Treaties, States Parties and Commentaries
  • Print page
Commentary of 2020 
Article 118 : Release and repatriation
Text of the provision*
(1) Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.
(2) In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph.
(3) In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.
(4) The costs of repatriation of prisoners of war shall in all cases be equitably apportioned between the Detaining Power and the Power on which the prisoners depend. This apportionment shall be carried out on the following basis:
(a) If the two Powers are contiguous, the Power on which the prisoners of war depend shall bear the costs of repatriation from the frontiers of the Detaining Power.
(b) If the two Powers are not contiguous, the Detaining Power shall bear the costs of transport of prisoners of war over its own territory as far as its frontier or its port of embarkation nearest to the territory of the Power on which the prisoners of war depend. The Parties concerned shall agree between themselves as to the equitable apportionment of the remaining costs of the repatriation. The conclusion of this agreement shall in no circumstances justify any delay in the repatriation of the prisoners of war.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
High Contracting Parties for which a reservation is in force at the time of publication: Republic of Korea[1]
Contents

A. Introduction
4433  Articles 118 and 119 regulate the release and repatriation of prisoners of war after the cessation of active hostilities. These two articles deal with different situations from those addressed in Articles 109–117, which contain rules on the direct repatriation or accommodation in neutral countries of prisoners of war during hostilities.
4434  Article 118 establishes a unilateral obligation on Detaining Powers to release and repatriate prisoners of war without delay after the cessation of active hostilities. Paragraph 2 makes clear that the implementation of this obligation is not dependent on an agreement on this subject being concluded between Parties to a conflict. The article further provides that prisoners of war must be informed of any agreements or plans put in place regarding their repatriation. The final paragraph lays down clear instructions regarding the equitable division between the Parties of the costs of repatriation.
4435  The implementation of Articles 118 and 119 marks the end of the temporal scope of the Third Convention, which according to Article 5 is applicable from the time the prisoners of war fall into the power of the enemy until their final release and repatriation. The application of Article 118(1) is, however, deferred for prisoners of war against whom criminal proceedings are pending or who are lawfully convicted and serving a sentence in connection with the armed conflict until the end of the proceedings or the completion of the punishment.[2]
4436  The repatriation of prisoners of war has often depended on how the conflict ended. While armistice agreements frequently included provisions regulating the repatriation of prisoners by both sides,[3] the situation was different in cases where there was a victorious and a defeated Party. The latter case usually led to the immediate release of the prisoners of war held by the defeated Party, while the release of the prisoners held by the victor was delayed.[4] The first paragraph of Article 118 aims primarily to counter such a situation.[5]
Back to top
B. Historical background
4437  Article 20 of the 1899 and 1907 Hague Regulations required that the repatriation of prisoners of war be carried out as quickly as possible after the conclusion of peace. In accordance with this rule, Article 214 of the 1919 Treaty of Versailles provided that ‘[t]he repatriation of prisoners of war and interned civilians shall take place as soon as possible after the coming into force of the present Treaty and shall be carried out with the greatest rapidity’. However, the Treaty entered into force more than 14 months after the Armistice, resulting in prisoners of war being kept in captivity for over a year after the close of active hostilities.[6]
4438  Article 75 of the 1929 Geneva Convention on Prisoners of War was meant to expedite repatriation by stating that it should normally be regulated in an armistice agreement concluded between the Parties to the conflict. Where it was not possible to insert the necessary provisions in such an agreement, the Convention required that the belligerents ‘enter into communication with each other on the question as soon as possible’. However, this still meant that repatriation would take place only once an agreement had been reached between the Parties.[7]
4439  With the exception of the peace treaties concluded in Paris in 1947 between the Allied and Associated Powers and individual European countries,[8] the Second World War ended without peace treaties. As the obligation to repatriate prisoners of war under Article 75 of the 1929 Convention was not triggered in the absence of a peace treaty, millions of prisoners of war languished in camps long after the conflict had ended, exposing the inadequacies of the regulation of repatriation in that Convention and in the 1899 and 1907 Hague Regulations.[9] At the Conference of Government Experts in 1947, some delegations pointed out that, in light of the experiences of the Second World War, it was essential to ensure that repatriation took place as soon as possible after hostilities had ceased. They also considered it essential that this requirement be unilateral, so that its implementation would not be hampered by the potential difficulty of obtaining the consent of both Parties.[10] A proposal of this nature was adopted by the 17th International Conference of the Red Cross in Stockholm in 1948.[11]
4440  Discussions at the Diplomatic Conference in 1949 focused additionally on the issues of refusal by prisoners to be repatriated and the apportionment of the costs of repatriation.[12] The inclusion of an exception to the obligation to release and repatriate prisoners of war in cases where they do not want to be repatriated had already been discussed at the 1947 Conference of Government Experts.[13] However, despite the experiences after the Second World War, when repatriations carried out against prisoners’ will caused considerable suffering and even led to the suicides of some,[14] the government experts did not ‘think it possible to make exceptions in view of these special cases, owing to the difficulties they would involve, particularly in countries with strict immigration laws’.[15] Proposals to this effect made during the Diplomatic Conference[16] were also rejected, as it was felt strongly that prisoners of war would have a natural wish to return home as quickly as possible and should be protected against pressure or influence by the Detaining Power. It was further argued that war-ravaged countries in particular would need the return of prisoners of war to rebuild their industrial and agricultural production.[17]
4441  The 1929 Convention did not contain any clause relating to the apportionment of the costs of repatriating prisoners of war at the end of hostilities. To remedy this, the draft adopted by the Stockholm Conference foresaw the development of a model agreement on the subject, but no such model was proposed at the Diplomatic Conference. Nevertheless, the records of the discussions at the Conference show that the delegates felt that it was necessary to have clear rules on this issue, as disagreements over the division of costs had caused delays in repatriations at the end of the Second World War.[18] Overall, they agreed that the cost of repatriation should always be divided equitably between the Detaining Power and the Power on which the prisoners depend, and this principle was therefore placed prominently in the first sentence of Article 118(4).
4442  The rule that the costs of repatriation should be made the subject of an agreement if the Powers were not contiguous was met with hesitation and raised fears once again that repatriation could be delayed if it depended on the conclusion of an agreement.[19] To mitigate this, a third sentence was added, reiterating that the conclusion of an agreement regarding the equitable division of costs from the port of embarkation or frontier of the Detaining Power onwards would under no circumstances justify any delay in the repatriation of prisoners. This sentence aims to protect the interests of prisoners of war by requiring that the ultimate settlement of accounts regarding the costs of repatriation be separated from and not delay the repatriation process.
