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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- SPECIAL AGREEMENTS
[p.46] GENERAL REMARKS AND HISTORICAL BACKGROUND
Although war breaks off diplomatic relations between the belligerents, 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 in the course of a war (1), relating in particular to the treatment which the nationals of each of the Parties are to receive when in enemy hands. Agreements of this nature were concluded between the belligerents during the 1914-1918 war, when it became apparent that the Hague Conventions were inadequate. The provisions of the 1929 Prisoners of War Convention were very largely based on those agreements.
In regard to maritime warfare, one particular document is worthy of note -- the 1780 treaty between France and England for the exchange of all prisoners taken at sea, already referred to in the Introduction to the present volume. In particular, it explicitly [p.47] mentioned the principle of repatriating the shipwrecked, the institution of the "truce flag" intended to ensure immunity for ships carrying prisoners, and stated that "surgeons and surgeons' apprentices" as well as chaplains and ministers of religion taken at sea were not to be held prisoner (2).
In the 1929 Convention (Article 83, paragraphs 1 and 2
) the High Contracting Parties therefore reserved the right to conclude special conventions "on all questions relating to prisoners of war concerning which they may consider it desirable to make special provision".
Unfortunately, during the Second World War the interpretation which the belligerent States gave to these provisions was not always satisfactory and at the Conference of Government Experts the International Committee of the Red Cross therefore proposed that the Convention should expressly state that special agreements between belligerents should in no circumstances worsen the situation of protected persons. Although there were some reservations, the Commission supported that view and it was approved by the Diplomatic Conference (3).
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 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 10, paragraph 2
(b) evacuation of the wounded and sick from a besieged or encircled area
and passage of medical personnel and equipment on their way to that
area (Article 18, paragraph 2
[p.48] (c) installation of neutral observers on board hospital ships to verify
strict observation of the provisions of the Convention (Article 31, paragraph 4
(d) travel conditions for ships chartered to transport medical equipment
and supplies (Article 38, paragraph 1
(e) installation of neutral observers on board ships chartered to
transport medical equipment and supplies in order to verify such
equipment and supplies (Article 38, paragraph 2
(f) times and routes for flights by medical aircraft (Article 39,
(g) marking of medical aircraft or other means of identification (Article
39, paragraph 2
(h) flights of medical aircraft over enemy or enemy-occupied territory
(Article 39, paragraph 3
(i) use of the most modern methods available to facilitate identification
of hospital ships and rescue craft (Article 43, paragraph 8
(j) enquiry procedure concerning any alleged violation of the Convention
(Article 53, paragraph 2
The above list, which appears in the Convention, is merely by way of indication, for there are other Articles in the Convention which refer to agreements between the belligerents, either to encourage such agreements or on the contrary to prohibit them:
(a) prohibition of any derogation from the provisions relating to
substitutes for Protecting Powers if one of the Parties is restricted
in its freedom to negotiate (Article 10, paragraph 5
(b) establishment of conciliation procedure for the application or
interpretation of the Convention (Article 11, paragraph 2
(c) limitation on the use of markings (Article 44
(d) situation of wounded, sick or shipwrecked persons who are landed in a
neutral port, agreement between the Parties to the conflict and the
neutral Power concerned (Article 17, paragraph 1
[p.49] Lastly, there are other cases in which, although the Convention does not include any express provision, agreements between the belligerents might be necessary:
(a) search for the victims immediately after each engagement (Article 18, paragraph 1
(b) burial at sea (Article 20, paragraph 1
); we have in mind the possible
handing over of bodies to the adverse Party;
(c) possible release of wounded, sick or shipwrecked who have fallen into
enemy hands (Article 16
This list shows that the term "special agreements" is used to denote a wide variety of arrangements. Sometimes it is a matter of arrangements for individual cases (evacuation of the wounded), sometimes of actual regulations (medical aircraft), sometimes of a quasi-political agreement (substitute for the Protecting Power).
Apart from the above list the term "special agreements" should therefore be understood in a very broad sense. One must not forget that the Hague Convention and the Geneva Conventions grew up from agreements of this kind. The belligerents must remain absolutely free to develop and steadily improve the status of 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 6
, there is no need for it to deal exclusively with matters covered by the Second Convention. Such matters may form part of an agreement of much wider scope between the Parties. An armistice agreement, for example, may contain not only clauses relating to the armed forces on land, but also one or more provisions concerning the naval forces.
Special agreements are generally not 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, their special features being that, in the first place, the Head of State does not formally intervene and secondly, they may take several forms: sometimes they are concluded by an exchange of notes or letters, or they may even be [p.50] oral agreements. In war-time, it is sometimes necessary to take immediate steps to implement agreements in circumstances which make it impossible to observe the formalities required at other times; such agreements are 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 protection of the wounded and shipwrecked.
Even when there is no urgency, the absence of formalities is justified by the fact that special agreements can usually be considered as measures taken in application of the Convention. The latter binds the States concerned and it is only natural that its application should be within the competence of executive bodies. This absence of formalities means that agreements may even be made orally; reciprocal declarations of intention will often be exchanged through a third party (4). Apart from those concluded on the actual battle-front 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.
B. ' Time of conclusion '. -- Certain special agreements are meaningless unless 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 (5). Furthermore, as already noted, it is conceivable that certain agreements could be concluded by one or more belligerent Powers with neutral States which are also party to the Conventions, with a view to arranging, for example, for the wounded to be accommodated in hospitals or even interned in a neutral country. Lastly, certain agreements can obviously be concluded after the close of hostilities.
