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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- NON-RENUNCIATION OF RIGHTS
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 is the last in the series of Articles designed to make that protection inviolable -- Article 1
(application in all circumstances), Article 5
on the duration of application, and Article 6
prohibiting agreements in derogation of the Convention. This Article will be applied mainly in connection with the Third Convention, that is to say during the period of internment proper. It is hardly conceivable that a shipwrecked or wounded person could renounce the assistance and care which the present Convention assures unless his mental [p.55] faculties were partially impaired or unless he were subject to constraint.
1. ' Renunciation of protection under the Convention '
The Conferences which prepared the revision of the 1929 Convention considered the implications for the individual of changes which, as a result of war, sometimes affect the legal or political structure of States (such as occupation, debellatio, change of Government, or civil war) (1). We have already quoted the example of an occupied country concluding an agreement with the occupying Power, the terms of which may adversely affect its nationals in enemy hands. Article 7 should now obviate that danger.
As experience showed during the Second World War, however, agreements of derogation may in certain cases appear to be licit. If, for instance, they take the form of an authorization by the national Government permitting prisoners of war to opt freely for a status other than that laid down by the Convention, they appear to transfer to the prisoners themselves the responsibility for deciding their status.
In this connection, one may also consider the situation of nationals of a State which, as a result of war, ceases to exist legally, whether for the time being or definitively. In such a case the Detaining Power might be even more strongly tempted to modify the status of prisoners under the Convention on the basis of the wishes of the persons concerned, having no partner with whom such modifications might be discussed.
When a State offers persons in its hands the choice of another status, such a step is usually dictated by its own interest. Experience has proved that those concerned may be subjected to pressure in order to influence their choice; the pressure may vary in intensity and be more or less overt, but it nevertheless constitutes a violation of their moral and sometimes even physical integrity. In any case, change of nationality deprives the person concerned of the [p.56] protection accorded under the Convention. To obviate that danger and to meet a general desire, the International Committee of the Red Cross included the present provision in the drafts. In its proposal, however, the prohibition applied to the use of coercion to influence the will of the individual. That might have been interpreted as implying that protected persons could renounce the benefits of the Convention, provided their choice was made completely freely and without pressure. The Diplomatic Conference, like the XVIIth International Red Cross Conference, preferred to avoid that
interpretation and accordingly adopted a more categorical wording which no longer refers to constraint, thus intimating to the States party to the Conventions that they could not be released from their obligations towards protected persons even if the latter of their own free will expressed a desire to that effect.
Such an absolute rule was not agreed to without opposition. Reference was made to the case of combatants who had been forced to enlist and who, after being taken prisoner, went over to the other side in order to participate in the "liberation" of the country which, in their hearts, they had never ceased to consider as their native land. Other delegations wondered whether Conventions designed to protect the individual should be carried to the point where in a sense they denied him the essential attribute of the individual, namely liberty.
In the end, however, the Diplomatic Conference voted unanimously in favour of absolute prohibition, mainly because it is difficult, if not impossible, to prove the existence of duress or pressure (2).
Two further points call for notice:
[p.57] In the first place, the Conference did not overlook the fact that the rules as drafted might entail "harsh" consequences for some persons. 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 dangerous breach in the structure of the Convention?
The Conference also accepted the view that in war-time protected persons in the hand of the enemy are not really in a sufficiently independent and objective state of mind to realize fully the implications of a renunciation of their rights (3).
2. ' Nature of the rights conferred on protected persons '
A. ' The basic concept '. -- In the commentary on Article 6
the meaning to be attached to the expression "rights which the Convention confers on protected persons" in relation to the Contracting States was indicated. It is now necessary to define its meaning in relation to the individual, since the same expression recurs in Article 7 (4).
The initiators of the Geneva Conventions wished to safeguard the dignity of the human person, in the profound conviction that [p.58] imprescriptible and inviolable rights are attached to it, even when hostilities are at their height (5).
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 word "right" appeared in several provisions of the 1929 Prisoners of War Convention. It was not, however, until the 1949 Conventions (in particular in Articles 6
and 7) that the existence of "rights" conferred on protected persons was affirmed. In this connection, one should recall the unanimous recommendation of the Red Cross Societies, meeting in conference at Geneva in 1946, to confer upon the rights recognized by the Convention "a personal and intangible character" allowing the beneficiaries "to claim them irrespective of the attitude adopted by their home country" (6).
B. ' Practical aspect of the rights '. -- One might fear that there is a risk that the rights which are thus "secured" to protected persons might remain merely theoretical unless any violation thereof entails a penalty.
