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Commentary - Art. 5. Chapter I : General provisions
    ARTICLE 5. -- APPLICATION BY NEUTRAL POWERS


    This Article, which is new, corresponds to Article 4 of the First Geneva Convention of 1949.
    [p.42] The present Convention contains a number of provisions addressed to neutral countries. For example, it determines the position of wounded persons who are taken on board a neutral warship (Article 15 ); wounded persons landed in a neutral country by a ship (Article 17 ) or aircraft (Article 40 ); and hospital ships while in a neutral port (Article 32 ).
    The purpose of the present provision is to provide, by a general extension, for all cases not expressly referred to. In fact, the remark at the end of the commentary on the preceding Article is also valid here to some extent. Although a provision of this kind was essential in the First (Article 4 ) and Third (Article 4 B. (2) ) Conventions, it may seem less necessary in the Maritime Convention; persons "received or interned" in the territory of the Parties to the conflict will eventually find themselves on land, so that strictly speaking the First and Third Conventions would provide an answer to any questions which might arise regarding nationals of belligerent countries who are in neutral territory.
    The Second Convention may, however, be applied to some extent to neutral countries with access to the sea, particularly during the initial phase when nationals of a belligerent country who are war victims may be considered as shipwrecked. Subsequently, the neutral authorities will have recourse to it when determining the fate of hospital ships and their personnel and crews, for the Maritime Convention contains particularly liberal provisions in regard to them.
    Lastly, since the Fourth Geneva Convention of 1949 does not contain any clause similar to the present Article -- for civilians are normally accorded the most favourable status in a neutral country -- and that Convention, in Article 4 , actually excludes from its scope persons protected by the Second Convention (1), the present Article [p.43] may be invoked for the benefit of shipwrecked members of the merchant marine, to whom the Maritime Convention affords protection (Article 13 (5) ) (2).
    The idea which led to the present provision is not new in international law. Article 15 of the Fifth Hague Convention of 1907 , respecting the rights and duties of neutral Powers and persons in case of war on land, stated: "The Geneva Convention applies to sick and wounded interned in neutral territory".
    In preparing the recent revision of the Geneva Conventions, the International Committee of the Red Cross thought well to introduce the text which has become Article 4 of the First Convention of 1949 and Article 5 of the present Convention . The Committee had several reasons for doing so.
    Firstly, it seemed logical to insert into the Geneva Conventions themselves a provision concerning their application. Moreover, the Hague text merely referred back to the 1906 Geneva Convention. As the latter has been revised and added to on two occasions -- in 1929 and 1949 -- the reference should obviously be to the most recent version. A general reference valid for the whole Convention eliminated the need for special references in certain Articles. Lastly, if there was a need to confirm a humane principle already recognized in international law and respected by neutral Powers during two world wars, it was no less necessary to supplement it. There was an obvious gap in Article 14 of the First Hague Convention : it mentioned only the wounded and sick and made no reference to medical and religious personnel, the shipwrecked and the dead. Even though it may be admitted that by implication [p.44] the 1907 Convention covered them all, it was preferable to say so clearly.
    Let us now look closely at the contents of the present Article.
    The wounded, sick and shipwrecked referred to are those mentioned in Article 13 : they must belong to the armed forces of a belligerent or to categories of persons considered as being on the same footing as members of such armed forces. The medical and religious personnel referred to are those to whom Articles 36 and 37 refer: they comprise not only the medical and religious personnel proper, but also the administrative personnel of medical units and the entire crew of hospital ships.
    The phrase "received or interned" in the territory of neutrals was deliberately selected in order to cover all cases which might arise through the application of the present Convention (Articles 15 , 17 and 40 ), the Eleventh (Articles 5 to 7) and the Thirteenth Conventions of the Hague of 1907 (Articles 3 and 21 to 24). As those provisions are not very detailed and are contained in a number of instruments, they must be supplemented by customary law.
    It follows from the application by analogy of the Second Geneva Convention by neutral Powers that medical personnel will not necessarily be interned. According to the spirit of the Geneva Conventions, they may be called upon for medical duty and must be allowed more or less complete freedom to enable them to perform it. If their presence is not or is no longer necessary to the wounded, they will be returned to the belligerent on which they depend. Hospital ships, together with their personnel and crew, must always be returned immediately.
    The present Article introduces the principle of the application "by analogy" of the Second Geneva Convention, which, having been drawn up with a view to determining the treatment of enemies, contains a number of provisions applicable only to belligerents -- as, for example, Article 16 (capture), Article 38 (seizure) and Article 8 (appointment of a Protecting Power) (3). Furthermore, neutral States will, generally speaking, only be able to apply [p.45] mutatis mutandis to persons whom they have interned on their territory, or who are even their guests, provisions which, in the text of the Convention, refer to adversaries.
    Some delegations at the 1949 Diplomatic Conference would have preferred an enumeration of the Articles which do not apply to neutral States, as was done in Article 4 B. (2) of the 1949 Prisoners of War Convention . An enumeration is justified in the Third Convention, whose object is precisely to lay down regulations for the treatment of interned persons; in the First and Second Conventions it would necessarily have been somewhat rigid and arbitrary, some of the Articles being partially applicable. The application of the Convention by neutral Powers is primarily a question of common sense, guided by a humanitarian spirit. The very interest of the wounded, sick and shipwrecked will provide a key in cases of doubt. The fact of having included an enumeration in the Third Convention made it unnecessary to do so in the First and Second, as most of the wounded interned in neutral countries can also claim the benefit of the provisions of the Third Convention.
    The arrangement adopted has much in common with that which prevailed during the Second World War in regard to civilians of enemy nationality who were in belligerent territory at the outbreak of hostilities. On the proposal of the International Committee of the Red Cross, such persons were in most countries given the benefit of the 1929 Prisoners of War Convention, applied "by analogy".
    Article 4 of the Third Geneva Convention leaves the door open for "any more favourable treatment which these Powers (neutrals) may choose to give" to internees. This reservation is so obvious that it may be considered as being implicit in Article 5 of the Second Convention , now under consideration. In general, the Geneva Conventions represent minimum safeguards to be accorded to war victims, and the Powers are invited to act more generously.