Back to top
C. Paragraph 1: The obligation to release and repatriate prisoners of war
4443  Article 118(1) is the key provision governing the release and repatriation of prisoners of war in the Third Convention, obliging Detaining Powers to release and repatriate prisoners of war without delay after the cessation of active hostilities. The provision is based on the assumption that it is in the best interests of prisoners of war to be repatriated as soon as possible, paving the way for a return to normality and peace.[20]
4444  This obligation follows on logically from the primary justification for interning prisoners of war, which is to prevent captured enemy personnel from taking up arms again against the Detaining Power while hostilities are ongoing.[21] Once these have ended, this justification no longer exists and captivity must end as soon as possible.[22] This obligation is of a customary nature, and many military manuals restate it, sometimes using the same wording as Article 118(1).[23] The obligation has also been included in a number of treaties and agreements that have followed armed conflicts.[24]
Back to top
1. The obligation to release and repatriate
4445  The term ‘release’ ordinarily refers to the ending of a person’s internment, and the corresponding return of their liberty. Once released, a person is no longer confined to a geographically restricted area.[25] In the context of Article 118(1), the term has to be understood as ending the captivity of a prisoner of war and as a necessary precondition for the prisoner’s repatriation.[26]
4446  The term ‘repatriation’ generally refers to the returning of individuals to their places of origin, nationality or residence.[27] Where prisoners of war are concerned, account must be taken of the duty of allegiance which binds members of the armed forces to the Power on which they depend. Repatriation in this context therefore means handing prisoners of war over to this Power. In most instances, this will be the prisoners’ State of nationality. However, in cases where individuals fought on behalf of, or otherwise belonged to, the military of a State other than their State of nationality, origin or residence, this is the Power on which they depend.[28]
4447  Release and repatriation are to be implemented simultaneously or consecutively. Whatever the case, the Detaining Power must do both: end the internment of prisoners of war and return them to the Power on which they depended before falling into its hands. Accordingly, the obligation under Article 118 is not fulfilled if the Detaining Power merely sets the prisoners free.[29] Rather, the Detaining Power is responsible for assisting the prisoners in returning to the Power on which they depend.[30] Doing so includes, among other things, equipping them with the necessary means to reach that Power, organizing transportation and providing subsistence for the duration of the journey, as provided for in Article 119.
4448  The obligation to release and repatriate is unilateral and exists independently for each Party holding prisoners of war. This means that a Detaining Power must proceed with release and repatriation as required under Articles 118 and 119 even if the other Party has not reciprocated.[31] This is clear from the text of Article 118 and is further supported by the provision’s drafting history.[32]
4449  Nevertheless, since the adoption of the Third Convention, belligerents have often concluded agreements at the end of active hostilities dealing with the repatriation of prisoners of war.[33] While such agreements can be advantageous and are explicitly provided for in Article 118(2), the obligation on each Detaining Power to release and repatriate remains unilateral. Therefore, the obligation cannot be suspended by one Party if the other Party fails to comply with certain terms of an agreement or is in breach of it, as this would amount to a reprisal against the prisoners concerned. The Geneva Conventions prohibit reprisals against protected persons as a method of enforcement of the laws of war.[34]
4450  Although Article 118 is clear on the obligation of the Parties vis-à-vis prisoners of war, delays in its implementation have occurred. For example, although the peace agreement concluded in Algiers between Eritrea and Ethiopia provided for the swift repatriation of prisoners of war following the 1998–2000 armed conflict,[35] the repatriation suffered delays. The UN Security Council addressed the issue in 2001, calling on the Parties ‘to urgently resolve the outstanding issues in accordance with the Algiers Agreements’ and fulfil a list of obligations, including to ‘unconditionally and without further delay, and in accordance with the 1949 Geneva Conventions, release and return the remaining prisoners of war and detainees under the auspices of the International Committee of the Red Cross’.[36]
4451  The issue was later brought before the Eritrea-Ethiopia Claims Commission which, despite remarking on the language of Article 118 being absolute, expressed the view that it was ‘unreasonable’ to expect that a Party, unless totally defeated, would agree to release and repatriate prisoners without any assurance that its own troops would similarly be released and repatriated.[37] It considered that Article 118 does not require precisely equivalent behaviour by each Party, but that ‘it is proper to expect that each Party’s conduct with respect to the repatriation of POWs will be reasonable and broadly commensurate with the conduct of the other’. It added that the Parties ‘must continue to strive to ensure compliance with the basic objective of Article 118 – the release and repatriation of POWs as promptly as possible following the cessation of active hostilities’. The Commission further considered that ‘[n]either Party may unilaterally abandon the release and repatriation process or refuse to work in good faith with the ICRC to resolve any impediments’.[38] In the ICRC’s view, any suggestion that the application of Article 118 is dependent upon reciprocity is inconsistent with the wording and drafting history of the provision, is not supported by general State practice[39] and would run counter to the protective purpose of the obligation to release and repatriate.[40]
Back to top
2. ‘Cessation of active hostilities’
4452  The obligation to release and repatriate prisoners of war arises as soon as active hostilities between the Detaining Power and the Power on which the prisoners depend have ceased. Accordingly, the obligation is tied to the ‘facts on the ground’,[41] rather than to the formal end of an armed conflict or to an agreement between the Parties.[42] This was an important change from the 1929 Convention and an attempt to avoid the year-long delays experienced after the Second World War. The intention of the drafters was that the captivity of prisoners of war should end as soon as the reasons justifying their detention no longer exist.[43] The expectation is that the prisoners will return to their normal lives and not rejoin hostilities against the Detaining Power.[44] However, beyond this shared understanding, the phrase ‘cessation of active hostilities’ leaves room for interpretation, leading to controversy in some international armed conflicts since the Second World War.
4453  In its ordinary meaning, the term ‘hostilities’ refers to acts of warfare.[45] The term has been further defined by the ICRC as ‘the resort by the parties to the conflict to means and methods of injuring the enemy’.[46] Accordingly, ‘hostilities’ does not include other activities of military forces such as troop movements and mobilizations along a border that do not involve any violence or force directed at the enemy.[47]
4454  The end of active hostilities may occur prior to the general close of military operations that would signify the end of an armed conflict as a whole.[48] Active hostilities might also cease bilaterally between two belligerent Parties, before the general close of military operations and even though active hostilities continue with other Parties to the conflict. A special situation may also arise, in which the fighting between two States has stopped but one of them continues to occupy the territory of another; although the obligation to release and repatriate under Article 118(1) would apply in principle to this situation, it is not clear from practice how the threshold of cessation of active hostilities interacts with that of end of occupation.[49]
4455  The determination as to when active hostilities between two belligerent Parties have ceased with a sufficient degree of stability and permanence to activate the obligation to release and repatriate under Article 118(1) is context-specific and has to be made in the prevailing circumstances of each case by looking at the facts on the ground.[50] The ICRC’s view is that active hostilities may be considered to have ceased when there is no reasonable expectation of their resumption.[51] The mere possibility that hostilities could resume at some time is insufficient to justify delaying the start of a repatriation process. There must be some reasonable basis on which to believe that hostilities may recommence.
