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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
-- BEGINNING AND END OF APPLICATION
[p.59] This is the only one of the four Geneva Conventions which contains specific provisions relating to the general cessation of its application. The other Conventions contain clauses dealing with the moment when the Convention ceases to apply to each individual protected person, as in the last paragraph of this Article.
PARAGRAPH 1. -- BEGINNING OF APPLICATION
It will be well to recall certain fundamental considerations. The Convention was to enter into force, under Article 153
, six months after the deposit of the second ratification. The second instrument of ratification was, in fact, deposited on April 21, 1950, and the Convention therefore entered into force on October 21 of that year. Subsequently it enters into force for each Contracting Party six months after the deposit of that Party's instrument of ratification or accession. Certain provisions of the Convention -- Article 144
for instance -- must be applied in peace time, but the majority of its provisions are only applicable when the conditions laid down in Article 2
are fulfilled. The purpose of that Article is then to define the cases in which the Convention is applicable, whereas the present paragraph is concerned with the beginning of its applicability by the Contracting Parties engaged in the struggle. From that moment the Convention applies to all protected persons provided they themselves, as individuals, fulfil the conditions laid down in Article 4
The words "any conflict" may mean declared wars or any other armed conflict covered by Article 2
. By using the words "from the outset" the authors of the Convention wished to show that it became applicable as soon as the first acts of violence were committed, even if the armed struggle did not continue. Nor is it necessary for there to have been many victims. Mere frontier incidents may make the Convention applicable, for they may be the beginning of a more widespread conflict. The Convention should be applied as soon as troops are in foreign territory and in contact with the civilian population there. The same would apply if, following frontier incidents, the Government concerned adopted security measures, such as internment, [p.60] against the nationals of the other State who are in its territory (1). The word "occupation" in this paragraph should naturally be taken as including the form of occupation, referred to in Article 2
, where no military resistance is encountered. The Rapporteur of Committee III was very definite about
this; he expresses himself as follows: "It was perfectly well understood that the word "occupation" referred not only to occupation during war itself, but also to sudden occupation without war, as provided in the second paragraph of Article 2
" (2). It is a question here, we repeat, of the application of the Convention as between the Parties concerned. In all cases of occupation, whether carried out by force or without meeting any resistance, the Convention becomes applicable to individuals, i.e. to the protected persons, as they fall into the hands of the Occupying Power.
It follows from this that the word "occupation", as used in the Article, has a wider meaning than it has in Article 42
of the Regulations annexed to the Fourth Hague Convention of 1907. So far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of the Article 42
referred to above. The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the present Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets. When it withdraws, for example, it cannot take civilians with it, for that would be contrary to Article 49
which prohibits the deportation or forcible transfer of persons from occupied territory. The same thing
is true of raids made into enemy territory or on his coasts. The Convention is quite definite on this point: all persons who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals are protected persons. No loophole is left.
Some of the Convention's provisions become applicable immediately, such as those in Article 136
, which concerns the setting up of an official Information Bureau. Others -- Articles 52
and even some of the provisions of Articles 59
to 62, for example -- presuppose the presence of the occupation authorities for a fairly long period. [p.61] However, all the provisions relating to the rights enjoyed by protected persons or to the treatment which must be given to them become applicable forthwith whatever the duration of the occupation. Thus troops advancing into enemy territory cannot under any circumstances execute a civilian without trial, no matter what crime he has committed. The person in question must be tried and sentenced in accordance with Article 64
and the Articles which follow it.
One proposal at the Diplomatic Conference was that this paragraph should contain a reference to Article 3
, which relates, as we know, to conflicts not of an international character. The proposal was rejected by 21 votes to 20, with 2 abstentions. This result appears to confirm the opinion already expressed -- namely, that Article 3
is really a "Convention in miniature" and itself contains the rules governing its application (3).
PARAGRAPH 2. -- END OF APPLICATION IN THE
TERRITORY OF THE PARTIES TO THE CONFLICT
Committee III had laid down that in the territory of the Parties to the conflict the Convention would not cease to apply until one year after the general close of military operations (4). The United Kingdom Delegation proposed in plenary session that this waiting period should be dropped. The British amendment was adopted by 17 votes to 14, with 12 abstentions. It has doubtless certain advantages, but also certain drawbacks, for in the period following the close of military operations conditions are still fairly unsettled and the passions roused by war are still aflame. Hence the necessity for clear rules safeguarding protected persons, most of whom are of course enemy nationals.
It was argued, however, that while the maintenance in force of the Convention would certainly protect foreign nationals in the territory of the Parties to the conflict, it would at the same time provide grounds for prolonging any security measures applied to them, such as assigned residence or internment. But such restrictions of personal liberty are only justified by the existence of an armed struggle. Viewed from that angle, the solution adopted was a happy one; it means at any rate that there can be no question after hostilities have ended, of applying restrictive measures of this kind to enemy nationals [p.62] who have not been subjected to them before. This remark only applies, incidentally, to security measures and not to the normal administration of justice.
