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X Civilians in the Hands of a Party to the Conflict

Chapter Contents

10.1 Introduction 10.2 National-Level GC Implementation Measures 10.3 Protected Person Status 10.4 Derogation for Security Reasons 10.5 Humane Treatment and Other Basic Protections for Protected Persons 10.6 Measures of Control and Security 10.7 General Treatment of Protected Persons in a Belligerents Home Territory 10.8 Expulsion From Areas Within a Belligerents Home Territory and Departure

and Transfers of Protected Persons From a Belligerents Home Territory 10.9 Internment 10.10 Segregation of Internees 10.11 Safety, Hygiene, and Living Conditions in Places of Internment 10.12 Canteens for Internees 10.13 Food, Water, Tobacco, and Clothing for Internees 10.14 Medical Attention for Internees 10.15 Religious Exercise by Internees 10.16 Intellectual, Physical, and Recreational Activities 10.17 Internee Labor 10.18 Internees Articles of Personal Use 10.19 Financial Resources of Internees 10.20 Administration of Places of Internment and Discipline 10.21 Internee Petitions, Complaints, and Reports About Conditions of

Internment 10.22 Internee Committees 10.23 Internee Correspondence and Relief Shipments 10.24 Private Legal Matters of Internees 10.25 Internees and Visits of Family and Friends 10.26 Internee Escapes 10.27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions

Regarding Internees 10.28 Disciplinary Proceedings and Punishment 10.29 Judicial Proceedings Regarding Protected Persons in Occupied Territory or

Internees in a Belligerents Home Territory 10.30 Transfers of Internees From the Place of Internment 10.31 National Accounting for Protected Persons in Its Power 10.32 Role of the Protecting Power in the GC 10.33 Access to Internees by Protecting Powers, ICRC, and Other Relief

Organizations 10.34 Death of Internees 10.35 Release, Return, Repatriation of Internees After the Close of Hostilities

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10.1 INTRODUCTION

This Chapter addresses protection of civilians in the hands of a party to an international armed conflict. In particular, the Chapter addresses civilians who are interned in the home territory of a belligerent or occupied territory.

Rules for the protection of civilians in the conduct of hostilities are addressed in Chapter V. Rules for the protection of civilians that are specific to occupied territory are addressed in Chapter XI, while rules that apply to both civilians in occupied territory and civilians in a belligerents home territory are addressed in this Chapter.

Interpretation and Application of the GC. The GC underlies most of the 10.1.1international law rules applicable to the United States for the treatment of civilians in the hands of a party to the conflict.

As with the GPW, the GCs provisions should be interpreted in light of the principles that underlie the treatment of civilians and, in particular, in light of the goal of advancing the humane treatment of protected persons.1 The subsequent practice of States in applying the GC could also assist in interpreting its provisions because States decades of experience in applying the GC may be very helpful in understanding its requirements.2

10.1.1.1 GC Notes on Terminology. In the GC, protected persons does not simply refer to persons who are civilians in the sense of not being members of the military; rather, protected persons refers to persons who are protected by the GC in connection with international armed conflict or occupation.3

In the GC, internees refers to protected persons who are interned.

In the GC, the Detaining Power refers to the State that holds the internee.

In the GC, the Protecting Power refers to a neutral State that helps implement the GC.4

10.1.1.2 Special Agreements Under the GC. Under the GC, States may conclude a variety of special agreements during international armed conflict to facilitate the protection of civilians. The GC specifically provides for agreements:

to entrust to an effective and impartial organization the duties of the Protecting Powers;5

to establish and recognize civilian hospital zones and localities;6

1 Refer to 9.1.2 (Interpretation and Application of the GPW). 2 Refer to 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation). 3 Refer to 10.3.1 (Protected Person Notes on Terminology). 4 Refer to 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions). 5 Refer to 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties Under the 1949 Geneva Conventions).

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to establish and determine the conditions of neutralized zones;7

for the removal of wounded, sick, infirm, and aged persons, children, and maternity cases, from besieged or encircled areas or for the passage of medical and religious personnel on their way to such areas;8

to settle practical details regarding the departure of protected persons from a belligerents home territory;9

to establish the conditions for the sending of individual parcels and collective relief shipments;10

for the release, repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time;11 and

on the procedure, or to select an umpire who will decide the procedure, to be followed for an inquiry concerning any alleged violation of the GC.12

In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108, 109, 132, 133, and 149 of the GC, Parties to the GC may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision.13 No special agreement shall adversely affect the situation of protected persons, as defined by the GC, nor restrict the rights that it confers upon them.14

Protected persons shall continue to have the benefit of such agreements as long as the GC is applicable to them, except where express provisions to the contrary are contained in these

6 Refer to 5.14.3.1 (Civilian Hospital and Safety Zones and Localities). 7 Refer to 5.14.3.3 (Neutralized Zones). 8 Refer to 5.19.2 (Removal and Passage of Certain Personnel Vulnerable Civilians, Diplomatic and Consular Personnel, the Wounded and Sick, and Medical Personnel). 9 Refer to 10.8.2 (Departures of Protected Persons From a Belligerents Home Territory). 10 Refer to 10.23.3.3 (Special Agreements Concerning Relief Shipments). 11 Refer to 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain Classes of Internees). 12 Refer to 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions). 13 GC art. 7 (In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108, 109, 132, 133 and 149, the High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision.). 14 GC art. 7 (No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.).

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agreements or in subsequent agreements, or where more favorable measures have been taken with regard to them by one or other of the parties to the conflict.15

DoD Policies and Regulations for the Treatment of Internees. DoD policies and 10.1.2regulations regarding the treatment of internees provide authoritative guidance for DoD personnel and fill an important role in implementing the complex requirements of the GC.16 Practitioners are advised to consult all applicable policies and regulations, as these, in many cases, exceed the requirements of the GC, U.S. statutes, and Executive Orders.

10.2 NATIONAL-LEVEL GC IMPLEMENTATION MEASURES

The GC requires a number of measures at the national level to facilitate protection for protected persons.

Appointment or Establishment of Entities. The GC provides for certain bodies or 10.2.1entities to be appointed or established.

10.2.1.1 Appointment of a Protecting Power. The GC contemplates that a Protecting Power has been appointed to assist in the implementation of the GC.17 A Protecting Power has a variety of roles under the GC related to the protection of protected persons.18

10.2.1.2 Establishment of a National Protected Person Information Bureau. A National Protected Person Information Bureau shall be established by each of the parties to the conflict.19

10.2.1.3 Establishment of a Central Information Agency for Protected Persons. A Central Information Agency for protected persons shall be established in a neutral country.20

Notification of Certain Laws or Policies Between Belligerents. Parties to a 10.2.2conflict must notify opposing belligerents or the Protecting Power of certain matters relating to protected persons.

