Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 109 : Direct repatriation and accommodation in neutral countries: General observations
Text of the provision*
(1) Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following Article.
(2) Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the cooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. They may, in addition, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity.
(3) No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article, may be repatriated against his will during hostilities.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
4244  Article 109, in conjunction with Article 110, establishes which categories of prisoners of war must be directly repatriated and which are eligible for accommodation or internment in a neutral country during hostilities.
4245  The Third Convention is based on the idea that, in order to weaken the military capacity of the adversary, prisoners of war may be interned to prevent them from further participating in hostilities. Nevertheless, the authority of the Detaining Power to intern prisoners of war is not unlimited. Article 109 strikes a balance between the need to intern military personnel and humanitarian considerations. The article, and more generally the section in which it is placed, recognizes that under some circumstances the internment of certain prisoners of war is no longer justified by military necessity.
4246  Article 109(1) provides that prisoners of war who are seriously wounded or sick must be sent back to their own country. It refers to Article 110(1), which lists which prisoners of war fall into this category. These prisoners are not expected to be able to take a part in hostilities again; they can no longer be harmful to the Power that interns them. The first sentence of Article 109(2) deals with the less seriously sick or wounded, as defined by Article 110(2).[1] They may be accommodated in a neutral country for the remainder of the conflict. The second sentence specifies that Parties to the conflict may further agree on the direct repatriation of able-bodied[2] prisoners of war who have been in captivity for a long time, or on their internment in a neutral country.
4247  According to Article 109(3), however, seriously wounded or sick prisoners of war may not be repatriated against their will. Initially inserted because of the potential risks for nationals of States where political changes had taken place, this provision is of broader application. It means that no seriously wounded or sick prisoners of war may be sent back to their country if they have expressed a wish to the contrary, regardless of the reason for the refusal.
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B. Historical background
4248  The idea that wounded or sick prisoners of war should be repatriated or accommodated in neutral territory has a long history. Article 6 of the 1864 Geneva Convention required belligerents to repatriate wounded or sick enemy combatants who, after their recovery, were ‘recognized as being unfit for further service’. For ‘others’ there was no such obligation; Article 6 stated that they may also be sent back, on the condition that they would not take up arms again for the duration of the hostilities.[3]
4249  Article 74 of the 1880 Oxford Manual similarly provided that ‘wounded or sick prisoners who, after being cured, are found to be unfit for further military service’ should be sent back to their country. Using a slightly different approach, Article 2 of the 1906 Geneva Convention stated that both those who had recovered and those who were in a condition to be transported could be repatriated if the Detaining Power did not wish to retain them as prisoners. In the same article, the 1906 Convention was the first to recognize the possibility of interning sick and wounded enemy personnel in a neutral country, if that country consented. During the First World War, States concluded agreements on the repatriation and accommodation in neutral countries of wounded and sick prisoners of war.[4]
4250  Article 68 of the 1929 Geneva Convention on Prisoners of War more closely resembles the current article. It included an obligation to repatriate seriously ill or wounded prisoners of war once they were fit to be transported. During the Second World War, a significant number of seriously sick and wounded prisoners of war were repatriated on this basis. The ICRC, Switzerland, as a Protecting Power, and several other States played an important part in negotiating and carrying out these repatriation operations.[5]
4251  Article 68 further provided for agreements between belligerents to determine which cases would qualify for direct repatriation and which cases would necessitate accommodation in a neutral country. The Convention included a model draft agreement as annex, similar to the one in Annex I to the Third Convention.
4252  Article 72 of the 1929 Convention, which corresponds to the second sentence of Article 109(2) of the Third Convention, introduced the possibility of concluding agreements on the direct repatriation or accommodation in a neutral country of healthy prisoners of war who had been in captivity for a long time. While there is no record of accommodation in neutral countries based on Articles 68 and 72 during the Second World War,[6] it was still considered important to retain this possibility in the Third Convention, and paragraphs 1 and 2 of Article 109 were adopted without much discussion during the Diplomatic Conference in 1949.
4253  The insertion of paragraph 3 proved much more controversial. It was first suggested by the Meeting of Neutral Members of the Mixed Medical Commissions in 1945, which proposed including the principle that prisoners of war who had a valid objection to being sent home should not be repatriated, with the reservation that in the case of such refusal the prisoner of war should be accommodated in a neutral country.[7]
4254  During the Conference of Government Experts in 1947, it was suggested to include a provision that prisoners of war should not be repatriated against their will.[8] A provision to this end was then inserted in the draft conventions adopted by the 17th International Conference of the Red Cross in Stockholm in 1948, which provided the basis for discussion at the 1949 Diplomatic Conference, where it prompted considerable debate.[9] Some delegations strongly opposed the inclusion of this provision, arguing that compelling a Detaining Power to keep prisoners might impose too heavy a burden on them and that the reasons given by prisoners of war for their refusal might not necessarily be valid. Proposals to include a requirement for the prisoner of war to give reasonable cause to stay, or to add a condition that refusal can only be accepted if the prisoner could instead be sent to a neutral country willing to accept them, were rejected.[10] After an initial tie vote on paragraph 3, it was finally adopted by a small majority.[11]
4255  In international armed conflicts since the Second World War, the ICRC has witnessed, facilitated and called for respect for the obligation to release and repatriate wounded and sick prisoners of war.[12] The refusal of repatriation by seriously wounded or sick prisoners of war has also been observed in several of these contexts.[13]
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C. Paragraph 1: The obligation to repatriate seriously wounded and seriously sick prisoners of war
1. Persons covered
a. Seriously wounded and seriously sick prisoners of war
4256  In order to benefit from the provisions on repatriation during hostilities, a prisoner of war must be seriously wounded or seriously sick.[14] Although prisoners of war may sustain an injury or fall ill during captivity,[15] most of the prisoners who are seriously wounded or sick will have become so prior to falling into the power of the adversary. The status of being wounded or sick and the status of being a prisoner of war are not mutually exclusive. This means that such prisoners of war are simultaneously protected by the First Convention (or the Second Convention, when they have fallen into the power of the enemy at sea, and for as long as they remain at sea) and by the Third Convention.[16] It follows that the notions of ‘wounded’ and ‘sick’ under the Third Convention are to be interpreted in the same way as under the first two Conventions.
4257  Starting from the ordinary meaning of these words, a person would normally be considered wounded or sick if they suffer from either a wound or a sickness. The decisive criterion for determining when a person is wounded or sick is that of being in need of medical care. Such a reading is also in line with the wording of Article 8(a) of Additional Protocol I. Therefore, as far as the relevant medical condition is concerned, the terms ‘wounded’ and ‘sick’ are to be interpreted broadly.[17] The wording is sufficiently open to accommodate a wide range of medical conditions.
