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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.602] ARTICLE 126
. -- SUPERVISION
[p.603] GENERAL COMMENTS AND HISTORICAL SURVEY
The 1929 Convention, in Article 86
, recognized the rôle of the Protecting Powers in guaranteeing the application of the provisions of the Conventions. It not only embodied that principle, but also provided clauses to ensure its practical application. These provisions were so widely applied during the Second World War that they were accepted without discussion by the 1949 Diplomatic Conference, which strengthened and extended them. The statement of the principle itself ("The present Convention shall be applied with the co-operation and under the scrutiny of the Protecting Powers") was placed among the provisions common to all four Conventions because of its altogether general character. It is contained in Article 8
to which reference has already been made above. On the other hand, the clauses of application concerning the carrying out of such supervision are contained in the present Article. Article 126 should therefore be read in conjunction with Article 8
, of which it is the logical extension.
It should be emphasized that visits to prisoners of war are not the only method of supervising the application of the principle mentioned in Article 8
. Of course, the inspection of places of detention and internment, and interviews with prisoners of war are the best means available to the Protecting Powers for really effective supervision, but it would be illogical to restrict to those activities alone the obligation laid on those Powers to assist in the application of the Convention and subject it to scrutiny, as must be done wherever it is applicable. Thus, the Protecting Power in carrying out each of its tasks under the Convention will, in so far as it is itself a party to the Convention, be under the additional obligation of exercising a degree of supervision based not on the mandate it has received from the Power of origin, but on a higher mandate given to Protecting Powers in general by all of the States party to the Convention. Furthermore, a number of provisions in the Convention provide explicitly for supervision by the
Protecting Power, and the reader is referred to the commentary on them (1).
Nevertheless, the Convention will find application mainly in places of internment and detention. It is therefore essentially by visits to those places that the Protecting Power will be able to fulfill its general task most effectively. It is for that reason that the present Article [p.604] has received the marginal title "Supervision" although the actual principle of supervision must be sought in Article 8
The present Article also contains a new feature: the International Committee of the Red Cross will now act side by side with the Protecting Power.
The International Committee of the Red Cross does not, in fact, exercise and has never exercised real supervision in the legal sense of the term. The humanitarian purposes for which it exists have led it to make every effort to ensure that the victims of war are treated without unnecessary harshness. Acting in the first place on a purely empirical basis, it later successfully urged the adoption of legal rules in this matter. These rules, contained in the Geneva Conventions, represent general standards of humane conduct. However, its activities in behalf of the victims of war are in some ways far beyond the actual supervision of the application of the Conventions. Those activities, which can be termed "factual supervision", are carried out on the Committee's own initiative and in the name of the rights of the human individual.
The 1929 Convention, in assigning duties to the Protecting Powers, also sanctioned what has become the traditional right of the International Committee to take the initiative (3), This enabled the Committee from 1939 onwards to renew and extend the factual supervision it had carried out so successfully during the First World War. It did not take the place of supervision by the Protecting Powers, but merely supplemented it and led to numerous improvements being made in the conditions of prisoners of war during the Second World War. It is almost beyond doubt that the 1929 Convention would not have been applied as it was and that many infringements of it would have occurred if the Protecting Powers had not conscientiously visited the camps from the very beginning and if the International Committee had not once more sent delegates to almost all the belligerent countries. In this connection, however, particular attention should be given to the wording of the present provision: "places of departure, passage and arrival...";
although access to the camps was usually granted to delegates of the International Committee, they sometimes found it very difficult to visit prisoners of war immediately after capture or during transfer, that is to say, at the times when it was more difficult for the Detaining Powers to afford prisoners of war [p.605] all the benefits provided by the Convention. Supervision should also be possible during the period of questioning.
