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Commentary - Persons whose liberty has been restricted
    [p.1383] Article 5 -- Persons whose liberty has been restricted


    [p.1384]Heading of the article

    4564 The expression "persons whose liberty has been restricted" was chosen in preference to more specific words such a "prisoners" or "detainees" to take into account the full extent of the article's scope of application, which covers all detainees and persons whose liberty has been restricted for reasons related to the conflict, without granting them a special status. However, the choice of words in French and Spanish -- "personnes privées de liberté" and "personas privadas de libertad", respectively -- is less suitable that the more explicit English version.

    General remarks

    4565 The purpose of this article is to ensure that conditions of detention for persons whose liberty has been restricted for reasons related to the conflict will be reasonable. The obligations laid down are concrete measures which must guarantee them humane treatment in the particular situation they find themselves [p.1385] in. Thus this provision supplements Article 4 ' (Fundamental guarantees).' (1) It should be noted that Article 4 ' (Fundamental guarantees) ' contains prohibitions, while Article 5 lays down obligations to do certain things, with the exception of paragraph 2(e), which also deals with unjustified omissions. The text largely corresponds to the ICRC draft, (2) which was drafted on the basis of principles contained in the Third and fourth Conventions, relating to the conditions of detention for prisoners of war and civilian internees. (3) The first two paragraphs of this article have different degrees of force; paragraph 1 lays down absolute obligations, while paragraph 2 lays down rules to be implemented as far as possible. To reconcile realistic considerations and humanitarian ideals, while taking into account the cultural background of different countries in the international community, proved to be a difficult task as regards the classification of obligations, and this gave rise to lengthy discussions. The diversity of views and the complexity of the problem become even clearer when it is recalled that one amendment went so far as to distinguish three categories: minimum obligations, obligations which the parties to the conflict should respect "subject to temporary an exceptional measures" and measures they should take "within the limits of their capabilities". (4) The formula which was finally adopted makes a distinction merely between unconditional obligations and those taking into account the available resources.

    4566 Paragraphs 3 and 4 were the result of proposals directly put forward in the Working Group of Committee I, charged with considering the draft Article, without first having been submitted as amendments. (5) Paragraph 3 fills a legal gap by according some guarantees of protection to persons who are not interned or detained in the strict sense of the word, but whose liberty has been restricted in some other way. Finally, paragraph 4 takes into consideration the safety measures for releases.

    Paragraph 1

    4567 Added to the guarantees laid down in Article 4 ' (Fundamental guarantees), ' which apply to all persons under the control of one of the parties to the conflict, are the guarantees of Article 5 for persons whose liberty has been restricted. However, only paragraph 1, following the example of Article 4 ' (Fundamental guarantees), ' contains absolute obligations. (6) Taken together, these rules -- Article 4 ' (Fundamental guarantees) ' and Article 5, paragraph 1 -- express the basic standard to which anyone whose liberty has been restricted for reasons related to [p.1386] the conflict is entitled, i.e., combatants who have fallen into the power of the adverse party as well as civilians. (7)

    4568 The term "deprived of their liberty for reasons related to the armed conflict" is taken from Article 2 ' (Personal field of application) ', paragraph 2, of the Protocol. (8) At this point it is appropriate to recall its far-reaching scope. It covers both persons being penally prosecuted and those deprived of their liberty for security reasons, without being prosecuted under penal law. (9) However, there must be a link between the situation of conflict and the deprivation of liberty; consequently prisoners held under normal rules of criminal law are not covered by this provision.

    4569 Article 5 applies as soon as a person is deprived of his liberty, until he is released, even if hostilities have ceased in the meantime. (10)

    4570 Protocol II, following the example of common Article 3 , does not grant a special status to members of the armed forces or armed groups who have fallen into enemy hands. They are not legally prisoners of war entitled to special protection; this is why it is so important that the rules laid down in this article establish minimum guarantees.

    4571 Paragraph 1 deals with persons who have been deprived of their liberty, i.e., who have been interned or detained. Persons whose liberty has merely been restricted are dealt with in paragraph 3.

