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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- SPECIAL AGREEMENTS
Although war interrupts diplomatic relations between the belligerents, it does not involve the cessation of all legal relations between them. As a delegate to the 1949 Diplomatic Conference aptly put it: "the legal phenomenon continues during and in spite of war, testifying in this way to the lasting quality of international law".
Apart from the agreements which put an end to hostilities, the belligerents conclude an appreciable number of other agreements during the actual course of a war (1), which are concerned in particular with the treatment which the nationals of each of the Parties are to receive when in enemy hands. Agreements of this nature were [p.79] concluded between the belligerents before the Geneva Convention relative to the Treatment of Prisoners of War existed. During the 1914-1918 war, it became apparent that the 1907 Hague Regulations were inadequate, and a great many agreements concerning prisoners of war were negotiated and concluded between the belligerents in the course of the conflict. The provisions of the 1929 Prisoners of War Convention were very largely based on those agreements.
The most important among them were: the agreements concluded between Turkey, on the one hand, and Great Britain and France, on the other hand, on December 23, 1917, and March 23, 1918; the Franco-German agreements of March 15 and April 26, 1918, the Austro-Serbian agreement of June 1, 1918, the Arrangement between Great Britain and Germany of July 14, 1918, the Austro-Italian Convention of September 21, 1918, and the German-American Arrangement of November 11, 1918.
By the 1929 Convention, in Article 83, paragraphs 1 and 2
, the High Contracting Parties reserved to themselves the right to conclude special conventions "on all questions... concerning which they may consider it desirable to make special provision". Prisoners of war were to continue to enjoy the benefits of such agreements "until their repatriation has been effected, subject to any provisions expressly to the contrary contained in the above-mentioned agreements or in subsequent agreements, and subject to any more favourable measures by one or other of the belligerent powers concerning the prisoners detained by that Power".
Unfortunately, during the Second World War the interpretation which the belligerent States gave to these provisions was not always to the advantage of prisoners of war. Prisoners lost some of their essential rights as a consequence of a number of these agreements, and the International Committee therefore proposed, at the Conference of Government Experts, that the Convention should expressly state that special agreements concluded between belligerents should in no circumstances reduce the standard of treatment of prisoners of war. Although there were some reservations, the Commission supported this view and it was approved by the Diplomatic Conference (2).
[p.80] PARAGRAPH 1. -- NATURE, FORM AND LIMITATION OF SPECIAL
1. ' First sentence. -- Nature and form of special agreements '
A preliminary indication of the nature of special agreements is given by the list of Articles of the Convention which expressly mention the possibility of agreements being concluded between the Parties concerned. They refer to the following points:
(a) appointment of an impartial organization as a substitute for the
Protecting Power (Article 10, paragraph 2
(b) marking of prisoner-of-war camps (Article 23, paragraph 4
(c) disposal of profits made by canteens in case of general repatriation
(Article 28, paragraph 3
(d) corresponding ranks of the medical personnel of the Parties to the
conflict (Article 33, paragraph 2 (b)
) and procedure for the relief
of retained personnel (Article 33, paragraph 3);
(e) amount of advances of pay due to prisoners (Article 60, paragraph 2
(f) reciprocal notification at specified intervals of the amount of the
accounts of prisoners of war (Article 65, paragraph 4
(g) winding up of accounts on the termination of captivity (Article 66,
(h) adjustment between Parties to the conflict of the advances of pay
issued to prisoners (Article 67
(i) conditions for the sending of individual parcels or collective
shipments to prisoners (Article 72, paragraph 4
(j) procedure for the receipt and distribution of collective relief
shipments (Article 73, paragraphs 1, 2 and 3
(k) payment of costs of special transport (Article 75, paragraph 4
(l) direct repatriation or internment in a neutral country of able-bodied
prisoners of war who have undergone a long period of captivity
(Article 109, paragraph 2
(m) conditions for the repatriation of prisoners accommodated in a
neutral country, and status of such prisoners (Article 110, paragraph
[p.81] (n) apportioning of costs of repatriation of prisoners of war after the
cessation of active hostilities (Article 118, paragraph 4 (b)
(o) establishment of commissions for the purpose of searching for
dispersed prisoners of war and assuring their repatriation (Article
119, paragraph 7
(p) forwarding of personal effects of deceased prisoners of war (Article
122, paragraph 9