This factual supervision was not given full legal sanction by the Diplomatic Conference of 1949 and no request had been made for such sanction. The International Committee, a private body with strictly humanitarian ends, will not always be suitable or even equipped for exercising in every case complete supervision of the application of the Conventions. Such supervision would go beyond its competence and the tasks assigned to it by the Conventions themselves. The Committee might jeopardize its reputation for independence and neutrality by carrying out tasks which are in fact of a somewhat political nature and thus fall within the purview of the Protecting Power. On the other hand, factual supervision is implied in Article 9/9/
/10 common to the four Conventions, concerning the International Committee's right of initiative, an Article which reproduces Article 88
of the 1929 Convention. Finally, it is almost explicitly recognized in the last paragraph of Article 126: "The delegates of the International Committee
of the Red Cross shall enjoy the same prerogatives". Stated in this form, at once more flexible and less official, supervision is left to the Committee's initiative and may be carried out freely according to circumstances prevailing.
Visits to camps call for a few general comments.
The inspection of places where prisoners of war are detained, at the same time as the distribution of relief, is one of the activities which the International Committee of the Red Cross has undertaken from the very beginning of its existence. It was as long ago as 1864, during the Prusso-Danish War, that the first delegates of the International Committee began to visit prisoner-of-war camps. Since then, such visits have become one of the essential tasks carried out by the Committee during each conflict, which it was often alone in performing. These activities were given legal sanction in the Hague Regulations of 1899, which authorized relief societies to visit the places of internment of prisoners. It was during the First World War that the representatives of the Protecting Powers, given a mandate to that effect by the Powers of origin of the prisoners, were also authorized to inspect camps.
Carried out in parallel, and often by very similar methods, these visits, far from duplicating each other, were complementary. In the use made of the findings, however, appreciable differences very often appeared. The Protecting Powers acted under the mandate given by the Powers of origin, and the reports drawn up by their delegates were communicated only to those Powers. It was then for [p.606] the Power of origin to ask the Protecting Power to request the enemy to cease any malpractice which had been discovered. Supervision by the Protecting Powers was exercised only on behalf of the Powers which had appointed them their agents. The position of the International Committee was different. Its camp visits applied to all the occupants without regard to nationality, solely on the basis of the fact that they were prisoners. The Committee carried out these inspections, not on behalf of a particular Power, but in the name of humanity. Thus the reports made by the delegates after each of their visits were immediately transmitted to
the Power responsible for the place of detention visited, with comments drawing attention to any improvements which might be desirable. Moreover, the International Committee was the only institution able to visit in the same way and at the same time prisoner-of-war camps in almost all the belligerent countries (4), while the Protecting Powers could usually visit the prisoners and internees of only one nationality and in only one country. The Committee thus obtained very full information which enabled it to compare the situation of those detained in the various camps and to make representations, where necessary, with a view to reciprocal treatment.
Under Articles 8
and 126 of the present Convention, the Protecting Powers will in future carry out supervision on behalf of all the States Party to the Convention, and they are required to "co-operate" in the application of the Conventions. They will therefore be able henceforth to make direct to the Detaining Powers any criticism they consider called for; they will intervene on their own initiative, thus assuming an active instead of a passive rôle, similar to that of the International Committee of the Red Cross.
The part played hitherto by the International Committee remains unchanged and is merely confirmed by these provisions. The International Committee, however, will retain the advantage over the Protecting Powers of being able to go to some degree automatically into all camps and places of detention, whatever the nationality of the inmates and in the national or occupied territories of all the belligerents.
[p.607] PARAGRAPH 1. -- VISITS. INTERVIEWS WITHOUT WITNESSES
1. ' First sentence. -- Visits to places of internment,
imprisonment and labour '
The Article begins with a general rule: all places without exception where prisoners of war are shall be open to inspection. This rule is based on the second paragraph of Article 86
of the 1929 Convention.
Those acting as inspectors will be representatives or delegates of the Protecting Powers or of the International Committee of the Red Cross. The fact that the whole Article speaks of Protecting Powers and only at the end mentions that the International Committee's delegates will enjoy the same prerogatives does not give the representatives of the Protecting Power any priority.