4258  Article 109(1) does not cover the wounded or sick generally, but only those who are seriously wounded or sick.[18] The first two Conventions neither contain such a classification nor specify who exactly qualifies as wounded or sick. By contrast, Article 109(1) of the Third Convention refers to Article 110(1), which defines the cases to be considered as seriously wounded or sick as follows:
– incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished;
– wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished;
– wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.
4259  A Model Agreement annexed to the Convention lists the medical conditions that fall under each of these categories.[19] It also confirms that the conditions must ‘in a general way, be interpreted and applied in as broad a spirit as possible’; that the examples listed in the Model Agreement ‘represent only typical cases’; and that ‘[c]ases which do not correspond exactly to these provisions shall be judged in the spirit of the provisions of Article 110 of the present Convention, and of the principles embodied in the present Agreement’.[20]
4260  Additionally, Article 114 explicitly extends the benefits of Article 109(1) to those prisoners of war who have an accident during their captivity. If the accident causes an injury that would qualify as ‘serious’ under Articles 109(1) and 110(1), that prisoner of war is eligible for repatriation (unless the injury is self-inflicted). Pursuant to Article 115(1), seriously wounded or sick prisoners of war undergoing disciplinary punishment must also benefit from Article 109(1). Article 115(2) provides that seriously wounded or sick prisoners of war detained in connection with a judicial prosecution or conviction may similarly benefit from direct repatriation, if the Detaining Power consents.
4261  To facilitate the determination of whether a prisoner of war is seriously wounded or sick, Article 112 foresees the establishment of mixed medical commissions to examine the prisoners. It is not essential, however, for the prisoners to be designated as wounded or sick by a mixed medical commission in order to benefit from direct repatriation. The decision to repatriate may also be taken by the Detaining Power, provided that the conditions specified in Article 109(1) are respected, that is to say that the prisoners concerned have been cared for until they are fit to travel.[21] Article 112(2) expressly confirms this right of the Detaining Power.
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b. Recovered prisoners of war
4262  The health of seriously wounded or sick prisoners of war may considerably improve while they await repatriation or, although unlikely considering the conditions that fall within the category of seriously wounded or sick, they may even fully recover. If such prisoners of war were examined by a mixed medical commission and a decision was taken pursuant to Article 10 of the Regulations concerning Mixed Medical Commissions (Annex II of the Convention) proposing repatriation, the Detaining Power must still carry out this decision. Neither the Convention nor the Regulations foresee the possibility of reversing such a decision, and it remains executable after the maximum time frame of three months has passed. The Detaining Power is therefore not competent to decide against repatriation if the prisoner of war no longer fulfils the criteria, nor should it benefit from its own violation of not repatriating the prisoner in due time. However, the medical authorities of the Detaining Power may resubmit such cases to the mixed medical commission for a new decision.[22] In other words, only the commission is competent to revise its earlier judgment and thus relieve the Detaining Power of its obligation to repatriate the previously seriously wounded or sick prisoner.
4263  The situation is more complicated when the Detaining Power no longer wishes to repatriate a prisoner of war who has not yet been seen by the mixed medical commission. In such cases, when there is no decision from the commission that remains executable, the prisoner of war may present themselves to the commission for a decision on their medical status.[23] In all circumstances, the Detaining Power must act in good faith and not delay the examination of wounded or sick prisoners in the hope that they will recover.
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c. Prisoners of war refusing treatment
4264  As prescribed by applicable standards of medical ethics, prisoners of war may not be forced to undergo certain medical treatment or procedures.[24] This raises the question whether prisoners of war still qualify for direct repatriation if they refuse medical treatment or procedures that might improve their condition and therefore make them ineligible for repatriation.
4265  There is not sufficient practice to analyse how States deal with this issue. One interpretation is that the refusal of medical treatment has no impact on eligibility for repatriation. This would mean that if a prisoner of war remains seriously wounded or sick, even if this would probably not have been the case if they had accepted medical treatment, the Detaining Power would still have to repatriate them.
4266  Another interpretation would be to apply the logic behind Article 114.[25] Article 114 excludes prisoners of war who suffer from self-inflicted injuries from benefiting from the provisions on repatriation or accommodation in a neutral country during hostilities. While they should continue receiving all the medical care and attention their condition requires,[26] the Detaining Power is not under an obligation to have them examined by the mixed medical commission or to repatriate them, in order not to encourage prisoners of war to harm themselves. Similarly, it could be argued that it would be undesirable for prisoners of war to ensure their eligibility for repatriation by refusing medical treatment.
4267  Which interpretation should be followed, and thus whether a prisoner of war should still be repatriated, may depend on the reasons for the refusal of medical treatment. Prisoners may, for instance, have religious motives for refusing medical care, they may not trust the quality of care they would receive from the Detaining Power or they may wish to continue to fulfil the criteria for repatriation. Whatever the case, the medical professionals in charge should attempt to find out why a prisoner has refused medical treatment and explain the medical necessity of the treatment and the possibility for the prisoner to revisit the decision to refuse it.[27]
4268  Repatriation should be the default outcome in situations in which prisoners of war have refused medical treatment and have therefore remained seriously wounded or sick. Only where there is reason to believe that the prisoner is refusing treatment solely to ensure eligibility for repatriation should repatriation be reconsidered, to avoid incentivizing prisoners to ‘abuse’ this provision and to take risks with their health, provided that this does not entail a serious risk to the lives or health of other prisoners of war, for instance during an epidemic.
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2. Nature of the obligation
4269  Subject to Article 109(3), which provides that prisoners of war may never be forcibly repatriated, Parties to a conflict ‘are bound to’ send back to their own country seriously wounded and seriously sick prisoners of war. Unlike the provisions in Article 109(2), this is an absolute obligation which does not allow any discretion on the part of the Detaining Power. This is in line with the wording used in Article 110(1), in accordance with which repatriations under Article 109(1) are to be carried out. That article uses the imperative ‘shall be repatriated’ to indicate that repatriation is not optional. The unilateral and non-reciprocal nature of the obligation also follows from the specification in Article 109(1) that repatriation must take place ‘regardless of number or rank’.[28] The ICRC has witnessed on several occasions that this obligation was not observed by Parties to a conflict.[29]
4270  In past armed conflicts, there have been cases where the Power on which the prisoners of war depended reportedly refused to receive the prisoners during hostilities, making it impossible for the Detaining Power to repatriate them.[30] The Convention does not explicitly govern such situations. However, one High Contracting Party must allow another to comply with its obligations under the Convention, and the Power on which the prisoners depend must thus facilitate the repatriation of seriously wounded or sick prisoners of war and receive them.
