Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
[p.861] Article 75
-- Fundamental guarantees
[p.863] 3000 This article is one of the longest in the entire Protocol. It was the object of lengthy discussion in the Conference itself and in informal meetings of delegates. (1)
[p.864] 3001 When it presented the draft article, the ICRC expressed its concern that a minimum of protection should be granted in time of armed conflict to any person who was, for one reason or another, unable to claim a particular status, such as that of prisoner of war, civilian internee in accordance with the fourth Convention, wounded, sick or shipwrecked.
3002 The article was the object of many amendments and proposals during the deliberations in the Working Group. Several of the amendments were related to details concerning the guarantees to be accorded.
3003 On the other hand, two amendments on points of substance are worth mentioning. The first comes from the Finnish delegation. (2) It has the merit of great clarity. As we saw above, (3) the Finnish government made a declaration on the lines of this amendment upon ratification of the Protocol.
[p.865] 3004 The other amendment came from a group of socialist States and related to the punishment of war crimes. (4) The Diplomatic
Conference took it into account in paragraph 7 of the article.
3005 Committee III examined and discussed this provision for over two weeks: the Working Group also spent a great deal of time on this
article, which was finally adopted during the last session of the
Diplomatic Conference in 1977. The work of the Conference was greatly
facilitated by unofficial consultations conducted in March and April
1977, i.e., before the opening of the fourth session of the
Conference. They were concerned with sorting out the amendments and
amalgamating them so as to reduce their number. Moreover, Committee
III was guided by the work done on Protocol II during the second
session of the Conference. Committee III decided to include in
Article 65 (which has become Article 75
) the text drawn up for
' (Fundamental guarantees) ' and 6
' (Penal prosecutions) ' of Protocol II, except where there was a good reason
to change the wording in view of the fact that Protocol I deals with
international and not non-international conflicts. It should be
recalled that Articles 4
' (Fundamental guarantees) ' and 6
prosecutions) ' of Protocol II reproduce, in some cases word for
word, the corresponding provisions of the Covenant on Civil and
Political Rights (hereafter: the Covenant).
3006 As a detailed examination of the text will show, Article 75
contains imprecise and obscure points. However, it represents an
important step forward in humanitarian law by laying down several
minimum rules of protection for the benefit of all those who find
themselves in time of armed conflict in the power of a Party to the
conflict, whereas in such circumstances provisions of human rights
law are subject to possible derogations. (5) This article must
therefore be seen as a victory for humanitarian law, and its mission
is truly to play a role of great importance.
3007 In addition, Article 75
, even more than common Article 3
of the 1949 Conventions, which was called a "mini Convention", constitutes a
sort of "summary of the law" particularly in the very complex field
of judicial guarantees, which will certainly facilitate the
dissemination of humanitarian law and the promulgation of its
[p.866] Paragraph 1
3008 This paragraph was only adopted after all the others, and after laborious negotiations. (6) The meaning to be ascribed to this
paragraph is not immediately clear. In fact, during the deliberations
speakers expressed divergent opinions in this respect. (7)
3009 Under the terms of this paragraph, individuals who are covered must fulfil the following three conditions:
-- they must be in the power of a Party to the conflict;
- they must be affected by armed conflict or by occupation;
-- they must not benefit from more favourable treatment under the Conventions or under this Protocol.
' Brief analysis of these three concepts '
1. ' Being in the power of a Party to the conflict '
3010 The meaning of these words was determined in the analysis of the title of the Section, which includes these words. (8) The question is
why the expression is repeated here, since the title covers all the
articles of the Section. Thus, for example, Article 76
of women) ' only covers women who are in the power of a Party to the
conflict, although that article does not specify this explicitly.
These matters seem self-evident, but in this case it was considered
appropriate to repeat them.
2. ' Being affected by armed conflict or occupation '
3011 The word "affected" in this context means: touched by or concerned. It remains to determine how far this category of persons
extends. When there is armed conflict, all those who find themselves
in the territory of the countries at war or in occupied territory,
are affected in some way or another. This is very probably
[p.867] not what was intended, particularly because of the words "in
so far"; it cannot therefore be denied that there are persons who are
not affected in the sense of this article. In general those who
contravene the normal laws of the State (ordinary criminals) and who
are punished on these grounds, are not "affected" within the meaning
of this article. On the other hand, if security measures are taken
against certain individuals because of their attitude, whether true
or alleged, with regard to the conflict, Article 75
to them. (9)
3012 The situation may be more complex when internal strife is added to international armed conflict, which might lead to nationals taking
up the cause of the adverse nation, and even giving support to its
military action. There are numerous examples of such situations in
the distant and recent past. The Conference did not express itself on
this point, but it should be recalled that the national legislation
of many countries includes judicial guarantees equivalent to those of
, and sometimes even goes further.
3013 In the armed conflicts referred to in Article 1
' (General principles and scope of application), ' paragraph 4, the situation is
different: in that situation the individuals engaged in the conflict
technically have the same nationality, but the question whether the
guarantees provided will be applied will not depend on this fact
alone, for international law overrides the criterion of nationality
and any provisions which punish aid to the enemy, treason,
insurrection, desertion etc. on the basis of nationality. In fact,
captured combatants and civilians who are subject to security
measures must be considered as enemy nationals and treated
accordingly. They are not actually bound by a duty of allegiance with
respect to the State in whose territory they find themselves or of
which they bear the nationality. In other words, in such a conflict,
captured combatants and civilians interned, arrested or prosecuted
because of their attitude towards the conflict, should have the
benefit of all the provisions of the Geneva Conventions; combatants
must be treated as prisoners of war, and civilians as protected
persons under the fourth Convention.
3014 If in such a situation there were nevertheless cases in which the status of prisoner of war or of protected person were denied to
certain individuals, the protection of Article 75
must be applied to
them as a minimum.
3. ' Not benefitting from more favourable treatment under the Conventions or under this Protocol '
3015 The protections which follow from Article 75
apply above all to those who cannot lay claim to application of the Conventions or to
their application in full, taking into account the derogations
provided for in Article 5
of the fourth Convention. As we have seen
with regard to the title of this Section, it covers civilians, and
therefore it is the fourth Convention and the status of persons
[p.868] protected by that Convention with which we are concerned
here. However, cases may occur of civilians who have committed
hostile acts claiming prisoner-of-war status and treatment in
accordance with Article 4A
and Article 5
of the Third Convention.
3016 Thus persons protected by the fourth Convention will therefore be entitled to the treatment provided for them by that Convention.
However, as we will see below, situations may arise where Article 75
will contain protections for such persons which are not explicitly
provided in the fourth Convention; it is clear that they may avail
themselves of these, since the article is only a minimum standard.
3017 During and following the Diplomatic Conference paragraph 1 gave rise to numerous difficult controversies, particularly as regards the
application of Article 75
to own nationals. It seems that the
Diplomatic Conference did not wish to adopt a more precise wording in
order to achieve a consensus, and the decision of the Finnish
government to clarify the obligations it took upon itself in this
respect upon ratification is understandable.
3018 There was in particular a point of view based on the fact that the ICRC draft explicitly mentioned the Party to the conflict's own
nationals; the same applied to the above-mentioned Finnish amendment;
the amendment to Article 63 of the draft (the present Article 72
' Field of application ') had the same tenor. (10) This precision
disappeared in the text proposed by the Working Group and adopted by
Committee III and later by the Conference itself. What conclusion can
be drawn from this? Some claim that the fact that the reference to
own nationals was deleted reveals an intention to exclude nationals
from the application of the provisions of Article 75
. Others believe
that precisely by virtue of the wording of Article 72
' (Field of
application) ' and Article 75
there was no need to mention nationals
of the Parties to the conflict explicitly.
3019 In any case the number of nationals covered by this article will be considerably reduced, since they can only avail themselves of it
insofar as they are affected by a situation referred to in Article 1
' (General principles and scope of application). ' It is this
restriction which, as the Rapporteur indicated, made it possible to
adopt the article by consensus.
