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War Reprisals in the War Crimes Trials and in the Geneva Conventions of 1949

Published online by Cambridge University Press:  20 April 2017

A . R. Albrecht
A . R. Albrecht*
Affiliation:
Of the District of Columbia Bar
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Extract

The war crimes trials following the second World War and the Geneva Conventions of 1949 have posed a question about war reprisals which is likely to be important in any future war and which has immediate practical significance in the current wars in Asia. On the one hand, the trials have transformed the previously sketchy rules on reprisals into a more comprehensive and elaborate system of control. On the other hand, the Geneva Conventions have provided for almost the complete abolition of reprisals in the very area for which the rules of control were formulated. Moreover, the conventions remain unratified by many of the major Powers, of which at least one has already demonstrated its inability to observe the abolition of reprisals. The core of the problem concerns reprisals against civilian persons in occupied territories, for this was by far the most significant point in the trials on reprisals and was the subject of the most outstanding innovation introduced by the Geneva Conventions. Nevertheless, the issues raised by the contradiction between the trials and the conventions cannot properly be discussed without reference to the general theory of war reprisals.

Type
Research Article
Information
American Journal of International Law , Volume 47 , Issue 4 , October 1953 , pp. 590 - 614
Copyright
Copyright © American Society of International Law 1953

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References

1 Thus far twenty-four states have ratified the Geneva Convention of 1949: Austria, Belgium, Chile, Czechoslovakia, Denmark, Egypt, El Salvador, France, Guatemala, Holy See, India, Israel, Italy, Lebanon, Liechtenstein, Luxembourg, Mexico, Monaco, Norway, Pakistan, The Philippines, Spain, Switzerland, and Yugoslavia. Japan, Jordan, San Marino and South Africa have adhered to the conventions.

2 See footnote 108 below.

3 Oppenheim, International Law (7th ed., 1952), Vol. II, pp. 561 ff. Substantially similar definitions may be found in the American Rules of Land Warfare (1940), p. 89, par. 358, and the British Manual of Military Law (1929), p. 85, cf. Amendments of 1936, par. 452. The term has a special meaning in French domestic law; see Trial of Jean-Pierre Lex, War Crimes Reports, Vol. 7 (1948), pp. 74–75; Trial of Hans Szabados, War Crimes Reports, Vol. 9 (1949), p. 60; and Trial of Carl Bauer, War Crimes Reports, Vol. 8 (1949), pp. 19–20. For the distinctions among French writers between “représailles,” “rétorsions,” “réparations,” and “sanctions,” see De La, Brière, Recueil des Cours de l’Académie de Droit International, Vol. 11 (1928), p. 240 Google Scholar. Compare other definitions: Jessup, and Deák, , Encyclopedia of the Social Sciences, Vol. XIII (1934), p. 315 Google Scholar; Politis, Revue Générale du Droit International Public, Vol. XXXI (1924), p. 7 Google Scholar; Hyde, , International Law (1945), Vol. II, p. 1662 Google Scholar; Clark, , this Journal, Vol. 27 (1933), p. 694 Google Scholar; McNair, , Transactions of the Grotius Society, Vol. 11 (1926), p. 35 Google Scholar; and Maccoby, , Cambridge Law Journal, Vol. 2 (1924), p. 70 CrossRefGoogle Scholar.

4 See Wilkinson, , Law Magazine and Review, Vol. XL (1914–1915), p. 294 Google Scholar. See also Dareste, Revue des Etudes Grecques (1870), p. 316; Spiegel, , this Journal, Vol. 32 (1938), p. 64 Google Scholar; Clark, loc. cit., p. 694; and Latrie, Du Droit de Marque ou Droit de Représailles au Moyen Age (1875).

5 See Westlake, International Law, Vol. II (1913), p. 123; Spaight, War Rights on Land (1911), p. 463, and Bordwell, Law of War (1908) p. 109.

