Cross-Linkages between Non-Adverse Derogation and Non-Renunciation of Rights in Modern IHL

Articles 6/6/6/7 of the four Geneva Conventions of 1949 (GCs) allow belligerent States to conclude special agreements either to implement their duties under international humanitarian law (IHL) or to accept additional obligations not otherwise applicable to them. However, there is a limit to the faculty accorded. The special agreement shall not deprive protected persons of their rights. In other words, more rights may be afforded, but fewer rights than those provided under IHL (here under the GCs) cannot be countenanced.

The following is the wording of the mentioned provisions, taken from GC I, Article 6.

In addition to the agreements expressly provided for in Articles 10, 15, 23, 28, 31, 36, 37 and 52, the High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision. No special agreement shall adversely affect the situation of the wounded and sick, of members of the medical personnel or of chaplains, as defined by the present Convention, nor restrict the rights which it confers upon them.

Articles 7/7/7/8 of the GCs complement this legal regime by stating that protected persons cannot renounce their rights under the Conventions. Here is the text of that provision, taken again from GC I, Article 7.

Wounded and sick, as well as members of the medical personnel and chaplains, may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.

We may notice that an explicit reference is made to Article 6, linking non-renunciation to the non-derogation.

Historical Experience

The reason for these rules lies in experiences made during the Second World War. Protected persons under the earlier Geneva Conventions had been ousted from protections by agreements between belligerents (Germany and Vichy France) or by unilateral renunciations of the concerned persons (prisoners of war in Germany lured into so-called working contracts implying the renunciation of prisoner of war status).

Thus, following the Scapini-Hitler Agreement of 16 November 1940 and the Laval-Sauckel Agreement of April 1943, French prisoners of war were placed on leave of captivity and were transformed into civilian workers. They were deprived visits by the International Committee of the Red Cross (ICRC) and could no longer benefit from collective relief shipments. Other agreements derogating from rights were concluded between the Allies and the government of Marshal Badoglio.

“Adrogation”

Thus the modern law protects the rights at stake by the mentioned non-derogation clauses. Under the non-derogation provisions of Article 6/6/6/7, the cardinal point to emphasize is that special agreements may add to the sum of rights of protected persons but may not subtract from them. The prohibition of alteration is thus merely unidirectional. This state of legal affairs can give rise to the coining of a concept of “adrogation” (addition of rights) distinguished from derogation (diminishment of rights). Alternatively, one could speak of “positive derogation” (addition of rights) and “negative derogation” (diminishment of rights), even if the first is not truly a matter of “derogation” in the proper sense of the word, which implies an elimination of some content of the main rule.

The common feature of the regimes under consideration is that they are “minimum” protective regimes. It is a matter of setting a minimum threshold, which cannot be transgressed downwards, but where more liberal treatment is desired, this is allowed, although not imposed. The legislator considers it impossible to require everyone to behave according to higher standards. A large number of States may lack the resources to do so; the diversity of views may prove too great beyond a certain generally acceptable threshold. Or, it may prove prudent from the point of view of legislative technique to abandon codifying an overly ambitious regime by simply setting a minimum and leaving the remainder to the goodwill of the parties, with possibly a hope of further progress.

In more technical terms, this leads to saying that the rights-granting provisions of the GCs are non-derogable norms, because they cannot be transgressed downwards by particular agreements or by other normative measures (e.g. unilateral acts). But only “derogation” in the narrow and proper sense is prohibited, that is to say, the fact of making inapplicable, entirely or partially, an element of the rights-granting norm; or, in more familiar terms, of removing something from the rights-granting norm by weakening it. Through the key term of derogation, we are close to notions such as jus cogens. But this is a jus cogens of non-derogation and not a jus cogens of intangibility.

“Adversely Affect”

The wording of the provisions here at stake contain a double criterion. To “adversely affect” protected persons is the first branch of the prohibition. It will often be too vague, because it may be uncertain at a given time whether a measure or regulation constitutes an advantage or whether it will aggravate the situation. Moreover, what if the situation is improved in some respects but worsened in others? This is why, in order to increase precision and consequently protection, the words “nor restrict the rights” have been inserted. This is clearly to immunize all the rights and guarantees of the GCs. The essential criterion is here manifestly that of (negative) derogation.

