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Commentary - Art. 45. Part III : Status and treatment of protected persons #Section II : Aliens in the territory of a party to the conflict
    ARTICLE 45. -- TRANSFER TO ANOTHER POWER (1)


    [p.266] GENERAL

    Any movement of protected persons to another State, carried out by the Detaining Power on an individual or collective basis, is considered as a transfer for the purposes of Article 45. The term "transfer", for example, may mean internment in the territory of another Power, repatriation, the returning of protected persons to their country of residence or their extradition. The Convention makes provision for all these possibilities. On the other hand there is no provision concerning deportation (in French ' expulsion '), the measure taken by a State to remove an undesirable foreigner from its territory. In the absence of any clause stating that deportation is to be regarded as a form of transfer, this Article would not appear to raise any obstacle to the right of Parties to the conflict to deport aliens in individual cases when State security demands such action. However, practice and theory both make this right a limited one: the mass deportation, at the beginning of a war, of all the foreigners in the territory of a belligerent cannot, for
    instance, be permitted.
    Moreover, expulsion, if it does take place, must be carried out under humane conditions, the persons concerned being treated with due respect and without brutality. Persons threatened with deportation must be able to present their defence without any difficulty being placed in their way and must be granted a reasonable time limit before the deportation order is carried out, if it is confirmed; in such cases the Protecting Power must be notified.

    PARAGRAPH 1. -- PROHIBITED FORMS OF TRANSFER

    The meaning of this paragraph is clear: its object is to prevent a Party to the conflict from evading his obligations by transferring protected persons to a State which is not bound by the Convention. The words "Power which is not a Party to the conflict" mean any Power which has not ratified or acceded to the Convention or, as stated in Article 2, paragraph 3 , any Power which refuses to apply its provisions.
    The prohibition is general in character. It applies to all protected persons in the hands of a belligerent, whatever their status may be (protected persons who are not subject to restrictions on their liberty, internees or refugees); it cannot be lifted, even with the consent of [p.267] the persons concerned (2). This is, in fact, a case in which Article 8 , relating to the non-renunciation of rights, applies.

    PARAGRAPH 2. -- RESERVATIONS

    Since Article 45 uses the word "transfer" in a very broad sense, provision is made for exceptions in order to allow for special cases.
    Repatriation or transfer to a Power which is the country of origin of the people who are transferred has the effect of placing the transferees in the position of nationals. They thus lose their status as protected persons and cease to be protected under the Convention. The prohibition in the first paragraph therefore loses its ' raison d'ĂȘtre ' so far as they are concerned.
    In the case of persons being returned to the country of residence, the rule laid down in paragraph 1 remains valid, as their return does not necessarily imply the loss of their status as protected persons. Nevertheless the position will be different when their transfer takes place in a period following the end of hostilities; for, as is known, Article 6, paragraph 2 , lays down that the application of the present Convention shall cease on the general close of military operations (3).
    In any case it should be noted that none of the clauses in this Article can be placed in the way of the rights of protected persons, under Articles 35 to 37, to leave the territory at the outbreak of or during a conflict. Whatever the country to which they are proceeding, and even if it is not party to the Convention, the right to leave accorded by these Articles cannot be interfered with.

    PARAGRAPH 3. -- CONDITIONS FOR TRANSFER

    The Power to which the protected persons are transferred, being a party to the Convention, is bound to respect and ensure respect for its provisions in all circumstances (Article 1 ). The paragraph under discussion nevertheless contains a number of additional safeguards.

    [p.268] A. ' Preliminary safeguard '

    Before arranging to transfer protected persons the Detaining Power is bound to make sure that the Power which has agreed to receive them is both willing and able to apply the Convention. These two conditions, one based on subjective and the other on objective considerations, must both be satisfied. Protected persons cannot, for instance, be transferred if the Detaining Power has serious reason to believe that economic difficulties will prevent the receiving Power from providing for their maintenance, as required by the Convention, or if, again, the Detaining Power has reason to fear that certain categories among the persons transferred may be subjected to discriminatory treatment by the authorities of the country receiving them.

    B. ' Responsibilities ' (4)

    1. ' Responsibility of the receiving Power '

    The Article first lays down that responsibility rests with the Power which has agreed to receive the protected persons. That is the inevitable consequence of the transfer, and would apply even in the absence of an express mention, since Article 4 of the Convention lays down that any person who finds himself in the territory of a Party to the conflict of which he is not a national is a "protected person"; and Article 29 lays down that "the Party to the conflict in whose hands protected persons may be is responsible for the treatment accorded to them by its agents".

