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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
[p.374] ARTICLE 80
. -- CIVIL CAPACITY
1. ' General '
This wording was adopted at the Diplomatic Conference without discussion. It differs from the Stockholm Draft only in regard to one detail, the expression "as far as may be compatible with their internment" having been replaced by the words "such .... as may be compatible with their status". One delegation had suggested emphasizing the idea of surveillance to which the activities of internees must be subject, on account of the danger which the mere fact of their existence represents for the Detaining Power. The change in the wording might perhaps be explained, therefore, as an attempt to take some slight account of that suggestion. At all events the Conference did not adopt it in all its harshness. Article 80 is one more affirmation of the principle, expressed in Article 27
, that protected persons are entitled under all circumstances to respect for their honour and family rights. It is one of the Articles which give particular application to the general precept, contained in Article 6 of the Universal Declaration of Human Rights, that "everyone has the right to recognition everywhere as a person before the law".
The provision has the advantage of emphasizing that internment is not a punishment and involves no slur on the honour of the person concerned. That is what distinguishes internment from all penalties involving loss of liberty.
2. ' Retention of civil capacity '
Both Article 80 and the corresponding provision in the Third Convention (Article 14, paragraph 3
) are derived from the second paragraph of Article 3
of the 1929 Convention which laid down the rule, in a form new in positive law, that prisoners of war "retain their full civil capacity".
The Hague Regulations had already specified that "the right of belligerents to adopt means of injuring the enemy is not unlimited" (Article 22
), and among the prohibitions which followed from that rule there was one forbidding anyone "to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the [p.375] nationals of the hostile party" (Article 23 (h)
), but apart from the fact that the rule is more clearly expressed in a positive and general form in the 1929 and 1949 Conventions, the scope of the latter is wider as the clause no longer refers only to "nationals of the hostile party" but to all "protected persons", which also includes neutrals (as soon as they no longer have normal diplomatic representation with the State in whose hands they are) and stateless persons.
It should be noted, however, that the new Geneva Conventions add a reservation, both in the case of prisoners of war and internees, to the principle laid down without any qualification in 1929, by stating that in future the full civil capacity of the persons concerned may only be exercised in so far as it may be compatible with the measures necessary for the security of the Detaining Power; in other words it is limited by the requirements of captivity in the one case and by the internment in the other.
The status of the internees does not depend merely on the rules concerning the treatment of internees, as laid down in Part III, Section IV, which includes Article 80, but also in the whole of Part III, which defines the status and treatment which must be accorded to protected persons. The Article does not say, as in the case of prisoners of war, that the persons concerned will retain the full civil capacity which they enjoyed at the time they were interned; but the term "shall retain" seems plain enough and the absence of such an addition circumvents a difficulty which in the text applicable to prisoners of war can only be removed by interpretation. It is quite certain that a combatant who is made prisoner before attaining his majority cannot be deprived of the rights attendant upon ceasing to be a minor. It must be realized, in fact, that the civil capacity of internees continues to be governed by the laws which applied to them before they were interned. That means that circumstances which modify it or cancel it in normal times (divorce, lunacy, etc.) continue
to produce the same effects.
3. ' The exercise of attendant rights '
The considerable difference which exists between the position of prisoners of war and that of internees means that different problems arise in each case in regard to the exercise of civil capacity.
In most cases prisoners of war are transferred to a foreign country, while internees remain in a country where they are settled. In both cases their civil rights may be exercised both in their home country and where they are detained; but whereas prisoners of war will normally act in the former and occasionally in the latter (especially [p.376] in connection with their work), the opposite is true of internees. Both enemy civilians detained in the territory of a belligerent Power and nationals of an occupied territory who have been interned by the Occupying Power, will in the majority of cases be still in the country where they have their chief ties: their domicile, families, property and interests.
Hence in the case of prisoners of war most of their legal business will be done by proxy and what is important for them is the steps taken in their home country to arrange for marriages, the recognition of children and adoption by proxy, whereas in the cases of internees action is as a rule taken direct. For that purpose the internees will take advantage of the facilities which can be given them as internees. Certain such facilities are, incidentally, mentioned expressly in the Convention, whereas no corresponding provisions exist in the regulations for prisoners of war (1).
It should be noted that the civil capacity of internees in the territory of a belligerent will in most cases be restricted to an appreciable extent by war legislation, especially so far as enemy property is concerned. In nearly all countries engaged in a war, property belonging to enemy subjects is put into the hands of a Custodian of Enemy Property and no longer remains at the disposal of its owners. As a result civilian internees in the territory of a belligerent will, in actual fact, be unable to exercise one essential right, that of managing their property. Besides, the fact that they are enemy subjects will prevent nationals of the Detaining Power from having any relations with them, particularly of an economic nature.
In occupied territory, on the other hand, internees will not normally be subjected to measures of this kind; as a general rule their property, which cannot be regarded as enemy property, will continue to be at their disposal.
It should be noted, finally, that restrictions on the freedom of action of internees can be claimed either by them or by their representatives as constituting a case of ' force majeure ' which frees them from certain obligations. That is the logical counterpart of the drawbacks of their internment; for it would not be fair if their civil capacity, having been preserved in their interests, had an effect prejudicial to them because of the limits within which it was exercised. Article 115
of the Convention (facilities for preparation and conduct of cases) confirms this interpretation and describes its application to a specific case.
Notes: (1) [(1) p.376] See the Articles concerning the management of
property (Article 114) and the visits they may be allowed
to receive or to make (Article 116);