4271  If the Power on which the prisoners depend nevertheless refuses to have them repatriated, the Detaining Power may not deprive them of their prisoner-of-war status. They will continue to benefit from the protection of the Third Convention until their final release and repatriation, and the Detaining Power must thus continue to accommodate them and provide them with all the medical care their condition requires.[31]
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3. Duty to care for seriously wounded or sick prisoners of war until they are fit to travel
4272  Article 109(1) does not provide a clear time frame within which the repatriation must take place. It specifies only that the Detaining Power will have to care for the prisoners of war ‘until they are fit to travel’. The Detaining Power may thus repatriate them only after they have recovered sufficiently to undertake the journey.[32]
4273  Pursuant to Article 112(1), mixed medical commissions must make all appropriate decisions regarding sick and wounded prisoners of war. This includes deciding whether they are fit to travel by the mode of transportation envisaged. Paragraph 2 of that article, however, also allows for the medical authorities of the Detaining Power to decide on repatriation without an examination by the mixed medical commission when a prisoner is manifestly seriously wounded or sick. In such a case, it is these medical authorities that assess when the prisoner is well enough to make the journey. This means that in any case the decision must be made by medically trained persons so that it is based solely on medical grounds.
4274  As soon as possible after the prisoner is declared fit to travel, the repatriation must take place.[33] Unjustifiable delay in the repatriation of prisoners of war constitutes a grave breach under Additional Protocol I.[34] Furthermore, unjustifiable delay in the repatriation of prisoners of war may also constitute an arbitrary deprivation of liberty.[35]
4275  Until prisoners of war are fit to travel and the repatriation takes place, the Detaining Power must provide them with the medical care they require.[36] Article 30, which sets out the obligations of Detaining Powers with regard to the medical attention required for prisoners of war, specifies that prisoners of war suffering from a serious disease or needing special treatment, an operation or hospital care must be admitted to facilities that can provide the required treatment, even if their repatriation is contemplated in the near future.
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4. Destination of repatriation: ‘back to their own country’
4276  Article 109(1) requires Parties to the conflict to send seriously wounded or sick prisoners of war ‘back to their own country’. This language is identical to that used in the 1929 Convention. Article 109(3) refers to ‘repatriations under the first paragraph of this Article’ and Article 110(1) also uses the term ‘repatriation’. Moreover, this provision is found in the section of the Convention entitled ‘Direct repatriation and accommodation in neutral countries’ (emphasis added). This indicates that, while Article 109(1) does not itself use the term ‘repatriation’, sending prisoners of war ‘back to their own country’ means the same. In the context of prisoners of war, account must be taken of the duty of allegiance which binds members of the armed forces to the Power they serve. Therefore, the prisoner’s ‘own country’ means the State on which they depend, i.e. the State that the prisoner belonged to before falling into the hands of the Detaining Power.[37] In most instances, this will be their State of nationality. However, in cases where an individual fought on behalf of, or otherwise belonged to, a State other than their country of nationality they must be repatriated to that State. Of course, this is subject to Article 109(3), and the prisoner may not be repatriated against their will.
4277  While in most cases it does, repatriation of seriously wounded and seriously sick prisoners of war does not necessarily mean transfer to the territory of another country. Rather it entails transfer to the control of another Power, i.e. the Power on which the prisoners depend. For example, seriously wounded and seriously sick prisoners of war may be accommodated within the territory of their own country while it is being occupied. In such cases, for a Detaining Power to fulfil its obligation under Article 109(1), prisoners of war may be released and transferred to a medical establishment in the occupied territory so that they can continue to receive the medical care they need.[38]
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D. Paragraph 2: Repatriation and accommodation or internment in neutral countries of sick and wounded prisoners of war and ‘able-bodied’ prisoners of war
4278  Pursuant to the first sentence of Article 109(2), Parties to an armed conflict must try to make arrangements with neutral Powers for the accommodation of sick and wounded prisoners of war in neutral countries.[39] The second sentence provides for agreements to be concluded on the direct repatriation or internment in neutral countries of ‘able-bodied’ prisoners of war who have undergone a long period of captivity. These provisions apply ‘throughout the duration of hostilities’, i.e. until active hostilities have ceased and the obligation to repatriate all prisoners of war comes into effect.[40]
4279  While the second sentence of Article 109(2) uses the general term ‘internment’, the first sentence uses the term ‘accommodation’. The latter term is also used in Article 110(2), which describes the categories of wounded and sick prisoners of war mentioned in the first sentence of Article 109(2) and in the Model Agreement.[41] From a legal point of view, there is no distinction between these terms: both wounded and sick prisoners of war and prisoners of war who are not wounded or sick and who have undergone a long period of captivity are ‘interned’ in the sense of Article 21. The term ‘accommodation’, which is consistently used when referring to sick and wounded prisoners of war who are sent to neutral countries during hostilities, is the translation of ‘hospitalisation’ in the French version of the Convention.[42] The use of the term accommodation when referring to sick or wounded prisoners of war therefore simply means that these prisoners must continue to receive the appropriate medical care that their condition requires.
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1. First sentence: Accommodation in neutral countries of sick and wounded prisoners of war
a. Persons covered: sick and wounded prisoners of war
4280  The first sentence of Article 109(2) provides that sick and wounded prisoners of war may be accommodated in a neutral territory while the armed conflict is ongoing. According to Article 5(1), the Convention continues to apply to the prisoners ‘until their final release and repatriation’. This means that when prisoners of war are transferred to a neutral State, they are still entitled to the protections afforded by the Convention. The situation of prisoners of war after transfer to a neutral State is governed by Article 4B(2), which provides for certain exceptions from some of the provisions of the Convention, without prejudice to any more favourable treatment which the Power may choose to give the prisoners. These exceptions are based on the fact that the neutral State is not an enemy State.[43]
4281  The general considerations on the meaning of ‘sick and wounded’ outlined above apply equally to the interpretation of the terms ‘sick’ and ‘wounded’ under this paragraph.[44]
4282  The categories of ‘seriously wounded and seriously sick prisoners of war’ under Article 109(1) and ‘sick and wounded prisoners of war’ under Article 109(2) are mutually exclusive. In other words, the sick and wounded prisoners of war referred to in this paragraph are only those who are not seriously sick or wounded. Seriously wounded and seriously sick prisoners of war, as referred to in Article 109(1) and further defined in Article 110(1), do not also fall into the category of sick and wounded prisoners of war under Articles 109(2) and 110(2);[45] Parties to a conflict are not simultaneously obliged to repatriate prisoners of war as well as to seek agreements for the purpose of their accommodation in neutral countries. It follows that, under Article 109(2), Parties are not obliged to endeavour to make arrangements for accommodation in neutral countries of seriously sick and wounded prisoners of war who refuse repatriation pursuant to Article 109(3) or were for any other reason not repatriated.[46] Nevertheless, the accommodation of such prisoners of war in a neutral country can be arranged by special agreement under Article 6.