10.2.2.1 Location and Marking of Places of Internment Camps. The Detaining Power shall provide the Powers concerned useful information regarding the geographic location of places of internment, and agreements on their markings may be reached.21

15 GC art. 7 (Protected persons shall continue to have the benefit of such agreements as long as the Convention is applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties to the conflict.). 16 Refer to 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War). 17 Refer to 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions). 18 Refer to 10.32 (Role of the Protecting Power in the GC). 19 Refer to 10.31.2 (National Protected Person Information Bureau). 20 Refer to 10.31.3 (Central Information Agency for Protected Persons).

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10.2.2.2 Notification of Measures Taken for Implementing GC Provisions That Address Relations Between Internees and the Exterior. Immediately upon interning protected persons, the Detaining Power shall inform them, the Power to which they owe allegiance, and their Protecting Power of the measures taken for executing the provisions of Chapter VIII of Section IV of the GC, which address the relations between internees and the exterior (e.g., correspondence, relief shipments, family visits).22 The Detaining Power shall likewise inform the Parties concerned of any subsequent modifications of such measures.23

10.3 PROTECTED PERSON STATUS

In general, the GC uses the concept of protected person to define the individuals who are entitled to receive its protections. Principally, protected persons include persons of enemy nationality living in the territory of a belligerent State and the inhabitants of occupied territories.24 Even if persons are not protected persons under the GC, other rules may be applicable to them. For example, certain baseline rules apply to the treatment of all detainees, including those who are not protected persons or POWs.25

Protected Person Notes on Terminology. Protected persons is used in the GC as 10.3.1a term to refer to persons who are protected by the GC in connection with international armed conflict or occupation.

Protected persons is often understood as a term that is specific to the GC. In a few places, however, the GPW, the GWS, and the GWS-Sea also refer to protected persons or persons protected.26 In such cases, protected persons and persons protected refer to persons protected by that respective convention, as opposed to protected persons for purposes of the GC.

21 Refer to 10.11.1.2 (Sharing Information on the Location of Places of Internment); 10.11.1.3 (Marking of Internment Camps). 22 GC art. 105 (Immediately upon interning protected persons, the Detaining Powers shall inform them, the Power to which they owe allegiance and their Protecting Power of the measures taken for executing the provisions of the present Chapter.). 23 GC art. 105 (The Detaining Powers shall likewise inform the Parties concerned of any subsequent modifications of such measures.). 24 GC COMMENTARY 45 (When work was begun on the preparation of the texts, it became clearas early as the time of the Tokyo Draftthat there were two main classes of civilian to whom protection against arbitrary action on the part of the enemy was essential in time of waron the one hand, persons of enemy nationality living in the territory of a belligerent State, and on the other, the inhabitants of occupied territories. The idea that the Convention should cover these two categories was accepted from the first and has never really been disputed. Any discussions which have taken place on the subject have been concerned with points of detail which we shall consider later. This Article [4 of the GC] is, in a sense, the key to the Convention; for it defines the people to whom it refers.). 25 Refer to 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII). 26 See, e.g., GPW art. 11 (In cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.).

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Although the GC addresses the protection of civilians, protected persons may include certain unprivileged belligerents. Certain rights and privileges that protected persons who are unprivileged belligerents receive, however, are subject to derogation for security reasons.27

Persons Who Receive Protected Person Status Under the GC. Subject to certain 10.3.2exceptions addressed below, persons protected by the GC are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or Occupying Power of which they are not nationals.28

Because the definition of protected person is framed negatively in terms of persons who are in the hands of a State of which they are not nationals, the definition of protected person allows for the possibility that persons without any nationality may be protected persons.29

10.3.2.1 Find Themselves. The persons must find themselves in the hands of a party to the conflict or Occupying Power, which suggests an element of happenstance or coincidence.30 For example, nationals of a neutral or non-belligerent State who travel to an occupied State to fight the Occupying Power cannot be said to have found themselves within that occupied territory within the meaning of Article 4 of the GC.

10.3.2.2 In Occupied Territory or the Home Territory of a Party to the Conflict. To be entitled to the protections provided under the GC for protected persons, a person must be located in either (1) occupied territory or (2) the home territory of a party to the conflict.31

27 Refer to 10.4 (Derogation for Security Reasons). 28 GC art. 4 (Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.). 29 GC COMMENTARY 47 (It will be observed that owing to its negative form the definition covers persons without any nationality. The Rapporteur to Committee III pointed out that it thus complied with the recommendation made to the Diplomatic Conference by the representative of the International Refugee Organization. In the actual course of the discussions, however, certain speakers observed that the term nationals (ressortissants, in the French version) did not cover all cases, in particular cases where men and women had fled from their homeland and no longer considered themselves, or were no longer considered, to be nationals of that country. Such cases exist, it is true, but it will be for the Power in whose hands they are to decide whether the persons concerned should or should not be regarded as citizens of the country from which they have fled. The problem presents so many varied aspects that it was difficult to deal with it fully in the Convention.). 30 Jack L. Goldsmith III, Assistant Attorney General, Protected Person Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 51 (Alternatively, the phrase find themselves [in Article 4 of the GC] can be read more narrowly to suggest an element of happenstance or coincidence, and to connote a lack of deliberate action relating to the circumstances that leave the persons in question in the hands of an occupying power.). 31 See Jack L. Goldsmith III, Assistant Attorney General, Protected Person Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (To receive the protections provided for protected persons, one must be located in either (1) occupied territory, or (2) the territory of a party to the conflict. This limitation does not emerge from article 4 itself, but rather from other provisions in GC.); GC COMMENTARY 46 (Nevertheless, disregarding points of detail, it will be seen that there are two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to the conflict and (2) the whole population of occupied territories (excluding nationals of the Occupying Power). The other distinctions and, exceptions extend or restrict these limits, but not to any appreciable extent.).

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The references in the GC that limit the scope of protections for protected persons to those in the territory of a Party to the conflict refer to the home territory of the party to the conflict in whose hands the protected person finds himself or herself.32 For example, Section II of Part III of the GC, which applies to Aliens in the Territory of a Party to the Conflict, addresses the protection of aliens present on the home territory of a party to the conflict in relation to that State.

