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Commentary - Art. 5. Part I : General provisions
    [p.52] ARTICLE 5 -- DEROGATIONS


    HISTORICAL BACKGROUND AND GENERAL REMARKS

    This question was never broached during the preliminary discussions. Some people considered that the Convention should apply without exception to all the persons to whom it referred, while to others it seemed obvious that persons guilty of violating the laws of war were not entitled to claim its benefits. These divergent views had not been expressed, however, and the problem did not arise until after the Stockholm Conference. It arose then because the Conference had adopted a definition of protected persons which covered those who committed hostile acts without being members of the regular combatant forces (1).
    As soon as the subject came up for discussion at the Diplomatic Conference several delegations explained that in their opinion provision would have to be made for certain exceptions in the case of spies and saboteurs. They pointed out that the effectiveness of the [p.53] measures taken to deal with enemy agents and saboteurs depended on the secrecy of the proceedings; it was inconceivable that a State which had arrested one or more enemy agents should be obliged to announce their capture and let the persons under arrest correspond with the outside world and receive visits; the situation was the same in the case of saboteurs and also, in occupied territories, in that of members of underground organizations.
    Is this line of argument entirely convincing? There may of course be occasions when it is desirable to keep the fact of an arrest secret in the hope of capturing a whole organization or spy ring. But although the Convention obliges the Powers to give protected persons certain opportunities for communicating with the outside world, even when they are being held for trial, it does allow some latitude: Article 136 lays down, for example, that the names of the detained persons are to be transmitted if they are kept in custody ' for more than two weeks '; one can see that this leaves a margin which will, in the majority of cases, meet any legitimate security requirements. To quote another instance, although Article 25 grants protected persons an absolute right to give news of themselves to their families, that does not mean that the messages sent are not subject to censorship.
    It is thus clear that the Draft Convention took security requirements into account and it may be wondered whether it was really necessary to resort to express derogations.
    It may, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. It might therefore have been simpler to exclude them from the benefits of the Convention, if such a course had been possible, but the terms espionage, sabotage, terrorism, banditry and intelligence with the enemy, have so often been used lightly, and applied to such trivial offences (2), that it was not advisable to leave the accused at the mercy of those detaining them.
    The discussions on this point at the Diplomatic Conference were long and difficult; the delegations representing the British Commonwealth and the United States took a leading part in them and, in the relevant drafting Committee, met with opposition from the outset from the Delegation of the USSR. A text was finally adopted [p.54] and submitted to Committee III, which approved its terms, by 29 votes to 8, with 7 abstentions, after a fairly lively debate (3).
    The original proposal adopted by Committee III was in English. It very soon appeared that the wording was faulty both in French and English. It was nevertheless adopted as it stood by the Conference in plenary session.
    Several delegations, which had only agreed with considerable misgiving to the introduction of this major restriction into the Convention, first proposed re-opening the discussion and tabled an amendment; they later withdrew it and suggested making certain drafting amendments to the French text only (4). Their proposals were adopted by the Conference and form the present French text of Article 5 (5). We shall see, as we come in turn to each paragraph of this Article, that the meaning conveyed by the French and English texts is not exactly the same. What were put forward as improvements in translation were in reality fairly far-reaching changes. Consequently, when studying the Article it will be necessary to refer simultaneously to the French and English texts, both of which are authentic according to Article 150 . The various points of difficulty in the text arise not only from the fact that the original was drafted [p.55] in English, but also because it was drafted in terms of Anglo-Saxon judicial institutions, which often do not exist
    in other legal systems, especially on the Continent.

