Treaties, States Parties and Commentaries
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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- PROCEDURE
[p.260] PARAGRAPH 1. -- RIGHT OF APPEAL
Article 43 supplements Articles 41
; it lays down a procedure which is designed to ensure that Parties to the conflict which resort to measures of internment or assigned residence do not go beyond the limits permitted under those two Articles.
1. ' First sentence -- Method '
The safeguard provided here is an a posteriori arrangement. It has been seen that the Convention leaves a great deal to the discretion of the State of residence in the matter of the original internment or placing in assigned residence. On the other hand decisions to take such measures may be reconsidered after a very short time.
The system adopted is modelled on the provision in Article 35, paragraph 2
, concerning the question of permission to leave the country. The State may act either through the courts or through administrative channels. The existence of these alternatives provides sufficient flexibility to take into account the usage in different States. The Article lays down that where the decision is an administrative one, it must be made not by one official but by an administrative board offering the necessary guarantees of independence and impartiality.
Decisions to intern people or place them in assigned residence are not reconsidered automatically, but only at the request of the person concerned. Once an application has been put forward, the court or administrative board must examine it at the earliest possible moment.
The essential point is that protected persons should be absolutely free to make their appeals and that the authorities should examine them with absolute objectivity and impartiality. They must never forget [p.261] that the Convention describes internment and placing in assigned residence as exceptionally severe measures which may be applied only if they are absolutely necessary for the security of the State. An appeal court or board which decided that a decision to place persons in internment or assigned residence was inspired by other considerations than those of security would be bound to cancel them.
In view of the similarity between the problems considered in this Article (internment and assigned residence) and in Article 35, paragraph 2
(applications to leave), it will be possible to refer them to a single court or administrative board.
2. ' Second sentence. -- Periodical reconsideration '
The second sentence contains an additional safeguard for the persons who are interned or placed in assigned residence when their appeals have been rejected. The court or administrative board mentioned in the preceding sentence must reconsider their cases periodically, and at least twice a year, with a view to favourably amending the initial decision if circumstances permit.
Unlike the procedure for the initial appeal, which only takes place at the request of the person concerned, these periodical reconsiderations will be automatic once a protected person has made his first application to the responsible authority (1).
The object of the provision is clear. If a case is examined periodically and at least twice a year, the responsible authorities will be bound to take into account the progress of events -- which is often rapid -- and changes as a result of which it may be found that the continuing internment or assigned residence of the person concerned are no longer justified.
The procedure provided for in the Convention is a minimum. It will be an advantage, therefore, if States Party to the Convention afford better safeguards (examination of cases at more frequent intervals, or the setting up of a higher appeal court). The main point is that no protected person should be kept in assigned residence or in an internment camp for a longer time than the security of the Detaining State demands. This point is also emphasized in Article 132
which should be compared with the present provision; that Article lays down the rule that "each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist".
[p.262] PARAGRAPH 2. -- INTERVENTION BY THE PROTECTING POWER
This provision lays down an important rule (2) -- namely that the Detaining Power is obliged to give the Protecting Power, as rapidly as possible, the names of protected persons who are interned, placed in assigned residence or released. The Detaining Power is under the same obligation in respect of the decisions made by the courts or administrative boards concerning appeals.
The home authorities will thus, through the good offices of the Protecting Power, be able to form an exact picture of the position of the majority of their nationals who have remained in the territory of the adverse Party and will be able to inform their families. These measures provide an effective safeguard against arbitrary action on the part of the Detaining Power.
Unlike Article 35, paragraph 3
, which only requires notification to be made on request, this provision lays down that names and decisions must be communicated without any request being made.
The obligation to notify such cases is, however, subject to an important reservation, which makes allowance for the position of certain people who might wish their identity and address to remain unknown to the authorities of their country; protected persons may therefore object to information being communicated to the Protecting Power when they consider that such a communication might entail dangerous consequences for themselves or their families (3).
Notes: (1) [(1) p.261] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 826;
(2) [(1) p.262] See also Article 35, p. 233;
(3) [(2) p.262] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, p. 577, and Article 35, p. 238;