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.
[p.471] ARTICLE 113
. -- EXECUTION AND TRANSMISSION OF LEGAL
The restrictions placed on the freedom of action of internees by the internment system to which they are subjected must not detract from the principle that they "retain their full civil capacity" as stated in Article 80
. To enable them to exercise this capacity despite the restrictions of internment it was important to give them every facility for drawing up and transmitting wills, powers of attorney and other documents essential for their family relationships or for the conduct of their affairs.
A similar provision was included in the 1929 Convention relative to the Treatment of Prisoners of War (Article 41
) and during the Second World War veritable legal departments were organized in a great many camps under the direction of the camp leader.
PARAGRAPH 1. -- TRANSMISSION OF DOCUMENTS
By analogy with the system for prisoners of war, the Stockholm Draft envisaged the transmission of legal documents only by the Protecting Power or the Central Agency provided for in Section V of Part III of the Convention. As the Rapporteurs remarked (1) generally speaking, the wills of internees will be executed in the country of detention itself. Thus, it is not absolutely essential that the Protecting Power or the Central Agency should intervene in the same way as for prisoners of war, and such action might indeed give rise to legal or practical difficulties. For that reason, the authors of the Convention stated that documents could be transmitted "as otherwise required" instead of being necessarily sent through the Protecting Power or the Central Agency. It was important, however, that these [p.472] facilities for the transmission of documents should not serve as a pretext for the giving of information for subversive purposes; hence the wording "all reasonable facilities", which enables suspicious correspondence to be eliminated. It is reasonable to
suppose that with regard to wills in particular, they could be drawn up by an agent approved by the Detaining Power and sworn to professional secrecy: a solicitor or barrister stationed in the camp or nearby and consulted by the person concerned as envisaged in paragraph 2. They would then be transmitted in a sealed envelope under the responsibility of the agent to a solicitor in the country of internment. With regard to the transmission of documents to other countries, especially the country of origin of the internees, recourse should be had to the services of the Protecting Power or the Central Agency (2).
PARAGRAPH 2. -- AUTHENTICATION
The conditions necessary for the drawing up of legal documents intended for internees or to be despatched by them depend on national laws. A suggestion put forward at the 1949 Diplomatic Conference, proposing to subject this procedure to the principles of private international law, i.e. to the rule of ' locus regit actum ' was not approved by the members of the Conference (3); the result is that documents dealing with the affairs of internees can give rise to very complicated formalities, particularly, as the Rapporteurs also remarked (4), in the case of documents which have to be made effective in countries other than that in which they are drawn up. Furthermore, in wartime special legislation is often enacted which is in general not well known to the internees. It is for that reason that the Convention expressly grants them the right to consult a lawyer.
A sufficiently wide interpretation could be given to this provision: the lawyer could be another internee or a barrister or solicitor who is a national of the Detaining Power. If the internee requiring the consultation belongs to a labour detachment, whereas the person he wishes to consult is in the main place of internment, he will be given permission to go there. It will also be possible for him to consult a lawyer residing outside the camp under conditions considered reasonable by the Detaining Power. The same would apply to a consultation [p.473] by letter of a lawyer residing outside the country of internment, subject to the provisions of Articles 107
concerning internees' correspondence and the censorship of their mail. This consultation could also take place through the Protecting Power, which would certainly have an important part to play in this domain.
Notes: (1) [(1) p.471] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 841;
(2) [(1) p.472] The example given refers to solicitors;
obviously, the essential thing is to enable the internee
to act in accordance with the law which governs the act at
the moment when it is made;
(3) [(2) p.472] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' vol. II-A, p. 288;
(4) [(3) p.472] See ibid., pp. 841-842;