What should be understood by the words "general close of military operations"? In the opinion of the Rapporteur of Committee III, the general close of military operations was "when the last shot has been fired" (5). There are, however, a certain number of other factors to be taken into account. When the struggle takes place between two States the date of the close of hostilities is fairly easy to decide: it will depend either on an armistice, a capitulation or simply on ' debellatio ' (6). On the other hand, when there are several States on one or both of the sides, the question is harder to settle. It must be agreed that in most cases the general close of military operations will be the final end of all fighting between all those concerned (7).
It should be noted that everything that has just been said is subject to the reservation in paragraph 4 which will be considered shortly.
PARAGRAPH 3. -- END OF APPLICATION OF THE CONVENTION
IN OCCUPIED TERRITORIES
In the preliminary stages it had been thought that the Convention would only cease to apply when the occupation itself was at an end. That was what the draft text adopted by the Stockholm Conference laid down. Several delegations pointed out at the Diplomatic Conference, however, that if the occupation were to continue for a very long time after the general cessation of hostilities, a time would doubtless come when the application of the Convention was no longer justified, especially if most of the governmental and administrative duties carried out at one time by the Occupying Power had been handed over to the authorities of the occupied territory. In 1949 the delegates naturally had in mind the cases of Germany and Japan. It was finally laid down, therefore, that in occupied territory the Convention would be fully applicable for a period of one year, after which [p.63] the Occupying Power would only be bound by it in so far as it continued to exercise governmental functions. The solution appears to be a reasonable one. One year after the close of
hostilities, the authorities of the occupied State will almost always have regained their freedom of action to some extent; communications with the outside world having been re-established, world public opinion will, moreover, have some effect. Furthermore, two cases of an occupation being prolonged after the cessation of hostilities can be envisaged. When the occupied Power is victorious, the territory will obviously be freed before one year has passed; on the other hand, if the Occupying Power is victorious, the occupation may last more than a year, but as hostilities have ceased, stringent measures against the civilian population will no longer be justified.
The Diplomatic Conference drew up a list of Articles which the Occupying Power must observe after the period of one year has elapsed, so long as the occupation lasts, in so far as that Power exercises governmental functions. They include, first and foremost, the general Articles (1
to 12); this is most important, especially in view of the activities of the Protecting Powers provided for in Article 9
: they also include Article 27
, which prescribes the humane treatment of protected persons, and Articles 29
to 34, which lay down a certain number of fundamental rules for the treatment of persons in the hands of a Power of which they are not nationals. On the other hand, the provisions which concern situations connected with military operations -- in particular Articles 48
to 58 -- will no longer apply. The same applies to the clauses relating to internment, with the exception of Article 143
dealing with supervision by the Protecting Power, which will remain in force.
It was noted, when discussing Article 2
, that the Convention applies to cases of occupation carried out under the terms of the instrument which brings hostilities to a close: an armistice, capitulation, etc. The present rule applies in such cases.
Article 6 does not say when the Convention will cease to apply in cases of occupation where there has been no military resistance, no state of war and no armed conflict. This omission appears to be deliberate and must be taken to mean that the Convention will be fully applicable in such cases, so long as the occupation lasts. The Convention could only cease to apply as the result of a political act, such as the annexation of the territory or its incorporation in a federation, and then only if the political act in question had been recognized and accepted by the community of States; if it were not so recognized and accepted, the provisions of the Convention must continue to be applied.
[p.64] PARAGRAPH 4. -- CONTINUED APPLICATION TO CERTAIN PERSONS
This paragraph is a happy addition to the other provisions of Article 6. The time when the Convention as a whole ceases to apply, both in the territory of the Parties to the conflict and in occupied territory, may quite conceivably come before the protected persons have been able to resume a normal existence, especially if they have to be repatriated or assisted to resettle. In the territory of the Parties to the conflict, for example, if internees are not immediately released, the rules laid down in the Convention must obviously continue to apply to them, and if the State decides to repatriate certain enemy nationals, whether interned or not, their repatriation must be carried out in accordance with the Convention. Similarly, in occupied territories, where an Occupying Power considers it necessary to prolong the internment of certain persons after the time limit of one year has expired, the persons concerned will continue to enjoy all their rights under the Convention. The word "resettlement" is used in regard to protected persons who cannot be
repatriated for one reason or another and are not allowed to settle permanently in the country where they are living. In such cases another country must be found where they will be received and allowed to settle. It was in particular the experience gained at the end of the Second World War which led to the adoption of this clause.
Notes: (1) [(1) p.60] Its application in this case might, of course,
only be temporary if the incidents were quickly settled
and the situation became peaceful once again, and did not
degenerate into a more general conflict;
(2) [(2) p.60] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-A, p. 815;
(3) [(1) p.61] Needless to say, Article 3 too becomes
applicable from the very outset of the conflicts to which
(4) [(2) p.61] The solution was to have been the same in the
case of occupied territory;
(5) [(1) p.62] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-A, p. 815;
(6) [(2) p.62] By ' debellatio ' we mean the end of an armed
conflict which results in the occupation of the whole of
the enemy's territory and the cessation of all
hostilities, without a legal instrument of any kind;
(7) [(3) p.62] To quote an example from the pages of history,
the armistice which ended the struggle between France and
Germany in 1940 did not represent the general close of
military operations in the sense in which the phrase is
used in the Convention we are discussing;
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