ICRC databases on international humanitarian law
Photo
of
Previous photo
Next photo
CLOSE
x
ICRC
Skip navigation
Home
|
What's new
|
Contacts
Language
Select one
Francais
Search
International Committee of the Red Cross
Treaties and States parties to such Treaties
Who we are
Who we are - International Committee of the Red Cross
Mandate and mission
Structure
Finances
Working for the ICRC
The Movement
History
Funds and medals
Contacts
What we do
What we do - ICRC activities on behalf of people affected by war
Visiting detainees
Protecting civilians
Reuniting families
Ensuring economic security
Water and habitat
Health
Cooperation with National Societies
Building respect for IHL
Safeguarding health care
Other activities
Where we work
Where we work - the ICRC worldwide
Africa
Americas
Asia & Pacific
Europe & Central Asia
Middle East
War & Law
War & Law - the legal basis for our action
Treaties and customary law
Contemporary challenges for IHL
Protected persons
Conduct of hostilities
Weapons
Emblem
IHL in domestic law
International criminal jurisdiction
IHL and other legal regimes
Resource centre
Resource centre - Search
Publications and films
Photos
Maps
International review
Annual report
IHL databases
Library and research services
ICRC Archives
Events
Other sites
Gift shop
Video newsroom
Search
Treaties and Documents
1949 Conventions and Additional Protocols, and their Commentaries
By date
By topic
By State
Historical Treaties and Documents
By date
By topic
By State
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
Commentary -
Art. 37. Part III : Status and treatment of protected persons #Section II : Aliens in the territory of a party to the conflict
ARTICLE 37
. -- PERSONS IN CONFINEMENT (1)
PARAGRAPH 1. -- SCOPE
Article 37 applies to protected persons who are confined pending proceedings or are serving a sentence involving loss of liberty for an offence against the penal law of the country where they are living. It is of small importance whether the period of confinement began before or after the outbreak of war; on the other hand, the protection afforded under this Article is restricted to protected persons who are the subject of judicial measures either on preventive grounds or as a result of conviction and sentence. Persons to whom security measures are applied are protected under other provisions (2).
It was essential to prevent representatives of the Detaining Power's administrative services, in particular police officers and prison warders, from dealing in an inhumane manner with foreigners who were at one and the same time enemies and detainees.
[p.243] The text prepared by the International Committee laid down that detained persons should not "be subjected to conditions more severe than at the opening of hostilities", thus insisting on the maintenance of the conditions of imprisonment which had obtained in peacetime. Taken in the broadest sense, however, these conditions, under the law of most countries, included certain provisions favourable to the prisoner -- remission of sentence, release on bail, release on parole, etc. -- whose application to enemies had certain drawbacks for the Detaining Power.
Having considered this aspect of the question the Diplomatic Conference of 1949 did not insist on the full application in wartime of the system obtaining in time of peace, so that certain favourable measures which are in fact inapplicable to aliens may, when necessary, be abrogated. The essential point is that in wartime protected persons under confinement are safeguarded against arbitrary action and brutality.
PARAGRAPH 2. -- RIGHT TO LEAVE THE TERRITORY
This provision is clear enough in itself and does not call for any special comment. As soon as foreign civilians are released, they automatically resume their status as protected persons. As such, they may request permission to leave the territory in conformity with the provisions of Articles 35
and 36
.
Notes: (1) [(2) p.242] For the origin of Article 37, see ' Final
Record, ' Vol. I, p. 119; Vol. II-A, pp. 655-656, 739 and
823-824; Vol. II-B, p. 407; Vol. III, p. 122;
(2) [(3) p.242] See Articles 79 et sqq., pp. 371 et sqq.;