Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 22 : Places and conditions of internment
Text of the provision*
(1) Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries.
(2) Prisoners of war interned in unhealthy areas, or where the climate is injurious for them, shall be removed as soon as possible to a more favourable climate.
(3) The Detaining Power shall assemble prisoners of war in camps or camp compounds according to their nationality, language and customs, provided that such prisoners shall not be separated from prisoners of war belonging to the armed forces with which they were serving at the time of their capture, except with their consent.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1973  The places where prisoners of war are interned – possibly for an extended period of time – will have a direct impact on the quality of their lives in captivity and on their physical and mental health. Ensuring that these places meet certain basic requirements is therefore essential to secure humane treatment for prisoners and respect for their persons.[1] Article 22 sets out requirements and prohibitions on the selection of sites on which to establish internment camps and on the types of installations where prisoners of war may be accommodated. It furthermore governs how the prisoners must be assembled. More detailed requirements regarding prisoners’ quarters are contained in Article 25, while Article 29 lays down specific safeguards regarding hygiene.
1974  Article 22 applies to all places where prisoners of war are interned, including permanent transit camps[2] and labour detachments.[3]
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B. Historical background
1975  Several elements of Article 22 were already included in Articles 9 and 10 of the 1929 Geneva Convention on Prisoners of War.[4] In light of the experiences of the Second World War,[5] States negotiating the Third Convention felt it necessary to strengthen the safeguards relating to places of internment of prisoners of war.[6]
1976  Throughout history, including during the Second World War, there have been examples of war captives being interned on board ships, and receiving poor treatment.[7] Addressing this concern, the first element added in Article 22(1) was that prisoners of war may only be interned ‘on land’. Also new in Article 22(1) was the notion that prisoners of war may not in principle be interned in penitentiaries.[8] In the draft convention submitted to the 1948 Stockholm Conference, a provision to this effect was inserted: ‘Except in particular cases which are justified in the interest of prisoners of war themselves, the latter shall not be interned permanently in penitentiaries.’[9] The draft approved by the Conference and submitted to the 1949 Diplomatic Conference was similar, but the word ‘permanently’ was replaced by ‘durably’.[10] Following an objection by the United States, the text ultimately adopted does not allow for any temporal exception to this prohibition.
1977  The rule in Article 22(2) is not new. There are early reports of agreement on the principle that war captives should not, to the extent possible, be interned in unfavourable climatic conditions.[11] The rule was first introduced as a treaty provision in the 1929 Geneva Convention on Prisoners of War.[12] During the Second World War, this principle was generally adhered to by Detaining Powers,[13] which also generally responded to the ICRC’s requests to transfer prisoners to places with a more favourable climate.[14] In 1949, States agreed to restate the rule in almost identical terms but also, following an ICRC proposal, to broaden its scope in two ways. First, Article 22(2) now benefits all prisoners, as opposed to only those ‘coming from temperate climates’.[15] Second, it applies not only to prisoners who have been captured in unhealthy areas but more generally to those interned in such places, therefore also including prisoners transferred to such an area.
1978  The question of how to group or separate prisoners of war arose in the First World War, when soldiers of many different backgrounds all fought on the same battlefields. Detaining Powers had avoided bringing together in the same camp prisoners of war of different races and nationalities, a practice recognized later in the 1929 Geneva Convention on Prisoners of War.[16] During the Second World War, this provision was interpreted contrary to the spirit of the Convention as a few Detaining Powers used it as a pretext to separate prisoners belonging to the same armed forces.[17] An important difference between the 1929 and the 1949 provision is therefore that the former revolved around the idea of separating prisoners, while the latter focuses on the criteria for assembling them. Because of abuses during the Second World War, it was further decided that the term ‘race’ in Article 9, paragraph 3, of the 1929 Convention would be omitted in the new convention.[18] The 1947 Conference of Government Experts recommended rather the addition of a reference to language and customs. The reference to prisoners of the same armed forces being interned together was added during the 1949 Diplomatic Conference following an amendment by the United Kingdom.[19]
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C. Paragraph 1: Location and type of internment installations
1979  Article 22(1) deals with the places in which prisoners of war may be interned. It specifies that the internment premises must be located on land and that they must afford every guarantee of hygiene and healthfulness. It further provides that prisoners of war may only be interned in penitentiaries in particular cases which are justified by the interest of the prisoners.
