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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
-- SPECIAL AGREEMENTS
[p.65] GENERAL BACKGROUND
War is accompanied by the breaking off of diplomatic relations between the belligerents. On the other hand, 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). They are concerned in particular with the treatment which the nationals of each of the Parties are to receive when in enemy hands. In many cases agreements of this nature were concluded between the belligerents before the Geneva Conventions relating to prisoners of war and civilians existed. A great many agreements concerning prisoners of war were, for example, concluded between the belligerents during the First World War. It was on those agreements that the provisions of the 1929 Prisoners of War Convention were very largely based.
It was the same in the case of civilians. On the proposal of the International Committee of the Red Cross the majority of the belligerents in the Second World War agreed, on a basis of reciprocity, that civilians of enemy nationality interned in their territory would be treated in accordance with the provisions of the 1929 Prisoners of War Convention with certain adaptations made necessary by their civilian status. As is known, the present Convention follows the Third (Prisoners of War) Convention very closely so far as the treatment of internees is concerned. On the other hand, the International Committee of the Red Cross was unsuccessful in its efforts to have the provisions o the "Tokyo" Draft applied, by mutual agreement, to occupied territories.
Apart from these agreements which preceded and, as it were, prepared the way for the Third and Fourth Conventions, there is no doubt at all that the position of civilians under the present Convention can be improved by means of special agreements between the belligerents. Certain Articles of the Convention make express provision for their conclusion.
The provision we are studying already existed in a slightly different form in the 1929 Prisoners of War Convention. It was introduced as a [p.66] matter of course into the new Convention drawn up in 1949 for the protection of civilians; it also appears in the other three Conventions.
PARAGRAPH 1. -- NATURE, FORM AND LIMITATION
OF SPECIAL AGREEMENTS
1. ' First sentence: Nature and form of special agreements '
A preliminary indication of the nature of the 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 11, para. 1
); (b) Establishment of hospital and safety zones and localities (Article
); (c) Establishment of neutralized zones (Article 15
); (d) Evacuation of besieged areas (Article 17
); (e) Exchange and repatriation of enemy nationals (Article 36
); (f) Relief shipments for internees (Article 108
); (g) Distribution of collective relief to internees (Article 109
); (h) Release, repatriation, return to places of residence or accommodation
in a neutral country of internees during hostilities (Article 132
); (i) Search for dispersed internees (Article 133
); (j) Fixing the procedure for enquiries instituted at the request of one
of the Parties in cases of alleged violation of the Convention
The above list, which appears in the Convention, must be regarded as having been given mainly as an indication; for there are other Articles in the Convention which refer to agreements between the belligerents. Article 22
lays down that unless there is an agreement to the contrary, medical aircraft are forbidden to fly over enemy territory. Article 23
implies the conclusion of an agreement between the Parties concerned. According to Article 83
, on the marking of internment camps, the Powers concerned may agree upon a method of marking other than that laid down in the Convention. Article 135
makes a reservation in regard to any agreements concluded between the belligerents in connection with the exchange and repatriation of their nationals. Article 143
envisages the possibility of fellow-countrymen of the internees taking part in visits to internment camps by special agreement.
[p.67] This list shows at once that the term "agreements" is used to denote a wide variety of arrangements. Sometimes it is a matter of local arrangements of a purely temporary nature (evacuation), sometimes of actual regulations (distribution of relief consignments), sometimes of a quasi-political agreement (substitute for the Protecting Power, investigations).
It will be readily realized that the position of civilians can be much improved by special agreements concluded between the belligerents in cases other than those provided for in the Convention itself. The Convention represents a minimum which many States will doubtless wish to exceed whenever they can. Numerous opportunities will, in particular, occur in connection with the material situation of the protected persons. It is conceivable, for example, that States may conclude special agreements, whereby nationals of the other State who are in their hands are free to dispose of their property. The position of civilian medical personnel, doctors in particular, should also be settled in detail.