    ' Sub-paragraph ' (a)

    4572 This is a reminder of the principle that protection and care should be given the wounded and sick. In fact, Article 7 ' (Protection and care) ' covers all the wounded and sick, including those deprived of their liberty, but it was important to include this fundamental guarantee on how such people should be treated among the rules relating to the conditions of detention. (11)

    ' Sub-paragraph ' (b)

    4573 The purpose of this sub-paragraph is to make sure that persons deprived of their liberty will be provided with essential minimum requirements: food, drinking water, hygiene and shelter. This is inspired by Articles 22 , 26 and 27 of the Third Convention, and by Articles 85 , 89 and 90 of the fourth Convention. The detaining authority is responsible for the detainees or internees. It must provide them with the means necessary for survival. Thiswidely [p.1387] recognized but the problem arises from the fact that in situations of internal armed conflict the local population usually lives in very difficult conditions. It would not have been realistic to adopt norms which were too burdensome, and which would turn out to be impossible to apply: "the persons referred to in this paragraph shall, to the same extent as the local civilian population, be provided with food and drinking water". The obligation of the detaining authority remains an absolute one, but its content varies, depending on the living conditions prevailing in the area. In fact the country may sometimes be so large that completely different conditions exist in different areas. The type of subsistence of the civilian population constitutes a measure to evaluate how much food and drinking water persons deprived of their liberty must receive. (12)

    4574 Although food and water seem the most essential elements, hygiene, health and protection against the rigours of the climate are also important factors for human survival; the detaining authority must therefore take care of them. A lack of water, defective drainage and damp may cause sickness and epidemics. Inadequate ventilation, lack of sunlight or of light in general may also make a place unhealthy and affect health. Other factors, such as the absence of antiparasitic disinfectants may be other decisive elements in the field of health and hygiene. This list given is not exhaustive, but gives some examples of factors to be taken into account to ensure hygiene and healthy conditions in places of detention. Protection against the rigours of the climate suggests clothes for the cold, but the sun and any intemperate conditions (such as floods, sandstorms etc.) may also endanger human life if there is no shelter available.

    4575 Persons deprived of their liberty must be protected against "the dangers of the armed conflict". In addition, paragraph 2(c) of this Article 5 provides that places of internment and detention must not be located close to the combat zone, and that evacuation may have to be carried out in case of danger. The obligation laid down in paragraph 1 is an absolute one, while the measures prescribed in paragraph 2 are binding only within the limits of the capabilities of the authorities responsible. How should this difference be interpreted in practice?

    4576 Paragraph 1 lays down a general obligation. It may prove objectively impossible to take prisoners to places located outside the combat zone or to evacuate them, but the obligation to protect them remains in the sense that it is prohibited to knowingly expose detainees to danger. For example, in the case of bombardment, prisoners must be able to seek refuge in shelters like their guards, and should not be kept in a place where they run much greater risks. [p.1388] ' Sub-paragraph ' (c)

    4577 This sub-paragraph lays down the right to receive relief, both individually and collectively. The term "individual or collective relief" was taken from the Conventions (Article 72 , Third Convention; Article 108 , fourth Convention): "Individual relief consists of parcels sent by a donor to a prisoner of war, the latter being designated by name"; "collective relief is sent to prisoners of war either in standard anonymous parcels, or in the form of bulk shipments". (13) This general formula allows for all possible forms of relief action. Permission to receive relief does not in any waydiminish the obligation laid down in the preceding subparagraph to provide detainees with food, drinking water etc. In addition, detainees must be allowed to benefit from relief actions for the ivilian population, as provided in Article 18 ' (Relief societies and relief actions), ' paragraph 2. (14)

    ' Sub-paragraph ' (d)

    4578 This sub-paragraph guarantees persons protected by this article two closely related rights: to practise their religion and to receive spiritual assistance. These two rights follow from the principle that respect is due to convictions and religious practices, as laid down in Article 4 ' (Fundamental guarantees). ' (15) The freedom to practise one's own religion is clearly confirmed and does not require any explanation. On the other hand, the right to receive spiritual assistance does need some comment. It is worded as follows: "they shall be allowed [...], if requested and appropriate, to receive spiritual assistance". The term "appropriate" was translated rather inelegantly into French by the formula "si cela est approprié", which was adopted to preserve uniformity between the two languages. Spiritual assistance must be provided whenever possible, having regard to the circumstances (for example, the development of hostilities and availability of suitable religious personnel). This provision is the result of a compromise. A number of delegations thought in fact that giving spiritual assistance should not become an absolute obligation and they wanted to include it in paragraph 2. Other delegations, however, pointed out that spiritual assistance is a corollary of the right to practise one's own religion and is inseparable therefrom. (16) The insertion of the word "appropriate" made it possible to reconcile these two points of view: spiritual assistance is indeed considered as an inalienable aspect of freedom to practise one's own religion, but this formula reduces the binding force of the obligation somewhat and thereby takes into account the difficulty -- sometimes even the impossibility -- of finding adequate religious assistance. The obligation is thus somewhat relative, but nevertheless contains an element dependent on an objective judgment of the situation; it should not be interpreted [p.1389] in such a way as to arbitrarily restrict the possibilities of receiving religious assistance. On the proposal of one delegation, the term "persons, such as chaplains, performing religious functions", was taken from Protocol I, Article 1 ' (Protection of civilian medical and religious personnel), ' paragraph 5. (17)

