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Commentary - Art. 78. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 78. -- SECURITY MEASURES, INTERNMENT AND
    ASSIGNED RESIDENCE. RIGHT OF APPEAL (1)


    GENERAL

    Article 78 may be compared with Articles 41 and 42 , dealing with the internment and assigned residence of protected persons within the territory of a party to the conflict. All three provisions are based on the general reservation permitting "such measures of control and security as may be necessary as a result of the war." (Article 27, fourth paragraph ).
    In occupied territories the internment of protected persons should be even more exceptional than it is inside the territory of the Parties to the conflict; for in the former case the question of nationality does not arise. That is why Article 78 speaks of imperative reasons of security; there can be no question of taking collective measures: each case must be decided separately.

    [p.368] PARAGRAPH 1. -- ASSIGNED RESIDENCE. -- INTERNMENT

    Unlike the Articles which come before it, Article 78 relates to people who have not been guilty of any infringement of the penal provisions enacted by the Occupying Power, but that Power may, for reasons of its own, consider them dangerous to its security and is consequently entitled to restrict their freedom of action.
    The security measures envisaged are "assigned residence" and "internment", which have already been considered in detail in connection with Articles 41 and 42 .
    It will suffice to mention here that as we are dealing with occupied territory, the protected persons concerned will benefit by the provisions of Article 49 and cannot be deported; they can therefore only be interned, or placed in assigned residence, within the frontiers of the occupied country itself. In any case, such measures can only be ordered for real and imperative reasons of security; their exceptional character must be preserved.

    PARAGRAPH 2. -- PROCEDURE

    The second paragraph sets forth the procedural safeguards which are designed to ensure that the principles of humanity will be borne in mind when people are interned or placed in assigned residence (2).
    It is for the Occupying Power to decide on the procedure to be adopted; but it is not entirely free to do as it likes; it must observe the stipulations in Article 43 , which contains a precise and detailed statement of the procedure to be followed when a protected person who is in the territory of a Party to the conflict when hostilities break out, is interned or placed in assigned residence.
    The persons subjected to these measures are not, in theory, involved in the struggle. The precautions taken with regard to them cannot, therefore, be in the nature of a punishment.
    The acknowledged right of those concerned to appeal against any decision to intern them or place them in assigned residence is a further safeguard, and an important one. The details given concerning the practical application of the appeal procedure -- including the recommendation that decisions which are upheld should be reviewed every six months (3) -- show that the authors of the Convention took every possible care to prevent any form of abuse. They did, however, leave [p.369] it to he Occupying Power to entrust the consideration of appeals either to a "court" or a "board". That means that the decision will never be left to one individual. It will be a joint decision, and this offers the protected persons a better guarantee of fair treatment.

    PARAGRAPH 3. -- ADDITIONAL SAFEGUARDS

    The reason for this last provision is the same as for Article 39 , to which it refers, and the second paragraph of Article 41 : namely, to ensure that people who are obliged to leave their domiciles, without enjoying internee status (Part III, Section IV, of the Convention), shall have some means of existence.


    Notes: (1) [(1) p.367] For the background to Article 78, see ' Final
    Record, ' Vol. I, p. 124; vol. II-A, pp. 772-773, 835-836,
    860; vol. II-B, pp. 441-442, 486;

    (2) [(1) p.368] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' vol. II-A, pp. 772,
    835-836;

    (3) [(2) p.368] See ibid., Vol. II-B, pp. 440-441;