² The conventions (Dept. of State Publication No. 3938, August, 1950) will be referred to hereinafter as the Sick and Wounded, Maritime Prisoner of War and Civilian, respectively. The four conventions, which entered into force October 21, 1950, have been ratified by the following signatories: Chile, Czechoslovakia (with reservations), Denmark, France, The Holy See, India, Israel (with reservations), Italy, Lebanon, Liechtenstein, Monaco, Norway, Pakistan, Switzerland, and Yugoslavia (with reservations). Adherences have been deposited by Jordan and the Union of South Africa. The Bepublic of the Philippines has ratified only the Convention for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field.

³ Pietet, “The New Geneva Conventions for the Protection of War Victims,” this Journal, Vol. 45 (1951), p. 462.

⁴ The opinions expressed in this paper are those of the authors and not necessarily those of the Government of the United States.

⁵ See e.g., Art. II of Hague Convention IV, and Art. IX of Hague Convention XI.

⁶ Joint Committee Report to the Plenary Assembly, Final Record, Vol. II, Sec. B, p. 128.

⁷ Final Record, Vol. II, Sec. B, p. 12.

⁸ Art. 3 reads as follows:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.

(2) The wounded and sick shall be collected and cared for.

“An impartial humanitarian body, such as the International Committee of the Bed Cross, may offer its services to the Parties to the conflict.

“The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

“The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

⁹ See also Art. 34 of the Civilian Convention.

¹⁰ Art. 7, Civilian Convention.

¹¹ Art. 8, Civilian Convention.

¹² Art. 9, Civilian Convention.

¹³ The Soviet Delegation at the Geneva Conference sought to provide that the Protecting Power or its delegates “may not infringe the sovereignty of the State or be in opposition to State security or military requirements.” The proposal was decisively rejected (Joint Committee Report to the Plenary Assembly, Final Record, Vol. II(B), p. 1), since it was clear that under it a Protecting Power could be prevented from carrying out its functions. As the Report correctly stated, “It is accepted in international law that a commitment always involves, by force of circumstances, a certain restriction of the freedom of action of the State which has entered into it, but that the sovereignty of the State is not thereby affected, since the signature of a Convention itself constitutes a manifestation of its sovereignty and a declaration of the will to be bound by it.”

¹⁴ Soviet Delegation, Report of Joint Committee to Plenary Assembly, Final Record, Vol. II, Sec. B, p. 130.

¹⁵ Note, for example, that in the Korean conflict the North Koreans, although agreeing to apply the Prisoner of War Convention, have made no effort to agree on a Protecting Power and have not permitted a neutral state or the International Committee of the Bed Cross to enter territory under their control to assist in the application of the convention and to observe whether it is being applied.

¹⁶ Art. 12 of the Civilian Convention.

¹⁷ Report of the Joint Committee to the General Assembly, Final Becord, Vol. II, Sec. B, p. 131.

¹⁸ Soviet Delegation. See Final Becord, Vol. II, Sec. B, p. 120.

¹⁹ Ibid., Vol. II, Sec. B, p. 370.

²⁰ Ibid., Vol. I, p. 361.

²¹ Art. 13.

²² Art. 24, 1929 Convention.

²³ Act of Jan. 5, 1905 (33 Stat. 599) as amended.

^23a 36 Stat. 2371.

²⁴ Final Record, Vol. II (A), p. 202.

²⁵ Art. 1, Geneva POW Convention, 1929; Art. I, Hague Rules of Land Warfare.

²⁶ Art. 81, Geneva POW Convention, 1929; Art. XIII, Hague Rules of Land Warfare.

²⁷ See Art. I, Hague Rules of Land Warfare.

²⁸ Final Becord of the Diplomatic Conference of Geneva of 1949, Vol. II, Sec. A, p. 562.

²⁹ II Rollin, Le Droit Moderne de la Guerre (1920), p. 250; VII Hackworth, Digest of International Law, p. 244; Baldwin, this Journal, Vol. 2 (1908), p. 311.