4456  A clear indication that hostilities have ended would be the total defeat, capitulation or general demobilization of one Party, even if there are isolated or sporadic acts of violence by remnants of that Party.[52]
4457  Unilateral or bilateral declarations by the Parties that they will stop fighting can also serve as an indication of a cessation of active hostilities but are not sufficient on their own and must be reflected in an end of armed confrontations on the ground between the Parties. The obligation to release and repatriate is triggered only once the unilateral or bilateral declaration of a truce, an armistice or even peace by one or both Parties is indeed acted upon.[53] A temporary lull or absence of hostilities or a mere suspension of military operations is likewise not enough to establish that active hostilities have ceased.
4458  It is impossible to state in the abstract how much time needs to pass without armed confrontations taking place to conclude with an acceptable degree of certainty that active hostilities have ended in a sustainable way. Such an assessment always needs to take into account all the factual circumstances in a given case, including past patterns of surging and declining violence in the armed conflict in question.[54]
4459  The question whether active hostilities have ceased, and the Detaining Power must release and repatriate prisoners of war, may also arise in a situation that was not envisaged during the drafting of the Third Convention, namely where the legal classification of an armed conflict changes from international to non-international owing to an evolution of facts on the ground. In such a situation, an international armed conflict becomes non-international because one of the fighting forces involved no longer represents a State but has become a non-State Party, even though hostilities continue.
4460  Where this occurs, and in light of the continuing armed confrontations, if either Party holds prisoners of war, it is unlikely to be willing to release and repatriate them at the moment when the classification of the conflict changes because of an expectation that they may rejoin hostilities in the now non-international armed conflict. For a discussion of the different interpretations that are possible on whether the obligation in Article 118(1) to release and repatriate prisoners of war is activated, and what the legal basis would be for the possible continued internment of the prisoners and their treatment, see the commentary on Article 5, section C.4.
Back to top
3. ‘Without delay’
4461  Given the long delays in the repatriation of prisoners of war following the Second World War, the emphasis in 1949 was on prompt repatriation, and every effort was made by the Diplomatic Conference to ensure that repatriation would take place as soon as possible after the end of hostilities.
4462  The obligation to act ‘without delay’ is strict.[55] Nevertheless, the action to be taken is limited to what is feasible in the specific circumstances and may depend on factors such as the actual number of prisoners interned, the location of the camps and the logistical means available to the Detaining Power at the end of active hostilities, as well as the security situation and the ability of a State to receive the repatriated prisoners. The ICRC has witnessed situations in which this obligation was not observed by Parties to a conflict.[56] The requirement ‘without delay’ does not affect the practical arrangements that must be made so that repatriation may take place in conditions consistent with the requirements of the Convention, in particular those set down in Article 119(1), which also refers to Articles 46–48 relating to the transfer of prisoners.[57]
4463  The proceedings of the Eritrea-Ethiopia Claims Commission offer some guidance on how to interpret the notion of ‘without delay’. The Commission stated that ‘without delay’ does not mean that repatriation has to be instantaneous, acknowledging that ‘[p]reparing and coordinating adequate arrangements for safe and orderly movement and reception, especially of sick or wounded prisoners, may be time-consuming’.[58] The Commission held, however, that a three-month delay in the repatriation of prisoners of war by one of the Parties, without providing any explanation for the delay, was a violation of the obligation under Article 118(1).[59] In any case, the term ‘without delay’ implies that complete inaction by a Detaining Power is prohibited.
4464  Unjustifiable delay in the repatriation of prisoners of war constitutes a grave breach under Additional Protocol I.[60] Furthermore, unjustifiable delay in the repatriation of prisoners of war may also constitute an arbitrary deprivation of liberty.[61]
Back to top
4. Addressee of the obligation
4465  Article 118(1) does not specify who the obligation to release and repatriate is addressed to. As it arises after the cessation of active hostilities, the addressees are those Parties to an armed conflict who have prisoners of war at that point in time rather than the Parties who initially captured them. It would include neutral Powers in circumstances where these have accepted or been required under international law to intern persons.[62]
4466  Nevertheless, Article 46(1) provides that the Detaining Power that initially captured members of an adversary’s armed forces must keep in mind possible effects on the ease of their repatriation after the cessation of hostilities when deciding on the possible transfer of those prisoners during the conflict. While this does not oblige the Detaining Power to keep prisoners of war at the most convenient or cost-effective location for the purposes of repatriation, the paragraph requires it to consider the effect such transfer might have on later repatriation efforts.[63]
Back to top
5. Refusal of prisoners of war to be repatriated
4467  Unlike Article 109(3), Article 118 does not address a situation in which prisoners of war refuse to be repatriated. The issue arose in the early 1950s at the end of the Korean War, when large numbers of prisoners refused to be repatriated. One side insisted that all prisoners of war be repatriated without exception, while the other side believed that repatriation should not be carried out against the will of the prisoners concerned or by force.[64] The stand-off delayed the signing of a ceasefire agreement for several months. Following a resolution of the UN General Assembly, which affirmed that ‘force shall not be used against prisoners of war to prevent or effect their return to their homelands, and that they shall at all time[s] be treated humanely, in accordance with the specific provisions of the Geneva Convention and with the general spirit of the Convention’,[65] the Parties eventually accepted that repatriation should be carried out on a voluntary basis only.
