Treaties, States Parties and Commentaries
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Commentary of 1958 


It has already been seen that internment and the placing of a person in assigned residence are the severest measures of control that a belligerent may apply to protected persons. Article 42, paragraph 1, stipulates that recourse may only be had to these two measures when the security of the State makes it absolutely necessary.
It did not seem possible to define the expression "security of the State" in a more concrete fashion. It is thus left very largely to Governments to decide the measure of activity prejudicial to the internal or external security of the State which justifies internment or assigned residence.
[p.258] Subversive activity carried on inside the territory of a Party to the conflict or actions which are of direct assistance to an enemy Power both threaten the security of the country; a belligerent may intern people or place them in assigned residence if it has serious and legitimate reason to think that they are members of organizations whose object is to cause disturbances, or that they may seriously prejudice its security by other means, such as sabotage or espionage; the provisions of Article 5 of the present Convention may also be applied in such cases.
On the other hand, the mere fact that a person is a subject of an enemy Power cannot be considered as threatening the security of the country where he is living; it is not therefore a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures the State must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security (1).
The Convention stresses the exceptional character of measures of internment and assigned residence by making their application subject to strict conditions; its object in doing this is to put an end to an abuse which occurred during the Second World War. All too often the mere fact of being an enemy subject was regarded as justifying internment. Henceforward only absolute necessity, based on the requirements of state security, can justify recourse to these two measures, and only then if security cannot be safeguarded by other, less severe means. All considerations not on this basis are strictly excluded.


After considering the case of compulsory internment in the interests of state security, the Convention deals with the case of voluntary internment in the interests of the protected persons themselves (2).
Voluntary internment is subject to three conditions: it must be requested by the protected person concerned, his request must be made through the representatives of the Protecting Powers and it must be warranted by the situation of the applicant.
The above three conditions must all be fulfilled in each case. The first two safeguard both the protected person and the authorities of [p.259] the country where he is living. Intervention by representatives of the Protecting Power will stamp as authentic requests for internment presented through diplomatic channels; it will prevent requests for internment being made lightly and ensure that internment is not ordered on the false pretext that it was asked by those concerned.
With regard to the third condition, the circumstances of the different cases will vary very widely and it will be for the responsible authorities to judge whether they justify internment. As has been seen the persons concerned will in most cases be those who cannot earn their living. There is also the possibility, however, of cases where a person's security may be threatened by hostile actions committed by the general public. In such cases too internment cannot, of course, be arranged unless the person concerned asks officially to be interned.
When a request to be interned meets the above conditions, the authorities of the State of residence are obliged to give it favourable consideration. The protected persons have then an absolute right to be interned. On the other hand the State is free to decide the action it will take on a request for internment which is not submitted through the Protecting Power or which is not justified by the circumstances of the person concerned.
Persons who are interned voluntarily will as a rule receive the same treatment as that laid down in Part III, Section IV of the Convention. In view of the essentially different character of the two forms of internment, however, it is reasonable to assume that belligerents will as far as possible give persons interned at their own request more favourable conditions than those who have been interned by force.
In conclusion, this provision applies to any protected persons who are in the territory of a Party to the conflict, whether they have been subject to security measures or not. In this respect, the clause differs from the second paragraph of Article 39 , which also lays an obligation on the Government of the country of residence to help, but only to help, protected persons who are subjected to measures of control which make it impossible for them to earn their living.

Notes: (1) [(1) p.258] The fact that a man is of military age should
not necessarily be considered as justifying the
application of these measures, unless there is a danger of
him being able to join the enemy armed forces;

(2) [(2) p.258] During the Second World War the International
Committee of the Red Cross concerned itself on several
occasions with the position of foreigners residing on
enemy territory who, being without any means of
subsistence, begged to be interned in order to be relieved
of their more urgent material cares;