[p.51] 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 some of their rights under the Convention, and in particular in regard to supervision by the Protecting Power, work connected with military operations, and penal or disciplinary sanctions. Such measures were represented to those concerned as an advantage, but in the majority of cases they ultimately involved drawbacks which were sometimes very serious.
Although less explicit than the present paragraph, it would seem that Article 83 of the 1929 Convention
should have prevented agreements of this kind. Be that as it may, in order to prevent any ambiguity in the future the International Committee of the Red Cross recommended, when the preliminary work began, that the provision relating to special agreements should be clarified as follows:
"Such agreements shall in no case adversely affect the situation of protected persons, as defined in the present Convention, nor restrict the rights which it confers upon them."
This proposal was approved by a large majority at the 1949 Diplomatic Conference (6), which thus declared itself, despite the objections raised, in favour of maintaining the "safeguard clause" proposed by the International Committee of the Red Cross.
B. ' Scope of the safeguard clause '. -- Special agreements may neither "adversely affect the situation of wounded, sick and shipwrecked persons, of members of the medical personnel or of chaplains" nor "restrict the rights which it (the Convention) confers upon them".
It will not always be possible to determine at once whether or not a special agreement "adversely affects the situation of wounded, [p.52] sick and shipwrecked persons..." (7). What is the position, for instance, if their situation is improved in certain respects 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 became apparent only later and as a result of circumstances. The criterion, "adversely affects the situation", is not, therefore, in itself clear, and that is why the second condition is of value.
In what sense should the word "rights" conferred by the Convention be understood? The question is examined here only in relation to special agreements between the belligerents. 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 (8). The reference is therefore to the whole body of safeguards which the Convention affords to protected persons.
The States may not by special agreement restrict, i.e. derogate from, their obligations under the Convention to the disadvantage of protected persons; on the other hand, nothing prevents them from undertaking further and wider obligations.
C. ' Special problems '. -- (a) If, as a result of a change in circumstances, the application of a provision of the Convention entailed serious disadvantages for protected persons, 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 cannot settle of their own accord. If such a situation were to arise, 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 [p.53] concerned might take, either separately or by mutual agreement, with a view to remedying the situation.
(b) If two belligerents were to agree to subject their nationals to treatment contrary to the Convention, it would be difficult for the protected persons concerned -- no matter how great their interest in defending their "rights" (and this point will be considered under Article 7
) -- to oppose the conclusion and consequences of such an agreement. But it would then be the duty of the organizations responsible for supervising the proper application of the Convention to remind the belligerents of their obligations. Other factors too will 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 members 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. The Geneva law goes farther than a simple treaty providing for reciprocal
concessions. It protects the humanitarian heritage which is not, and must not be allowed to be, at the mercy of temporal political interests. The individual is considered in his own right. The State is not the only subject of law, and this step forward by the Geneva Conventions constitutes an important advance in present-day international law.
PARAGRAPH 2. -- DURATION OF SPECIAL AGREEMENTS
This provision did not really seem essential (9).
The present Convention makes express provision concerning its duration in Article 5
and the belligerents may not waive its application even in an instrument of capitulation.
[p.54] 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, or so long as no other agreement has been concluded which would accord them more favourable treatment. But this benefit may be withdrawn from protected persons only if the relevant provisions are expressly abrogated in a later agreement. If an agreement concluded for a specific period expires without being replaced by a new agreement, the conventional text will automatically be applicable once more.
It should also be noted that the contents (not the text) of any special agreement concluded pursuant to the present Article must be posted in every prisoner-of-war camp (Article 41, paragraph 1, of the Third Convention
* (1) [(1) p.46] See on the subject R. Monaco: ' Les Conventions
entre belligérants '. Recueil des Cours de l'Académie de
droit international de La Haye, 1949, II, T. 75, pp.
(2) [(1) p.47] See CAUWES: op. cit., pp. 16-18;
(3) [(2) p.47] See ' Report on the Work of the Conference of
Government Experts ', p. 259; see also ' Final Record of
the Diplomatic Conference of Geneva of 1949 ', Vol. II-B,
(4) [(1) p. 50] The special agreements concluded between Italy
and the United Kingdom provide a good example of this form
of agreement. They appeared in Italy under the title:
title: ' Testo delle Note Verbali che integrano e
modificano la Convenzione di Ginevra de 1929... ', Rome,
1941 and 1942;
(5) [(2) p.50] This applies particularly to those mentioned in
Article 10, paragraph 1; Article 11, paragraph 2; Article
39, paragraph 2; Article 53, paragraph 2. This possibility
is expressly referred to in Article 10, which uses the
wording "The High Contracting Parties" and not "the
Parties to the conflict" as in most other provisions;
(6) [(1) p.51] See ' Memorandum by the Government of the
United Kingdom ' (Document No. 6), point 9, p. 5;
(7) [(1) p.52] See R.-J. WILHELM: ' Le caractère des droits
accordés à l'individu dans les Conventions de Genève '.
Geneva, 1950, p. 13 ff.;
(8) [(2) p.52] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, p. 74;
(9) [(1) p.53] It had been introduced in the 1929 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. In accordance with Article 83, paragraph
2, of the 1929 Convention, subject to any more favourable
measures contained in an armistice agreement the
agreements concluded between belligerents must continue to
be applicable (see ' Actes de la Conférence de 1929 ',
(10) [(1) p.54] See ' Commentary III ', p. 243;