3020 It was also claimed that the Protocol, which is additional to the Conventions, could not modify the basic concepts of the Geneva
Conventions. The point is that these Conventions are concerned with
protecting the individual from arbitrary and oppressive enemy action
and not with determining the relationship between the individual and
his own government. This line of argument seems tenuous: it is not
clear why the Protocol should not increase the category of protected
persons as it does, for example, for certain combatants. Admittedly
it would certainly have been very useful to mention explicitly that
nationals are included, but no negative conclusions should be drawn
from the absence of such mention.
3021 It was also argued that here the expression "in the power of a Party to the conflict" is used, while Articles II ' (Protection of
persons), ' 44
' (Combatants and prisoners of war), ' 45
' (Protection of persons who have taken part in hostilities) ' and 46
' (Spies) ' use the expression "in the power of an adverse Party". It
may justifiably [p.869] be considered that the wording of this
paragraph covers persons in the power of any Party to the conflict,
even that of which the individual is a national. However, it should
be noted that the Protocol uses both the terms "Party to the
conflict" and "adverse Party" repeatedly without making any
difference to the category of persons covered by the two expressions.
' Categories of persons covered by Article 75
3022 The Convention did not draw up a systematic list of persons whom it intended should be covered by this article. However, the
discussions and drafts provide some idea in this respect, which can
be summarized as follows:
1. ' Nationals of States not parties to the Conventions '
3023 This is highly theoretical since the 1949 Conventions have virtually universal participation. (11)
2. ' Nationals of States not Parties to the conflict '
3024 As provided in Article 4
of the fourth Convention, such nationals are not, except in occupied territories, considered as protected persons as long as the State of which they are nationals has normal diplomatic representation in the State in whose power they find themselves.
3025 According to paragraph 8 of Article 75
, no provision of the same article may be construed as limiting or infringing any other more
favourable provision granting greater protection to persons covered
by paragraph 1.
3026 Nationals of States not Parties to the conflict may rely on bilateral treaties on establishment and residence, as well as, where
applicable, on the Hague Convention of 1907 Respecting the Rights and
Duties of Neutral Powers and Persons in Case of War on Land.
3. ' Nationals of allied States '
3027 Nationals of allied States will normally have the benefit of protection by their own authorities. However, if the State of their
nationality does not have normal diplomatic representation in the
State in whose power they find themselves, they are protected persons
under the fourth Convention.
4. ' Refugees and stateless persons '
' (Refugees and stateless persons) ' puts refugees and stateless persons considered as such ' before the beginning of
hostilities ' on the same footing as [p.870] protected persons under
the fourth Convention. Persons who have become refugees ' after the
beginning of hostilities ' are covered by Article 75
persons enjoy the protection of the fourth Convention in any event,
as shown in the commentary on Article 73
' (Refugees and stateless
persons) ' (supra, p. 854).
5. ' Mercenaries '
3029 In its report (12) Committee III expresses itself as follows on the subject of the new article (13) relating to mercenaries:
"Finally, although the proposed new article makes no reference to the fundamental protections of Article 65, it
was understood by the Committee that mercenaries would be one
of the groups entitled to the protections of that article
which establishes minimum standards of treatment for persons
not entitled to more favourable treatment under the
Conventions and Protocol I."
3030 This explanation given by Committee III is a statement of the obvious, but the discussions had led to some doubts which were now
removed. Moreover, although mercenaries may be denied the status of
combatant and consequently that of prisoner of war, they are
civilians covered by the fourth Convention.
6. ' Other persons denied prisoner-of-war status '
3031 According to Article 45
' (Protection of persons who have taken part in hostilities), ' paragraph 3, any person who has taken part in
hostilities, who is not entitled to prisoner-of-war status and who
does not benefit from more favourable treatment in accordance with
the fourth Convention has the right at all times to the protection of
. This covers persons who not only cannot claim
prisoner-of-war status, but are also not protected persons under the
fourth Convention. It will be noted that this definition covers
mercenaries who are not covered by Article 4
of the fourth
7. ' Protected persons subject to Article 5
of the Fourth Convention '
3032 These are persons who, on the basis of Article 5
of the fourth Convention, are deprived of certain rights laid down by that
Convention during detention. There can be no doubt that Article 75
constitutes a minimum standard which does not allow for any
exceptions. Such persons must regain all the rights and privileges
laid down by the Convention as soon as circumstances permit.
3033 The formula of non-discrimination contained in this paragraph is similar to that used, for example, in Article 2
of Protocol II
' (Personal field of application), ' Article 12
of the first Convention, Article 16
of the Third Convention, and [p.871] Article
of the fourth Convention. Comparable formulae can also be found in
human rights instruments. (14)
3034 As regards respect for the person, honour and religious convictions and practices, this wording was used already in the
Geneva Conventions (Articles 14
, Third Convention; Article 27,
fourth Convention). However, as pointed out in the commentary on
of the fourth Convention, respect for "religious
convictions and practices" should be understood in a broad sense. It
covers all philosophical and ethical convictions. We know that in
some armies there are nowadays, in addition to chaplains, counsellors
on moral matters to whom members of the armed forces can go for
assistance. This should be seen as an example of the modern tendency
of individuals to look for a moral code also outside religion.
3035 When it discussed Article 67 (the present Article 76
-- ' Protection of women '), proposals were submitted to Committee III
aimed at preventing women from being arrested or imprisoned solely on
account of their convictions. In the end the Committee decided not to
take into account these proposals in order to avoid the possibility
of an a contrario argument to the effect that other persons could be
legitimately arrested or imprisoned solely on the ground of their
convictions. Committee III preferred to deal with this question in a
special new article to apply to everyone. (15) These discussions took
place during the last session of the Conference and there was no time
for Committee III to deal with this problem. (16)
3036 The report of the Working Group was not contested in Committee III or during the plenary meetings where this article was adopted.
Thus respect for convictions implies that a person professing any
particular convictions cannot be arrested or imprisoned for this
reason alone. For that matter, this view can be found in human rights
instruments, in particular in the Covenant, of which Article 19,
paragraph 1, provides that everyone has "the right to hold opinions
without interference". However, Article 19 is not one of the articles
from which no derogation may be made.
3037 A number of fundamental rules applicable to all persons defined in paragraph 1 are pronouned here. The other paragraphs of the
article cover certain more restricted categories which are duly
defined. This pronouncement is directly [p.872] inspired by the text
of common Article 3
of the Conventions which applies to conflicts not
of an international character; it is also very similar to Article 4
paragraph 2, of Protocol II ' (Fundamental guarantees) '; as far as
possible, Committee III followed the text of that Article 4
' (Fundamental guarantees), ' which had already been adopted.
3038 The terminology of the French text adopted here is curious: it reads "sont et demeureront prohibés". Why the use of the future tense
as the verb "demeurer" in this context covers the future? The french
text of Article 3
common to the Conventions uses the present tense:
"sont et demeurent prohibés", which seems clearer and more logical.
At any rate the meaning is the same and the English text uses the
same wording as that of common Article 3
: "the following acts are and
shall remain prohibited".
3039 "At any time and in any place": the meaning of this expression is not immediately clear. There is no doubt that Article 75
, like the
Protocol as a whole, only applies in situations as provided for in
' (General principles and scope of application) ' and only
in territories of Parties to the conflict or territories under their
control. Why then this terminology, which suggests that, following
the example of the rules relating to human rights, the article
applies in time of peace as well as in time of war? On this point the
Conference merely followed the proposals of the ICRC. Apparently one
must deduce from this expression that the article applies throughout
the situations provided for in Article 1
' (General principles and
scope of application) ' and in all the territories covered by such
situations. A confirmation of the foregoing can be found in the text
of Article 3
, sub-paragraph (b), of the Protocol ' (Beginning and end
of application) ' and in paragraph 6 of the present
3040 The reference to civilian or military agents is very useful; this is taken from Article 32
of the fourth Convention and is concerned
with establishing the responsibility of anyone acting in the name of
a Party to the conflict.
