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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
-- NON-RENUNCIATION OF RIGHTS
[p.73] 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 6
on the duration of application, and Article 7
prohibiting agreements in derogation of the Convention.
1. ' Renunciation of protection under the Convention '
The series of Conferences which prepared the revision of the Conventions of 1929 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). Mention has already been made of the example of an occupied country concluding an agreement with its enemy, the terms of which may adversely affect its nationals in enemy hands. Article 7
should now obviate that danger.
The examples which the Diplomatic Conference had in mind were for the most part connected with prisoners of war. Precedents were obviously lacking in the case of protected civilians. There was one fairly striking example however: it concerned the application of the Regulations annexed to the Fourth Hague Convention of 1907 in territories occupied by the Allied Powers after the capitulation of Germany in May 1945. The Allied Powers claimed that the Regulations were not applicable owing to the fact that the German State had disappeared completely. This point of view has been discussed on numerous occasions. Without adopting any definite position in this discussion it is pointed out that a question of that kind could not arise in connection with the Geneva Conventions of 1949, as they provide certain categories of people with a status which does not depend on any political events which may occur. The permanence of the application of the Convention is increased still further by the fact that the persons who benefit by it cannot renounce its benefits.
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 such persons may be subjected to pressure in order [p.74] to influence their choice. The pressure may vary in its intensity and be more or less open, but it nevertheless constitutes a violation of their moral and sometimes even of their physical integrity. The inevitable result of such practices is to expose the protected persons to disadvantages of two kinds and sometimes of a serious nature -- first, subjection to pressure, and secondly, as already indicated, the partial or total renunciation of the protection accorded to them by the Convention.
To meet those dangers and to meet a general desire, the International Committee of the Red Cross included in its draft Conventions an Article stipulating that "protected persons may in no circumstances be induced by coercion or by any other forced means, to renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be".
In their proposal, the International Committee emphasized what appeared to them to be the greatest risk -- namely, the pressure exerted to obtain renunciation. The text might, however, have been interpreted as implying that protected persons could renounce the benefits of the Convention, provided that their choice was made completely freely and without any pressure. The Diplomatic Conference, like the XVIIth International Red Cross Conference, wished to avoid that interpretation and accordingly adopted the more categorical wording of the present Article 8, thus intimating to States party to the Convention that they could not release themselves from their obligations towards protected persons, even if the latter showed expressly and of their own free will that that was what they desired.
A. ' Reasons for absolute prohibition. ' -- Such an absolute rule was not agreed to without opposition. Special situations in which prisoners of war might find themselves were quoted. 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 liberty.
In the end, however, the Diplomatic Conference unanimously adopted the present wording -- mainly for the reasons given above (2) [p.75] that is to say, the danger of allowing the persons concerned the choice of renouncing their rights, and the difficulty, or even impossibility, of proving the existence of duress or pressure.
Among the reasons put forward in favour of the present Article 8, two points call for notice.
The Conference did not overlook the fact that the absolute character of the rule as drafted might entail for some persons what one delegate termed "harsh" consequences. 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 breach which others in much greater numbers might have cause to regret? Faced with this dilemma, the Conference felt that full application of the Convention would be the lesser evil, if it is permissible to use such an expression in describing the effects of a humanitarian Convention. When considering the disadvantages which the application of the absolute principle of Article 8 would appear to entail for certain protected persons, the underlying reasons for such a rule should always be borne in mind.
The second point is this. In adopting the above principle the Conference accepted the view that in wartime protected persons 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 under the Convention. "Liberty" in such a connection would be a misnomer.
B. ' The wishes of protected persons in the application of the Conventions. ' -- The Conventions do not, it is true, completely ignore the wishes of protected persons. In the Civilians Convention several clauses indicate that the wishes of individuals are to be taken into consideration. Article 35
, for example, invites the Powers to authorize protected persons to leave the territory if they so desire. In the same way the participation of internees in religious ceremonies and in certain artistic or intellectual pursuits depends entirely on their own wishes. In general, however, it can be said that the authors of the Convention have endeavoured to ensure standards of treatment which depend as little as possible, for their application, on the wishes of those concerned. Provision has only been made for their wishes [p.76] to be taken into account on points of detail, so as to allow of a more flexible application of the Convention.
It should further be noted that this prohibition by the authors of the Conventions of 1949 of any renunciation of rights was a logical consequence of their desire to lay down rules representing the minimum required for the preservation of human dignity. Rules of this kind were ' in the common interest ' and could be renounced by the beneficiaries only under the pressure of external circumstances, against which it was the very purpose of the Convention to protect them. In this connection the example has been quoted of certain social legislation which applies to the persons concerned independently of their wishes (3). 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 (4).
Nor does Article 8 express an entirely novel principle as compared with the former 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 "protected persons" 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 lay down the wishes of those victims as a condition of application, 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.
Should it therefore be concluded that such a conception reflects greater interest in the rights and duties of States than in the position of the individual under the legal system set up by the Convention? That would be a completely erroneous conclusion, as will be shown.
2. ' Nature of the rights conferred upon protected persons '
A. ' The basic concepts. ' -- In the comments on Article 7
the meaning to be attached to the expression "rights which the Convention confers [p.77] 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 expression recurs in the same form in Article 8, except for the word "confer" which is here replaced by "secure", a still stronger word.
In the development of international law the Geneva Convention occupies a prominent place, since with the exception of the provisions of the Congress of Vienna relating to the Slave Trade, which were themselves still strongly coloured by political aspirations, it is the first time that a set of international regulations has been devoted not to State interests, but solely to the protection of the individual (5).
