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. -- INDIVIDUAL RESPONSIBILITY --
COLLECTIVE PENALTIES -- PILLAGE -- REPRISALS
[p.225] Article 33 is derived from Article 50
of the Hague Regulations: "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible".
The text adopted unanimously in Geneva in 1949 reproduces, with only slight changes, the original draft of the International Committee of the Red Cross (1).
PARAGRAPH 1. -- PRINCIPLE OF INDIVIDUAL RESPONSIBILITY
1. ' Prohibition of collective penalties '
The first paragraph embodies in international law one of the general principles of domestic law, i.e. that penal liability is personal in character.
This paragraph then lays a prohibition on collective penalties. This does not refer to punishments inflicted under penal law, i.e. sentences pronounced by a court after due process of law, but penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed.
This provision is very clear. If it is compared with Article 50
of the Hague Regulations, it will be noted that that Article could be interpreted as not expressly ruling out the idea that the community might bear at least a passive responsibility (2).
Thus, a great step forward has been taken. Responsibility is personal and it will no longer be possible to inflict penalties on persons Who have themselves not committed the acts complained of.
Obviously, the belligerents will retain the right to punish individuals who have committed hostile acts, in accordance with Article 64
et sqq. concerning penal legislation and procedure, when it is a matter of safegarding their legitimate interests and security.
2. ' Measures of intimidation or of terrorism '
During past conflicts, the infliction of collective penalties has been intended to forestall breaches of the law rather than to repress [p.226] them; in resorting to intimidatory measures to terrorise the population, the belligerents hoped to prevent hostile acts. Far from achieving the desired effect, however, such practices, by reason of their excessive severity and cruelty, kept alive and strengthened the spirit of resistance. They strike at guilty and innocent alike. They are opposed to all principles based on humanity and justice and it is for that reason that the prohibition of collective penalties is followed formally by the prohibition of all measures of intimidation or terrorism with regard to protected persons, wherever they may be (3).
PARAGRAPH 2. -- PILLAGE
The purpose of this Convention is to protect human beings, but it also contains certain provisions concerning property, designed to spare people the suffering resulting from the destruction of their real and personal property (houses, deeds, bonds, etc., furniture, clothing, provisions, tools, etc.) (4).
This prohibition is an old principle of international law, already stated in the Hague Regulations in two provisions: Article 28
, which says: "The pillage of a town or place, even when taken by assault, is prohibited", and Article 47
, which reads: "Pillage is formally forbidden". The Geneva Convention of 1949 omitted the Word "formally" in order not to risk reducing, through a comparison of the texts, the scope of other provisions which embody prohibitions, and which, while they contain no adverb, are nevertheless just as absolute in character (5).
This prohibition is general in scope. It concerns not only pillage through individual acts without the consent of the military authorities, but also organized pillage, the effects of which are recounted in the histories of former wars, when the booty allocated to each soldier was considered as part of his pay. Paragraph 2 of Article 33 is extremely concise and clear; it leaves no loophole. The High Contracting Parties prohibit the ordering as well as the authorization of pillage. They pledge themselves furthermore to prevent or, if it has commenced, to stop individual pillage. Consequently, they must take all the necessary legislative steps. The prohibition of pillage is applicable to the territory of a Party to the conflict as well as to occupied territories. It guarantees all types of property, whether they belong to private [p.227] persons or to communities or the State. On the other hand, it leaves intact the right of requisition or seizure (6).
PARAGRAPH 3. -- REPRISALS
1. ' Definition and historical survey '
Reprisals are measures contrary to law, but which, when taken by one State with regard to another State to ensure the cessation of certain acts or to obtain compensation for them, are considered as lawful in the particular conditions under which they are carried out. This would be the case, for example, if a belligerent employed weapons forbidden by the Hague Regulations to counter the use of the same weapons by his adversary. A distinction is generally drawn between reprisals and retortion which, while it constitutes a severe countermeasure to the acts which it is wished to end, nevertheless remains in accordance with ordinary law. Thus, a belligerent would be able to withdraw from civilian internees privileges he had granted them over and above the treatment laid down in the Convention.
