ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 38. Part III : Status and treatment of protected persons #Section II : Aliens in the territory of a party to the conflict
    ARTICLE 38. -- NON-REPATRIATED PERSONS (1)


    [p.244] 1. ' Principle '

    A. ' Continuation of peacetime treatment. ' -- The first paragraph of Article 38 sets forth the great principle which governs the whole legal status of protected persons who have remained or been retained in the territory of a Party to the conflict. By virtue of this principle the position of such persons will continue to be regulated by the "provisions concerning aliens in time of peace".
    To understand this clause properly, it is necessary to refer to the Convention to which the Hague Regulations are annexed. According to the preamble to that treaty its provisions are "intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants".
    The Hague Regulations, however, only govern the relations of the belligerents with the civilian population in cases where one of the belligerents has occupied the territory of the other. They state that the Occupying Power is to respect, "unless absolutely prevented, the laws in force in the country". It is thus the status quo ante whose continuation is recommended.
    The Hague Regulations did not deal with the case of enemy civilians retained on the territory of one of the Parties to the conflict; the present provisions of the Fourth Convention are intended to fill this gap and are, as stated in Article 154 , "supplementary" to the text in force. It follows that they were conceived in the same spirit and they too aim at continuing the status quo ante in favour of protected persons as far as possible and unless absolutely prevented.
    What should be understood by "provisions concerning aliens in time of peace"?
    It seems beyond doubt that the relations of the State of residence with enemy aliens whom it retains on its territory cannot continue to be governed by peacetime laws, in particular by the treaties concerning residence and domicile, whose benefits they enjoyed before hostilities broke out. But in the absence of these special [p.245] treaties enemy aliens must, as a matter of principle, enjoy treatment similar to that generally accorded to other aliens before the hostilities.
    The legal status of aliens depends in the first instance on the national legislation of the country of residence, but that country is not entirely free to settle the matter, being bound to respect certain rules of international law. Those rules may derive either from the treaties concerning residence and domicile, which States very often conclude with one another in order to define the status of their nationals, or, in the absence of such treaties, from the principles and practice of international law. These rules, whether contained in treaties or resulting from usage, will in general be characterized by a growing tendency to place aliens on the same footing as nationals (the principle of treatment as nationals) (2). This is above all true of the position of aliens in civil and penal law, as well as in legislation relating to procedure; for the principle of treatment as nationals has made greatest progress in those spheres, and foreigners therefore enjoy the protection of the laws and authorities of the territory where they are living, in
    regard to their personal safety and the respect due to their rights.
    On the other hand that principle of equality does not, according to the usual practice of governments, include political rights, which aliens do not enjoy.
    The Article under discussion refers, then, to such clauses -- above all to the rule stipulating treatment as nationals -- when it proclaims that they are to remain in force and that foreigners are to continue to benefit by them.

    B. ' Reservations. ' -- It will be readily understood, however, that a state of war creates a situation which will inevitably have repercussions on the standing of aliens and does not always permit their peacetime status to be wholly maintained.
    The Diplomatic Conference took this fact into account and recognized that belligerents were entitled to apply supervisory and security measures, necessary in the national interests, to certain classes of aliens.
    Thus Article 38 begins with a clause making an exception in favour of the special measures authorized by the Convention, in particular by Articles 27 and 41 , to which express reference is made.
    It has already been seen that Article 27 does not specify the various security measures which may be taken by States, but merely sets forth a general provision. In the commentary on that Article several [p.246] examples were given of supervisory and security measures which the belligerents might be forced to take, such measures varying from insignificant restrictions to two of the most severe measures allowed under the Convention -- namely internment and assigned residence, which are considered in Article 14 .
    It should be remembered, however, that recourse may only be had to exceptional measures in cases of absolute necessity. The general rule is that peacetime status must continue; under no circumstances must it be rendered illusory by a general application of coercive measure.
    One point should nevertheless be mentioned. Restrictive measures applied by the State to the population as a whole (martial law etc.) must also apply to protected persons, for if aliens are to enjoy the same treatment as nationals in peacetime within the limits referred to above, the same treatment, subject to the same limits, will still apply to them with the modifications which the existence of a state of war involves for the nationals of the country. There is no violation of the Convention if aliens suffer through the fact that these measures are less favourable than those applying in peacetime and it is self-evident that an enemy alien could not expect to escape the consequences of war by virtue of Article 38.
    Protected persons will thus be subject to all the restrictions imposed upon the civilian population in wartime. The Diplomatic Conference nevertheless wished to grant them a number of essential and imprescriptible rights.