Special agreements will be concerned above all with the position of protected persons who are in the actual territory of Parties to the conflict, because in such cases the mutual interest of the States concerned will generally be involved. They will, on the other hand, be harder to conclude in the case of occupied territories. Two Powers at war are seldom both in occupation of a portion of each other's territory. Occupation is generally what might be called "a one-way operation". The factor of mutual advantage, on which special agreements are often based, is therefore less important in the case of a regime of occupation.
The term "special agreements" should be understood in a very broad sense. No limits are placed either on the form they are to take or in regard to the time when they are to be concluded. The only limits set by the Convention concern the subject of the agreements, and are there in the interests of the protected persons.
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 7, there is no need for it to deal exclusively with matters covered by the Fourth Convention. The clauses relating to that Convention 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 protected civilians. It is also possible that an agreement may deal at one and the same time with prisoners of war, medical personnel and civilians.
[p.68] Special agreements would not appear to be 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. In wartime, it is sometimes necessary to take immediate steps to implement agreements under circumstances which make it impracticable to observe the formalities required at other times; such agreements will be 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 evacuation of the wounded or to set up a neutralized zone.
Even when there is no urgency, the absence of formalities is justified by the fact that special agreements are always, in the final analysis, measures taken in application of the Convention. The latter binds the States concerned and it is only natural that measures to apply it should be within the competence of executive bodies. This absence of formality means that agreements may even be made verbally; reciprocal declarations of intention will often be exchanged through a third party (2). 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. Article 14
expressly invites the Protecting Powers and the International Committee to lend their good offices in order to facilitate the institution and recognition of hospital and safety zones.
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 11
. That is why the present Article 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 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 improving the lot of protected persons -- by arranging, for example, for them to be accommodated in hospitals in a neutral country. Furthermore, certain agreements can obviously be concluded [p.69] after the close of hostilities, in particular those which concern the arrangements for the repatriation of protected persons, for their return to their homes or
their resettlement. All such agreements, no matter when they are concluded, are subject to the rules laid down in Article 7.
2. ' Second sentence. -- Prohibited special agreements '
A. ' Agreements in derogation of the Convention. ' -- In the light of experience gained in connection with the 1929 Prisoners of War 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 (3), the ban on work connected with military operations or the safeguards in case of penal or disciplinary sanctions (4). Such measures were represented to those concerned as an advantage, but in the majority of cases involved drawbacks which were sometimes very serious. Disregarding the question of whether such agreements were or were not compatible with the letter and spirit of the 1929 Convention, the International Committee of the Red Cross recommended, when the preliminary work began, that the following words should be added to the provision dealing with special agreements: "special agreements shall in no circumstances reduce the standard of treatment of protected persons". The Committee's proposal was approved by the Conference of Government Experts in 1947 (5), but even then certain
experts opposed it on the ground that it restricted the sovereign power of States to far too great an extent; they also claimed that it would often be very difficult to say whether or not an agreement was in the interests of the protected persons. The same arguments were put forward at the 1949 Diplomatic Conference (6), but the [p.70] Conference voted by a substantial majority in favour of maintaining the safeguard proposed by the International Committee of the Red Cross.
B. ' Scope of the safeguard clause. ' -- The clause as finally drafted goes further than that originally proposed by the International Committee of the Red Cross, largely because of the addition of the words "nor restrict the rights which it confers upon them" -- an important addition which brings out very clearly the real meaning of Article 7.
It will not always be possible to decide at once whether or not a special agreement "adversely affects the situation of protected persons". 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. The criterion "adversely affect the situation" is not, therefore, in itself an adequate safeguard. That is why the second condition is of value.
In what sense should the words "rights conferred by the Convention" be understood? The question is examined here in relation to special agreements between belligerents and not from the point of view of the individual, an aspect that will be studied in connection with Article 8
. Should the words be understood to apply solely to provisions which refer directly to protected persons? By no means. A proposal aimed at prohibiting only those agreements which restricted fundamental rights was rejected by the Diplomatic Conference on the grounds that the Convention laid down a minimum standard of treatment for protected persons and it would be difficult to draw a distinction between rights which were fundamental and those which were not (7). The reference is, therefore, to the whole body of safeguards which the Convention affords to protected persons.
These safeguards follow from the whole of the provisions of the Convention, save perhaps the purely formal clauses contained in the last section.