4283  Article 110(2) outlines which prisoners of war are eligible for accommodation in a neutral country pursuant to Article 109(2):
– wounded and sick prisoners whose recovery may be expected within one year of the date of the wound or the beginning of the illness, if treatment in a neutral country might increase the prospects of a more certain and speedy recovery; and
– prisoners of war whose mental or physical health, according to medical opinion, is seriously threatened by continued captivity, but whose accommodation in a neutral country might remove such a threat.
4284  The Model Agreement annexed to the Convention provides more detailed lists of medical conditions that fall within these categories and states that these should be ‘interpreted and applied in as broad a spirit as possible’.[47] Articles 114 and 115 apply to wounded and sick prisoners of war in the same way as to seriously wounded and seriously sick prisoners of war.[48] Article 114 provides that prisoners who sustain an injury from an accident during their captivity may equally benefit from accommodation in a neutral country if the injury so qualifies them under Article 110(2). Article 115 provides that the Detaining Power may not refuse to accommodate in a neutral country prisoners on whom disciplinary punishment has been imposed solely because they have not undergone or completed the punishment. For prisoners detained in connection with a judicial prosecution or conviction to benefit from accommodation in a neutral country, the consent of the Detaining Power is needed.
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b. Nature of the obligation
4285  The first sentence of Article 109(2) is not drafted in the same compulsory language as the provision in paragraph 1; Parties to the conflict must endeavour to make arrangements for the accommodation of the sick and wounded in a neutral country.[49] This is an obligation of means, the exact content of which depends on the circumstances of each case. Parties to a conflict must make their best efforts to come to an agreement with a suitable neutral Power.[50]
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c. Consent of the Powers involved
4286  Article 109(2) requires Parties to the conflict to try, with the cooperation of the neutral Powers concerned, to make arrangements for the accommodation of sick and wounded prisoners of war in neutral countries. Each Party to the conflict may individually make such arrangements with a neutral Power to accommodate the sick and wounded prisoners of war in its hands; it is not legally required to have the agreement of the Power on which the prisoners depend.[51] In practice, however, a neutral Power will generally prefer to have the agreement of the Power on which the prisoners depend, for example to explicitly confirm its neutrality.[52]
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2. Second sentence: Repatriation or internment in neutral countries of ‘able-bodied’ prisoners of war who have undergone a long period of captivity
a. Persons covered: ‘able-bodied prisoners’ of war who have undergone a long period of captivity
4287  The second sentence of Article 109(2) provides that Parties to the conflict may conclude agreements with a view to either direct repatriation or internment in a neutral country of ‘able-bodied’ prisoners of war who have undergone a long period of captivity.[53] This provision aims to prevent the potentially negative impacts on mental, and sometimes physical, health of long periods of captivity and of not knowing how long that captivity will last.[54] ‘Able-bodied’ prisoners of war under Article 109(2) refers to all prisoners of war who are neither seriously wounded or sick and thereby qualifying for direct repatriation, nor less seriously wounded or sick and eligible for accommodation in a neutral country.[55]
4288  The Convention does not specify what constitutes a ‘long period of captivity’.[56] During the revision of the 1929 Convention, the ICRC felt it was not in a position to suggest a maximum time limit.[57] During the preparatory phase of the 1949 Convention, however, the ICRC did state that the mental condition of prisoners of war who were held in captivity for five years during the Second World War was considerably affected and that a solution had to be found for this issue.[58] During a later conflict, the ICRC considered prisoners of war who had been interned for more than three years as having undergone a long period of captivity and recommended their repatriation.[59] It was further recommended that in the future, shorter periods would also already be considered as falling under the concept of a ‘long period of captivity’.
4289  State practice on the period of captivity that must have elapsed before Parties to an armed conflict consider repatriation or accommodation in neutral countries for prisoners of war is scarce and insufficient from which to draw any absolute conclusions.[60] During the First World War, States adopted agreements requiring repatriation after varying periods of captivity, including one agreement that provided for the mutual repatriation of equal numbers of prisoners who had been in captivity for a year.[61] Based on a few examples, several authors suggest that a period of 18 months to 2 years constitutes a long period of captivity.[62]
4290  The suggestion that the length of captivity is a relative concept that depends on the duration of the conflict should be rejected.[63] Practically, such an approach would be impossible to maintain because Article 109(2) is applicable ‘throughout the duration of hostilities’ and the length of an armed conflict is always still unknown at the time a repatriation decision would have to be made.[64] Furthermore, three years of internment during a twenty-year conflict, for example, would generally be just as harmful to a prisoner of war as three years of internment during a four-year conflict.
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i. Other humanitarian grounds
4291  It has been suggested that other humanitarian grounds, such as old age or family circumstances, may also qualify prisoners of war for direct repatriation or internment in a neutral country.[65] Also prisoners of war with, for example, disabilities requiring more intensive support, yet do not fall under any of the categories listed in Article 110, or women prisoners with children in the camp would benefit from repatriation or accommodation or internment in a neutral country.[66] All such cases do not fall under Article 109(2), which clearly limits its scope to prisoners of war who have undergone long-term confinement. They could, however, be addressed under Article 111, which provides for the internment of prisoners of war in neutral countries without restricting its scope in a similar way to Article 109(2). Furthermore, no Detaining Power is obliged to keep prisoners of war interned; it may liberate them and seek the conclusion of special repatriation or transfer agreements with its adversaries pursuant to Article 6.
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b. Nature and significance of the rule
4292  The second sentence of Article 109(2) does not contain an obligation for the Parties to the conflict. While the first sentence requires Parties to try to make arrangements for accommodation in neutral countries, the second sentence merely states that Parties ‘may … conclude agreements’ on the repatriation or internment in neutral countries of certain prisoners of war.
4293  Considering that Parties to a conflict are in any case entitled to conclude repatriation agreements or agreements with a view to internment in neutral countries, the legal significance of this provision could be questioned.[67] However, the provision has its value in that it explicitly embodies the balance that Parties to a conflict need to seek between military necessity and humanity in their decision to intern prisoners of war. It is generally presumed that a neutral country can offer more favourable conditions than the Detaining Power, and internment in a neutral country thus intends to mitigate the effects of captivity. While not including a strict obligation, Article 109(2) invites Parties to a conflict to consider direct repatriation or internment in a neutral country of prisoners of war who have undergone a long period of captivity. In such situations, humanitarian considerations may, for the Detaining Power, outweigh the military necessity of keeping the prisoners interned. The safeguard of Article 117 preventing repatriated prisoners from being employed again on active military service is of particular importance here.
