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Commentary - Art. 4. Part I : General provisions
    [p.45] ARTICLE 4. -- DEFINITION OF PROTECTED PERSONS


    GENERAL

    The very title of the Convention shows in a general way whom it is meant to cover. But it is advisable to be able to determine exactly what classes of persons are protected. That is the purpose of this Article.
    When work was begun on the preparation of the texts, it became clear -- as early as the time of the Tokyo Draft -- that there were two main classes of civilian to whom protection against arbitrary action on the part of the enemy was essential in time of war -- on the one hand, persons of enemy nationality living in the territory of a belligerent State, and on the other, the inhabitants of occupied territories. The idea that the Convention should cover these two categories was accepted from the first and has never really been disputed. Any discussions which have taken place on the subject have been concerned with points of detail which we shall consider later. This Article is, in a sense, the key to the Convention; for it defines the people to whom it refers. The meaning does not stand out very clearly, however, and the definition contained in the Article may be easier to grasp if we set it out as follows:

    [p.46] A. -- ' On the territory of belligerent States: ' protection is accorded under Article 4 to all persons of foreign nationality and to persons without any nationality. The following are, however, excluded:

    (1) Nationals of a State which is not bound by the Convention;

    (2) Nationals of a neutral or co-belligerent State, so long as the State
    in question has normal diplomatic representation in the State in
    whose territory they are;

    (3) Persons covered by the definition given above under A who enjoy
    protection under one of the other three Geneva Conventions of August
    12, 1949.

    B. -- ' In occupied territories; ' protection is accorded to all persons who are not of the nationality of the occupying State. The following are, however, excluded:

    (1) Nationals of a State which is not party to the Convention.

    (2) Nationals of a co-belligerent State, so long as the State in question
    has normal diplomatic representation in the occupying State.

    (3) Persons covered by the definition given above under B who enjoy
    protection under one of the three other Geneva Conventions of August
    12, 1949.

    Even when the definition of protected persons is set out in this way, it may seem rather complicated. Nevertheless, disregarding points of detail, it will be seen that there are two main classes of protected person: (1) ' enemy nationals ' within the national territory of each of the Parties to the conflict and (2) ' the whole population ' of occupied territories (excluding nationals of the Occupying Power). The other distinctions and exceptions extend or restrict these limits, but not to any appreciable extent.

    PARAGRAPH 1. -- DEFINITION

    The definition has been put in a negative form; as it is intended to cover anyone who is ' not ' a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains faithful to a recognized principle of international law: it does not interfere in a State's relations with its own nationals. The only exception to this rule is the second paragraph of Article 70 , which refers to nationals of the Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities. This is a very special case, based on the position such people have taken up with regard to their own country.
    [p.47] It will be observed that owing to its negative form the definition covers persons without any nationality. The Rapporteur to Committee III pointed out that it thus complied with the recommendation made to the Diplomatic Conference by the representative of the International Refugee Organization (1). In the actual course of the discussions, however, certain speakers observed that the term "nationals" (' ressortissants, ' in the French version) did not cover all cases, in particular cases where men and women had fled from their homeland and no longer considered themselves, or were no longer considered, to be nationals of that country. Such cases exist, it is true, but it will be for the Power in whose hands they are to decide whether the persons concerned should or should not be regarded as citizens of the country from which they have fled. The problem presents so many varied aspects that it was difficult to deal with it fully in the Convention. Nevertheless, Article 44 , which is applicable to the territories of the Parties to the conflict, lays down that the Detaining Power is not to treat refugees who do not, in fact, enjoy the protection of any Government, as enemy aliens "exclusively on the basis of their nationality de jure of an enemy State".
    The words "at a given moment and in any manner whatsoever", were intended to ensure that all situations and cases were covered. The Article refers both to people who were in the territory before the outbreak of war (or the beginning of the occupation) and to those who go or are taken there as a result of circumstances: travellers, tourists, people who have been shipwrecked and even, it may be, spies or saboteurs. (It will be seen later, when we come to Article 5 , that provision has been made for certain exceptions in this last case.)
    The words "in case of a conflict or occupation" must be taken as referring to a conflict or occupation as defined in Article 2 . The expression "in the hands of" is used in an extremely general sense. It is not merely a question of being in enemy hands directly, as a prisoner is. The mere fact of being in the territory of a Party to the conflict or in occupied territory implies that one is in the power or "hands" of the Occupying Power. It is possible that this power will never actually be exercised over the protected person: very likely an inhabitant of an occupied territory will never have anything to do with the Occupying Power or its organizations. In other words, the expression "in the hands of" need not necessarily be understood in the physical sense; it simply means that the person is in territory which is under the control of the Power in question.

