Download Final Record of the Diplomatic Conference of Geneva of 1949, Volume 2, Section B PDF

TitleFinal Record of the Diplomatic Conference of Geneva of 1949, Volume 2, Section B
File Size38.5 MB
Total Pages540
Table of Contents
                            COVER PAGE
	Summary Records of 13 meetings
	Special Committee
		Summary Records of 41meetings
		7 Reports to the Joint Committee
	Report to the Plenary Assembly
	Summary Records of 6 meetings
	Report to the Plenary Assembly
	Report to the Plenary Committee
Minutes of the last 30 Plenary meetings
Official Ceremony for the Signature of 8 December 1949
Signatures and reservations made from 10 December 1949 till 12 February 1950
Document Text Contents
Page 1




OF 1949�



Page 270


The PRESIDENT: Does anyone else wish to speak
on Article 3 and the amendments proposed?

Mr. Mo~osov (Union of Soviet Socialist Repub-
lics): I would like to know whether the discussion
has been opened on all the amendments submitted
to Article 3. I refer to the amendments submitted
by the Delegations of the Netherlands and Ireland,
and also to the suggestion of the Drafting Committee.

The PRESIDENT:I am prepared to put the
two amendments for discussion in turn and subse-
quently the Drafting Committee's suggestion.
We will therefore begin with the first amendment,
that submitted by the Delegation of the Nether-

Does anyone wish to speak on Article 3 as a

General OUNG (Burma): If Article 3 as put
before us refers only to international war we give
it every support, but if it is going to refer to
anything other than international war, I am
afraid that we shall have to make a certain reser-
vation on this and I suggest that we do not talk
about it until we have discussed Article 2.

Colonel HODGSON (Australia): Prior to the
detailed discussion of this Article and the
amendments thereto, my Delegation would be
glad if the Assembly, with the concurrence of the
Rapporteur, would ask the Drafting Committee to
paragraph this Article properly, because from their
own Report and from the amendment it is comple-
tely impossible to follow it. In other words, we
have sub-paragraphs I, 2 and 3 etc., and it takes
us a long time to find out that they are part of
the first paragraph, and it takes a long time to
wake up to the fact that sub-paragraphs I and 2
are really part of the second paragraph. So we
suggest that they do what they were requested to
do by Committee 11, to paragraph i t properly.
That is to say, the whole of the above-mentioned sub-
paragraphs comprise the first paragraph, and cate-
gories a, b, c and d of sub-paragraph 2 become
Roman I, 11, I11 and IV. Then the next part becomes
the second paragraph, comprising two categories,
(a) and (b). I should be glad if you would agree
to ask the Drafting Committee to paragraph this
in accordance with the way I have indicated or in
some other sensible way.

Mr. COHN (Denmark): I entirely endorse the
opinion expressed by the Delegate of Australia.
I suggested at the meetings of the Drafting Com-
mittee that i t would be useful to number the
paragraphs of this Article, in view of its length;
I pointed out that it is often difficult to know


which paragraph is being discussed. Generally
speaking, I think that all the Conventions, and
perhaps even all the Articles, would be improved
if the paragraphs were numbered. I t would
greatly facilitate the search for references.

Mr. SODERBLOM (Sweden), Rapporteur: As the
Delegate for Australia has, as i t were, appealed
to me, I must confess that, like him, I have had
some difficulty when the various paragraphs of
Article 3 were under discussion. Perhaps the
solution would lie in placing the letter A before
the first paragraph and B before the second para-

The PRESIDENT: We have two proposals put before
us: the first is to postpone consideration of Arti-
cle 3 till the Conference has come to a decision on
Article 2, which is a common Article; the second
is to refer the Article to the Drafting Committee
with the request that it set out the paragraphs,
and the relative amendments, more clearly.

You may well wonder whether it is expedient to
postpone consideration of provisions which have
already been discussed at length by the Committees,
sub-committees and Working Parties. Never­
theless, since proposals have been made to this
effect, I shall ask for the Meeting's decision. I
therefore put to the vote the proposal made by
the Delegation of Burma to defer consideration of
Article 3 till Article 2 has been adopted by the

The proposal submitted by the Delegation of
Burma was adopted by 13 votes to g, with 20

The PRESIDENT: In view of this decision, this
Article will be referred to the Drafting Committee
for the reasons just given by the Delegate for
Australia. (Assent.)

Article 4

An amendment to Article 4 has been submitted
by the Delegation of the Netherlands (see Annex
No. 95). Does anyone wish to speak?

Mr. Mo~osov (Union of Soviet Socialist Repub-
lics): The Delegation of the U.S.S.R. considers
that the amendment to Article 4 proposed by the
Delegation of the Netherlands is unnecessary and
can only lead to confusion in the interpretation
of Article 3 of the Prisoners of War Convention.