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1. First sentence: Location and condition of the premises
a. Type of installations: ‘premises’
1980  The term ‘premises’ refers to the places where prisoners of war are housed. Previous international instruments provided a list of types of locations and premises in which a Detaining Power was allowed to intern prisoners of war. The 1899 and 1907 Hague Regulations referred to ‘a town, fortress [or] camp’, plus ‘any other locality’ and ‘other place’ respectively.[20] These last references, in particular, meant that a Detaining Power had considerable liberty in deciding where to house its prisoners of war. Similarly, the 1929 Convention provided that prisoners of war could be interned in ‘a town, fortress or other place’ or in ‘fenced camps’.[21] It further stated that prisoners were to be lodged in ‘buildings or huts’.[22]
1981  During the preparatory work for the 1949 Convention, the ICRC pointed out that the enumeration in Article 9, paragraph 1, of the 1929 Convention was ‘neither logical nor useful’ as it raised questions regarding the type of installations that were permissible as well as the geographical location of such installations.[23] The ICRC thus suggested simply using the broad term ‘premises’ instead.[24] The 1947 Conference of Government Experts agreed with the ICRC’s view and recommended that ‘[t]he enumeration of places of internment should be more fully worded, so as to include the largest number of possibilities, and in particular, camps under canvas, which are very widely employed’.[25] In the draft then submitted to the 1948 Stockholm Conference, the word ‘premises’ was changed to ‘establishments’, along with the caveat that this ‘must be understood in its widest sense’.[26] In the draft conventions adopted at the Conference the wording was changed back to ‘premises’.[27] The use of the term was accepted at the 1949 Diplomatic Conference without discussion.
1982  The Detaining Power may house prisoners of war in purpose-built premises, but it may also use existing installations, provided that they meet all the requirements of the Convention. The only type of premises that are in principle excluded are penitentiaries.[28] In armed conflicts since 1949, the ICRC has witnessed that prisoners of war have often been interned in installations that were not designed for that purpose. For example, premises thus used included a converted military base, an officers’ training school, tents, a converted stadium, hospitals and a university. Privately owned facilities have also been converted to accommodate prisoners of war.[29] Examples reported from the Second World War include castles, schools, convents and orphanages.[30] Some of these premises are clearly better suited for housing prisoners of war than others, and thus for ensuring compliance with the Convention. Buildings that are used by and necessary for the civilian population, such as schools[31] and hospitals[32], should not be used for internment.
1983  Establishing suitable accommodation which meets the standards set by the Convention requires infrastructure, equipment, logistics, trained staff, a budget and operating procedures, among other things. The obligation of the Detaining Power to house prisoners of war only in premises that meet these standards means that it must plan for and conduct training in the taking and keeping of prisoners of war. Before prisoners of war fall into its hands, and ideally even in peacetime, the Detaining Power must therefore foresee the type of premises in which it could intern prisoners of war.[33]
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b. Internment on land
1984  Article 22(1) requires that prisoners of war be interned in premises ‘located on land’. This means that internment on ships is prohibited. The 1960 ICRC Commentary stated that ‘[t]he use of boats, rafts or “pontoons” is therefore absolutely forbidden’.[34] This statement requires some nuance. The purpose of this provision is ‘to avoid the permanent off-shore confinement of prisoners in warships which do not guarantee appropriate conditions of treatment and control over the correct application of [international humanitarian law]’.[35] Internment of prisoners aboard ships would render access to essential services more difficult. Moreover, the right of delegates of the Protecting Power, if one is appointed, and of the ICRC to visit prisoners of war pursuant to Article 126 is made substantially more difficult. It may also prove more difficult to guarantee the minimum requirements set by the Convention in terms of, for example, hygiene and space for recreational and physical activities.