(q) enquiry procedure concerning alleged violations of the Convention
(Article 132, paragraph 2
The above list, which appears in the Convention, is merely by way of indication, for there are other Articles in the Convention which refer to agreements between the belligerents, either to encourage such arrangements or on the contrary prohibit them;
(a) prohibition of any derogation from the provisions relating to
substitutes for Protecting Powers if one of the Powers is restricted
in its freedom to negotiate (Article 10, paragraph 5
(b) establishment of conciliation procedure for the application or
interpretation of the Convention (Article 11, paragraph 2
(c) limitation on correspondence addressed to prisoners of war (Article
71, paragraph 1
); acceptance of correspondence written in a language
other than the native language (Article 71, paragraph 3
(d) payment of costs connected with transport of relief shipments
(Article 74, paragraph 4
(e) determination of offences punishable by the death penalty (Article
100, paragraph 2
(f) internment of prisoners in a neutral country (Article 111
(g) visits to camps by compatriots (Article 126, paragraph 3
Lastly, there are other cases in which, although the Convention does not include any express provision, agreements between the belligerents might be necessary:
(a) conditions for the acceptance of liberty on parole or promise
(Article 21, paragraph 3
(b) establishment of rate of working pay (Article 62, paragraph 1
(c) procedure for transfer of funds to the dependants of prisoners of war
(Article 63, paragraph 3
[p.82] (d) delay in execution of the death penalty (Article 101
(e) procedure for burial (Article 120
(f) action by relief societies and the International Committee of the Red
Cross (Article 125
This list shows at once that the term "special agreements" is used to denote a wide variety of arrangements. Sometimes it is a matter of arrangements for individual cases (repatriation), sometimes of actual regulations (distribution of relief consignments), sometimes of a quasi-political agreement (substitute for the Protecting Power).
It will be readily realized that the position of prisoners of war can be much improved by special agreements concluded between the belligerents in cases other than those provided for in the Convention itself. The Parties to the conflict would in fact be free to replace internment by a more liberal regime, such as residence under supervision in a certain area, or general evacuation to a neutral country; the latter solution would present a great many advantages if one or more neutral States indicated their willingness to accept prisoners from one or other of the belligerents (3).
Apart from the above lists, the term "special agreements" should therefore be understood in a very broad sense. One must not forget that legislation applicable to prisoners of war, and the present Conventions, grew up from agreements of this kind. The belligerents must therefore remain at liberty to develop and steadily improve the status of prisoners of war.
A. ' Form of the agreements. ' -- For an agreement between two or more belligerents to be regarded as a "special agreement" within the meaning of Article 6
, there is no need for it to deal exclusively with matters covered by the Third Convention. Such matters may form part of an agreement of much wider scope between the Parties. An armistice agreement, for example, may contain not only military and territorial clauses but also one or more clauses relating to prisoners of war.
It is also possible that an agreement may deal at one and the same time with prisoners of war, medical personnel and civilians.
Special agreements are generally not subject to formal requirements, such as signature and ratification, which are essential in the case of international treaties. They clearly fall into the category of conventions in simplified form, their special features being that, in the first place, the Head of the State does not formally intervene and, [p.83] secondly, they may take various forms: sometimes they are concluded by an exchange of notes or letters, or they may even be verbal agreements. In war-time, it is sometimes necessary to take immediate steps to implement agreements in circumstances which make it impracticable to observe the formalities required at other times; such agreements are valid if the contracting authorities have not exceeded their powers. This will for example be the case where local arrangements of a temporary nature are made for the exchange of prisoners.
Even when there is no urgency, the absence of formalities is justified by the fact that special agreements are generally measures taken in application of the Convention. The latter binds the States concerned and it is only natural that its application should be within the competence of executive bodies. This absence of formalities means that agreements may even be made verbally; reciprocal declarations of intention will often be exchanged through a third party (4). Apart from those concluded on the actual battlefront between the military commanders, the agreements will generally be arranged through the Protecting Powers or their substitutes, or through the International Committee of the Red Cross.
