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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- TREATMENT: GENERAL OBSERVATIONS
GENERAL REMARKS. HISTORICAL BACKGROUND
Article 27, placed at the head of Part III, occupies a key position among the Articles of the Convention. It is the basis of the Convention, [p.200] proclaiming as it does the principles on which the whole of "Geneva Law" is founded. It proclaims the principle of respect for the human person and the inviolable character of the basic rights of individual men and women.
The statement of these principles in an international convention gives them the character of legal obligations and marks an essential stage in the history of international law -- in particular international humanitarian law, which is concerned above all with man as man.
It codifies notions which date back to ancient times and which, through Christian thought and particularly Thomism, have, since the Reformation made their appearance in international law (1). Such notions are not characteristic of western civilization alone; they are also found in the basic philosophies of other civilizations, especially in the philosophies and religions of Islam, India and the Far East. Article 27 is a characteristic manifestation of the evolution of ideas and law (2).
It will be remembered that the XVIIth International Red Cross Conference had thought of giving the Convention a Preamble solemnly drawing attention to certain rules considered to constitute the "basis of universal human law"; but the Diplomatic Conference was unable to reach agreement on the matter and the present Article, together with Articles 31
-34 of the Convention, must, in the absence of a Preamble, be regarded as setting forth those rules (3).
The first three paragraphs of Article 27 reflect the spirit which imbues the whole Convention in regard to the rights of the individual, but the last paragraph of the Article nevertheless makes a reservation concerning military requirements and other matters of imperative national interest, thus balancing the rights and liberties of the individual against those of the community (4).
As has been said, Article 27 is the basis on which the Convention rests, the central point in relation to which all its other provisions [p.201] must be considered. It was in order to give greater prominence to this essential Article and to underline its fundamental importance that the Diplomatic Conference placed it at the beginning of Part III on the status and treatment of protected persons.
PARAGRAPH 1. -- GENERAL PRINCIPLES
1. ' First sentence. -- Respect for fundamental rights '
A. ' Respect for the person. -- ' This provision is based on a similar obligation laid down in the 1929 Geneva Convention on prisoners of war. The right of respect for the person must be understood in its widest sense: it covers all the rights of the individual, that is, the rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers; it includes, in particular, the right to physical, moral and intellectual integrity -- an essential attribute of the human person.
The right to physical integrity involves the prohibition of acts impairing individual life or health; it is reinforced by two other provisions of the Convention -- the second sentence of this same paragraph, which lays down expressly the obligation to give humane treatment, and Article 32
which prohibits certain practices which have shocked the conscience of the world.
Respect for intellectual integrity means respect for all the moral values which form part of man's heritage, and applies to the whole complex structure of convictions, conceptions and aspirations peculiar to each individual. Individual persons' names or photographs, or aspects of their private lives must not be given publicity.
What about the right to life itself ? Unlike Article 46
of the Hague Regulations (5) the present Article does not mention it specifically. It is nevertheless obvious that this right is implied, for without it there would be no reason for the other rights mentioned. This is a simple conclusion a majori ad minus, and is confirmed by the existence of clauses prohibiting murder, reprisals and the taking of hostages, in Articles 32
of the Convention. Furthermore, the death penalty may only be applied to protected persons under the circumstances strictly laid down in Article 68
The right to personal liberty, and in particular, the right to move about freely, can naturally be made subject in war time to certain [p.202] restrictions made necessary by circumstances. So far as the local population is concerned, the freedom of movement of civilians of enemy nationality may certainly be restricted, or even temporarily suppressed, if circumstances so require. That right is not, therefore, included among the other absolute rights laid down in the Convention, but that in no wise means that it is suspended in a general manner. Quite the contrary: the regulations concerning occupation and those concerning civilian aliens in the territory of a Party to the conflict are based on the idea of the personal freedom of civilians remaining in general unimpaired. The right in question is therefore a relative one which the Party to the conflict or the occupying power may restrict or even suspend within the limits laid down by the Convention.