1985  However, there are cases where it is not prohibited to temporarily hold prisoners of war on ships. For example, Article 22(1) does not prohibit it if the prisoners are being evacuated after falling into the power of the enemy at sea.[36] Article 16 of the Second Convention explicitly permits a Detaining Power, when it is expedient, to ‘hold’ wounded, sick or shipwrecked prisoners of war on ships, but only as a temporary measure, pending transfer to land.[37] Depending on the circumstances of the evacuation, it may also be that the prisoners will have to pass through a temporary transit camp set up on a ship. If this is the case, their stay on such a ship must be ‘as brief as possible’.[38] That said, the Detaining Power may not use ships as permanent transit or screening camps. Article 24 requires that such camps be fitted out under conditions which are similar to those described in Part III, section II of the Convention, of which Article 22 forms part. Therefore, such camps must be located on land. In exceptional circumstances, when it is impossible to guarantee the safety and health of prisoners of war in premises on land, and until a suitable other solution is found, temporarily holding prisoners of war on ships may be permissible.[39]
1986  Article 22(1) also does not prohibit the use of ships as a mode of transport when prisoners of war are transferred from one facility to another, or when they are repatriated.[40] However, the Detaining Power may only decide to use ships having taken into account the interest of the prisoners being thus transported.[41]
1987  The requirement to intern prisoners of war ‘on land’ also prohibits the potential internment of prisoners in outer space.
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c. Guarantees of hygiene and healthfulness
1988  The first sentence of Article 22(1) further requires that the premises in which prisoners of war are interned afford ‘every guarantee of hygiene and healthfulness’. This provision must be read in conjunction with Article 29, which contains more detailed obligations on the Detaining Power with respect to hygiene. However, whereas Article 29 deals with measures to be taken within a camp, Article 22(1) provides more broadly that the premises in which prisoners are interned must themselves guarantee a hygienic and healthy environment. This relates both to the buildings themselves and their geographical location.[42]
1989  With regard to the premises themselves, the fact that they must afford every guarantee of hygiene and healthfulness implies that no dangerous substances which may affect the health of the prisoners may be used in their construction. It also means that the Detaining Power must properly maintain the premises in which prisoners of war are housed.
1990  Characteristics which may have an impact on whether a place is suitable for the housing of prisoners include climatic conditions, access to essential services, surrounding fauna and flora, and the presence of dangerous installations in the vicinity. Examples of violations of this provision include: constructing a camp in a locality where essential resources such as water are not available and there is no reasonable guarantee of supply of such resources by other means[43] and constructing a camp in an area that has been chemically contaminated.[44]
1991  Some natural risks posed by a given location may be overcome by mitigating measures. For example, in extreme climates, a Detaining Power can provide protection against the heat or cold instead of moving prisoners of war to more a moderate climate. As another example, during the conflict between India and Pakistan in the early 1970s prisoners were interned in a farming region plagued by mosquitos; to counter the problem, Pakistan provided the prisoners with mosquito sprays.
1992  Article 22 requires ‘every guarantee’ of hygiene and healthfulness. This means that if the Detaining Power is unable to guarantee hygiene and healthfulness in certain premises or in a certain area, it must house the prisoners elsewhere. This is in line with Article 22(2).
1993  The Detaining Power is required to take measures prior to interning prisoners of war to ensure that appropriate premises that guarantee hygiene and healthfulness are available from the outset. The Eritrea-Ethiopia Claims Commission pointed out a lack of preparation in this regard when it found Eritrea in violation of its obligation under Article 22(1).[45]
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2. Second sentence: No internment in penitentiaries
1994  The second sentence of Article 22(1) provides that penitentiaries must in principle not be used to intern prisoners of war but allows for an exception when it is ‘justified by the interest of the prisoners themselves’.
1995  There are two reasons for the prohibition on interning prisoners of war in penitentiaries. The first relates to the differing nature and purpose of the internment of prisoners of war and detention under criminal law. The latter seeks to punish the convicted person, often involving a restriction of liberty of movement that goes beyond that which is provided for in Article 21(1) for prisoners of war.[46] Penitentiaries are usually constructed and run with that purpose in mind. Often there are cells, and prisoners cannot move freely within the facility; individual cell doors may be locked; and the detainees have to follow a daily schedule decided for them. Internment of prisoners of war, on the other hand, is not a punishment but a preventive measure, designed to stop the prisoners from participating again in hostilities against the Detaining Power.[47] A penitentiary structure is therefore in principle not appropriate for the internment of prisoners of war.
