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THE Swiss Government have invited us and other interested Powers to a representative Diplomatic conference to open at Geneva on 21st April, 1949, for the purpose of discussing four new Geneva Conventions, viz. :-

(a) a

(b) a

(c) a

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Red Cross Convention" for the amelioration of the condition of the wounded and sick on battlefields, to replace that signed at Geneva on 27th July, 1929;

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Prisoners of War Convention" relating to the treatment of prisoners of war, to replace that signed at Geneva on 27th July, 1929; Maritime Convention" to apply the principles of (a) to maritime warfare and to replace that signed at The Hague on 18th October, 1907 (10th Hague Convention);

(d) a Convention for the protection of civilians in time of war.

If this conference reaches agreement on new texts, a second session will be held a few months later (after Governments have had an opportunity to consider them) to sign the Conventions.

2. The substance of the proposed Conventions was examined in April, 1947, by experts from the Allied nations of the Second World War, who met in Geneva at the invitation of the International Red Cross Committee. The results of this meeting have been examined by two interdepartmental committees set up with the concurrence of the Foreign Office. The first of these Committees (under a War Office Chairman) examined (a) and (b) above, remitting the examination of (c), the Maritime Convention, to a Sub-Committee under an Admiralty Chairman. The proposed Civilian Convention was examined by a Committee under the Chairmanship of the Home Office.

The present paper is concerned only with the work of the first Committee, which contained representatives of all Departments of State directly concerned and invited attendance from other Departments less directly concerned.

3. The Committee's report is attached; it covers (a), (b) and (c). Its recommendations are unanimous. Copies of the report have been sent informally to the self-governing members of the Commonwealth and to the United States. Part I of the report sketches the background on which these questions arise. Part II deals with important questions of policy. The Committee's recommendations on these questions are to be found in paragraph 221 of the report.

Part III deals with other important matters as to which the Committee regard their recommendations as being consistent with the policy of His Majesty's Government.

Part IV covers matters which the Committee regarded as within the competence of official channels to decide.

Part V considers briefly the report of the Admiralty Sub-Committee on the proposed Maritime Convention (Appendix B) in so far as the recommendations therein affect the corresponding provisions of the Red Cross or Prisoners of War Conventions.

4. We recommend that the Cabinet should (with the reservations tabled below) approve the recommendations of the Committee as a basis upon which the representatives of His Majesty's Government should proceed at the conference of experts expected to be held this autumn. In the paragraphs which follow we draw the attention of our colleagues to the more important of these recom- mendations and to two specific points on which we feel that the recommendations of the Committee should not be wholly accepted.

Civil War, Colonial Conflicts and Undeclared War

5. International law governing the conduct of belligerents does not in terms apply to any conflict which is not a recognised war between States. Such conflicts as those between the Chinese and Japanese before the Second World War, the Spanish Civil War, and the hostilities which developed in the countries occupied by Germany between the German Forces and organised bodies of nationals of

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those countmaghave2led 488 strong movement to secure at the fe&eneva Convention shall apply in terms to civil war, colonial conflicts and undeclared war. (I) Civil War

The 1947 Experts' Conference recommended that :--

"In the case of civil war in any part of the home or colonial territory of a Contracting Party, the principles of the Convention shall be equally applied by the said Party, subject to the adverse Party also conforming thereto."

In practice, a Sovereign Power could not be bound to apply the Conventions if these provisions were included, unless-

(a) the Sovereign Power itself accepted the existence of a state of war and,

in addition,

(b) was reasonably satisfied that the insurgents intended and had the power

to carry out the Conventions.

It is to be presumed that any British Government would apply the standards of the Conventions to the wounded and sick and prisoners taken from the insur- gents in any conflict which became "war" in any recognised sense of the word. If this is so, the proposed provision would not impose a burdensome obligation upon His Majesty's Government. Ex-members of the Resistance Movements on the Continent, many of whom were at the 1947 Experts' Conference, emphasised that it was impossible to secure humane treatment for prisoners captured by the Resistance Forces from an occupying force in an occupied country, so long as the Occupying Power did not accept obligations to treat members of the Resistance Movement with humanity.