    [p.48] PARAGRAPH 2. -- EXCEPTIONS

    It was paragraph 2 that gave rise to most discussion both during the preliminary work and at the Diplomatic Conference. The Stockholm Draft made no provision for any exceptions; but at the Diplomatic Conference it was thought necessary to limit the field of application of the Convention.
    The first sentence of the paragraph contains a truism. The spirit which inspires the Geneva Conventions naturally makes it desirable that they should be applicable ' erga omnes ', since they may be regarded as the codification of accepted principles. It must be recognized, however, that the Conventions themselves stipulate that in order to be binding on States they must be ratified by those States; that being so, it is difficult to see how they could be applied to the nationals of a State which is not party to them. It was in actual fact the attitude adopted by the Delegation of the USSR at the Diplomatic Conference that made the other delegations feel the need to introduce this unnecessary addition. The Soviet Delegation, whose position in the matter was not constant, claimed that any Party to the conflict or any Occupying Power must apply the Convention to all persons covered by the definition in Article 3 , irrespective of their nationality. It later modified its line of argument and proposed that the sentence in question be omitted, alleging that it contradicted the last sentence of Article 2, paragraph 3 . This line of argument, which was not endorsed by the Diplomatic Conference, does not appear to bear examination. Once a Power which is not party to the Convention accepts and applies the latter's provisions its adversary, if a party to the Convention, must obviously treat the nationals of that Power as protected persons; there would not appear to be any other possible interpretation; otherwise the provision of Article 2 referred to above would not make sense.
    Paragraph 2 also defines the position of nationals of neutral States; in occupied territory they are protected persons and the Convention is applicable to them; its application in this case does not depend on the existence or non-existence of normal diplomatic representation. In such a situation they may therefore be said to enjoy a dual status: their status as nationals of a neutral State, resulting from the relations maintained by their Government with the Government of the Occupying Power, and their status as protected persons.
    On the other hand, nationals of a neutral State in the territory of a Party to the conflict are only protected persons if their State has no normal diplomatic representation in the State in whose hands they are.
    [p.49] This seems to be a legitimate distinction. In the territory of the belligerent States the position of neutrals is still governed by any treaties concerning the legal status of aliens and their diplomatic representatives can take steps to protect them. In occupied territory, on the other hand, the diplomatic representatives of neutral States, even assuming that they remain there, are not accredited to the Occupying Power but only to the occupied Power. This makes it more difficult for them to make representations to the Occupying Power. In such cases diplomatic representations are usually made by the neutral State's diplomatic representatives in the occupying State, and not by those in the occupied territory. It should moreover be noted that the Occupying Power is not bound by the treaties concerning the legal status of aliens which may exist.
    The existence of such situations, often of a complicated nature, gave rise to the idea of granting neutral nationals in occupied territory the status of protected persons within the meaning of the Convention.
    The case of nationals of a co-belligerent State is simpler. They are not considered to be protected persons so long as the State whose nationals they are has normal diplomatic representation in the belligerent State or with the Occupying Power. It is assumed in this provision that the nationals of co-belligerent States, that is to say, of allies, do not need protection under the Convention. Examples, however, of co-belligerency during the last World War -- in particular the case of Italy -- were such that it was felt necessary to lay down the condition that there should be normal diplomatic representation.
    According to the Rapporteur of Committee III normal diplomatic representation is "that which functions in peace time comprising at least one diplomatic representative accredited to a Ministry of Foreign Affairs" (2). This definition has some value, but does not seem adequate; the words "accredited to" (in the French version of the Report: ' trouvant audience auprès de ') must at all events be understood in the widest sense, as implying that the representations made by the diplomatic representative will be followed by results and that satisfactory replies will be given to him. It would also seem essential for the representatives in question to have sufficient liberty of action and liberty of movement to be able to visit their fellow-countrymen and come to their help when circumstances so require.
    Finally, it should be noted that certain States which are bound by the Geneva Conventions do not maintain diplomatic relations among themselves; in case of war, whether one of them is neutral [p.50] and the other a belligerent or whether they are co-belligerents, their nationals must enjoy full protection under the Convention.