1996  Second, housing prisoners of war with persons convicted of a criminal offence might compromise the security of the prisoners of war. For example, against the background of the Ogaden conflict between Ethiopia and Somalia in the late 1970s, Somali prisoners of war were held in a prison with criminal detainees. A fight between the two groups resulted in two deaths and 21 prisoners of war injured. The ICRC asked for an investigation to be conducted, in line with Article 121, and for the prisoners of war to be separated from the criminal detainees.[48] Especially in the case of an international armed conflict, there are risks of violence, intimidation or discrimination against prisoners of war in penitentiaries housing ordinary convicts, since the prisoners of war are usually foreigners belonging to the armed forces of a State with which the Detaining Power is in conflict.[49]
1997  This raises the question whether a Detaining Power can house prisoners of war in former penitentiaries that are no longer used for that purpose. While this takes away the security concerns mentioned above, the building as such may still not be suitable for prisoners of war. Therefore, before a Detaining Power may house prisoners of war in a building that was formerly used as a penitentiary, it must make sufficient adjustments to ensure that the building fulfils the conditions laid down in the Convention.[50]
1998  The prohibition on holding prisoners of war in penitentiaries also applies to prisoners serving a disciplinary sentence[51] and prisoners in pretrial confinement.[52] However, there is no such unequivocal prohibition for prisoners of war serving a sentence following a criminal conviction. In that case, Article 108(1) provides that they must serve their sentences in the same establishments and under the same conditions as members of the armed forces of the Detaining Power. In such cases, the security threats described above (para. 1996) may still exist, and the Detaining Power must take sufficient measures to protect the prisoners of war thus incarcerated.
1999  Article 22(1) provides for one exception to the prohibition on interning prisoners of war in penitentiaries, i.e. ‘in particular cases which are justified by the interest of the prisoners themselves’. This formulation is rather broad and could cover a range of scenarios. The Detaining Power must apply this exception in good faith and not use it to circumvent the general prohibition or other requirements set down by the Convention for the housing of prisoners of war. An example of a case in which internment in a penitentiary facility may be in the interest of prisoners of war is when the Detaining Power has only one or a very small number of prisoners in its hands and housing them separately, sometimes for a prolonged period, may lead to their social isolation. Provided that the Detaining Power does all in its power to mitigate the risks for the prisoners’ safety, lodging them in a penitentiary may in this case be in the prisoners’ interest. The prisoners of war must then be allowed to enjoy as much freedom of movement as is feasible within the facility.
2000  Importantly, if prisoners of war are interned in a penitentiary, they do not lose any of the rights afforded them by the Convention, and their regime may not be merged with that of the criminal detainees. This means, for example, that the prisoners of war may not be held in close confinement, except as part of disciplinary punishment or where necessary to safeguard their health, and then only for the duration of those necessitating circumstances.[53]
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D. Paragraph 2: Removal from unhealthy areas or an injurious climate
2001  Article 22(2) requires the Detaining Power to move prisoners of war who are interned in unhealthy areas or in areas where the climate is injurious for them to a more favourable climate.[54] Whether an area is ‘unhealthy’ or the climate ‘injurious’ must be assessed both in general terms and in relation to individual prisoners. The climate may be unsuitable for the internment of prisoners because, for example, of altitude or extreme cold, heat, dryness or humidity. What constitutes ‘injurious’ will depend on the prisoners’ place of origin and the climate they are accustomed to.[55] An area can also by definition be unhealthy. This could, for example, be the case when the population is suffering from an epidemic that risks also infecting the prisoners, or when the area is infested with insects or animals posing a health risk. The Detaining Power must also make an assessment in relation to individual prisoners of war. The state of health of a prisoner,[56] such as being predisposed to a certain disease, may, for example, mean that a certain climate is ‘unhealthy’ for that prisoner.