10.3.2.3 Not Protected by the GWS, GWS-Sea, or the GPW. Persons protected by the GWS, the GWS-Sea, or the GPW shall not be considered as protected persons within the meaning of the GC.33 For example, persons who receive POW status under the GPW are not considered as protected persons within the meaning of the GC.34

10.3.2.4 Unprivileged Belligerents Not Per Se Excluded From Protected Person Status. The fact that a person has engaged in hostile or belligerent conduct does not per se exclude that person from protected person status under the GC.35

Certain rights and privileges of the GC that a protected person who has engaged in such conduct would otherwise receive are, however, subject to derogation for security reasons.36

32 Jack L. Goldsmith III, Assistant Attorney General, Protected Person Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (The meaning of the phrase territory of a Party to the conflict, considered in isolation, is not self-evident. At first glance, one might think that the phrase includes occupied territory, because the occupied power (to whom the territory belongs) is a party to the conflict. But in the context of the entire Convention, the phrase clearly refers to the home territory of the party to the conflict in whose hands the protected person finds himself. This is evident from several provisions in GC4.). 33 GC art. 4 (Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as protected persons within the meaning of the present Convention.). 34 Refer to 9.3.2 (Persons Entitled to POW Status). 35 See Jack L. Goldsmith III, Assistant Attorney General, Protected Person Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 48 (GC4s full titleGeneva Convention Relative to the Protection of Civilian Persons in Time of War, (emphasis added)suggests that [t]he main object of the Convention is to protect a strictly defined category of civilians. 4 Pictet, Commentary at 10 (emphasis added). Consistent with this title, article 4(4) of GC expressly excludes lawful combatants who enjoy POW status from protected person status. These factors, combined with the fact that unlawful combatants generally receive less favorable treatment than lawful combatants under the Geneva Convention system, see, e.g., Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 at 1-7 (Feb. 7, 2002) (concluding that GPW withholds protections from persons who engage in hostilities but fail to satisfy criteria for lawful combatancy), might lead one to assume that unlawful combatants are categorically excluded from protected person status under GC. GCs text, however, contemplates that persons who find themselves in occupied territory within the meaning of article 4 may engage in at least some forms of unlawful belligerency without forfeiting all of the benefits of protected person status.); 1956 FM 27-10 (Change No. 1 1976) 247b (Subject to qualifications set forth in paragraph 248 [relating to derogations], those protected by GC also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war.). 36 Refer to 10.4 (Derogation for Security Reasons).

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Categories of Nationals Specifically Excluded From the Definition of Protected 10.3.3Person Under the GC. As discussed in this subsection, the GC specifically excludes certain classes of persons from the definition of protected person.37

The provisions of Part II of the GC, which address the general protection of populations against certain consequences of war, are, however, wider in application, as defined in Article 13 of the GC.38 These provisions cover the whole of the populations in conflict without any adverse distinction based, in particular, on race, nationality, religion, or political opinion, and are intended to alleviate the sufferings caused by war.39 Thus, persons excluded by reason of their nationality from the definition of protected person may nonetheless receive the protections of Part II of the GC.

10.3.3.1 A States Own Nationals. In general, a States own nationals who are in its hands are not protected persons under the GC.40 This exclusion from the definition of protected person in the GC is consistent with a traditional principle of international lawthe GC does not interfere in a States relations with its own nationals.41 However, the GC does limit the arrest, prosecution, conviction, or deportation of nationals of any Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State.42

10.3.3.2 Nationals of a State That Is Not Bound by the GC. Nationals of a State that is not bound by the GC are not protected by it.43 This provision of the GC reflects a legal principle underlying the GC: a State must accept the burdens of the GC in order to receive its benefits.44

37 Compare 4.4.4 (Nationality and Combatant Status). 38 See GC art. 4 (The provisions of Part II are, however, wider in application, as defined in Article 13.). 39 GC art. 13 (The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war.). 40 GC art. 4 (Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.) (emphasis added). 41 GC COMMENTARY 46 (The definition has been put in a negative form; as it is intended to cover anyone who is not a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains faithful to a recognized principle of international law: it does not interfere in a States relations with its own nationals. The only exception to this rule is the second paragraph of Article 70, which refers to nationals of the Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities. This is a very special case, based on the position such people have taken up with regard to their own country.). 42 Refer to 11.11.7 (Limitation on Criminal Jurisdiction With Respect to Pre-Occupation Acts). 43 GC art. 4 (Nationals of a State which is not bound by the Convention are not protected by it.). 44 Jack L. Goldsmith III, Assistant Attorney General, Protected Person Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 54 (The benefits-burdens principle also finds expression in article 4(2), which provides: Nationals of a State which is not bound by the Convention are not protected by it. The ICRCs Official Commentary states that article 4(2)s exception to the definition of protected person in article 4(1) is a truism and an unnecessary addition that follows naturally from article 2(1) even in the absence of article 4(2). See 4 Pictet, Commentary at 48. Whether or not this is true, article 4(2) makes this much clear: persons in occupied territory, including those who commit hostile acts there, are not

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10.3.3.3 Nationals of a Neutral State or Co-Belligerent State While Normal Diplomatic Representation Exists. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.45

These persons were omitted from the GCs definition of protected person in order to avoid creating complications or inconsistencies in procedures should both the GC and the law applicable to normal diplomatic representation apply.46

Nationals of a neutral State in occupied territory, however, are regarded as protected persons under the GC.47

Commencement and Duration of Protected Person Status. As with the general 10.3.4application of the GC, protected persons shall receive their protections from the outset of any conflict or occupation mentioned in Article 2 of the GC.48 In general, the application of protected person status also ceases when the GC ceases to apply.

In the territory of parties to the conflict, the application of the GC shall cease on the general close of military operations.49 In most cases, the general close of military operations will be the final end of all fighting between all those concerned.50

protected persons under GC if the State that represents them has not formally accepted the Conventions burdens.). 45 GC art. 4 (Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.). 46 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 814 (At the first reading several Delegates argued that the Convention should merely regulate the relations between a belligerent State and the nationals of an enemy State, and that it should not include relations between the State and nationals of a neutral country. Other delegates, however, argued that stateless persons should be borne in mind and that, moreover, there might be, in the territory of a belligerent State, nationals of foreign States who did not benefit by any diplomatic representation either because their home country had broken off diplomatic relations with the country where they were or because they had themselves broken away from their country of origin. Our Committee gave the most careful consideration to this problem and the majority recognized the weight of the reasons put forward by States sheltering a large number of aliens: the superposition of normal diplomatic representation and of the protection ensured by the Convention, would lead to complications and would be indefensible from the point of view of consistency of procedure.). 47 Refer to 15.6.4.1 (Protected Person Status of Neutral Persons in Occupied Territory). 48 GC art. 6 (The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.). 49 GC art. 6 (In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.). 50 GC COMMENTARY 62 (What should be understood by the words general close of military operations? In the opinion of the Rapporteur of Committee III, the general close of military operations was when the last shot has been fired. There are, however, a certain number of other factors to be taken into account. When the struggle takes place between two States the date of the close of hostilities is fairly easy to decide: it will depend either on an armistice, a capitulation or simply on debellatio. On the other hand, when there are several States on one or both of

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In the case of occupied territory, the application of the GC shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the GC: 1 through 12, 27, 29 through 34, 47, 49, 51, 52, 53, 59, 61 through 77, and 143.51