The distinction made here between representatives and delegates of the Protecting Powers is explained by Article 8
. The representatives will be members of the diplomatic or consular staff of those Powers. As they will already be serving in the country, they will need no special approval in order to carry out the task entrusted to them by their Government in fulfilment of its protective mission. The delegates will be persons recruited by the Protecting Power sometimes in the country itself, outside the diplomatic corps and among its own nationals or even nationals of another neutral country. Those delegates, as stated in Article 8
, will be subject to the approval of the Power with which they are to carry out their duties, as will the delegates of the International Committee of the Red Cross to whom reference will be made below (5).
The task of inspecting places of internment requires wide general knowledge, experience, tact and a great deal of discretion. It will be necessary in the first place to have a detailed knowledge of the Convention whose application is to be supervised and of the laws, decrees, etc., issued by the Detaining Power and applicable to prisoners of war. Generally speaking, the choice will readily fall on a doctor, since he is usually better able to discern deficiencies from which prisoners of war may be suffering than persons without medical experience. At the very least, a doctor will be attached to a delegation if it consists of several inspectors or will make his visits of inspection alternately with another representative. Furthermore, these inspectors will need to have a good knowledge of the language of the [p.608] detaining country and that of the prisoners of war. Of course, the next sentence allows for recourse to an interpreter; but this is a step which should only be taken in exceptional cases, since it is only by
expressing direct in their own language and without witnesses what they wish to say that prisoners of war will be able to make their needs known clearly and freely.
It is not to be expected that camp inspectors should have constantly in their minds a complete list of the many obligations laid on the Detaining Power with regard to prisoners of war. A method is therefore recommended to which several Protecting Powers and the International Committee of the Red Cross resorted during the Second World War, i.e. the drafting of a handbook for delegates. This document listed the various tasks of a delegate, informed him of his rights and duties and, in a chapter devoted to camp visits, gave a complete list in a rational order of the various items which must be looked into and the questions to which a reply must be given (6). A specimen report on a camp visit was attached. These handbooks were of great service and enabled delegates to make thorough and complete inspections in the shortest possible time.
The words "shall have permission" indicate that the inspectors must request permission to visit the place of detention or internment they have chosen, and that their request must be granted. Only imperative military necessity would allow of such permission being postponed (but never refused), as will be seen in connection with paragraph 2.
The Detaining Powers are therefore obliged to grant permission. They are also obliged to facilitate "to the greatest extent possible" the inspection of places of internment or detention under the terms of Article 8, paragraph 2
. If need be, they will arrange for the transport of delegates, give them the necessary visas and passes, furnish guides, an escort, interpreters, etc.
No restriction is imposed in regard to places open to inspection. The agents of the Protecting Powers and of the International Committee must be able to reach all prisoners of war, whether in groups or as isolated individuals, in the territory of the Detaining Power or in occupied territory.
As already noted, this provision differs from the 1929 text in that it mentions three types of place open to inspection: places of internment, imprisonment and labour. This list, of course, does not add [p.609] anything new to the rule formulated at the beginning of the paragraph. It is, however, useful since it mentions expressly the three types of place in which the Convention will find its widest application, and where, as a result, wider supervision must be exercised. Furthermore, it is intended to prevent the Detaining Power from restricting visits to the main camp only.
Places of imprisonment will include detention quarters situated in the camps in which prisoners of war serve disciplinary sentences, as well as penitentiaries where prisoners serve sentences awarded by courts. In this connection, attention should be drawn to Article 87, paragraphs 3 and 4
, Article 88
, Article 98
, and Article 108
, which set forth the essential safeguards to be afforded to prisoners of war undergoing confinement.
Places of work will mean in most cases those occupied by labour detachments, which are the subject of Article 56
; that Article makes express provision, in paragraph 3, for visits by delegates of the Protecting Powers and the International Committee of the Red Cross.
In all places where there are prisoners of war, all the premises which they use either permanently or temporarily will be visited: dormitories, canteens, sanitary installations, infirmaries, etc. The same will apply to premises not used directly by them but devoted to their needs, such as warehouses and other storage places. Indeed, the delegates have the right to check on the food supply of prisoners of war and particularly the distribution of relief (Article 73, paragraph 3
). The regulations relating to collective relief which are annexed to the Convention (Annex III) illustrate the importance of such supervision.