B. ' Time of conclusion. ' -- Certain special agreements are meaningless unless they are concluded while hostilities are actually in progress. The examples given by the Convention leave no doubt on the subject; but in some cases agreements may be concluded before hostilities break out; this applies in particular to those mentioned in Articles 10, paragraph 1
; 11, paragraph 2
; 23, paragraph 4
; 33, paragraph 2 (b)
; 132, paragraph 2
. This possibility is expressly referred to in Article 10
, which uses the expression "the High Contracting Parties" and not "the Parties to the conflict", which occurs in most of the other Articles. It is also conceivable, as we have already pointed out, that certain agreements could be concluded by one or more belligerent Powers with neutral States which are also party to the Convention, with a view to arranging, for example, for prisoners of war to be accommodated in hospitals or even interned in a neutral country. Furthermore, certain agreements can obviously be concluded after the close of hostilities, in particular those which concern the arrangements for repatriation. All such agreements, no matter when they are concluded, are subject to the rules laid down in Article 6
[p.84] 2. ' Second sentence. -- Prohibited special agreements '
A. ' Agreements in derogation of the Convention. ' -- In the light of experience gained in connection with the 1929 Convention, the Diplomatic Conference felt it necessary to introduce this provision into all four Conventions in 1949.
During the Second World War certain belligerent Governments -- in particular those whose territory was occupied -- concluded agreements which deprived prisoners of war of the protection of the Convention in certain respects, such as supervision by the Protecting Power, work connected with military operations or penal or disciplinary sanctions (5). Specifically, the authors of the Convention had in mind the case of French prisoners in Germany.
In response to offers made by the German Government, in agreement with the Vichy Government, these prisoners abandoned some of their rights in exchange for certain material advantages, but in the end they suffered rather serious disadvantages. Although it is less explicit than the present paragraph, it would seem that Article 38
of the 1929 Convention should have prevented agreements of this kind. Be that as it may, in order to prevent any ambiguity, the International Committee of the Red Cross recommended, when the preliminary work began, that the following words should be added to the provisions dealing with special agreements: "These agreements shall in no circumstances adversely affect the situation of the prisoners of war, as defined by the present Convention, nor impair the rights which it grants them."
The Committee's proposal was approved by the Conference of Government Experts in 1947 (6), but even then certain experts opposed it on the ground that it imposed excessive restrictions on the sovereign power of States; they also claimed that it would often be very difficult to say in advance whether or not an agreement could harm the interests of the protected persons. The same arguments were put forward at the 1949 Diplomatic Conference (7), but the Conference voted by a substantial majority in favour of maintaining the safeguard proposed by the International Committee of the Red Cross.
[p.85] B. ' Scope of the safeguard clause ' (8). -- Special agreements may neither adversely affect the situation of prisoners of war, nor "restrict the rights" which the Convention confers upon them.
It will not always be possible to decide at once whether or not a special agreement adversely affects the situation of prisoners of war. When the drafters of the Convention added the second phrase, they had in mind particularly the situation of prisoners of war in Germany who were "transformed" into civilian workers because of the shortage of labour in that country during the war. But what is the position, for instance, if their situation is improved in certain ways and made worse in others? Some of the agreements mentioned above may have appeared to bring them advantages at the time of conclusion; the drawbacks only became apparent later and as a result of circumstances. The criterion "adversely affect the situation" is not, therefore, in itself sufficiently clear. That is why the second condition is of value.
In what sense should the word "rights" conferred by the Convention be understood? The question is examined here in relation to special agreements between belligerents. A proposal aimed at prohibiting only those agreements which restricted "fundamental rights" was rejected by the Diplomatic Conference on the ground that the Convention lays down a minimum standard of treatment for prisoners of war and it would be difficult to draw a distinction between rights which were fundamental and those which were not (9). The reference is therefore to the whole body of safeguards which the Convention affords to prisoners of war.
The States may not by special agreement restrict, i.e. derogate from, their obligations under the Conventions to the disadvantage of prisoners of war. On the other hand, nothing prevents them from undertaking further and wider obligations.
C. ' Special problems. ' -- (a) If, as a result of a change in circumstances, the application of a provision under the Convention entailed serious disadvantages for the prisoners, would the "safeguard clause" debar the Powers concerned from endeavouring to remedy the situation by an agreement departing from that provision?