    ' Sub-paragraph ' (e)

    4579 This sub-paragraph seeks to prevent that persons deprived of their liberty should have to work in unacceptable conditions. The ICRC draft did not refer to working conditions. This point was introduced in an amendment. (18) Detainees or internees do not necessarily have to work; in some cases conditions do not lend themselves to this. The rule under consideration here, however, refers to cases in which they are made to work. Working often contributes to improving living conditions, both materially and psychologically, but is should not give rise to ill-treatment. This is why it is provided that persons deprived of their liberty must have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population. Thus it is prohibited to force detainees to carry out unhealthy, humiliating or dangerous work, bearing in mind the conditions in which the local population works.

    Paragraph 2

    ' Opening sentence '

    4580 Some measures for improving living conditions in detention cannot always be executed because of lack of material possibilities, but they must be respected within the limits of the means available. Such is the aim of paragraph 2, which gives, by way of example, some rules which, although only compulsory as far as the means are available, are nevertheless important. It should be recalled that the delegations encountered great difficulties during the negotiations, on the one hand, to determine the mandatory minimum standard contained in the preceding paragraph, and, on the other hand, the rules which parties are called upon to respect "within the limits of their capabilities".

    4581 Paragraph 2 may be considered as a sort of guideline which may be developed, depending on the circumstances and the goodwill of those responsible; the few rules that are given serve as illustrations and should not be interpreted restrictively or rigidly.

    4582 The expression "those who are responsible for the internment or the detention" relates to persons who are responsible de facto for camps, prisons, or any other places of detention, independently of any recognized legal authority.

    [p.1390] ' Sub-paragraph ' (a)

    4583 Women shall be held in quarters separate from those of men, under the immediate supervision of women, except in cases where families are accommodated together. In the ICRC draft this principle was included among the mandatory rules of paragraph 1. It is based on Article 82 of the fourth Convention. This measure of special protection for women is an essential element of what must be done to comply with the prohibition of "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" laid down in Article 4 ' (Fundamental guarantees), ' paragraph 2(e); it follows automatically, since Article 4 ' (Fundamental guarantees), ' paragraph 2, forms part of the body of absolute obligations.

    4584 In cases where it is not possible to provide separate quarters, provision should in any case be made for separate sleeping quarters and separate washing facilities.

    ' Sub-paragraph ' (b)

    4585 This sub-paragraph lays down the right to correspond and provides that persons referred to in paragraph 1 are allowed to send and receive letters and cards, though their number may be limited by the competent authority, if it deems necessary. The exchange of news between persons deprived of their liberty and their families is a fundamental element of their mental health. It is also a way of preparing for a return to peace, since it is a means of limiting the number of families permanently separated by events because they are unable to locate their relatives. However, in a situation of conflict, postal services are often paralysed and forwarding letters may incur problems which are difficult to resolve. Censorship may be considered to be necessary, but this requires personnel. It should be noted that the may appeal to the Central Tracing Agency (CTA), as provided in the Conventions. (19) The CTA's experience and its neutral position enable a number of practical difficulties to be resolved. The form with a maximum of twenty-five words strictly related to family matters which is used by the CTA has proved very useful in non-international armed conflicts during the last thirty years. The facility to correspond is a legal right; it may not therefore, be used as a disciplinary measure or as a means of exerting pressure, even though it may sometimes prove necessary to limit the number of cards and letters.

    ' Sub-paragraph ' (c)

    4586 Places of internment and detention should not be located close to the combat zone. They must be evacuated when they become too exposed, provided that the [p.1391] evacuation can be carried out under adequate conditions of safety. This provision is based on Article 23 of the Third Convention and Article 83 of the fourth Convention. (20) Persons deprived of their liberty do not participate in hostilities and should consequently enjoy protection against the dangers resulting from the conflict. To locate places of internment close to combat zones would render such protection quite illusory. As regards carrying out an evacuation under adequate conditions of safety, it should be recognized that in this context the concept of safety is relative and difficult to establish. In any event, the evacuation should not be more dangerous than staying in the same place. Of course the relevant criterion is the interest of the persons deprived of their liberty. If the general principle under which prisoners should be treated as well as those detaining them is upheld, the evacuation should not be carried out in conditions worse than those during movements of armed forces or members of the civilian population.