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c. Consent of the Powers involved
4294  For agreements to intern in neutral countries prisoners of war who are not wounded or sick, the same applies as for agreements to accommodate in neutral countries sick and wounded prisoners of war under the first sentence of Article 109(2); while it is not required to have the consent of the Power on which they depend, in practice the neutral Power may prefer to obtain it.[68]
4295  For the repatriation of prisoners of war, the Detaining Power does need the agreement of the Power on which the prisoners depend, simply because in practice it would be impossible to repatriate a prisoner of war without the cooperation of this Power.[69] However, since this provision does not entail a strict obligation for the Detaining Power, the Power on which the prisoners depend also has the discretion to decide whether they want to conclude such an agreement. However, in the ICRC’s view, considering the humanitarian purpose of this provision and in accordance with the spirit of the Convention, this Power should refuse repatriation only if they have good grounds for doing so and provided that remaining interned would not seriously impair the state of health of the prisoner concerned.[70]
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3. Obligations of neutral States after transfer
4296  Transfers of prisoners of war to other Powers are governed by Article 12(2). To the extent that Articles 4B(2) and 109–111 do not set out more specific rules on the transfer of prisoners of war to neutral countries, Article 12(2) also governs transfers of prisoners of war to neutral countries that take place pursuant to agreements concluded under these articles.[71]
4297  Article 109(2) does not require a neutral State to which prisoners of war are transferred for accommodation or internment to be a Party to the Convention. This requirement nevertheless applies pursuant to Article 12(2). With the 1949 Geneva Conventions having achieved universal ratification, every neutral Power that agrees to receive prisoners of war will be a High Contracting Party to the Third Convention.
4298  Article 12 further requires the Detaining Power to satisfy itself of the willingness and ability of the Power to which it transfers prisoners of war to apply the Convention. In case of transfer to a neutral State pursuant to Article 109(2), this obligation is to be interpreted in light of Article 4B(2), which would govern the situation of the prisoner of war once received by the neutral State and excludes certain articles which do not have to be observed by the neutral Power.[72] After the Detaining Power has satisfied itself of this willingness and ability and after the transfer has taken place, the responsibility for the treatment of the prisoners of war concerned passes to the neutral State subject to Article 12(3). Under this provision, if the neutral Power fails to carry out its obligations in any important respect, the initial Detaining Power must take corrective measures or request the return of the prisoners of war.[73]
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E. Paragraph 3: Prohibition on repatriating prisoners of war against their will
1. Reasons for the refusal of repatriation
4299  Article 109(3) prohibits the repatriation of seriously wounded or seriously sick prisoners of war against their will during hostilities. The text of the provision does not include any requirements regarding the reason for a prisoner’s refusal. The 1945 Meeting of Neutral Members of the Mixed Medical Commissions recalled that prisoners of war sometimes objected to repatriation ‘for political or personal reasons’. It proposed that repatriation should be excluded for all prisoners of war with ‘valid objections thereto’.[74] During the 1949 Diplomatic Conference, then recent examples from the Second World War were used to explain the relevance of the provision. Sometimes prisoners of war were repatriated to their respective occupied countries where they were ‘forced to collaborate in economic and in some cases in political or even military connections’.[75] In the end, a suggestion to include the words ‘provided the prisoner of war gives reasonable cause to stay’ was not included and prisoners of war may refuse repatriation for any reason, or without giving a reason, without the Detaining Power having any discretion to accept or not the reasons as valid.[76]
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2. Temporal and personal scope of application
4300  Article 109(3) refers only to repatriations of prisoners of war ‘during hostilities’. Similar to the wording ‘throughout the duration of hostilities’ used in paragraph 2, this indicates that the provision is applicable until the cessation of active hostilities, which would then trigger the applicability of Article 118.[77]
4301  The paragraph refers to sick or wounded prisoners of war who are eligible for repatriation under the first paragraph of Article 109, i.e. those who are seriously wounded or seriously sick. For its part, the first paragraph states that it is subject to the provisions of paragraph 3. Thus, the consent of seriously wounded or sick prisoners of war is required for their repatriation.[78] Seriously wounded or sick prisoners of war may not always be capable of expressing their wishes regarding repatriation. In such cases, the Detaining Power must assess what is the most humanitarian course of action. While this will often be to repatriate the prisoners, it is not necessarily always the case.
4302  Article 109(2) also foresees the repatriation of certain ‘able-bodied’ prisoners of war. Considering the strict wording of Article 109(1) and (3), paragraph 3 is not applicable to any such repatriations the Detaining Power may want to carry out. However, one cannot infer from this, a contrario, that the Detaining Power would be entitled to repatriate such prisoners of war against their will.[79] In the ICRC’s view, Parties to a conflict should also respect the wishes of prisoners of war who are not seriously wounded or sick if they have said that they do not want to be sent back.[80] Equally, if Parties to a conflict conclude a repatriation agreement which does not find its basis in Article 109, but rather in Article 6, they should include a clause similar to Article 109(3).
4303  Article 109(3) refers only to ‘repatriations’ and thus does not apply to cases of accommodation or internment in a neutral country. The Convention, however, provides certain safeguards to accommodate the lack of a provision regulating cases where prisoners of war object to transfer to a neutral country. Article 110(2) defines the categories of prisoners of war eligible for accommodation in a neutral country and envisions that such accommodation serves the prisoners in that it must increase the chances of their recovery.[81] Most importantly, pursuant to Article 12(2), the Detaining Power must ascertain that the neutral State to which it transfers the prisoners is willing and able to apply the Convention.[82]
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3. Consequences of a prisoner’s refusal
4304  Prisoners of war who refuse repatriation pursuant to Article 109(3) retain their prisoner-of-war status.[83] Prisoners of war may not renounce the rights conferred on them by the Convention by refusing to be repatriated.[84] Refusal does not affect the protection of prisoners of war granted by the Third Convention and may thus, for instance, not prevent later repatriation during hostilities or later release and repatriation pursuant to Article 118 at the end of active hostilities.[85] Prisoners of war may change their minds and, if they do, should still be entitled to be returned to their own country.