' Sub-paragraph ' (a)
3041 This paragraph gives a number of examples of acts detrimental to life, health or physical or mental well-being.
' Sub-paragraph ' (a)(i)
3042 This relates to the wilful or intentional killing of a human being. Article 147
of the fourth Convention uses the expression
"wilful killing". It covers all cases of manslaughter, including by
wilful negligence, such as, for example, cases of a deliberate
refusal to administer care with intent to cause death. (17)
[p.873] ' Sub-paragraph ' (a)(ii)
3043 According to the Declaration on torture adopted on 9 December 1975 by the United Nations General Assembly (Resolution 3452 (XXX)):
"torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or
at the instigation of a public official on a person for such
purposes as obtaining from him or a third person information
or confession, punishing him for an act he has committed or
is suspected of having committed, or intimidating him or
It may be recalled that the torture of protected persons is prohibited by Article 17
of the Third Convention, Article 32
fourth Convention, as well as by
common to the Conventions.
3044 In our time torture is universally condemned and in various circles great efforts are being made to eliminate this scourge. (18)
Although agreement was easily reached on the principle of prohibiting
it, it is more difficult to establish effective methods making it
possible for governments to be sure that no acts of torture are
committed by agents under their authority. In time of armed conflict
it is the responsibility of governments to strengthen the measures of
control and the powers of which they dispose if they are to be
certain that they will not be held responsible for acts of torture
committed by their agents, whether civilian or military.
3045 For its part the Covenant prohibits torture in its Article 7, which does not allow for any derogation.
' Sub-paragraph (a)(iii) and (iv) '
3046 Article 75
here reiterates prohibitions already contained in the Conventions (common Article 3
; Articles 13
of the Third
Convention; Article 32
of the fourth Convention). The prohibition of
mutilation is duplicated in Article 11
of the Protocol ' (Protection
of persons). '
' Sub-paragraph (b) '
3047 This refers to acts which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at
humiliating and ridiculing them, or even forcing them to perform
3048 Such provisions are contained in the Conventions (common Article 3
; Articles 14
, Third Convention; Article 27
[p.874] 3049 The provision relating in Article 75
to enforced prostitution and indecent assault applies to everybody covered by the article,
regardless of sex. Article 76
' (Protection of women), ' relating to
the special protection to which women are entitled, reiterates the
provision relating to enforced prostitution and indecent assault,
specifically mentioning rape.
3050 Degrading treatment is also prohibited by Article 7 of the Covenant.
' Sub-paragraph (c) '
3051 During recent years the term "hostages" has acquired different meanings. It seems that in Article 75
this term must be understood in
the same way as in Article 34
of the fourth Convention, which
prohibits the taking of hostages. We are therefore faced here with
the problem of hostages taken by an authority -- and not by
individuals -- and who are detained for the purpose of obtaining
3052 This means that hostages are persons who find themselves, willingly or unwillingly, in the power of the enemy and who answer
with their freedom or their life for compliance with the orders of
the latter and for upholding the security of its armed forces.
3053 Article 3
common to the Conventions also contains a prohibition on the taking of hostages.
' Sub-paragraph (d) '
3054 This prohibition was added by the Conference, as it was afraid that collective punishments might be inflicted by processes other
than proper judicial procedures and that in that case they would not
be covered by paragraph 4(b). Article 33
of the fourth Convention
prohibits collective penalties.
3055 The concept of collective punishment must be understood in the broadest sense: it covers not only legal sentences but sanctions and
harassment of any sort, administrative, by police action or
' Sub-paragraph (e) '
3056 This prohibition is actually concerned with intimidation; a similar formula was used in Article 40
of the Protocol ' (Quarter). '
Measures of intimidation are prohibited by Article 33
of the fourth
3057 In its draft the ICRC had proposed to also include a prohibition on physical or moral coercion, particularly when applied in order to
obtain information; similar clauses exist for prisoners of war
, Third Convention) and for protected civilians (Article
, fourth Convention). According to the Rapporteur of Committee III
the prohibition of torture together with the more general prohibition
on causing harm to life, health and physical and mental well-being,
was considered sufficient to omit a reference to coercion. It might
be added that [p.875] in this field individuals are also protected by
paragraph 4(f) which says that no one may be compelled to confess
3058 Similarly Committee III considered it unnecessary to include separately a prohibition of intimidation, harassment and threats
aimed at forced movement or migration of individuals or groups of the
population in occupied territories; sub-paragraph (e) of this
paragraph covers such situations.
3059 This paragraph is important, but the terms used are sometimes ambiguous and raise problems or interpretation.
3060 The phrase "any person" almost certainly means any person complying with the definition of paragraph 1 of the article. Thus
this refers primarily to civilians, as combatants are not covered by
, and, in particular, not by its paragraph 3, unless
prisoner-of-war status is refused them in case of capture. In this
case, provided for in Article 45
' (Protection of persons who have
taken part in hostilities), ' paragraph 3, if they do not have the
benefit of the fourth Convention, they have at least the right to the
protection of Article 75
3061 "Arrested": this means the period that a person is in the hands of the police, preceding the trial stage which is dealt with in
paragraph 4, or prior to internment.
3062 "Detained": in general this expression refers to deprivation of liberty, usually suffered in prison or other penitentiary
institutions; here the term refers to detention prior to sentence or
prior to a decision on internment.
3063 "Interned": this term generally means deprivation of liberty ordered by the executive authorities when no specific criminal charge
is made against the individual concerned.
3064 These three expressions are actually closely related and each refers to a different way in which a person can be deprived of his
liberty. In part this terminology can also be found in human rights
instruments (Universal Declaration, Article 9; Covenant, Article 9).
Internment is the only concept which seems reserved for time of armed
3065 "For actions": this expression is easy to understand when it refers to persons who have committed criminal acts. However, it often
happens that people are subjected to banishment, assigned residence
or even internment, without being charged with committing any
specific act, but because of their previous activities or their
general behaviour, such as having revealed sympathy for the
adversary, opposition to the Occupying Power or even pacifist
opinions. As regards the State's own citizens, their ethnic or racial
origin has sometimes been used as a legitimate cause for suspicion.
Internees will therefore generally be informed of the reason for such
measures in broad terms, such as legitimate suspicion, precaution,
unpatriotic attitude, nationality, origin, etc. without any specific
reasons being given.
3066 "Related to the armed conflict": this phrase leads to the greatest problems for the interpretation of this article, as it uses
different expressions several times, though they seem to refer to the
3067 It is the terminology used in all the paragraphs of the article, except in paragraph 1, which refers back to Article 1
of the Protocol
' (General principles ' [p.876] and scope of application) and this in
turn refers in particular to the situations provided for in common
of the Conventions. The interesting point is that paragraph
2 of that common Article 2
covers cases of occupation meeting with no
armed resistance. It must therefore be concluded that the expression
"armed conflict" was used in the various paragraphs of Article 75
cover all the situations within the purview of the substantive
provisions determining the scope of the Conventions and of the
3068 First of all, paragraph 1 uses the words "affected by a situation referred to in Article 1
", and we saw above what this means. This
formula is equivalent, if slightly broader than that of paragraph 3,
since it covers persons who may be affected by armed conflict without
having committed any acts related to that conflict, for example, on
the basis of their nationality or ethnic origin.
3069 Later paragraph 4 refers to "a penal offence related to the armed conflict". Paragraphs 5 and 6 use the expression "for reasons related
to the armed conflict". Finally, Article 76
' (Protection of women) '
also refers to "reasons related to the armed conflict" (although in
the French text there is a slight difference between the wording used
in paragraphs 5 and 6 of Article 75
and that used in Article 76
3070 The diversity of the expressions used might be considered rather perplexing. In fact, each of the expressions mentioned above refers
to acts or reasons, the reasons covering cases of internment, while
the acts may lead to criminal prosecution and in due course to
internment. Although it is relatively easy to think of reasons for
which a State might wish to take security measures such as internment
or assigned residence, it is, on the other hand, more difficult to
determine how penal offences should be understood in relation to
armed conflict. This question is examined in greater detail with
regard to paragraph 4.
