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Commentary - Art. 6. Chapter I : General provisions
    ARTICLE 6 -- SPECIAL AGREEMENTS


    [p.66] GENERAL

    War is accompanied by the severance of diplomatic relations between the belligerents. On the other hand, it does not entail the cessation between them of all legal relationships. According to a pertinent remark by a delegate to the Diplomatic Conference of 1949, "The legal phenomenon persists throughout war and despite war, testifying thereby to the perennial nature of international law".
    Among agreements concluded between belligerents, the best known are those which put an end to hostilities. (1) But they are not the only ones. The agreements concluded by belligerents in the actual course of hostilities are perhaps as numerous and are equally deserving of attention.
    These latter agreements generally deal with the treatment to be accorded to nationals of either Party detained by the adversary. It is therefore natural that the Geneva Conventions, the primary object of which is to improve that treatment, should devote considerable space to these legal instruments.
    The Geneva Convention of 1864 (Article 6 ) already adumbrated the possibility of agreements being concluded between the Parties with a view to the mutual return of wounded. The Convention of 1906 (Article 2 ) expressly provided for possible agreements designed to establish the conditions of internment of wounded and sick combatants captured by the enemy. And we are not considering here the stipulations binding the Parties to send each other certain communications, which might also be considered as implying a kind of legal bond.
    During the last two years of the 1914-1918 war, detailed agreements relating to the treatment of prisoners of war and wounded combatants were concluded between Germany, on the one hand, and France and Great Britain, on the other. (2) It is understandable that, influenced by that example, the authors of the two Geneva Conventions of 1929 [p.67] should more than once have left it to the Parties at war themselves to come to an agreement supplementing certain provisions of the Conventions. The Convention relating to the wounded and sick contained various references of this kind in Articles 2 , 3 , 12 and 13 . The Prisoners of War Convention went even further. The authors of that Convention had realized that, detailed though it was, it would have to be adapted to the peculiar circumstances of wartime, and deal at greater length with various points which could not as yet be foreseen. They were therefore wise enough, after having provided for special agreements in certain specific cases, to indicate to the Contracting States that, in order to amplify and
    complete the rules established by the Convention, ' general and collective ' regulations were not necessary, and they were free to settle these questions ' separately ' by special agreements. Thus Article 83 stipulated that "The High Contracting Parties reserve to themselves the right to conclude special conventions on all questions relating to prisoners of war concerning which they may consider it desirable to make special provision."
    During the discussions which took place in connection with the revision of the Conventions of 1929, it seemed appropriate to formulate in the four Geneva Conventions the general principle contained in Article 83 above, but with an amended wording taking into account various necessities which will be considered further on. This proposal met with the practically unanimous approval of the Diplomatic Conference of 1949. (3)

    PARAGRAPH 1 -- NATURE, FORM AND LIMITATION OF THE SPECIAL
    AGREEMENTS

    1. ' First sentence -- Nature and form of the special agreements '

    A preliminary indication of the nature of the special agreements is supplied by the enumeration contained in Article 6. Care has been taken -- and this is a considerable improvement on the 1929 text -- to [p.68] recall the various provisions of the Convention, which already expressly mention the possibility of agreements being concluded between the Parties concerned. These provisions refer to the following points;

    (a) designation of an impartial organization as a substitute for the
    Protecting Power (Article 10, paragraph 1 );

    (b) removal, exchange and transport of the wounded left on the
    battlefield (Article 15, paragraph 2 );

    (c) evacuation of the wounded and sick from a besieged area, and
    passage of medical personnel and equipment on their way to that
    area (Article 15, paragraph 3 );

    (d) establishment and recognition of hospital zones and localities
    (Article 23, paragraphs 2 and 3 );

    (e) relief of retained medical personnel (Article 25, paragraph 3 );

    (f) determination of percentage of medical and religious personnel to
    be retained (Article 31, paragraph 2 );