4305  If seriously wounded or seriously sick prisoners of war refuse repatriation, the Detaining Power may still attempt to have them accommodated in a neutral country. Although the non-repatriation of a seriously wounded or sick prisoner of war after a refusal is not subject to the Detaining Power finding a suitable alternative in a neutral country, the Detaining Power may nevertheless seek such accommodation if it does not wish to keep the prisoner interned itself, or if it would be better for the recovery of the prisoner.[86] It can conclude special agreements to this effect pursuant to Article 6. After such a transfer, Article 109(3) continues to apply; as the new Detaining Power, the neutral State may not repatriate the prisoners of war against their will during hostilities.[87]
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Select bibliography
Dinstein, Yoram, ‘The release of prisoners of war’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 37–45.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982.
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411.
Levie, Howard S., ‘International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply’, American Journal of International Law, Vol. 67, No. 4, October 1973, pp. 693–710.
– (ed.), Documents on Prisoners of War, International Law Studies, U.S. Naval War College, Vol. 60, 1979.
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, pp. 435–499.
Okimoto, Keiichiro, ‘Evacuation and Transfer of Prisoners of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 957–976.
Rosas, Allan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 1976, reprinted 2005.
Rubli, Jean-Maurice, ‘Repatriation and Accommodation in Neutral Countries of Wounded and Sick Prisoners of War’, International Review of the Red Cross, Vol. 5, No. 57, December 1965, pp. 623–629.
Sassòli, Marco, ‘Release, Accommodation in Neutral Countries, and Repatriation of Prisoners of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1039–1066.
Shields Delessert, Christiane, Release and Repatriation of Prisoners of War at the End of Active Hostilities: A Study of Article 118, Paragraph 1 of the Third Geneva Convention Relative to the Treatment of Prisoners of War, Schulthess Polygraphischer Verlag, Zurich, 1977.
Sivakumaran, Sandesh, ‘Armed Conflict-Related Detention of Particularly Vulnerable Persons: Challenges and Possibilities’, International Law Studies, Vol. 94, No. 39, 2018, pp. 39–74.

1 - Article 110 is supplemented by the Model Agreement concerning Direct Repatriation and Accommodation in Neutral Countries of Wounded and Sick Prisoners of War, Annex I to the Convention. This agreement provides a non-exhaustive list of injuries, illnesses or risks to health that qualify prisoners of war for repatriation or accommodation in a neutral country. For more details on this Model Agreement, see paras 4259 and 4284 of this commentary.
2 - In contemporary contexts, this terminology may be interpreted as limited to the absence of physical injury, illness or impairments. In Article 109(2), ‘able-bodied prisoners of war’ refers to those prisoners who do not qualify as (seriously) wounded or sick pursuant to Article 109(1)–(2), first sentence, and Article 110(1)–(2). As is clear from the text of Article 110, which refers to ‘mental or physical fitness’ and ‘mental or physical health’, this is not limited to the absence of only physical health conditions but means rather the absence of any of the health conditions covered by Article 110(1)–(2) and Annex II of the Convention. The term ‘able-bodied’ is sometimes used in this commentary when it reproduces the language of the Convention. In other places, ‘able-bodied’ prisoners of war are described as those who are ‘not wounded or sick’.
3 - See also Additional Articles relating to the Condition of the Wounded in War (1868), Article 5.
4 - Agreement between Germany, Austria-Hungary, Norway, and Russia concerning Prisoners of War (1917); Agreement between France and Germany concerning Prisoners of War (1918); Agreement between Austria-Hungary and Serbia concerning Prisoners of War and Civilian Internees (1918); and Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918).
5 - ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, pp. 373–382.
6 - Ibid. p. 385; Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), 1949, pp. 445 and 462.
7 - Report on the Meeting of Neutral Members of the Mixed Medical Commissions of 1945, p. 21.
8 - Report of the Conference of Government Experts of 1947, pp. 233–234.
9 - Draft Conventions submitted to the 1948 Stockholm Conference, p. 120; Draft Conventions adopted by the 1948 Stockholm Conference, p. 91; and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 291, 373 and 391, and Vol. II-B, pp. 312–314, 325 and 343.
10 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 373 and 391.
11 - Ibid. Vol. II-B, pp. 314 and 343. The final vote was 21 votes to 17 against, with 3 abstentions.
12 - See e.g. ICRC, Annual Report 1966, ICRC, Geneva, p. 12; Annual Report 1967, ICRC, Geneva, pp. 6–7; Annual Report 1968, ICRC, Geneva, p. 30; Annual Report 1971, ICRC, Geneva, pp. 30–32; Annual Report 1974, ICRC, Geneva, p. 11; Annual Report 1982, ICRC, Geneva, p. 64; Annual Report 1985, ICRC, Geneva, p. 26; Annual Report 1999, ICRC, Geneva, p. 91; and Annual Report 2001, ICRC, Geneva, p. 87. See also Levie, 1973, pp. 409–410, and UN Security Council, Report of the mission dispatched by the Secretary-General on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, August 1988, UN Doc. S/20147, 24 August 1988, para. 38.
13 - On one occasion during the 1955–1975 Vietnam War, most of the 660 seriously wounded or sick prisoners of war did not wish to be repatriated. See ICRC, Annual Report 1971, ICRC, Geneva, p. 32, and Levie, 1973, p. 410.
14 - Article 109 does not use the term ‘repatriation’ but rather states that Parties must ‘send back to their own country’ seriously wounded or sick prisoners of war. Article 109(3), however, refers to prisoners of war ‘eligible for repatriation’ under Article 109(1). Article 110(1), to which Article 109(1) refers for an enumeration of who qualifies under this provision, also uses the term ‘repatriation’. This difference in terminology has no legal significance.
15 - See e.g. Article 114, which specifically foresees the applicability of the benefits of the Third Convention, thus including Article 109, for prisoners of war injured as a result of an accident during captivity.
16 - See, respectively, the commentaries on Article 14 of the First Convention, section C.1, and on Article 16 of the Second Convention, section C.3. Prisoners of war who only become (seriously) wounded or sick after they have fallen into the hands of the enemy benefit only from the protection of the Third Convention.
17 - For a more detailed discussion of the definition of ‘wounded or sick’ under the First and Second Conventions, see the commentaries on Article 12 of the First Convention, section D.2, and on Article 12 of the Second Convention, section D.3.a.
18 - Black’s Law Dictionary defines ‘serious’ with regard to an injury, illness or accident as ‘dangerous; potentially resulting in death or other severe consequences’; Bryan A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 1642.
19 - Third Convention, Annex I: Model Agreement concerning Direct Repatriation and Accommodation in Neutral Countries of Wounded and Sick Prisoners of War, Part I – Principles for direct repatriation and accommodation in neutral countries.
20 - Ibid. Part II – General Observations, paras 1 and 5. See also the commentary on Article 110, para. 4325.
21 - See Article 30 on the obligations of the Detaining Power in relation to the medical care of prisoners of war.