Protected persons whose release, repatriation, or re-establishment may take place after such dates shall meanwhile continue to benefit from the protection of the GC.52 Re-establishment refers to protected persons who cannot be repatriated because, for example, they would be liable to persecution in their own country or because their homes have been destroyed.53

State Responsibility for Its Agents Treatment of Protected Persons. A party to the 10.3.5conflict is responsible for the treatment accorded to protected persons by its agents, irrespective of any individual responsibility that may be incurred.54

Non-Renunciation of Rights Secured by the GC. Protected persons may in no 10.3.6circumstances renounce in part or in entirety the rights secured to them by the GC or by special agreements, if any, referred to in Article 7 of the GC.55 A similar provision of the GPW applies to POWs, and similar provisions of the GWS and GWS-Sea apply to the wounded, sick, shipwrecked, and military medical and religious personnel.56

the sides, the question is harder to settle. It must be agreed that in most cases the general close of military operations will be the final end of all fighting between all those concerned.). 51 Refer to 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory). 52 GC art. 6 (Protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention.). 53 1956 FM 27-10 (Change No. 1 1976) 249b (Reestablishment of Protected Persons. The word reestablishment, as used in a, refers to protected persons who cannot be repatriated because, for example, they would be liable to persecution in their own country, or because their homes have been destroyed.). See also GC COMMENTARY 64 (The time when the Convention as a whole ceases to apply, both in the territory of the Parties to the conflict and in occupied territory, may quite conceivably come before the protected persons have been able to resume a normal existence, especially if they have to be repatriated or assisted to resettle. The word resettlement is used in regard to protected persons who cannot be repatriated for one reason or another and are not allowed to settle permanently in the country where they are living. In such cases another country must be found where they will be received and allowed to settle. It was in particular the experience gained at the end of the Second World War which led to the adoption of this clause.). 54 GC art. 29 (The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred.). Refer to 18.9.1 (State Responsibility for Violations of the Law of War by Its Armed Forces). 55 GC art. 8 (Protected persons may in no circumstances 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.). Refer to 10.1.1.2 (Special Agreements Under the GC). 56 Refer to 7.2.2 (Non-Renunciation of Rights Secured by the GWS or GWS-Sea); 9.3.7 (Non-Renunciation of Rights Secured by the GPW).

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10.4 DEROGATION FOR SECURITY REASONS

Certain rights and privileges of the GC that protected persons receive are subject to derogation for security reasons.

Derogation in Home Territory. Where, in the territory of a party to the conflict, 10.4.1the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the GC as would, if exercised in the favor of such individual person, be prejudicial to the security of such State.57

Derogation in Occupied Territory. Where in occupied territory an individual 10.4.2protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the GC.58 For example, it may be necessary to keep the fact of detention secret temporarily so as not to compromise an ongoing operation against a conspiracy or network of spies.59

The derogation provisions relating to the home territory of a belligerent are not applicable in occupied territory, even though the occupied territory may arguably be characterized as the home territory of the opposing belligerent (i.e., the country being occupied).

Derogation in Other Areas. To the extent that the rights and privileges of 10.4.3protected persons afforded by the GC are applied outside the home territory of a party to the conflict or outside occupied territory, it would be reasonable for such rights and privileges similarly to be subject to derogation. Thus, if a party to the conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State in other contexts, such individual person similarly could be deemed not entitled to claim such rights and privileges under the GC as would, if exercised in favor of such individual person, be prejudicial to the security of such State.60

57 GC art. 5 (Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.). 58 GC art. 5 (Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person, shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.). 59 GC COMMENTARY 53 (There may of course be occasions when it is desirable to keep the fact of an arrest secret in the hope of capturing a whole organization or spy ring.). 60 1956 FM 27-10 (Change No. 1 1976) 248b (Where, in territories other than those mentioned in a above, a Party to the conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person is similarly not entitled to claim such rights and privileges under GC as would, if exercised in favor of such individual person, be prejudicial to the security of such State.).

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Limits on Derogation. In each case, such persons shall nevertheless be treated 10.4.4with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the GC.61 No derogation from the provision of humane treatment and the rights of fair and regular trial is permitted.62

Such persons shall also be granted the full rights and privileges of a protected person under the GC at the earliest date consistent with the security of the State or Occupying Power, as the case may be.63

10.5 HUMANE TREATMENT AND OTHER BASIC PROTECTIONS FOR PROTECTED PERSONS

Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats of violence, and against insults and public curiosity.64

Protection Against Violence or Threats. Protected persons must at all times be 10.5.1protected, particularly against acts or threats of violence. For example, the murder of protected persons is forbidden.

Protected persons should be protected not only against unlawful acts by the agents of the Detaining Power, but also against violence from other protected persons, such as during internment or, in the case of protected persons in a belligerents home territory, violence from members of the civilian population.

10.5.1.1 Measures of Physical Suffering, Extermination, or Other Brutality. The Parties to the GC specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands.65 This prohibition applies not only to murder, torture, corporal punishment, mutilation, 61 GC art. 5 (In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.). 62 Refer to 10.5 (Humane Treatment and Other Basic Protections for Protected Persons); 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees). 63 GC art. 5 (They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.). 64 GC art. 27 (Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.). See also GC COMMENTARY 199-200 (Article 27, placed at the head of Part III, occupies a key position among the Articles of the Convention. It is the basis of the Convention, proclaiming as it does the principles on which the whole of Geneva Law is founded. It proclaims the principle of respect for the human person and the inviolable character of the basic rights of individual men and women. The statement of these principles in an international convention gives them the character of legal obligations and marks an essential stage in the history of international law -- in particular international humanitarian law, which is concerned above all with man as man.). 65 GC art. 32 (The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands.).

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and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.66

10.5.1.2 Protection for Women Against Rape or Other Indecent Assault. Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.67

Although the GC provides special protection for women against these offenses, all individuals, including children and men, should also be protected against these offenses. Indecent assault is generally referred to today as sexual assault.

10.5.1.3 Presence May Not Be Used to Render Places Immune From Military Operations. The presence of a protected person may not be used to render certain points or areas immune from military operations.68

10.5.1.4 Taking of Hostages. The taking of hostages is prohibited.69

Protection Against Insults and Public Curiosity. Internees must at all times be 10.5.2protected against insults and public curiosity. For example, displaying internees in a humiliating fashion on television or on the internet would be prohibited.70 For this reason and others, DoD policy has prohibited the taking of photographs of detainees except for authorized purposes.71

Other Prohibited Measures. 10.5.3

10.5.3.1 No Physical or Moral Coercion. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.72 For example, protected persons in occupied territory may not be compelled to provide information about their States military defenses.73 Other requirements, including the requirements of U.S. law and policy, would apply to the interrogation of protected persons.74

66 GC art. 32 (This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.). 67 GC art. 27 (Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.). 68 GC art. 28 (The presence of a protected person may not be used to render certain points or areas immune from military operations.). 69 GC art. 34 (The taking of hostages is prohibited.). 70 Compare 9.5.3 (Protection Against Insults and Public Curiosity). 71 Refer to 8.2.2.3 (DoD Practice of Generally Prohibiting Taking Photographs Without Authorization). 72 GC art. 31 (No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.). 73 Refer to 11.20.1.4 (Prohibition Against Forcing Inhabitants to Provide Information About the Opposing Army or Its Means of Defense). 74 Refer to 10.6.2 (Interrogation of Protected Persons).