4468  Prisoners of war have refused to be repatriated in a number of armed conflicts since then,[66] including the 1980–88 Iran-Iraq War, the 1990–91 Gulf War[67] and the 1998–2000 war between Ethiopia and Eritrea.[68] The reasons for prisoners refusing repatriation may differ in practice. They may be, for example, because the prisoner has family links in the territory of the Detaining Power or is afraid of being treated as a traitor for having openly denounced their government, for having surrendered or for simply having been captured alive.[69] Deserters, defectors or those who otherwise engaged willingly in activities that assisted the Detaining Power may be particularly opposed to being repatriated, as punishment for such acts under domestic military laws is known to be severe and in time of armed conflict may include life imprisonment or even the death penalty.[70]
4469  While there is no explicit exception in Article 118, the obligation to repatriate must be understood as subject to an exception where the prisoners face a real risk of a violation of fundamental rights by their own country. This interpretation is reflected in State practice and statements made by the UN and other international bodies.[71] It also accords with the principle of non-refoulement under international law.[72] According to this principle, States may not transfer a person within their control to another State if there are substantial grounds for believing that the person would be in danger of suffering the violation of certain fundamental rights in the jurisdiction of the latter State.[73]
4470  By contrast, a prisoner’s refusal to be repatriated cannot be based on mere convenience. Rather, there must be ‘serious reasons for fearing that a prisoner of war who is himself opposed to being repatriated may, after his repatriation, be the subject of unjust measures affecting his life or liberty, especially on grounds of race, social class, religion or political views, and that consequently repatriation would be contrary to the general principles of international law for the protection of the human being’.[74] It has also been argued that a prisoner’s refusal should be accepted when they have a reasonable fear of being punished for the mere fact of having been captured and interned,[75] or when they have deserted or defected.[76] Each case must be dealt with individually, and the grounds for the refusal must be reviewed carefully.[77] A strict appraisal of each case serves as the best protection against propaganda and undue pressure being used to persuade prisoners of war to object to repatriation.[78]
4471  The exception raises legal issues regarding the status of prisoners of war who refuse to be repatriated. If they are released and given asylum by the former Detaining Power or leave the country and seek asylum in a third country, for example, they lose their prisoner-of-war status at the time of their release. If, however, they continue to be interned, they lose their protected status under the Third Convention at the end of the general repatriation process, i.e. when all other prisoners of war who are willing to be repatriated have been repatriated. The ICRC believes that these persons would nonetheless continue to be protected under the Fourth Convention until ‘release, repatriation or re-establishment’ takes place according to Article 6(4) of the Fourth Convention, and such persons have been able to resume a normal existence.[79]
4472  This interpretation, suggested by the ICRC, was accepted in 1991 by Saudi Arabia in relation to Iraqi prisoners of war who refused repatriation.[80] Saudi Arabia did not agree to their release on its own territory, and at that time no third country had yet agreed to accept them. These former prisoners of war were therefore not yet ‘re-established’ in the sense of Article 6(4) of the Fourth Convention and remained protected by that Convention.[81]
4473  Whenever the ICRC assists in the repatriation process, it follows a standard procedure: it conducts information sessions for the prisoners, carries out identity checks and obtains assurances from the prisoners that they wish to be repatriated.[82] ICRC visits to and private interviews with prisoners of war during captivity and before the start of a repatriation process may help ascertain at a preliminary stage the prisoners’ desires and constitute a safeguard against possible propaganda and undue pressure from the Detaining Power.[83] Whether or not the ICRC is involved in a repatriation, a procedure should be in place to ensure that a prisoner’s refusal to be repatriated is well-founded and has not been expressed under undue pressure.[84]
Back to top
D. Paragraph 2: Establishment of a repatriation plan
4474  Article 118(2) provides that repatriation of prisoners of war must be conducted according to a repatriation plan that is consistent with the principle laid down in paragraph 1. Such a plan can either be contained in an agreement concluded between the Parties to the conflict or, in the absence of such an agreement, must be established by the Detaining Power itself.[85] Article 75(1) of the 1929 Convention contained a similar provision.[86]
4475  A repatriation plan ensures that the release and repatriation of prisoners of war is conducted in as orderly a fashion as possible following an armed conflict and aims to mitigate potential security risks for both the prisoners and the civilian population. Furthermore, a repatriation plan will greatly facilitate the process of informing the prisoners of the measures adopted with regard to their release and repatriation as required by Article 118(3). It may also serve to prevent disappearances of prisoners upon release and repatriation by requiring that the Powers involved record information, such as the location of release, which may later assist in identifying the released prisoners.
4476  While the provisions made and measures outlined in a repatriation plan depend on the factual circumstances of a particular repatriation, the plan, in order to fulfil its purpose, should address issues such as means of transportation, time schedules, and the procedural requirements laid down in Article 119.[87] It should also cover administrative matters, including furnishing prisoners with the required documentation, such as medical certificates concerning work-related accidents in accordance with Article 54(2), prior to their release.
4477  The plan may also include an order of priority for repatriation. This is likely to be a sensitive issue, and Articles 118 and 119 do not provide any guidance on this matter.[88] The prohibition of discrimination based on race, nationality, religious belief or political opinions contained in Article 16 applies in the context of repatriation, and the Detaining Power may not discriminate against any prisoners of war based on these or similar grounds when drawing up a repatriation plan.
4478  The need for a repatriation plan is explicitly mentioned in a number of military manuals, some of which require that priority be given to the wounded and sick, to the oldest and to those who have been interned the longest.[89]
4479  Article 118(2) requires that the repatriation plan be established and executed ‘without delay’. While the preparation and execution of such a plan might take some time, this requirement does not constitute a qualification of the obligation to release and repatriate without delay. When parts of the plan are rendered non-executable owing to factors outside the control of the Detaining Power, some postponement may be justified until the plan can be revised according to the conditions on the ground.
4480  In practice, the ICRC has been instrumental in a number of repatriation operations, often at the request of the Detaining Power.[90] Examples of assistance provided included technical support and transportation.[91]
Back to top
E. Paragraph 3: Informing prisoners of war of the measures adopted
4481  Article 118(3) states that prisoners of war must be informed of the measures adopted by the Detaining Power or of the conclusion of an agreement with a view to their repatriation. This would allow prisoners to know when they can expect to be reunited with loved ones. No similar provision existed in the 1929 Convention. The paragraph was introduced at the request of the ICRC and adopted by consensus.
4482  Unlike in criminal justice cases, where the length of imprisonment is clearly defined in a judgment and thus known to the person serving a sentence, prisoner-of-war captivity is characterized by uncertainty as to when that captivity will end. This uncertainty may be detrimental to the prisoners’ mental health, not only during an armed conflict, but also after the conflict has ended, in particular for those who have been interned for a long time.
4483  Depending on the circumstances, the information to be shared with prisoners of war should cover general information about the repatriation plan, such as the overall timeframe and any prioritization or order of repatriation.[92] In cases where the repatriation process has been made the subject of an agreement between the Parties, the prisoners should be given details about the agreement. In addition, they should be told of any significant modifications that are made to the initial plan or the agreement, in particular if there are any unforeseen delays, so as to manage their expectations and protect them from additional psychological stress.
