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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
[p.498] ARTICLE 127
. -- CONDITIONS
Articles 127 and 128
contain a series of provisions relating to the transfer of internees. It should not be forgotten, however, that as protected persons internees benefit from the general provisions of Article 45
concerning the transfer of protected persons to another Power. In consequence, if a belligerent wished to transfer civilian internees to another Power, he would be obliged to comply with Article 45
, as well as with Articles 127 and 128
[p.499] PARAGRAPH 1. -- MEANS OF TRANSPORT
The text of paragraph 1 refers primarily to the transfer of internees from one place to another inside the same territory. What the authors of the Convention wished to avoid was a return to the "death marches", of which there were far too many examples during the Second World War, especially in its last phase, during the hurried evacuation of certain concentration or prisoner-of-war camps (1). This is the reason for making it obligatory to carry out transfers in humane conditions. The conditions under which the forces of the Detaining Power are transferred have been taken as a criterion. It is stated expressly that transfers on foot are only permissible in exceptional cases and if the internees are in a fit state of health. It is not the physical fitness of the majority of the internees which is to decide whether the transfer will be made on foot or not. The fitness of each individual must be considered and those who cannot walk must be taken in some sort of transport.
Transfers inside the national territory of the Detaining Power are not, however, the only transfers covered by this Article, as will be seen in the commentary on the second paragraph.
PARAGRAPH 2. -- PROVISIONS FOR THE JOURNEY. -- SAFETY
The obligations listed in this paragraph are similar to those incumbent on the Detaining Power under the general provisions of the Convention and are implicit in the first paragraph.
If the transfer takes place individually or in a group but has not been made necessary by a critical military situation, being the result of an administrative decision taken by the Detaining Power in normal circumstances, it goes without saying that the Detaining Power's obligations in regard to the maintenance and care of the internees cannot be affected; a more difficult question arises in the case of a transfer ordered in grave and unforeseen circumstances and which may affect suddenly all the detainees in a particular place of internment. In such a case, the provisions of this paragraph must be taken as the minimum compatible with the humane treatment which must be given to protected persons "at all times" (Article 27
One delegation to the Diplomatic Conference suggested adding in the second sentence of this paragraph after "shall take all suitable precautions to ensure their safety during transfer", the words "especially [p.500] in case of transport by sea or by air". The Committee which dealt with this matter at the Conference rejected this suggestion on the grounds that the mention of particular means of transport might lessen the scope of the general principle (2).
Nevertheless, the obligation, before a transfer has begun, to draw up a complete list of the internees transferred, was drafted with sea transport particularly in mind. Indeed, during the Second World War several convoys of prisoners of war were sunk by the forces of the army to which they belonged or its allies. At the Diplomatic Conference suggestions put forward by the International Committee of the Red Cross for the establishment of a special system of protection for convoys of prisoners of war (3) were rejected on the grounds that these convoys would thus have received better treatment than those transporting troops of the Detaining Power (4). It was thought necessary, however, to prescribe that a list must be drawn up of the persons transferred in the case of prisoners of war and of civilian internees alike, so that whatever happened trace of them should not be lost. Obviously, this precaution is of the same importance whatever means of transport is used. This paragraph lays full responsibility on the Detaining Power by
insisting that it shall not neglect any precaution in its power. This will apply, in particular, to precautions against attacks from the air.
PARAGRAPH 3. -- THE SICK
of the 1929 Convention stipulated, with regard to sick or wounded prisoners of war, that they should not be transferred if their recovery might be prejudiced by the journey "unless the course of military operations demands it". For this idea, which was too often interpreted as granting permission to the Detaining State to transfer sick persons when it appeared that military operations might enable them to escape from its power (5), the 1949 Conventions have substituted, in the case of civilian internees and prisoners of war, a provision based on ensuring the safety of the sick persons concerned. This idea is made clearer in the following paragraph.
[p.501] PARAGRAPH 4. -- SAFETY
This text is based on the tragic experience of the Second World War and it covers not only the wounded and sick, but all internees whether able-bodied or not. The responsibility for determining whether internees run more risk if evacuated than if they remain where they are will rest with the commandant of the place of internment. In order to lessen the risk as much as possible, he will apply the provisions concerning markings listed in paragraph 3 of Article 83
. In accordance with paragraph 2 of the same Article
, the Detaining Powers must give the enemy Powers, through the intermediary of the Protecting Powers, all necessary information regarding the geographical position of places of internment; the commandant of the place of internment must also try, as soon as he can, to get in touch with the advanced elements of the enemy in order to avoid any transfer near to the fighting lines. However painful it may be for the pride of the Power concerned to abandon to a victorious enemy those detained in a place of internment, humanitarian principles require
that this solution be adopted rather than that of exposing the internees to extreme danger during transfer.
PARAGRAPH 5. -- RESERVATION CONCERNING REPATRIATION
This paragraph was introduced in an amendment to the Stockholm Draft. In the explanatory matter which accompanied the amendment, the delegation proposing it called it "an appeal to the good faith and to the very conscience of all civilized nations" (6). It must be deduced that if the obligation to take into account prospects of repatriation were to conflict with the obligation to ensure for the internees treatment in conformity with the Convention, the general provisions of the Convention would take precedence over the recommendations in this paragraph, since the Detaining Power must not shelter behind the need to make allowance for the possibility of repatriation at an uncertain date as an excuse for keeping the internees in places in which it is impossible completely to respect their rights.
Notes: (1) [(1) p.499] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 268-270;
(2) [(1) p.500] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 268-270,
(3) [(2) p.500] See ' Remarks and Proposals, ' pp. 49-50;
(4) [(3) p.500] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 268-270;
(5) [(4) p.500] See ' Report on the Work of the Conference of
Government Experts, ' pp. 166-170;
(6) [(1) p.501] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, p. 289;