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The GCs prohibition against the use of coercion does not apply to those measures implicitly or explicitly authorized by the GC (such as the use of force to prevent one internee from harming another) or other lawful measures that are otherwise consistent with the GC (such as the use of force to prevent internees from escaping internment).75

10.5.3.2 Collective Penalties and Measures of Intimidation or Terrorism. No protected person may be punished for an offense he or she has not personally committed.76 Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.77

Collective penalties are prohibited as a general matter.78

10.5.3.3 Pillage Against Protected Persons. Pillage is prohibited.79 In addition to this specific prohibition in the GC, pillage is prohibited as a general matter.80

Reprisals Against Protected Persons and Their Property. Reprisals against 10.5.4protected persons and their property are prohibited.81

No Adverse Distinction Based on Race, Religion, or Political Opinion. Without 10.5.5prejudice to the provisions of the GC relating to their state of health, age, and sex, all protected persons shall be treated with the same consideration by the party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion, or political opinion.82

75 GC COMMENTARY 220 (The general nature of the new provision marks an important step forward in international law. For its exact significance to be appreciated, it should not be considered in isolation but rather in the light of the other provisions of the Convention. It will then be seen that there is no question of absolute prohibition, as might be thought at first sight. The prohibition only applies in so far as the other provisions of the Convention do not implicitly or explicitly authorize a resort to coercion. Thus, Article 31 is subject to the unspoken reservation that force is permitted whenever it is necessary to use it in the application of measures taken under the Convention. This power is embodied and expressed particularly in penal legislation and in the control and security regulations enacted by the belligerents and to which protected persons are subject.). 76 GC art. 33 (No protected person may be punished for an offence he or she has not personally committed.). 77 GC art. 33 (Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.). Consider AP I art. 51(2) (Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.). 78 Refer to 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment). 79 GC art. 33 (Pillage is prohibited.). 80 Refer to 5.17.4 (Pillage Prohibited). 81 Refer to 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions). 82 GC art. 27 (Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.).

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Distinctions are permitted, and in some cases required, for humanitarian reasons.83 For example, the GC provides for special treatment for children during internment.84

Distinction based on religion, political opinion, or other similar criteria may also be made so long as it is not adverse and it is made to advance legitimate interests, such as maintaining order in a place of internment.85

Facility for Applying to the Protecting Powers and Assistance Organizations Such 10.5.6as the ICRC. Protected persons shall have every facility for making application to the Protecting Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them.86

These several organizations shall be granted all facilities for that purpose by the authorities, within the bounds set by military or security considerations.87

Apart from the visits of the delegates of the Protecting Powers and of the ICRC, provided for by Article 143 of the GC, the Detaining or Occupying Powers shall facilitate as much as possible visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.88

83 GC COMMENTARY 426 (All discrimination contrary to Article 27 is prohibited. On the other hand implicit authority is given for the discrimination permitted by that Article for humanitarian reasons, in order to favour classes of people who are in particular need of help (the infirm, the sick, pregnant women, etc.). All this is an example of the application of the principle of non-discrimination, as understood in humanitarian law--that is to say the rule which forbids all differentiation based on race, political opinions, religion or social class, but at the same time demands that the different degrees of suffering should be alleviated by different degrees of assistance.). 84 Refer to 4.20.4 (Protection for Children in the Context of Internment Under the GC). 85 Compare 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief). 86 GC art. 30 (Protected persons shall have every facility for making application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them.). 87 GC art. 30 (These several organizations shall be granted all facilities for that purpose by the authorities, within the bounds set by military or security considerations.). See also GC COMMENTARY 218 (The Convention requires the Parties to the conflict to grant all facilities to the Protecting Powers and relief organizations. That means that it will not be enough merely to authorize them to carry out their work; their task must be facilitated and promoted. It is the duty of the authorities to take all necessary steps to allow approved organizations to take rapid and effective action wherever they are asked to give assistance. Among examples of such measures can be mentioned the provision of facilities for delegates to move about and carry on correspondence, to have free access to all places where protected persons are living, transport facilities and facilities for distributing relief, etc. The obligation to facilitate this work is limited however by military or security considerations, as stated in the reservation at the end of the paragraph. It is essential, however, that the belligerents, who will be sole judges o [sic] the validity of the reasons put forward, should show moderation in the use they make of this reservation and only apply it in cases of real necessity). 88 GC art. 30 (Apart from the visits of the delegates of the Protecting Powers and of the International Committee of the Red Cross, provided for by Article 143, the Detaining or Occupying Powers shall facilitate as much as possible visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.).

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10.6 MEASURES OF CONTROL AND SECURITY

The parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.89 For example, in a belligerents home territory, measures of control are normally taken with respect to, at the very least, persons known to be active or reserve members of a hostile army, persons who would be liable to service in the enemy forces, and persons who it is expected would furnish information or other aid to a hostile State.90

These measures may include, for example, requiring protected persons: (1) to register with and report periodically to the police authorities; (2) to carry identity cards or special papers; (3) to refrain from carrying weapons; (4) to refrain from changing their place of residence without permission; (5) to refrain from accessing certain areas; (6) to have an assigned residence; and (7) to be interned.91

This section addresses searches, interrogation, and general rules for measures of control and security applied to protected persons, which must be applied consistent with humane treatment requirements.92

General Authority of a Belligerent to Search and Secure Protected Persons and 10.6.1Their Property. The measures of control and security that a belligerent may take in regard to protected persons include searching and securing protected persons and their property when necessary as a result of the war (e.g., for security reasons and intelligence purposes).93

10.6.1.1 Searches of Protected Persons. The dignity and honor of the protected person being searched should be protected to the greatest degree possible under the circumstances.94 The person conducting the search should avoid doing or saying anything likely to be regarded as indecent. In some circumstances, it may be appropriate for a witness to

89 GC art. 27 (However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.). 90 1956 FM 27-10 (Change No. 1 1976) 26 (Measures of control are normally taken with respect to at least persons known to be active or reserve members of a hostile army, persons who would be liable to service in the enemy forces, and persons who it is expected would furnish information or other aid to a hostile State.). 91 GC COMMENTARY 207 (The various security measures which States might take are not specified; the Article merely lays down a general provision. There are a great many measures, ranging from comparatively mild restrictions such as the duty of registering with and reporting periodically to the police authorities, the carrying of identity cards or special papers, or a ban on the carrying of arms, to harsher provisions such as a prohibition on any change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, or even assigned residence and internment (which, according to Article 41, are the two most severe measures a belligerent may inflict on protected persons). A great deal is thus left to the discretion of the Parties to the conflict as regards the choice of means. What is essential is that the measures of constraint they adopt should not affect the fundamental rights of the persons concerned.). 92 Refer to 10.5 (Humane Treatment and Other Basic Protections for Protected Persons). 93 Compare 9.6 (Security Measures With Respect to POWs). 94 Refer to 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

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observe the search so as to protect both the person being searched from abuse and the person conducting the search from unfounded accusations of abuse.