3071 "In a language he understands". This phrase does not require lengthy explanation. It is a formula which has been used since 1929
in the Geneva Conventions. (19) It covers both written and verbal
3072 "Promptly": unfortunately this expression is rather imprecise. Article 9 of the Covenant provides that anyone who is arrested will
be informed at the time of his arrest of the reasons for his arrest.
However, Article 9 is not one of the articles from which derogation
is not allowed, even in case of war (Article 4). According to Article
of the fourth Convention, anyone who is charged and prosecuted by
the Occupying Power will be informed promptly of the charges made
against him. These examples reveal the clear intention that those
arrested should be advised promptly of the reasons for their arrest;
it is difficult to determine a precise time limit, but ten days would
seem the maximum period.
3073 Legal practice in most countries recognizes preventive custody, i.e., a period during which the police or the public prosecutor can
detain a person in custody without having to charge him with a
specific accusation; in peacetime this period is no more than two or
three days, but sometimes it is longer for particular offences (acts
of terrorism) and in time of armed conflict it is often prolonged.
[p.877] Useful indications can be found in national legislation. In
any case, even in time of armed conflict, detaining a person for
longer than, say, ten days without informing the detainee of the
reasons for his detention would be contrary to this paragraph.
3074 The second sentence of the paragraph is not very clear and requires some comment.
3075 "Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible": it seems
clear that detainees not charged with a criminal offence within the
period mentioned must be released; this is laid down in all national
legislation. However, in time of armed conflict States often assume
the right to take security measures with regard to certain persons who are considered dangerous.
3076 "And in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist": this provision
is based on Articles 43
of the fourth Convention, which are
concerned with periodic review of internment decisions. It is
understandable that internment decisions are taken because of
circumstances (armed conflict, combat in a nearby area, hostile
movement in the population etc.). On the other hand, it is difficult
to accept that people are arrested or detained because of
circumstances; such decisions should be based on a presumption of a
criminal offence. Perhaps the intention was to indicate that
sometimes internment is preceded by arrest and detention sanctioned
by court order. However, the reference to "the circumstances" should
not be taken too literally, but these words should be understood as
meaning "the facts".
3077 The Report of Committee III expresses itself as follows on this paragraph:
"Paragraph 3 was added to the ICRC text pursuant to a proposal by the representative of Belgium to cover the period
of arrest prior to that dealt with in the judicial safeguards
of paragraph 4" (20)
3078 The intentions of the drafters are therefore quite clear, even if the wording is not so clear. In conclusion the following points
should be recalled:
3079-- Within a period which should not exceed, say, ten days, any one deprived of liberty for actions related to the armed conflict
must be informed of the reasons for this measure unless he is
3080-- If the person in question is charged with a specific offence, legal proceedings should take their course; if he is to be
interned, a decision should duly and properly be taken and
communicated to the person concerned.
[p.878] Paragraph 4
' Introductory sentence '
3081 The scope of application of this paragraph requires us to pause and give it due thought; it refers primarily to civilians in the
power of a Party to the conflict who are affected by a situation as
referred to in Article 1
' (General principles and scope of
application) ' and who do not benefit from more favourable treatment
under the Conventions or this Protocol; moreover, they must have been
found guilty of a penal offence related to the armed conflict.
3082 Thus this paragraph does not cover protected persons defined in Article 4
of the fourth Convention, or persons defined in Article 73
of the Protocol ' (Refugees and stateless persons). ' It is intended
to cover all civilians of foreign nationality who are not protected
persons in the sense of Article 4
, and who are in the territory of a
Party to the conflict, as well as the whole of the civilian
population of occupied territories with the exception of those
protected by the fourth Convention. Some combatants who are denied
prisoner-of-war status in case of capture are also covered, (21) if
they are not already covered by the fourth Convention. Finally, the
Party to the conflict's own nationals are covered insofar as they
fulfil the conditions laid down in paragraph 1.
3083 For persons covered by the fourth Convention the guarantees of this article are of course supplementary. Thus for enemy nationals in
another State's national territory, Article 75
improvements; in fact, while the treatment of such persons is
generally provided for in Articles 35
to 46, and in case of
internment, in Articles 79
-141 of the fourth Convention, no special
guarantees are provided in the case they are tried and sentenced for
penal offences. For the inhabitants of occupied territories, Articles
-78 of the fourth Convention contain guarantees on penal matters
which are more or less equivalent to those of Article 75
, and indeed
go even further, since intervention by the Protecting Power is
expressly provided for. However, it should be noted that Article 75
acknowledges a presumption of innocence, a concept which is not
contained in the fourth Convention.
3084 The wording of this introductory sentence is based on common Article 3
. However, Article 3
refers to a "regularly constituted
court", while this paragraph uses the expression "impartial and
regularly constituted court". The difference is slight, but it
emphasizes the need for administering justice as impartially as
possible, even in the extreme circumstances of armed conflict, when
the value of human life is sometimes small. Article 3
relies on the
"judicial guarantees which are recognized as indispensable by
civilized peoples", while Article 75
rightly spells out these
guarantees. Thus this article, and to an even greater extent, Article
of Protocol II ' (Penal prosecutions), ' gives valuable indications
to help explain the terms of Article 3
3085 For enemy nationals in another State's national territory intervention by the Protecting Power in case of criminal prosecution
seems possible on the basis of [p.879] Articles 9
fourth Convention; the representatives of the Protecting Power could
call upon the guarantees provided for and demand that they are
observed. For inhabitants of occupied territories intervention by the
Protecting Power is laid down in detail in Articles 71
-74 of the
3086 Refugees and stateless persons have to be treated as protected persons under the fourth Convention, in accordance with Article 73
this Protocol ' (Refugees and stateless persons), ' and they can
therefore fall back on the Protecting Power of the State of refuge,
failing which it may reasonably be expected that the United Nations
High Commissioner for Refugees will exercise a similar role to that
of a Protecting Power in such circumstances.
3087 However, if the High Commissioner for Refugees found it impossible to act, such persons could turn to any organization
capable of assisting them, in accordance with Article 30
fourth Convention. The same applies for foreigners in the national
territory of a belligerent and for foreign residents of occupied
territories who do not have the protection of diplomatic
representation or the aid of a Protecting Power.
3088 One organization which could aid such persons is, of course, the International Committee of the Red Cross, which under Article 10
the fourth Convention may undertake humanitarian activities for the
protection of civilians and for their relief, subject to the consent
of the Parties to the conflict concerned.
3089 It is to be hoped that in the difficult circumstances of penal proceedings in time of war, none of the persons referred to above
will be deprived of the assistance of a Protecting Power, or at least
the assistance of a humanitarian organization.
3090 As regards nationals of the State in the name of which the proceedings and sentencing take place, the situation is more
complicated; the accused may avail himself of the guarantees listed
in this paragraph, but it is hardly conceivable that a Protecting
Power could, or would wish to intervene in the trial and sentence of
a national of that State by his own judiciary. On the other hand,
intervention by a humanitarian organization such as the ICRC is not
excluded, provided that it is accepted by the State concerned. For
that matter, the ICRC has played that role many times in the past on
the basis of its right of initiative.
3091 Let us add a remark about the judicial system. This introductory sentence assumes that prior to conviction there will be a judgement
finding the accused guilty. It is a fact that in several European
countries penal proceedings are carried out in two phases: first, the
court pronounces its verdict on culpability and subsequently it
decides on the punishment to be meted out. However, there are also
countries where the court rules on culpability and punishment in the
same decision and at the same time. Such a system is not in
contradiction with this paragraph.
3092 Most of the guarantees listed in sub-paragraphs (a)-(j) are contained in the Conventions and the Covenant on Human Rights, (22)
but in each of these treaties there is a clause permitting
derogations from the articles in question in time of war. Article 75
is not subject to any possibility of derogation or suspension and
consequently it is these provisions which will play a decisive role
in the case of [p.880] armed conflict. Besides, the provisions in all
these instruments are more or less equivalent.