2002  When an area is unhealthy or a climate injurious, the Detaining Power must move the prisoners to a more favourable climate.[57] Article 22(2) does not require the Detaining Power to intern prisoners of war in ‘the most favourable’ climate. The obligation is only triggered when an area is unhealthy or a climate injurious.[58] If the Detaining Power finds itself in a situation where keeping prisoners of war in a certain place of internment would violate this provision, it has two options. It must either take measures to mitigate the effects of a certain area or climate to the extent that it would no longer be unhealthy or injurious or it can find another location to which it can move the prisoners.[59]
2003  The use of the phrase ‘as soon as possible’ acknowledges that not all transfers to a more favourable climate can be immediate. Any delay, however, must be as short as possible and the Detaining Power must begin removing prisoners of war from an unhealthy or injurious area as soon as the situation on the ground permits. This allows the Detaining Power to take into account operational contingencies. It must further consider the prisoners’ state of health when making the assessment of whether to begin the transfer. In the meantime and while the prisoners remain in the unhealthy or injurious area, the Detaining Power should do all in its power to mitigate the risks and effects the prisoners may be exposed to. In addition, the transfer to the new location must fulfil all the requirements of Articles 46–48.
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E. Paragraph 3: Assembling of prisoners of war
2004  How prisoners of war are assembled has an impact on their morale and mental health. Assembling prisoners of war in accordance with Article 22(3) may also facilitate compliance with other provisions of the Convention. For example, the dietary needs and religious habits of prisoners of war of the same nationality will more likely be similar than if prisoners of war of different backgrounds are arbitrarily assembled.
2005  Article 22(3) gives the Detaining Power an obligation to keep certain groups of prisoners together but does not require it to keep certain groups separate. Provided that all prisoners continue to receive equal treatment pursuant to Article 16, the Detaining Power may, however, still choose to separate certain groups of prisoners. This will depend on a variety of factors, including the resources and space available, possible tensions between different groups of prisoners and the concomitant security concerns of housing them together, and the number of prisoners of war.[60]
2006  Article 22(3) provides two sets of criteria for how the Detaining Power must assemble its prisoners of war. First, prisoners of war must be housed with other prisoners who, at the moment they fell into the power of the enemy,[61] were dependent on the same Power. Prisoners may only be separated from other prisoners belonging to the same Power if they consent. Such consent must be free; prisoners of war may not be coerced into agreeing and the Detaining Power must be aware that the environment of deprivation of liberty impacts on how freely persons can give their consent.[62] Second, provided that they are not separated from prisoners belonging to the same armed forces, prisoners must be assembled according to their nationality, language and customs.
2007  The nationality criterion must be complied with even if the State to which the prisoner claims allegiance has ceased to exist in the course of the conflict. In the case of dual nationality, the nationality of the State on which the prisoner depends, if that is one of the nationalities, should be decisive. Stateless prisoners of war should be interned with prisoners of war who depend on the same Power, in accordance with the second part of Article 22(3). The same procedure should also be followed in case of any doubt as to nationality. Pursuant to Article 17(1), however, when questioned, prisoners of war are not required to declare their nationality. If they choose not to, their nationality will be taken as being that of the Power on which they depend.[63]
2008  Language does not refer only to a prisoner’s native language. It includes any language that the prisoner is able to speak or understand without difficulty. The purpose of the present provision is to enable prisoners of war to converse among themselves, as well as to facilitate the administration of the camps or sections of camps in which the prisoners are assembled. Housing together prisoners who speak a common language will, for example, make it easier to apply Article 41(1), which requires the Detaining Power to post the text of the Convention in the prisoners’ own language. The language criterion also applies within groups of prisoners of the same nationality since the population of some States is made up of different language groups. However, if the prisoners are part of the same armed forces, they are more likely to have a language in common. The ICRC has witnessed in the past how important it is for prisoners’ mental well-being to be able to talk to fellow captives in their native language.
