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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- NON-RENUNCIATION OF RIGHTS
[p.78] This Article, although entirely new, is closely linked with the preceding Article
, and has the same object -- namely, to ensure that protected persons in all cases without exception enjoy the protection of the Convention until they are repatriated. It crowns the edifice which gives this protection its inviolable character -- an edifice already made up of Article (application in all circumstances), Article 5
on the duration of application, and Article 6
prohibiting derogatory agreements.
I. ' Renunciation of protection under the Convention '
The successive Conferences which prepared the revision of the Convention of 1929 had to consider the difficult situation sometimes encountered by nationals of States which as a result of war undergo profound modifications in their legal or political structure (occupation, capitulation, change of government, civil war). (1) We quoted earlier the example of an occupied country concluding with its enemy an agreement which might adversely affect its nationals in the enemy's hands. Article 6
should now obviate that danger.
But certain derogatory agreements may, as the last World War showed, appear on the surface to be "licit". There is the example of an authorization by their home Government to prisoners of war to choose at their discretion a status differing from that laid down in the Convention; this would appear to make those concerned responsible for deciding their own status.
This situation may be compared with the case of persons who are nationals of a State which, as a result of a war, has legally ceased to exist, either temporarily or finally. In such a case the Detaining Power, having no partner with whom to agree to modifications in the status laid down in the Convention, might be even more strongly tempted to justify such changes by basing them on the will of the persons concerned.
When a State offers to persons detained by it the choice of another status, such a step is usually dictated by its own interest. Experience has proved that such persons may be subjected to pressure in order to influence their choice. The pressure may vary in its intensity and be either more or less apparent; but it nevertheless constitutes a violation [p.79] of their moral and sometimes even of their physical integrity. The inevitable result of such practices is to expose the protected persons to a two-fold series of what may on occasion be very serious drawbacks, first from the fact that they are under pressure, and secondly, as already indicated, from their partial or total renunciation of the protection accorded to them by the Convention.
To meet those dangers, the International Committee of the Red Cross, interpreting the general desire, proposed in its draft Conventions that it should be stipulated that "wounded and sick, as well as members of the medical personnel and chaplains, may in no circumstances be induced by constraint or by any other means of coercion, to renounce in part or in entirety the rights secured to them by the present Convention".
In their proposal, the International Committee emphasized what appeared to them to be the greatest risk -- namely, the pressure exerted to obtain renunciation. But the text might have been interpreted as implying that protected persons might renounce the benefits of the Convention, provided their choice was made completely freely and without any pressure. The Diplomatic Conference, like the XVIIth International Red Cross Conference, wished to avoid that interpretation and accordingly adopted the more categorical wording of the present Article 7, thus intimating to States parties to the Convention that they could not release themselves from their obligations towards protected persons, even if the latter showed expressly and of their own free will that that was what they desired.
A. ' Reasons for absolute prohibition. ' -- Such an absolute rule was not agreed to without resistance. Some quoted the example of combatants enrolled more or less by force in the armed forces of a State, of which they refuse in their inner conscience to recognize that they are subjects. After falling into the hands of the enemy, they have fought side by side with the latter, taking part in the "liberation" of their country. Others wondered whether Conventions designed to protect the individual should be carried to a point where in a sense they deny him the essential attribute of liberty.
But in the end the Diplomatic Conference unanimously adopted the present wording -- mainly for the reasons given above (2), that is to say, [p.80] the danger of allowing the persons concerned the choice of renouncing their rights, and the difficulty, and even impossibility, of proving the existence of duress or pressure.
Among the reasons given in favour of the present Article 7, two points call for notice.
The Conference did not overlook the fact that the absolute character of the rule drafted might entail for some persons what one delegate termed "unfortunate" results. It adopted the rule, because it seemed to safeguard the interests of the majority. If provision were made for exceptions in the case of certain individuals, would that not at once open a breach which others, in much greater numbers, would, perhaps, have cause to regret? Faced with this dilemma, the Conference felt that an integral application of the Convention would be the lesser evil, if we may be allowed to use such an expression in describing the effects of a humanitarian Convention. When considering the disadvantages which the application of the absolute principle of Article 7 would appear to entail for certain protected persons, the profound reasons for such a rule should always be borne in mind.
