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Sunday, July 08, 2012

Fourth Geneva Conventions, Article 49 - the Travaux Préparatoires

There has been much discussion about the intent of the sixth paragraph of the Fourth Geneva Conventions which many claim proves that Israel has violated by allowing citizens to move, voluntarily, to occupied territory.

The entire text of Article 49 states:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.

The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

The only way to determine whether the last paragraph is referring to forced transfers or to voluntary transfers as well is to read the entire discussion about the article that occurred while the Conventions were being drafted - the Travaux Préparatoires.

These aren't easy to find, but here it every reference to the discussions about the article I could gather.

The draft of the Conventions, written at Stockholm, is a little different, and it was called Article 45 in the draft. While the final paragraph remains identical, the discussions around the entire article must be read.

The Stockholm draft of Article 45 stated:
ARTICLE 45. -Deportations or transfers against their will of protected persons out of occupied territory are prohibited, whether such deportations or transfers are individual or collective, and regardless of their motive.

The occupying Power shall not undertake total or partial evacuation of a given area, unless the security of the population or imperative military consi- derations demand. Such evacuations may not involve displacements outside the bounds of the occupied territory, except in cases of physical necessity.

The occupying Power shall not carry out such transfers and evacuations unless it has ensured proper accommodation to receive the protected persons. Such removals shall be effected in satisfactory conditions of hygiene, healthfulness, security and nutrition. Members of the same family shall not be separated.

The Protecting Power shall be informed of any proposed transfers and evacuations. It may supervise the preparations and the conditions in which such operations are carried out.

The occupying Power shall not deport or transfer parts of its own civil population into the territory it occupies.

Here are the Travaux Préparatoires.

I think they make clear that the entire Article is concerned with forced transfer of populations against their wills, and the last paragraph is no exception, even though there was remarkably little discussion specifically about that last paragraph.

From the 16th meeting:
The CHAIRMAN said that four amendments had been submitted to Article 45, viz. by Canada, Greece, Finland, and the Union of Soviet Socialist Republics (see Annex No. 270).

The Canadian Delegation had withdrawn its amendment.

The Greek amendment was to delete the words "against their will" in the first paragraph.

The Finnish amendment only concerned a drafting point, which the Finnish Delegation felt needed no explanation.

Mr. MOROSOV (Union of Soviet Socialist Republics) said that the purpose of the Soviet amendment was merely to define certain points in the Stockholm text, with which his Delegation fully agreed. The insertion of the words "by force" would ensure a formal prohibition of the deplorable practices carried out by certain European countries, where men had been loaded into trucks like cattle, and sent to distant countries to do forced labour.

The Soviet Delegation further proposed deletion of the words "against their will", because in occupied territory no one had the right to express an opinion. There was a risk of abuses arising out of the words "against their will".

It would also be advisable to lay down in the second paragraph that an evacuated population should be transferred back as soon as hostilities ceased in a given area. The Soviet Delegation's view was that it should not be possible to transfer civilians except within occupied territory. It would therefore be desirable to strengthen the prohibition in the first paragraph by adding the words "into the territory of the occupying Power or the territory of any other country" after the words "out of occupied territory".

His Delegation wished mass evacuations to be prevented in future. For those reasons it would perhaps be preferable to say "forcible removals" rather than "deportations by force" as first proposed by the Soviet Delegation.

Mr. SLAMET (Netherlands) agreed with the principles underlying Article 45. In Indonesia, during the last war, numbers of women and children had been transferred to unhealthy climates and forced to build roads, and had died as a result. He would like to see it made clear in the first paragraph that the territory referred to was the national territory inhabited by the protected persons.

Moreover, the third paragraph should also lay down that such persons might provide themselves with money for their journey, and carry with them their luggage and personal effects; the occupying Power would have to provide the necessary means of transport for the transfer or evacuation of such persons and their property.

Mr. MARESCA (Italy) said that in the last war the flower of Italian youth had been sent to Germany in cattle trucks. Such forced transfers must at all events be prohibited in the future. The term "deportation" in the last paragraph of the Article had better not be used, as "deportation" was something quite different.

