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ARMY COUNCIL SECRETARIAT

Paper No.: C.R.G.C./P(48)55

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1.

INTERDEPARIMENTAL COMMITTEE ON THE

REVISION OF THE GENEVA CONVENTIONS

REPORT BY THE CHAIRMAN

PART I INTRODUCTION

I submit the Report of the Interdepartmental Committee on the Revision of the Geneva Conventions which was appointed on 0103/8357 in July 1947 to consider the Red Cross. and Prisoners of War Conventions and a proposed Maritime Convention, to replace the 10th Hague Convention, in preparation for an international Conference at which the text of revised Conventions would be agreed and signed.

2.

This Report is in six parts, viz:-

Part I - Introduction, "inoluding a brief summary of the background

Part II - Questions of Polioy on which decisions are necessary

Part III

Other important questions on which, I consider, my Committee's recommendations are in accord with United Kingdom policy, but which should, nevertheless, be positively approved

Part IV - Other questions which, in my view, do not need consideration

by higher authority, but which are set out for reference

Part V - The proposed Maritime Convention in relation to the

Prisoners of War and Red Cross Convention

Part VI - Conclusion.

It will be observed from Part III that it mentions each Article in the Prisoners of War and Red Cross Conventions: the arguments in Part II are not repeated but cross-references are given to them under the relevant Articles; and similarly, those Artioles dealt with in Part IV are mentioned in Part III with cross-references to Part IV. Part III therefore contains an "Artiole Index" to the whole Report.

3.

There are also Appendices as follows:-

Appendix A -

Appendix B -

Appendix C -

Appendix D

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List of paragraphs to be referred to Chiefs of Staff

Report of the Sub-Committee on the Maritime Convention

Report of the Sub-Committee on Partisans

Report of the Sub-Committee on the Treatment of Women

Appendix E-Report of the Technical Working Party on Compensation

Appendix F - List of members of the Committee and attendances

Pagen36 of 488st of members of Working Partage 206 sufb48mmittees.

The texts of the existing Conventions (see paragraph 6 below), of the

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amended texts recommended by the 1947 Geneva Conference of Government Experts (see paragraph 13 below) and revised texts implementing the recommendations of my Committee will be circulated as C.R.G.C./P(48)56. 4. Meetilage 327 Omsetee has had 20 meetings Page1227tQf488 Appendix T a list of the members and the meetings they have attended. The Ministry of Defence, represented by Commander Harper, joined my Committee at its eighth meeting, and Commander Harper has watched combined Services interests in these questions. I have not attempted to bring every Artiole of the Red Cross and Prisoners of War Conventions before the Committee: that would have meant many more meetings; but the Committee have considered all questions of principle arising on the Conventions, and those details where the answer was not reasonably obvious. On all the Conventions a number of questions arise which' impinge on military operations, tactics and strategy and I have tried to indicate these in the Report: and Brigadier J.R. C. Hamilton, Deputy Director of Military Operations (A) has agreed that he will arrange for their submission to the Chiefs of Staff on

receiving a copy of this Report.

5.

The Committee set up the following Sub-Committees and Working Parties:-

(a) Drafting Sub-Committee

(b) Maritime Convention Sub-Committee – see Appendix B for Report

(o) Partisans Sub-Committee

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see Appendix C for Report

(a) Working Party on technical aspects of the financial provisions

(excluding compensation)

(a) Working Party on technical aspects of compensation provisions

see Appendix E for Report

(f) Working Party on medical conditions necessary to qualify for

repatriation

(g) Sub-Committee on the Treatment of Women see Appendix D for

Report

(h) Working Party on disciplinary and judicial provisions.

The membership of the Sub-Committees and Working Parties is set out in Appendix G. The substance of the Reports of the Working Parties which are not included as Appendices to this Report, raise no material points which are not covered in this Report.

6.

Existing International Law. The present International Law on the questions dealt with by my Committee is to be found, for, the most part, in three International Conventions, viz:-

7.

(a) that for the Amelioration of the. Condition of the Wounded and

Sick of Armies in the Field, signed at Geneva on 27th July,1929

(b) that relative to the Treatment of Prisoners of War, signed at

Geneva on 27th July, 1929

(c) that for the adaptation of the principles of the Geneva

Convention to Maritime Warfare, signed at the Hague on 18th October, 1907 (10th Hague Convention).

