ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 37. Part III : Status and treatment of protected persons #Section II : Aliens in the territory of a party to the conflict
    ARTICLE 37. -- PERSONS IN CONFINEMENT (1)


    PARAGRAPH 1. -- SCOPE

    Article 37 applies to protected persons who are confined pending proceedings or are serving a sentence involving loss of liberty for an offence against the penal law of the country where they are living. It is of small importance whether the period of confinement began before or after the outbreak of war; on the other hand, the protection afforded under this Article is restricted to protected persons who are the subject of judicial measures either on preventive grounds or as a result of conviction and sentence. Persons to whom security measures are applied are protected under other provisions (2).
    It was essential to prevent representatives of the Detaining Power's administrative services, in particular police officers and prison warders, from dealing in an inhumane manner with foreigners who were at one and the same time enemies and detainees.
    [p.243] The text prepared by the International Committee laid down that detained persons should not "be subjected to conditions more severe than at the opening of hostilities", thus insisting on the maintenance of the conditions of imprisonment which had obtained in peacetime. Taken in the broadest sense, however, these conditions, under the law of most countries, included certain provisions favourable to the prisoner -- remission of sentence, release on bail, release on parole, etc. -- whose application to enemies had certain drawbacks for the Detaining Power.
    Having considered this aspect of the question the Diplomatic Conference of 1949 did not insist on the full application in wartime of the system obtaining in time of peace, so that certain favourable measures which are in fact inapplicable to aliens may, when necessary, be abrogated. The essential point is that in wartime protected persons under confinement are safeguarded against arbitrary action and brutality.

    PARAGRAPH 2. -- RIGHT TO LEAVE THE TERRITORY

    This provision is clear enough in itself and does not call for any special comment. As soon as foreign civilians are released, they automatically resume their status as protected persons. As such, they may request permission to leave the territory in conformity with the provisions of Articles 35 and 36 .


    Notes: (1) [(2) p.242] For the origin of Article 37, see ' Final
    Record, ' Vol. I, p. 119; Vol. II-A, pp. 655-656, 739 and
    823-824; Vol. II-B, p. 407; Vol. III, p. 122;

    (2) [(3) p.242] See Articles 79 et sqq., pp. 371 et sqq.;