3093 Finally, it is necessary to try and determine what is meant by a penal offence related to the armed conflict. We have tried to
determine, with regard to paragraph 1, what should be understood by
persons "affected by a situation referred to in Article 1", and
reference can be made to what was said.
3094 As regards penal offences, there is no doubt at all that violations of the normal provisions of criminal law should be
excluded, even if they are indirectly linked to the armed conflict:
for example, someone who commits a robbery because he has lost his
job as a result of the armed conflict and is unable to support
himself. On the other hand, it is accepted in general that a State at
war may require that its citizens and residents in its territory
carry out special tasks and services: the State may impose compulsory
military service on men and women; it may compel those who are not
drafted into the armed forces to work in factories or on the land; it
may also evacuate certain areas, requisition moveable and immoveable
property, etc. In other words, in the circumstances of war when the
very existence of the nation is at stake, the State may mobilize all
the country's resources for the purpose of survival.
3095 In fact, such distinctions, though seemingly logical, are not
based on a clear text, and it would have been preferable for the
Protocol itself to have defined the penal offences for which the
accused may claim the guarantees of Article 75
' Sub-paragraph ' (a)
3096 The first part of the sentence repeats to a large extent what was said in paragraph 3. However, according to paragraph 3, the
information, whether written or oral, must be given in a language the
arrested person understands. That obligation is not repeated here,
but the second part of the sentence guarantees the accused all
necessary rights and means of defence; it is therefore clear that a
defendant who does not understand the language used by the judicial
authorities must be provided with an interpreter. By the same token,
he must be able to understand the assistance given by a qualified
defence lawyer. If these conditions were not fulfilled, the defendant
would not have the benefit of all necessary rights and means of
3097 On the other hand, reference is made here to the "particulars of the offence", a detail which is not contained in paragraph 3.
' Sub-paragraph ' (b)
3098 After the Second World War and ever since, international public opinion has condemned convictions of persons on account of their
membership of a group or organization. Objections were also raised
against collective punishment inflicted indiscriminately on families
or on the population of a district or building. In the same vein, the
execution of hostages, which was not prohibited by international law
in all circumstances, was considered contrary to the moral rule which
should guide international society. It was therefore decided to
outlaw all convictions and [p.881] punishments which are not based on
individual responsibility -- in accordance with the now universally
accepted principle that no one may be punished for an act he has not
personally committed -- as well as reprisals. This is the origin of a
series of provisions contained in the four Conventions, in particular
in Article 33
of the fourth Convention, which prohibits collective
penalties and reprisals and Article 34
of the same Convention, which
prohibits the taking of hostages.
3099 Of course, this does not cover cases of complicity or incitement, which are punishable offences in themselves and may lead to a
conviction; national legislation determines the conditions of
punishment and the degree of culpability. However, the Conventions
and the Protocol contain two particular provisions regarding
punishment of grave breaches. The Conventions provide in case of
grave breaches for the punishment both of those who committed them
directly, and of those who have given the order to commit them
). Article 86
of the Protocol ' (Failure to
act) ' lays down provisions for the punishment of commanders who have
not taken the necessary measures to prevent their subordinates from
committing grave breaches of the Conventions and the Protocol.
3100 Admittedly, ' stricto jure, ' these provisions are only applicable to grave breaches of the Conventions and the Protocol, but
they do provide useful indications to determine whether or not there
is an individual penal responsibility.
' Sub-paragraph ' (c)
3101 This provision reproduces almost word-for-word paragraph 1 of Article 15 of the Covenant on Civil and Political Rights. According
to Article 4 of that Covenant, there is no possibility of derogation
from this provision in time of armed conflict. Article 6
II ' (Penal prosecutions), ' paragraph 2(c), contains the same
provision. However, the paragraph under consideration here uses a
slightly different expression at the beginning: "no one shall be
accused or convicted of", while in the Covenant and in Protocol II
the sentence starts as follows: "No one shall be held guilty of".
There is a minor difference between Protocol II and the Covenant in
the French text (not in English) which is of no practical
significance. On the other hand, by adding the word "accused" the
drafters of Article 75
had a specific purpose in mind: several
delegations had expressed the fear that the provision would lead
persons to be considered guilty before being tried. (23)
3102 Several delegations considered that the reference to "national or international law" was clear. During the debates which took place on
this subject in Committee I with regard to an identical provision in
Protocol II (Article 6
-- ' Penal prosecutions, ' paragraph 2(c)),
some delegations suggested replacing that expression by "under the
applicable law" (24) or alternatively by "under applicable
[p.882] domestic or international law", (25) but Committee I retained the present text and Committee III adopted it without further discussion to include it in this article.
3103 In matters of criminal law national courts apply primarily their own national legislation; in many countries they can only apply
provisions of international conventions insofar as those provisions
have been incorporated in the national legislation by a special
legislative act. Thus in several European countries the punishment of
war crimes and crimes against humanity has, since the Second World
War, frequently encountered obstacles which could only be overcome by
invoking the need to repress crimes rightly condemned by all nations,
even in the absence of rules of application. This reference to
international law has often been called the "Nuremberg clause". The
European Human Rights Convention, which contains the same
phraseology, clarifies this expression in paragraph 2 of Article 7:
"This Article shall not prejudice the trial and punishment of any
person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognized by civilized nations."
3104 In fact, although the principle of legality ' (nullum crimen, nulla poena sine lege) ' is a pillar of domestic criminal law, the
lex should be understood in the international context as comprising
not only written law, but also unwritten law, since international law
is in part customary law. Thus the second "principle of Nuremberg"
reads: "The fact that internal law does not impose a penalty for an
act which constitutes a crime under international law does not
relieve the person who committed the act from responsibility under
international law" (26)
3105 Let us stress that it is in a government's own interests to adopt the necessary legislation, even in peacetime, for the repression of
certain crimes punishable under international law. In this way they
can avoid the criticism of acting arbitrarily by promulgating
retroactive penal laws, even though international law may authorize
them to do so.
3106 The second and third sentences of this sub-paragraph express generally recognized principles.
' Sub-paragraph ' (d)
3107 This rule is found in all human rights documents. (27) It is also included in Article 6
' (Penal prosecutions) ' of Protocol II.
3108 It is a widely recognized legal principle that it is not the responsibility of the accused to prove he is innocent, but of the
accuser to prove he is guilty. This concept may play an important
role when criminal prosecutions are brought against persons on the
basis of their membership of a group. (28)
[p.883] ' Sub-paragraph ' (e)
3109 This rule is contained in a slightly different form in Article 14, paragraph 3(d), of the Covenant ("to be tried in his presence")
and in identical wording in Protocol II, Article 6
prosecutions) ', paragraph 2(e). The Rapporteur of Committee III
noted that it was understood that persistent misconduct by a
defendant could justify his removal from the courtroom. (29) This
sub-paragraph does not exclude sentencing a defendant in his absence
if the law of the State permits judgement in absentia.
3110 In some countries the discussions of the judges of the court are public and take place before the defendant; in other countries the
discussion is held in camera, and only the verdict is made public.
Finally, there are countries where the court's decision is
communicated to the defendant by the clerk of the court in the
absence of the judges. This sub-paragraph does not prohibit any such
practices: the important thing is that the defendant is present at
the sessions where the prosecution puts its case, when oral arguments
are heard, etc. In addition, the defendant must be able to hear the
witnesses and experts, to ask questions himself and to make his
objections or propose corrections. (30)
' Sub-paragraph ' (f)
3111 The majority of national judiciary systems contain provisions of this nature, but it took many centuries before the legality of
torturing defendants to obtain confessions and information on their
accomplices was abandoned. However, it was appropriate to include
here a reminder of this legal guarantee, which is recognized today,
as all too often the police or examining magistrates tend to use
questionable means to extract a confession which they consider to be
the "final proof".