10.6.1.2 Search of Female Protected Persons. It is appropriate for female protected persons to be searched by female personnel, if possible. This practice helps reduce the risk of accusations of indecent behavior.

A woman internee shall not be searched except by a woman.95

10.6.1.3 Securing Protected Persons With Handcuffs and Other Security Devices. When necessary for security reasons, protected persons may be secured temporarily with handcuffs, flex cuffs, blindfolds, or other security devices.96

10.6.1.4 Search of the Property of Protected Persons. When necessary as a result of the war, items in the possession of protected persons may be removed and searched, but property should be returned as soon as possible, absent a legal basis for the seizure of the property.97

Interrogation of Protected Persons. The law of war does not prohibit interrogation 10.6.2of protected persons, but specifies conditions and limitations for conducting interrogation.

10.6.2.1 Humane Treatment During Interrogation. Interrogation must be carried out in a manner consistent with the requirements for humane treatment, including the prohibition against acts of violence or intimidation, and insults.98

No physical or moral coercion shall be exercised against protected persons to obtain information from them or from third parties.99

10.6.2.2 Additional U.S. Law and Policy on Interrogation. U.S. law and policy impose additional requirements on the interrogation of protected persons.100

No Measures of Control More Severe Than Assigned Residence or Internment. If 10.6.3the measures of control mentioned in the GC for protected persons are considered to be inadequate by the Power imposing them, that Power may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43 of the GC.101

95 GC art. 97 (A woman internee shall not be searched except by a woman.). 96 Compare 9.6.2 (Securing POWs With Handcuffs and Other Security Devices). 97 Refer to 5.17 (Seizure and Destruction of Enemy Property). 98 Refer to 10.5 (Humane Treatment and Other Basic Protections for Protected Persons). 99 Refer to 10.5.3.1 (No Physical or Moral Coercion). 100 Refer to, e.g., 8.4.2 (Additional U.S. Law and Policy on Interrogation). 101 GC art. 41 (Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control

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Similarly, if the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.102

Support to Persons Who Are Assigned Residence Should Be Guided by 10.6.4Internment Standards. In applying the provisions of the second paragraph of Article 39 of the GC to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of the GC.103 In other words, if the State assigns residence to a protected person in its home territory that results in the protected person being unable to support himself or herself and his or her dependents, the State shall provide support to that protected person and his or her dependents, being guided as closely as possible by the standards of welfare set forth in Part III, Section IV of the GC, which provides regulations for the treatment of internees.

Similarly, in occupied territory, protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the GC.104 For example, the internment standards in the GC should also be a guide for support to protected persons and their dependents who are subject to assigned residence in occupied territory.

Refugees Who Do Not Enjoy the Protection of Any Government. In applying the 10.6.5measures of control mentioned in the GC to protected persons in its home territory, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.105 For example, a refugee who is not actually protected by his or her government should not be automatically subject to control measures simply on the basis of enemy nationality, but may be subject to any other recognized control measure if there are additional reasons for such action.106

more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43.). 102 GC art. 78 (If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.). 103 GC art. 41 (In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of this Convention.). 104 GC art. 78 (Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.). 105 GC art. 44 (In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.). 106 See 1956 FM 27-10 (Change No. 1 1976) 283b (The purpose of the foregoing article [37 of the GC] is to insure that refugees who may only technically remain enemy aliens are not on that basis automatically subject to control measures, notwithstanding the fact they actually are not protected by their government. However, the quoted provision does not in any way deny the right of a State to intern any such person or subject him to any other recognized measure of control when there is any additional reason that renders necessary the taking of such action as may be required for the security of the State in a moment of national crisis.).

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10.7 GENERAL TREATMENT OF PROTECTED PERSONS IN A BELLIGERENTS HOME TERRITORY

Regulation of the Situation of Protected Persons, in Principle, by Provisions 10.7.1Applicable to Aliens in Time of Peace. With the exception of special measures authorized by the GC, in particular by Articles 27 and 41 of the GC (i.e., measures of control and security, such as internment), the situation of protected persons shall continue to be regulated, in principle, by the provisions concerning aliens in time of peace.107 In any case, the following rights shall be granted to them:

They shall be enabled to receive the individual or collective relief that may be sent to them (e.g., by their home country or national or international relief organizations, such as the ICRC).

They shall, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the State concerned.

They shall be allowed to practice their religion and to receive spiritual assistance from ministers of their faith.

If they reside in an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same extent as the nationals of the State concerned.

Children under fifteen years, pregnant women, and mothers of children under seven years shall benefit from any preferential treatment to the same extent as the nationals of the State concerned.108

Opportunity for Employment and Other Support. Protected persons who, as a 10.7.2result of the war, have lost their gainful employment, shall be granted the opportunity to find paid employment.109 That opportunity shall, subject to security considerations and to the

107 GC art. 38 (With the exception of special measures authorized by the present Convention, in particular by Articles 27 and 41 thereof, the situation of protected persons shall continue to be regulated, in principle, by the provisions concerning aliens in time of peace.). 108 GC art. 38 (In any case, the following rights shall be granted to them: (1) They shall be enabled to receive the individual or collective relief that may be sent to them. (2) They shall, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the State concerned. (3) They shall be allowed to practise their religion and to receive spiritual assistance from ministers of their faith. (4) If they reside in an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same extent as the nationals of the State concerned. (5) Children under fifteen years, pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned.). 109 GC art. 39 (Protected persons who, as a result of the war, have lost their gainful employment, shall be granted the opportunity to find paid employment.).