B. ' Respect for honour '. -- Honour is a moral and social quality. The right to respect for his honour is a right invested in man because he is endowed with a reason and a conscience. The fact that a protected person is an enemy cannot limit his right to consideration and to protection against slander, calumny, insults or any other action impugning his honour or affecting his reputation; that means that civilians may not be subjected to humiliating punishments or work.
It should be noted that respect for a prisoner of war's honour, as well as respect for his person, in stipulated in Article 46 of the Hague Regulations
, and also in the 1929 Geneva Convention.
C. ' Respect for family rights '. -- The obligation to respect family rights, already expressed in Article 46
of the Hague Regulations, is intended to safeguard the marriage ties and that community of parents and children which constitutes a family, "the natural and fundamental group unit of society" (6). The family dwelling and home are therefore protected; they cannot be the object of arbitrary interference.
Respect for family life is also covered by the clause prohibiting rape and other attacks on women's honour, as stated in the next paragraph. Furthermore, Article 82
of the Convention provides that in case of internment "members of the same family, and in particular parents and children, shall be lodged together in the same place of internment". In the same way the Convention lays down that "internees may request that their children who are left at liberty without parental care shall be interned with them".
Respect for family rights implies not only that family ties must be maintained, but further that they must be restored should they have [p.203] been broken as a result of wartime events. That is the object of Articles 25
(family correspondence) and 26
(dispersed families) and of some of the clauses of Articles 39
D. ' Respect for religious convictions and practices '. -- The principle of freedom of thought is the basis of the great movement for the Rights of Man which invaded and transformed politics and law. It is therefore inscribed at the beginning of the traditional proclamations of essential rights and fundamental liberties.
The right to respect for religious convictions is part of freedom of conscience and freedom of thought in general. It implies freedom to believe or not to believe, and freedom to change from one religion or conviction to another. This safeguard relates to any system of philosophical or religious beliefs.
Religious freedom is closely connected with the idea of freedom to practise religion through religious observances, services and rites. Protected persons in the territory of a Party to the conflict or in occupied territory must be able to practise their religion freely, without any restrictions other than those necessary for the maintenance of public law and morals. That is the object of Articles 38, paragraph 3
, and 58
of the Convention which provide that internees shall receive spiritual assistance from ministers of their faith.
Article 27 reaffirms the provision in Article 46
of the Hague Regulations that occupying forces are bound to respect "religious convictions and practice".
E. ' Respect for manners and customs '. -- Respect for the human person implies respect for "manners" (in the sense of individual behaviour) and "customs" (meaning the usages of a particular society).
Manners may be said to refer to the ordinary way of behaving or acting -- to the expression of personality by the most ordinary actions of daily life. It is these constant personal habits which the Convention aims at protecting.
The idea of a custom is more objective, that is, it indicates, in a general way, the body of rules hallowed by usage which man observes in his relations with his fellow men. Custom draws its authority from its tacit acceptance by the whole body of citizens. Such ancient and general customs taken as a whole constitute part of the law of each country.
The obligation to respect manners and customs is particularly important in the case of occupied countries. Everybody remembers the measures adopted in certain cases during the Second World War, which could with justice be described as "cultural genocide". The [p.204] clause under discussion is intended to prevent a reversion to such practices.
2. ' Second sentence. -- Humane treatment '
The obligation to grant protected persons humane treatment is in truth the ' leitmotiv ' of the four Geneva Conventions. After proclaiming the general principle, the Convention enumerates the acts Which are prohibited.
The expression "to treat humanely" is taken from the Hague Regulations and from the two 1929 Geneva Conventions. The Word "treatment" must be understood here in its most general sense as applying to all aspects of man's life. It seems useless and even dangerous to attempt to make a list of all the factors which make treatment "humane" (7). The purpose of this Convention is simply to define the correct way to behave towards a human being, who himself wishes to receive humane treatment and who may, therefore, also give it to his fellow human beings. What constitutes humane treatment follows logically from the principles explained in the last paragraph, and is further confirmed by the list of what is incompatible with it. In this connection the paragraph under discussion mentions as an example, using the same wording as the Third Geneva Convention (8), any act of violence or intimidation inspired not by military requirements or a legitimate desire for security, but by a systematic scorn for human values (insults,
exposing people to public curiosity, etc.).