3112 The Geneva Conventions as a whole are aimed at preventing victims of war from becoming the object of brutality intended to extract
information from them or from third parties (Article 17
Convention; Article 31
, fourth Convention). Protocol II contains the
same rule (Article 6
-- ' Penal prosecutions, ' paragraph 2(f)) as
does the Covenant (Article 14, paragraph 3(g)).
[p.884] ' Sub-paragraph ' (g)
3113 This clause has the same wording as the corresponding clause of the Covenant (Article 14, paragraph 3(e)).
3114 According to the Rapporteur of Committee III, this provision was worded so as to be compatible with both the system of
cross-examination of witnesses and with the inquisitorial system in
which the judge himself conducts the interrogation.
3115 It is clear that the possibility of examining witnesses is an essential prerequisite for an effective defence.
' Sub-paragraph ' (h)
3116 Once again the drafters of the article have tried to stay as close as possible to the Covenant (Article 14, paragraph 7). The
Rapporteur expressed himself as follows about it:
"the provision on ne bis in idem [...] is drawn from the United Nations Covenant on Civil and Political Rights [...]
and is so drafted as to pose the minimum difficulties to
States in an area where practice varies widely". (31)
We would like to believe the Rapporteur, but one cannot help thinking that a defendant could find himself in a difficult situation when
subjected to a second trial, after the courts of another Party to the
conflict or another State have already tried him on the same charges
and he has been acquitted or, if he was convicted, has already served
his sentence. In such circumstances defendants could no doubt invoke
either the rule contained in the European Convention or that in the
Covenant: "No one shall be liable to be tried or punished again for
an offence for which he has already been finally convicted or
acquitted in accordance with the law and penal procedure of each
country" (Covenant, Article 14, paragraph 7).
3117 Respect for ' res judicata ' is one of the basic principles of penal procedure, and it is important to uphold this principle.
' Sub-paragraph ' (i)
3118 It is an essential element of fair justice that judgments should be pronounced publicly. Of course, a clear distinction should be made
between proceedings and judgment. It may be necessary because of the
circumstances and the nature of the case to hold the proceedings in
camera, but the judgment itself must be made in public, unless, as
the Rapporteur pointed out, this is prejudicial to the defendant
himself; this could be the case for a juvenile offender. (32)
[p.885] 3119 As regards holding oral proceedings in camera, Article 14, paragraph 1, of the Covenant gives some clear indications:
"The Press and the public may be excluded from all or part of a trial for reasons of morals, public order ' (ordre
public) ' or national security in a democratic society, or
when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice."
3120 It should be noted that Article 74
of the fourth Convention gives representatives of the Protecting Power the right to be present at
sessions of any court trying a protected person in occupied
territories, unless the hearing in exceptional circumstances must
take place in camera in the interests of the security of the
Occupying Power. In this case the Protecting Power must be informed.
' Sub-paragraph ' (j)
3121 The wording of this provision is clear. However, it should be noted that in many countries judgments in penal matters are not
subject to appeal; in such cases there is often the possibility of
resorting to an appeal on the law (cassation), i.e., of invoking an
error in the application of the law. As regards the "other remedies",
this no doubt refers to a pardon or reprieve. In some countries
judgments of military courts must be confirmed by a superior military
3122 It will be noted at once that the wording is slightly different from that contained in paragraph 3. In paragraph 5 reference is made
to "women whose liberty has been restricted for reasons related to
the armed conflict", while paragraph 3 contains the expression
"persons arrested, detained or interned for actions related to the
armed conflict". Should the difference in these phrases be seen as
indicating a specific intention? This does not seem to be the case.
It certainly seems that the word "reasons" is more appropriate for
the situations that are intended to be covered. In fact, in cases of
internment the decision is often made on the basis of "reasons" and
not of "actions", for example, the political attitude of the
internee. Thus, paragraph 5, like paragraph 3, covers women who have
been arrested, detained or interned, as the expression "whose liberty
has bee restricted" covers all three cases.
3123 The idea of granting women special respect is already contained in Articles 27
of the fourth Convention. Article 25
Third Convention also provides that women must be accommodated
separately and benefit from treatment at least as favourable as that
granted to men (Articles 14
). Article 108
of the Third
Convention provides that women prisoners of war serving a prison
sentence must be under the supervision of women. A similar rule is
contained in the Standard Minimum Rules for the Treatment of
Prisoners in the version approved by ECOSOC in 1977, Rule 53,
paragraph 3 of which provides that "women prisoners shall be attended
and supervised only by women officers".
3124 As regards bringing together families in the same premises, this idea is already contained in the Fourth Convention (Article 82
3125 This paragraph takes up an idea that was already contained in Article 6
of the Fourth Convention and is repeated in Article of 3
this Protocol ' (Beginning and end of application) ', sub-paragraph
3126 The ICRC draft did not contain such a provision since it was already contained in Article 6 of the Fourth Convention and it was
therefore unnecessary to repeat it in the Protocol; on the other
hand, there was a proposal to include it in Article 75
, which in
itself constituted a mini-convention, containing clauses providing
for the beginning and end of application. The Conference preferred to
repeat the substance of the relevant provision of the Fourth
Convention in Article 3
' (Beginning and end of application) ' and
retained what is now paragraph 6. This has resulted in some
repetition, though it is superfluous. It should be noted that while
' (Beginning and end of application) ' covers armed
conflicts ' and ' occupation, paragraph 6 of Article 75
to the end of the armed conflict; however, as we saw with regards to
paragraph 3, this is of no consequence.
3127 The usefulness of the provision is clear: frequently people only return to normal conditions after the end of armed conflict;
sometimes internment goes on, judgments have not been pronounced
immediately, and in some cases the trial of suspects has even been
delayed until the end of the conflict. Thus, it is logical that the
guarantees laid down in this article should continue to apply as long
3128 The paragraph does not state explicitly that the guarantees provided also apply to persons who might be arrested, detained or
interned after the end of armed conflict. For nationals in their own
State this is an important matter for the immediate post-war period
is often like a day of reckoning, and it is then that suspects have
most needs of guarantees, both in the judicial and in the
administrative field. It seems clear that such guarantees, primarily
introduced for time of conflict or occupation, apply a fortiori after
the end of armed conflict in favour of persons prosecuted for reasons
related to the conflict.
3129 Article 6
of the Fourth Convention refers to "release", while Article 3
' (Beginning and end of application) ' and 75
use the term
"final release". This is not a big difference, but we live in a time
of overstatement; it is clear that is assigned residence is
substituted for internment, this is not a release nor a final
release. However, the intention of the drafter is clear: the release must be total.
3130 Repatriation obviously refers only to aliens. As regards re-establishment, this concerns persons who cannot be repatriated or
simply released where they are and for whom a State of refuge or
State of residence must therefore be found.
[p.887] Paragraph 7
3131 As stated above, (33) this paragraph was not contained in the ICRC draft; it is the result of an amendment submitted jointly by a
group of countries. (34)
3132 Although they did not oppose the amendment some other delegates doubted its usefulness and even its necessity. Finally, as we see,
the Working Group prepared a more detailed text which was accepted
without discussion by Committee III and by the Conference itself.
33 However, it is of interest to mention the explanations of some
delegations. One delegation stated that:
"The phrase "prosecution and trial in accordance with the applicable rules of international law" [...] undoubtedly
meant that the national law applicable in such cases must be
strictly in conformity with the respective rules of
international law." (35)
3134 The position adopted by that delegation seems logical, since, as we have seen, in many countries a suspect cannot be taken to court on
the sole basis of the rules of international law.
3135 The following statement of a delegation should also be noted. It emphasized that "the provisions laid down in the paragraph in no way
obligate any State to act in a way that might constitute a derogation
from the general principle ' nulla poena sine lege ' and due process
of law". (36)
3136 In actual fact this interpretative statement does not seem to be very relevant. The obligation to track down and prosecute persons
accused of war crimes or crimes against humanity does not actually
arise from Article 75
. Such obligations result rather from the
provisions of the Geneva Conventions (Articles 49
supplemented by Article 85
of the Protocol ' (Repression of breaches
of this Protocol), ' as well as from international instruments such
as the Charter of the Nuremberg Tribunal, the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide, the 1968
Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity etc. (37)
[p.888] 3137 Finally, it is relevant to quote an important statement made by one delegation:
"As the Soviet delegation understands Article 65 [75
], its effects do not extend to war criminals and spies. National
legislation should apply to this category of persons, and
they should not enjoy international protection.