6 Art. 2, Sec. 3, of the Geneva Convention of July 22, 1929, relative to the Treatment of Prisoners of War, provided: “Measures of reprisals against them are forbidden.” Art. 50 of the Hague Convention of 1899 respecting the Laws and Customs of War on Land provided: “No collective penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which it cannot be regarded as collectively responsible,” but this was without prejudice to the question of reprisals. The exclusion of reprisals from the scope of Article 50 was not stated in the convention itself but in the Rolin Report thereon. See Eeports of the Hague Conferences of 1899 and 1907 (1917), p. 152; Trial of General von Mackensen, War Crimes Reports, Vol. 8 (1949), p. 4, and Trial of Wilhelm List and Others, ibid., p. 78. See also British Manual of Military Law (1929), p. 85 of Amendments of 1936, par. 452 and footnote 2, and American Rules of Land Warfare (1940), p. 86, par. 344.

7 “Among other factors which may limit, or until recently have limited, the effectiveness of the rules of war may be mentioned: (a) the institution of reprisals which, though designed to ensure the observance of rules of war, have systematically been used as a convenient cloak for disregarding the laws of war. …” History of the United Nations War Crimes Commission and the Development of the Laws of War (1948), p. 29.

8 See Trial of Hans Rauter, War Crimes Reports, Vol. 14 (1949), p. 123; Trial of Holstein, Franz and Others, ibid., Vol. 8 (1949), p. 27 Google Scholar; and Lord Wright’s Foreword to the History of the United Nations War Crimes Commission and the Development of the Laws of War (1948), p. vi.

9 The American Rules of Land Warfare, op. cit., p. 89, par. 358(b), states: “… commanding officers must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against the repetition of barbarous outrages.” The British Manual of Military Law, op. cit., p. 85, par. 452, states: “… They [reprisals] are by custom admissible as an indispensable means of securing legitimate warfare.”

10 In discussing the war crimes trials reference will also be made to the American and British war manuals, which were relied upon by the tribunals. See also Oppenheim, , International Law (7th ed., 1952), Vol. II, p. 561 Google Scholar.

11 Op. cit.

12 Trial of Hans Rauter, op. cit., pp. 134–135.

13 Nevertheless, during the second World War Hitler ordered the reprisal execution of Allied airmen who bombed non-military targets in reprisal for German use of the V–1. See Major War Criminals Tribunal, Pt. 6 (1946), p. 128, and Pt. 11 (1947), p. 102. The V-weapons were themselves supposed to be weapons of retaliation, the “V” signifying “Vergeltungswaffen,” which means “retaliation weapon.” Germany’s Lieutenant-General Dittmar described them as “true weapons of retaliation.” See Spaight, Air Power and War Rights (1947), p. 53.

14 See Oppenheim, op. cit., p. 217.

15 Trial of Wilhelm List, op. cit., p. 59. See British Manual of Military Law (1929), p. 72 of Amendments of 1936, par. 384, and American Rules of Land Warfare (1940), p. 78, par. 301.

16 See the American Rules of Land Warfare (1940), p. 86, par. 344, and the British Manual of Military Law (1929), p. 72 of Amendments of 1936, par. 386.

17 Trial of Wilhelm List, op. cit., p. 65. Compare Trial of Hans Rauter, op. cit., pp. 127, 129–130. For the treatment of the special argument of the defense based on the alleged violation of the terms of surrender to the Nazi forces, see pp. 124–125. The view has been advanced that the duty owed by the inhabitants of occupied territory towards the occupying Power should not be regarded as an obligation imposed directly by international law, but rather as an obligation imposed by the occupant which international law will recognize as long as it is reasonable. See Baxter, in British Year Book of International Law, Vol. 27 (1950), p. 235 Google Scholar. The significance of this distinction, however, is not entirely clear where reprisals are concerned. It would seem that violation of a duty imposed by the occupant and recognized by international law would just as much constitute the type of offense which justifies a reprisal as would a violation of international law. If the theory means that there is no duty towards the occupying Power whose violation can justify reprisals, then it is open to the same objections as other theories which prevent the use of reprisals in occupied lands. See infra, p. 595.