Examples of permissible agreements (adrogations or positive derogations) abound. Thus, numerous evacuation and relief agreements have been concluded that go beyond the strict letter of the GCs. During the Spanish Civil War, even before the adoption of the Geneva Conventions of 1949, the ICRC obtained an agreement from the authorities of Burgos (nationalists) and Madrid (republicans) to treat the respective captives as prisoners of war, even though the conflict was a civil war. Examples of adverse derogations have already been provided.

Further Interpretive Considerations

Let us now go a step further. There are two types of situations of cross-reference in the area considered. First, there is the issue of the possible conflict between the two criteria of the rules on special agreements: “adversely affect”; and “restrict rights.” What about a situation where the restriction of rights does not lead to being adversely affected, but in fact improves the situation of the protected persons? Which criterion shall then prevail? Moreover, what if a special agreement restricts rights in some respects but expands rights on others? Shall it then always fall under the prohibition of negative derogation, or can there be some degree of compensation by the advantages of the positive derogation, when considered case-by-case and in light of the true advantages of the protected person?

Second, there is the linkage between the special agreements (Article 6) and non-renunciation of rights (Article 7). If a person can renounce rights under Article 7 interpreted in context (see below), then, as a matter of logic, a special agreement renouncing these same rights should be possible. Then, we are beyond the letter of Article 6 and there would in any case be some permissible restrictions of rights.

Four Categories

On the first issue, four categories may be considered for our purposes: 1) manifestly or impliedly unfavorable and restrictive agreements; 2) mixed agreements, bringing advantages on some issues but disadvantages on others; 3) manifestly favorable and “adrogative” agreements; 4) non-manifestly favorable and “adrogative” agreements.

Category 1 does not need to be canvassed, it falls squarely under the prohibitive rules. Examples have been given above.

Category 2 may involve the following situation. Following visits of prisoners of war by the protecting power (assuming one is nominated), harsh measures were regularly taken against prisoners of war, in “retaliation” for what the detaining authorities thought the prisoners could have said to the delegate of the protecting power. It appears that the means to directly curb such outrageous behavior are non-existent or insufficient.

The belligerents at stake, fearing their own forces on the ground, conclude an agreement to eliminate the visits by protecting powers. On the one hand, this bluntly restricts the rights of the prisoners (receiving visits pursuant to GC III, art. 126(1-3)). On the other hand, this in fact protects them better against harsh treatment. Moreover, the prisoners could potentially still enjoy the visits by the delegates of the ICRC (GC III, art. 126(4)).

Is such a special agreement allowed? Based on the mere letter of Article 6 provisions, it is not. The “adversely affect” and “restriction of rights” limbs are alternatives (“or”). A restriction of rights seems therefore always prohibited, independently of its concrete effect. Conversely, under an interpretation which goes more to the protective spirit of the GC and is thus more teleological, the contrary view could be upheld in light of the concrete facts of the situation at hand. In such a case, a link is made between the two criteria, and the restriction of rights limb is to some extent subject to the adversely affected requirement.

It all depends thus on whether the interpreter shall follow the letter or can interpret more teleologically (with regard to the protective aim) the provisions at stake. Moreover, the issue turns on a disentangling of the general interpretation and the situation-related interpretation. An agreement like the one mentioned cannot in general be countenanced, because it is flatly contrary to Article 6. But in the specific situation at hand, which is atypical, and may thus require equitable adjustment, the agreement could prove to be more favorable to the prisoners than the measures they otherwise have to endure.

The 1960 Pictet Commentary suggests that such an easing is possible:

(a) If, as a result of a change in circumstances, the application of a provision under the Convention entailed serious disadvantages for the prisoners, would the ‘safeguard clause’ debar the Powers concerned from endeavouring to remedy the situation by an agreement departing from that provision? This is a question which the States concerned cannot settle on their own account. If such a situation were to arise in actual practice, it would be for the neutral organizations responsible for looking after the interests of the prisoners to give their opinion; basing their decision, in such contingency, on the rule (inherent in the safeguard clause) of not adversely affecting the situation of prisoners, they could tolerate certain measures of derogation which the States concerned might take, either separately or by mutual agreement, with a view to remedying the situation.