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provisions of Article 40, be equal to that enjoyed by the nationals of the Power in whose territory they are.110

10.7.2.1 Support When Measures of Control Are Applied. Where a party to the conflict applies to a protected person methods of control that result in that person being unable to support himself or herself, and especially if such a person is prevented for reasons of security from finding paid employment on reasonable conditions, that party shall ensure his or her support and that of his or her dependents.111

10.7.2.2 Receipt of Allowances. Protected persons may in any case receive allowances from their home country, the Protecting Power, or the relief societies referred to in Article 30 of the GC (e.g., the ICRC).112

Compulsory Work for Protected Persons in a Belligerents Home Territory. 10.7.3Protected persons may be compelled to work only to the same extent as nationals of the party to the conflict in whose territory they are.113

If protected persons are of enemy nationality, they may only be compelled to do work that is normally necessary to ensure the feeding, sheltering, clothing, transport, and health of human beings and that is not directly related to the conduct of military operations.114

In the cases mentioned in the two preceding paragraphs, protected persons compelled to work shall have the benefit of the same working conditions and of the same safeguards as national workers, in particular as regards wages, hours of labor, clothing and equipment, previous training, and compensation for occupational accidents and diseases.115

110 GC art. 39 (That opportunity shall, subject to security considerations and to the provisions of Article 40, be equal to that enjoyed by the nationals of the Power in whose territory they are.). 111 GC art. 39 (Where a Party to the conflict applies to a protected person methods of control which result in his being unable to support himself, and especially if such a person is prevented for reasons of security from finding paid employment on reasonable conditions, the said Party shall ensure his support and that of his dependents.). 112 GC art. 39 (Protected persons may in any case receive allowances from their home country, the Protecting Power, or the relief societies referred to in Article 30.). 113 GC art. 40 (Protected persons may be compelled to work only to the same extent as nationals of the Party to the conflict in whose territory they are.). 114 GC art. 40 (If protected persons are of enemy nationality, they may only be compelled to do work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations.). 115 GC art. 40 (In the cases mentioned in the two preceding paragraphs, protected persons compelled to work shall have the benefit of the same working conditions and of the same safeguards as national workers, in particular as regards wages, hours of labour, clothing and equipment, previous training and compensation for occupational accidents and diseases.).

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If the above provisions are infringed, protected persons shall be allowed to exercise their right of complaint in accordance with Article 30 of the GC.116

Cancellation of Restrictive Measures After Hostilities. In so far as they have not 10.7.4been previously withdrawn, restrictive measures taken regarding protected persons shall be cancelled as soon as possible after the close of hostilities.117 Restrictive measures affecting their property shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.118

10.8 EXPULSION FROM AREAS WITHIN A BELLIGERENTS HOME TERRITORY AND DEPARTURE AND TRANSFERS OF PROTECTED PERSONS FROM A BELLIGERENTS HOME TERRITORY

Expulsion From Areas Within a Belligerents Home Territory. At the outbreak of 10.8.1hostilities, a State may expel or bar the citizens or subjects of the enemy State from its seaports, the area surrounding airbases, airports, and fortified places, areas of possible attack, and the actual or contemplated theaters of operation.

When such expulsion is decreed, the persons expelled should be given such reasonable notice, consistent with public safety, as will enable them to arrange for the collection, disposal, and removal of their goods and property, and for the settlement of their personal affairs.119

Although such expulsion must be implemented in a humane manner, the provisions of the GC addressing a States internment or assigned residence of civilians of an enemy State in its home territory (Articles 41-45), including the transfer of internees to other countries, do not apply to such expulsion.120

116 GC art. 40 (If the above provisions are infringed, protected persons shall be allowed to exercise their right of complaint in accordance with Article 30.). Refer to 10.5.6 (Facility for Applying to the Protecting Powers and Assistance Organizations Such as the ICRC). 117 GC art. 46 (In so far as they have not been previously withdrawn, restrictive measures taken regarding protected persons shall be cancelled as soon as possible after the close of hostilities.). 118 GC art. 46 (Restrictive measures affecting their property shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.). 119 See 1956 FM 27-10 (Change No. 1 1976) 27 (In modern practice at the outbreak of hostilities the expulsion of the citizens or subjects of the enemy is generally decreed from seaports, the area surrounding airbases, airports, and fortified places, areas of possible attack, and the actual or contemplated theaters of operation. When expulsion is decreed, the persons expelled should be given such reasonable notice, consistent with public safety, as will enable them to arrange for the collection, disposal, and removal of their goods and property and for the settlement of their personal affairs. Such persons do not, however, benefit from the provisions of Articles 41 through 45, GC (pars. 280-284).). 120 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 826 (The internment procedure laid down in Article 40 is similar to that provided for in Article 32 with regard to the authorization to leave the territory. Article 40 also empowers a court or administrative board, to be selected by the Detaining Power, to take decisions in cases of appeal against internment or assigned residence. The term assigned residence obviously denotes a measure applicable to one person or one family, not the prohibition to enter or reside in a specified zone imposed upon an anonymous body of people such as all the nationals of a certain State.).

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Departures of Protected Persons From a Belligerents Home Territory. All 10.8.2protected persons who may desire to leave the territory at the outset of or during a conflict shall be entitled to do so, unless their departure is contrary to the national interests of the State.121 The applications of such persons to leave shall be decided in accordance with regularly established procedures, and the decision shall be taken as rapidly as possible.122 Those persons permitted to leave may provide themselves with the necessary funds for their journey and take with them a reasonable amount of their effects and articles of personal use.123

If any such person is refused permission to leave the territory, he or she shall be entitled to have such refusal reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.124

Upon request, representatives of the Protecting Power shall, unless reasons of security prevent it, or the persons concerned object, be furnished with the reasons for refusal of any request for permission to leave the territory and be given, as expeditiously as possible, the names of all persons who have been denied permission to leave.125

Departures permitted under Article 35 of the GC shall be carried out in satisfactory conditions as regards safety, hygiene, sanitation, and food.126 All costs in connection therewith, from the point of exit in the territory of the Detaining Power, shall be borne by the country of destination or, in the case of accommodation in a neutral country, by the Power whose nationals are benefited.127 The practical details of such movements may, if necessary, be settled by special agreements between the Powers concerned.128

121 GC art. 35 (All protected persons who may desire to leave the territory at the outset of, or during a conflict, shall be entitled to do so, unless their departure is contrary to the national interests of the State.). 122 GC art. 35 (The applications of such persons to leave shall be decided in accordance with regularly established procedures and the decision shall be taken as rapidly as possible.). 123 GC art. 35 (Those persons permitted to leave may provide themselves with the necessary funds for their journey and take with them a reasonable amount of their effects and articles of personal use.). 124 GC art. 35 (If any such person is refused permission to leave the territory, he shall be entitled to have such refusal reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.). 125 GC art. 35 (Upon request, representatives of the Protecting Power shall, unless reasons of security prevent it, or the persons concerned object, be furnished with the reasons for refusal of any request for permission to leave the territory and be given, as expeditiously as possible, the names of all persons who have been denied permission to leave.). 126 GC art. 36 (Departures permitted under the foregoing Article shall be carried out in satisfactory conditions as regards safety, hygiene, sanitation and food.). 127 GC art. 36 (All costs in connection therewith, from the point of exit in the territory of the Detaining Power, shall be borne by the country of destination, or, in the case of accommodation in a neutral country, by the Power whose nationals are benefited.). 128 GC art. 36 (The practical details of such movements may, if necessary, be settled by special agreements between the Powers concerned.).