    2. ' Imprescriptible rights '

    In the second part of the Article under (1) to (5) rights are specified which must "in any case" be granted to protected persons. The obligation is unconditional and applies to all protected persons in the country of residence, whether security measures have been applied to them or whether they are, in principle, enjoying the treatment afforded to aliens in peacetime.
    The rights which are considered as indispensable under this heading comprise:

    A. ' Relief. ' -- Every protected person is entitled to receive any individual or collective relief that may be sent to him. This clause refers first and foremost to relief in kind, relief in the form of money being considered separately in Article 39 , which deals with means of existence. Relief as meant here will consist, for example, of consignments of food, clothing and medical supplies sent to the protected [p.247] persons individually or collectively. Such consignments may come either from the country of origin of the protected persons or from any other country and may be sent by private individuals, humanitarian organizations or governments.
    The right of protected persons to receive relief implies an obligation of the country of residence to allow the consignments to enter its territory and to pass them on intact to the addressee.
    Are such consignments to be considered exempt from customs duty in the same way as relief consignments intended for the civilian population of occupied territory and for civilian internees (3)? This is a moot point, for no reference was made to it during the discussions at the Conference. However, any possible levy of duty must not have the effect of depriving protected persons of their right to the relief. Enemy civilians who are permitted to remain at liberty often live under more difficult conditions than the internees; it will sometimes be impossible for them to pay any large amount of customs duty; and yet it will sometimes be they who stand in greatest need of relief. In such cases the State of residence, although not formally bound to do so, must nevertheless grant such consignments customs facilities similar to those provided in the case of relief intended for civilian internees. The essentially humanitarian character of the consignments fully justifies such a course.
    Since direct postal communication between opposing belligerent States will have been interrupted, relief supplies from the protected persons' home country can be transmitted only through a neutral agency. This duty will normally fall on the Protecting Powers but any humanitarian organisation, such as the International Committee of the Red Cross, may also assume it.

    B. ' Medical care. ' -- The State of residence must ensure that protected persons receive the medical attention and hospital treatment required by their state of health. The application of this clause, which the Diplomatic Conference transferred from Article 16 to its present place, depends upon the same principle of treatment as nationals that governs the whole status of aliens in the territory of belligerent countries. Consequently, the only justification for priority in the giving of medical care is medical urgency and not nationality.

    C. ' Religion. ' -- As will be seen later, this clause corresponds to a similar clause in Article 58 , which refers to occupied territories (4). It may also be compared with Article 27, paragraph 1 , which provides [p.248] a guarantee that the religious convictions and practices of all the persons protected by the Convention are respected. It has already been pointed out that freedom to practise a religion is an absolute right and subject to no restrictions other than those imposed by the necessity of preserving public order and morals.

    D. ' Protection. ' -- Protected persons who live in an area particularly exposed to the dangers of war will be entitled to move from it. This applies to persons who live in areas where there is a danger of bombing and those who are liable to suffer hardship when the fighting draws close.
    This right too is subject to the rule of treatment as nationals. That is expressly laid down. The belligerent State retains the right to authorize or limit such moves to the same extent as those of its own nationals. The rights of protected persons in this connection are thus neither greater nor less than those of nationals of the State where they are residing.
    It is conceivable -- and an instance has actually occurred -- that a belligerent might forbid all movement of the civilian population in order to prevent military operations from being hampered by overcrowding of roads and railways following an exodus of the civilian population. If such a ban were general and applied to the population as a whole there would be no reason to complain of the action taken by the State of residence. The case would be different, however, if the ban on movement was discriminatory in character and applied only to aliens. That would obviously be a case of violation of the Convention, all the more so as Article 28 prohibits the practice of using the presence of protected persons to render certain points or areas immune from military operations.

    E. ' Preferential treatment. ' -- This clause refers to a specific category of protected persons -- namely children under fifteen years old, pregnant women and mothers of children under seven. Such persons are to benefit by any preferential, treatment accorded to the corresponding categories of the native population. Here again the rule of treatment as nationals is the criterion.
    What should be understood by the phrase "preferential treatment"? It covers the whole body of provisions, normally promulgated in countries at war, for the benefit of persons whose weakness in one respect or another warrants special care.
    Measures granting preferential treatment may be most varied in scope and application: they may cover the granting of supplementary ration cards, facilities for medical and hospital treatment, special welfare treatment, exemption from certain forms of work, protective [p.249] measures against the effects of war, evacuation, transfer to a neutral country, admission to hospital and safety zones and localities, etc.
    This provision is in the same spirit as Articles 14 , 17 , 23 , 24 , 50 , 89 and 132 which are applicable in whole or in part to the same categories of people.


    Notes: (1) [(1) p.243] For the discussions leading up to Article 38,
    see ' Final Record, ' Vol. I, p. 119; Vol. II-A, pp. 656,
    739-740 and 807-808; Vol. II-B, p. 407;

    (2) [(1) p.245] In the case of certain States this tendency
    has, however, been less marked since the First World War;

    (3) [(1) p.247] See Articles 61 and 108, pp. 324 and 452;

    (4) [(2) p.247] See p. 318. This text should be compared with
    Article 46 of the Hague Regulations;