4484  When the prisoners should be informed about their repatriation may be deduced from the purpose behind the provision. Given that the prisoners will be eager to return to normal life as soon as the conflict is over, the Detaining Power should inform them of developments as soon as and as regularly as possible.
4485  The Detaining Power is free to decide how it wishes to bring the repatriation measures to the knowledge of the prisoners. Notices could be posted in camps in a similar fashion to those provided for in Article 41(1) and (2), information may be channelled through the prisoners’ representatives, or public announcements made.[93] It is the Detaining Power’s responsibility, however, to ensure that the measures are communicated in a language that the prisoners understand and that the information posted or shared is accessible to all.[94]
4486  In the ICRC’s experience, keeping prisoners of war informed about the repatriation process is important for their mental health. In several international armed conflicts, it has been observed that the morale and mental health of the prisoners deteriorated when no information was communicated as to whether and when repatriation would take place.
Back to top
F. Paragraph 4: Apportionment of costs
4487  The principle that the costs of repatriation must be apportioned ‘equitably’ underlies Article 118(4), and the rules for contiguous and non-contiguous States in subparagraphs (a) and (b) have to be applied in accordance with this principle. This also means that, if, as a result of the application of the rules set forth in subparagraphs (a) and (b), the apportionment of costs was not equitable, it would have to be revised in order to make it consistent with this principle.[95] Equitable division of costs implies that the costs are shared in a fair and impartial manner rather than on a 50-50 basis. What is equitable will need to be decided in the context of each case and may depend on factors such as the location of a prisoner-of-war camp and its distance from the border or the nearest point of embarkation. It may also depend on the infrastructure in the respective countries at the end of hostilities and the available means of transportation.
4488  For two contiguous Powers, Article 118(4)(a) provides that the Power on which the prisoners depend must bear the costs of repatriation from the frontier of the Detaining Power. In other words, each Power bears the cost of repatriation on its own territory.
4489  The apportionment of the costs of repatriation of prisoners who are interned in the territory of a third State or of the Power on which they depend, which, despite the cessation of hostilities, is still occupied by the Detaining Power, is not addressed in the Convention. It may be argued, however, that in order to ensure a prompt and orderly return of prisoners of war to the situation in which they were before internment, the Detaining Power should bear the costs of the repatriation until the prisoners are handed over to the Power on which they depend, in the same way as a Detaining Power has to cover the costs of the transfer of prisoners within its own territory.[96] Given that releasing prisoners of war might not be sufficient to fulfil the obligation under Article 118(1) and (2), however, Parties to a conflict should ideally address the apportionment of these costs in a special agreement.
4490  If the two Powers are not contiguous, subparagraph (b) provides that the transportation costs must be borne by the Detaining Power up to its frontier or a port of embarkation that allows for direct and fast repatriation, usually one nearest to the territory of the Power on which the prisoners depend. In the case of repatriation by air, the same rule should, based on the wording of the provision, apply for transportation to the airport or airbase of the Detaining Power that allows for direct and fast repatriation. Regarding repatriation from the point of embarkation onwards, the second sentence of the subparagraph provides that the Parties must agree on how these costs are shared in an equitable manner. Depending on the circumstances, this may mean that account must be taken of the costs already borne by the Detaining Power.
4491  The rule that the cost of repatriation should be made the subject of an agreement if the Powers are not contiguous entails a risk of delayed repatriation if the belligerent Parties have not reached an agreement on the question.[97] To mitigate this risk and to protect the interests of prisoners of war, the third sentence reiterates that the conclusion of an agreement regarding the equitable division of costs from the port of embarkation or frontier of the Detaining Power onwards cannot justify any delay in the repatriation of prisoners. Thus, without or for as long as no agreement has been reached on this issue, the cost of repatriation has to be borne by the Power in charge of the respective segment of transportation during the repatriation process.
Back to top
Select bibliography
Baxter, Richard R., ‘Asylum to Prisoners of War’, British Yearbook of International Law, Vol. 30, 1953, pp. 489–498.
Charmatz, Jan P. and Wit, Harold M., ‘Repatriation of Prisoners of War and the 1949 Geneva Convention’, Yale Law Journal, Vol. 62, No. 3, February 1953, pp. 391–415.
Debuf, Els, Captured in War: Lawful Internment in Armed Conflict, Hart Publishing, Oxford, 2013.
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.
War, Aggression and Self-Defence, 6th edition, Cambridge University Press, 2017.
Dörmann, Knut and Colassis, Laurent, ‘International Humanitarian Law in the Iraq Conflict’, German Yearbook of International Law, Vol. 47, 2004, pp. 293–342.
Droege, Cordula, ‘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.
Garcia-Mora, Manuel R., International Law and Asylum as a Human Right, Public Affairs Press, 1956.
Gillard, Emanuela-Chiara, ‘There’s no place like home: States’ obligations in relation to transfers of persons’, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 703–750.
Gutteridge, Joyce A.C, ‘The Repatriation of Prisoners of War’, International and Comparative Law Quarterly, Vol. 2, 1953, pp. 207–216.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul.
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., ‘The Nature and Scope of the Armistice Agreement’, American Journal of International Law, Vol. 50, 1956, pp. 880–906.
Prisoners of War in International Armed Conflict, International Law Studies Series, U.S. Naval War College, Vol. 59, 1978, pp. 395–429.
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, pp. 501–548.
Mayda, Jaro, ‘The Korean Repatriation Problem and International Law’, American Journal of International Law, Vol. 47, No. 3, July 1953, pp. 414–438.
Michaelsen, Christopher, ‘The renaissance of non-refoulement? The Othman (Abu Qatada) decision of the European Court of Human Rights’, International & Comparative Law Quarterly, Vol. 61, No. 3, July 2012, pp. 750–765.
Murphy, Sean D., ‘Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the Release of Persons Deemed “Unprivileged Combatants”’, The George Washington Law Review, Vol. 75, No. 5, August 2007, pp. 1105–1164.
Niebergall-Lackner, Heike, Status and Treatment of Deserters in International Armed Conflicts, Brill/Nijhoff, Leiden, 2016.
Oswald, Bruce, ‘End of Internment’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1373–1386.
Quigley, John, ‘Iran and Iraq and the Obligations to Release and Repatriate Prisoners of War after the Close of Hostilities’, American University International Law Review, Vol. 5, No. 1, 1989, pp. 73–86.
Rockwell, Jeffrey E., ‘The Right of Nonrepatriation of Prisoners of War Captured by the United States’, Yale Law Journal, Vol. 83, 1973, pp. 358–384.