    (g) protection of medical aircraft (Article 36, paragraphs 1 and 3 );

    (h) protection of medical aircraft flying over the territory of
    neutral Powers (Article 37, Paragraph 1 );

    (i) determination of the manner of carrying out an enquiry requested
    by one of the Parties concerning any alleged violation of the
    Convention (Article 52 ). (4)

    This enumeration alone shows at once that the term "agreement" embraces a very wide variety of acts. In some cases, it refers to purely local and provisional agreements (evacuation of the wounded), in others to what amounts to veritable regulations (medical personnel), in others again to diplomatic agreements (substitute for the Protecting Power, enquiry).
    The notion of special agreements ought, in the same way, to be interpreted in a very broad sense, and to be without any limitation as to form and time of conclusion. It is only the ground covered, extensive though it may be, which is subject to limitations, formulated in the interest of the protected persons, as will be seen when the second sentence of paragraph 1 comes up for consideration.

    [p.69] A. ' Form of the agreements '. -- To be considered as a "special agreemen" in the sense of Article 6, it is not necessary for an agreement between two belligerents to concern exclusively the subjects dealt with by the First Convention. The expression of agreement relating to these subjects may be included in an agreement of much wider scope. If, for instance, an armistice agreement contains, in addition to its military or territorial clauses, one or more provisions dealing with the situation of retained medical personnel or equipment, such provisions are subject to the stipulations contained in Article 6 and, in particular, to the limitations specified in the second sentence.
    Nor would it be correct to consider that, to be valid, special agreements must conform to the conditions and forms of procedure, e.g. in regard to signature and ratification, which are normal in the case of international treaties. Special agreements clearly fall into the category of what are known as "Conventions in simplified form". (5) During a war it is sometimes necessary to adopt measures to take effect immediately without there being the material possibility of complying with the formalities required in normal times; but, provided the contracting military bodies do not exceed their competence, the agreement concluded will be valid. This would be the case, for instance, with the local and temporary arrangements which are made to ensure the safety of the wounded.
    Where there is no urgency, the absence of formalities is nevertheless justifiable by the fact that the special arrangements provided for under Article 6 are always in the last resort, as will be seen later on, in execution of the Convention. The Convention has received the general approval of the supreme authority of the nation, and special agreements, being measures in execution of the Convention, can be validly concluded by the executive bodies on their own authority.
    This lack of formalism is also manifest in another connection. Mutual and concordant declarations of intent may be made orally without other formality -- a condition which international law considers adequate for all treaties. Very often they may be exchanged, not directly between the parties concerned, but through a third party (6). In the absence of [p.70] diplomatic relations, the organizations called upon to supervise the application of the Convention, such as the Protecting Power or its substitute, or the International Committee of the Red Cross, will frequently play the part of third party, and may even contribute actively to the conclusion of such agreements, as was shown by experience in the Second World War.

    B. ' Time of conclusion. ' -- The special agreements enumerated in the Convention, and the function which they are called upon to fulfil, show that Article 6 applies mainly to agreements concluded in the course of hostilities. It may, however, be deduced from various indications that Article 6 also extends to agreements concluded by the Parties after the close of hostilities or even independently of the war.
    For example, an agreement under Article 10 relating to a substitute for the Protecting Power may be concluded in peacetime. Moreover, the words "The Parties to the conflict may conclude", which were contained in the draft Article 6, have been replaced by "The High Contracting Parties may conclude". (7) Consideration has thus been given to the position of neutral States. They too may be called upon to conclude special agreements with the belligerents (in the cases provided for under Articles 32 and 37 , for instance). By this latter amendment, the Diplomatic Conference recognized also that special agreements were not necessarily limited to the period of hostilities, although it rejected an Italian proposal to add the words "during or after hostilities". (8) It thus left the way open to the conclusion in peacetime of all sorts of special agreements under which the standard of treatment of protected persons would exceed the minimum provided for in the Convention.
    In conclusion it may be said that the provisions of Article 6, and in [p.71] particular the guarantees for the individual contained in the second sentence, apply to any special agreement concluded between the Contracting Parties, whether in war or in peace, on subjects concerning the Convention.