The second point is this. In adopting the above principle the Conference accepted the view that in wartime protected persons who fall into the hands of the enemy are not really in a sufficiently independent and objective moral position to realize fully the implications of a renunciation of their rights under the Convention. It would be wrong to speak of "liberty" in this connection.
B. ' Will of protected persons in the application of the Conventions. ' -- The Conventions do not, however, entirely ignore the will of protected persons. The Prisoners of War Convention, for instance, lays down in several places that on certain specific points the treatment accorded [p.81] will depend on the choice of the persons concerned. (3) But in these instances the expression of the will of the protected persons contributes towards the application -- a more elastic application -- of the Convention; it never results in the suppression of the Convention, either in its entirety or in part.
It should further be noted that this prohibition by the authors of the Conventions of 1949 of any renunciation of rights followed logically from their desire to establish rules representing the minimum required by human dignity. Rules of this kind were ' in the common interest, ' and could be renounced by the beneficiaries only under pressure of external circumstances, against which it was the precise purpose of the Convention to protect them. In this connection the example has been cited of certain social laws which apply to the persons concerned independently of their will. (4) Reference might also be made in municipal law to the rules for the protection of the person, some of which, considered as being in the common interest, can in no case be waived by the individuals concerned. (5)
Nor does Article 7 express an entirely novel principle as compared with the former Geneva Conventions, As in the case of the provision on special agreements, it embodies the reasonable interpretation which is apparent in those Conventions. States which are parties to them are required to apply them when certain objective conditions exist; but there is nothing in the texts which would justify their taking refuge behind the will of the "protected persons" to withhold application either in entirety or in part. The authors of those solemn instruments were prompted by a keen desire to ensure complete protection for war victims, had they wished to lay down the will of the latter as a condition of application, they would not have failed to provide safeguards and lay down forms of procedure permitting that will to be expressed freely, knowing as they did how great the possibilities of misrepresentation were in wartime. But this they did not do.
Should it therefore be concluded that such a conception reflects [p.82] greater interest in the rights and duties of States than in the situation of the individual within the legal order set up by the Convention? That would be a completely erroneous conclusion, as we shall show.
2. ' Nature of the rights conferred upon protected persons '
A. ' The basic concepts. ' -- In the comments on Article 6
we indicated the meaning to be attached to the expression "rights which the Convention confers upon protected persons" in relation to the Contracting States. It is now necessary to define its meaning in relation to the individual, the expression in question recurring in the same form in Article 7, except for the term "confer" which is here replaced by "secure", a still stronger term.
In the development of international law the Geneva Convention occupies a prominent place. For the first time, with the exception of the provisions of the Congress of Vienna dealing with the slave-trade, which were themselves still strongly coloured by political aspirations, a set of international regulations was devoted, no longer to State interests, but solely to the protection of the individual. (6) The initiators of the 1864 and following Conventions wished to safeguard the dignity of the human person, in the profound conviction that imprescriptible and inviolable rights were attached to it even when hostilities were at their height.
At the outset, however, the treatment which belligerents were required to accord to persons referred to in the Convention was not presented, nor indeed clearly conceived, as constituting a body of "rights" to which they were automatically entitled. In 1929 the principle was more clearly defined, and the term "right" appeared in several provisions of the 1929 Convention relative to prisoners of war. It was not, however, until the Convention of 1949 (in particular, in Articles 6
and 7) that the existence of rights conferred on protected persons was affirmed.