2009  It is essential for the good administration of prisoner-of-war camps that there be some consistency of customs among the prisoners, particularly with regard to food, quarters, clothing, hygiene and religious services. It is the customs of prisoners in general that are to be considered, not those of individual prisoners.[64]
2010  Article 22(3) refers to assembling prisoners of war in ‘camps or camp compounds’. It does not require the Detaining Power to establish a camp dedicated exclusively to lodging prisoners of a certain group. It includes the reference to ‘camp compounds’ because it is accepted practice to house different groups of prisoners within one camp, but in different quarters.[65] In fact, in some cases the Detaining Power must keep prisoners in a single camp. Especially when it only has a small number of prisoners of war, separating them based on the criteria in Article 22(3) could lead to unfavourable conditions, such as isolation and loss of social contact, which may have severe consequences for the prisoners’ physical and mental health. In such cases, and provided that there are no security concerns preventing it,[66] prisoners of war from different groups must be kept together.
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Select bibliography
Bretonnière, Maurice, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, pp. 83 and 90–92.
Fooks, Herbert C., Prisoners of War, Stowell Printing Co., Federalsburg, Maryland, 1924, pp. 146–152.
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, 2013, Oxford University Press, pp. 359–411, at 394.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 120–123.
Noone, Gregory P. et al., ‘Prisoners of War in the 21st Century: Issues in Modern Warfare’, Naval Law Review, Vol. 50, 2004, pp. 1–69.
Sanna, Silvia, ‘Treatment of Prisoners of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 977–1012, at 986 and 995–999.

1 - See Articles 13 and 14.
2 - See Article 24.
3 - See Article 56.
4 - See also Article 5 of the 1899 and 1907 Hague Regulations, which were the first international treaty provisions regulating where prisoners of war may be interned.
5 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 253.
6 - Article 22 was mostly shaped during the Conference of Government Experts in 1947 and the 17th International Conference of the Red Cross in Stockholm in 1948. The draft adopted at the latter is thus almost identical to the final text, except for the provision relating to the assembling of prisoners of war, which was adopted at the 14th plenary meeting of the Diplomatic Conference in 1949; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 281–282.
7 - There were reports of prisoners of war being interned in poor conditions at sea during the 1775–1783 American War of Independence, the 1803–1815 Napoleonic Wars and the 1899–1902 Boer War; see Fooks, pp. 147–152. See also Sanna, p. 996, and Cheah Wui Ling, ‘Post-World War II British “hell-ship” trials in Singapore: Omissions and the attribution of responsibility’, Journal of International Criminal Justice, Vol. 8, No. 4, 2010, pp. 1035–1058, discussing the treatment of prisoners of war aboard Japanese ships during the Second World War. See also Noone, pp. 21–22. During the preparatory work for the Third Convention, the ICRC submitted that ‘[t]he use of ships for internment of [prisoners of war] should … be explicitly prohibited’; Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, p. 30.
8 - The ICRC also raised this issue during the preparatory work for the Third Convention, based on experiences in the Second World War; see Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, p. 30, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 253.
9 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 20, p. 66.
10 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 20, p. 60.
11 - In the Treaty of Friendship and Commerce of 10 September 1785, the United States and Prussia agreed not to transport their prisoners of war into foreign and rigorous climates, or to the East Indies, Asia or Africa, but to send them to ‘healthy’ localities in Europe or America; see Fooks, p. 146. During the 1899–1902 Boer War, members of the British Parliament, the Boer Government and the United States acting as Protecting Power protested against the transport of Boer prisoners to India, St. Helena and Ceylon, on the basis that the climate in those places was allegedly unhealthy. Similarly, during the First World War the German Government protested against the transfer of prisoners of war captured in Europe to Algeria and Morocco; see Levie, p. 121.
12 - Geneva Convention on Prisoners of War (1929), Article 9(2).
13 - For instance, Germany generally agreed to France’s request to move prisoners of war coming from the colonies to a warmer climate; see Bretonnière, p. 83.
14 - Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, pp. 30–31.
15 - The government experts in 1947 noted: ‘The ICRC had shown that, following the extension of the war to all parts of the world, a climate suitable for PW from temperate regions would not necessarily be bearable for PW from other areas, especially from the tropics. This view, shared by various Delegations, was approved; it led the meeting to replace the words “to persons coming from temperate climates” by “to them”.’; Report of the Conference of Government Experts of 1947, pp. 130–131.