Sahovic, Milan, ‘La question de la libération des prisonnier de guerre entre l’Irak et l’Iran’, Annuaire français de droit international, Vol. 35, 1989, pp. 159–165.
Sassòli, Marco, ‘The status, treatment and repatriation of deserters under international humanitarian law’, Yearbook of the International Institute of Humanitarian Law, 1985, pp. 9–36.
– ‘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.
Sassòli, Marco, Bouvier, Antoine A. and Quintin, Anne, How Does Law Protect in War?, 3rd edition, ICRC, Geneva, 2011.
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.
Wilhelm, René-Jean, ‘Can the Status of Prisoners of War be Altered?’, Extract from Revue internationale de la Croix-Rouge, Vol. 35, July and September 1953, pp. 1–37.

1 - ‘The Republic of Korea interprets the provisions of Article 118, paragraph 1, as not binding upon a Power detaining prisoners of war to forcibly repatriate its prisoners against their openly and freely expressed will.’ United Nations Treaty Series, Vol. 575, pp. 285–287.
2 - See the commentary on Article 119, section G.
3 - See e.g. Armistice Agreement between the Soviet Union and Finland (1944), Article 10; Panmunjom Armistice Agreement (1953), Article 52; Agreement on Ending the War and Restoring Peace in Viet-Nam (1973), Article 8(a); and Protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam (1973), Article 1. See, generally, Levie, pp. 897–899.
4 - See e.g. Franco-German Armistice Agreement (1940); Armistice Agreement with Italy (1943); and Hungarian Armistice Agreement (1945). The last, executed on 20 January 1945, called for the immediate return of all prisoners of war held by Hungary. The Treaty of Peace with Hungary, executed more than two years later, on 10 February 1947, called for the repatriation of Hungarian prisoners of war.
5 - Levie, p. 421.
6 - François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, p. 100.
7 - Article 75 read: When belligerents conclude an armistice convention, they shall normally cause to be included therein provisions concerning the repatriation of prisoners of war. If it has not been possible to insert in that convention such stipulations, the belligerents shall, nevertheless, enter into communication with each other on the question as soon as possible. In any case, the repatriation of prisoners shall be effected as soon as possible after the conclusion of peace.
8 - Treaty of Peace between the Allied and Associated Powers and Bulgaria (1947); Treaty of Peace between the Allied and Associated Powers and Finland (1947); Treaty of Peace between the Allied and Associated Powers and Hungary (1947); Treaty of Peace between the Allied and Associated Powers and Italy (1947); and Treaty of Peace between the Allied and Associated Powers and Romania (1947).
9 - See ICRC, ‘The Problem of Repatriation of Prisoners of War’, Communiqué, No. 326b, 12 August 1946; ICRC, Annual Report 1947–48, ICRC, Geneva, pp. 37–42; Dinstein, 1984, p. 43; and Levie, pp. 421 and 428, fn. 168.
10 - Report of the Conference of Government Experts of 1947, p. 243.
11 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 108, p. 94.
12 - For further details of these discussions, see sections C.5 and F, respectively.
13 - Report of the Conference of Government Experts of 1947, p. 245.
14 - Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, p. 187.
15 - Report of the Conference of Government Experts of 1947, p. 245.
16 - One proposal provided for exceptions in cases where the territories of the country of origin had come under the jurisdiction of a foreign government or where the conditions of life had so changed that the prisoners no longer wished to return to their home country if they were able to settle in the territory of another State. This proposal was rejected by a large majority, as some delegations were concerned that prisoners of war might not be able to express themselves freely while in captivity; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 462. Another proposal concerned exceptions where unrest, disturbances or lack of economic means to provide for large numbers of returning prisoners of war could be expected, as had been the case in Germany after the First World War; see Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 15th meeting, pp. 6–8.
17 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 449–450. See also Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 15th meeting, pp. 11–12 (Hungary).
18 - Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 15th meeting, pp. 3–4 and 9–10.
19 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 337–338.
20 - See also Oswald, pp. 1373–1374, who argues that the right to an ‘end of internment’ is an extension of the principle of humane treatment.
21 - See also the commentary on Article 21, para. 1932.
22 - See e.g. Shields Delessert, p. 47, and Debuf, p. 244.
23 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 128; Argentina, Manual of the Law of Armed Conflict, 2010, para. 3.48; Canada, LOAC Manual, 2001, para. 302.1.d; Côte d’Ivoire, Teaching Manual, 2007, Vol. IV, p. 60; Germany, Military Manual, 2013, para. 849; Netherlands, Military Manual, 2005, para. 0750; and Switzerland, Basic Military Manual, 1987, Article 141.
24 - See Panmunjom Armistice Agreement (1953), Article III(51)(a); Protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam (1973), Articles 4 and 6; Agreement on the Repatriation of Detainees between Bangladesh, India and Pakistan (1974), Article 3; CIS Agreement on the Protection of Victims of Armed Conflicts (1993), Article 4; Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords (1995), Article IX; and Peace Agreement between Eritrea and Ethiopia (2000), Article 2(1) and (2).
25 - Sassòli/Quintin/Bouvier, Glossary, ‘Release’.
26 - See also Shields Delessert, p. 176.
27 - Sassòli/Quintin/Bouvier, Glossary, ‘Repatriation’; Henckaerts/Doswald-Beck, commentary on Rule 128, pp. 451–456.
28 - Sassòli, 2015, p. 1057, para. 44. See United States, Law of War Manual, 2016, p. 535, para. 9.1.2.1. See also Ukraine, Manual on the Application of IHL Rules, 2004, para. 1.2.17, defining repatriation in the context of the Third and Fourth Geneva Conventions as ‘the return to the State of citizenship, permanent residence or origin of the persons who found themselves in the territory of another State for various reasons’. For exceptions to this rule, see section C.5.
29 - This also means that a Detaining Power does not fulfil its obligation under Article 118 if it sets prisoners of war free, either as ‘release on parole’ or as ‘early release’ before active hostilities have ended, with a view to avoiding having to repatriate them. This might mostly be an issue in cases where prisoners of war are not interned on the territory of the Detaining Power. Regarding the possibility of release of prisoners of war on parole or promise during hostilities, see the commentary on Article 21, section D.
30 - See also Wilhelm, p. 27.