    2. ' Second sentence -- Prohibited special agreements '

    This sentence, which did not appear in Article 83 of the 1929 Convention , is of paramount importance. It affects the underlying character of the Convention, and at the same time the position ' vis-à-vis ' it of the Contracting States, on the one hand, and of the individuals which it protects, on the other. We shall be mainly concerned here with the position of the States, that of individuals being examined in connection with Article 7 .

    A. ' The problem of "derogatory agreements" '. -- May the High Contracting Parties by special agreements modify as they see fit the stipulations of the Convention? Is their contractual liberty complete with regard to the subject of such agreements? Such was the problem which faced the authors of the revision of the 1929 text.
    During the Second World War there were belligerent Governments -- some of them undoubtedly trammelled in their freedom of action by reason of the occupation of their territory -- which concluded agreements depriving prisoners of war of their protection under the Convention under various headings, such as supervision by the Protecting Power (9) prohibition of labour connected with military operations, or safeguards in regard to penal and disciplinary sanctions. (10) These measures, which were put to those concerned as a benefit, resulted for most of them in what were sometimes very serious disadvantages.
    Article 83 of 1929 (11), interpreted literally, certainly appeared to leave the belligerents entire contractual freedom, and therefore to authorize the conclusion of agreements which would modify the status of the [p.72] persons protected. But examination of the text in the spirit and framework of the Conventions of 1929 at once invalidated the above theory and supplied a clear answer to the problem.
    The authors of the above Conventions, as well as those of the Conventions of 1906 and 1949, always had as their objective the establishment of rules of universal bearing and the embodiment in legal form of a standard system -- e.g. for wounded and sick combatants -- which would correspond to the practice of States and to the demands of the conscience of civilized peoples. How then could it be alleged that at the very moment when the authors of these instruments were endeavouring to set up universal rules which would be applicable in all circumstances, their intention was to give the Contracting Parties the option of modifying those rules by mutual agreement? No! Article 83 was merely intended to enable the Parties to supplement those rules and, in the interests always of the individuals protected, to adapt their methods of application to unforeseen circumstances.
    Other indications in the texts of 1929 confirm this interpretation -- for example, the placing of Article 83 in the Chapter "' Execution ' of the Convention", the expression, in the same Article, "' to enjoy the benefits ' of these agreements", and lastly Article 2 of the Convention on the wounded and sick which, while leaving the belligerents free to make arrangements for wounded and sick prisoners, was careful to add: "beyond the limits of the existing obligations".
    When the time came for revision, the International Committee of the Red Cross recommended that Article 83 should be clearly defined in the sense indicated above. Their proposal to complete it by a provision to the effect that special agreements should "in no circumstances reduce the standard of treatment" of protected persons, was approved by the Conference of Government Experts in 1947. (12)
    But certain experts were opposed to this solution. In their view, such a limitation conflicted with the idea of the sovereignty of States and might lead to the Conventions being more frequently violated. Moreover, it would often be very difficult to say at the outset whether or not a special agreement involved drawbacks for the persons protected. These arguments [p.73] were repeated at the Diplomatic Conference of 1949. (13) But the Conference by a large majority declared itself categorically in favour of maintaining the "saving clause" ' (clause de sauvegarde) ' proposed by the International Committee of the Red Cross -- such was the term used to describe the second sentence of paragraph 1 -- and by so doing emphasized the inviolable character of the rules of protection which it had established. (14)