The Convention does not confine itself to stipulating that such acts are not to be committed. It goes further; it requires States to take all the precautions and measures in their power to prevent such acts and to assist the victims in case of need (9).
This first list has very rightly been supplemented in Article 32
by a further list of acts considered as grave breaches of the duty of humane treatment: extermination, murder, torture, mutilation, biological experiments not necessitated by medical treatment of the person concerned.
The requirement of humane treatment and the prohibition of certain acts incompatible with it are general and absolute in character, [p.205] like the obligation enjoining respect for essential rights and fundamental liberties. They are valid "in all circumstances" and "at all times", and apply, for example, to cases where a protected person is the legitimate object of strict measures, since the dictates of humanity and measures of security or repression, even when they are severe, are not necessarily incompatible. The obligation to give humane treatment and to respect fundamental rights remains fully valid in relation to persons in prison or interned, whether in the territory of a Party to the conflict or in occupied territory. It is in such situations, when human values appear to be in greatest danger, that the provision assumes its full significance.
PARAGRAPH 2. -- TREATMENT OF WOMEN
Paragraph 2 denounces certain practices which occurred, for example, during the last World War, when innumerable women of all ages, and even children, were subjected to outrages of the worst kind: rape committed in occupied territories, brutal treatment of every sort, mutilations etc. In areas where troops were stationed, or through which they passed, thousands of women were made to enter brothels against their will or were contaminated with venereal diseases, the incidence of which often increased on an alarming scale (10).
These facts revolt the conscience of all mankind and recall the worst memories of the great barbarian invasions. They underline the necessity of proclaiming that women must be treated with special consideration. That is the object of this paragraph, which is based on a provision introduced into the Prisoners of War Convention in 1929, and on a proposal submitted to the International Committee by the International Women's Congress and the International Federation of Abolitionists (11).
The provision is founded on the principles set forth in paragraph 1 on the notion of "respect for the person", "honour" and "family rights".
A woman should have an acknowledged right to special protection, the special regard owed to women being, of course, in addition to the safeguards laid down in paragraph 1, which they enjoy equally with men.
[p.206] The Conference listed as examples certain acts constituting an attack on women's honour, and expressly mentioned rape, enforced prostitution, i.e. the forcing of a woman into immorality by violence or threats, and any form of indecent assault. These acts are and remain prohibited in all places and in all circumstances, and women, whatever their nationality, race, religious beliefs, age, marital status or social condition have an absolute right to respect for their honour and their modesty, in short, for their dignity as women.
PARAGRAPH 3. -- EQUALITY OF TREATMENT; NON-DISCRIMINATION
Paragraph 3 contains a statement of the principle that all protected persons are to receive the same standard of treatment, with a further clause concerning non-discrimination. That means that any protected person is entitled to all the rights and liberties proclaimed by the Convention under a general principle common to all the Geneva Conventions (12).
It is clear from the wording of the provision that the list of various criteria on which discrimination might be based -- race, religion and political opinion -- is only given by way of example. The criteria of language, colour, social position, financial circumstances and birth might be added. In a word, any discriminatory measure whatsoever is banned, unless it results from the application of the Convention.
Nationality is not among the various criteria mentioned (it was mentioned in Article 13
) and the discussions at the Diplomatic Conference make it clear that it cannot be regarded as implicitly included (13).
A prohibition of discrimination does not mean that all differentiation is forbidden. That is clear from the qualified character of the wording, which only excludes differences when they are of an adverse nature. Equality might easily become injustice if it was applied to situations which were essentially unequal, without taking into account such circumstances as the state of health, age and sex of the protected persons concerned. It is in this way that the principle of equality is understood in the Convention.