18 Trial of Hans Rauter, op. cit., pp. 127 and 137.

19 The question whether guerrilla activities constitute a basis for reprisals was touched upon in the Trial of Carl Bauer, op. cit., p. 17, and the Trial of Flesch, Gerhard, War Crimes Reports, Vol. 6 (1948), p. 115 Google Scholar. The question whether resistance activities justify reprisals was involved in the Trial of Holstein, Franz, ibid., Vol. 8 (1949), p. 29 Google Scholar.

20 Op. cit, p. 89, par. 358(c). See also the British Manual, op. cit., p. 85, par. 453.

21 Trial of Hans Rauter, op. cit., p. 132.

22 See the American Rules of Land Warfare, op. cit., p. 89, par. 358(d), and the British Manual of Military Law, op. cit., p. 85, par. 458.

23 Trial of Hans Rauter, op. cit., p. 125.

24 The problem is more vividly presented in the List case, op. cit., pp. 38, 56.

25 American Rules of Land Warfare, op. cit., p. 90, par. 358(f). See also the British Manual of Military Law, op. cit., p. 85, par. 456.

26 See Trial of Wilhelm List and Others, op. cit., pp. 44, 78; also the Trial of General von Mackensen and General Maelzer, op. cit., p. 5.

27 Hitler himself is alleged to have expressed the view that punishment of the guilty was more important than reprisal measures. See Major War Criminals Tribunals, Pt. 11 (1947), p. 170. The statement is reported in the testimony of Dr. H. H. Lemmers, Chief of the Reich Chancellery, in the Trial of Field Marshal Keitel. General von Falkenhorst was even more emphatic on this point and requested that more time be devoted to searching for the guilty. See Major War Criminals Tribunal, Pt. 5 (1946), p. 132. So did General Wuehlisch, the German Chief of Staff in Holland, whose opposition to the indiscriminate reprisals of General Rauter caused the latter to complain to Himmler. See Trial of Hans Rauter, op. cit., pp. 103–104.

28 Op. cit., p. 89, par. 358(b). See also the British Manual, op. cit., p. 85, par. 454.

29 See American Rules of Land Warfare, op. cit., p. 86, par. 346(b), and British Manual of Military Law, op. cit., p. 85, par. 456. See also Trial of General von Mackensen, op. cit., p. 5.

30 It is so seldom that a belligerent state will admit to its enemy that it was guilty of a violation of the laws of war and offer redress, that there is little authority on what constitutes sufficient redress to end the right to reprisals. A belligerent which violates the Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Convention (IV) of 1907, may be liable under Art. 3 of that convention to pay compensation for the wrong. Art. 3 reads: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”

31 See British Manual, op. cit., p. 86, par. 460. An instance is recorded of how a wounded German officer had been taken prisoner by the Dutch resistance. The Germans declared that if the officer were released within 24 hours there would be no reprisals. The officer was released, having received medical care from the Dutch soldiers who had captured him. In spite of their pledge, however, the Germans exercised reprisals on the village of Putten. See Major War Criminals Tribunal, Pt. 5 (1946), p. 322.

32 See discussion infra, at pp. 602 ff.

33 Trial of Wilhelm List and Others, op. cit., pp. 44, 61, 62, 64, 78, 79, 85. See also Waltzog, Recht der Landkriegsführung (1941) p. 83, in Trial of Kesselring, Albert, War Crimes Reports, Vol. 8 (1949), p. 12 Google Scholar.

34 In the Trial of Wilhelm List the United States Military Tribunal suggested numerous procedures before resorting to reprisals against hostages. See Trial of Wilhelm List and Others, op. cit., pp. 61–62.