    B. ' Scope of the "saving clause" '. -- The final wording of the "saving clause" goes further than the first proposal by the International Committee, in particular owing to the addition of the words "nor restrict the rights which it (the Convention) confers upon them". It is these words, in fact, which most accurately interpret the underlying intention of Article 6.
    It is not always possible to determine immediately whether or not a special agreement "adversely affects the situation of protected persons". What happens when the situation is improved in certain respects and adversely affected in others ? Certain of the agreements to which reference was made above could have appeared at first to be advantageous; the drawbacks did not become apparent until later. The condition relating to "adverse effects on the situation" is not, therefore, in itself a sufficient safeguard. Accordingly, in the text proposed to the XVIIth International Red Cross Conference in 1948 we see a second condition appearing -- namely the prohibition of any restriction of the rights which the Convention confers upon persons protected by it.
    What interpretation should be placed upon the phrase "rights conferred by the Convention" -- considered, not from the standpoint of the individual protected (that will be examined under Article 7 ), but in relation to special agreements between belligerents? Should the words be taken to refer only to the provisions dealing directly with the wounded and sick and with medical personnel?
    The answer is "No". At the Diplomatic Conference a proposal to prohibit only those agreements which restricted ' fundamental ' rights was rejected because "the Conventions lay down a minimum standard of treatment for protected persons and..... it would be difficult to draw a distinction between rights which were fundamental and those which [p.74] were not. (15) The conclusion of that debate proves that the principle in question applies not to certain specific rights, but to the whole of the safeguards which the Convention provides for those it seeks to protect.
    These safeguards reside likewise in all the arrangements which are stipulated in the interest of these persons, such as the distinctive emblem, protection of members of the population who aid war victims, supervision by the Protecting Powers, or penalties in cases of violation. In short, it may be said that the principle applies to all the rules of the Convention -- except perhaps the purely formal provisions contained in the last section -- since the application of any one of these rules represents, directly or indirectly, a benefit for the protected persons, and a guarantee to which they are entitled.
    To interpret the "saving clause" in any other way would lead to inadmissible consequences. For instance, the provisions with regard to the emblem, which are perhaps even more essential for the protection of the wounded and sick than some of the rules which refer to them directly, might be modified by agreement, whereas the said rules could not be so altered.
    In the last analysis, since each rule of the Convention represents an obligation on the States parties to the Convention, the sense of the expression "restrict the rights" becomes clear. The States may not by special agreement restrict, i.e. waive, their obligations under the Convention. On the other hand, nothing prevents them from undertaking further and wider obligations in favour of protected persons (e.g. by allowing retained personnel to enjoy greater freedom than is prescribed in the Convention). Obligations under the Geneva Convention must often be considered as representing a minimum, which the Powers are invited to exceed.
    It is this the criterion of "derogation", rather than that of "adverse effect", which provides the best basis for deciding whether a special agreement is, or is not, in conformity with the Convention. In the majority of cases deterioration in the situation of the persons protected will be an immediate or belated consequence of derogation.
    When the Governments which met in Geneva in 1949 expressly prohibited any derogatory agreement, they did so because they were aware of a great danger -- namely, that the product of their labours, [p.75] which had been patiently drafted in the best possible conditions (viz. in peacetime) might be at the mercy of modifications dictated by chance or under the pressure of wartime conditions. They were courageous enough to recognize this possible eventuality, and to set up safeguards against it. In that sense Article 6 is a landmark in the process of the renunciation by States of their sovereign rights in favour of the individual and of a superior juridical order.

    C. ' Special problems. ' -- (a) If, as a result of a far-reaching change in conditions, the application of a provision under the Convention entailed serious disadvantages for the persons protected, would the "saving clause" debar the Powers concerned from endeavouring to remedy the situation by an agreement departing from the provision?
    Certain States might be tempted, if the Convention hampered them on a particular point, to declare that on the point concerned the Convention adversely affected the persons protected, even though such adverse effect was not as general, objective and serious as the situation we had in mind when speaking of disadvantages due to a far-reaching change. It would therefore appear that the neutral organizations responsable for looking after the interests of these persons, are in the best position to decide whether a provision is fundamentally unsuited to achieve the protection which it was designed to provide. The organizations in question, conscious of their responsibility for the maintenance of rules which have been formally adopted in peacetime, should insist on the strict observance of this principle.
    Nevertheless, if the situation envisaged should, exceptionally, arise, these organizations might then base their judgment on the principle (also inherent in the "saving clause") of the non-aggravation of the situation of protected persons. That would enable them to tolerate such measures waiving the defective provision as the States concerned might take, either separately or after mutual agreement, with a view to remedying the situation.