We should like to record in this connection the
reservation which the USSR made to Article 85
of the 1949
Geneva Convention on the treatment of prisoners of war.
The reservation says, in particular, that persons "who
have been convicted under the law of the Detaining Power, in
accordance with the principles of the Nürnberg Trial, for war
crimes and crimes against humanity [...] must be subject to
the conditions obtaining in the country in question for those
who undergo their punishment'.
The position thus taken by the USSR remains
3138 This statement requires some comment. The reservation made by the USSR to Article 85
of the Third Convention applies only to the
treatment of prisoners of war after they have been convicted for war
crimes or crimes against humanity. There is no doubt that the same
applies to persons who are not prisoners of war but are convicted of
such crimes. The guarantees of Article 75
are in the first place
judicial guarantees and they operate before the judgment condemning
the defendant; they must therefore apply to persons being prosecuted.
Clauses concerning the system of detention, which therefore apply
beyond the moment of conviction, are contained in paragraphs 1, 6 and
3139 The relevant common article of the Conventions (49
), provides that those who are charged with breaches of these
Conventions will have the benefit of judicial and free defence
guarantees which are not jess favourable than those provided by
ff. of the Third Convention. (39)
3140 "War crimes" should be understood to mean serious breaches of the laws and customs of war. (40) "Crimes agains humanity" are:
"inhumane acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian
population on social, political, racial, religious or
cultural ground by the authorities of a State or by private
individuals acting at the instigation or with the toleration
of such authorities." (41)
3141 After all, sub-paragraph 7(a) merely accepts as law the rules of international law which provide for the repression of such crimes,
without creating new obligations; thus it should be seen primarily as
a confirmation of existing rules. [p.889] As regards the expression
"the applicable rules of international law", it would seem that the
interpretation given above by a delegation is valid. (42)
3142 Sub-paragraph (b) is subject to any more favourable treatment available under the Conventions or this Protocol. Prisoners of war
who have the benefit of important judicial guarantees are of course
not covered, since Article 75
does not concern combatants. In
accordance with common Article 49
, civilians who are
guilty of breaches of the Conventions or the Protocol will have the
benefit of guarantees not less favourable than those provided for in
et seq. of the Third Convention. It is not certain
whether those guarantees are more favourable than the ones set out in
. In case of doubt, the defendant can always invoke the
most favourable provision. In occupied territories, protected persons
benefit from the guarantees provided in Articles 64
et seq. of the
Fourth Convention. Finally, it may happen that civilians are
prosecuted for war crimes which constitute a breach of provisions
other than those of the Conventions and the Protocol or for crimes
against humanity. In that case they would benefit from the standards
of treatment provided for in this article.
3143 To summarize: Article 75
is not in any way an obstacle to the prosecution and trial of persons accused of war crimes or crimes
against humanity; the text of the Protocol shows this clearly and
this paragraph may seem to be redundant. However, it is a fact that
often things which are self-evident become even more evident if they
are stated. Moreover, the drafters of the provision were right to
confirm the guarantees which must apply to trials held for war crimes
or crimes against humanity. In fact, it would be deplorable if
repression of such crimes were to lead to questionable trials, and
public opinion as a result became disappointed and embittered.
[p.890] Paragraph 8
3144 To some extent this paragraph repeats what was said in paragraph 1. However, the latter refers to more favourable treatment under the
Conventions and the Protocol, while paragraph 8 refers to more
favourable provisions under any applicable rules of international
law, which is a broader concept. Are there any categories of persons,
outside those covered by the Conventions and the Protocol, who
benefit from greater protection under rules of international law?
3145 First, there are the nationals of neutral States who may have recourse to Hague Convention V of 1907 Respecting the Rights and
Duties of Neutral Powers and Persons, and also to international
customary practices concerning nationals of neutral States. Another
category is formed by the diplomats of enemy or neutral States who
may invoke international customary practices as well as some
provisions of the Vienna Convention of 18 April 1961 on Diplomatic
Relations, in particular Article 44 of that Convention. According to
that article, the receiving State must, even in case of armed
conflict, grant facilities to enable persons enjoying diplomatic
status, other than its own nationals, and members of their families,
to leave at the earliest possible moment; it must also make available
the necessary transport. (43)
3146 The categories of persons mentioned above are only examples, and other cases may arise; if greater protection results from another
Convention or from customary law, those provisions must apply, even
if the persons concerned are covered by Article 75
' C.P./J.P. '
(1) [(1) p.863] The ICRC had submitted a draft article
numbered Art. 65, which read as follows:
"' Article 65 -- Fundamental guarantees '
1. Persons who would not receive more favourable
treatment under the Conventions or the present Protocol,
namely, nationals of States no bound by the Conventions
and the Parties' own nationals shall, in all
circumstances, be treated humanely by the Party in whose
power they may be and without any adverse distinction. The
present article also applies to persons who are in
situations envisaged under Article 5 of the Fourth
Convention. All these persons shall enjoy at least the
provisions laid down in the following paragraphs.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed
by civilian or military agents:
(a) violence to the life, health and physical or
mental well-being of persons, in particular torture,
corporal punishment and mutilation;
(b) physical or moral coercion, in particular to obtain information;
(c) medical or scientific experiments, including the removal or transplant of organs, not justified by the
medical treatment and no carried out in the patients' own
(d) outrages upon personal dignity, in particular humiliating and degrading treatment;
(e) taking of hostages;
(f) threats to commit any of the foregoing acts.
3. No sentence may be passed or penalty executed on a person found guilty of an offence related to a situation
referred to in Article 2 common to the Conventions, except
in pursuance of a previous judgment pronounced by an
impartial and properly constituted court, affording the
following essential guarantees:
(a) no person may be punished for an offence he or she has not personally committed; collective penalties are
(b) no person may be prosecuted or punished for an offence in respect of which a final judgment has been
previously passed, acquitting or convicting that person;
(c) everyone charged with an offence is presumed to be innocent until proved guilty according to law;
(d) no person may be sentenced except in pursuance of those provisions of law which were in force at the time
the offence was committed, subject to later more favourable provisions.
4. Women whose liberty has been restricted shall be held in quarters separated from men's quarters. They shall
be under the immediate supervision of women. This does not
apply to those cases where members of the same family are
together in the same place of internment.
. The persons mentioned in paragraph 1, detained by reason of a situation referred to in Article 2 common to
the Conventions and who are released, repatriated or
established after the general cessation of hostilities,
shall enjoy, in the meantime, the protection of the
(2) [(2) p.864] The text reads as follows: "Persons who would not receive more favourable treatment under the
Conventions or the present Protocol, namely nationals of
States not bound by the> Conventions, the Parties' own
nationals and nationals of neutral or co-belligerent
States having normal diplomatic representation with the
Party in whose power they are shall, in all circumstances,
be treated humanely by that Party and without any adverse
distinction. The present Article also applies to persons
who are in situations under Article 5 of the Fourth
Convention. All these persons shall enjoy at least the
provisions laid down in the following paragraphs." (O.R.
III, p. 295, CDDH/III/319);
(3) [(3) p.864] Cf. introduction to this Section, supra, p. 838;
(4) [(4) p.865] The text read as follows: "None of the provisions of this Protocol may be used to prevent the
prosecution and punishment of persons accused of war
crimes and crimes against humanity." (O.R. III, p. 293,
CDDH/III/315 and Add.1);
(5) [(5) p.865] Covenant, Art. 4; European Convention, Art. 15; American Convention, Art. 27;
(6) [(6) p.866] On this subject the Rapporteur expressed himself as follows: "Paragraph 1 of Article 65  was
the last paragraph resolved because it raised a delicate
question of whether the protections of the article were to
be extended to a Party's own nationals. At an early stage
it was decided that the scope of the article should be
restricted to persons affected by the armed conflict and
further restricted to the extent that the actions by a
Party in whose power they are so affect them. This is the
purpose of the introductory clause of the paragraph.