    PARAGRAPH 3. -- FIELD OF APPLICATION OF PART II

    It will be recalled that Part II has the widest possible field of application; it covers the whole population of the Parties to the conflict, both in occupied territory and in the actual territory of those Parties. It really infringes to a slight extent the general rules according to which the purpose of the Convention is to protect individual men and women against arbitrary action on the part of the enemy. It could have formed a special Convention on its own. That is the reason for the reminder which we are given here.

    PARAGRAPH 4. -- PERSONS PROTECTED BY OTHER CONVENTIONS

    The definition of protected persons in paragraph 1 is a very broad one which includes members of the armed forces -- fit for service, wounded, sick or shipwrecked -- who fall into enemy hands. The treatment which such persons are to receive is laid down in special Conventions to which the provision refers. They. must be treated as prescribed in the texts which concern them. But if, for some reason, prisoner of war status -- to take one example -- were denied to them, they would become protected persons under the present Convention.
    There are certain cases about which some hesitation may be felt. We may mention, first, the case of partisans, to which Article 4, A (2) , of the Third Convention refers. Members of resistance movements must fulfil certain stated conditions before they can be regarded as prisoners of war. If members of a resistance movement who have fallen in to enemy hands do not fulfil those conditions, they must be considered to be protected persons within the meaning of the present Convention. That does not mean that they cannot be punished for their acts, but the trial and sentence must take place in accordance with the provisions of Article 64 and the Articles which follow it.
    Doubts may also arise concerning the case of members of the crews of the merchant navy and civil aircraft. The Third Convention lays down that they are to be prisoners of war unless they enjoy more favourable treatment under other provisions of international law. The reference here is in particular to the Eleventh Hague Convention of 1907 relative to certain restrictions on the exercise of the right of capture in maritime war. It is possible that under certain circumstances [p.51] application of the present Convention may constitute the more favourable treatment referred to above.
    There is also the case of members of the armed forces of an occupied territory who, after being demobilized, are interned by the Occupying Power simply because they are ex-servicemen. The Third Convention lays down expressly that they must be accorded prisoner-of-war status, which involves a system of discipline and regulations more favourable to them.
    When the civilian population rises as one man on the approach of the enemy, before the territory is occupied, and takes up arms in self-defence, persons concerned in the rising must, under Article 4, A (6) , of the Third Convention, be treated as prisoners of war and not as civilians. This situation has hardly ever arisen in actual practice however.
    In order to complete our survey, we should say a word about a particular class of civilians -- the diplomats themselves. Diplomatic representatives who are in enemy territory on the outbreak of war are, without any doubt, protected persons within the meaning of Article 4, but usage has created a body of customary law concerning them, which has been very generally applied. In most cases they very soon receive permission to leave the country of the Government to whom they were accredited, and pending their departure they enjoy preferential treatment. During the last World War, however, the repatriation of diplomats was in some cases delayed by long negotiations of practical difficulties, especially in the case of the war in the Far East. It must therefore be agreed that if diplomats do not enjoy more favourable treatment as a result of international customary law, they must be accorded the full benefit of the Convention's provisions.
    In short, all the particular cases we have just been considering confirm a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ' There is no ' intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution -- not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.


    Notes: (1) [(1) p.47] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 814;

    (2) [(1) p.49] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 814;