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Convention (III) relative to the Treatment of Prisoners of War. 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 prisoners of war 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.
1. ' Renunciation of protection under the Convention '
The series of Conferences which prepared the revision of the 1929 Convention 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 (through occupation, ' debellatio, ' a 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 the hands of the latter. Article 6
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 [p.88] 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, we should also consider the situation of nationals of a State which, as a result of the circumstances of war, ceases to exist legally, whether for the time being or definitively. In this case, the Detaining Power might be even more strongly tempted to modify the status of prisoners under the Convention if they were agreeable, having no partner with whom such modifications might be discussed. This might apply in the case of the transformation of prisoners of war into civilian workers (2). Together, Articles 6
and 7 effectively forbid any transformation of the status of prisoners of war, either by governmental action or in accordance with the prisoner's own wishes.
One special case to which Article 7 applies is that of enlistment in the armed forces of the Detaining Power (3). Although this particular problem did not often arise during the Second World War, there were a number of cases during the 1914-1918 conflict, and it might occur at some future time. One must also consider applications to take the nationality of the occupying country; if such requests are granted, the applicants lose all entitlement to benefit by the Conventions, as they can no longer be considered as enemy nationals (4). Freedom to change one's nationality is among the rights of man, but in time of war this right carries with it a very real danger. When the Occupying Power gives persons under its control the opportunity to change their nationality, such a step is usually in the interest of that Power. Moreover, experience has proved that the persons concerned may be subjected to pressure in order to influence their choice; the pressure may vary in its intensity and be more or less overt, but it nevertheless constitutes a violation of their
moral and sometimes even of their physical integrity. In any case, change of nationality deprives the person concerned of the protection accorded under the Convention. To meet this danger, and to meet a general desire, the International Committee of the Red Cross included this provision in the drafts; in its proposal, however, the prohibition was applied to the use of pressure to influence the will of the individual. This might have been construed as implying that prisoners of war could renounce the benefits of the Convention, provided that their choice was made [p.89] completely freely and without any pressure. The Diplomatic Conference, like the XVIIth International Red Cross Conference, preferred to avoid that interpretation. Accordingly, it adopted the more categorical wording of the present Article 7, which does not mention constraint, thus intimating to the States party to the Conventions that they could not be released from their obligations towards prisoners of war, even if the latter of their own free will expressed a desire to that
A. ' Reasons for absolute prohibition. ' -- Such an absolute rule was not agreed to without opposition. Reference has already been made above 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 deny him the essential attribute of the individual, namely liberty.
In the end, however, the Diplomatic Conference unanimously adopted the absolute prohibition mainly because it is difficult, if not impossible, to prove the existence of duress or pressure (5).
Two further points call for notice:
In the first place, the Conference did not overlook the fact that the rule 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 prisoners in the hands 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.
[p.90] B. ' The wishes of the prisoners of war in the application of the Convention. ' -- A number of provisions in the Third Convention nevertheless take into account the wishes of prisoners of war. They include those 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 the 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 prisoners would lead to a more flexible application of the Convention and not to the partial or total loss of any rights.
Nor does Article 7 express an entirely novel principle as compared with the earlier Geneva Conventions. As in the case of the provision on special agreements, it embodies the reasonable interpretation implicit in those Conventions. States which are party to them are required to apply them when certain objective conditions exist; but there is nothing in the texts which would justify those States in taking refuge behind the will of the "prisoners of war" to withhold application either in entirety or in part. The authors of those solemn instruments were prompted by a keen desire to provide war victims with complete protection. Had they wanted to make concessions to the wishes of those victims, they would not have failed to provide safeguards and forms of procedure permitting those wishes to be expressed freely, knowing as they did how great the possibilities of misrepresentation were in wartime. They did not do so, however (6).
2. ' Nature of the rights conferred upon prisoners of war '
A. ' The basic concepts. ' -- In the comments on Article 6
, the meaning to be attached to the expression "rights which the Convention confers on prisoners of war" in relation to the Contracting States was indicated. It is now necessary to define its meaning in relation to the individual, since the expression recurs in the same form in Article 7 (7).
The initiators of the Geneva Conventions wished to safeguard the dignity of the human person, in the profound conviction that imprescriptible [p.91] and inviolable rights are attached to it even when hostilities are at their height (8).
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 Conventions of 1949 (in particular in Articles 6
and 7) that the existence of "rights" conferred on prisoners of war was affirmed. In this connection, we would refer to 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" (9).
B. ' Practical aspect of the rights. ' -- One might feel that there is a risk that these rights which are "secured" to prisoners of war might remain merely theoretical unless any violation thereof entails a penalty.
In that respect, a study of the Geneva Conventions from 1864 to 1949 shows a very clear evolution. Let us take the case of penalties. The Convention of 1864 contains nothing on the subject. The Conventions of 1906 (Articles 27
-28) and of 1929 (Articles 28
-30) laid 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 129
to 131, with the requisite precision, the obligation incumbent on all States party to the Conventions, belligerent or neutral, to seek out those who are guilty and to punish breaches of the Conventions. These Conventions also define the rôle of the Protecting Power (Article 8
), and recognize the right of the International Committee of the Red Cross to undertake activities in behalf of prisoners of war (Articles 9
recognizes the "unrestricted right" of prisoners of war to apply to the representatives of the Protecting Powers. A prisoner [p.92] does not, therefore, merely have rights; he is also provided with the means of ensuring that they are respected.
So far this commentary has dealt only with the relationship between prisoners of war and the belligerents 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 prisoners of war? Would it not be possible for the State of origin to be prosecuted by the prisoners of war who have suffered prejudice, 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, prisoners of war 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 deviation from that status (10).
* (1) [(2) p.87] See, in particular, ' Report on the Work of the
Preliminary Conference of National Red Cross Societies, '
(2) [(1) p.88] See above, p. 85;
(3) [(2) p.88] See R.-J. WILHELM, ' Can the status of
prisoners of war be altered? ' pp. 21-22;
(4) [(3) p. 88] See R.-J. WILHELM, ' Le caractère des droits
accordés à l'individu dans les Conventions de Genève, ' p.
(5) [(1) p.89] 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 this 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.
(6) [(1) p.90] In this connection the example was quoted of
certain social legislation which applies to the persons
concerned independently of their wishes. 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
person, some of which, considered as being in the common
interest, can in no case be waived by the individuals
concerned. For instance, Article 27 of the Swiss Civil
Code lays down that "No one may renounce, even in part,
the exercise or enjoyment of his rights";
(7) [(2) p.90] Here the phrase "the rights which it confers"
used in Article 6, has been replaced by "the rights
secured" which is much stronger; in the French text,
similarly, "accorde" has been replaced by "assure";
(8) [(1) p.91] See Max HUBER, ' The Red Cross, Principles and
Problems, ' Lausanne, 1941, pp. 11 and 12, and Jean S.
PICTET, ' La Croix-Rouge et les Conventions de Genève, '
lectures delivered before the Academy of International Law
at The Hague, 1950, p. 30;
(9) [(2) p.91] See ' Report on the Work of the Preliminary
Conference of National Red Cross Societies, ' p. 71;
(10) [(1) p.92] At the time of the repatriation of prisoners of
war in Korea, in 1953, Article 7 was frequently invoked in
conjunction with Article 118. See below, the commentary on