    PARAGRAPH 1. -- IN THE TERRITORY OF PARTIES TO THE CONFLICT

    "... is satisfied"
    The French text says: "a de sérieuses raisons de considérer... ou s'il est établi..." which means "has serious reasons for considering... or if it is established...". The words "is satisfied" (the French translation of which would be "est convaincue que") are clearer than the French wording and would appear to convey the intention of the authors of the original text more exactly. It may be noted in passing that the words "s'il est établi" are not to be found in the English version. A correct French translation of the English text would be: "celle-ci est convaincue qu'une personne protégée... ou qu'elle se livre...". In other words the sense of conviction which the Party to the conflict must have refers to cases of legitimate suspicion as well as to cases where the person concerned is actually engaging in hostile activities.
    "... that an individual protected person is ..." (in French "qu'une personne protégée fait individuellement l'objet... "). During the discussions at the Diplomatic Conference several speakers emphasized the importance of these words. The suspicion must not rest on a whole class of people; collective measures cannot be taken under this Article; there must be grounds justifying action in each individual case.
    " ... definitely suspected" (in French "d'une suspicion légitime"). The English text is the clearer. It conveys the real meaning of the words used: the suspicion must be a definite one. At the Diplomatic Conference one of the delegates who supported the French wording said that the notion of "legitimate suspicion" (suspicion légitime) was well known in Continental penal law, but we have not been able to trace any reference to the subject in legal writings. In our opinion the expression means that the suspicions must be definite enough to involve the person concerned personally. The question which really comes to mind, on re-reading the French text, is how the authorities could "have serious reasons for considering that a person is an object of legitimate suspicion" (avoir de sérieuses raisons de considérer qu'une personne fait l'objet d'une suspicion légitime).
    "... activities hostile to the security of the State" (in French "une activité préjudiciable à la sécurité de l'Etat"). The word [p.56] "préjudiciable" (prejudicial) conveys the idea of an established fact, whereas the word "hostile" implies an intention.
    The idea of activities prejudicial or hostile to the security of the State, is very hard to define. That is one of the Article's weak points. What is meant is probably above all espionage, sabotage and intelligence with the enemy Government or enemy nationals. The clause cannot refer to a political attitude towards the State, so long as that attitude is not translated into action.
    "... such rights and privileges under the Convention as would ... be prejudicial to the security of such State". This is the only Article in the Convention which speaks of the rights land privileges of protected persons. Elsewhere there is no question of anything but rights (in Articles 7 and 8 , for example). Undue importance should not be attached to the word "privileges" which should be regarded as otiose. The rights of protected persons are privileges, if their position is compared with that of persons who do not enjoy protection under the Convention.
    The rights referred to are not very extensive in the case of protected persons under detention; they consist essentially of the right to correspond, the right to receive individual or collective relief, the right to spiritual assistance from ministers of their faith and the right to receive visits from representatives of the Protecting Power and the International Committee of the Red Cross.
    The security of the State could not conceivably be put forward as a reason for depriving such persons of the benefit of other provisions -- for example, the provision in Article 37 that they are to be humanely treated when they are confined pending proceedings or subject to a sentence involving loss of liberty, or the stipulation in Article 38 that they shall receive medical attention, if their state of health so requires. Furthermore, it would be really inhuman to refuse to let a chaplain visit a detained person who was seriously ill. Torture and recourse to reprisals are of course prohibited.
    It should, moreover, be noted that this provision cannot release the Detaining Power from its obligations towards the adverse Party. It remains fully bound by the obligation, imposed on it by Article 136 , to transmit to the official Information Bureau particulars of any protected person who is kept in custody for more than two weeks. This is not, in fact, a right or privilege of the protected person, but an obligation of the Detaining Power.
    As we see, the Article refers mainly to the relations of the detained person with the outside world, and that is the sphere in which restrictions will doubtless be applied.

    [p.57] PARAGRAPH 2. -- OCCUPIED TERRITORY

    "... is detained" (in French "est appréhendé"). The French phrase conveys the idea of arrest. The English text is clearer: the reference is to persons who are deprived of their liberty for a certain period of time.
    "... as a spy or saboteur". Article 29 of the Regulations annexed to the Fourth Hague Convention of 1907 gives the following definition of a spy: "A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party".
    That definition of a spy is still valid. Article 30 of the same Regulations stipulates that a spy taken in the act shall not be punished without previous trial -- a provision in keeping with the general rule in Article 3 of the Convention, which we have already discussed. Articles 64 to 76 are applicable to the trial of spies in occupied territory, and it must be remembered that Article 68, paragraph 2 , authorizes the Occupying Power to impose the death penalty, in certain circumstances, on protected persons who are guilty of espionage. Lastly, a spy who rejoins the armed forces to which he belongs and is later captured by the enemy, is treated as a prisoner of war and cannot be made to answer in any way for his earlier acts of espionage.
    Sabotage is harder to define, as no definition of it is given in any text in international law. The term "sabotage" should be understood to mean acts whose object or effect is to damage or destroy material belonging to the army of occupation or utilized by it.
    The other terms used in this paragraph have already been commented upon in connection with paragraph 1. The application of these provisions, however, is limited to cases where absolute military security so requires -- a more stringent condition than the one in the first paragraph. Moreover it is not, here, the rights and privileges accorded to the protected person by the Convention which are forfeited, but only his rights of communication.
    ".... be regarded as having forfeited rights of communication" (in French "être privée des droits de communication" -- be deprived of rights of communication). The meaning of the two versions is not exactly the same. According to the English text, the detained person has, by his past actions, forfeited or deprived himself of his rights of communication. Those rights obviously refer to his relations with the outside world, which we have already discussed. The Detaining Power is, however, in no way released from its obligation to notify the arrest to its official Information Bureau for transmission to the official [p.58] Information Bureau of the country of which the person concerned is a national. The Protecting Power too will have to be notified in accordance with Articles 71 and 74 in case of proceedings being instituted.