2. ' Second sentence. -- Interviews without witnesses '
Interviews without witnesses with prisoners of war were authorized for the first time by the 1929 Convention (Article 86
), but in the form of a recommendation. The restriction was abolished in 1949 (7). The importance of such interviews for obtaining a knowledge of actual conditions needs no emphasis. It is a striking fact that during the First World War it was in the very countries where the application of the Convention left most to be desired that most obstacles were put in the way of interviews without witnesses. In the very first revised [p.610] drafts, this provision was therefore given the character of a absolute right conferred on the agents of the Protecting Powers and the International Committee, and the Diplomatic Conference accepted it in its new form without any discussion. Henceforth, therefore, the authorities responsible for prisoners of war are obliged to allow the inspecting delegates or representatives to interview any prisoner of war without witnesses and for the necessary length of time. The provision is
addressed particularly to camp commanders, prison governors and certain military authorities in occupied territories who, in the past and often on their own initiative, have shown the greatest opposition to such interviews.
It has already been stated how desirable it is that delegates should know the language of the prisoners of war they are visiting; recourse to interpreters, although authorized here, must therefore be avoided as much as possible. If it cannot be avoided, the Detaining Power must, on request, supply the delegates with the necessary interpreters. This service is, indeed, one of the facilities which the Detaining Power is bound to give to delegates under Article 8, paragraph 2
. It would be preferable, however, for the interpreters themselves to form part of the staff of the Protecting Power or the International Committee of the Red Cross in order to avoid any suspicion of tendentious interpreting. It will also be possible to choose them from among the prisoners themselves.
PARAGRAPH 2. -- SELECTION OF PLACES TO BE VISITED.
RESERVATION FOR REASONS OF MILITARY NECESSITY
1. ' First sentence. -- Selection of places to be visited '
The selection of places to be visited is left entirely to the judgment of the Protecting Powers and the International Committee of the Red Cross. It will depend on many circumstances: complaints received, special requests from country of origin, date of the previous inspection, etc. Visits may also take place at the request of one or more prisoners of war.
Once visits have been authorized to places where prisoners of war are, no obstacle must be placed in their way. The frequency and duration of visits are left to the judgment of those who make them. Experience has shown that in the case of internment camps, two or three visits per year can generally be considered as a minimum; [p.611] visits should be more frequent if closer inspection becomes necessary because of unsatisfactory conditions in a camp (8).
2. ' Second sentence. -- Reservation for reasons of military
This reservation, which did not form part of the corresponding text of 1929, was proposed by the International Committee of the Red Cross. The Committee considered, indeed, that it was impossible to increase the number and activities of the delegates of the Protecting Powers and International Committee and to extend the scope of their work and powers without giving the Detaining Powers the countervailing permission to restrict such activities temporarily if military necessity so demanded. Otherwise, those Powers would sometimes have been put in a position where they were faced with the choice of either violating the Conventions or harming their own military position. Here as elsewhere, humanitarian principles must take into account actual facts if they are to be applicable. This clause was accepted without discussion by the 1949 Diplomatic Conference.
If they are to justify the prohibition of visits, military necessities must be imperative. Whether they are or not is a matter for the Detaining Power alone to decide and the light of supervision of the Protecting Powers is restricted by this exercise of sovereignty. Such a decision must not be lightly taken, however, and any prohibition of visits must be an exceptional measure.
Furthermore, the prohibition will be temporary. The Protecting Powers and the International Committee will have the right to bring the temporary nature of the prohibition to the notice of the Detaining Power and, after a certain length of time, to request it to raise all restrictions. Moreover, the Protecting Power will be able to check afterwards whether the prohibition of visits has been used by the Detaining Power to violate the Convention. In any case, it is not in the interests of the Detaining Power to misuse this reservation, because it would very soon be suspected of deliberately violating the Convention by evading supervision by qualified witnesses.
