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Commentary of 1960 
ARTICLE 91. -- ESCAPES: I. SUCCESSFUL ESCAPE


[p.445] GENERAL REMARKS

The first paragraph of this Article does not correspond to any provision of the 1929 Convention; the second paragraph is similar to Article 50 of that Convention (1).
A prisoner of war can legitimately try to escape from his captors. It is even considered by some that prisoners of war have a moral obligation to try to escape, and in most cases such attempts are of course motivated by patriotism. Conversely, in its own interest, the Detaining Power will endeavour to prevent escape whenever possible. This results in the paradox of escape to which A. R. Werner (2) refers: an attempt to escape is considered by the Detaining Power as a breach of discipline and therefore punishable, while the adverse Party considers it as an act which cannot be held to be a crime. Attempted escape is therefore liable only to disciplinary punishment, and not to judicial proceedings.

PARAGRAPH 1. -- SUCCESSFUL ESCAPE

1. ' Historical background '

The Brussels Declaration did not recognize the need for any definition of successful escape; although it instituted the privilege of impunity, it merely used the wording "after succeeding in escaping" (Article 28 ).
The Hague Regulations were more explicit and stated that escape was unsuccessful when the prisoners attempting it were "retaken before being able to rejoin their own army or before leaving the territory occupied by the army which captured them" (Article 8, paragraph 2 ). The 1929 Conference adopted the same wording, in Article 50 , but it obviously did not cover the problem entirely, and taking into account the comments by the International Committee of the Red Cross, the Conference of Government Experts drafted the following text:

[p.446] "Prisoners of war shall be considered as having successfully
escaped:

1. on reaching neutral or non-belligerent territory, or territory not
occupied, but under the authority of their own country or of an ally;

2. on rejoining their own armed forces or those of an allied Power;

3. on reaching the high seas;

4. on boarding, in the territorial waters of the Detaining Power, a
merchant vessel or warship flying the flag of their home country or
of an allied Power, and not under the authority of the Detaining
Power." (3)

This text was redrafted at the Stockholm Conference and was adopted in its present form.
As Scheidl has pointed out (4), it is not sufficient for a prisoner attempting to escape to throw off immediate pursuit and hide among the population of the territory; he must actually succeed in escaping beyond the reach of the Detaining Power.

2. ' The criterion of armed forces ' (sub-paragraph 1).

"Armed forces" as referred to here are the subject of Article 4 of the present Convention, which defines the conditions in which persons who fall into the hands of the enemy are recognized as being prisoners of war. For the escape to be considered as having succeeded, however, it does not suffice for a prisoner of war to have joined one or more members of the "armed forces" as defined in that Article. A prisoner of war who has joined others who escaped with him cannot claim to have escaped from his enemies; the armed forces which he has succeeded in joining must also escape the power of the enemy and, if only for a brief period, must be beyond the reach of the opposing forces.

3. ' The criterion of territory and sovereignty ' (sub-paragraph 2)

The text proposed by the Conference of Government Experts (5) was drafted in a positive form and referred expressly to neutral or [p.447] non-belligerent territory, or territory not occupied, but under the authority of their own country, or of an ally of their own country (6).

4. ' Conditions relating to escape by sea ' (sub-paragraph 3)

The attempt to escape will not be deemed to have succeeded if a prisoner of war takes refuge on a neutral or non-belligerent ship in the territorial waters of the Detaining Power. A contrario, it will be deemed to have succeeded if those same ships were actually outside the territorial waters of the Detaining Power.
The text proposed by the Conference of Government Experts provided for refuge on the high seas, but this was not supported by the Stockholm Conference. At the 1949 Diplomatic Conference, one delegation proposed that escape should be deemed to have succeeded when a prisoner of war had "reached the high seas, otherwise than in a vessel under the authority of the Detaining Power or one of its allies". This suggestion was not accepted, however, and a prisoner of war on the high seas, for instance on a raft, without having been picked up by a ship, cannot be considered to have succeeded in escaping (7).

PARAGRAPH 2. -- THE PRIVILEGE OF IMPUNITY

The principle that prisoners of war who have made good their escape and who are recaptured are not liable to punishment in respect of their escape was already set forth in the Brussels Declaration (Article 28 ), the Hague Regulations (Article 8, paragraph 2 ) and the 1929 Convention (Article 50 ).
[p.448] Legally speaking, this rule is based on the fact that once escape has succeeded, the Detaining Power no longer has any authority over the prisoner of war, since that authority is based only on captivity itself. Scheidl goes still further (8) and maintains that once captivity comes to an end for any reason, whether upon escape or release, the Detaining Power forfeits all disciplinary authority in respect of past events; thus, in his opinion, a prisoner of war who is recaptured cannot be required to serve any penalties which he incurred previously, whatever the cause (9). Moreover, it should be borne in mind that in accordance with Article 90, paragraph 3, not more than one month may elapse between the pronouncing of an award of disciplinary punishment and its execution, and this constitutes a statute of limitation.


* (1) [(1) p.445] See below, p. 730;

(2) [(2) p.445] See A. R. WERNER, op. cit., p. 326;

(3) [(1) p.446] See ' Report on the Work of the Conference of
Government Experts ', pp. 211-212;

(4) [(2) p.446] See SCHEIDL, op. cit., p. 449;

(5) [(3) p.446] See above;

(6) [(1) p.447] In this connection, one may refer to an
interesting example. During the Second World War the
Germans considered that an escape was successful when
prisoners of war had reached neutral territory or
territory not occupied by the enemy, for instance, the
unoccupied zone of France (BRETONNI RE, op. cit., p. 359).
Nevertheless, after that zone had been occupied by
Germany, escaped prisoners already there were left free.
With regard to the obligations of the neutral State on
whose territory an escaped prisoner of war has sought
refuge, see Paul E. MARTIN, ' Note sur les prisonniers de
guerre évadés sur le territoire d'une Puissance neutre,
Revue internationale de la Croix-Rouge ', January 1944,
pp. 62-69;

(7) [(2) p.447] A prisoner of war who has left the territory
of the Detaining Power or the territory occupied by that
Power and reached the high seas, cannot be considered as
having succeeded in escaping, since the high seas remain
permanently open to all nations alike, including the
Detaining Power, of course. The same argument applies a
fortiori in the case of territorial waters. This view is
confirmed by SCHEIDL, op. cit., p. 449;

(8) [(1) p.448] See SCHEIDL, op. cit., p. 445;

(9) [(2) p.448] An exception must, however, be made in the
case of offences committed during escape, as will be seen
hereunder, and, in accordance with Article 85, of offences
against common law committed prior to capture;