    (b) Have not the organizations entrusted with the supervision of the regular application of the Convention also a duty to perform with regard to the other question which should be dealt with here -- the question, namely, of penalties in cases of special agreements which violate the "saving clause"?
    If two belligerents agree to subject their nationals to treatment [p.76] which is contrary to the Convention, one essential element in the defence of the rules of the Convention -- intervention by the State of Origin of the person protected -- will be lacking. Moreover, no matter what part those persons can themselves take in the defence of the "rights" conferred on them by the Convention -- the point will be considered under Article 7 --, they will find difficulty in opposing the conclusion and consequences of such an agreement.
    Other factors will therefore have to come into play to prevent the conclusion of derogation agreements -- such factors as the pressure of third Powers or of public opinion, the fear of the Government in power of being subsequently disavowed or even punished, and court decisions. If need be, the neutral organizations mentioned above may also forewarn the Parties concerned which are contemplating the conclusion of derogatory agreements, intervene against such as are concluded and refused to recognize them when carrying out their activities on behalf of persons protected by the convention.

    PARAGRAPH 2 -- DURATION OF SPECIAL AGREEMENTS

    This provision reproduces almost literally, mutatis mutandis, the second paragraph of Article 83 of the 1929 Convention relative to the treatment of prisoners of war. It is true that the words "until their reparation has been effected" have been replaced by the words "as long as the Convention is applicable to them" -- but this is merely a modification of form, since under Article 5 such application is to apply until the final repatriation of the persons protected.
    The clause had been introduced in 1929 at the request of Germany (16). The Armistice of November 1918 had abrogated (Article 10) the agreements concluded between belligerents to supplement the summary stipulations of the Hague Regulations in regard to prisoners of war; and as a result, all prisoners whose reparation had been delayed lost the benefits of the progress which these agreements represented in comparison with the Hague Regulations. That was the origin of the provision, its object being to prevent a rescinding clause, such as that mentioned above, from being imposed on a defeated Party.
    The presence of a provision of this nature was less imperative in the [p.77] Convention of 1949 which regulates the situation of protected persons very fully, stipulates that it shall apply in its entirety until their final repatriation and, as we have seen, prohibits derogatory agreements.
    Nevertheless, the reproduction of this provision, which was agreed to without comment or objection by the Diplomatic Conference, entails certain consequences. On the one hand, should the standard of treatment accorded to the wounded, the sick or to medical personnel under the Convention be improved in certain respects as a result of an agreement passed between belligerents, the disappearance of one of the Contracting Parties cannot be taken as authorizing the other Contracting Party to waive those agreements, or deprive protected persons of the benefits they confer.
    Again, the paragraph contains a valuable indication of the meaning of the Convention, in the expression "where more favourable measures have been taken with regard to" wounded and sick, as well as medical personnel and chaplains, "by one or other of the Parties,..". This expression confirms what was pointed out above. The obligations incumbent on the belligerents with regard to these persons are considered in the majority of cases as a minimum which may always be increased. Thus, the rules regarding the status of retained medical personnel imply that the Detaining Power may accord to such personnel treatment more favourable than that accorded to prisoners of war, quite apart from the advantages already expressly stipulated under Article 28 . Wounded and sick, who fall into the hands of the enemy and thus become prisoners of war, also deserve special advantages, formally authorized under Article 16 of the Third Convention . Among these may be mentioned release on parole, internment in a neutral country, facilities for correspondence, relief
    consignments and facilities in matters of food and clothing.