The initiators of the 1864 and subsequent Conventions wished to safeguard the dignity of the human person, in the profound conviction that imprescriptible and inviolable rights are attached to it even when hostilities are at their height.
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 7
and 8) that the existence of rights conferred on protected persons was affirmed.
The affirmation is explicit. Faced with a proposal to replace the term "confers upon them" in Article 7
by the phrase "stipulates on their behalf", thus implying that the rights in question represented for those concerned more of an ' indirect ' benefit resulting from the attitude prescribed to the States, the Diplomatic Conference decided to maintain the words "confers upon them" which figured in the draft prepared by the International Committee of the Red Cross (6).
In selecting this term the International Committee, doubtless under the influence of the theoretical trends which also resulted in the Universal Declaration of Human Rights, had been led to define in concrete terms a concept which was implicit in the earlier Conventions. It had at the same time, however, complied with the unanimous recommendation of the Red Cross Societies, meeting in conference in Geneva in 1946, to confer upon the rights recognized [p.78] by the Conventions "a personal and intangible character allowing" the beneficiaries "to claim them irrespective of the attitude adopted by their home country" (7).
B. ' Practical aspect of the rights. ' -- As already seen in connection with Article 7
, "rights conferred by the Convention" should be taken to mean the whole system of rules under the Convention. The subject will not be discussed again here, and readers are referred to the explanations given above.
On the other hand, the question arises of whether the fact of considering those rules as "rights conferred on protected persons" corresponds to an intrinsic reality. From the practical standpoint, indeed, and no longer merely in theory, to assert that a person has a right is to say that he possesses ways and means of having that right respected, and that 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
) and of 1929 (Articles 28
-30) lay 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 146
to 148, 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 Convention, which is tantamount to saying breaches of the rights of the persons protected.
There has been progress too in the means open to such persons for the defence of their rights. The role of Protecting Powers has now been defined, and extended to all four Conventions (Article 9
). It is through the Protecting Power that protected persons will be able most readily to obtain the intervention in their behalf of their state of origin. Provision has been made for substitutes for the Protecting Power. The International Committee of the Red Cross, moreover, enjoys prerogatives under the Convention which will enable it to act in the interests of protected persons (Articles 10
A precisely worded provision, Article 30
, expressly provides for the possibility of protected persons appealing to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross Society of the country in which they are, or to any organization which may be able to assist them. A protected person does [p.79] not, therefore, merely have rights; he is also provided with the means of ensuring that they are respected.
So far this commentary has only dealt with the question of safeguarding rights against violations committed by the belligerents in whose hands the persons concerned are. What, then, is the position when the violations are the consequence of an agreement concluded between that belligerent and the State of origin of the protected persons? Would it not be possible for the State of origin to be held responsible at a later date and prosecuted by the protected persons 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, effective, or automatic as those of national legislations. Nevertheless, Article 8 is of the greatest assistance to all protected persons. It allows them to claim the protection of the Convention, not as a favour, but as a right, and in case of violation, it enables them to employ any procedure available, however rudimentary, to demand respect for the Convention's terms. Hence the importance of the dissemination of the Convention in accordance with Article 47
, with special reference to the individual character of the rights which the Convention confers.
C. ' Obligation on persons protected. ' -- One last question remains to be considered. Rights entail obligations. With reference to the individual, under Article 8, the rules of the Conventions, or certain of them, can also be considered as obligations directly incumbent on the persons protected. It is an indisputable fact that certain obligations, such as the respect due to the wounded and sick under Article 16
, are also laid upon persons who can claim protection under the Convention. For example, a protected person who robbed the wounded or dead would be liable to the punishment prescribed for such offences under the law of his country or that of the enemy, in partial application of the Convention.
It is in connection with Article 8 that the question arises, since that Article appears to take the form of an obligation laid on the persons protected, stating that they "may in no circumstances renounce...." It was for that reason that the International Committee of the Red Cross pointed out (in their "Remarks and Proposals" submitted to the Diplomatic Conference) that the general effect of the Conventions was to impose obligations on the States [p.80] which were parties to the Conventions rather than on individuals and proposed to draft Article 8 in that sense.
The Diplomatic Conference preferred to keep the present wording. Various delegates pointed out that even in that form Article 7
was addressed first and foremost to the contracting States and meant that ' for such States ' a declaration by protected persons concerning the changing of their status could have no legal effect (8).
However that may be, Article 8 may be interpreted as implying, if not an obligation, at least a direct indication or even warning to the protected persons. As a corollary to the couching of the rules of the Convention in the form of individual rights in the interest of protected persons, those 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 any derogation, even if they lose by so doing. Here again is a point to which attention should be drawn in a well-planned dissemination of the Geneva Conventions.
Notes: (1) [(1) p.73] 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.74] The Norwegian representative, who stated these
motives the most forcibly, said among 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 they are obtained by duress was not
sufficient in his view; they all 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 shall be deemed completely devoid of
validity. (See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, pp. 17 and 18.);
(3) [(1) p.76] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B. p. 18;
(4) [(2) p.76] Article 27 of the Swiss Civil Code lays down
that "No one may renounce, even in part, the exercise or
enjoyment of his rights";
(5) [(1) p.77] See Max HUBER: ' The Red Cross, Principles and
Problems, ' 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;
(6) [(2) p.77] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, p. 76;
(7) [(1) p.78] See ' 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. 71;
(8) [(1) p.80] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, p. 56;