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Commentary - Art. 35. Part III : Status and treatment of protected persons #Section II : Aliens in the territory of a party to the conflict
    ARTICLE 35. -- RIGHT TO LEAVE THE TERRITORY


    [p.234] GENERAL REMARKS. -- HISTORICAL BACKGROUND (1)

    Article 35 is similar to the provisions in the Tokyo Draft (2) laying down that civilians of enemy nationality must be allowed to return to their home country (Article 2), unless they are liable to be mobilized or their departure would threaten the security of the State of residence in some other way (Article 4).
    During the Second World War (3) negotiations carried out through diplomatic channels or through the Protecting Powers made it possible to repatriate civilians. This was usually done on a basis of reciprocity, through exchanges. In 1940 British and German women were thus able to return to their own countries, and French and German women who had been interned returned home by way of Switzerland (4). In 1942 more than 2,000 persons were exchanged in this manner. In addition 28,000 Italians from Abyssinia -- women, children, old people and the sick -- were granted permission by Great Britain to return to their home country, this action being taken unilaterally without any condition of reciprocity. In 1943, 1,500 civilians of American and Canadian nationality were exchanged in Mormugao (in the Portuguese colony of Goa) for the same number of Japanese (5). In 1944 further exchanges took place between Germany and the British Empire, some 1,000 people on either side being involved (6). Exchanges concerned exclusively with the diplomatic and consular staff of
    the belligerent countries were, moreover, arranged between the majority of the countries taking part in the war (7).
    As a rule these repatriations were arranged by the Protecting Powers; but the International Committee of the Red Cross also took a hand when negotiations undertaken by the Protecting Powers seemed unlikely to achieve any result and the Committee was asked to intervene, and also when it felt called upon to make use of its traditional right of initiative in humanitarian matters (8).
    [p.235] In the light of the experience thus gained, the International Committee of the Red Cross put forward suggestions which were to a large extent adopted by the Diplomatic Conference in drafting this Article.

    PARAGRAPH 1. -- RIGHT TO LEAVE THE TERRITORY

    1. ' First sentence '

    A. ' Principle '. -- People whose right to leave the territory is recognized generally wish to return to their own country. That is not a condition, however, for the word "repatriation" does not appear in the provision; it lays down that they are entitled to leave, but does not say what their destination is to be. A belligerent is therefore also bound to authorize the departure of protected persons who wish to go to a country other than their home country, to a neutral State for example.
    The words "who may desire to leave the territory" show quite clearly that the departure of the protected persons concerned will take place only if they wish to leave. The International Committee's original draft laid down that no protected person could be repatriated against his will; the same idea is implicit in the text actually adopted, although it is expressed somewhat differently (9). The point is an important one, for many foreign civilians do not wish to leave a country where they have lived for many years and to which they are attached (10). This principle applies to all protected persons as defined in Article 4 , except for civilian internees whose position is regulated by Article 132 (11). It should be noted that the right to leave the territory is not in any way conditional, so that no one could be prevented from leaving as a measure of reprisals (12).

    B. ' Reservation '. -- Belligerents have the right to refuse protected persons permission to leave the territory if their departure is "contrary to the national interests of the State".
    [p.236] This reservation is in accordance with a general practice among States, which, as we have already pointed out, have normally refused to repatriate certain classes of civilian, in particular men of an age to bear arms (from 16 to 60 years old) and persons whose departure is regarded as dangerous to the security of the State where they have been residing.
    "National interests" is a broader notion than "security considerations" -- the term used in the Tokyo and Stockholm Drafts and rejected by the Diplomatic Conference. With this wording the belligerents may object to someone's departure not only when it would endanger their security but also when the national economy would suffer as a result. The Conference had in mind, in particular, the case of countries of immigration, where the departure of too large a proportion of aliens might prejudice national interests by creating manpower or economic problems, etc. (13)
    A great deal is thus left to the discretion of the belligerents, who may be inclined to interpret "national interests" as applying to many different spheres. It is therefore essential for States to safeguard the basic principle by showing moderation and only invoking these reservations when reasons of the utmost urgency so demand. For although internment may be justified as a matter of principle, the same cannot be said of the poor conditions in which civilian aliens have all too often been detained.

    2. ' Second sentence -- Procedure '

    Applications to leave have to be considered in accordance with "regularly established procedures", which means that there must be procedural safeguards to prevent arbitrary decisions. Belligerent States must therefore specify in advance the conditions under which permission to depart will be granted, and must appoint a responsible authority which will make decisions impartially, as rapidly as possible, and with reasons stated, after the applicant has been given an opportunity of submitting his application and explaining the grounds on which he makes it.
    The Convention leaves it to the States concerned to appoint the responsible authority. The discussions at the Diplomatic Conference showed, however, a tendency to prefer an administrative authority, as such an authority is generally regarded as best able to make rapid decisions concerning applications affecting the security of the State (14). [p.237] The main point, however, is not so much to know what authority will be appointed as to be quite certain that each case will be examined objectively and thoroughly and that the rights of the protected person will be fairly weighed against the legitimate interests of the State of residence.