    PARAGRAPH 3. -- HUMANE TREATMENT

    In stipulating that detained persons are to be treated with humanity, the paragraph merely draws attention to one of the Convention's fundamental principles, which nothing in the first two paragraphs contradicts. The right of detained persons to a fair and regular trial will be ensured, in occupied territory, by applying the provisions of Articles 64 to 76; there are no special provisions applying to the territory of the Parties to the conflict but the rule contained in Article 3 will be applicable: i.e. the Court must afford "all the judicial guarantees recognized as indispensable by civilized peoples".
    It is hoped that the Powers will make ample use of the clause indicating that restrictions are to be raised as soon as possible; there can be no doubt that the reasons which may exist for keeping certain people in solitary confinement are, in most cases, of a temporary nature.

    CONCLUSIONS

    The Article, as it stands, is involved -- one might even say, open to question. It is an important and regrettable concession to State expediency. What is most to be feared is that widespread application of the Article may eventually lead to the existence of a category of civilian internees who do not receive the normal treatment laid down by the Convention but are detained under conditions which are almost impossible to check. It must be emphasized most strongly, therefore, that Article 5 can only be applied in individual cases of an exceptional nature, when the existence of specific charges makes it almost certain that penal proceedings will follow. This Article should never be applied as a result of mere suspicion.


    Notes: (1) [(1) p.52] See ' Remarks and Proposals, ' Geneva, 1949, p.
    68;

    (2) [(1) p.53] It will be remembered that the mere fact of
    listening to an enemy broadcast or of attempting to cross
    a frontier has been described as intelligence with the
    enemy and punished accordingly;

    (3) [(1) p.54] The USSR Delegation tried without success to
    have it replaced by the following provision: "Persons
    convicted of espionage and sabotage on the national
    territory of the belligerent, or in occupied territory,
    shall be deprived of the right to correspond by letter and
    by other means of communication provided in the present
    Convention";

    (4) [(2) p.54] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. III, p. 101;

    (5) [(3) p.54] The proposal which was not modified and is now
    the French version of Article 5 of the Convention, reads
    as follows: "Si, sur le territoire d'une Partie au
    conflit, celle-ci a de sérieuses raisons de considérer
    qu'une personne protégée par la présente Convention fait
    individuellement l'objet d'une suspicion légitime de se
    livrer à une activité préjudiciable à la sécurité de
    l'Etat, ou s'il est établi qu'elle se livre en fait à
    cette activité, ladite personne ne pourra se prévaloir des
    droits et privilèges conférés par la présente Convention
    qui, s'ils étaient exercés en sa faveur, pourraient porter
    préjudice à la sécurité de l'Etat.
    "Si, dans un territoire occupé, une personne protégée
    par la Convention est appréhendée en tant qu'espion ou
    saboteur ou parce qu-elle fait individuellement l'objet
    d'une suspicion légitime de se livrer à une activité
    préjudiciable à la sécurité de la Puissance occupante,
    ladite personne pourra, dans les cas où la sécurité
    militaire l'exige absolument, être privée des droits de
    communication prévus par la présente Convention.
    Dans chacun de ces cas, les personnes visées par les
    alinéas précédents seront toutefois traitées avec humanité
    et, en cas de poursuites, ne seront pas privées de leur
    droit à un procès équitable et régulier tel qu'il est
    prévu par la présente Convention. Elles recouvreront
    également le bénéfice de tous les droits et privilèges
    d'une personne protégée, au sens de la présente
    Convention, à la date la plus proche possible eu égard à
    la sécurité de l'Etat ou de la Puissance occupante,
    suivant le cas.";