    2. ' Responsibility of the transferring Power '

    The Power which has transferred the protected persons must not, however, cease to take an interest in their fate. Although they are no longer "in its hands", it remains responsible for them in so far as the receiving Power fails to fulfil its obligations under the Convention "in any important respect", provided that it is notified of such failure by the Protecting Power.
    [p.269] It would be pointless to try to make a list here of all the serious failures to fulfil obligations which might bring this clause into operation. As examples Articles 27 , 28 and 30 to 34 may be quoted; if the persons transferred are interned, which will most often be the case, a great many of the provisions in the chapter on internment will also have to be borne in mind, in particular those dealing with civil capacity, maintenance, food, clothing hygiene and medical attention, religious and intellectual activities, correspondence and relief. In the treatment accorded to protected persons, the application of all these provisions is essential.
    In practice, intervention by the transferring Power will first take the form of verbal representations, reminding the Power to whom they are addressed of the obligations it has assumed by taking charge of protected persons. These representations may be accompanied by an offer to send food, clothing or medical or pharmaceutical supplies, when the failure to apply the Convention is caused by an absence of resources. Should its efforts remain in vain, the transferring Power may request the return of the protected persons in order to resume directly its obligations under the Convention. A State which received such a request would be obliged to comply with it.

    PARAGRAPH 4. -- PERSECUTION

    The prohibition in this paragraph is absolute, covering all cases of transfer, whatever the country of destination may be and whatever the date. It is already implicit in the previous paragraphs which only permit transfers if the receiving State is a Party to the Convention and willing and able to apply it in practice. Since one of the fundamental principles proclaimed by the Convention is the prohibition of discrimination (Article 27, para. 3 ), it follows that the Detaining Power cannot transfer protected persons unless it is absolutely certain that they will not be subject to discriminatory treatment or, worse still, persecution. This clause, which was inserted in the Convention by the XVIIth International Red Cross Conference, should be compared with the preceding Article on refugees.

    PARAGRAPH 5. -- EXTRADITION

    The meaning of this reservation is quite clear: it is intended to ensure that the system of extradition functions normally. The Convention was not the place to settle in detail the conditions on which extradition was to take place or the method of carrying it out; such [p.270] cases must be decided in accordance with the laws and treaties in force.
    It was nevertheless important to preserve the existing character of extradition as an act of penal procedure and to prevent it serving as a pretext for persecution. The Diplomatic Conference wished to exclude any extradition treaty concluded, for instance, under pressure from a victorious Power. It therefore stipulated expressly that the treaties referred to were those "concluded before the outbreak of hostilities" (5).


    Notes: (1) [(2) p.265] For the discussions leading up to this
    Article, see ' Final Record, ' Vol. I, p. 120; Vol. II-A,
    pp. 660-662, 764-765, 809, 826-827, 854-855; Vol. II-B,
    pp. 413-414; Vol. III, pp. 128-129;

    (2) [(1) p.267] See ' Final Record, ' Vol. I, p. 120; Vol.
    II-A, pp. 660-662, 764-765, 826-827; and ' XVIIth
    International Red Cross Conference, ' Stockholm, August,
    1948, ' Draft revised or new Conventions for the
    Protection of War Victims, ' Art. 41, p. 172. The same
    absolute principle is embodied also in Article 12, para.
    2, of the Convention relative to prisoners of war, where
    it was inserted by the Diplomatic Conference of 1949;

    (3) [(2) p.267] Reference may be made in this connection to
    the last paragraph of Article 6, according to which
    "protected persons whose release, repatriation or
    re-establishment" takes place after the general close of
    military operations, shall "meanwhile continue to benefit
    by the present Convention";

    (4) [(1) p.268] The question of division of responsibility
    between States taking part in a transfer of protected
    persons may be considered from various points of view: the
    responsibility of the transferring Power, the
    responsibility of the receiving Power and lastly, the
    joint responsibility of the two Powers concerned.
    This last approach, which safeguards the legitimate
    interests of the protected persons the most fully, was
    that proposed in the Stockholm Draft; a great many
    Delegations in the Diplomatic Conference would have liked
    to see it adopted; in particular the United States
    Delegation pointed out that the principle involved was not
    new in international law, but corresponded to a practice
    which had been widespread during earlier conflicts, in
    regard to the treatment of both civilians and prisoners of
    war;

    (5) [(1) p.270] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 764-765 and
    809;