International Committee of the Red Cross
Treaties, States Parties and Commentaries
  • Print page
Commentary of 1958 
ARTICLE 48 -- SPECIAL CASES OF REPATRIATION (1)


Under the terms of this Article and according to the general definition of protected persons in Article 4 those to whom this provision applies are aliens in occupied territory, that is nationals of belligerent and neutral countries, but not the nationals of the occupied country or of the Occupying Power and its allies. Persons of doubtful nationality and stateless persons are also covered by its provisions (2).
[p.277] For the procedure to be followed, Article 48 refers expressly to Article 35 . Persons who wish to leave the occupied territory therefore enjoy the same safeguards as protected persons living in the territory of a party to the conflict, i.e. they will have the right to appeal to a court or administrative board and to ask for a Protecting Power to intervene. On the other hand, under paragraph 1 of Article 35 , the Occupying Power is entitled to object to the departure of a protected person when its national interests make this absolutely necessary.
For further details reference may be made to the commentary on Article 35 , since the procedure instituted by that Article is similar in every respect to the procedure stipulated in Article 48.
The text adopted differs from the draft submitted by the International Committee of the Red Cross (3) in that the courts appointed to consider applications to leave are not those already existing in the occupied territory but new ones set up by the Occupying Power. The Diplomatic Conference considered that the procedure instituted by the Power whose territory is occupied would have ceased to function once the occupation had begun and that the Occupying Power should be made responsible for making the necessary arrangements (4). Since their deportation from the occupied territory is prohibited (5), the Occupying Power cannot simply make protected persons subject to courts it has itself established in its own territory under Article 35 ; it is bound on the contrary to institute a new procedure, independent of the first, to deal exclusively with applications to leave made by protected persons in the occupied territory.


Notes: (1) [(3) p.276] For the discussions leading up to this
Article, see ' Final Record, ' Vol. II-A, pp. 663, 759;
Vol. II-B, p. 193;

(2) [(4) p.276] See the commentary on Article 4;

(3) [(1) p.277] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. I, p. 120;

(4) [(2) p.277] Ibid. Vol. II-A, p. 759;

(5) [(3) p.277] See commentary on Article 49;



International Committee of the red cross