Mr. CLATTENBURG (United States of America) had read the Soviet amendment with interest. He felt, however, that the words "except in cases of physical necessity" which that amendment wished to delete might be of value in the interest of protected persons. He quoted the case of part of the population of the little island of Wake who had been transferred to Japan. In spite of the bad treatment inflicted, nearly all had survived, whereas the inhabitants left on the island had died as a result either of the fighting or of the brutality of the Japanese field forces.

The CHAIRMAN, before declaring the discussion on Article 45 closed, noted that the Committee was unanimous in condemnation of the abominable practice of deportation. The sole purpose of every speaker had been to strengthen the interdictory provisions of the Article. He suggested that deportations should, in the same way as the taking of hostages, be solemnly prohibited in the Preamble.

He added that only three amendments had been submitted to Articles 46 to 55, two by the Canadian Delegation on Articles 47 and 54, and one by the Finnish Delegation on Article 49. The Canadian and Finnish Delegations had· no comments to offer on their amendments, which only concerned drafting points.

From the 40th meeting:

Colonel Du PASQUIER (Switzerland), Rapporteur, said that the text proposed by the Drafting Committee (see Annex No. 271) set forth a principle on which all the members of that Committee had had no difficulty in agreeing, namely, the need to prohibit, once and for all, the abominable transfers of population which had taken place during the last war. The procedure for giving effect to that prohibition had, however, been difficult to determine.

In the first paragraph, as the result of a proposal by the Soviet Delegation (see Summary Record at the Sixteenth Meeting), the words "against their will", which occurred in the Stockholm text, had been omitted. The Drafting Committee had considered that they were valueless in view of the pressure which could be brought to bear on internees. The words "to the territory of the Occupying Power or to that of any other country, occupied or not", took account of a Soviet amendment (see Summary Record ot the Sixteenth Meeting), and of a Netherlands amendment. The reservation contained in the second paragraph ("Nevertheless...") took account of a suggestion made by the Delegate of Finland (see Summary Record of the Sixteenth Meeting).

A United Kingdom amendment to the third paragraph, which involved the insertion of the words "to the greatest practicable extent" after the word "ensure", had been rejected by 3 votes to 3. The fourth paragraph took into account the impossibility of the Protecting Power being informed in advance of any transfers and' evacuations (in the light of the necessity for secrecy in regard to military operations). The new fifth paragraph included part of the subject matter dealt with in Article 24 of the Stockholm text (see Summary Record at the Twenty-Ninth Meeting).

The sixth paragraph was identical with the fifth paragraph of the Stockholm text.

Mr. PASHKOV (Union of Soviet Socialist Republics) wished the Article to prohibit not only forced transfers but also the transfer of workers in the service of belligerents. It would be sufficient for that purpose to add the words "any other transfer" in the first paragraph after the words "as well as". The Soviet Delegation was prepared provisionally to accept the words "les transferts forces, en masse ou individuels" (individual or mass forced transfers) in the French text, in place of the phrase "rapts ou transferts" which they had proposed; but in the English text they wished the words "forcible removals" to be included in the wording adopted. Again, they maintained their proposal to omit the words "except in cases of physical necessity" from the second paragraph. Finally, his Delegation objected to the provision, in the fifth paragraph, under which protected persons could be detained in dangerous areas. He proposed a return to the wording used in Article 24 of the Stockholm text.

Mr. CLATTENBURG (United States of America) believed that the addition (suggested by the Soviet Delegation) of the words "any other transfer" would have hampered the evacuation of the religious and political minorities which the Allies, on entering Germany; had discovered in labour and concentration camps. As regards the proposed suppression of the words "except in cases of physical necessity", there were cases where, owing to the limited size of the territory, it was physically impossible to evacuate the population otherwise than to places outside the occupied territory. That was the case, for example, in the islands of Wake and Guam, where the whole of the territory could be considered as dangerous.

Mr. BAGGE (Denmark) said that the fifth paragraph had arisen out of a proposal by the Danish Delegation which wished to avoid a repetition of the disastrous consequences of the mass flight of civilians on roads exposed to bombardment. He hoped that the Committee would adopt the Article as it stood.