    ' Sub-paragraph ' (d)

    4587 This sub-paragraph provides for medical examinations for persons deprived of their liberty. This provision was not contained in the ICRC draft and was adopted on the basis of an amendment. (21) Its aim is to ensure, generally, good medical attention in places of internment or detention; on the one hand, so that no one remains in a condition of distress without receiving care, and on the other hand, to ensure that contagious diseases are detected in time, in the interests of detainees and guards alike.

    ' Sub-paragraph ' (e)

    4588 This sub-paragraph is aimed at protecting the physical and mental health and integrity of persons deprived of their liberty. The general rule is accompanied by some principles specifically governing medical procedures made available to them, in order to prevent any harmful medical treatment or intervention. (22) The text reiterates Article 11 ' (Protection of persons), ' paragraph 1, of Protocol I,which was drafted with great care in Committee II of the Conference. The interpretation of these two purely humanitarian provisions is identical and consequently reference can also be made to the commentary on Article 11 ' (Protection of persons) ' of Protocol I. (23)

    [p.1392] ' First sentence '

    4589 This rule supplements the absolute obligation contained in Article 4 ' (Fundamental guarantees), ' paragraph 2(a), which prohibits "violence to the life, health and physical and mental well-being of persons". (24) The protection provided here is more complete; it covers not only health, but also physical and mental integrity, which often, though not necessarily, go together. Thus the removal of an organ or amputation of a limb could endanger the integrity of a person without necessarily impairing his health.

    4590 The term "endanger" refers to the stage before the actual effect takes place: the mental health of a person may be endangered if he is put into isolation which may be expected to lead to psychological problems. Putting a man into isolation may endanger his health, without knowing in fact whether his health will be damaged.

    4591 "Any unjustified act or omission"; the justification resides in the interest of the person concerned, his well-being, improvement in his health or alleviation of his suffering. The term "unjustified" was considered at length, for a number of delegations wanted it to be deleted. The adjective was finally retained because it sometimes happens that an act or omission is medically justified, even though it endangers the health or integrity of the patient; for example, a surgical operation during which the anaesthetic causes medical problems. The act is justified, although there is no improvement in the patient's state of health

    4592 The term "omissions" refers not only to wilful omissions, but also to failure to act without due diligence.

    ' Second sentence '

    4593 The aim of this sentence is to prohibit medical experiments. The term "medical procedure" means "any procedure which has the purpose of influencing the state of health of the person undergoing it". (25) The reason for carrying out such a procedure must be, medically and morally, based on the expectation that it will be for the patient's benefit. The reference to generally recognized medical standards, i.e., medical ethics, is the essential element in making this judgment; in addition, the criterion of non-discrimination must be taken into account. A person deprived of his liberty must be cared for in the same way as a free man suffering from the same ailment, i.e., he must receive the same treatment.

    4594 This provision does not mention the patient's consent. However, even with such consent, no procedure that is not based on medical grounds can be allowed. Reference may be made to the exceptions laid down in Article 11, paragraph 3 , of Protocol I, viz:

    "donations of blood for transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then [p.1393] only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient".

    These exceptions should apply by analogy to situations of non-international armed conflict even though they are not expressly included in the text. They correspond to the spirit if not to the letter of Protocol II. The negotiators of Protocol II wanted the instrument to be simple and the rules not to be too detailed for fear that they might otherwise be incapable of application as being beyond the capabilities of the authorities responsible. Of course, the humanitarian considerations remain the same.

    Paragraph 3

    4595 Persons who are neither interned nor detained within the meaning of paragraph 1, but whose liberty is restricted in some way for reasons related to the conflict, have the benefit of the fundamental guarantees laid down in Article 4 ' (Fundamental guarantees), ' as well as that of the provisions of Article 5 which are not concerned with the material conditions of detention, i.e., paragraphs 1(a), (c) and (d), and 2(b), which deal with the treatment of the wounded and sick, the right to receive individual or collective relief, the right to practise their religion, the right to receive spiritual assistance when appropriate, and the right to send and receive mail. This provision is aimed at ensuring reasonable living conditions to persons under house arrest or who live under surveillance in any other way. For example, permission to send and receive mail is important for a person who is forced to live in a district far away from his usual place of residence.

