Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 5 : Duration of application
Text of the provision
For the protected persons who have fallen into the hands of the enemy, the present Convention shall apply until their final repatriation.
Reservations or declarations
None
Contents

A. Introduction
941  There are a number of articles in the Geneva Conventions and Additional Protocols that set out these instruments’ temporal scope of application.[1] Those provisions stipulate from when the Conventions and Protocols become applicable and until when they apply, in whole or in part. Indeed, although some provisions of the Conventions and Protocols may cease to be applicable at the end of a conflict, many continue to apply even after that time.[2] In this vein, Article 5 affirms that wounded and sick combatants and medical and religious personnel who have fallen into enemy hands remain protected by the Convention until their final repatriation.
942  Serious disputes during the Second World War as to from when and until when the 1929 Geneva Conventions were applicable made it necessary to add a provision to this effect in the Third and Fourth Conventions of 1949. Certain belligerents, denying the sovereignty, or even any legal existence, of the defeated enemy had claimed the right to deal with prisoners of war as they saw fit and to deprive them of their treaty safeguards.[3] The provisions that were subsequently adopted are phrased in broad terms and go beyond that particular situation. Alongside the articles on the non-renunciation of rights and special agreements,[4] Article 5 precludes a Party to a conflict from invoking any excuse for denying the protection of the Conventions to protected persons for as long as they are in enemy hands.
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B. Discussion
943  Article 5 was included in the First Convention in order to ensure the uniformity of the Conventions and so that each Convention would be complete in itself. This article is thus similar to Article 5 of the Third Convention and Article 6 of the Fourth Convention; however, it differs from the other two in that it does not specify the moment when the First Convention begins to apply to the protected persons. The reason for this is that the persons protected by the First Convention already enjoy its protection while they are with their own armed forces. In other words, combatants are protected as soon as they are wounded or sick, and medical personnel are protected as soon as they comply with the conditions set down in the Convention.[5] Thus, unlike the duration of protection, the beginning of protection does not depend on their being in enemy hands.[6]
944  Wounded and sick combatants who have fallen into enemy hands are prisoners of war.[7] They will thus be covered by both the First and Third Conventions. The wounded and sick who do not recover from their initial wounds or sickness even by the end of the conflict and who are still in enemy hands remain protected by the First Convention until the moment specified in Article 5 – their final repatriation.
945  When wounded and sick prisoners of war have recovered, the First Convention no longer applies to them, but they remain protected by the Third Convention until their final release and repatriation.[8] If they are wounded or fall sick again while prisoners of war, they are protected only by the Third Convention, which in any case requires a standard of health care and hygiene that is at least equivalent to that set down in the First Convention. In either case, wounded and sick persons in enemy hands must be given the treatment their condition requires.[9] It follows, therefore, that the point at which a person in enemy hands is deemed to have been restored to health is of no real significance. Article 5 is thus most relevant for retained medical or religious personnel as it ensures that they are protected by the First Convention until their final repatriation.
946  The word ‘final’ pre-empts or excludes any subterfuge involving releasing wounded prisoners of war or retained medical or religious personnel but returning them to captivity under some other name. In this way, it corresponds to Article 5 of the Third Convention.[10] Article 5 of the First and Third Conventions ensures that persons remain protected as long as they are in enemy hands, even if active hostilities have ceased and, in some cases, even long after the end of the conflict.
947  The First Convention requires Parties to return medical and religious personnel who are not indispensable for the care of prisoners of war ‘as soon as a road is open for their return and military requirements permit’.[11] This may be well before the end of active hostilities. The significance of Article 5 is that even if a Party fails to fulfil its obligation to repatriate such personnel within the prescribed time, it may not change their status or deny them the protection and treatment due to them.
948  Moreover, the Third Convention requires Parties to release and repatriate prisoners of war ‘without delay after the cessation of active hostilities’.[12] For retained medical and religious personnel, this entails that the conditions for their retention and return apply even after the end of hostilities.[13] In other words, a Party which continues to detain prisoners of war (for whatever reason) may only retain the number of medical and religious personnel indispensable to the care of those prisoners.[14] This was an issue during and after the conflict between India and Pakistan in 1971, when prisoners of war continued to be detained and medical personnel retained.[15] While neither Party disputed that the retained medical personnel remained protected by the First Convention, it was questioned whether all of the retained medical personnel were actually indispensable to the care of the prisoners of war. Failing to return superfluous medical and religious personnel could be construed as tantamount to an attempt to change their status.
949  In short, Article 5 affirms the key tenet of international humanitarian law: that the Convention applies based on the facts on the ground. The protection conferred by the Geneva Conventions stands for as long as the protected persons remain in circumstances requiring that protection and does not hinge on formalities regarding the beginning or end of a conflict.
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Select bibliography
Grignon, Julia, L’applicabilité temporelle du droit international humanitaire, Schulthess, Geneva, 2014.

1 - In addition to this article, see, in particular, common Article 2; Third Convention, Article 5; Fourth Convention, Article 6; and Additional Protocol I, Articles 1 and 3. For non-international armed conflicts, see common Article 3, and Additional Protocol II, Articles 1(1) and 2(2).
2 - For a discussion of the temporal scope of application of the First Convention, see the commentary on common Article 2, section D.2.c.
3 - See François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 686–687; Catherine Rey-Schyrr, De Yalta à Dien Bien Phu: Histoire du Comité international de la Croix-Rouge 1945–1955, ICRC/Georg, Geneva, 2007, pp. 138 and 164–167.
4 - See common Articles 7 and 6, respectively (Articles 8 and 7 in the Fourth Convention).
5 - See Articles 12 and 24, respectively.
6 - For when the Convention begins to apply, see Article 2 and its commentary, sections C and D.
7 - See Article 14.
8 - See Article 5. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 143.
9 - See, in particular, First Convention, Article 12, and Third Convention, Articles 29–31.
10 - See the commentary on Article 5 of the Third Convention for a more detailed discussion of the duration of application of that Convention.
11 - See the commentary on Article 30, section C, regarding return and repatriation of medical and religious personnel.
12 - Third Convention, Article 118.
13 - See First Convention, Articles 28, 30 and 31, and Third Convention, Article 33.
14 - This number is to be determined in accordance with the specific conditions and requirements set down in Article 28.
15 - François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, p. 478; ICRC, Annual Report 1972, ICRC, Geneva, 1973, p. 51.