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Commentary - Art. 49. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 49 -- DEPORTATIONS, TRANSFERS, EVACUATIONS (1)


    [p.278] Article 49 is derived from the Tokyo Draft which prohibited the deportation of the inhabitants of an occupied country (2). As a result of the experience of the Second World War, the International Committee of the Red Cross submitted this important question to the government experts who met in 1947. On the basis of the text prepared by the experts the Committee drafted detailed provisions which were adopted in all their essentials by the Diplomatic Conference of 1949.

    PARAGRAPH 1. -- FORCIBLE TRANSFERS AND DEPORTATIONS

    The first of the six paragraphs in Article 49 is by far the most important, in that it prohibits the forcible transfer or deportation from occupied territory of protected persons.
    There is doubtless no need to give an account here of the painful recollections called forth by the "deportations" of the Second World War, for they are still present in everyone's memory. It will suffice to mention that millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions. These mass transfers took place for the greatest possible variety of reasons, mainly as a consequence of the formation of a forced labour service. The thought of the physical and mental suffering endured by these "displaced [p.279] persons", among whom there were a great many women, children, old people and sick, can only lead to thankfulness for the prohibition embodied in this paragraph, which is intended to forbid such hateful practices for all time.
    The authors of the Convention voted unanimously in favour of this prohibition, but there was some discussion on the wording. The draft submitted by the International Committee of the Red Cross reads: "Deportations or transfers of protected persons out of occupied territory are prohibited..." (3); the Diplomatic Conference preferred not to place an absolute prohibition on transfers of all kinds, as some might up to a certain point have the consent of those being transferred. The Conference had particularly in mind the case of protected persons belonging to ethnic or political minorities who might have suffered discrimination or persecution on that account and might therefore wish to leave the country. In order to make due allowances for that legitimate desire the Conference decided to authorize voluntary transfers by implication, and only to prohibit "forcible" transfers (4).
    The prohibition is absolute and allows of no exceptions, apart from those stipulated in paragraph 2. It is, moreover, strengthened by other Articles in the cases in which its observance appeared to be least certain: in this connection mention may be made of Article 51, paragraph 2 , dealing with compulsory labour, Article 76, paragraph 1 , concerning the treatment of protected persons accused of offences or serving sentences and also under certain circumstances Article 70, paragraph 2 , which deals with refugees.
    The Hague Regulations do not refer to the question of deportation; this was probably because the practice of deporting persons was regarded at the beginning of this century as having fallen into abeyance. The events of the last few years have, however, made it necessary to make more detailed provisions on this point which may be regarded to-day as having been embodied in international law (5). Consequently, [p.280] "unlawful deportation or transfer" was introduced among the grave breaches, defined in Article 147 of the Convention as calling for the most severe penal sanctions.

    PARAGRAPH 2. -- EVACUATION

    As an exception to the rule contained in paragraph 1, paragraph 2 authorizes the Occupying Power to evacuate an occupied territory wholly or partly.
    Unlike deportation and forcible transfers, evacuation is a provisional measure entirely negative in character, and is, moreover, often taken in the interests of the protected persons themselves. The clause may be compared with other provisions already commented upon, where the aim in view is similar, such as Articles 14 , 15 and 17 , which deal with hospital and safety zones, neutralized zones, and the evacuation of besieged or encircled areas. These provisions which apply to the whole population of countries engaged in a conflict are, of course, fully valid in occupied territory.
    In order to protect the interests of the populations concerned, a number of safeguards are laid down with regard to evacuation, some of them in this paragraph and some in the next.
    The first stipulation is that evacuation may only be ordered in two cases which are defined in great detail, namely when the safety of the population or imperative military reasons so demand. If therefore an area is in danger as a result of military operations or is liable to be subjected to intense bombing, the Occupying Power has the right and, subject to the provisions of Article 5 , the duty of evacuating it partially or wholly, by placing the inhabitants in places of refuge. The same applies when the presence of protected persons in an area hampers military operations. Evacuation is only permitted in such cases, however, when overriding military considerations make it imperative; if it is not imperative, evacuation ceases to be legitimate.
    It is stipulated that evacuation must not involve the movement of protected persons to places outside the occupied territory, unless it is physically impossible to do otherwise (6). Thus, as a rule evacuation must be to reception centres inside the territory.
    The last sentence of the paragraph was added by the Diplomatic Conference (7); it stipulates that protected persons who have been evacuated are to be brought back to their homes as soon as the [p.281] hostilities in the area have ended. This clause naturally applies both to evacuation inside the territory and to cases where circumstances have made it necessary to evacuate the protected persons to a place outside the occupied territory.

    PARAGRAPH 3. -- PRACTICAL ARRANGEMENTS

    Evacuation with all it implies -- leaving home, moving into an unknown environment, etc. -- represents a radical change in the position of those concerned. The unfortunate consequences of evacuation should therefore be mitigated as far as possible by adding to the measure a minimum of humanitarian safeguards.
    That is what this paragraph is intended to do. It represents a very strong recommendation to the Occupying Power. In the corresponding provision of the draft text put forward by the International Committee of the Red Cross the safeguards were expressed in the form of an absolute obligation (8); but the Diplomatic Conference made the clause rather less rigid by inserting the words "to the greatest practicable extent" (9).
    It must not be forgotten, however, that this wording is intended to cover the contingency of an improvised evacuation of a temporary character when urgent action is absolutely necessary in order to protect the population effectively against an imminent and unforeseen danger. If the evacuation has to be prolonged as a result of military operations and it is not possible to return the evacuated persons to their homes within a comparatively short period, it will be the duty of the Occupying Power to provide them with suitable accommodation and make proper feeding and sanitary arrangements.
    Attention should finally be drawn to the last clause in the paragraph which stipulates that members of the same family are not to be separated from one another. This provision represents a very appropriate addition to those of Article 27 under which the Parties to the conflict are in general obliged to respect family rights. Like Articles 25 , 26 and 82 it is essentially intended to keep the family united or to re-unite it if it becomes separated.

