Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- RELIGIOUS DUTIES
[p.404] GENERAL REMARKS. HISTORICAL BACKGROUND
From the very first days of the Red Cross Henry Dunant had raised the question of "the moral welfare of prisoners of war".
Morale always exerts a physical effect, but it is more acute in the case of people who have lost their freedom, because their inner life tends to grow in importance.
Even before the Geneva Prisoners of War Convention had been drawn up, Article 18
of the Hague Regulations had stated the following principle: "Prisoners of war shall enjoy complete liberty in the exercise of their religion, including attendance at the services of whatever church they may belong to, on the sole condition that they comply with the measures of order and police issued by the military authorities".
The same principle was again proclaimed in similar terms in Article 16
of the Geneva Convention of 1929 which added that: "Ministers of religion, who are prisoners of war, whatever may be their denomination, shall be allowed freely to minister to their co-religionists."
It was logical to use the reasoning applied in the case of prisoners of war in that of civilian internees. The International Committee of the Red Cross did so in the memorandum which it addressed to all the belligerent Powers on July 14, 1943. The memorandum (1) noted that after a long period of confinement the prisoners and internees increasingly sought spiritual help from religious directors and pointed out that in order to be able to carry out their task, these men ought to enjoy the facilities generally granted to members of the medical staff of the camps (permission to leave camp regularly, permission to write more frequently, etc.). The request was well received in most quarters, and when the International Committee undertook to draw up a draft Convention for the protection of civilians, it convened in Geneva, to obtain the benefit of their experience and advice, an expert commission composed of representatives of the various charitable organizations which had co-operated with it in bringing spiritual or intellectual aid to victims
of the war. The expert commission included representatives of the following organizations: the World's Young Women's Christian Association, World's Alliance of Young Men's Christian Associations, Caritas Internationalis, World Jewish Congress, World Council of Churches, World's Student Christian Federation, Pax Romana, Catholic Relief, [p.405] and War Relief of National Catholic Welfare Conference. It helped to prepare a draft text which, after being adopted with certain additions by the XVIIth International Red Cross Conference, was taken as a basis for discussion by the Diplomatic Conference.
At the Diplomatic Conference the Delegation of the Holy See undertook to redraft the text and submit it "in a clear, systematic and accurate form", as some of the clauses adopted at Stockholm appeared to overlap other provisions of the Convention, or to be redundant (2). When submitting his amendment -- which was exactly the same in the case of prisoners of war and civilian internees -- the Delegate of the Holy See stated that it represented the views of various religious organizations which had studied the Convention. The amendment was modified in some particulars by the committee responsible as it applied to the Prisoners of War Convention, but was adopted almost as it stood in the case of civilian internees. The resultant divergence between the two Conventions will be pointed out in the commentary on the third paragraph.
PARAGRAPH 1. -- PRINCIPLE
Paragraph 1 is very nearly a word-for-word reproduction of Article 18
of the Hague Regulations, to which reference has been made. The expression "measures of order and police" has however been replaced by the words "disciplinary routine" which imply a rather less strict supervision. There is no longer any question of special police regulations relating to religious observances, but only of general rules for the maintenance of discipline. The change of wording had been recommended by representatives of religious organizations consulted by the International Committee of the Red Cross (3).
It should be noted that religious services do not merely involve the use of "suitable premises" for which official provision is made in Article 86
, but also the use of prayer books and various other objects. During the last World War the International Committee of the Red Cross was sometimes obliged to apply for censorship or police regulations to be waived to allow their import (4). Religious practices may also refer to those of a physical character, methods of preparing food, periods of fast or prayer, or the wearing of ritual adornments; all [p.406] these special requirements should, subject to the maintenance of routine discipline, be facilitated by those administering places of detention. It should finally be mentioned that Article 130, paragraph 1
, places Detaining Powers under an obligation to ensure that internees are honourably buried, if possible according to the rites of the religion to which they belonged.