31 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 205, para. 8.168: ‘The duty of repatriation is absolute and may not be made conditional upon the behaviour of the state on which the prisoners depend.’ See also Krähenmann, p. 407, para. 735; and ICRC, Annual Report 2001, ICRC, Geneva, p. 87 (Eritrea and Ethiopia); Annual Report 2003, ICRC, Geneva, p. 127 (Chad and Central African Republic); Annual Report 2009, ICRC, Geneva, p. 188; and Annual Report 2010, ICRC, Geneva, p. 212 (Eritrea and Djibouti). See, further, Sassòli, 2015, pp. 1050–1051, paras 25–29; and Theodor Meron, ‘The Humanization of Humanitarian Law’, American Journal of International Law, Vol. 94, No. 2, 2000, pp. 239–278, at 254.
32 - See Quigley, p. 80. See also the commentary on Article 1, para. 221. The provisions in Article 118(2) on a repatriation plan and in Article 118(4) on the apportionment of costs provide specifically for the situation in which no agreement is reached; Sassòli, 2015, p. 1049, para. 25. See, further, Report of the Conference of Government Experts of 1947, pp. 243–245.
33 - See e.g. Panmunjom Agreement concerning Prisoners of War (1953), Article III(51)(a); Separation of Forces Agreement between Israel and Syria (1974), Article F; Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords (1995), Article IX; Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners (1991), paras 1–2; Protocol to the Moscow Agreement on a Cease-fire in Chechnya (1996), Article 2; Ashgabat Protocol on Prisoner Exchange in Tajikistan (1996), para. 1; and Peace Agreement between Eritrea and Ethiopia (2000), Article 2(1) and (2).
34 - First Convention, Article 46; Second Convention, Article 47; Third Convention, Article 13(3); and Fourth Convention, Article 33(3).
35 - Peace Agreement between Eritrea and Ethiopia (2000), Article 2(1) and (2).
36 - UN Security Council, Res. 1369, 14 September 2001, para. 5(f).
37 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, paras 148–149.
38 - Ibid. para. 149.
39 - See ICRC, Annual Report 1988, ICRC, Geneva, p. 36, and Annual Report 1989, ICRC, Geneva, p. 32 (repatriation by Libya despite Chad’s refusal). See also ICRC, Customary International Humanitarian Law, practice relating to Rule 128, section B, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule128; United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 205, para. 8.168. See, however, United States, Law of War Manual, 2016, p. 653, para. 9.37.1: During the process of releasing and repatriating POWs, it is proper to expect that each party’s conduct with respect to the repatriation of POWs will be reasonable and broadly commensurate with the conduct of the other. For example, it would not be reasonable to expect that a State would release all of the POWs it holds without assurance that its own personnel held by the enemy will also be released.
40 - For a critical discussion of the Eritrea-Ethiopia Claims Commission’s finding, see Sassòli, 2015, pp. 1049–1051, paras 25–29.
41 - Ibid. para. 40. See also Germany, Military Manual, 1992, para. 731.
42 - See also United States, District Court for the District of Columbia, Razak case, Judgment, 2016, pp. 305–306. Since the Second World War, only a few examples can be found where international armed conflicts were ended by a peace treaty: between Egypt and Israel in 1979 and between Israel and Jordan in 1994. Armistice agreements were concluded in the 1948 Arab-Israeli War and the 1950–1953 Korean War. See Leslie C. Green, The Contemporary Law of Armed Conflict, 3rd edition, Manchester University Press, 2008, pp. 106–108. See also Belgium, Law of Armed Conflict Training Manual, Part IV, 2009, para. 5.5; Germany, Military Manual, 2013, para. 849; and Philippines, LOAC Teaching File, 2006, para. 24.7.
43 - Charmatz/Wit, p. 415.
44 - See also the commentary on Article 109, paras 4246–4247.
45 - Concise Oxford English Dictionary, 12th edition, 2011, p. 233.
46 - ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, by Nils Melzer, ICRC, Geneva, 2009, p. 43.
47 - Sassòli, 2015, p. 1046, para. 21. See also ICRC, Third Expert Meeting on the Notion of Direct Participation in Hostilities, Summary report drafted by Nils Melzer, ICRC, Geneva, 2005, pp. 18–19, noting that there was a disagreement among the experts as to whether the meaning of the term ‘hostilities’ corresponded to the ‘actual prosecution of the armed conflict on behalf of the parties to the conflict’ or whether it was ‘restricted to actual engagement in fighting’.
48 - For the distinction between ‘end of active hostilities’ and ‘close of military operations’, see Julia Grignon, L’applicabilité temporelle du droit international humanitaire, Schulthess, Geneva, 2014, pp. 276–281. See also the commentary on Article 2, paras 310–311; ICTY, Gotovina Trial Judgment, 2011, para. 1697; and Pictet (ed.), Commentary on the Fourth Geneva Convention, ICRC, 1958, pp. 61–62.
49 - For academic viewpoints on this issue, see Shields Delessert, p. 178; Krähenmann, p. 409, para. 735; and Sassòli, 2015, p. 1057, para. 44. For a discussion of the criteria establishing the end of occupation, see the commentary on Article 2, paras 340–347.
50 - See also Debuf, p. 247, noting that ‘[t]he cessation of active hostilities is an objective test that relies solely on the facts on the ground’.
51 - See also Dinstein, 1984, p. 44; Krähenmann, p. 407, para. 735; Debuf, pp. 247–248; Sassòli, 2015, p. 1047, para. 22; Germany, Military Manual, 2013, para. 849; Philippines, LOAC Teaching File, 2006, para. 24.7; and United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 205, para. 8.169; but see e.g. United States, Law of War Manual, 2016, p. 655, para. 9.37.2, requiring that the fighting ends completely ‘with clearly no probability of resumption of hostilities in the near future’ (emphasis added).
52 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 205, para. 8.169, noting that ‘[c]essation is not affected by isolated and sporadic acts of violence’; but see e.g. United States, Law of War Manual, 2016, p. 655, para. 9.37.2, requiring ‘the complete end of the fighting’.
53 - Shields Delessert, p. 97. See the discussion of this issue in United States, District Court for the District of Columbia, Razak case, Memorandum Opinion, 2016, pp. 305–306. See also Belgium, Law of Armed Conflict Training Manual, Part IV, 2009, para. 5.5.
54 - See Quigley, p. 75, and Sassòli, 2015, p. 1047, para. 22.
55 - For an interpretation of the term ‘without delay’, see also the commentaries on Article 92, para. 3829, and on Article 120, para. 4547.
56 - See e.g. ICRC, Annual Report 1995, ICRC, Geneva, p. 24.
57 - See also United States, Law of War Manual, 2016, pp. 655–656, para. 9.37.3.
58 - Eritrea-Ethiopia Claims Commission, Prisoner of War, Eritrea’s Claim, Partial Award, 2003, para. 147.