The affirmation is explicit. Faced with a proposal to replace the phrase "confers upon them" in Article 6
by the phrase "stipulates on their behalf" , thus implying that the rights in question represented for those concerned more of an ' indirect ' benefit resulting from the attitude [p.83] prescribed to the States, the Diplomatic Conference decided to maintain the word "confer", which figured in the draft prepared by the International Committee of the Red Cross. (7)
In selecting this term the International Committee had doubtless been influenced by the concomitant trend of doctrine, which also led to the universal proclamation of Human Rights, to define in concrete terms a concept which was implicit in the earlier Conventions. But it had at the same time complied with the unanimous recommendation of the Red Cross Societies, meeting in conference in Geneva in 1946, to confer upon the rights recognized by the Conventions "a personal and intangible character allowing" the beneficiaries "to claim them irrespective of the attitude adopted by their home country". (8)
B. ' Concrete aspect of the rights. ' -- As has already been seen in connection with Article 6
, "rights conferred by the Convention" should be interpreted to mean the whole system of rules under the Convention. We shall not repeat what was said, but refer readers to the explanations given above. (9)
On the other hand, the question arises of whether the fact of considering those rules as "rights conferred upon protected persons" corresponds to an intrinsic reality. From the practical standpoint, and no longer in the field of ideas, to assert that a person has a right is to say that he possesses ways and means of having that right respected, and that any violation thereof entails a penalty.
In that respect a study of the Geneva Conventions from 1864 to 1949 shows a distinct evolution. Let us take the case of penalties. The Convention of 1864 contains nothing on the subject. The Conventions of 1906 (Articles 25
-27) and of 1929 (Articles 28
-30) lay the emphasis mainly on the legislative measures to be taken, should the penal laws prove inadequate. It is only the Convention of 1949 that indicates in Articles 49
to 53, with all requisite precision, the obligation incumbent on all States parties to the Conventions, belligerent or neutral, to seek out those who are guilty and to repress breaches of the Convention, which is tantamount to saying, breaches of the rights of persons protected.
[p.84] There is a further evolution in connection with the means open to such persons for the defence of their rights. The First Convention now gives official sanction to the role of the Protecting Power (Article 8
). Wounded and sick or medical personnel will be able through the intermediary of the latter to arrange with more certainty for intervention by their home State. Should such intervention prove impossible -- as in the instances quoted above -- they may then have recourse to neutral bodies (i.e. to a neutral State replacing the Protecting Power, or to the International Committee of the Red Cross), to find a champion of their cause (Article 10
). They may even, either personally or through their prisoners' representative (or whoever performs those duties amongst retained medical personnel) (10), put their claim directly to the detaining authorities. This is the practical application of the concept of rights which the individual may invoke, independently of the State.
The foregoing comments have dealt only with violations committed by the enemy. But the problem also arises with regard to violation of the rights of protected persons by their own Governments. Although the Convention contains no formal indication in this respect, it is justifiable to consider that the terms of Article 7 may entail an important consequence. It should be possible in States which are parties to the Convention and which recognize that any violation of individual rights is justiciable, for the rules of the Convention, which are assimilable with those rights, to be evoked before an appropriate national court by the protected person who has suffered the violation.
Undoubtedly, owing to the immature character of current international law, the guarantees surrounding the rights conferred on persons referred to in the Convention are by no means as complete, effective or automatic as those of national legislations. Nevertheless, Article 7 supplies invaluable help to all protected persons. It allows them to claim the protection of the Convention, not as a favour, but as a right, and enables them to employ any procedure available, however rudimentary, to demand respect for the terms of the Convention in case of violation. Hence the importance of the dissemination of the Convention in accordance with Article 47
, with special reference to the individual character of the rights which the Convention confers.
[p.85] C. ' Obligation on persons protected. ' -- One last question remains to be considered. Rights entail obligations. With the focus on the individual under Article 7, can the rules of the Conventions, or certain of them, be considered as obligations which are directly incumbent on the persons protected? There can be no doubt that certain stipulations, such as the respect due to the wounded and sick, are also incumbent on persons who can claim protection under the Convention, For example, a member of the medical personnel who, profiting by his duties, plundered the wounded or dead on the battlefield, would be liable to the punishment which the law of his country or of the enemy stipulates in execution of the obligation by which every contracting State is bound to repress such breaches.
