Treaties, States Parties and Commentaries
  • Print page
Commentary of 1960 
ARTICLE 109. -- GENERAL OBSERVATIONS


PARAGRAPH 1. -- REPATRIATION OF SERIOUSLY WOUNDED AND
SERIOUSLY SICK PRISONERS OF WAR

This provision is almost identical to that contained in Article 68, paragraph 1 , of the 1929 Convention, on the basis of which repatriation was carried out during the Second World War. The Conference of Government Experts therefore recommended that it should be retained unchanged (1).
[p.509] The neutral members of the Mixed Medical Commissions who met at Geneva on September 27 and 28, 1945, recommended that repatriation should take place within a period of three months; if insuperable reasons made it impossible to arrange it within that time, the prisoners of war concerned should have special facilities and should, in particular, be freed from work and have temporary artificial limbs, if required (2). These suggestions were, however, not approved either by the Conference of Government Experts or by the 1949 Diplomatic Conference, which preferred to retain the 1929 text.
The wording of the provision is imperative ("Parties to the conflict are bound..." and in French "seront tenus"), but a reservation is made for cases covered by paragraph 3, in which a new and important provision is introduced.
Repatriation must be arranged ' regardless of number or rank, ' and "man for man" exchanges are therefore expressly prohibited since the number of prisoners of war repatriated would inevitably be reduced. It is not essential for them to be designated by the Mixed Medical Commissions provided for in Article 112 ; the decision may also be taken by the Detaining Power, provided that the conditions of the present paragraph are respected, that is to say that the prisoners concerned have been cared for until they are fit to travel (3). The second paragraph of Article 112 expressly confirms this right of the Detaining Power.
The prisoners of war to be repatriated will be designated in accordance with the criteria contained in Article 110, paragraph 1 , below, and also in Articles 114 and 115 (prisoners meeting with accidents and prisoners serving a sentence).
The Powers concerned are responsible for organizing and carrying out repatriation; the only reference to this in the Convention is contained in Article 116 , concerning the apportionment of costs. At the Conference of Government Experts, the International Committee of the Red Cross had specifically proposed that the Protecting Powers, or in their absence the International Committee, should arrange for the practical carrying out of repatriations (4), but this proposal was not supported by the drafters of the Convention. There is, however, some justification for intervention by the Protecting Power (or in its absence the International Committee of the Red [p.510] Cross) in Article 8, paragraph 1 , concerning the co-operation of the Protecting Powers in the application of the Convention. The Protecting Powers will necessarily be involved if their territory is used for transit purposes for repatriation convoys, as was the case of Sweden and Switzerland during the Second World War. During that conflict, the International Committee of the Red Cross was also
called upon to give practical help in the repatriation of seriously sick and wounded prisoners of war, when the Governments concerned requested it to send delegates to accompany hospital ships and repatriation convoys. Article 126 below gives delegates of the International Committee, as well as delegates of the Protecting Powers, all the requisite prerogatives for exercising the right of supervision, verifying the conditions in which repatriation takes place and receiving any complaints which may be made by prisoners and subsequently transmitting those complaints to the Powers concerned (5). During the Second World War, however, the International Committee was sometimes asked to take an even more important part and to organize entirely the repatriation of prisoners of war (6).

[p.511] PARAGRAPH 2. -- ACCOMMODATION IN NEUTRAL COUNTRIES

Under Article 68, paragraph 2 , of the 1929 Convention, the belligerents could arrange for the accommodation in neutral countries of seriously sick or wounded prisoners of war, but it was never done during the Second World War (7). This possibility is highly advantageous from the humanitarian point of view, since it can lead to recoveries which would be impossible in captivity; moreover, it ensures that such prisoners of war will not after recovery make any active contribution in their own country to the war effort. During the 1914-1918 war this system yielded excellent results (8).
The wording of this paragraph is in an optional form; it recommends that the belligerent Powers should endeavour to arrange for such accommodation with the co-operation of the neutral Powers concerned, the eligible prisoners of war being defined in Article 110, paragraph 2 . Furthermore, it makes provision for the internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity, if they cannot be repatriated directly; a similar provision was contained in Article 72 of the 1929 Convention.
Under Article 8 , the representatives of the Protecting Powers and delegates of the International Committee of the Red Cross may, of course, offer their assistance to the Powers concerned in arranging for the accommodation of prisoners of war in neutral countries as well as in the case of repatriation, as referred to in paragraph 1.
If the neutral State which accommodates prisoners of war in its territory is a signatory of the Convention, its obligations are governed by Article 12, paragraphs 2 and 3 ; in other words, they are the same as those of the Detaining Power initiating the transfer. Responsibility for the treatment of the prisoners of war concerned also passes to the neutral State subject to the reservation contained in Article 12, paragraph 3 , relating to the case of a State which fails to carry out the provisions of the Convention in any important respect.
If prisoners of war are to be accommodated in the territory of a State not a party to the Convention, recourse must be had to Article 111 below, which makes provision for an agreement between the Powers concerned.