16 - Geneva Convention on Prisoners of War (1929), Article 9(3); Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 184. For further discussion of the legal history of racial segregation of prisoners of war in contemporary humanitarian law, see Timothy L. Schroer, ‘The Emergence and Early Demise of Codified Racial Segregation of Prisoners of War under the Geneva Conventions of 1929 and 1949’, Journal of the History of International Law, Vol. 15, No. 1, 2013, pp. 53–76.
17 - Report of the Conference of Government Experts of 1947, pp. 131–132. See also Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, p. 32; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 347; and Bretonnière, pp. 91–92.
18 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 253.
19 - Ibid. pp. 253–254, 347 and 353–354.
20 - Hague Regulations (1899), Article 5, and Hague Regulations (1907), Article 5.
21 - Geneva Convention on Prisoners of War (1929), Article 9, para. 1.
22 - Ibid. Article 10, para. 1.
23 - Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, p. 29.
24 - Ibid. p. 30.
25 - Report of the Conference of Government Experts of 1947, pp. 129–130.
26 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 66–67.
27 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 60.
28 - For a further discussion, see the commentary on Article 22, section C.2.
29 - John Brown Mason, ‘German Prisoners of War in the United States’, American Journal of International Law, Vol. 39, No. 2, 1945, pp. 198–215, at 206.
30 - Adrian Gilbert, POW: Allied Prisoners in Europe, 1939–1945, John Murray, London, 2006, p. 69.
31 - See Safe Schools Declaration, May 2015, which includes the commitment of endorsing States to implement the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, developed between 2012 and 2014 and proposing a set of actions that Parties to a conflict can take to reduce the military use of schools and universities. See also the ICRC’s Position on the Safe Schools Declaration and Guidelines, 18 December 2018.
32 - Regarding not using hospitals as internment facilities, this is notwithstanding the possibility that prisoners of war suffering from certain medical conditions may be accommodated in civilian hospitals; see Article 30(2).
33 - For a further discussion, see Introduction, section A.3.g.
34 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 182.
35 - Sanna, p. 996.
36 - See the commentaries on Article 19, para. 1879, and on Article 20, para. 1894. See also Article 16 of the Second Convention.
37 - See the commentary on Article 16 of the Second Convention, para. 1579.
38 - See Article 20(3).
39 - For example, during the 1982 Falkland/Malvinas Islands conflict, the United Kingdom and Argentina agreed to the temporary internment of prisoners of war on ships as there was nowhere suitable to hold all the prisoners of war on the Falkland/Malvinas Islands and the intention was to repatriate them as quickly as possible; see Noone, pp. 27–28. For further examples of prisoners of war temporarily being held on ships, see ibid. pp. 19–21. See also United States, Naval Handbook, 2017, p. 11-3, para. 11.3.5, and Law of War Manual, 2016, p. 559, para. 9.10.4.
40 - See e.g. United States, Law of War Manual, 2016, p. 559, paras 9.10.4 and 9.11.3.1, and Naval Handbook, 2017, p. 11-3, para. 11.3.5(2); and United Kingdom, Joint Doctrine Captured Persons, 2015, p. 8A-4.
41 - Article 46(1).
42 - But see Krähenmann, p. 294, para. 718, and Sanna, p. 996, who consider that Article 22 only refers to a camp’s geographical location.
43 - Krähenmann, p. 394, para. 718, and Sanna, p. 996.
44 - Krähenmann, p. 394, para. 718.
45 - Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 98. Indeed, Nafka presents a disturbing picture of the inadequate efforts [by Eritrea] to prepare in advance for the health conditions of prisoners. … The isolated, rugged terrain there includes underground caves. … The preparations for reception of prisoners appear to have been inadequate. … This evidence … suggests a serious failure to meet the basic obligation of Geneva Convention III to provide at the outset ‘premises … affording every guarantee of hygiene and healthfulness.
46 - See also the commentary on Article 21, paras 1933–1934.
47 - Ibid. Although the prohibition on interning prisoners of war in penitentiaries was not included in the 1929 Convention, this understanding was already recognized in doctrine before that Convention was adopted. See Fooks, p. 147, who wrote: ‘Jails and penitentiaries are constructed for places of confinement for persons who violate the common or civil law. These and similar places are not proper places for prisoners of war for they have served honorably for their country and should not be confined as criminals.’ See also Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 24, which provides that ‘[p]risoners of war shall not be quartered … as criminals except as punishment for crime of which they have been convicted by due process of law’.