In that respect there has been a very clear evolution. Let us take the case of penalties. The Tenth Convention of The Hague of 1907 (Article 21
) provided for legislative measures to be taken, should the penal laws prove inadequate. But the 1949 Geneva Conventions lay down with the requisite precision (in Articles 50
, common to all four Conventions) the obligation incumbent on all States party to the Conventions, whether belligerent or neutral, to promulgate penal measures, seek out those who are guilty, and punish breaches of the Conventions. The Conventions also define the rôle of the Protecting Power (Article 8
) and of the International Committee of the Red Cross (Articles 9
), [p.59] which are authorized to defend the interests of protected persons (7).
So far this commentary has dealt only with the relationship between protected persons and the belligerent in whose hands they are. What, then, is the position when the violations are the consequence of an agreement signed by the State of origin of the protected persons? Would it not be possible for the State of origin to be prosecuted by the persons affected, in those countries at least in which individual rights may be maintained before the courts? It would seem that the reply to this question must be in the affirmative.
Undoubtedly, owing to the still undeveloped character of international law, the safeguards protecting the rights conferred on persons to whom the Convention relates are by no means as complete as those of national legislation. Article 7 nevertheless emphasizes that as a corollary to the individual character of the rights secured to them by the Convention, protected persons 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 the slightest derogation from that status.
C. ' Obligation on the persons protected '. -- Rights entail obligations. It is obvious that the respect due to the wounded and sick must also be afforded by persons who can claim protection under the Convention. For example, a member of the medical personnel who took advantage of his duties to rob the wounded or dead would be liable to the punishment prescribed for such offences. Although the present Article is addressed primarily to the Contracting States, it may be interpreted as implying an indication and even a warning to the wounded and sick and to medical personnel, for the latter must contribute to the maintenance and reinforcement of the inalienable character of their rights, even if they lose by so doing.
Thus, Article 48
relating to the dissemination of the Conventions is of particular importance in connection with Article 7.
* (1) [(1) p.55] 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, p. 70;
(2) [(1) p.56] The Norwegian representative, who stated these
motives the most forcibly, said amongst other things that
the question was 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 would
not be valid if obtained by duress was not sufficient in
his view; everyone knew that it was extremely difficult to
produce proof of there having been duress or pressure.
Generally, the Power which obtained the renunciation would
have no difficulty in asserting that it was obtained with
the free consent of those concerned and the latter, for
their part, might confirm that alleged fact. The only
genuine means of ensuring the protection they were seeking
would be to lay down a general rule that any renunciation
of rights conferred by the Convention should be deemed
completely devoid of validity. (See ' Final Record of the
Diplomatic Conference of Geneva of 1949 ', Vol. II-B, pp.
(3) [(1) p.57] The Conventions nevertheless take into account
the wishes of protected persons in certain cases: for
instance in the Third Convention, the provisions relating
to release on parole (Article 21, paragraph 2), the
assembling of prisoners in camps (Article 22), recreation
(Article 38), dangerous labour (Article 52), religious
duties and attendance at services of their faith (Article
34), and the repatriation of wounded or sick prisoners of
war (Article 109, paragraph 3). In all these cases, the
wishes expressed by protected persons would merely lead to
more flexible application of the Convention and not to the
partial or total absence of certain rights. In this
connection, the example was quoted of certain social laws
which apply to the persons concerned independently of
their will. See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-B, p. 18.
Reference might also be made in municipal law to the rules
for the protection of the individual, some of which,
considered as being in the common interest, can in no case
be waived by those concerned. Thus Article 27 of the Swiss
Civil Code lays down that "No one may renounce, even in
part, the exercise or enjoyment of his rights";
(4) [(2) p.57] Here the phrase "rights which it confers" used
in Article 6 has been replaced by "rights secured" which
is much stronger; similarly, in the French text, "accorde"
has been replaced by "assure";
(5) [(1) p.58] See Max HUBER: ' The Red Cross, Principles and
Problems ', Lausanne, 1941, pp. 11-12, and Jean S. PICTET:
PICTET: ' La Croix-Rouge et les Conventions de Genève ',
lecture delivered before the Academy of International Law
at The Hague, 1950, p. 30;
(6) [(2) p.58] See ' Report on the Work of the Preliminary
Conference of National Red Cross Societies ', p. 71;
(7) [(1) p.59] Mention may also be made of Article 78 of the
Third Convention, which gives prisoners of war the
"unrestricted right" to apply to the representatives of
the Protecting Powers. Prisoners of war therefore have not
only rights but also the means of availing themselves of