³⁰ Rollin, op. cit., p. 250; Fauchille, TraitS de Droit International Public (1921), p. 519.

³¹ Bonflls, , Manuel de Droit International Public (7th ed. rev. Fauchille, 1914), pp. 930–931 Google Scholar; Fauchille, op. cit., pp. 518–522.

³² Arts. VI–VIII, supra; see Proceedings of the Hague Peace Conferences, Vol. I, pp. 261, 268, 229–232, 657.

³³ Rollin, op. cit., p. 249.

³⁴ Oppenheim, International Law (6th ed. rev. Lauterpacht, 1944), p. 213; VII Hack-worth, op. cit., p. 247; Fauchille, op. cit., pp. 523, 525.

³⁵ International Law, Vol. III, p. 2065.

³⁶ Proceedings of the Hague Peace Conferences, Vol. III, p. 986.

³⁷ See also Art. 2, Hague Rules of Land Warfare.

³⁸ Final Becord, Vol. II (A), p. 562.

³⁹ Art. 5, underscoring supplied.

⁴⁰ See also Art. 85, infra.

⁴¹ Cf. Chap. II, Vth Hague Convention.

⁴² See Art. XIII, Vth Hague Convention.

⁴³ Art. 33. See also Art. 4, par. C.

⁴⁴ Ibid. See also Art. 28, Siek and Wounded Convention of 1949.

⁴⁵ Art. 12.

⁴⁶ VIIth International Red Cross Conference (1948).

⁴⁷ Dillon, “Development of Law Eelative to Treatment of Prisoners of War,” Miami Law Quarterly, December, 1950.

⁴⁸ Art. 50. In modern total warfare all work aids in some respect the prosecution of the war; hence, the necessity of an affirmative, detailed approach.

⁴⁹ Art. 52.

⁵⁰ It is noted in this connection that the use of prisoners of war for mine removal during World War II was condemned as a war crime. (British court decision in Von Manustein case.)

⁵¹ Art. 66.

⁵² Art. 99.

⁵³ Art. 102.

⁵⁴ Final Record, Vol. II, See. B, p. 311.

⁵⁵ Final Record, Vol. I, p. 355.

⁵⁶ Art. 106.

⁵⁷ Art. 126.

⁵⁸ Art. 108.

⁵⁹ Art. 101.

⁶⁰ 327 U. S. 1; this Journal, Vol. 40 (1946), p. 432.

⁶¹ 327 U. S. 21.

⁶² Ibid., p. 78.

⁶³ Dept. of State Bulletin, Vol. 8 (1943), p. 337 et seq.

⁶⁴ The Charters of the International Military Tribunal (Nuremberg) and the International Military Tribunal for the Far East, and United States Military Government Ordinance No. 7 (under which the United States conducted subsequent war crimes trials at Nuremberg as contemplated by Control Council Law No. 10) provided that “The tribunals] shall not be bound by technical rules of evidence. It [they] shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it [they] deems to have probative value.” Similarly, the British Royal Warrant of June, 1945, under which British military courts tried many war crimes cases, provided that they “may take into consideration any oral statement or document appearing on the face of it to be authentic, providing the statement or document appears to the Court to be of assistance in proving or disproving the charge, notwithstanding that such statement or document would not be admissible as evidence in proceedings before a Field General Court Martial.” Almost identical provisions appear in the Australia War Crimes Act, 1945, and the Canada War Crimes Act, 1946. Also, the orders prescribing the procedure of the American military commissions which tried war crimes cases in Germany and Japan relaxed the rules of evidence applicable in courts-martial.

⁶⁵ 32 Stat. 1803.

⁶⁶ 36 Stat. 2277.

⁶⁷ Art. 4, Civilian Convention.

⁶⁸ Art. 27, Civilian Convention.

⁶⁹ Art. 33, Civilian Convention. Art. 47 of the Hague Regulations provides that “Pillage is formally forbidden.” Hague Art. 50 provides that “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”

⁷⁰ Art. 31, Civilian Convention. A similar provision appears in Art. 44 of the Hague Regulations.