[p.612] PARAGRAPH 3. -- VISITS BY COMPATRIOTS
Article 86, paragraph 3
, of the 1929 Convention already provided that persons of the same nationality as prisoners of war would be allowed to take part in visits to camps. During the Second World War, this possibility was rarely utilized; in view of its obvious humanitarian Character, however, the provision was nevertheless repeated in the present Convention.
Article 125 above, in paragraph 1
, already authorizes representatives of religious organizations and relief societies to visit prisoners of war. The term "compatriot" used here includes both relatives and delegates of the national relief societies. Furthermore, the Protecting Powers themselves or the International Committee of the Red Cross may consider it expedient to have their delegates accompanied by some compatriots of the persons visited, either for humanitarian motives or to allay certain fears, or again to check certain matters.
In accordance with the Convention, such visits must nevertheless be the subject of a prior agreement between those concerned, i.e. the Detaining Power on the one hand, and the Power of origin of the prisoners of war, on the other. The latter Power, in particular, could obviously not permit its citizens to go into enemy territory without its authorization.
PARAGRAPH 4. -- ACTIVITIES OF DELEGATES OF THE
INTERNATIONAL COMMITTEE OF THE RED CROSS
The International Committee's delegates had not been able to carry out their activities before except under special agreements concluded in advance with each of the Powers concerned. Now, however, those activities become to some degree automatic.
The representatives and delegates of the Protecting Powers and those of the International Committee are henceforth placed on a completely equal footing. Their rights and duties are the same if allowance is made for their different spheres of action. This applies not only to camp visits proper but to visits to all places of every kind where prisoners of war may be found, and to interviews held with them without witnesses.
This task, entrusted to the International Committee, must not, of course, be taken as restricting its other activities in behalf of prisoners of war. Article 9
is definite on this matter. The Committee [p.613] remains free to take any humanitarian initiative it may consider necessary in regard to camp visits or outside camps, whereas the Protecting Powers, even in supervising the Convention, will always be restricted by the provisions of the Conventions themselves ad, in a general way, by the contract they will have concluded with the mandator Power.
The approval which must be given to the appointment of delegates of the International Committee, and which the Committee has in any case always requested, places them in the same position as the delegates of the Protecting Powers. It is normal that the Party to the conflict which is going to welcome them in its own territory or in territory occupied by it, should receive certain guarantees (9).
This agreement will be asked for once only for every delegate. It will not therefore have to be obtained anew for every single journey (10).
* (1) [(1) p.603] The commentary on Article 8 (p. 98, note 2)
contains a full list of the provisions of the Convention
which require action by the Protecting Power;
(2) [(1) p.604] It should be recalled that the titles in the
margin, used in this commentary as titles for the
Articles, have no legal force. They were not adopted by
the Conference but drafted afterwards by the secretariat;
(3) [(2) p.604] See Article 88 of the 1929 Convention, p. 686
(4) [(1) p.606] During the Second World War, the delegates of
the International Committee paid more than 11,000 visits
to prisoner-of-war and civilian internee camps;
(5) [(1) p.607] See below, pp. 612-613;
(6) [(1) p.608] A list of this description is to be found in
the ' Report of the International Committee of the Red
Cross on its activities during the Second World War ',
Vol. I, p. 233;
(7) [(1) p.609] See ' Report on the Work of the Conference of
Government Experts ', p. 264;
(8) [(1) p.611] Article 86 of the 1929 Convention also
provided that the military authorities responsible for
places of internment should be informed of visits. The
International Committee of the Red Cross, which was
subsequently supported by the 1949 Diplomatic Conference,
was not in favour of this, considering that this principle
might be considered as an essential condition of such
visits or even, as occurred on some occasions, constitute
a means of delaying the visits until they had lost all
value. See ' XVIIth International Red Cross Conference,
Draft Revised or New Conventions for the Protection of War
Victims ', p. 133;
(9) [(1) p.613] Such guarantees are also requested from the
delegates of relief societies authorized under Article 125
to enter its territory;
(10) [(2) p.613] See ' Report on the Work of the Conference of
Government Experts, ' p. 266;