This is a question which the States concerned cannot settle on their own account. If such a situation were to arise in actual practice, it would be for the neutral organizations responsible for looking after the interests of the prisoners to give their opinion; basing their decision, in [p.86] such contingency, on the rule (inherent in the safeguard clause) of not adversely affecting the situation of prisoners, they could tolerate certain measures of derogation which the States concerned might take, either separately or by mutual agreement, with a view to remedying the situation.
(b) If two belligerents were to agree to subject their nationals to treatment contrary to the Convention, it would be difficult for the prisoners themselves -- no matter how great their interest in defending their "rights" (and this point will be considered under Article 7
) -- to oppose the conclusion and consequences of such an agreement. But it would then be the duty of the organizations responsible for supervising the proper application of the Convention to remind the belligerents of their obligations. Other factors too will doubtless enter into consideration -- such as pressure of public opinion, pressure by Powers party to the Convention but not involved in the conflict, the fear of the members of the Government in power of being subsequently disavowed or even punished, and court decisions. The correct application of the Convention is not a matter for the belligerents alone; it concerns the whole community of States and nations bound by the Convention. The Geneva legislation goes farther than a simple treaty providing for reciprocal concessions. It
protects a humanitarian heritage which is not, and must not be allowed to be, at the mercy of temporal political interests. The individual is considered in his own right. The State is not the only subject of law, and this step forward by the Geneva Conventions constitutes an important advance in present-day international law.
PARAGRAPH 2. -- DURATION OF SPECIAL AGREEMENTS
This provision did not really seem essential (10).
The present Convention makes express provision concerning its duration in Article 5
. It is impossible for the belligerents to waive the application of the Convention even in an instrument of capitulation.
Should the standard of treatment accorded to prisoners of war have been improved as a result of special agreements, they will continue to have the benefit of those agreements so long as the Convention applies [p.87] to them, or so long as no other agreement has been concluded which would accord them more favourable treatment. But this benefit may only be withdrawn from prisoners of war if the relevant provisions are expressly abrogated in a later agreement. If an agreement concluded for a specific period expires without being replaced by a new agreement, the conventional text will automatically be applicable once more.
It should also be noted that the "contents" (not necessarily the text) of any special agreement concluded pursuant to the present Article must be posted in every prisoner-of-war camp (Article 41, paragraph 1
* (1) [(2) p.78] See on this subject R. MONACO: ' Les
Conventions entre belligérants '. Recueil des Cours de
l'Académie de droit international de La Haye, 1949, II (T.
75), pp. 277-362;
(2) [(1) p.79] See ' Report on the Work of the Conference of
Government Experts, ' p. 259; see also ' Final Record of
the Diplomatic Conference of Geneva of 1949, ' Vol. II-B,
(3) [(1) p.82] In this connection, see Article 111 below;
(4) [(1) p.83] The special agreements concluded between Italy
and the United Kingdom provide a good example of this form
of agreement. They are, so far as we know, the only
agreements of the 1939-1945 war which have been published.
They appeared in Italy under the title: ' Testo delle Note
Verbali che integrano e modificano la Convenzione di
Ginevra del 1929..., ' Rome, 1941 and 1942;
(5) [(1) p.84] See R.-J. WILHELM, op. cit., pp. 16-21;
(6) [(2) p.84] See above p. 79;
(7) [(3) p.84] See ' Memorandum by the Government of the
United Kingdom ' (Document No. 6), Point 9, pp. 5-6;
(8) [(1) p.85] See R.-J. WILHELM, ' Le caractère des droits
accordés à l'individu dans les Conventions de Genève, '
Geneva, 1950, pp. 13 ff.;
(9) [(2) p.85] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, pp. 73-74;
(10) [(1) p.86] It had been introduced in the 1929 Prisoners of
War Convention at the request of Germany, since the
Armistice Agreement of November 1918 (Article 10) had
abrogated the agreements concluded between the
belligerents to supplement the brief stipulations of the
Hague Regulations of 1907 in regard to prisoners of war.
In accordance with Article 83, paragraph 2, of the 1929
Convention, subject to any more favourable measures
contained in an armistice agreement, the agreements
concluded between belligerents must continue to be
applicable. See ' Actes de la Conférence de 1929, '