« ПредыдущаяПродолжить »
Though the need to provide elementary principles for humane treatment in time of such disputes was apparent, agreement on Article 3 was achieved only with much difficulty, requiring no less than twenty-five meetings during the course of the Diplomatic Conferences devoted to its discussion and formulation. 1 Frederic Siordet, again commenting on these discussions, points out that “a summary of the discussions and the stages through which the text (for Article 3) passed, will convince critics who may find the final text either too definite or, on the contrary, inadequate or even inoperative, that the problem was regarded under all its aspects. It will be seen that no issue was side-tracked; the actual wording was in reality the best compromise between humane requirements and the maintenance of security on the territory of sovereign States." 2
Explaining the purpose of Article 3, the panel of experts 3 of the International Committee of the Red Cross, has this to say: "It has the merit of being simple and clear. It at least ensures the application of the rules of humanity which are recognized as essential by civilized nations and provides a legal basis for charitable interventions by the International Committee of the Red Cross or any other impartial humanitarian organization ... 4 It makes it absolutely clear that the object of the Convention is a purely humanitarian one, that it is in no way concerned with the internal affairs of States, and that it merely ensures respect for the few essential rules of humanity which all civilized nations consider as valid everywhere and under all circumstances and as being above and outside the war itself.” 5
Frederic Siordet further points out that even if a State “considers the rebels as ordinary law-breakers, it is in no way hindered by the observation of Article 3. No civilized government is authorized by its own legislation to apply the treatment which the Article prohibits: torture and execution without trial.” 1
1 Final Record of the Diplomatic Conference of Geneva, 1949, op. cit. 2 "The Geneva Conventions an Civil War”, op. cit., pp. 133-134. 3See p. 13 above. 4Commentary, op. cit., p. 48. 5Ibid., p. 60.
Article 3"... has the additional advantage of being applicable automatically without any condition of reciprocity. Its observance does not depend upon preliminary discussions as to the nature of the conflict or the particular clauses to be respected ... It is true that it merely provides for the Principles of the Convention and not for the application of specific provisions, but it defines those principles and in addition lays down certain imperative rules." 2
The final paragraph of Article 33 makes it absolutely clear that the application of the Article in no way constitutes any legal recognition or gives any right to special protection or any immunity to the adverse party. Article 3 is only concerned with the individual and the physical treatment to which he is entitled as a human being.
1 "The Geneva Conventions and Civil War”, op. cit., (English Supplement), November 1950, pp. 216-217.
2Commentary, op. cit., p. 48.
3 “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict." See Appendix I, p. 60 below also.
OF THE THIRD GENEVA CONVENTION ON THE TREATMENT OF PRISONERS OF WAR
As previously stated, the special emergency powers enacted by the French Government to deal with the Algerian conflict result in the adversaries of France being treated as “common criminals”. Members of the Army of National Liberation who fall into enemy hands therefore are not considered by the French to be entitled to the protections which the Third Geneva Convention of 1949 guarantees to prisoners of war2. There are no prisoner of war camps for the captured Algerian military, but rather, there are state and civil prisons, penitentiaries, detention centers, screening and clearing camps, and military tribunals which pass death sentences on Algerian soldiers, taken prisoner during combat. 3
It is important to note in this respect that Article 4 4 of the Prisoners' Convention defines who are "prisoners of war" for the purposes of the Convention. In addition to members of the regular and auxiliary armed forces, Article 4 includes “members" of organized resistance movements operating in or outside their own territory, even if this territory is occupied, provided that they fulfill the following four conditions: “(a) that of being commanded by a person responsible
1 See Appendix IV, p. 68 below. 2 For an authoritative interpretation of the protections which the Third Geneva Convention guarantees to prisoners of war, see Draper, The Red Cross Conventions, op. cit., pp. 49-72. 3 Le Monde, March 15, 1958. “At Setif, the permanent tribunal of the armed forces condemned to death two rebels captured during a combat, while bearing arms. Their names are Mohamed Khennouf and Larbi Berkar.” 4 See Appendix II, p. 61 below.
for his subordinates; (b) that of having a fixed distinctive sign recognizable
at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance
with the laws and customs of war." The Army of National Liberation has supplied substantial evidence that it satisfies these four requirements. At the First Congress of the Algerian Front of National Liberation, held in La Soumman, Algeria on August 20, 1956, the organization of the Army of National Liberation was set forth. Appendix III of this paper reproduces this document. This organizational chart describes the make-up of the military leadership and troops, the distinctive sign to be worn by soldiers in the Army of National Liberation, details of the insignias to be worn by the various ranking officers, and the pay and family allowances to be paid the soldiers.
Earlier reference has been made to the structure of the Army of National Liberation, the formation of its high command, and its activities in the course of the Algerian conflict. We liave already discussed the fact that the Army of National Liberation operates under the jurisdiction of its own Government the Provisional Government of the Algerian Republic. We have discussed the formation and function of this Government and its recognition by seventeen sovereign nations as the Government representing the Algerian people, and we have referred to the observations of international newspaper correspondents confirming that the Army of National Liberation meets the qualifications of an organized and disciplined army. 1
Sufficient evidence exists to satisfy the requirements of Article 4 that the Army of National Liberation is the armed force of an “organized resistance movement”, and that those of its men who fall into the hands of the adversary should receive all the protections which the Third Geneva Convention provides for “prisoners of war". The refusal of France to recognize this is a violation of the terms of the Prisoners of War Convention.
1 See pp. 4-9 above.