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Commentary - Art. 5. Part I : General provisions
    ARTICLE 5. -- BEGINNING AND END OF APPLICATION


    PARAGRAPH 1. -- GENERAL PROVISIONS REGARDING APPLICATION
    AND DURATION

    The general principle for application of the 1929 Convention to persons referred to in Articles 1 , 2 and 3 of the 1907 Hague Regulations is stated in Article 1, paragraphs 1 and 2 , of that Convention. The Convention applies to such persons "who are captured by the enemy", and, in addition, "to all persons belonging to the armed forces of belligerents who are captured by the enemy in the course of operations of maritime or aerial war, subject to such exceptions (derogations) as the conditions of such capture render inevitable. Nevertheless, these exceptions shall not infringe the fundamental principles of the present Convention; they shall cease from the moment when the captured prisoners shall have reached a prisoners-of-war camp."
    This text therefore laid down the principle that the Convention should be applied from the moment of capture; this was, however, a source of considerable difficulties for the Detaining Power (1). The International Committee therefore proposed that the exceptions authorized by the 1929 Convention should be extended to all warlike [p.74] operations and that it should further be stipulated that such exceptions could not impair the essential rights conferred upon prisoners of war. The Government Experts felt, however, that by thus making two classes of stipulations (i.e. fundamental principles and technical provisions), there was a danger of the latter being considered as more or less optional, whereas they might be as vital for the daily welfare of the prisoners of war as the former. The Conference finally agreed that it was preferable to maintain the principle of strict application of the Convention immediately on capture, and to refrain from any explicit mention of possible exceptions. This solution had a twofold advantage: on
    the one hand, no grounds would be furnished to Detaining Powers for the non-fulfilment of their obligations; and on the other, those belligerent States which for material reasons might be forced to make exceptions would be obliged to justify their action (2).
    In fact, the Convention does make a concession in Article 24 (permanent transit camps) to the difficulties which may confront the Detaining Power at the time of capture. But although that provision states that transit or screening camps of a permanent kind must be fitted out under conditions similar to those described in the Convention, and although it is specified that prisoners therein shall have the same treatment as in other camps, the existence of such transit or screening camps is none the less authorized. The existence of this provision in the Convention is an acknowledgment that during a certain period prisoners of war do not receive the full treatment to which they are entitled. This matter will be further commented upon under Article 24 .
    The Convention applies to prisoners of war "until their final release and repatriation". The time at which they must be released and repatriated is determined by Article 118, paragraph 1 , which provides that "prisoners of war shall be released and repatriated without delay after the cessation of active hostilities" (3). What is the meaning of the term "' final ' release and repatriation" (4)? It means that the prisoner must continue to be treated as such until such time as he is reinstated in the situation in which he was before being captured. Thus it might happen that prisoners of war would be repatriated to an occupied country and that subsequently the Occupying Power might wish to take measures concerning them for security [p.75] reasons. In accordance with Article 4, paragraph B (1), such military personnel must upon re-internment be given the treatment provided under the Convention. Similarly, there could be no question of the Detaining Power assuming the rights of the States which it might have annexed or occupied and then
    demobilizing and "liberating" prisoners of war in order to transform them into civilian workers.
    The rule contained in the present paragraph was not stated in such a categorical manner in the 1929 Convention, and in addition to the two cases to which we have just referred, exceptions to this rule frequently occurred during the Second World War (5).
    The present Article 5 is the essential provision which prevents the "transformation" of prisoners of war.
    One category of military personnel which was refused the advantages of the Convention in the course of the Second World War comprised German and Japanese troops who fell into enemy hands on the capitulation of their countries in 1945 (6). The German capitulation was both political, involving the dissolution of the Government, and military, whereas the Japanese capitulation was only military. Moreover, the situation was different since Germany was a party to the 1929 Convention and Japan was not. Nevertheless, the German and Japanese troops were considered as surrendered enemy personnel and were deprived of the protection provided by the 1929 Convention relative to the Treatment of Prisoners of War. The Allied authorities took the view that unconditional surrender amounted to giving a free hand to the Detaining Powers as to the treatment they might give to military personnel who fell into their hands following the capitulation. In fact, these men were frequently in a very different situation from that of their comrades who had been taken prisoner during
    the hostilities, since very often they had not even gone into [p.76] action against the enemy. Although on the whole the treatment given to surrendered enemy personnel was fairly favourable, it presented certain disadvantages: prisoners in this category had their personal property impounded without any receipt being given; they had no spokesman to represent them before the Detaining Power; officers received no pay and other ranks, although compelled to work, got no wages; in any penal proceedings they had the benefit of none of the guarantees provided by the Convention. Most important of all, these men had no legal status and were at the entire mercy of the victor. Fortunately, they were well treated but this is no reason to overlook the fact that they were deprived of any status and all guarantees.
    Under the present provision, the Convention applies to persons who "fall into the power" of the enemy. This term is also used in the opening sentence of Article 4 above, replacing the expression "captured" which was used in the 1929 Convention (Article 1 ). It indicates clearly that the treatment laid down by the Convention is applicable not only to military personnel taken prisoner in the course of fighting, but also to those who fall into the hands of the adversary following surrender or mass capitulation.
    The second category of military personnel who were deprived of the status of prisoner of war comprised those charged with breaches of the laws of war (7). The "principal war criminals", such as were tried at Nuremberg, mostly enjoyed procedural guarantees and received treatment which was at least equivalent to that accorded to detainees under common law. On the other hand, a large number of military personnel accused of lesser crimes were deprived of these advantages and did not receive the treatment specified in the Convention, and their situation was thus considerably worsened. The new Convention opposes any such withdrawal of benefits and provides, in Article 85 , that "Prisoners of war prosecuted... for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention" (8).
    Lastly, it should be noted that prisoners of war who were recaptured after attempting to escape were sometimes sent to camps for political detainees and were thus completely excluded from the protection of the 1929 Convention. This was a flagrant violation of the well-established principle that in such cases a prisoner of war shall be liable only to a disciplinary punishment, and this principle is now recognized in Article 92 (9).
    [p.77] The discussion of the so-called "voluntary" transformation of prisoners of war is referred to in the commentary on Article 7 , below, pp. 87 ff.

