Treaties, States Parties and Commentaries
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Commentary of 1958 


Expressed in very general terms, this rule forms the counterpart to the principle stated in Article 42 -- i.e., that internment may be [p.511] ordered only if the security of the Detaining Power makes it absolutely necessary.
Article 15 of the Tokyo Draft tried to limit the cases in which the State would be entitled to intern (where the enemy civilians are eligible for mobilization, where the security of the Detaining Power is involved, where the situation of the enemy civilians makes it necessary). This list of categories was not adopted by the authors of the Convention who preferred to keep to the completely general wording of Article 42 . They do help, however, to interpret this paragraph. If, for example, an internee is detained because he is of military age, the reason ceases to be valid as soon as he has passed the age limit for military service in his country of origin.
The experience of the Second World War should be quoted here (1). In general, States have tended to intern nationals of enemy Powers in their territories automatically. In the long run, many of these internments have entailed heavy expense for the Detaining Power and have inflicted useless suffering on individuals, since, with some exceptions, public safety was not threatened by the persons interned. Old people, women and children, for example, could in most cases be released if their maintenance could be ensured in one way or another. Thus with or without the help of the International Committee of the Red Cross, many internees were repatriated during hostilities under arrangements between the belligerents. Such exchanges of nationals took place in Lisbon, in September 1943, between German and Italian civilian internees; at Goa, in September and October 1943, between Japanese and Allied civilians; at Barcelona in May 1944, between German civilian internees and British and American civilian internees; at Lisbon, in July-August 1944, between
German civilian internees from South Africa and British civilian internees; at Göteborg, in September 1944, between German civilian internees and British civilian internees. In all these operations, which formed part of more extensive exchanges of medical personnel or wounded or sick prisoners of war, the International Committee had the task of supervising the vessels or the trains carrying the repatriates.
Of course, the very general wording used in the Convention leaves the Detaining Power discretion in law to decide on the advisability of exchange or repatriation. The experience mentioned, however, proves that the rule is capable of wide application. The [p.512] real interests of the Detaining Powers often, indeed, coincide with respect for humanitarian principles and thus enable internees to be released from detention in agreement with their country of origin. Moreover, it should be recalled that aliens interned in the territory of a Party to the conflict have the benefit "at least twice yearly", under Article 43 , of a reconsideration of their case, to see whether or not they should be kept in internment. The same applies, although the six-monthly frequency is not explicitly laid down, to those interned in occupied territory (Article 78 ). In cases where aliens interned on the territory of a Party to the conflict agree to the communication of their names to the Protecting Power (Article 43, paragraph 2 ), and in the case of all internees in occupied territory, the Protecting Power, with the co-operation and under the scrutiny of which the Convention is to be applied (Article 9, paragraph 1 ), may urge on the Detaining Power the desirability of decisions as favourable as possible to the internees being taken as a result of the periodic reconsideration of cases.
If internment ceases, the internees are back in the situation mentioned in Article 36 which, it will be recalled, explicitly refers to the conclusion of special agreements between the Parties to the conflict concerning the exchange and repatriation of their nationals in enemy hands.
It should be noted that exchange and repatriation, while the most frequent reasons for internment ceasing, are nevertheless not the only ones. Hospital treatment in a neutral country is also provided for by the Convention, at the expense, it seems, of the country of origin, and the Detaining State is left to decide whether merely to release the internees, who are thus put back in the situation obtaining before internment. Aliens interned on the territory of a Party to the conflict, moreover, retain the right conferred upon them by Article 42 , to apply voluntarily for internment through the representatives of the Protecting Power if their situation should render such a step necessary.


Paragraph 2 deals with the special agreements which belligerents may conclude during hostilities in order to give effect to the rule stated in the previous paragraph. It does not imply that the Powers are obliged to conclude such agreements, but merely makes an urgent recommendation based on experience. To give some examples, it quotes the main cases in which there are humanitarian reasons for the conclusion of such agreements. In accordance with the Stockholm [p.513] Draft, those benefiting from the agreements will consist of the sick and wounded and internees who have been detained for a long time (2). The text also mentions children, in the spirit of a number of Articles containing provisions in their favour (Articles 25 , 38 , 50 , 82 , 89 , 94 , etc.) because of what children represent for the future of humanity. Furthermore, and for the same reasons, the authors of the Convention mentioned pregnant women and mothers of infants and young children.
Here again, emphasis should be laid on the rôle which can be played by the Protecting Power in suggesting and inspiring such agreements. The Protecting Power is well placed, especially when it acts simultaneously on behalf of both parties, to understand the deplorable seriousness of certain situations. The argument of reciprocity can be invoked to further, and sometimes even almost to compel, the conclusion of special agreements concerning, for instance, exchanges of internees. Naturally, the International Committee of the Red Cross can also play a rôle in this. It has already done so, as has been said, and would not hesitate to do so again if necessary.
' Voluntary Repatriation ' -- The Stockholm Draft contained a third paragraph which stated: "Throughout the course of hostilities or occupation, no internee may be removed to a country where he may have reason to fear persecution for his political opinions or religious beliefs." Placed under the heading of repatriation, this text prohibited any repatriation of a person claiming to be stateless or a refugee, but claimed as a national by his country of origin.
The Diplomatic Conference deleted the paragraph because it considered that the question had already been settled under the terms of Article 45 (paragraph 4) , applicable to transfers of protected persons interned in the territory of a Party to the conflict, and Article 49 (paragraph 1) , applicable to transfers of internees in occupied territories. In reality, repatriation is a special case of transfer. While the transfers referred to under Articles 45 and 49 only involve the wishes of the internee himself and of the Detaining Power, repatriation also brings into consideration the wishes of the country of origin of the internee, and if those wishes were contrary to those of the internee, there would be a danger, if there were no explicit safeguards, of the individual being sacrificed to the State. Of course, the whole spirit of the Convention makes it unlikely that such a contingency would arise, especially since the Conference considered the clause as [p.514] repetitive (3), but when it is recalled that extremely serious difficulties of interpretation
arose during the Korean war concerning the voluntary repatriation of prisoners of war (4), it becomes a matter for regret that the principle of voluntary transfer was not repeated here in regard to the repatriation of internees, as had been suggested by the International Committee of the Red Cross (5).

Notes: (1) [(1) p.511] In France, for example, during the Second
World War, the Occupying Power interned Americans only up
to the age of 60, whereas British subjects were interned
up to the age of 65 and 70. These decisions were based on
the principle of reciprocity with the treatment of Germans
in Great Britain and the United States;

(2) [(1) p.513] The word "captivité" used in the French text
of the Convention seems to have been used inadvertently,
the provision having been modelled very closely on the
corresponding clause in the Convention relative to the
Treatment of Prisoners of War (Article 109, Third

(3) [(1) p.514] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 688,

(4) [(2) p.514] Although the Geneva Conventions were not
systematically applied during the Korean conflict, the
interpretation to be given to Articles 7 and 118 of the
Third Convention played a predominant part in the
discussions on the Korean problem in the Security Council
of the United Nations. It would appear to be reasonable to
look upon the armistice of July 1953, which put an end to
hostilities, as supporting the principle of voluntary
repatriation of prisoners of war, particularly by its
introduction of explanatory conferences;

(5) [(3) p.514] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, p. 672, and ' Report on the Work of the
Conference of Government Experts, ' pp. 233 and 244-245;