In 1874, the Brussels Conference, and in 1880, the Institute of International Law, had emphasized the need for regulations to cover reprisals, "an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty." (7)
The International Committee of the Red Cross has always raised its voice against reprisals, notably in respect of prisoners of War. It expressed this idea openly in its appeal to all the belligerents in 1916. The belligerents took account of this in certain special agreements made towards the end of the war and Article 2, paragraph 3
, of the Geneva Convention of 1929 forbids all measures of reprisal against prisoners of war.
This rule, which emphasizes a principle of far-reaching importance, was generally respected during the Second World War.
With regard to civilians, at the beginning of the Second World War the International Committee of the Red Cross had obtained agreement that enemy civilians interned in the territory of a belligerent should benefit by analogy from the provisions of the 1929 Convention relative to the Treatment of Prisoners of War. All reprisals against these internees were consequently prohibited (8), but it proved impossible [p.228] to obtain the same decision in regard to civilians in occupied territory and it was not until the drawing up of the Geneva Convention relative to the Protection of Civilian Persons in Time of War that the prohibition of reprisals against civilians was given its general form. The principle of the prohibition of reprisals against persons has now become part of international law in respect of all persons, whether they are members of the armed forces or civilians protected by the Geneva Conventions (9).
2. ' Scope of the provision '
The prohibition of reprisals is a safeguard for all protected persons, whether in the territory of a Party to the conflict or in occupied territory. It is absolute and mandatory in character and thus cannot be interpreted as containing tacit reservations with regard to military necessity.
The solemn and unconditional character of the undertaking entered into by the States Parties to the Convention must be emphasized. To infringe this provision with the idea of restoring law and order Would only add one more violation to those with which the enemy is reproached.
It was possible for the Convention to prohibit reprisals only because it substituted for them other means of ensuring respect of the law, based on the principles of supervision by the Protecting Powers and the obligation to punish individuals in cases of grave breaches.
The prohibition of reprisals is closely connected with the provisions which, by ensuring that the Convention is applied in all circumstances (10), give it the character of a primary duty based essentially on the protection of the human person. This paragraph, like the first one, marks a decisive step forward in the affirmation and defence of rights of individuals and there is no longer any question of such rights being withdrawn or attenuated as a result of a breach for which those individuals bear no responsibility. Finally, reprisals constituted a collective penalty bearing on those who least deserved it. Henceforth, the penalty is made individual and only the person who commits the offence may be punished. The importance of this development and its embodiment in the new Geneva Convention is clear.
3. ' Interpretation with regard to retortion '
Should the rule laid down in Article 33 be interpreted as applicable to measures of retortion, i.e. measures which are lawful yet cause serious damage?
[p.229] Supposing that the civilian internees on the territory of the two enemy belligerents had obtained in both countries certain privileges which represented an improvement upon the treatment stipulated in the Convention, can one of the countries withdraw these privileges if the other has done so?
It would obviously be desirable for no retortion to take place. What is most important, however, is respect for the rules of the Convention which embody the rights of protected persons, and it must be admitted that a belligerent never agrees to accord privileges over and above the rights laid down in the Convention, except on condition of reciprocity. There would perhaps be a risk, therefore, of discouraging the Parties to the conflict from ever granting such privileges if it were insisted that they Were sacrosanct. It would appear wiser to conclude that the rule embodied in this Article only concerns reprisals.
Notes: (1) [(1) p.225] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. I, p. 118; Vol. II-A,
pp. 648-651; Vol. II-B, p. 406;
(2) [(2) p.225] See MECHELYNCK: ' La Convention de La Haye
concernant les Lois et Coutumes de la Guerre sur terre
d'après les Actes et Documents des Conférences de
Bruxelles de 1874 et de La Haye de 1899 et 1907, ' p. 403;
(3) [(1) p.226] See Article 27, para. 1;
(4) [(2) p.226] See Article 53;
(5) [(3) p.226] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 823;
(6) [(1) p.227] This right, which is dealt with by the Hague
Regulations, is also the subject of Articles 55 and 57 of
(7) [(2) p.227] See the ' Oxford Manual of the Laws of War on
Land, ' Articles 84-86;
(8) [(3) p.227] For the action taken by the International
Committee of the Red Cross in regard to reprisals during
the world wars, see the ' Report of the International
Committee on its activities during the Second World War
1939-1947, ' Vol. I, pp. 365-372;
(9) [(1) p.228] See ' Commentary, ' Vol. I, pp. 341-347;
(10) [(2) p.228] See Articles 1, 7 and 8;
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