The Delegation of the Netherlands proposes
that prisoners of war status be provisionally granted
to persons suspected of having committed belli-
gerent acts. The object of the proposal is to
supplement the list of categories of persons and

Page 271


the conditions such persons must fulfil in order to
be recognized as prisoners of war when they fall
into enemy hands. The wording of Article 3,
however, quite adequately defines the persons who
may be considered as prisoners of war.

We therefore believe that it is unnecessary to
add any further conditions to Article 3.

Equally superfluous, in our view, is the final
part of the Netherlands amendment, under which
military courts, in doubtful cases, would determine
the status of persons who had fallen into enemy
hands. The proposal made by the Delegation of the
Netherlands would alter the text of the Article
merely because i t is not desired to make a single
person responsible for deciding whether the
Convention is to cover a given person who has
fallen into enemy hands.

This proposal would therefore have the effect of
bringing before a military court all persons in
regard to whom there is any doubt whether the
Convention should be applied in their favour.
I t is a provision which at first sight seems humane,
but which, in reality, would singularly complicate
the position of protected persons.

I t is obvious that to bring a person before a
military tribunal, may have more serious conse-
quences than a decision simply to apply, or not to
apply, the provisions of the present Convention in
his case. If the defendant is sentenced by a
tribunal, he will not only be unable to benefit by
the Convention under Article 4, but i t is also
uncertain whether he will succeed in clearing
himself. These measures cannot be compared
with a simple administrative decision.

I believe that the persons to be protected would
have little cause to be grateful to us and would
refuse the benefit of the Convention rather than
appear before a military tribunal which is
likely to punish them.

In addition made by the proposal the Nether-
lands Delegation weakens the scope of the various
conditions which, according to Article 3, are the
only criteria for deciding whether or not to apply
the Convention. Such a procedure would make it
possible, that such persons who had fallen into
enemy hands and who had fulfilled the conditions
as stipulated in Article 3 of the Prisoners of War
Convention, would be deprived of the benefits of the
Convention if a tribunal sentenced them. We con-
sider that the procedure for doubtful cases, pro-
vided in the second paragraph of Article 4 as
drafted by Committee 11, is humane and closer
to the spirit of the present Convention than the
Netherlands amendment.

For this reason the Delegation of the Union of
Soviet Socialist Republics calls for the rejection of
the amendment to Article 4 submitted by the
Delegation of the Netherlands.


Mr. COHN (Denmark): The Delegation of Den-
mark fully supports the amendment proposed by
the Delegation of the Netherlands and will vote
in its favour. We propose, however, that the
expression "military tribunal"' be replaced by
"competent tribunal". The laws of the Detaining
Power may allow the settlement of this question
by a civil court rather than by a military tribunal.
The amendment which we suggest would, to a
certain extent, meet the objections raised by the
Soviet Delegation.

The PRESIDENT: Does the Delegation of the
Netherlands accept the proposal made by the
Delegate of Denmark?

Captain MOUTON (Netherlands): The idea of the
amendment before you is to avoid arbitrary
decisions by a local commander, who may be of
a very low rank. He may be a corporal and we do,
not want to have a corporal deciding on the life
or death of any human being. If you look at the
text of Article 4 as it stands you will find that the
wording is illogical. The first paragraph refers
to persons mentioned in Article 3. That means
certain specified categories of persons who fulfil
certain specified conditions. Now in the second
paragraph it refers to the "aforesaid persons".
That means, too, the persons enumerated in
Article 3. The paragraph begins "Should any
doubt arise whether one of the aforesaid persons
belongs to any of the categories named in the said
Article". Well, that is nonsense as it stands, if you
start by refemng to persons who are enumerated
in an Article. As I said before, there are persons
who belong to certain categories, who fulfil certain
conditions, but you go on to say that there may
be doubt whether one of these persons belongs to
one of the categories I have just referred to. For
that reason we used in our amendment a description
of the categories we have in mind, that is, persons
having committed a belligerent act and having
fallen into the hands of the enemy. Now a doubt
arises whether they belong to one of the categories
enumerated in Article 3. This is just to explain
why we chose a different wording from that used
in Article 4 as it stands. I do not understand why the
Delegate of the U.S.S.R. thinks that our proposal
is less humane than the existing Article. In the
existing Article the decision is left to a competent
authority. In practice that means the military
commander on the spot-and I repeat that that
might be a corporal-decides whether a person
who has fallen into his hands comes under Article 3
or does not belong to Article 3. What does the
decision entail? I t means that if he decides that
he does not belong to Article 3 he will be considered
to be a franc tireur and be put against the wall

Page 539


(10 February 1950)


(11 February 1950)
(10 February 1950)

Mr. Gon~alo CALDEIRA. ChargC d'Af- COELHO,

(10 February 1950) (11February 1950)

Mr. Joan DRAGOMIR,ChargC
Rumania in Switzerland, made
(see Vol. I,$. 351).



of Mr. George Robert
Embassy in Washington,
(see Vol. I,$. 349).


, C

ounsellor of

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