35 See British Manual, op. cit., p. 85, par. 457.

36 See, for example, the Trial of Gerhard Flesch, op. cit., p. 119, where it is pointed out that the executions of Norwegian citizens without previous trial could not be justified as reprisals.

37 Trial of Wilhelm List and Others, op. cit., p. 85.

38 See ibid., pp. 62, 64–66.

39 Judicial hearings prior to reprisals were appreciated by Hitler for their propaganda value. A document from Hitler’s headquarters dated Jan. 9, 1944, points out the importance of “show trials”; see Major War Criminals Tribunal, Pt. 4 (1946), p. 117. This document also quotes Field Marshall Keitel as saying “I am against legal procedure. It does not work out.” In another document it is suggested that commandos against whom Hitler had issued his retaliatory Commando Order should be executed and posthumously tried and sentenced.

40 Trial of Hans Rauter, op. cit., pp. 132–133.

41 Lauterpacht, , British Year Book of International Law, Vol. 21 (1944), p. 64 Google Scholar. See also Trial of Wilhelm List and Others, op. cit., p. 73.

42 American Rules of Land Warfare, op. cit., p. 89, par. 358(b). The British Manual says briefly: “Although there is no rule of International Law respecting the matter, reprisals should never be resorted to by the individual soldier, but only by order of a commander.” See British Manual, op. cit., p. 85, par. 455.

43 Trial of Wilhelm List and Others, op. cit., p. 85.

44 In In re Kooymans, cited in the Annual Digest of Public International Law Cases (1946), p. 398, the Dutch Special Court of Cassation mentioned as one of the factors establishing the illegality of a German reprisal measure, that it was authorized only by a non-commissioned officer.

45 The rejected Russian draft on reprisals which was submitted to the Brussels Conference in 1874 provided quite unmistakably that reprisals should be ordered only by the highest authority: “Reprisals shall be allowed only on the authority of the commander-in-chief, who shall likewise determine the degree of their severity and duration.” Sec. 71 of the Russian draft in Westlake, International Law (1913), Vol. II, pp. 123–124 Google Scholar.

46 Under the Barbarossa Jurisdiction Order the Germans were more specific than the Americans and the British about which ranks had the power to order reprisals, but less discretion was left in the hands of the officers. See Trial of the German High Command, War Crimes Reports, Vol. 12 (1949), p. 30. See also Major War Criminals Tribunal, Pt. 11 (1947), p. 20, Pt. 5 (1946), p. 321, and Pt. 6 (1946), p. 141. The order, which provided for collective coercive measures on the order of an officer of the rank of at least battalion commander, also provided, however, that offenses against enemy civilians by members of the Wehrmacht or its auxiliaries should be prosecuted only if the maintenance of discipline or security should so require. See Trial of the German High Command, op. cit., pp. 30–31. Illegal reprisal action by an unauthorized person against an enemy civilian might therefore have gone unpunished.

47 American Rules of Land Warfare, op. cit., p. 90, par. 358(e). The British Manual says: “What kinds of acts should be resorted to as reprisals is a matter for the consideration of the injured party.” See British Manual of Military Law, op. cit., p. 86, par. 459.

48 In the opinion of one expert the air arm is the most suitable. See Spaight, Air Power and War Rights (1947), p. 49. Although the most inhuman weapons, such as bacteriological warfare, may be banned from general use as reprisals, they may be approved as reprisals in kind. See Oppenheim, op. cit., p. 275.

49 Trial of Hans Rauter, op. cit., pp. 133–134.

50 See Trial of General von Mackensen and General Maelzer, op. cit., p. 5. The destruction of property, often of whole villages, was not an unusual measure of reprisal by the Germans in the second World War. See, for example, the German High Command Trial, op. cit., p. 20, and the Trial of Wilhelm List and Others, op. cit., p. 38. Furthermore, the Germans engaged in a special type of reprisal against property which became known as the “Baedeker Raids.” The “Baedeker Raids” were air attacks upon landmarks, palaces, cathedrals, museums, and other places of cultural, historical, or artistic importance. For authority opposed to the destruction of property as reprisals, see Trial of Hans Szabados, op. cit., p. 61, and the Trial of Franz Holstein and Others, op. cit., p. 30.