PARAGRAPH 2. -- MINISTERS OF RELIGION
The free exercise of their ministry by interned ministers of religion for the benefit of their co-religionists is stipulated in a series of provisions which the International Committee recommended as a result of its experiences during the Second World War. The Committee had observed that in certain prisoner-of-war camps there was a surplus of priests or clergymen, while in others there were too few; as a result representations were made with a view to securing a better distribution of ministers of religion. Such representations were, as a rule, well received. The idea of equitable allocation was adopted in the Convention, but it was also necessary for ministers of religion to be relieved of certain restrictions resulting from their internment, to enable them to minister freely to their flock. To this end they are granted facilities for moving from one place of internment to another (or for going outside places of internment to visit hospitals where the sick are undergoing treatment). They also enjoy facilities for corresponding with the ecclesiastical authorities, either in the country of detention or even, where this is possible, outside it. Since this correspondence is connected with their ministry and concerns interests bearing no relation to their own individual position, it was reasonable not to make them subject to possible restrictions under Article 107
(2 letters and 4 cards per month, on the official forms). On the other hand, since an international religious authority might be unaware of the rules laid down in the Convention (5), correspondence with that authority had to remain subject to the censorship provided for in Article 112
In these provisions a certain analogy exists between ministers of religion and the representatives of prisoners of war. Since the internees' regulations make no provision for such representatives -- but only for the election of Internee Committees (Article 102
) -- it is all the more necessary to interpret the facilities granted to ministers of religion for the practice of their ministry as including [p.407] a fortiori some of the facilities expressly stipulated in the case of representatives of prisoners of war. Libraries, reading rooms or the circulation of a newspaper may, for example, be most useful to ministers of religion. It was not necessary to lay down that they were to be exempted from work, since work is not compulsory in the case of internees (Article 95
); on the other hand, the task of carrying out their ministry, which often demands arduous effort, may be regarded as actual work and as entitling the minister to pay. This pay might, by analogy with the provisions of Article 62
of the Prisoners of War Convention, be provided out of the welfare fund administered by the Detaining Power and made up of canteen profits in accordance with Article 87, paragraph 2
, which has already been discussed.
PARAGRAPH 3. -- SUBSTITUTES
Provision had to be made for the possibility of there being no ministers of religion, or too few of them. The commission of religious experts convened by the International Committee of the Red Cross in 1947 had advocated recourse being had to the services of ministers appointed, with the agreement of the Detaining Power, by the local religious authorities. They had thought that as religion is a spiritual matter, knowing no frontiers, as it were, the wisdom of the religious authorities could be relied upon for avoiding friction resulting from the difference of nationality between the congregation and their minister. The idea met with the approval of the Diplomatic Conference and was accepted without objection in the case of civilian internees, but the Committee responsible for the Prisoners of War Convention considered that if the Detaining Powers were to have any part in the appointment of ministers there might be a danger of political propaganda being spread under the cloak of religion. In order to avoid such a danger it was decided that
their appointment, while continuing to be subject to the approval of the Detaining Power, would only be made "with the agreement of the community of prisoners concerned." That provision has no counterpart in the Fourth Convention. There is on that point an important difference between the position of prisoners of war and that of civilian internees, the explanation being that internment generally takes place in the country where the internee resides and that intervention in religious matters by local religious authorities of the same denomination is therefore normal. The position is different in the case of prisoners of war, whence the reservation introduced in their case.
That does not mean that all necessary steps have not been taken, from the strictly religious point of view, to prevent the local religious [p.408] authorities from making a choice of ministers which shocks the conscience of those to whom they minister. The religious authorities on whom the choice rests must be "of the same faith" as the internees and the minister appointed must be "of the internees' faith". It is only in case of such an appointment being impossible, and if such a course is feasible from a denominational point of view, that a minister of similar religion or a qualified layman may be chosen.
According to the actual text of the Article, the local religious authorities "may" appoint the substitute in question. They are not obliged to do so. Internees who have no minister of religion at their disposal simply have the option of asking the local authorities to appoint one and the authorities have the option of granting their request or even of taking the initiative in the matter. The question arises of what would happen if the local authorities did nothing or if they refused to make an appointment. It is reasonable to suppose that in that case the Protecting Power (or if there is none, the International Committee of the Red Cross) would be able to take action, for the Protecting Power must not merely supervise the application of the Convention but must assist in its application.
A further question arises. Could the precautions aimed at guaranteeing the internees the right to exercise their religion have gone further? The Stockholm Convention contained an additional provision, stipulating that "in the official reports sent to the Governments on the condition of internees, explicit mention shall be made of the religious assistance by which they benefit". The International Committee of the Red Cross had considered, however (6), that the clause would prove a serious hindrance to Protecting Powers or charitable organizations when they were drafting their reports. The Committee pointed out that they had always tried, in their reports on camp visits, to give the fullest possible attention to the spiritual affairs of prisoners of war, but would prefer to see the proposed provision omitted, as they were on occasion obliged, for particular reasons, to devote a report entirely to one subject. This view was endorsed by the Delegation of the Holy See at the Diplomatic Conference and, on the proposal of that Delegation, by the Conference
Notes: (1) [(1) p.404] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ', Vol. I, p. 275;
(2) [(1) p.405] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 331;
(3) [(2) p.405] See ' Report on the Work of the Conference of
Government Experts ', p. 149;
(4) [(3) p.405] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ', Vol. I, p. 276;
(5) [(1) p.406] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 838;
(6) [(1) p.408] See ' Remarks and Proposals ', pp. 47-48;