48 - ICRC, Annual Report 1984, ICRC, Geneva, p. 16.
49 - With regard to such risks for prisoners of war who have been sentenced for a criminal offence, see also the commentary on Article 108, para. 4203.
50 - See e.g. Peru, IHL Manual, 2004, para. 40(c): ‘There would be no objection to the use of a former jail as long as all the regular prisoners had been transferred elsewhere and it met the requirements laid down for prisoner-of-war camps.’ For an example during the Second World War, 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. 248. See also Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, p. 30.
51 - Article 97(1).
52 - See Article 103(3), which states that Article 97 applies also to prisoners who are confined while awaiting trial.
53 - Article 21(1).
54 - See also Article 46(2), which requires that, when transferring prisoners of war, account must be taken of the climatic conditions to which the prisoners are accustomed.
55 - See Véronique Harouel-Bureloup, Traité de droit humanitaire, Presses Universitaires de France, Paris, 2005, p. 323.
56 - See ibid.
57 - It has been contended that this obligation is ‘unrealistic’ as many other factors also play a role in determining where to intern prisoners of war; see Rup C. Hingorani, Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982, pp. 89–90.
58 - See Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 183, and Levie, pp. 122–123.
59 - See also the commentary on Article 29, para. 2192.
60 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, pp. 158–159, para. 8.38 (‘Provided that the standards of the Convention are met, segregation of officers from other ranks and for security reasons is permissible.’); United Kingdom, Joint Doctrine Captured Persons, 2015, p. 7-14, para. 732 (‘Irrespective of the category into which they fall, our Armed Forces should segregate a [captured person] who displays leadership influence, which could lead to security issues being encountered.’); United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 2-2(b)(2) (‘EPW [enemy prisoners of war] will be segregated into categories of officer, non-commissioned officer, enlisted, male, female, nationality, recognized ethnic groups, deserters or any other category that the senior officer or NCO having custody of the prisoners designate to ensure the security, health and welfare of the prisoners.’), and Law of War Manual, 2016, p. 566, para. 9.12.1.1 (‘In addition to nationality, language, and customs, the Detaining Power may segregate POWs along the basis of other criteria to advance legitimate interests, such as maintaining order in camps … . For example, it may be appropriate to segregate POWs on the basis of political opinion. … POWs may be segregated according to their known or suspected security risk level.). See also the commentary on Article 38, para. 2453.
61 - Article 22(3) refers to the time of ‘capture’ of prisoners of war. This article, however, also applies to prisoners of war who otherwise fall into the power of the enemy. For a discussion of the meaning of ‘fallen into the power of the enemy’, see the commentary on Article 4, section C.1. See also Sanna, p. 980.
62 - See Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, para. 84, in which it held Ethiopia liable for having segregated Eritrean prisoners of war without their consent in order to promote defections and to break down internal discipline and cohesion. See also Sanna, p. 986.
63 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 184.
64 - See also the commentary on Article 25, para. 2077.
65 - This was explained by Belgium in its observations on the draft convention to be submitted to the 1929 Diplomatic Conference; see Proposals and Observations of Governments on the 1929 Draft Convention on Prisoners of War, Article 9, p. 10. Practice during the Second World War called for the specification in the current provision. See Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, pp. 31–32: [F]or various reasons, mainly practical, it frequently happened that PoW of different races or nationalities were not placed in separate camps, but simply segregated inside the camps and quartered in different sections. This practice, which was at least in agreement with the spirit of [Article 9, paragraph 3, of the 1929 Geneva Convention on Prisoners of war], aroused no objections from the Powers concerned, and should therefore be embodied explicitly in the revised Convention. See also Bretonnière, p. 90.
66 - For example, the security of prisoners who have deserted may be at risk when they are lodged with prisoners belonging to the same Power. Separating such prisoners may thus be advisable. See e.g. United States, Law of War Manual, 2016, p. 566, para. 9.12.1.1.