51 According to the American Rules, “Collective punishments may be inflicted either in the form of fines or otherwise.” See American Rules of Land Warfare, op. cit., p. 90, par. 358(e). As a result of a general order by Hitjer, a decree was issued by Göring on Aug. 14, 1943, which provided that in retaliation for Allied raids on Germany, enemy property in occupied areas would be seized to replace the house furnishings of Germans which were destroyed in the raids. Trial of Hans Rauter, op. cit., p. 99; also ibid., p. 101.

52 See Trial of Hans Rauter, op. cit., pp. 91–92; also p. 103.

53 See Trial of Bruns, Richard, War Crimes Reports, Vol. 3 (1948), p. 15 Google Scholar.

54 Art. 2, Sec. 3, of the convention says: “Measures of reprisals against them are forbidden.” The Geneva Convention of 1949 on Prisoners of War contains a similar provision. Art. 13, Sec. 3, thereof says: “Measures of reprisal against prisoners of war are prohibited.” The above discussion will not treat the Geneva Conventions of 1949, since they are discussed separately, infra, at pp. 607 ff.

55 The Dostler Case, War Crimes Reports, Vol. 1 (1947), p. 22 Google Scholar.

56 Annual Digest of Public International Law Cases (1922–24), Case No. 231.

57 The Dostler Case, op. cit., p. 31. See also the Trial of Gerhard Flesch, op. cit., and infra, p. 607.

58 Trial of Richard Bruns, op. cit., p. 22.

59 Major War Criminals Tribunal, Pt. 5 (1946), p. 128.

60 Ibid., pp. 145 ff., 316–317.

61 See Trial of von Falkenhorst, Generaloberst Nicholaus, War Crimes Reports, Vol. 11 (1949), p. 30 Google Scholar.

62 For a discussion of the legal status, as regards reprisals, of prisoners other than prisoners of war who are protected by the Geneva Convention, see Trial of Karl Buck, War Crimes Reports, Vol. 5 (1948), p. 42, and Trial of Carl Bauer, op. cit.

63 See American Rules of Land Warfare, op. cit., p. 89, par. 358(d), and British Manual of Military Law, op. cit., pp. 86–87, pars. 461–464.

64 American Rules of Land Warfare, op. cit., p. 90, par. 359, and p. 18, par. 76(h). Compare the British Manual of Military Law, op. cit., p. 86, par. 461. See also Trial of Wilhelm List and Others, op. cit., p. 82.

65 American Rules of Land Warfare, pp. 89–90, par. 358(d).

66 History of the United Nations War Crimes Commission, op. cit., p. 34.

villages, or devastation not justified by military necessity.” See Art. 6(b) of the Charter and Art. II(b) of Control Council Law No. 10. It will be noted that except for the reference to prisoners of war, all the above-listed crimes are ordinary war crimes which are subject to the exception of reprisals. There seems to be no good legal reason for making the prohibition of a crime equivalent to prohibition of the universally recognized exception of reprisals. This is not done in the case of other war crimes. Why should it be done in the case of killing hostages?

72 The decisions in the trials clearly do not adopt the prohibition against killing hostages. See Trial of Wilhelm List and Others, op. cit., p. 61. Further on the Tribunal specified the conditions under which hostages may be taken and the pre-conditions for their legal execution. See ibid., pp. 61, 62. The tribunal also distinguished between reprisal prisoners and hostages. See ibid., pp. 61, 79. Some doubt about the List decision may be implied from the decision in the Trial of the German High Command. See Trial of the German High Command, op. cit., pp. 84–85. Note also the cautious statement of the Judge Advocate in the Trial of Albert Kesserling, op. cit., pp. 12, 13. A different view on hostages may be found in the Rauter case based upon the theories of that case which have already been discussed. See Trial of Hans Rauter, op. cit., pp. 137–138. Compare the Trial of Hans Szabados, op. cit., p. 60, and the Trial of Franz Holstein, op. cit., p. 22.