In the final analysis, each rule of the Convention represents an obligation on the States party to the Convention. The sense of the expression "restrict the rights" then becomes clear: the States may not by special agreement restrict, i.e. derogate from their obligations under the Conventions. On the other hand, nothing prevents them from undertaking further and wider obligations in favour of protected [p.71] persons. Obligations under the Geneva Convention must, in fact, be considered as representing a minimum.
It is thus the criterion of "derogation", rather than that of "adverse effects", which provides the best basis for deciding whether a special agreement is, or is not, in conformity with the Convention. In the majority of cases deterioration in the situation of the persons protected will be an immediate or delayed consequence of derogation.
When the Governments which met in Geneva in 1949 expressly prohibited any agreement in derogation of the Convention, they did so because they were afraid to leave the product of their labours, which had been drafted with such patience under the best possible conditions (i.e. in peacetime), at the mercy of modifications dictated by chance, events or under the pressure of wartime circumstances. They were courageous enough to recognize their own possible future weakness, and to guard against it. In that sense Article 7 is a landmark in the progressive renunciation by States of their sovereign rights in favour of the individual and of a higher juridical order.
C. ' Special problems. ' -- (a) If, as a result of a far-reaching change in conditions, the application of a provision under the Convention entailed serious disadvantages for the persons protected, 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 protected persons to give their opinion; basing their decision, in such contingency, on the rule (inherent in the safeguard clause) of not adversely affecting the situation of protected persons, 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 agree to subject their nationals to treatment which is contrary to the Convention, one essential element in the defence of the rules of the Convention -- intervention by the State of origin of the persons protected -- will be lacking. No matter what part those persons can themselves take in the defence of the "rights" conferred on them by the Convention -- the point will be considered under Article 8
-- they will find difficulty in opposing the conclusion and consequences of such an agreement. In such circumstances the organizations responsible for supervising the regular application of the Convention will have a duty to perform. It will be for them to remind the belligerents of their obligations. Other factors too will [p.72] doubtless enter into consideration -- such as pressure by Powers party to the Convention but not involved in the conflict, pressure of public opinion, the fear 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.
PARAGRAPH 2. -- DURATION OF SPECIAL AGREEMENTS
This provision was not really essential. 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.
of the Fourth Convention makes express provision concerning its duration. It is impossible for the belligerents to waive the application of the Convention even in an instrument of capitulation.
Nevertheless, this provision, which was agreed to without comment or objection by the Diplomatic Conference, will have certain fortunate consequences. Should the standard of treatment accorded to protected persons 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 to them in accordance with the terms of Article 6
. Again, the paragraph contains a valuable indication of the meaning of the Convention. The phrase "except... where more favourable measures have been taken with regard to them by one or other of the Parties to the conflict" confirms what we have already said: the obligations incumbent on the belligerents with regard to protected persons represent a minimum.
Notes: (1) [(1) p.65] See, on this subject, R. MONACO: ' Les
Conventions entre belligérants ' in "Recueil des cours de
l'Académie de droit international de La Haye", 1949, II
(T. 75), p. 277;
(2) [(1) p.68] 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 1919..., ' Rome, 1941 and 1942;
(3) [(1) p.69] Agreements which deprive protected persons of
the services of a Protecting Power are expressly
prohibited in Article 11, paragraph 5, of the Fourth
Convention of 1949 (Article 10, para. 5, in the First,
Second and Third Conventions);
(4) [(2) p.69] See on the subject of these agreements, R.-J.
WILHELM: ' Le caractère des droits accordés à l'individu
dans les Conventions de Genève. Revue internationale de la
Croix-Rouge, ' August 1950;
(5) [(3) p.69] See ' Report on the Work of the Conference of
Government Experts for the Study of the Conventions for
the Protection of War Victims ' (Geneva, April 14-26,
1947), Geneva, 1947, p. 259;
(6) [(4) p.69] See ' Memorandum by the Government of the
United Kingdom ' (Document No. 6), Point 9, pp. 5-6;
(7) [(1) p.70] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, pp. 73 and 74;