⁷¹ Art. 34, Civilian Convention. Heretofore, the taking of hostages as an extreme measure has been recognized, Hyde, International Law (2d rev. ed.), sec. 700; Oppenheim, International Law, Vol. II (6th rev. ed.), pp. 460 et seq.; U. S. Rules of Land Warfare, FM 27–10 (1940), pp. 89–90, although only Germany has taken hostages on a large scale in modern times. The Charter of the International Military Tribunal listed the “killing of hostages” as a war crime. However, in The Hostages Case, Tribunal No. V held that only the killing of hostages without having exhausted all other means of combatting illegal warfare, without a trial, or in excessive numbers, constituted a war crime. XI Trials of War Criminals Before the Nuremberg Military Tribunals, p. 1250.

⁷² Final Becord, Vol. II, See. A, p. 719.

⁷³ Ibid., pp. 762, 805; Vol. II, Sec. B, p. 508.

⁷⁴ Art. 6, Civilian Convention.

⁷⁵ Art. 35, ibid. 22 U.S.C. 223 et seq. authorizes the President in time of war to issue regulations controlling the departure of persons from the United States. For the text of such regulations, see 22 C.F.B. 53.61 et seq. Art. 35 will be satisfied by the establishment of an administrative board (which may be within an existing agency) to review denials of departure. It is not intended to require a trial of security matters, but rather to provide a safeguard against mistaken or oppressive action by a single official.

⁷⁶ Art. 39, ‘Civilian Convention.

⁷⁷ Art. 50, Prisoner of War Convention.

⁷⁸ Art. 40, Civilian Convention.

⁷⁹ Art. 95, ibid.

⁸⁰ Art. 42, ibid,

⁸¹ Arts. 39 and 41, Civilian Convention.

⁸² The elaborate procedures of the Emergency Detention Act of 1950 (Title II of the Internal Security Act of 1950) more than satisfy this requirement.

⁸³ Ludecke v. Watkins, 335 U. S. 160 (1948); this Journal, Vol. 42 (1948), p. 937.

⁸⁴ This construction of Art. 44 is consistent with the more detailed provisions on this problem in Arts. 8 and 9 of the Convention Relating to the Status of Refugees, sponsored by the United Nations.

⁸⁵ See supra, p. 406. Art. 45 specifically provides that this prohibition shall not preclude “the extradition, in pursuance of extradition treaties concluded before the out-break of hostilities, of protected persons accused of offences against ordinary criminal law.”

⁸⁶ The omitted second paragraph of Art. 5 relates to security in occupied territory and is discussed later at p. 420.

⁸⁷ See also par. 4 of Art. 27, which overrides the prohibition in the same section against drawing distinctions among protected persons upon the basis of their political opinions. Obviously, any reasonable application of wartime security measures will be based in part upon the apparent loyalties of alien enemies.

⁸⁸ 32 Stat. 1803.

⁸⁹ 36 Stat. 2277.

⁹⁰ Fahy, “Legal Problems of the German Occupation,” 47 Michigan Law Review, 11, 13; Jennings, “Government in Commission,” 23 British Yearbook of International Law (1946), 112, 133–141. Compare Rheinstein, “The Legal Status of Occupied Germany,” 47 Michigan Law Review 23, 27; and see Cobb v. U. S., 191 Fed. (2d) 604, 610 (C. A. 9, 1951).

⁹¹ In the Stockholm draft, what is now Art. 6 provided that “ The application shall cease at the close of … occupation.” Final Record, Vol. I, p. 114. At Geneva, the final version was a compromise between the United States’ proposal (CDG/CTV. 15, April 26, 1949) that the entire convention cease to apply in occupied territory one year after the general close of military operations, and the view of countries which had recently experienced military occupation that certain protective provisions should continue throughout the occupation. The discussion at Geneva assumed that military occupation for the purpose of the Civilian Convention is a condition which is not terminated by the ultimate military victory of the Occupying Power. Final Eecord, Vol. II, Sec. A, pp. 623–625, 775–776, 815–816.