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The foregoing shall not prejudice such special agreements as may be concluded between parties to the conflict concerning the exchange and repatriation of their nationals in enemy hands.129

Protected persons who are confined pending proceedings or serving a sentence involving loss of liberty shall be treated humanely during their confinement.130 As soon as they are released, they may ask to leave the territory in conformity with Articles 35 and 36 of the GC.131

Transfers of Protected Persons From a Belligerents Home Territory. 10.8.3

10.8.3.1 Requirements for Transfer. Protected persons shall not be transferred to a Power that is not a Party to the GC.132 This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to their return to their country of residence after the cessation of hostilities.133

Protected persons may be transferred by the Detaining Power only to a Power that is a Party to the GC and after the Detaining Power has satisfied itself of the willingness and ability of such receiving Power to apply the GC.134

In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.135 In addition, U.S. policy provides that no detainee shall be transferred to another State if it is more likely than not that the detainee would be tortured in the receiving country.136

The provisions of Article 45 of the GC do not constitute an obstacle to the extradition, under extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offenses against ordinary criminal law.137

129 GC art. 36 (The foregoing shall not prejudice such special agreements as may be concluded between Parties to the conflict concerning the exchange and repatriation of their nationals in enemy hands.). 130 GC art. 37 (Protected persons who are confined pending proceedings or serving a sentence involving loss of liberty, shall during their confinement be humanely treated.). 131 GC art. 37 (As soon as they are released, they may ask to leave the territory in conformity with the foregoing Articles.). 132 GC art. 45 (Protected persons shall not be transferred to a Power which is not a party to the Convention.). 133 GC art. 45 (This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to their return to their country of residence after the cessation of hostilities.). 134 GC art. 45 (Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention.). 135 GC art. 45 (In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.). 136 Refer to 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured). 137 GC art. 45 (The provisions of this Article do not constitute an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law.).

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10.8.3.2 Responsibility Upon Transfer. If protected persons are transferred under such circumstances, responsibility for the application of the GC rests on the Power accepting them, while they are in its custody.138 Nevertheless, if that Power fails to carry out the provisions of the GC in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons.139 Such request must be complied with.140

10.9 INTERNMENT

The parties to the conflict shall not intern protected persons, except in accordance with the provisions of Articles 41, 42, 43, 68, and 78 of the GC.141

Principles Underlying the Internment of Protected Persons Compared to Those 10.9.1Underlying POW Internment. In some respects, the principles underlying the internment of protected persons are similar to the principles underlying the internment of POWs.142 For example, the internment of protected persons is non-punitive, the Detaining Power is responsible for the treatment of internees in its custody, and humane treatment is required.

However, the GC recognizes that the internment of protected persons is quite different in character from that of POWs by requiring the separation of internees from POWs.143 Protected persons interned for security reasons, in theory, have not participated in hostilities.144 Thus, their internment shall cease when the reasons that have necessitated it have ceased, which may occur before the end of the conflict.145 In practice, however, internment for security reasons may involve persons who have participated in hostilities, and such persons continued detention for the duration of the conflict may be justified in order to prevent their further participation in the conflict.

138 GC art. 45 (If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody.). 139 GC art. 45 (Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons.). 140 GC art. 45 (Such request must be complied with.). 141 GC art. 79 (The Parties to the conflict shall not intern protected persons, except in accordance with the provisions of Articles 41, 42, 43, 68 and 78.). 142 Refer to 9.2 (General Principles Applicable to the Treatment of POWs). 143 Refer to 10.10.1 (Segregation From Other Types of Detainees). 144 GC COMMENTARY 368 (The persons subjected to these measures [of assigned residence or internment in accordance with Article 78 of the GC] are not, in theory, involved in the struggle. The precautions taken with regard to them cannot, therefore, be in the nature of a punishment.). 145 Refer to 10.9.5 (Release As Soon As Reasons for Internment No Longer Exist).

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On the other hand, internees are not members of the armed forces and, thus, in certain respects, have not earned the special privileges that POWs have earned.146 For example, although internees receive allowances, internees do not receive specified advances of pay like POWs.147 Similarly, internees who have successfully escaped do not benefit from the immunity from punishment applicable to POWs who have successfully escaped.148

Procedure for Internment or Assigned Residence on Home Territory. 10.9.2

10.9.2.1 Internment or Assigned Residence Only if Absolutely Necessary. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.149

10.9.2.2 Voluntary Internment. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his or her situation renders this step necessary, he or she shall be interned by the Power in whose hands he or she may be.150

10.9.2.3 Reconsideration and Periodic Review. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.151 If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favorable amendment of the initial decision, if circumstances permit.152

10.9.2.4 Notification to the Protecting Power. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence,

146 See, e.g., II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 681 (Mr. WERSHOF (Canada) suggested that the first paragraph should be deleted. He failed to see why the Detaining Power should make an allowance of any kind to enemy aliens whom it considered dangerous. He was of the opinion that the analogy between internees and prisoners of war had been carried too far. Prisoners of war had earned a standard of treatment which had not been earned by internees.). 147 Refer to 10.19.2 (Internee Allowances); 9.18.3 (Advance of Pay). 148 Refer to 10.26 (Internee Escapes); 9.25.1 (No Punishment for Successful Escape). 149 GC art. 42 (The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.). 150 GC art. 42 (If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.). 151 GC art. 43 (Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.). 152 GC art. 43 (If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.).

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or who have been released from internment or assigned residence.153 The decisions of the courts or boards mentioned in the first paragraph of Article 43 of the GC shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.154

Procedure for Internment or Assigned Residence in Occupied Territory. The 10.9.3requirements in the GC for the procedure for assigned residence or internment of protected persons in occupied territory are not as elaborate as those applicable in a belligerents home territory because of concerns that it would not be practicable to implement the requirements applicable in a belligerents home territory in view of the disorder that might prevail in occupied territory.155

10.9.3.1 Internment or Assigned Residence for Imperative Reasons of Security. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.156

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the GC.157 This procedure shall include the right of appeal for the parties concerned.158 Appeals shall be decided with the least possible delay.159 In the event of the decision being upheld, it shall be subject to periodic review, if possible every six months, by a competent body set up by the Occupying Power.160 Competent bodies to review the internment or assigned residence of protected persons may be created with advisory functions only, leaving the final decision to a high official