22 - See Article 113(1).
23 - See Article 113(2).
24 - See the commentaries on Article 15, para. 1731 and on Article 30, para. 2232. See also Article 11(5) of Additional Protocol I, which provides that ‘[persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty as a result of an international armed conflict] have the right to refuse any surgical operation’.
25 - See the commentary on Article 114, para. 4390.
26 - See Articles 30 and 54(2).
27 - For a further discussion of the refusal of medical inspections, see also the commentary on Article 31, paras 2297.
28 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 509, who wrote that ‘“man for man” exchanges are therefore expressly prohibited since the number of prisoners of war repatriated would inevitably be reduced’. See also Sivakumaran, p. 60.
29 - See e.g. ICRC Memorandum of Understanding concerning the Iran-Iraq Conflict (1983), in which the ICRC stated that, although some severely wounded and sick prisoners of war had been repatriated and mixed medical commissions had been established by both Parties to the conflict, ‘most of the severely wounded and sick prisoners of war [had] not been repatriated, as required by the Convention’. See also UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, paras 268–269, regarding non-compliance with the decision of the mixed medical commission concerning the handover of Iraqi prisoners of war with disabilities or with chronic or incurable diseases. The many such prisoners of war still present in the camps during the UN mission appeared to indicate that the obligation under Article 109(1) to repatriate them was repeatedly violated. The delays in repatriations were attributed to the suspension of ICRC activities. The ICRC confirmed that the suspension meant that it could no longer draw up lists of prisoners of war who, because of the seriousness of their injuries or illnesses, it believed should be directly repatriated; see Second ICRC Memorandum of Understanding concerning the Iran-Iraq Conflict (1984). See also UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, para. 62, stating that in one camp for Iranian prisoners of war ‘there were too many sick and wounded prisoners, who should be repatriated’.
30 - See Shields Delessert, pp. 203–204, and Rosas, pp. 473–474.
31 - See Article 5(1). See also Rosas, pp. 475–476.
32 - This principle is confirmed in several military manuals. See e.g. Australia, Manual of the Law of Armed Conflict, 2006, p. 10-13, para. 10.58; Canada, LOAC Manual, 2001, p. 10-8, para. 1035(1), and p. 9-4, para. 913(2); and Germany, Military Manual, 2013, p. 128, para. 848. See also Article 47, which provides that ‘sick or wounded prisoners of war shall not be transferred as long as their recovery may be endangered by the journey, unless their safety imperatively demands it’.
33 - See e.g. UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, para. 295(k): ‘Prisoners who are seriously or chronically ill, wounded or disabled … should be immediately repatriated.’ On the implementation of decisions of the mixed medical commission to repatriate seriously wounded or sick prisoners of war, see the commentary on Article 112, section C.3. The Detaining Power must carry out such a decision as soon as possible, but in any case within three months, provided that the prisoner of war is fit to travel.
34 - Additional Protocol I, Article 85(4)(b). See also Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, pp. 1000–1001. For a discussion of unjustifiable delay in the repatriation of prisoners of war amounting to a war crime under customary law, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, commentary on Rule 156, pp. 586–588, and ICRC, Customary International Humanitarian Law, practice relating to Rule 156, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156. Unjustifiable delay in the repatriation of prisoners of war is not, however, a war crime under the 1998 ICC Statute. See Sassòli, p. 1063, for a discussion and references on possible reasons why it was not included in the ICC Statute and challenges in establishing individual criminal responsibility for this crime.
35 - See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, commentary on Rule 156, pp. 586 and 588.
36 - See Articles 15, 30 and 31.
37 - See also United States, Law of War Manual, 2016, p. 535, para. 9.1.2.1.
38 - For the obligations of the Occupying Power (former Detaining Power) in maintaining and providing medical care to the population in the occupied territory, see Articles 55 and 56 of the Fourth Convention.
39 - The term ‘neutral Power’ refers to a State which is not a Party to the international armed conflict in question. For a further discussion, see the commentary on Article 4, para. 1082.
40 - See Article 118(1).
41 - Third Convention, Annex I, Part I.
42 - The same translation is used in Article 37(3) of the First Convention and Article 40(3) of the Second Convention. Article 17(2) of the Second Convention translated ‘hospitalisation’ as ‘hospital accommodation’.
43 - For a further discussion of internment by neutral Powers, see the commentary on Article 4, section J.2.
44 - See paras 4256–4257 of this commentary.
45 - During the 1949 Diplomatic Conference, one delegation proposed including an additional category of prisoners of war eligible for accommodation in a neutral country, namely ‘[s]ick and wounded covered by the first paragraph, but who have not been repatriated’, but another delegation feared that this would weaken the obligation of direct repatriation in the first paragraph; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 292 (United Kingdom, United States). After consideration by the Medical Experts Committee, the proposal was not included in the draft; ibid. p. 312–313.
46 - See Chile, Operational Law Manual, 2009, p. 2-46, para. 2726, which recognizes the imperative nature of the obligation to repatriate the seriously wounded and seriously sick but adds that arrangements can also be made for them to be taken care of in neutral countries, and Peru, IHL Manual, 2004, para. 52(e), which states that prisoners of war who ‘fear the consequences they might face when they return to their home country … should not be repatriated and an alternative solution should be found’, while also providing, para. 52(c), that arrangements can be made to transfer seriously sick and wounded prisoners to a hospital in a neutral country. See, further, para. 4305 of this commentary.
47 - Third Convention, Annex I, Part II, para. 1.
48 - See para. 4260 of this commentary.
49 - ‘Endeavour’ is defined as ‘try hard to do or achieve’; Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 471.
50 - This is confirmed in several military manuals. See e.g. United States, Law of War Manual, 2016, p. 649, para. 9.36.2, which uses the same wording as Article 109(2), and United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 198, para. 8.147, which states that ‘[i]n the case of those less seriously wounded or sick, parties are under an obligation to endeavour to make arrangements for their accommodation in neutral countries’ (emphasis added). Other manuals only include a reference to optional accommodation in a neutral country but do not make it an obligation to try to make arrangements to this effect; see e.g. Switzerland, Basic Military Manual, 1987, p. 39, Article 142.
51 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 521–522; Sassòli, p. 1044; Rosas, p. 472. The ICRC has also communicated this position on at least one occasion to a Party to an international armed conflict, reminding it that, under this provision, the hospitalization of prisoners of war in neutral countries required an agreement between the Detaining Power and the neutral Power, while the approval of the Power on which the prisoners of war depended was not required. See, however, Netherlands, Military Manual, 2005, p. 117, para. 0934, which states that ‘the accommodation of such prisoners of war in neutral territory may moreover take place only by agreement between all parties concerned (including the state of origin and the detaining power)’. Note, however, that the phrase ‘such prisoners of war’ refers to seriously wounded and seriously sick prisoners of war, while Article 109(2) foresees only accommodation in a neutral country of less seriously sick or wounded prisoners of war.