Mr. DAY (United Kingdom) proposed an alternative wording for the third paragraph. The proposed wording which had been agreed to by a minority of the Drafting Committee (Canada, United States of America, United Kingdom), read as follows:

"The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest possible extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, security and nutrition, and that members of the same family are not separated."

The above wording provided, everything considered, a better safeguard for the population of towns menaced with destruction. If accommodation had to be provided in advance for the population of such towns, it was almost certain that the evacuation would never take place.

Mr. MOROSOV (Union of Soviet Socialist Republics) felt that the amendment proposed by his Delegation had not been fully understood by the Delegate of the United States of America. If it was desired to avoid mass transfers of the population, such as had taken place during the last war, the Soviet amendment should be supported.

Mr. WERSHOF (Canada), like the Delegate of the United States of America, opposed the Soviet amendment for the insertion of the words "any other transfer" in the first paragraph. Such an addition might interfere with the liberation of workers or deportees.

The CHAIRMAN declared the discussion closed and put the amendments to Article 45 to the vote.

The Soviet amendment for the insertion of the words "any other transfer" after the words "as well as" in the first paragraph, was rejected by 22 votes to 7.

The Soviet amendment proposing the omission of the words "except in cases of physical necessity" in the second paragraph, ,vas rejected by 16 votes to 9.

The wording proposed for the third' paragraph by the minority of the Drafting Committee (Canada, United States of America, United Kingdom), was rejected by 14 votes to 13.

The Soviet amendment proposing that the fifth paragraph should be replaced by the Stockholm text of Article 24, was rejected by IS votes to 1O. The subsidiary amendment submitted by the Soviet Union Delegation, proposing the omission of the words "unless the security of the population or imperative military reasons so demand" at the end of the fifth paragraph, was rejected by 17 votes to 9.

The whole of Article 45, as proposed by the Drafting Committee, was adopted.
From the final report summarizing the proceedings:

Article 45
Although there was general unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of Article 45 caused some trouble in view of the difficulty in reconciling exactly the ideas expressed with the various terms in French, English and Russian. In the end the Committee have decided on a wording which prohibits individual or mass forcible removals as well as deportations of protected persons from occupied territory to any other country, but which permits voluntary transfers. [I know this is not the same paragraph, but still...]

The second paragraph deals with the problem of evacuations made necessary in the interest of the security of the civilian population, or for imperative military considerations. In principle, these evacuations take place only within an occupied territory which distinguishes them from the transfers envisaged in the first paragraph. Never~ theless, when it is physically impossible to retain evacuees in such territory, for example, if the latter is an island of limited size, they may be evacuated to another territory. This special case constitutes an exception to the first paragraph. A new provision has been added to the effect that persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. ..

The third paragraph is unchanged from the Stockholm text, although considerable doubt has been expressed as to whether the wording employed is in the best interest of the protected persons concerned.

The fourth paragraph has been altered because discussion showed that for reasons of military security it was impossible to inform the Protecting Power in advance of proposed transfers and evacuations; the Committee, therefore, confined itself to imposing on the Occupying Power the obligation to lodge the necessary information as soon as the transfer or evacuation had taken place.

The fifth paragraph derives from Article 24: the latter provided that no protected person could be sent to, or retained in areas which are particularly exposed. Discussion showed that the problem was more complex than it seemed at first sight; in fact, it could happen-and it frequently did happen during the war-that the population of a district, believing their homes threatened, might leave them so as to escape the danger. Such persons, however, are often more exposed to danger on the roads or in the battle zone than if they stay at home. It is also necessary to take into account, in addition to the principle of freedom of movement, the restrictions demanded by the security of the population or imperative military considerations such as the need to keep the roads open. A qualification to this effect has been included in the paragraph.

Finally, the sixth paragraph consists of the fifth paragraph of the Stockholm text.
All of the discussions of that article assumed that the entire article dealt only with forced population transfer. The final paragraph would be very out of place if it alone included voluntary transfer on the part of a population, after five paragraphs that are clearly about forced transfers, deportations and evacuations all actively done by the occupying power.