    PARAGRAPH 2. -- PERSONS WHOSE STATUS IS IN DOUBT

    This would apply to deserters, and to persons who accompany the armed forces and have lost their identity card.
    The provision is a new one; it was inserted in the Convention at the request of the International Committee of the Red Cross. The International Committee submitted the following text, which was approved at the Stockholm Conference:

    "Should any doubt arise whether any of these persons belongs to one of the categories named in the said Article, that person shall have the benefit of the present Convention until his or her status has been determined by some responsible authority" (10).

    At Geneva in 1949, it was first proposed that for the sake of precision the term "responsible authority" should be replaced by "military tribunal" (11). This amendment was based on the view that decisions which might have the gravest consequences should Hot be left to a single person, who might often be of subordinate rank. The matter should be taken to a court, as persons taking part in the fight without the right to do so are liable to be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment (12). This suggestion was not unanimously accepted, however, as it was felt that to bring a person before a military tribunal might have more serious consequences than a decision to deprive him of the benefits afforded by the Convention (13). A further amendment was therefore made to the Stockholm text stipulating that a decision regarding persons whose status was in doubt would be taken by a "competent tribunal", and not specifically a military tribunal.
    Another change was made in the text of the paragraph, as drafted at Stockholm, in order to specify that it applies to cases of doubt as to whether persons having committed a belligerent act and having fallen into the hands of the enemy belong to any of the categories enumerated in Article 4 (14). The clarification contained in Article 4 [p.78] should, of course, reduce the number of doubtful cases in any future conflict.
    It therefore seems to us that this provision should not be interpreted too restrictively; the reference in the Convention to "a belligerent act" relates to the principle which motivated the person who committed it, and not merely the manner in which the act was committed.


    * (1) [(1) p.73] See ' Report on the Work of the Conference of
    Government Experts, ' p. 113. In this connection, one may
    cite the historic example of Dieppe: after a Canadian
    corps landed there in August 1942, German prisoners were
    handcuffed for some hours, in order to prevent any escape.
    A wave of reprisals and counter-reprisals followed. On
    that occasion, the British Government took the view that
    the Convention was not applicable to captured military
    personnel as long as they were still on the battlefield;

    (2) [(1) p.74] See ' Report on the Work of the Conference of
    Government Experts, ' p. 114, See also ' Final Record of
    the Diplomatic Conference of Geneva of 1949, ' Vol. II-A,
    p. 245;

    (3) [(2) p.74] For the commentary on this provision, see
    below, p. 541 ff.;

    (4) [(3) p.74] In this connection see R.-J. WILHELM: ' Can the
    Status of Prisoners of War be altered? ' Geneva, 1953, pp.
    10-12;

    (5) [(1) p.75] This led the International Committee of the Red
    Cross to send the following appeal:
    "The International Committee of the Red Cross desire
    to draw the particular attention of the belligerents to
    the situation with regard to rights the prisoners of war
    have acquired, both under the terms of the Hague and
    Geneva Conventions, and according to the general
    principles of international law, regardless of the time of
    capture during the present conflict.
    It would appear that, according to information
    received by the International Committee, certain
    categories of prisoners have, as a result of diverse
    circumstances, been deprived of their prisoner-of-war
    status and of the conventional rights arising therefrom.
    The Committee, therefore, earnestly recommend that the
    Powers concerned ensure that the provisions by which the
    prisoners benefit be safeguarded under all circumstances
    and until the termination of hostilities". ' Report of the
    International Committee of the Red Cross on its activities
    during the Second World War ', Vol. I, p. 546;

    (6) [(2) p.75] See R.-J. WILHELM, op. cit., pp. 5-8; see also
    ' Report of the International Committee of the Red Cross
    on its activities during the Second World War, ' Vol. I,
    p. 539 ff.;

    (7) [(1) p.76] See R.-J. WILHELM, op. cit., pp. 12-15;

    (8) [(2) p.76] See the commentary on Article 85;

    (9) [(3) p.76] See the commentary on Article 92;

    (10) [(1) p.77] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions, ' p. 54;

    (11) [(2) p.77] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 388;

    (12) [(3) p.77] Ibid., Vol. III, p. 63, No. 95;

    (13) [(4) p.77] Ibid., Vol. II-B, p. 270;

    (14) [(5) p.77] Ibid., pp. 270-271;