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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.378] ARTICLE 77
. -- PREPARATION, EXECUTION AND TRANSMISSION
OF LEGAL DOCUMENTS
A similar provision was included in the 1929 Convention (Article 41
) and during the Second World War veritable legal departments were organized in many camps under the direction of the prisoners, representative. The drafters of the new Convention therefore took as a basis for the new Article the principles stated in 1929, and added certain details (1).
Article 14, paragraph 3
, reserves the full civil capacity of prisoners of war and states that the Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers, except in so far as captivity requires. In practice, it is principally in his country of origin or of domicile -- that is to say in the country where he has his family and his interests or professional relationships -- that a prisoner may need to execute important legal documents.
In general, of course, as has already been emphasized in connection with Article 14
, this will refer merely to measures of conservation, since prisoners of war may not, for instance, carry on any real business activity.
nevertheless implies that the Power of origin must adopt a procedure enabling prisoners of war to execute legal documents with all necessary safeguards and without undue complications. However simple the procedure may be, it will still be necessary for the Detaining Power to grant prisoners of war the requisite facilities for the preparation, execution and transmission of documents.
[p.379] PARAGRAPH 1. -- TRANSMISSION OF DOCUMENTS (2)
The Convention states that "all facilities" must be granted to prisoners of war for the transmission of documents; nevertheless, account must also be taken of the special precautions required by the state of war as well as the difficulties of censorship. It may, however, be essential that there should be no undue delay in the transmission of documents (3). In the light of the experience of the Second World War, the Conference of Government Experts proposed that the Protecting Power or the Central Prisoners of War Agency should act as an intermediary. This provision should therefore be read in conjunction with Article 81, paragraph 4
One further question arises in connection with the transmission of legal documents, that of secrecy, particularly in the case of wills, for any premature disclosure of contents may cause serious difficulties and frequently the person concerned would rather abandon the idea of making a will than run such a risk. It is therefore advisable that legal documents should be sent in sealed envelopes, after being censored not by a layman but by an expert (a registrar or notary) who would himself be sworn to professional secrecy.
PARAGRAPH 2. -- PREPARATION AND EXECUTION OF DOCUMENTS
The conditions necessary for the drawing up of legal documents intended for prisoners of war or executed by them depend on national legislation (4).
[p.380] In practice, during the Second World War, the belligerents often adopted a special procedure for prisoners of war. This was all the more necessary because legal transactions which normally require the presence of the person concerned had to be executed by representation, particularly in the case of marriage by proxy which was permitted by certain Powers (5). Such a procedure could not be envisaged unless certain minimum formalities were carried out in order to afford the necessary safeguards. Furthermore, prisoners of war were not usually familiar with special legislation enacted in war-time. Therefore, in addition to the provision concerning the legalization of signatures which was already included in the 1929 text (Article 41, paragraph 2
), the new Convention expressly grants prisoners of war the right to consult a lawyer.
A sufficiently wide interpretation should be given to this provision: the lawyer could be another prisoner of war, or a barrister or solicitor who is a national of the Detaining Power. If the prisoner of war requesting the consultation belongs to a labour detachment whereas the person he wishes to consult is in the main camp, he will be given permission to go there. It will also be possible for him to consult a lawyer who is a national of the Detaining Power, particularly if he wishes to draw up a will (6).
* (1) [(1) p.378] See below, p. 723;
(2) [(1) p.379] See Ferdinand CHARON, op. cit., p. 89;
(3) [(2) p.379] Thus CHARON (ibid., pp. 89-99) notes, that
pursuant to Article 41 of the 1929 Convention, services
were set up in camps for French prisoners of war for
transmitting and sending documents. The prisoners,
families, and members of the legal profession concerned
transmitted the documents either to the Embassy of the
prisoners of war or to the French Red Cross, or
alternatively sent them directly to the International
Committee of the Red Cross in Geneva. The documents passed
through so many hands, however, that much delay in
transmission ensued and there was a great risk of loss or
(4) [(3) p.379] At the 1949 Diplomatic Conference an amendment
was submitted proposing that this procedure should be
governed by private international law, in accordance with
the rule ' locus regit actum '; this proposal was
rejected, however. See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 288. It will
also be noted that under the new Convention (Article 120,
paragraph 1), even wills are governed by national
legislation; hitherto, they were drawn up under the same
conditions as for the armed forces of the Detaining Power
(1929 Convention, Article 76);
(5) [(1) p.380] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ', Vol. I, pp. 294-295;
(6) [(2) p.380] See below, the commentary on Article 120;