The second of the Conventions mentioned in paragraph 6 is much longer than either of the others, each of which is to some extent dependent on it; and, except in paragraphs 9 and 10 below, the Prisoners of War Convention is therefore dealt with first, throughout this Report.

8.

Except on certain specific points (see paragraphs 444 to 449 below) the Maritime Convention, which it is proposed should take the place of the relevant Articles of the 10th Hague Convention, does not touch the laws of land warf prage and if was therefore considered by a Sub-Committee, for which the Admiralty accepted responsibility. My logize f48doncerned itself only with those recommendations from that Sub-Committee which touch on matters dealt with in one or both of the 1929 Geneva Conventions:

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the

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other recommendations of the Sub-Committee have, nevertheless, been formally approved by the Committee.

9.

Red Crosseven of 488

Page 228 The 1929 Red Cross Convention is the latest development of the original Geneva Convention of 1964, which was concerned primarily with the protection of the wounded and sick (and also the dead) on the field of battle. It was replaced by a later Geneva Convention of 1906 and this again was superseded by the 1929 Convention. The Red Cross Convention. however, remains in many important respects related to a conception of war as it was in the middle of the 19th century. Then Armies marched towards one another, engaged in set battles, in which one or other was victorious, and separated again for a time; medical services attached to armies were far from adequate to care for wounded and sick during or after a battle, and assistance from the local civil population was therefore invaluable and most necessary; and it was practicable to send back to their own forces, probably within a day or two but certainly within a very short time, medical personnel falling into the hands of an enemy during battle.

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10. The big wars of the 20th century produce very different conditions, and it is not surprising, therefore, that some of the fundamental conceptions of the Red Cross Convention are now out-moded. Radical changes in this Convention are therefore recommended.

11. Prisoners of War Convention. The 1929 Geneva Prisoners of War Convention represented a considerable advance on the previous International Law on the subject which was contained in 17 Articles of the Regulations respecting Laws and Customs of War on Land which were annexed to the Hague Convention of 18th October, 1907. In passing it may be mentioned that the 17 Articles of the Hague Regulations which concern prisoners of war, included three (Articles 10, 11, 12) dealing with Parole, which are still the only provision on this subject which was not dealt with in' the 1929 Convention. With certain exceptions, the 1929 Convention stood the test of experience in the Second World War in Europe to a remarkable degree.

12. Though the Convention undoubtedly influenced the treatment of British prisoners of war in Japanese hands, to some extent, it was not fully tested in the Far East. Though signed by Japan in 1929, it was not ratified by that country; but it was accepted after war broke out in 1941, mutatis mutandis a phrase which might have meant anything in the Japanese mind. To the Japanese mind all prisoners of war are ipso facto dishonoured. My Committee have had particularly in mind throughout their deliberations the need for avoiding provisions, which though appropriate to Europe, might have an unfortunate application for British prisoners of war in Eastern countries.

13. Process of Revision. Before the end of the Second World War, the International Red Cross Committee was collecting and collating information from all quarters; and this information, and the International Red Cross Committee's conclusions thereon, were discussed by them with representatives of National Red Cross Societies, of Religious Organisations and of Welfare Bodies. The International Red Cross Committee then invited certain Powers to send Experts to a Conference to consider revision of the Conventions; and Government Experts from the following Powers:-

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United Kingdom Australia

Canada

New Zealand

South Africa

Netherlands Norway

India

China

Brazil

Czecho-Slovakia

Belgium

Poland

France

United States

assembled at Geneva for 14 days in April 1947 for this purpose.

14. This Conference was invited to consider also:-

(a) a new Maritime Convention on lines parallel to the Geneva Red

Cross Convention, to take the place of the 10th Hague Convention;

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

15. Maritime Poonvents of 4830 Maritime Convention, beingangered with naval warfare, is primarily for the Admiralty, but it has important aspects

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from the point of view of the other Service Departments and the Ministry of Transport, as well as for the Foreign Office. The changes in warfare at sea, consequent on the development of submarines and aircraft, and the experience226 two grld War, have revealed the praying of the 10th Hague Convention as relating to a conception of naval warfare inadequate in modern conditions; and radical changes are overdue. Opportunity to secure a new Convention is therefore welcomed by both the Admiralty and the Foreign Office.