With respect to Category 3 (relating to manifestly favorable agreements), again, there is no particular problem. Examples were given above.

Category 4 (relating to non-manifestly favorable agreements), however, raises an interesting problem. Consider the following situation. During the Falklands/Malvinas conflict, British forces proposed transferring prisoners to ships. This was, for the time being, the safest place for them. However, Article 22 of GC III provides that prisoners of war may only be interned in establishments situated on land. The purpose of this provision is to ensure a safe and suitable place of internment for prisoners, which is not usually the case at sea (an experience gained in particular during the Napoleonic Wars).

However, in view of the particular circumstances of the case, where the available places on the barren islands were inadequate, it was possible to argue teleologically—because in this case the aim is not to reduce the protection of prisoners, but to increase it, which is therefore in line with the general aim of protection set out by the Conventions—the transfer to a ship is compatible with the Convention. This position was also that of the ICRC delegates at the time, who visited prisoners on ships.

It must be added that detention on the ships was not envisioned as a permanent measure, and that the prisoners were to be transferred to land. But the remote geographical position of the conflict imposed significantly longer delays to this transfer than usual. Here again, thus, we find the split between an interpretation clinging to the letter and one making allowance for the purpose.

Linkage and lex specialis of renunciation

Second, and finally, there is the point of the linkage between Article 6 and Article 7 situations. Article 7 disallows protected persons to renounce their rights. But this provision is not absolute despite the wording “in no circumstances” which is technically incorrect. There are some provisions within the GCs which expressly allow a protected person to renounce some of the otherwise applicable protections. These provisions are an exceptional lex specialis intra legem to Article 7.

Consider Article 52(1) of GC III which states, “Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature.” “Unless he be a volunteer” means that a prisoner of war can volunteer; he may then perform otherwise prohibited work. He may, simply put, renounce his rights in this context.

As a matter of legal logic, it must therefore also be possible to conclude special agreements to the same effect. Belligerent States could conclude an agreement for organizing and limiting such dangerous work, limiting it to volunteers. Technically speaking, this may not be a “restriction of rights,” because the prisoner has positively the right to do such work. One could also say that it is a restriction of rights, but one which is exceptionally allowed. In any case, the allowance under Article 52(1) can be transferred into Articles 6/6/6/7 in order to determine if the “negative derogation” is allowed.

Improvements of Protection

There remains one further question, akin to the one we asked under Article 6 situations. What if a renunciation of rights truly improves the situation of the protected person in the concrete case (what we called mixed situations)? Can once more teleological arguments prevail over literal ones?

Consider for example the following situation. The prisoner is genuinely offered labor contracts with good pay, liberating him from camp detention. But to be able to perform that work, he must renounce his prisoner of war status, and thus possibly the protections of a prisoner of war. Conversely, he is offered general or special protections under due process of law. Can such a choice be accepted under Article 7/7/7/8? Again, the letter of the law squarely disallows it (“in no circumstances”).

Can the spirit and purpose intervene to temper the severity of the main rule? The answer must depend on the vision of IHL defended. Through a historical and literal lens, the answer must neatly go to the negative. Under a more teleological view, flexibilities could be allowed. But this is more difficult under Article 7 situations. The position of the single prisoner with regard to the detaining power is generally one of strong inequality of power and the risk of losing the gamble of betterment in a second time is higher than in agreements carefully crafted by the belligerents themselves. Moreover, the language of Article 7 is particularly trenchant, contrary to the more open-textured language of Article 6. The leap to take in allowing teleological arguments is therefore in this context significantly higher.

Conclusion

As these examples show, modern IHL, including especially the GCs, requires holistic reading and thoughtful interpretation. Cross-linkages, such as those this post has identified between Articles 6/6/6/7 and 7/7/7/8, both secure protections borne of historical experience and simultaneously afford guiding principles for ensuring adaptable rules of treatment. However, along with these advantages come challenges, including choices between literal and teleological implementation by States.

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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

 

 

 

 

 

 

Photo credit: U.S. Army