    * (1) [(1) p.66] See R. MONACO, ' Les Conventions entre
    belligérants ' in ' Recueil des cours de l'Académie de
    droit international de La Haye, ' 1949-II (Vol. 75), page
    277;

    (2) [(2) p.66] Convention between Germany and Great Britain
    concerning prisoners of war and civilians, concluded at
    The Hague on 2 July 1917; Conventions between Germany and
    France concerning prisoners of war, concluded at Berne on
    15 March 1918 and 26 April 1918;

    (3) [(1) p.67] The British Delegation, however, considered
    that it would be dangerous to embody this general rule in
    the first two Conventions. They were afraid that if this
    were done the belligerents might be able to alter by
    agreement essential stipulations, such as the clauses
    referring to the emblem. The new wording used avoids this
    danger, as well be seen further on. ' See Final Record of
    the Diplomatic Conference of Geneva, 1949 ', Vol. II-B,
    page 16;

    (4) [(1) p.68] In addition, Article 32, paragraph 2, contains
    the words "unless otherwise agreed";

    (5) [(1) p.69] See R. MONACO, ' Les Conventions entre
    belligérants ' in ' Recueil des cours de l'Académie de
    droit international de La Haye ', 1949-II (Vol. 75), page
    294;

    (6) [(2) p.69] A clear example of this is the instance of the
    special agreements between Italy and the United Kingdom,
    the only ones relating to the war of 1939-1945 which to
    our knowledge have been published. They appeared in Italy
    under the title: ' Testo delle Note Verbali che integrano
    e modificano la Convenzione di Ginevra del 1929 '...,
    Rome, 1941 and 1942;

    (7) [(1) p.70] ' See Final Record of the Diplomatic Conference
    of Geneva, 1949 ', Vol. II-B, page 76. It is obvious that
    hat expression does not exclude the application of Article
    6 to Parties to the conflict who are not "Contracting
    Parties", but who have agreed to be bound by the
    Convention.The fact that they have so agreed places them
    on the same footing as Contracting Parties;

    (8) [(2) p.70] By this addition Italy wished to subject to the
    stipulations of Article 6 the clauses of the peace
    treaties relating to matters dealt with in the Geneva
    Convention. In her opinion a victor should be prevented
    from imposing on its adversary, in the peace treaty,
    conditions which would flout the rules contained in the
    Geneva Conventions. The Italian proposal, as worded above,
    was rejected, but was considered again under another form,
    and this time adopted as part of Article 51. See below, on
    Article 51, page 373;

    (9) [(1) p.71] Agreements depriving protected persons of the
    services of a Protecting Power are now expressly
    prohibited by Article 10, paragraph 5, a provision which
    is common to all four Conventions of 1949. See below, on
    Article 10, page 124;

    (10) [(2) p.71] See R.J. WILHELM, ' Le caractère des droits
    accordés à l'individu dans les Conventions de Genève, ' in
    the ' Revue internationale de la Croix-Rouge, ' August
    1950, pages 575 and 576;

    (11) [(3) p.71] See the tenor of the Article in question,
    above, page 67;

    (12) [(1) p.72] See ' Report on the work of the Conference of
    Government Experts for the Study of the Conventions for
    the Protection of War Victims ' (Geneva, April 14-26,
    1947), Geneva, 1947, page 259;

    (13) [(1) p.73] See ' Memorandum by the Government of the
    United Kingdom ' (Document No. 6), Point 9, page 5;

    (14) [(2) p.73] ' See Final Record of the Dilomatic Conference
    of Geneva, 1949 ', Vol. II-B, pages 55, 56, 73 and 74;

    (15) [(1) p.74] See ' Final Record of the Diplomatic Conference
    of Geneva, 1949 ', Vol. II-B, pages 73 and 74;

    (16) [(1) p.76] See ' Actes de la conférence diplomatique de
    1929 ', page 511;