    * (1) [(1) p.42] There should be no misunderstanding as to the
    character of this exclusion. It refers to the persons whom
    the Second Convention is principally designed to protect,
    that is to say military personnel, because they are also
    covered by the Third Convention if they fall into the
    hands of the adverse Party. Members of the merchant marine
    are mentioned in the Second Convention in connection with
    the initial phase of operations, during which they may be
    wounded or shipwrecked. Once on dry land, they may be
    considered by the adverse Party as military personnel or
    as civilians and are then protected respectively by the
    Third and Fourth Conventions. The system set up by the
    four Geneva Conventions, taken as a whole, is complete and
    no one is left outside its rules. Any individual in the
    hands of the adverse Party has a definite status in
    international law: he is either a member of the armed
    forces, and as such protected by the Third Convention, or
    a civilian, protected by the Fourth. There is no
    intermediary status unless the status of retained medical
    personnel is so considered, in which case it is determined
    by the First and Third Conventions.
    Until such time as they recover or are rescued, the
    wounded, sick and shipwrecked in the hands of the enemy
    are entitled to special treatment, pursuant to the First
    and Second Conventions, in addition to the treatment to
    which they may be entitled as prisoners of war under the
    Third Convention;

    (2) [(1) p.43] As regards the application of the Second
    Convention to the merchant marine and to civil aviation,
    reference should be made to the commentary on Article 13
    (5). Neutral Powers may not consider members of the
    merchant marine whom they pick up as military personnel;

    (3) [(1) p.44] Nevertheless if diplomatic relations have been
    broken off between the State of origin of rescued persons
    and the neutral State which receives or interns them, a
    third Power may act in a capacity similar to that of a
    Protecting Power;