The opposite view has been taken hitherto so far as the Civilian Convention is concerned, on the grounds that no Sovereign Government could accept a position in which it undertook to treat civilians who assisted insurgents otherwise than as rebels and traitors. We do not dissent from this view as an abstract statement of strict legal and constitutional principle, and we recognise that there are differences between organised insurgent forces and the civilian population generally. Nevertheless we suggest that, if a civil conflict ever reached a point at which rebel forces were holding some part of British territory under their control and were taking prisoners from the regular forces, it would be in the interest of His Majesty's Government to accept the proposed "civil war" obligation, if by doing so there would be the least chance that they would save the members of the Armed Forces engaged in the conflict from maltreatment by the rebel forces. There need, in practice, be no question of recognising the rebels de jure in order to bring the provisions into operation; for some intermediary, such as the International Red Cross Committee, would probably secure the agreement of each side in terms which would be accepted by the other side as representing reciprocity, without any direct agreement between the sides. This method of avoiding the problem of recognition has been adopted with some success in the conflict between Arabs and Jews in Palestine.

We recommend, therefore, that the Cabinet should accept the recommendation of the Committee on this point, which is set out in paragraph 34 of their report, in so far as the three Conventions (Red Cross, Prisoners of War and Maritime Conventions) are concerned, leaving over the question of the application to the civilian population of the Civilian Convention in time of civil war to be considered when the report of the Home Office Committee comes up for approval. In our opinion, the obligations should cease with the termination of hostilities.

(II) Undeclared War

The principle of the recommendation of the Committee is acceptable, but it will be necessary in drafting the Article containing the provisions relating to undeclared war (paragraph 30) to ensure that the Conventions shall become applicable when there is occupation of territory accompanied by hostilities, and not to any and every case of occupation. A new draft Article (replacing the first and third paragraphs of the Geneva draft Article given in paragraph 30) has been agreed between the War Office and the Foreign Office and reads:-

(1) "The present Convention shall be applied between the High Contracting Parties throughout the duration of war or hostilities, between any two orlagce2df them whether such hostilities havegér2 have fb88been recognised by the parties as constituting a state of war."

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Page Braviefotould include a state of occupatiotaceomapanied by hostilities and this is clearly the only kind of occupation the Conventions ought to cover.

Partisans

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6. Outside the question of the whole-time insurgent force in a civil war (referred to in the previous paragraph) there is also the case of the partisan." This loose term is used to cover:-

(a) irregular combatants,

(b) members of a military organisation for resisting an occupying power, and members of the Home Guard or similar organisations, and the countries

occupied by the Germans during the Second World War have pressed strongly for the protection of the Conventions to be extended to these

cases.

:

The last category mentioned above is included because the crux of the problem is to find a formula which would maintain the principle, hitherto firmly held in international law, that, in war, an individual must choose to be either a combatant or a non-combatant, and that he may not claim the rights of protection given by the laws of war to a combatant, if he is continually changing from one status to the other. The essential character of the Home Guard (except when called out for permanent service) and of Resistance Movements, as they were known in the Second World War, is that they continue their civilian occupations when they are not required for actual operations.

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Discussions at the 1947 conference failed to produce an agreed solution, but the Committee have now recommended a solution, set out in detail in paragraph 41 of the report, which there is reason to suppose might be acceptable to the "parti- countries. The essence of this proposal is that the partisan concerned must belong to a force which obeys the laws of war when operating and that his head- quarters are capable of being communicated with and of replying to communica- tions. The recommended solution would mean, in practice, that it would be for the sovereign or occupying power concerned to satisfy itself that bodies or in- dividuals of these classes did, in fact, satisfy the conditions. Thus the onus of proof would be on the partisan.

We recommend that the Cabinet should approve this recommendation.

Derogations and Intangibility of the Conventions

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7. There are here two distinct but closely linked problems. The represen- tatives of His Majesty's Government have maintained the view that the Con- ventions should recognise that special circumstances may arise in which it will be impossible to carry out the conditions of the Convention in full. Clearly, food or water supplies for a prisoners of war camp may be interrupted for a time by heavy bombing. On the other hand, those countries having close experience of German occupation oppose this view, arguing that any "escape" clause will be stretched beyond reasonable limits by an unscrupulous Power, and that it would, therefore, be better to make no allowance for derogations in the Conventions, leaving Powers concerned to defend themselves after the event by pointing to unavoidable circumstance.

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Our view is that the Conventions should allow derogations. As a result of further discussions between the War Office and the Foreign Office agreement has been reached on a draft Article dealing with this question, to be placed at the beginning of the Convention, reading as follows:-

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"Derogations from the present Convention shall be permissible only:

(1) where exceptions to the present Convention are rendered inevitable

by the conditions of capture;

"(2) where exceptional circumstances arise which make it impossible, for the time being, to carry out in full all the provisions of the present Convention.

Nevertheless, these exceptions shall not infringe the fundamental principles of the present Convention, and shall cease from the time at which the circumstances necessitating such exceptions are no longer in being.'

Page recommend that this Article and the Commate View

713 of 488

given in paragraph 54, be accepted.

this matter,

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Intangibility age 214 of 488