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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.177] ARTICLE 21
. -- RESTRICTION OF LIBERTY OF MOVEMENT
[p.178] PARAGRAPH 1. -- INTERNMENT
Prisoners of war are in the power of the State which has captured them. This power is based on force, and the first concern of the captor is to maintain it by resisting any escape or attempted escape by prisoners. The usual method used for this purpose, expressly authorized by this paragraph of the Convention, is internment. To intern a person is to put him in a certain area or place -- in the case of prisoners of war, usually a camp -- and to forbid him to leave its limits. The concept of internment should not be confused with that of detention. Internment involves the obligation not to leave the town, village, or piece of land, whether or not fenced in, on which the camp installations are situated, but it does not necessarily mean that a prisoner of war may be confined to a cell or a room. Such confinement may only be imposed in execution of penal or disciplinary sanctions, for which express provision is made in Section VI, Chapter III, below. Health considerations may also justify additional restrictions on the liberty of prisoners of war as envisaged
by the term "internment". Such measures, when taken in the interest of the prisoner of war himself and not in the interest of the Detaining power, are expressly authorized by the present paragraph, concurrently with those resulting from the application of sanctions.
Pursuant to Article 41
of the Convention, prisoners of war must be clearly informed of the regulations and the like which the Detaining Power has laid down regarding their internment; in particular, they must be informed of the precise limits imposed on their freedom of movement. In case of any infringement of such limits, Article 42
permits the Detaining Power to take action, if need be by the use of weapons.
PARAGRAPH 2. -- RELEASE ON PAROLE
This paragraph and that which follows it reproduce the text of Articles 10
of the Hague Regulations. Article 12
of those Regulations, which provides that prisoners of war liberated on parole and recaptured bearing arms against the Government to which they had pledged their honour forfeit their right to be treated as prisoners of war, was, however, omitted by the authors of the 1949 Convention.
The 1929 Convention made no mention of release on parole, but the authors of the 1949 Convention decided to include a reference to it, [p.179] with appropriate modifications. During the Second World War, some belligerent countries did permit such release to some extent, after concluding agreements with the opposing party under which certain prisoners of war might be granted temporary release on parole for reasons of health or hygiene.
1. ' First sentence. -- General principle '
The Convention makes provision for liberty on parole or promise, but with a reservation: the laws and regulations of the Power on which prisoners depend must be respected. This reservation is imperative for the Detaining Power itself.
In principle, a prisoner of war who is offered the possibility of liberty on parole is supposed to know the corresponding laws and regulations of the power on which he depends. Such laws and regulations may either forbid prisoners of war to accept release on parole in any circumstances, or may allow them to do so subject to certain conditions. It may be, however, that a prisoner of war is not acquainted with these laws and regulations, if only because they have been promulgated since the beginning of his captivity. The Detaining Power has no such excuse, since the third paragraph of this Article (see below) expressly states that each party to the conflict must notify the adverse party of its laws and regulations in this regard. The text of the present provision seems explicit: prisoners may be released on parole "in so far as is allowed by the laws of the Power on which they depend". The Detaining Power may not therefore offer release on parole to prisoners of war if the laws and regulations of the Power on which they depend forbid them to accept; on
the other hand, it may do so if the relevant laws and regulations permit the possibility, but only to the extent and subject to the conditions specified therein.
The Detaining Power is in a way responsible for the application of these laws and regulations, and is not allowed to make any proposals to prisoners of war in its hands which would be inconsistent with such laws and regulations.
2. ' Second sentence. -- Release on parole for health reasons '
This new provision was inserted as a result of a practice which, if not widespread, was followed during the Second World War.
It may be carried out in a variety of ways ranging from temporary release on parole, even for a very short period such as permission to [p.180] take a walk outside the camp limits, to an authorization to live outside a camp for reasons of health. Here the provision is phrased in very positive terms and must be interpreted as encouraging the Detaining Power to resort to this practice wherever possible, in so far as is allowed by the laws and regulations of the Power on which the prisoners of war depend.