[p.207] It should be noted too that the prohibition of all adverse distinctions in the treatment given to protected persons is not merely a negative duty. It implies an active role. An occupying Power is, for example, bound to abrogate any discriminatory laws it may find in occupied territory, if they place difficulties in the way of the application of the Convention. That follows also from the first paragraph of Article 64
PARAGRAPH 4. -- RESERVATION IN REGARD TO SECURITY MEASURES
The various security measures which States might take are not specified; the Article merely lays down a general provision. There are a great many measures, ranging from comparatively mild restrictions such as the duty of registering with and reporting periodically to the police authorities, the carrying of identity cards or special papers, or a ban on the carrying of arms, to harsher provisions such as a prohibition on any change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, or even assigned residence and internment (which, according to Article 41
, are the two most severe measures a belligerent may inflict on protected persons).
A great deal is thus left to the discretion of the Parties to the conflict as regards the choice of means. What is essential is that the measures of constraint they adopt should not affect the fundamental rights of the persons concerned. As has been seen, those rights must be respected even when measures of constraint are justified.
Although these supreme rights are not, generally speaking, in any danger as a result of the first administrative measures we mentioned, that is not so in the case of assigned residence or internment. The experience of the Second World War has shown in tragic fashion that under such conditions there is a particularly great danger of offences against the human person. That is why the Convention, conscious of the danger, only accepts internment and assigned residence as measures to be adopted in the last extremity, and makes them subject to strict rules (Articles 41
to 43 and Article 78
); and why, furthermore, it lays down in great detail (Articles 79
to 135 -- treatment of internees) standards of treatment designed to ensure that the human person is respected under the circumstances where it appears to be in greatest danger.
Notes: (1) [(1) p.200] See Max HUBER: ' Le Droit des Gens et
l'Humanité, ' Revue internationale de la Croix-Rouge,
1952, pp. 646 ff. For points common to the Convention and
the Declaration of Human Rights, see C. PILLOUP: ' La
Déclaration universelle des Droits de l'Homme et les
Conventions internationales protégeant les victimes de la
guerre, ' ibid, 1949, pp. 252-258;
(2) [(2) p.200] For comments on the question as a whole see
LAUTERPACHT: ' International Law and Human Rights, '
London, 1950. With special reference to Humanitarian Law,
see H. COURSIER: ' Etudes sur la formation du droit
humanitaire, ' Geneva, 1952;
(3) [(3) p.200] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. I, p. 113;
(4) [(4) p.200] The reservation in regard to State security
matters was added by the 1949 Conference at the suggestion
of the Delegation of the United States of America;
(5) [(1) p.201] This Article, in which the provisions under
discussion had their origin, reads as follows: "Family
honour and rights, the lives of persons, and private
property, as well as religious convictions and practice,
must be respected. Private property cannot be
(6) [(1) p.202] See ' Universal Declaration of Human Rights '
of December 10, 1948, Article 16, para. 3;
(7) [(1) p.204] See ' Commentary I, ' p. 53;
(8) [(2) p.204] See Article 13, para. 2, of that Convention;
(9) [(3) p.204] The Diplomatic Conference rejected a proposal
that the expression "protected against" should be replaced
by the words "shall not be exposed to" which would have
greatly reduced the scope of the Clause. See ' Final
Record of the Diplomatic Conference of Geneva of 1949, '
Vol. II-A, pp. 712-713;
(10) [(1) p.205] See ' Commission of Government Experts for the
Study of the Convention for the Protection of War Victims
(Geneva, Apr. 14-26, 1947). Preliminary Documents, ' Vol.
III, p. 47;
(11) [(2) p.205] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 821;
(12) [(1) p.206] ... It will be noted, for example, that the
three other Geneva Conventions of 1949 also contain a
clause prohibiting discrimination; see Article 12, para.
2, of the First and Second Conventions and Article 16 of
the Third Convention;
(13) [(2) p.206] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 640-642;