Moreover, paragraphs 3 to 7 inclusive are further limited
by their own terms to persons affected in specific ways,
e.g., persons "arrested, detained, or interned for action
related to the armed conflict' (paragraph 3).
Nevertheless, the question of whether or not to
specify one's own nationals as protected by the article
remained contentious for many days. Ultimately a
compromise was reached whereby reference was deleted to
all examples of persons covered by the article, at which
point the article was quickly approved by the Committee."
(O.R. XV, pp. 460-461, CDDH/407/Rev.1, paras. 41-42);
(7) [(7) p.866] See particularly O.R. VI, pp. 261-278, CDDH/SR.43, Annex;
(8) [(8) p.866] See introduction to this Section, supra, p. 837;
(9) [(9) p.867] Without pronouncing the legality of the measure, it may be recalled that during the Second World
War the United States prohibited all its nationals of
Japanese origin from staying in the Pacific Coast States;
(10) [(10) p.868] See commentary Art. 72, supra, pp. 841-842;
(11) [(11) p.869] On 31 December 1984 there were 161 States Parties to the Conventions. See infra, p. 1549;
(12) [(12) p.870] O.R. XV p. 455 CDDH /407/Rev.1, para. 27;
(13) [(13) p.870] Article 47, Protocol I;
(14) [(14) p.871] For example, the Covenant, Article 2, paragraph 1: "without distinction of any kind, such as
race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or
(15) [(15) p.871] O.R. XV, pp. 463-464, CDDH/407/Rev.1, para. 55;
(16) [(16) p.871] On this subject it is interesting to note the commentary of the Rapporteur: "Fourth, the proposal for a
new article 65 bis [...] failed to achieve a consensus.
Despite the fact that all delegations agreed with the
principle of the proposal -- that no person may be
arrested, detained or interned solely because of his
convictions -- it proved impossible in the time available
to work out an agreed text. Ultimately, the Committee
agreed to record its consensus that this rule was implicit
in Article 65, paragraph 1 [Article 75 of the Protocol],
as adopted by the Committee." (ibid., p. 449, para. 12);
(17) [(17) p.872] For breaches by failure to act, see Art. 86;
(18) [(18) p.873] It is interesting to note the various resolutions of the United Nations General Assembly which,
though without binding force of law, nevertheless have a
real moral value. The 1975 Declaration was mentioned
above. In addition on 10 December 1984 the General
Assembly adopted a Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment;
(19) [(19) p.876] The 1929 Convention Relative to the Treatment of Prisoners of War, Art. 20; Third Convention, Arts. 41,
107, 165; Fourth Convention, Arts. 65, 71, 99;
(20) [(20) p.877] O.R. XV p. 461, CDDH/407/Rev.1, para. 46;
(21) [(21) p.878] Cf. Art. 45, para. 3, Protocol I (spies, mercenaries etc.);
(22) [(22) p.879] Covenant Art. 14; European Convention, Arts. 5-6; American Convention, Art. 8;
(23) [(23) p.881] O.R. XV, p. 461, CDDH/407/Rev.1, para. 47;
(24) [(24) p.881] This is the formula used in the American Convention on Human Rights (Art. 9);
(25) [(25) p.882] O.R. X, p. 144, CDDH/I/317/Rev.2;
(26) [(26) p.882] The formulation adopted in 1950 by the International Law Commission of the principles of
international law recognized by the Charter of the
Nuremberg Tribunal and in the Judgment of that Tribunal is
contained in "The Work of the International Law
Commission", UN Office of Public Information, New York,
1980, pp. 116 ff.;
(27) [(27) p.882] Universal Declaration, Art. 11; Covenant, Art. 44; European Convention, Art. 6; American Convention,
(28) [(28) p.882] Cf. commentary sub-paragraph (b), supra, p. 880;
(29) [(29) p.883] O.R. XV, p. 462, CDDH/407/Rev.1, para. 48;
(30) [(30) p.883] In an explanation of vote, one delegation declared that its country interpreted this provision as
follows: "in the case of penal proceedings occupying two
or more instances, in which the purpose of the last
instance was to review only the applicable law and not the
findings of the previous instance, the court of review had
to decide whether or not the accused had to appear before
it at the hearing. The court of review could not impose a
higher penalty in the absence of the accused, and all the
latter's rights as provided for in Article 65, paragraph
4(e) were therefore fully granted." (0. R. XV, p. 205,
CDDH/III/SR.58, para. 10);
(31) [(31) p.884] Ibid., p. 462, CDDH/407/Rev.1, para. 48;
(32) [(32) p.884] Ibid;
(33) [(33) p.887] Supra, p. 863;
(34) [(34) p.887] When he presented this amendment one of the co-sponsors expressed himself as follows: "It was
essential to ensure that no provision of the draft
Protocol could be invoked by those criminals in order to
escape the punishment they deserved. In fact, some of them
had tried to evade that punishment by putting forvard
interpretations of existing legal principles that were
pure casuistry. It should not be possible for the
principles laid down in additional Protocols to be used in
that way." (O.R. XV, p. 37, CDDH/III/SR.43, para. 60);
(35) [(35) p.887] O.R. XV, p. 205, CDDH/III/SR.58, para. 11; O.R. VI, p. 269, CDDH/SR.43, Annex (Federal Republic of
(36) [(36) p.887] O.R. VI, p. 272, CDDH/SR.43, Annex (Japan);
(37) [(37) p.887] However, another delegation stated: "We therefore hold the opinion that it is of special
importance when, in connexion with the enumeration of
fundamental guarantees, Article 65  not only reaffirms
the penal responsibility for war crimes and crimes against
humanity but requests that persons who are accused of such
crimes should be submitted for the purpose of prosecution
and trial i accordance with the applicable rules of
international law." (O.R. VI, p. 268, CDDH/ SR.43, Annex
(German Democratic Republic));
(38) [(38) p.888] Ibid., pp. 277-278 (USSR);
(39) [(39) p.888] See ' Commentary III '. Article 75 contains most of the guarantees provided for in the Third
(40) [(40) p.888] Report of the International Law Commission, third session, 1951, vol. 2, p. 59;
(41) [(41) p.888] Ibid., thirty-seventh session, 1985, para. 18 (1954 version of the Draft Code of offences against the
peace and the security of mankind);
(42) [(42) p.889] It should be noted that the English expression "applicable rules of international law" seems
rather more clear than the French version "règles du droit
international applicable". The Drafting Committee clearly
lacked the time to adapt the French text to read "règles
applicables du droit international". In its report,
Committee III wrote the word "applicables" with an "s",
which was more logical (CDDH/407/Rev.1). The letter "s"
disappeared in the final version, though no reason can be
found for this in the Official Records of the Conference.
The Spanish text is exactly the same as the English text.
The same remark applies to paragraph 8, where the
expression "règles du droit international applicable" is
again used. Article 72 correctly uses the expression
"normes applicables du droit international" (in English,
"applicable rules of international law"). It is to be
regretted that the Drafting Committee was careless in
these matters, since "rules" is sometimes translated by
"normes" and sometimes by "règles", though the concept
referred to was clearly the same.
It should also be noted that in Article 2,
sub-paragraph (b), the French version of the Protocol uses
the expression "règles du droit international applicable
dans les conflits armés" (in English, "rules of
international law applicable in armed conflict"). In this
case the French spelling is quite correct since the word
"applicable" is qualified by the words "dans les conflits
(43) [(43) p.890] The Vienna Convention of 24 April 1963 on Consular Relations contains a similar provision in its
Article 26. On 31 December 1984, 142 and 109 States
respectively were Parties to these Conventions. However,
the provisions quoted referred to customary law;