    3. ' Third sentence -- Travel facilities '

    The Government of the country of residence must allow the protected person who is permitted to leave the territory to provide himself with the necessary funds for his journey and to take with him a "reasonable amount" of his "effects and articles of personal use". The context shows how "a reasonable amount" should be interpreted, for it will only be the personal effects and articles which the protected person can actually carry with him. Bonds and the like and furniture would appear to be excluded, unless special regulations enacted by the Power of residence should be more favourable in this respect.
    The provision was necessary because of the various exchange control measures, decrees forbidding the export of capital and other similar bans which are normally enacted when war breaks out. Too strict an application of such measures might in practice lead to the prevention of protected persons from making use of the right to leave, since a journey is bound to require adequate financial or other resources.
    For that matter there is nothing to preclude a Power of residence from arranging group travel if it considers its security would be better safeguarded thereby than in the case of individual departures. The restrictive measures in force could then include clauses of exception applying solely to members of these organized parties (15).

    PARAGRAPH 2. -- RIGHT OF APPEAL

    The system laid down offers States a choice between an administrative and a judicial procedure and is therefore flexible enough to cover the procedures already in use in different countries. Thus, during the Second World War applications for repatriation were dealt with administratively in certain countries, while other countries set up special courts for aliens.
    The Diplomatic Conference made a point of specifying that when the law of a country provided for action through administrative [p.238] channels the task must be entrusted to an administrative board (in French "collège"). The Conference felt that the fate of protected persons ought not to depend on a single official and that they could be more certain of impartiality if the decision were taken by a number of people on a majority vote (16).
    Governments are moreover free to entrust appeals to existing courts (by extending the duties and responsibilities of such courts) or to bodies specially set up for that purpose. This paragraph seems to indicate a preference for this type of solution.
    The question of rules of procedure -- which may be verbal or written -- is left to the discretion of the Government concerned. The main point is that protected persons should have the widest possible facilities for pleading their cause. Parties to the conflict may therefore go further in this matter than is laid down in Article 35; they might for example set up, in addition to the courts envisaged, an advisory body whose members would be independent persons of standing. This course was adopted by certain States during the Second World War.

    PARAGRAPH 3. -- INTERVENTION BY THE PROTECTING POWER

    This paragraph gives an additional safeguard to protected persons who have not received permission to leave. The obligation to furnish the Protecting Power, on request, with the names of persons who have been refused permission to leave and the reasons for such refusal, will make it possible to provide their families and the authorities in their home country with information concerning the fate of civilians in these circumstances and would thus make it possible to avoid arbitrary action on the part of the Detaining Power. Where the alleged reasons seem inadequate or the procedure adopted does not appear to have been in accordance with the provisions of the Convention the Protecting Power will have cause to intervene (17).
    This obligation, however, to notify the names of retained persons and the reasons for retaining them on request is, however, subject to two important reservations. The first is based on the principle of the freedom of the individual: protected persons may particularly desire that the names and place of residence should not be known to the authorities in the home country. The second reservation is based on State interests and allows the Detaining Power to take no action on [p.239] a request for notification when, in certain clearly defined cases, there are legitimate security reasons against it. The Detaining Power, however, could not raise an objection on security grounds -- and this must be stressed -- in order to refuse systematically to reply to questions asked by the Protecting Power.


    Notes: (1) [(1) p.234] For the origin of Article 35, see ' Final
    Record, ' Vol. I, p. 119; Vol. II-A, pp. 652-655, 737-738
    and 823; Vol. II-B, p. 410;

    (2) [(2) p.234] See p. 233;

    (3) [(3) p.234] For information concerning the First World
    War, see GARNER: ' International Law and the World War, '
    London, 1920;

    (4) [(4) p.234] See ' Revue internationale de la
    Croix-Rouge, ' 1940. pp. 358-359;

    (5) [(5) p.234] See ibid., 1944, pp. 239-240;

    (6) [(6) p.234] See ' Annuaire Suisse de droit
    international, ' Vol. Il, 1945, p. 117, and JANNER: ' La
    Puissance protectrice en droit international, ' Basle,
    1948, pp. 45-46;

    (7) [(7) p.234] See ibid., (p. 34-35, and ' Annuaire Suisse de
    droit international, ' Vol. I, 1944, pp. 132-133;

    (8) [(8) p.234] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 602 and 638;

    (9) [(1) p.235] Wile forced repatriation -- that is, sending a
    person back to his country against his will -- is
    prohibited, the right of expulsion has been retained. For
    example, if France were to break off diplomatic relations
    with Germany, she would not be entitled to send German
    nationals under escort to the German frontier against
    their will; she could, however, decree their deportation
    and send them under escort to the Belgian, Spanish, or
    Swiss frontiers;

    (10) [(2) p.235] For the case of refugees, see Article 44
    below, pp. 264-265;

    (11) [(3) p.235] In regard to aliens on official business,
    diplomatic practice rules that they must be enabled to
    leave the territory of the State which has received them
    and that they keep their privileges and immunities up to
    the moment of their departure. If this practice is not
    observed, they will obviously be entitled at least to the
    treatment laid down in this Article;

    (12) [(4) p.235] See Article 33, p. 224;

    (13) [(1) p.236] See ' Final Record, ' Vol. II-A, pp. 653-654
    and 737-738: Vol. II-B, p. 410;

    (14) [(2) p.236] Ibid., Vol. II-A. pp. 653-654; Vol. III, pp.
    120-122;

    (15) [(1) p.237] See Article 36, p. 239;

    (16) [(1) p.238] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 654 and
    738;

    (17) [(2) p.238] For details of the role of the Protecting
    Power in supervising the application of the Convention,
    see Article 9. p. 80. For its role in cases of internment
    or assigned residence, see Article 43, para. 2, p. 262;