The

16. Civilian Convention. A Convention for the protection of civilians in time of war was under discussion before the Second World War;

and a rough (and brief) draft Convention was prepared by the International Red Cross Committee (the Tokyo draft). Events during the Second World War, not only greatly intensified the demand for such a Convention, but also widened its proposed scope.

17. It falls into two divisions, viz:-

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(a) protection of enemy aliens, whether interned or not, in

belligerent territory;

(b) protection of civil populations generally, during invasion

(or attack) and occupation by an enemy.

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18. The proposed Civilian Convention has been considered by an Inter- departmental Committee, of which Mr. H.A. Strutt, Home Office, is Chairman, through two Working Parties, the first, under Home Office auspices, considering (a) of paragraph 17 above, and the other, under War Office auspices, with Brigadier J.F. Benoy, Deputy Director of Civil Affairs, as Chairman, which has considered the protection to be given to civil populations in occupied territories.

19. Brigadier E.K. Page, Deputy Director of Military Intelligence, has served on both Interdepartmental Committees, as well as on both Working Parties of the Civilian Committee; and I have also attended the Home Office meetings, from time to time, when they were considering matters which might have repercussions on prisoners of war.

20.

I have mentioned the proposed Civilian Convention here, because some Powers are pressing strongly for one large Convention, with a preliminary part dealing with matters common to the four proposed Conventions, and separate parts dealing with military wounded and sick on land, prisoners of war, wounded, sick and shipwrecked at sea, and civilians; and on some of the general questions referred to in this Report, it will be necessary to have regard to the position under the proposed Civilian Convention in reaching decisions on the recommendations of my Committee. (See paragraphs 219, 220 and 452 below).

21. Future Action. At the time of writing it seems probable that another International Conference of Government Experts will be summoned in the late summer or autumn of this year to examine revised draft Conventions prepared by the International Red Cross Committee as a result of the recommendations which emerged from the 1947 Geneva Conference of Government Experts in the light of the further study of those recommendations by the Governments concerned. The United States of America and France, in particular, are strongly in favour of another preliminary Experts Conference; and it would undoubtedly serve a useful purpose, particularly in relation to the proposed Civilian Convention.

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If reasonably firm agreement were revealed at this Second Conference of Experts, it may be anticipated that an International Conference of plenipotentiaries would meet in 1949 to finalise and sign texts for new Conventions.

23.

Position of the International Red Cross Committee and Swiss Government. Here it may be helpful to recall briefly that the International Red Cross Committee is an independent body of Swiss citizens answerable to no one else for their actions. They have established for themselves a unique position in the world by following an attitude of strict neutrality as between adage 229of 488upled with a patient pupauit,2 which refuses to accept "No" for an answer, of the humanitarian purposes which are their "raison d'etre". The First Red Cross Convention (1864) was inspired by

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the founders of the International Red Cross Committee, and drafts prepared by the Committee have been the basis of discussion by the International Conferences at which the later Conventions were adopted.

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24. After Page1230 48 war, the International Red chefs committoo

Page 230 prepared the material, not only for a revision of the 1906 Geneva Red Cross Convention, but also for a new Prisoners of War Convention (see paragraph 11 above); and the 1929 Geneva Prisoners of War and Red Cross Conventions eventually emerged.

25.

The International Red Cross Committee are, of course, not signatories of either of the Conventions which are international treaties to which only Sovereign States are parties. The International Conference, which adopted them, met on the invitation of the Swiss Government and, apart from secret- arial staff provided by the International Committee; consisted exclusively of representatives of Governments; and it is the Swiss Government which received the ratifications of the Conventions, and is the guardian of them. The International Red Cross Committee sometimes claims that they have the function of watching that the Conventions are implemented; but this has truth only in a "persuasive" sense, and the Government of the United Kingdom has given no recognition to this or any other claim by the International Red Cross Committee to exercise quasi-political functions.

26. The initiative in summoning an International Conference of pleni- potentiaries to adopt revised Prisoners of War and Red Cross Conventions, rests, therefore, with the Swiss Government. The Netherlands Government, as custodian of the Hague Conventions, has indicated that it would have no objection to the Swiss Government also taking the initiative in revising the 10th Hague (Maritime) Convention.