    PARAGRAPH 4. -- NOTIFICATION OF THE PROTECTING POWER

    The importance attached in the Convention to evacuation taking place under the conditions defined above is underlined by the fact [p.282] that the Protecting Power is given the right to be informed of them.
    The text proposed by the International Committee of the Red Cross read: "The Protecting Power shall be informed of any proposed transfers and evacuations. It may supervise the preparations and the conditions in which such operations are carried out." (10)
    The Diplomatic Conference did not wish to make the prior notification of evacuation compulsory, as that would have made it more difficult to keep military operations secret. It therefore confined itself to providing that the information was to be given a posteriori (11).
    The Protecting Power cannot therefore exercise its right of supervision during the preparations or when the moves themselves are taking place; it can, however, verify whether the Occupying Power fulfils the conditions which the Convention lays down with regard to the accommodation and other arrangements for the evacuees. The Protecting Power will take action to ensure that they are treated as humanely as possible and will help to improve their lot by co-operating with the competent authorities. The rights of supervision and check of the Protecting Power in regard to evacuation will, of course, apply not only inside the occupied territory but also outside it, in particular if the transfer is to a place within the territory of the Occupying Power.

    PARAGRAPH 5. -- RIGHT OF PROTECTED PERSONS TO MOVE
    FROM PLACE TO PLACE

    This paragraph is based on a clause proposed by the International Committee of the Red Cross. The Conference decided to include it in each of the first 4 sections of Part III (Articles 28 , 38 (4) , 49, paragraph 5 , and 83, paragraph 1 ).
    It was pointed out in the commentary on Article 27 that the rule whereby individuals are free to move from place to place is subject to certain restrictions in wartime. Two such restrictions are mentioned here: the Occupying Power is entitled to prevent protected persons from moving, even if they are in an area particularly exposed to the dangers of war, if the security of the population or imperative military reasons so demand.
    This clause is the result of the lessons drawn from the Second World War.
    [p.283] It will be enough to remember the disastrous consequences of the exodus of the civilian population during the invasion of Belgium and Northern France. Thousands of people died a ghastly death on the roads and these mass flights seriously impeded military operations by blocking lines of communication and disorganizing transport (12). Thus, two considerations -- the security of the population and "imperative military reasons" -- may, according to the circumstances, justify either the evacuation of protected persons (paragraph 2) or their retention (paragraph 5). In each case real necessity must exist; the measures taken must not be merely an arbitrary infliction or intended simply to serve in some way the interests of the Occupying Power.

    PARAGRAPH 6. -- DEPORTATION AND TRANSFER OF PERSONS INTO
    OCCUPIED TERRITORY

    This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.
    The paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words "transfer" and "deport" is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.
    It would therefore appear to have been more logical -- and this was pointed out at the Diplomatic Conference (14) -- to have made the clause in question into a separate provision distinct from Article 49, so that the concepts of "deportations" and "transfers" in that Article could have kept throughout the meaning given them in paragraph 1, i.e. the compulsory movement of protected persons from occupied territory.


    Notes: (1) [(4) p.277] For the discussions concerning this Article,
    see ' Final Record, ' Vol. II-A, pp. 664, 759, 809; Vol.
    II-B, p. 415;

    (2) [(1) p.278] See p. 4 above;

    (3) [(1) p.279] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions for the
    protection of War Victims, ' Document 4a, p.173;

    (4) [(2) p.279] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 759-760;

    (5) [(3) p.279] This view is not expressed in the Convention
    alone. The Charter of the Nuremberg International Military
    Tribunal laid down in its Article 6 (b) that "deportation
    to slave-labour or for any other purpose" was a "war
    crime"; sub-paragraph (c) of the same Article includes
    "deportations and other inhuman acts done against any
    civilian population" among "the crimes against humanity".
    In its judgment delivered on September 30, 1946, the
    Tribunal agreed that deportation was illegal. A great many
    other decisions by other courts which have had to deal
    with this question have also stated that the deportation
    of inhabitants of occupied territory is contrary to the
    laws and customs of war;

    (6) [(1) p.280] See in this connection ' Final Record of the
    Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.
    664, 759-760;

    (7) [(2) p.280] See ibid., Vol. II-A, pp. 759-760;

    (8) [(1) p.281] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. I, pp. 120-121;

    (9) [(2) p.281] See ibid., Vol. II-A, pp. 759-760; Vol. II-B,
    p. 415;

    (10) [(1) p.282] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. I, p. 120;

    (11) [(2) p.282] See ibid., Vol. II-A, pp. 759-760;

    (12) [(1) p.283] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 759-760;

    (13) [(2) p.283] See ' XVIIth International Red Cross
    Conference, Legal Commission, Summary of the Debates of
    the Sub-Commissions, ' pp. 61-62 and 77-78;

    (14) [(3) p.283] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 664;