[p.512] PARAGRAPH 3. -- PROHIBITION OF REPATRIATION DURING THE
HOSTILITIES WITHOUT THE CONSENT OF THE PRISONERS OF WAR
CONCERNED

The insertion of this provision was suggested by the International Committee of the Red Cross to the Conference of Government Experts (9); it was approved after considerable discussion at the 1949 Diplomatic Conference (10).
The arguments adduced in favour of the proposal were based on the experience of the Second World War, but were accepted by the Conference only after some difficulty. Some delegations were strongly opposed to inserting the principle that a foreigner detained in a country which was not his own could demand to stay there when, under the Convention, he was eligible for repatriation. It was pointed out that this might impose a heavy burden on the Detaining Powers and that the reasons given by prisoners of war might not necessarily be valid. The contrary view finally prevailed, however, because of the risks which might be involved for nationals of States in which political changes had taken place. "By a singular turn of events, it now appears necessary for the international law which was drawn up to preserve the rudiments of civilization even in war-time, to be extended to peace-time conditions and to the nations' internal affairs" (11). Captivity may therefore enable a prisoner of war to escape prosecution in his own country. Consideration of the wishes of
prisoners of war, which is a new feature of the Geneva Conventions, proved of great and unexpected importance at the time of the Korean conflict (12), though in connection with Article 118 , not the present provision. It is none the less interesting to see that in the present Article the Convention specifically takes this into account.
Theoretically, this rule applies only to sick and wounded prisoners of war. It is obvious, however, that one cannot infer from it, a contrario, that the Detaining Power would be entitled to repatriate against his will, during the hostilities, a prisoner of war who is not wounded or sick (13). The reason why the present rule mentions only [p.513] the wounded and sick is that early release under the present Chapter applies only to them; but the arguments presented by those delegations which requested, and obtained, the insertion of the present clause are of a general nature and apply to able-bodied prisoners of war as well as to those who are wounded or sick.


* (1) [(2) p.508] See ' Report on the Work of the Conference of
Government Experts, ' p. 232;

(2) [(1) p.509] See ' International Committee of the Red
Cross, Report on the Meeting of Neutral Members of the
Mixed Medical Commissions, ' p. 20;

(3) [(2) p.509] Ibid. p. 21;

(4) [(3) p.509] See ' Report on the Work of the Conference of
Government Experts, ' p. 233;

(5) [(1) p.510] The rôle of delegates of the International
Committee of the Red Cross in repatriation operations may
be summarized as follows:
(1) Request and obtain two copies of the nominal rolls of
the prisoners of war.
(2) Travel to the place of assembly of the prisoners of
war, attend their embarkation, and verify that all
prisoners of war named in the lists were really put
on board.
(3) See that all useful measures were taken to carry out
the transfer in the best material conditions
possible.
(4) Serve as intermediary between those in charge of
convoys and the prisoners of war, and if necessary
act as interpreter.
(5) Travel with the prisoners of war as far as the point
of exchange. Exchange lists with his colleagues
accompanying the convoy from the adverse country.
Offer his services to the official in charge of the
convoy and the authorities of the neutral country
where the exchange took place, in order to help
forward the practical business of the exchange.
(6) During operations see that all prisoners of war named
in the lists were in fact exchanged.
(7) Wire to Geneva as soon as possible all relevant
information concerning the number of men exchanged,
and give a brief account of the work done.
(8) Accompany the convoy on the return journey and hand
over to the official in charge the list of
repatriates. Send to Geneva a complete report with
the list of repatriates.
(See ' Report of the International Committee of the
Red Cross on its activities during the Second World War, '
Vol. I, pp. 380-381);

(6) [(2) p.510] Ibid., p. 381;

(7) [(1) p.511] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, pp. 382-385;

(8) [(2) p.511] See, for instance, ' Accord de La Haye entre
les Gouvernements anglais et allemand du 2 juillet 1917,
Bulletin international des Sociétés de la Croix-Rouge, '
1917, p. 439 ff.;

(9) [(1) p.512] See ' Report on the Work of the Conference of
Government Experts, ' p. 233;

(10) [(2) p.512] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 291, 373
and 391;

(11) [(3) p.512] See J. S. PICTET, ' Red Cross Principles, '
pp. 28-29;

(12) [(4) p.512] Although the Conventions were not legally
applicable to it;

(13) [(5) p.512] Moreover, some delegations pressed for the
retention of the present provision in order to prevent any
recurrence of the practice followed by one Detaining Power
during the Second World War; certain able-bodied prisoners
of war were included in the lists of sick and wounded to
be repatriated to their respective occupied countries and
were then forced to collaborate in economic or political
connections. See ' Final Record of the Diplomatic
Conference of Geneva ' of 1949, Vol. II-A, p. 291;