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27. The purpose of preliminary Conferences of Government Experts assembled at the invitation of the International Red Cross Committee is to assist that Committee to produce draft Conventions likely to be acceptable to Governments, with a view to submitting such drafts to the Swiss Government as a basis of discussion at an International Conference of plenipotentiaries, to be arranged by the Swiss Government, if and when it is satisfied that the time is ripe.

28. It should be added that the latest revised draft Conventions prepared by the International Red Cross Committee will be before the XVIIth International Red Cross Conference to be held at Stockholm in August next; but as this will be only one of many items to be dealt with in a 10-day Conference, it may be anticipated that no substantial modifications will be suggested at that Conference.

29.

PART II

QUESTIONS OF POLICY

In this part of the Report I deal with questions of major policy on which, in my view, it is desirable that any United Kingdom delegation to a future International Conference should have clear directions. Throughout the Report the recommendations of my Committee are side-lined.

30.

Civil War and Undeclared State of War. The 1947 Geneva Conference of Government Experts revealed a strong body of opinion in favour of a new Article in the following terms:-

"The present Convention is applicable between the Contracting

Parties, from the outbreak of any armed conflict, whether the latter is or is not recognised as a state of war by the parties concerned.

În 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.

The Convention is equally applicable to cases of occupation of territories in the absence of any state of war.

31. My Commige 23088 the recommendation of the Palle gevef 488. Conference of Government Experts that, in the circumstances described in the first and third paragraphs of the new Article referred to in paragraph 30

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Jabove, the Prisoners of War and Red Cross Conventions should apply if the Powers concerned are parties thereto, to persons covered by Article 1 of the Prisoners of War Convention.. (C.R.G.C./M(48)11, Item 84)

3Page3profo88 that the Conventions shouldPayo 2b19f488he case of Civil War, on condition of reciprocity, was carefully examined by my Committee. We were advised by the Legal Adviser to the Foreign Office that

"As war is an armed contention between States a 'ọivil war' need not be war from the beginning, nor become war at all, in the technical sense of the term. But it may become war through the recognition of each of the contending parties, or of the insurgents,

a belligerent Power. Through such recognition a body of individuals receive an international position, in so far as it is for some parts, and in some points, treated as though it were a subject of International Law". (Oppenheim International Law (6th Edition), Volume II, page 173).

33.

"When the parties in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organised armies have commenced hostilities against their former sovereign, the world acknowledges them as belligerents and the contest a war". (Hyde International Law, Volume III, page 1698).

(Annex to C. R. G. C. M (47)3).

The effect of the advice quoted in paragraph 32 above is that recogniti by a Sovereign Power that a state of civil war exists in its territory depends on that Power being satisfied that the conditions set out are fulfilled. My Committee has no doubt that, in the event of a state of civil war being recognised, by the United Kingdom Government as existing in any territory under United Kingdom Sovereignty, the "principles of the Conventions" would, in fact, be applied by that Government to the insurgent forces. To accept the proposed provision would, in such circumstances, impose no new burden on any Government of the United Kingdom, and the condition of reciprocity might act as a safeguard to members of the United Kingdom forces falling into the hands of the insurgents.

34. My Committee therefore recommend

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(a) acceptance of the recommendation of the 1947 Geneva

Conference of Government Experts 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";

(b) that if other delegations to a future International Conference press for the deletion of the words "the principles of", from the formula in (a) above, the United Kingdom delegation should not oppose;

(0)

(a)

that, if the question of wording be re-opened at a future International Conference, the United Kingdom delegation should resist any tightening of wording which might compel a lawful Government, against its will, to apply the Convention;

that, if the above recommendations are approved, the Treasury Solicitor should be asked to advise on their effect, if adopted in new Conventions, on the law of the United Kingdom.

(C. R. G. C./M (48)11, Item 87)

The recommendation in paragraph 34(d) above was agreed on the initiative of the representative of the Security Service, who also expressed the view that there ought to be some safeguard against unjustifiable pressure for the converter 88o be applied to a domestic sptuation infape a way as to prevent a United Kingdom Government from applying the normal common law and/or the Treachery Aot. To this end he thought it would be better if

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some definite oondition were laid down in this provision in the Conventions, e.g. that the lawful Government shall have granted belligerent rights or sought thempfore itself 488