Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.— Third Geneva Convention Article 5, ¶ 2
PARAGRAPH 2. -- PERSONS WHOSE STATUS IS IN DOUBT
This would apply to deserters, and to persons who accompany the armed forces and have lost their identity card.
The provision [was] a new one; it was inserted in the Convention at the request of the International Committee of the Red Cross. The International Committee submitted the following text, which was approved at the Stockholm Conference:
"Should any doubt arise whether any of these persons belongs to one of the categories named in the said Article, that person shall have the benefit of the present Convention until his or her status has been determined by some responsible authority" (10).
At Geneva in 1949, it was first proposed that for the sake of precision the term 'responsible authority' should be replaced by 'military tribunal' (11). This amendment was based on the view that decisions which might have the gravest consequences should Hot [sic] be left to a single person, who might often be of subordinate rank. The matter should be taken to a court, as persons taking part in the fight without the right to do so are liable to be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment (12). This suggestion was not unanimously accepted, however, as it was felt that to bring a person before a military tribunal might have more serious consequences than a decision to deprive him of the benefits afforded by the Convention (13). A further amendment was therefore made to the Stockholm text stipulating that a decision regarding persons whose status was in doubt would be taken by a 'competent tribunal', and not specifically a military tribunal.
Another change was made in the text of the paragraph, as drafted at Stockholm, in order to specify that it applies to cases of doubt as to whether persons having committed a belligerent act and having fallen into the hands of the enemy belong to any of the categories enumerated in Article 4 (14). The clarification contained in Article 4 should, of course, reduce the number of doubtful cases in any future conflict.
It therefore seems to us that this provision should not be interpreted too restrictively; the reference in the Convention to 'a belligerent act' relates to the principle which motivated the person who committed it, and not merely the manner in which the act was committed.
- (10) [(1) p.77] See ' XVIIth International Red Cross Conference, Draft Revised or New Conventions, ' p. 54;
- (11) [(2) p.77] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, p. 388;
- (12) [(3) p.77] Ibid., Vol. III, p. 63, No. 95;
- (13) [(4) p.77] Ibid., Vol. II-B, p. 270;
- (14) [(5) p.77] Ibid., pp. 270-271;— International Committee of the Red Cross commentary on Article 5