(a)
those who have surrendered in large numbers in the course of a general cessation of hostilities in a particular
10.
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Page
(b)
theatre of operations, and who, as a condition of their surrender, continue to be organised administratively as units and formations of their own forces under the orders
of theirsson officers, shall be "Surrendere Gnofy Personnel" and not "Prisoners of War" ';
individuals may at any time, and in the discretion of the detaining military Commander, be removed from category of "Surrendered Enemy Personnel" and made "Prisoners of War"; but that, in no circumstances, could any "Prisoner of War" become "Surrendered Enemy Personnel"; (note: after the termination of hostilities in the Second World War, the Allion?
interchanged individuals between the two categories
·
at will);
(a) subject to the will of the Commander to whom he had
surrendered, the Commander of "surrendered enemy personnel" should be responsible for the discipline and maintenance of his forces, and to this end he should be under an obligation to use all resources available to him; (
(a) if the resources available to the surrendered Commander
proved insufficient to provide adequate food, accommodation, medical treatment, recreational and educational facilities, etc., the Commander of the forces to whom he surrendered should, so far as was practicable having regard to his other commitments, supplement those resources sufficiently to enable progress to be made towards the standards laid down for prisoners of war in these matters;
(e) administration of the surrendered forces, including pay,
working conditions, discipline, notifications to next-of-kin, documentation, etc., should be dealt with under their own regulations, the Commander to whom surrender is made giving such external assistance (e.g. facilities for correspondence, eto.) as might be practicable. (C.R.G.C./M(48)8, Item 62)
•
.
51. Derogations from the Convention. The 1929 Prisoners of War Convention allows exceptions (French = derogation) such "as the conditions of such capture render inevitable" in the case of all prisoners of war captured "in the course of operations, of maritime or aerial war" but these exceptions must not infringe "the fundamental principles" of the Convention and must cease as soon as the captured persons reach à prisoners of war camp. It was generally recognised at the 1947 Geneva Conference of Government Experts that, in practice, derogations from the full standards of treatment laid down in the Convention were inevitable:-
(a)
as a general rule, in the period immediately following capture, which, in the case of large numbers being oaptured, might be a lengthy period;
(b) at any time during captivity where exceptional circumstances
arise, e.g. heavy bombardment might prevent the arrival of supplies at camps or might break the supply pipes for water.
52. Nevertheless there was very strong resistance to any proposal to insert in the Convention itself authority to derogate from its letter; and this came largely from the countries which had experienced German Occupation. They took the line that any provision which included an exceptional clause or such phrase as "so far as possible", would inevitably be quoted by an unscrupulous Power as authority for not applying the Convention in full. This group of delegations argued that if the Convention itself did not recognise any exceptions, then the Detaining Power which was forced by circumstances to make exceptions would be obliged to furnish proof of the impossibility of carrying oui the obligations of the Convention in those respects where it had departed from them.
53.
•
In these circumstances the 1947 Conference did not agree upon any change iPage 23 me for8the 1929 Convention in this patte536 of 488
54. My Committee recommend that "derogations" as allowed by the 1929
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Prisoners of War Convention (see paragraph 51 above) should be authorised by any future Convention in the case of land warfare as well as maritime or aerial warfare; and that the derogations should not be limited to the time immediate reinowing capture and before arrival at a prisoners of war camp but should also apply to other exceptional times when it was impracticable to maintain the Convention standards. (C. R. G. 0/(47)3, Item 22)
The view was strongly pressed at the 1947 Geneva
Conference of Government Experts, by the one from the countries
.
occupied by Germany during the Second World War that the provisions of the Prisoners of War Convention should be absolutely "intangible" by agreements between Governments, or by terms of surrender or armistice; except where such agreements etc. had the effect of not worsening the conditions of the prisoners of war. It was particularly emphasised that this "intangibility" should continue until the complete and final liberation of prisoners of war; and it was directed also against the transformation of prisoners of war into some other category e.g. "Surrendered Enemy Personnel" (see paragraphs 44 - 50 above).
56. This view was approved by a large majority at the 1947 Conference and they recommended that Article 83 of the 1929 Prisoners of War Convention should read
"The High Contracting Parties reserve the right to conclude particular Conventions on all questions relating to prisoners of war, concerning which it may appear desirable to make special provision. Such Conventions shall in no circumstances
reduce the standard of treatment for prisoners of war, as regulated by the present Convention". (C. R. G. C./P(47)1, page 117).
57. The United Kingdom delegation at the 1947 Conference resisted this recommendation on the grounds that
A
(2)
(b)
to seek to limit the rights of Sovereign States to conclude special agreements regarding the treatment of their ownr nationals, would be to risk frequent violations of this provision;
it would often be difficult to know whether a particular agreement would work out favourably to the prisoners of war concerned or not.
As an example of (b), if the Convention laid down a minimum number of letters a prisoner of war should be allowed to write (as many delegations desire), and, for censorship or transport reasons it became impossible for two adverse belligerents to dispose of so many letters regularly, would an agreement to reduce the number of letters be permitted? It might be better for the prisoners of war to write one letter each a month, with an assurance that it would be despatched, than to be able to write three, none of which might, owing to congestion, be despatched for several months.
58.
The Foreign Office Legal Adviser advised my Committee that the fundamental principles of the Prisoners of War Convention should be regarded as part of the Law of Nations, from which particular Nations were not at liberty to agree to depant, without the consent of all Parties to the Convention; but that there would be no objection in principle, to modifications of other provisions by agreement between two adverse Powers (C. R. G. C.M(47)3, Item 22).
59.
The difficulty in securing agreement at an International Conference on the basis of the advice in paragraph 58 above, would be the absence of any common understanding of what constitute "the fundamental principles" of the Prisoners of War Convention. Nevertheless, an agreement at an International Conference is unlikely, unless some compromise can be reached between the views set out in paragraphs 55 and 57 above.
bo.
Kingdom My Paponittee othegefore recommend that the United K delegation to a future International Conference Hafla 3ek Arsement on a basis which would allow the maximum liberty to belligerents to modify as they think fit by mutual agreement, the provisions of the
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Convention provided that the fundamental requirements of decent treatment, fair trial, proper punishment and ultimate repatriation are not infringed in any way, (0, B. GO(48)12, Item 91)
61.
Yge