3. ' Third sentence. -- Prohibition of coercion '
The last sentence, which categorically forbids the Detaining Power to compel a prisoner of war to accept liberty on parole or promise, is of the utmost importance. A prisoner who is faced with the choice -- either internment or release on parole, with all the consequences entailed thereby -- is also faced with a problem of conscience which he must be absolutely free to solve. A person who gives his parole gives a personal undertaking on his honour for which he is in the first place responsible to himself.
Once the Detaining Power offers a prisoner of war some liberty of movement in exchange for a promise that he will not take flight, and this is accepted, the Detaining Power has no other guarantee but the word of honour of the prisoner concerned. For, as we shall see when considering the third paragraph of the present provision, if a prisoner who has been paroled breaks that promise, escapes and rejoins the armed forces of his country, there is nothing in the Convention which would oblige the power on which he depends to return him to the power which captured him. Consequently the "sanction" for a breach of parole is not necessarily of a disciplinary or penal nature; it is first of all a moral sanction by virtue of the consequent dishonour for the person concerned.
This would not be the case, however, if there had been any coercion. Would the allegation that coercion had been used entitle a prisoner of war to ignore the promise which he had been compelled to give? The answer is probably in the affirmative, but it would be necessary to prove that there had been coercion. The Convention does not define this term and in such a case the only safeguard provided for a prisoner of war who again fell into the hands of the Power which captured him is contained in the procedural guarantees to which he would be entitled pursuant to Article 85
[p.181] PARAGRAPH 3. -- PROCEDURE FOR APPLICATION
1. ' First sentence. -- Notification of relevant laws and regulations '
This provision stating that upon the outbreak of hostilities the belligerents must notify each other of their respective laws and regulations regarding liberty on parole, is a corollary to the requirement in the second paragraph that the Detaining Power must take into account such laws and regulations.
2. ' Second sentence. -- Respect of parole '
By definition, liberty which is granted solely on the basis of a promise implies that this promise must be scrupulously respected. It is given in the context of the relevant laws and regulations and involves the personal honour of the individual concerned. For this reason, Article 12
of the Hague Regulations attached a sort of ' capitis deminutio ' to any breach of parole: anyone who broke his parole forfeited the right to be treated as a prisoner of war and therefore, if recaptured, became an outlaw. As we have already seen, the authors of the 1949 Convention did not wish to go so far; in such a case the prisoner of war concerned would still benefit from the provisions of Article 85
below which, in particular, guarantee an impartial and equitable trial (1). But nevertheless, unlike the case of a prisoner of war who succeeds in escaping (2), a prisoner of war who is released on parole and is recaptured bearing arms may be tried and sentenced by the Detaining Power.
3. ' Third sentence. -- Obligation for the Power on which prisoners
of war depend '
In the first place, the promise given by a prisoner of war is, of course, binding upon him; but, provided this promise was made consistently with the relevant laws and regulations, it is also binding on the power on which he depends. The undertaking is clearly stated in the present provision, which forbids the said Power to require or [p.182] even to accept from a member of its armed forces any service incompatible with the parole or promise given. It would consequently not be permissible for a Power to take advantage of circumstances in order to obtain information regarding the enemy's position, either by requesting such information, or by merely accepting it. The text does not add that, if a prisoner of war returns to his own side in such conditions, the Power on which he depends must return him to the State in whose hands he was a prisoner. But it does not forbid such a course, nor does it specify the attitude to be taken by that Power, from the penal or disciplinary point of view, in regard to breach of parole by a member of its armed
* (1) [(1) p.181] For the relevant discussions, see ' Final
Record of the Diplomatic Conference ' of Geneva of 1949,
vol. II-A, pp. 252-253, 347, 472-474;
(2) [(2) p.181] See below the commentary on Article 91, Para.
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