73 See Trial of Wilhelm List and Others, op. cit., p. 46. For other examples of arbitrary assumptions about the connection between the alleged act and the victims, see Trial of Hans Rauter, op. cit., pp. 101–102, and the Trial of General von Mackensen and General Maelzer, op. cit., p. 2.

74 Trial of Wilhelm List and Others, op. cit., pp. 64, 66, 48. See the Barbarossa Jurisdiction Order, Art. 1, Sec. 4, in the Trial of the German High Command, op. cit., p. 30. This provides for collective measures “against localities from which troops have been attacked in a treacherous or deceitful manner.”

75 See the submission by Professor Bonfils in the Trial of Wilhelm List and Others, op. cit., p. 84.

76 The problem of establishing a connection between the victim of reprisals and the illegal act giving rise to the reprisals has sometimes been discussed by reference to Art. 50 of the Hague Regulations despite the fact that Art. 50 was intended to be inapplicable to reprisals (supra, note 6). See the Einsatzgruppen Case, Trial of War Criminals, Vol. 4 (1949), pp. 493–494 Google Scholar. Thus American and British military rules confirm that Art. 50 was intended to have no application to reprisals. See the American Rules of Land Warfare, op. cit., p. 86, par. 344, and the British Manual of Military Law, op. cit, p. 85, note 2. Note the discussion of this point in the “Notes” to the Trial of Wilhelm List, op. cit., p. 88.

77 See American Rules of Land Warfare, op. cit., p. 90, par. 358(e), and British Manual of Military Law, op. cit., p. 86, par. 459.

78 Trial of Wilhelm List and Others, op. cit., p. 39. General Keitel’s testimony in the German High Command Trial indicated that when the above orders were first drawn up the ratios were 5–10 to one, but that Hitler changed the numbers from 5–10 to 50–100. Trial of the German High Command, op. cit., p. 39. See also the orders of General Boehme, ibid., of General Kuntze, ibid., p. 41, and of General Rendulic, ibid., p. 44.

79 Trial of Wilhelm List and Others, op. cit., p. 65.

80 See Trial of Wilhelm List and Others, op. cit., p. 65. In the Trial of Hans Rauter, according to the “Notes on the Case,” the Netherlands Special Court “found that by killing several hostages at a time for the death of one member of the German authorities, he [General Rauter] had committed excessive reprisals in violation of the rule requiring due proportion.” Trial of Hans Rauter, op. cit., p. 131. See also ibid., p. 103. This finding, which seems to be based upon the requirement of a numerical equivalency between the reprisal and the offense, was not adopted by the Netherlands Special Court of Cassation in its review of the case, since the latter court concluded that the reprisals were illegal on different grounds. In the Trial of General von Mackensen and General Maelzer and the Trial of Albert Kesselring the question was presented whether it was excessive to execute ten Italians for every German who was killed in the Rosella Street explosion. The defense argued that this ratio “was not excessive in view of the extremely dangerous situation, as Rome was only a few miles from the front line.” (Trial of General von Mackensen and General Maelzer, op. cit., p. 6.) Although von Mackensen, Maelzer, and Kesselring were convicted, it is not certain whether the courts reached their conclusion on the ground that the reprisal ratio was excessive. Ibid., p. 7.

81 See Trial of Wilhelm List and Others, p. 47.

82 Trial of Franz Holstein, op. cit., p. 23.

83 Trial of Wilhelm List and Others, op. cit., p. 48.

84 Trial of Richard Bruns, op. cit., p. 22; see also p. 19. The Norwegian Lagmannsrett expressed the same opinion in the Trial of Gerhard Fleseh. See Trial of Gerhard Flesch, op. cit., p. 115.