⁹² The argument that annexation during a war made the Hague Rules inapplicable was rejected by the International Military Tribunal (Nazi Conspiracy and Aggression, Opinion and Judgment, p. 83) as follows:

“A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. … The doctrine [of subjugation] was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after the 1st September 1939.”

⁹³ This simply restates Hague Article 23.

⁹⁴ Article 5 provides with respect to occupied territory that:

“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.

“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. 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.”

⁹⁵ Final Record, Vol. II, See. A, p. 670.

⁹⁶ See ibid., p. 833.

⁹⁷ Art. 65, Civilian Convention.

⁹⁸ Art. 66 originated in Art. 4 of Annex C of the draft of the Civilian Convention prepared by the Conference of Government Experts which met in Geneva in 1947. Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (1947), p. 305. It may be traced as Art. 57 of the draft proposed by the International Committee of the Red Cross to the International Red Cross Conference in Stockholm in 1948, and as Art. 57 of the Stockholm draft. Final Record, Vol. I, p. 123. Its evolution at Geneva in 1949 appears in the report of Drafting Committee No. 2 of Committee III (CDG/CIV. 531, p. 1, July 5, 1949), in the explanation of the rapporteur of Drafting Committee No. 2 (Final Record, Vol. II, Sec. A, p. 765), and in the report of Committee III (ibid., p. 833).

⁹⁹ This restriction upon the imposition of the death penalty is not applicable to violations of the laws and customs of war.

¹⁰⁰ Final Record, Vol. II, Section B, pp. 424–426.

¹⁰¹ The text of the United States’ reservation to Article 68 is as follows:

“The United States reserves the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, without regard to whether the offences referred to therein are punishable by death under the law of the occupied territory at the time the occupation begins.”

A similar reservation was made at the time of signing by the United Kingdom, Canada, The Netherlands and New Zealand.

¹⁰² Sick and Wounded, Art. 49; Sick and Wounded at Sea, Art. 50; Prisoner of War, Art. 129; Civilian, Art. 146.

¹⁰³ See the Fourth- Report of the Special Committee of the Joint Committee, Final Record, Vol. II, See. B, p. 116.

¹⁰⁴ Ex parte Quirin (1942), 317 U. S. 1; this Journal, Vol. 37 (1943), p. 152.

¹⁰⁵ In re Yamashita (1946), 327 U. S. 1; this Journal, Vol. 40 (1946), p. 432.

¹⁰⁶ See Arts. 3, 18 and 134 of the Uniform Code of Military Justice.

¹⁰⁷ American civilians accompanying the armed forces in occupied territory are subject to trial by military tribunals. Madsen v. Einsella, 343 U. S. 341, below, p. 556.

¹⁰⁸ See the Fourth Report of the Special Committee of the Joint Committee, Final Record, Vol. II, Sec. B, p. 116.

¹⁰⁹ Ibid., p. 115. It should be noted that the conventions are entirely silent as to the trial of grave breaches before international tribunals.

¹¹⁰ Note that a prisoner of war charged with pre-capture offenses (i.e., war crimes) must henceforth, by reason of Arts. 85, 87 and 102 of the Prisoner of War Convention, be tried by the same courts and procedures as members of the armed forces of the Detaining Power; in the case of the United States, this means trial by a court-martial in accordance with the Uniform Code of Military Justice. See supra, p. 409. Also, a party to the conventions trying one of its own nationals for grave breaches is subject only to its own national law, since its own nationals are neither prisoners of war nor protected persons as defined in Art. 4 of the Civilian Convention. Final Eecord, Vol. II, Sec. B, p. 115.

¹¹¹ Wounded and Sick, Art. 50; Wounded, Sick and Shipwrecked at Sea, Art. 51; Prisoner of War, Art. 130; Civilian, Art. 147.

¹¹² The “grave breaches” defined in the conventions parallel to a considerable extent the definitions in Art. 6 (b) and (c) of the Charter of the International Military Tribunal at Nuremberg.