    Paragraph 4

    4596 This paragraph provides that if it is decided to release persons deprived of their liberty, necessary measures to ensure their safety must be taken by those who decide to release them. There was some controversy about this rule and it was necessary to choose between the two possibilities proposed by the Sub-Group of the Working Group. (26) In fact, a distinction should be made between two elements: on the one hand, the decision to release, and on the other hand, the conditions of safety. For some the prime consideration should be the question of decision-making, while others recommended that no release should be possible in the absence of conditions of safety to do so, i.e., that the element of safety should be foremost. The text as adopted takes into account both aspects of the problem, which are in fact interdependent. Release should not take place if it [p.1394] proves impossible to take the necessary measures to ensure the safety of the persons concerned. It is not indicated for how long such conditions of safety should be envisaged. It seems reasonable to suppose that this should be until the released persons have reached an area where they are no longer considered as enemies, or otherwise until they are back home, as the case may be.

    ' S. J. '


    * (1) [(1) p.1385] See commentary Art. 4, supra, p. 1367;

    (2) [(2) p.1385] Draft Art. 8;

    (3) [(3) p.1385] See particularly Arts. 22, 26 and 27, Third Convention, and Arts. 82, 85, 89 and 90, Fourth Convention;

    (4) [(4) p.1385] O.R. IV, p. 25, CDDH/I/236;

    (5) [(5) p.1385] O.R. X, pp. 105-106, CDDH/I/287/Rev.1;

    (6) [(6) p.1385] For the definition of an absolute obligation, see commentary Art. 4, supra, p. 1372;

    (7) [(7) p.1386] ' Commentary Drafts ', p. 139 (Art. 8); O.R. VIII, pp. 336-337, CDDH/I/SR.32, paras. 65-70;

    (8) [(8) p.1386] See commentary Art. 2, supra, p. 1357;

    (9) [(9) p.1386] O.R. VIII, pp. 344-345, CDDH/I/SR.33, paras. 10-17;

    (10) [(10) p.1386] See Art. 2, para. 2, of Protocol II, supra, p. 1360; persons deprived of their liberty at the end of a conflict also have the benefit of these guarantees, throughout the duration of their detention. See also introduction to Part I, supra, p. 1343;

    (11) [(11) p.1386] See commentary Art. 7, infra, p. 1407;

    (12) [(12) p.1387] The provision of food etc., according to this paragraph is not, of course, a question of relief, but an obligation resting upon the detaining authority to provide detainees with the necessities of life. If the situation deteriorates to the point where the civilian population requires relief to survive, persons deprived of their liberty should of course also have the benefit of such relief actions. Sub-paragraph (c), which will be discussed below, emphasizes that there is a right to relief. It is not a legal entitlement, but strictly a humanitarian provision. Food available for the guards of the detainees should also be a criterion; although detainees cannot claim privileged treatment, they should nevertheless receive as much food as those guarding them;

    (13) [(13) p.1388] ' Commentary III, ' p. 353;

    (14) [(14) p.1388] See commentary Art. 18, para. 2, infra, p. 1478;

    (15) [(15) p.1388] See commentary Art. 4, para. 1, supra, p. 1369;

    (16) [(16) p.1388] O.R. VIII, p. 337, CDDH/I/SR.32, para. 72; p. 423, CDDH/I/SR.40, para. 10;

    (17) [(17) p.1389] O.R. IV, p. 26, CDDH/I/247. See also supra, p. 195;

    (18) [(18) p.1389] O.R. IV, p. 24, CDDH/I/94;

    (19) [(19) p.1390] See also commentary Art. 4, para. 3(b), on the reunion of dispersed families, supra, p. 1379;

    (20) [(20) p.1391] ' Commentary Drafts ', p. 139 (Art. 8, para. 3(d));

    (21) [(21) p.1391] O.R. IV, p. 24, CDDH/I/94;

    (22) [(22) p.1391] See draft Art. 12, paras. 3 and 4, and O.R. IV, p. 28, CDDH/427;

    (23) [(23) p.1391] See commentary Art. 11, para. 1, Protocol I, supra, p. 152;

    (24) [(24) p.1392] See commentary Art. 4, supra, p. 1365;

    (25) [(25) p.1392] See commentary Art. 11, Protocol I, supra, p. 149;

    (26) [(26) p.1393] O.R. X. pp.106-107, CDDH/I/287/Rev.1;