the definition of a stateless person, see infra, point 2.3, p. 850;
(4) [(4) p.846] For the definition of refugees, see infra, points 1.1 and 2.4, p. 851;
(5) [(5) p.846] O.R. III, p. 287, CDDH/III/306;
(6) [(6) p.846] Members of the armed forces are not protected by the Fourth Convention, see supra, note 2, in fine;
(7) [(7) p.846] N.B.: Article 73 extends the scope of application of the rules of the Fourth Convention; it has
no effect on the provisions of Protocol I;
(8) [(8) p.846] For the definitions of the main international instruments, see infra, point 2.4, p. 851;
(9) [(9) p.848] Commentary IV, p. 47;
(10) [(10) p.849] ' Commentary Drafts, ' p. 80. See also O.R. XV, p. 18, CDDH/III/SR.42, para. 52. In fact, it is in
this sense that the term "international instruments" was
used during the CDDH; this corresponds with the English
concept of legal instruments, and not with the French
meaning of this term which is confined to treaties;
(11) [(11) p.850] On 31 December 1984 there were 35 States Parties to this Convention;
(12) [(12) p.850] On 31 December 1984 there were 13 States Parties to this Convention;
(13) [(13) p.851] On 31 December 1984 there were 95 States Parties to this Convention;
(14) [(14) p.851] It is possible to be party to the Convention or the Protocol, or to both simultaneously. The status of
a refugee is identical in all three cases, as the Protocol
refers back to the articles of the Convention on this
subject. On 31 December 1984 94 States were Parties to the Protocol;
(15) [(15) p.852] Adopted as an annex to Resolution 428 (V) of the United Nations General Assembly;
(16) [(16) p.852] General Assembly Resolutions 1167 (XII), 1388 (XIV), 1501 (XV), 1671 and 1673 (XVI), 1783 and 1784
(XVII), 1959 (XVIII), 2958 (XXVII), 3143 (XXVIII), 3454
and 3455 (XXX), 31/35, 32/67, 32/68, 33/26, 34/60, 35/41,
35/135, 35/187; ECOSOC Resolutions 1655 (LII), 1705
(LIII), 1741 (LIV), 1799 (LV), 1877 (LVII), 2011 (LXI),
1978/39, 1980/8, 1980/54; Conclusions of the Executive
Committee of the HCR: see HCR/IP/2/Eng/REV., 1984;
(17) [(17) p.852] Official documents of the General Assembly, 36th session, supplement No. 12A (A/36/12/ Add.1) of
09.11.81, pp. 18 ff. Resolution No. 22 can also be found
in the ' Conclusions on the international protection of
refugees, ' HCR/IP/2/Eng/REV., 1984;
(18) [(18) p.852] On 31 December 1984 there were 29 States Parties to this Convention;
(19) [(19) p.853] Eighth session, Bangkok, 1966, and eleventh session, Accra, 1970;
(20) [(20) p.854] In this sense, see ' Commentary IV, ' pp. 45 ff.;
(21) [(21) p.854] This was not contested during the CDDH;
(22) [(22) p.854] Thus all refugees benefit from the rules quoted above, point 1.2, including those under b);
(23) [(23) p.855] The headings of the Conventions have in any
ase no official character: they were added by the
Secretariat of the 1949 Conference and were not adopted by
the Diplomatic Conference itself;
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