85 Op. cit., p. 125.

86 Ibid., p. 104.

87 For a general discussion of the conventions, see Gutteridge, , British Year Book of International Law, Vol. 26 (1949), p. 294 Google Scholar; De La Pradelle, Lea Nouvelles Conventions de Gençve (1951); Pictet, , this Journal, Vol. 45 (1951), p. 462 Google Scholar; Yingling, and Ginnane, , ibid., Vol. 46 (1952), p. 393 Google Scholar. See footnote 1 above.

88 Cmd. 8033; Dept. of State Publication 3938, p. 84; Supplement to this Journal, p. 119.

89 U. S. Treaty Series, No. 846; Cmd. 3941; this Journal, Supp., Vol. 27 (1933), p. 59.

90 Art. 2, Sec. 3 of the Convention of 1929 provided: “Measures of reprisal against them are forbidden.” Pt. II, Art. 13, Sec. 3 of the Convention of 1949 provides: “Measures of reprisal against prisoners of war are prohibited.”

91 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (1947), p. 118.

92 For the definition in the 1929 Convention, see Art. I thereof, which refers to the three articles of the Hague Convention of 1907. The definition in the 1949 Convention is in Art. 4 thereof.

93 Cmd. 8033; Dept. of State Publication 3938, p. 25.

94 U. S. Treaty Series, No. 847; Cmd. 3940; this Journal, Supp., Vol. 27 (1933), p. 43.

95 See Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (1947), p. 59, and Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions (1947), pp. 51–52. See also “Projets de Conventions Revisées ou Nouvelles Protégeant les Victimes de la Guerre,” 17th International Conference of the Red Cross (1948), p. 24.

96 See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, p. 199.

97 Cmd. 8033; Dept. of State Publication 3938, p. 55.

98 Tenth Hague Convention, Cmd. 4175, this Journal, Supp., Vol. 2 (1908), p. 153; Convention of 1906, Cmd. 3502, this Journal, Supp., Vol. 1 (1907), p. 201.

99 See “Projets de Conventions Revisées ou Nouvelles Protégeant les Victimes de la Guerre,” 17th International Conference of the Red Cross (1948), pp. 46–47.

100 Cmd. 8033; Dept. of State Publication 3938, p. 163.

101 Report of the Conference of Government Experts for the Study of Conventions for the Protection of War Victims, Vol. III (1947), p. 9.

102 Report on the Work of the Preliminary Conference of National Red Cross Societies for the Study of the Conventions and Various Problems Relative to the Red Cross, Geneva, July 26–August 3, 1946 (1947), p. 96.

103 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (1947), pp. 275–276. See also Annex D on Regulations relative to Civilian War Internees (CWI), Art. 2.

104 “Protected persons” are defined in Art. 4. Art. 13 of Pt. II provides: “The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war.”

105 An additional point about the applicability of the Convention on Civilian Persons arose at the Geneva Conference in connection with state property. The Soviet delegate felt that state property should be protected against reprisals, but the American delegate believed that this would open the way to abuses. See Art. 30 of the Draft Convention for the Protection of Civilian Persons in Time of War as Amended and Approved by the 17th International Red Cross Conference, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II (1949), pp. 648–651.

106 See supra, footnote 91 and text concerning the Convention of 1949 on the Treatment of Prisoners of War. Note the similar wording of the other 1949 conventions.

107 See supra, p. 601.

108 See Parliamentary Debates (Hansard), Vol. 499 (1951–1952), pp. 1453–1455; Vol. 501 (1951–1952), pp. 1345–1347. Concerning collective punishments in Kenya, see ibid., Vol. 501, pp. 1340–1341; Vol. 508 (1952–1953), pp. 1554, 53–54 (written answers).