52 - See also para. 4294 of this commentary.
53 - As is the case for sick and wounded prisoners of war transferred to a neutral State, the situation of prisoners of war who are not wounded and sick and who are interned in a neutral State is governed by Article 4B(2); see para. 4280 of this commentary and section J.2 of the commentary on Article 4. See also Dinstein, p. 38, referring to such agreements as a ‘cartel’.
54 - Sivakumaran, p. 71; Shields Delessert, p. 117; Hingorani, p. 177.
55 - See also fn. 2 of this commentary.
56 - See also UN General Assembly, Res. 2676 (XXV), Respect for human rights in armed conflicts, 9 December 1970, para. 4, which urges compliance with this provision. It refers to a ‘long period of captivity’ but also does not clarify what this means.
57 - Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 183.
58 - Ibid.
59 - See also UN Security Council, Prisoners of war in Iran and Iraq: The report of a mission dispatched by the Secretary-General, January 1985, UN Doc. S/16962, 22 February 1985, paras 285–288.
60 - One example of an agreement that included a certain duration of captivity as a ground for internment in a neutral country is a British-German agreement signed during the First World War. It not only allowed for the repatriation of wounded and sick prisoners of war, but also foresaw the internment in the Netherlands or Switzerland of commissioned and non-commissioned officers who had been in captivity for 18 months. See Agreement Between the British and German Governments concerning Combatant Prisoners of War and Civilians (1918), Article 1. See also Charles H. Murphy, Prisoners of War: Repatriation or Internment in Wartime – American and Allied Experience, 1775 to Present, Library of Congress, Congressional Research Service, Washington, D.C., 1971, p. 8.
61 - Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Articles 1–2 (1 year and 18 months for different categories); Agreement between Austria-Hungary and Serbia concerning Prisoners of War and Civilian Internees (1918), Article I (for prisoners interned since 1 January 1916); and Agreement between France and Germany concerning Prisoners of War (1918), Articles 1–2 (18 months if the prisoner was also 48 years old or older).
62 - See Shields Delessert, p. 118; Maia/Kolb/Scalia, p. 477; and Hingorani, p. 177. See also Sassòli, p. 1043.
63 - See Shields Delessert, p. 117.
64 - See Maia/Kolb/Scalia, pp. 476–477.
65 - Shields Delessert, p. 118; Hingorani, p. 177. During the Second World War, the ICRC suggested that ‘older men, for whom conditions of life in camp were very difficult to bear’, be accommodated in neutral States. See ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, p. 384.
66 - See also Sivakumaran, p. 71, and Maia/Kolb/Scalia, p. 174.
67 - See e.g. Rosas, pp. 474–475. See also Levie, 1973, p. 695, who qualifies this provision as ‘an attempt to encourage the belligerents to adopt one of these procedures (and to give neutral states and others a basis for proposing them)’.
68 - See also para. 4286 of this commentary.
69 - For instance, Hingorani, p. 177, speaks of a ‘mutual agreement between the belligerents’ that is required to repatriate prisoners of war who have been in captivity for a long period.
70 - See also para. 4270 of this commentary.
71 - See the commentary on Article 12, paras 1528–1529. See also Rosas, p. 428, and Okimoto, p. 968.
72 - See para. 4280 of this commentary and section J.2 of the commentary on Article 4.
73 - For a further discussion of the post-transfer responsibilities of the transferring State, see the commentary on Article 12, section E.
74 - Report on the Meeting of Neutral Members of the Mixed Medical Commissions of 1945, p. 21.
75 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 291.
76 - Ibid. p. 373. Prisoners of war have refused repatriation in the past for medical reasons. For example, in one armed conflict a group of 500 prisoners of war did not want to be repatriated until their prostheses were properly fitted.
77 - For a discussion of the notion of ‘cessation of active hostilities’, see the commentary on Article 118, section C.2. On prisoners of war refusing repatriation at the end of active hostilities, see ibid. section C.5.
78 - At the 1949 Diplomatic Conference, to bring round other delegations that opposed the inclusion of paragraph 3 altogether, one delegation pointed out that, as the provision only related to wounded or sick prisoners of war, the number refusing to be repatriated would never be very great; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 291 (New Zealand).
79 - See e.g. Canada, LOAC Manual, 2001, p. 10-8, para. 1035(1), for an example of a military manual that does not include this restriction. It states generally that prisoners of war should not be repatriated against their wishes during hostilities, without qualifying which prisoners of war are concerned. See also United States, Law of War Manual, 2016, p. 648, para. 9.35.2, which states that a Detaining Power may also release and repatriate prisoners of war during hostilities if not required by the Third Convention or done on the basis of an exchange, and that in such cases, the prisoners should ‘be interviewed by representatives of the Protecting Power or the ICRC to ensure that their return is voluntary’.
80 - See also Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 512–513, and UN Security Council, Report of the mission dispatched by the Secretary-General on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, August 1988, UN Doc. S/20147, 24 August 1988, paras 88(f) and 139(c)–(d). This is without prejudice to a situation in which the Detaining Power is prohibited from repatriating prisoners because of its non-refoulement obligations under other branches of international law. See also Cordula Droege, ‘Transfers of detainees: Legal framework, non-refoulement and contemporary challenges’, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 669–701, at 676; Nicholas Tsagourias and Alasdair Morrison, International Humanitarian Law: Cases, Materials and Commentary, Cambridge University Press, 2018, p. 167; and Els Debuf, Captured in War: Lawful Internment in Armed Conflict, Hart Publishing, Oxford, 2013, pp. 255–257.
81 - See Maia/Kolb/Scalia, pp. 469–470.
82 - This should be interpreted in light of Article 4B(2), which specifies that a number of articles are excluded; see paras 4280 and 4298 of this commentary.
83 - See Article 5(1). See also ICRC, Annual Report 1991, ICRC, Geneva, p. 112, which stated in relation to a specific case that ‘in any case, [prisoners of war] refusing repatriation retained prisoner-of-war status and should therefore benefit from all the provisions of the Third Geneva Convention until the end of the overall repatriation’. For a discussion of their status after refusing their final release and repatriation at the end of active hostilities pursuant to Article 118, see the commentary on that article, para. 4471.
84 - Article 7.
85 - See Article 5(1).
86 - See also para. 4282 of this commentary.
87 - See Articles 4B(2) and 12(2).