59 - Ibid. paras 157–158.
60 - 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 international humanitarian law, see Henckaerts/Doswald-Beck, 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, 2015, 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.
61 - See Henckaerts/Doswald-Beck, commentary on Rule 156, pp. 586 and 588.
62 - See the commentary on Article 4, section J.2.
63 - See the commentary on Article 46, section C.
64 - In addition to the drafting history and the wording of Article 118(1), proponents of the strict repatriation obligation argued that Article 7 of the Third Convention, which prohibits prisoners of war from renouncing any rights granted to them by the Convention, implied that prisoners of war were required to be repatriated without having any say in the matter. The other side, however, insisted on interpreting Article 118 in the light of the protective purposes of the Third Convention, which, if necessary, should allow for the protection of prisoners of war from their own country. At the time of the 1950–1953 Korean War, none of the Parties had ratified the Third Convention and it was therefore not formally binding. The Parties had, however, stated their intention of respecting the principles of the Geneva Conventions at the beginning of the hostilities. For a detailed overview of the repatriation process after the Korean War, see Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, pp. 543–546. See also Levie, p. 424; Charmatz/Wit, p. 391; Garcia-Mora, p. 112; Mayda, p. 414; Baxter, p. 489; and Rosas, pp. 479–480.
65 - See UN General Assembly, Res. 610 (VII), Korea: reports of the United Nations Commission for the Unification and Rehabilitation of Korea, 3 December 1952, para. 2.
66 - See e.g. ICRC, Annual Report 1989, ICRC, Geneva, p. 87; Annual Report 1991, ICRC, Geneva, p. 100; Annual Report 2001, ICRC, Geneva, p. 319; Annual Report 2003, ICRC, Geneva, p. 66; Annual Report 2006, ICRC, Geneva, p. 97; and Annual Report 2007, ICRC, Geneva, p. 102. See also Carl E. Lundin, Jr., ‘Repatriation of Prisoners of War: Legal and Political Aspects’, American Bar Association Journal, Vol. 39, No. 7, 1953, pp. 559–563.
67 - See Krähenmann, pp. 409–410, para. 735.
68 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 147.
69 - See also Rosas, pp. 478–479.
70 - Dinstein, 1984, p. 41. For an overview of desertion and punishment ranges in domestic military law, see Niebergall-Lackner, pp. 4–18, and for a historical example, see Lieber Code (1863), Article 48. For a discussion of the status of deserters and defectors, see the commentary on Article 4, section D.5.
71 - See e.g. UN General Assembly, Res. 610 (VII), Korea: reports of the United Nations Commission for the Unification and Rehabilitation of Korea, 3 December 1952; Israel, Manual on the Rules of Warfare, 2006, p. 34; Peru, IHL and Human Rights Manual, 2010, para. 53(f), p. 261; ICRC, Annual Report 1988, ICRC, Geneva, p. 25; Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords (1991), Annex IA, Article IX(1)(e); and United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 1992, p. 520. See also United Kingdom, Joint Doctrine Captured Persons, 2015, p. 12-14, para. 1238, and p. 12-20, para. 1251, and United States, Law of War Manual, 2016, pp. 656–657, para. 9.37.4.2. See also Debuf, pp. 259–260; Sassòli, 2015, pp. 1054–1055; and ICRC, Customary International Humanitarian Law, practice relating to Rule 128, section D, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule128.
72 - For a discussion of the principle of non-refoulement, see the commentary on Article 3, section G.7.
73 - See Droege, p. 671; Gillard, p. 704; and Michaelsen, p. 753.
74 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 547.
75 - See Sassòli, 2015, p. 1054.
76 - See Dinstein, 1984, p. 41.
77 - See Debuf, p. 260.
78 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 548. See also Maia/Kolb/Scalia, p. 534.
79 - See also Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, Cheltenham, 2019, p. 271.
80 - ICRC, Annual Report 1991, ICRC, Geneva, p. 102.
81 - See Sassòli, 2015, p. 1060, para. 50.
82 - See e.g. ICRC, Annual Report 1988, ICRC, Geneva, pp. 25 and 36; ‘Activités Extérieures’, Revue internationale de la Croix-Rouge, Vol. 72, No. 785, October 1990, pp. 476–485, at 483; Annual Report 1991, ICRC, Geneva, pp. 45 and 101; Annual Report 1994, ICRC, Geneva, p. 235; Annual Report 1995, ICRC, Geneva, p. 81; ‘Ecuador/Peru: prisoners of war repatriated’, News release, No. 95/4, 2 March 1995; Annual Report 1999, ICRC, Geneva, pp. 23 and 325; Annual Report 2002, ICRC, Geneva, p. 293; ‘Armenian prisoner of war returns home’, News release, 18 November 2015. See also Germany, Military Manual, 2013, para. 849, which explicitly mentions that ‘repatriation must be carried out in an orderly fashion, if possible following a plan agreed upon by all Parties to the conflict, with the participation and under the supervision of the Protecting Powers and the International Red Cross’.
83 - On propaganda, see also the commentaries on Article 14, paras 1668–1672, and on Article 38, paras 2449–2452.
84 - See Debuf, p. 260.
85 - See e.g. Japan, Act on the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 141, referring to the establishment of the ‘implementing plan of repatriation’ by the authorities.
86 - See fn. 7 of this commentary.
87 - Krähenmann, p. 408, para. 735.
88 - For an illustration, see the proceedings instituted by Pakistan against India before the ICJ; Trial of Pakistani Prisoners of War (Pakistan v. India), May 1973. At the request of Pakistan, the case was discontinued in December 1973.
89 - See e.g. Spain, LOAC Manual, 2007, paras 6.5.b and 8.8.a.(2); Switzerland, Basic Military Manual, 1987, p. 39; and United Kingdom, Joint Doctrine Captured Persons, 2015, pp. 12-18–12-19, para. 1248. See also 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. 139(f).
90 - See e.g. ICRC, ‘Ecuador/Peru: prisoners of war repatriated’, News release, No. 95/4, 2 March 1995.
91 - See e.g. ICRC, Annual Report 1988, ICRC, Geneva, p. 26, and Annual Report 1990, ICRC, Geneva, p. 76.
92 - See section D.
93 - See e.g. United States, Law of War Manual, 2016, pp. 659–660, para. 9.38.2.
94 - See also the commentary on Article 41, section C.
95 - This is particularly apparent in the French text, where the second sentence starts with the phrase ‘[à] cet effet’ (‘[t]o this end’).
96 - See Article 48(4).
97 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 337–338.