This question arises in connection with Article 7, which appears to take the form of an obligation on the persons protected, stating, as it does, that the latter "may in no circumstances renounce...". It was for this reason that, in their "Remarks and Proposals" submitted to the Diplomatic Conference, the International Committee of the Red Cross pointed out that the general effect of the Conventions was to impose obligations on the States parties to the Conventions rather than on individuals, and proposed to draft Article 7 in that sense.
The Diplomatic Conference preferred to keep to the present wording. Various delegates pointed out that even in that form Article 7 was addressed first and foremost to the contracting States, and meant that ' for such States ' a declaration by protected persons regarding the changing of their status could have no legal effect. (11)
However that may be, Article 7 may be interpreted as implying, if not an obligation, at least a direct indication or even warning to the wounded and sick and to medical personnel. As a counterpart to the character of individual rights which has been given to the rules of the Convention in the interest of protected persons, the latter should by their own attitude contribute to the maintenance and reinforcement of the inalienable character of their rights, abiding loyally by the provisions regarding their status as laid down in the Convention, and refusing to accept any derogation, even if they lose by so doing. Here again is a point to which attention should be drawn in a well-planned dissemination of the Geneva Conventions.
* (1) [(1) p.78] See, in particular, ' Report on the Work of the
Preliminary Conference of National Red Cross Societies for
the Study of the Conventions and of various Problems
relative to the Red Cross ' (Geneva, July 26-August 3,
1946), Geneva, 1947, page 70;
(2) [(1) p.79] The Norwegian representative, who stated these
motives the most forcibly, said amongst other things: "The
question is being examined of prisoners of war or
civilians in the hands of a Power being able, through an
agreement concluded with the latter, to renounce finally
for the whole duration of the war the rights conferred on
them by the Convention. To say that such agreements will
not be valid if they are obtained by duress is not
sufficient in our view; we all know that it is extremely
difficult to produce proof of there having been duress or
pressure. Generally, the Power which obtains the
renunciation has no difficulty in asserting that it was
obtained with the free consent of those concerned, and the
latter, for their part, may be induced to to declare that
this corresponded to their own desire. I consider that the
only genuine means of ensuring the protection we are
seeking will be to lay down a general rule that any
renunciation of rights conferred by the Convention shall
be deemed completely devoid of validity".
(See ' Final Record of the Diplomatic Conference of
Geneva, 1949, ' Vol. II-B, pages 17 and 18.);
(3) [(1) p.81] This is the case, for instance, with release on
parole (Article 21, paragraph 2), assembly in camps
(Article 22), organization of leisure (Article 38) and
dangerous labour (Article 52);
(4) [(2) p.81] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-B, page 17;
(5) [(3) p.81] Thus Article 27 of the Swiss Civil Code lays
down that "None can renounce, even in part, the exercise
or enjoyment of his rights";
(6) [(1) p.82] See Max HUBER, ' The Red Cross, Principles and
Problems, ' page 15, and Jean S. PICTET, ' La Croix-Rouge
et les Conventions de Genève, ' lectures delivered before
the Academy of International Law of The Hague, 1950, page
(7) [(1) p.83] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-B, page 76;
(8) [(2) p.83] See ' Report on the Work of the Preliminary
Conference of National Red Cross Societies for the Study
of the Conventions and of various Problems relative to the
Red Cross ' (Geneva, July 26-August 3, 1946), Geneva,
1947, page 71;
(9) [(3) p.83] See above, page 73;
(10) [(1) p.84] For prisoners of war, Article 78 of the Third
Convention, and for retained medical personnel, Article 28
of the First Convention. See below, on Article 28, page
(11) [(1) p.85] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-B, page 56;
See the Commentary of 2016