Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 19 : Evacuation of prisoners
Text of the provision
(1) Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.
(2) Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept back in a danger zone.
(3) Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.
Reservations or declarations
None
Contents

A. Introduction
1865  A Detaining Power is responsible for the well-being of its prisoners of war from the moment they fall into its power.[1] This includes not only refraining from prohibited acts, but also protecting the prisoners’ lives and well-being. The obligation laid down in Article 19(1) to evacuate prisoners of war from the battlefield as soon as possible after they have fallen into the power of the enemy is an element of this duty.[2] Evacuation aims to ensure that the prisoners are placed out of danger and facilitates the implementation of other protections, such as those provided for in Article 13. In line with this purpose, Article 19(2) allows for an exception to prompt evacuation: wounded or sick prisoners of war who, because of their condition, would be at greater risk by being evacuated than by staying where they are, may temporarily be kept back in the danger zone.
1866  Article 19(3) prohibits unnecessarily exposing prisoners of war to danger while awaiting their evacuation from a fighting zone.[3] This includes situations in which a Detaining Power might decide to hold prisoners of war in transit camps for an extended period of time instead of evacuating them as rapidly as the situation permits. In this sense, Article 19 finds parallels with Article 23(1), which provides that prisoners of war may not be detained in areas where they may be exposed to the fire of the combat zone.
1867  Article 19 should be read together with Article 20 on conditions of evacuation.[4]
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B. Historical background
1868  Article 19 corresponds closely to the first three paragraphs of Article 7 of the 1929 Geneva Convention on Prisoners of War. That article had an additional fourth paragraph, which provided that ‘[t]he evacuation of prisoners on foot shall in normal circumstances be effected by stages of not more than 20 kilometres per day, unless the necessity for reaching water and food depôts requires longer stages’. This paragraph was not retained. Instead, the Conference of Government Experts in 1947 thought it preferable to devote a separate, new article (now Article 20) to the specifics of evacuation, such as the necessity of providing the prisoners with food, water, clothing, etc. and of ensuring that the evacuation is effected in conditions similar to those of the Detaining Power’s own forces when changing stations.[5] The spirit of Article 20 already encompasses a limit on long foot marches,[6] as they may in some situations be considered inhumane. As a result, the paragraph specifying the maximum distance that prisoners of war may be obliged to cover daily on foot was deleted from Article 19. The drafts submitted to and adopted by the 17th International Conference of the Red Cross in Stockholm in 1948 maintained this approach,[7] and Article 19 was subsequently adopted unanimously by the 1949 Diplomatic Conference without much discussion.[8]
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C. Paragraph 1: Evacuation from the combat zone
1869  Article 19(1) lays down the principle that prisoners of war must be evacuated as soon as possible from the combat zone where they have fallen into the power of the enemy, so that they are protected from the effects of military operations. ‘Combat zone’ is the term used in paragraph 1, while paragraph 2 speaks of the ‘danger zone’ and paragraph 3 of the ‘fighting zone’. The notions ‘combat zone’ and ‘fighting zone’ have the same meaning;[9] they refer to the area where the prisoners of war have fallen into the power of the enemy and where hostilities are taking place.[10] The term ‘danger zone’ is broader and could be everywhere. It covers the entire area in which dangers inherent to military operations present themselves.[11] In some contemporary armed conflicts, the entire territory controlled by one Party may fall under this term, due to the risk of air and missile attacks. In such situations, Article 19(2) covers at least the area of military ground operations and the tactical measures supporting them from the air and the sea.
1870  Article 19 uses the phrase ‘after their capture’ rather than ‘after they have fallen into the power of the enemy’. In the draft submitted to the 1948 Stockholm Conference, the ICRC opted not to use the word ‘capture’ because of its narrow scope, not including ‘members of forces falling into the power of the enemy without fighting, for instance as the result of a surrender’;[12] instead, it used the words ‘after they are taken’.[13] Seemingly without discussion during the Conference, this was changed back to ‘after their capture’ in the draft convention adopted by the Conference.[14] However, in light of the purpose of the provision, which is to ensure that prisoners of war who are under the jurisdiction of the Detaining Power are brought to a place of safety, Article 19 should be interpreted as covering not only prisoners of war who have been captured but also those who have otherwise fallen into the power of the enemy.[15]
1871  Once fallen into enemy hands, a prisoner of war is hors de combat and must at all times be treated humanely, in accordance with the general rule contained in Article 13(1).[16] If there is doubt regarding the legal status of persons who have fallen into the power of the enemy after participating in hostilities, they must be treated as prisoners of war until their status has been determined by a competent tribunal.[17] Such a determination is not always possible near the combat zone and at the moment of capture; in such cases, the prisoner is equally entitled to be promptly evacuated.
1872  The use of the wording ‘as soon as possible’ acknowledges that not all evacuations can be immediate. Any delay, however, must be as short as possible, and the Detaining Power must organize and begin evacuations as rapidly as the situation permits.[18] For example, it may happen that the units that have taken prisoners do not have the means to evacuate prisoners to the rear. It could also happen that there are no secured roads so that evacuation could actually endanger the prisoners of war. In such situations, some time will inevitably elapse between the time the prisoners have fallen into the power of the enemy and evacuation. The Detaining Power is, however, not relieved of its obligation under Article 19(3) to take all measures within its power for the protection of prisoners of war while awaiting evacuation.
1873  Prisoners of war may not be held in a combat zone by front-line units solely for purposes of interrogation, although there is no provision in the Convention which forbids interrogation at the point of capture.[19] Preliminary questioning may be conducted while arrangements for transportation and guards are being made and other details of the evacuation taken care of.[20] As soon as these arrangements are made, the evacuation must begin and may not be delayed for the purpose of continuing or completing interrogations.
1874  Prisoners of war must be evacuated to camps situated in an area far enough from the combat zone for them to be ‘out of danger’. The distance between the combat zone and an area where prisoners can be considered ‘out of danger’ is necessarily context-dependent and will in particular relate to the stability of the front line and other military developments. Considering the growing availability and employment of, for example, aerial and missile attacks, it may be very difficult to evacuate prisoners to a place that is completely safe. Article 23(2) foresees these situations and provides that prisoners of war must have access to shelters protecting them from air bombardment and other hazards of war to the same extent as the local civilian population.[21] Provided that prisoners have such access, an area that is within range of potential air and missile attacks could still be considered ‘out of danger’ for the purpose of Article 19(1).
1875  ‘Out of danger’ should not be interpreted narrowly as covering only the dangers of the specific combat situation in which the prisoners fell into enemy hands. It also means that the Detaining Power may not evacuate them to areas located close to other combat situations or near military objectives where they would be at risk of incidental harm.[22]
1876  According to Article 41(3) of Additional Protocol I, when persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under unusual conditions of combat that prevent their evacuation pursuant to Articles 19 and 20 of the present Convention, the Detaining Power must release them. Such release must take place even if this would mean that the prisoners can rejoin their own armed forces.[23] For example, if a long-range patrol captures prisoners but is unable to evacuate them, it is obliged to release them pursuant to the Protocol.[24] Article 41(3) further requires the Detaining Power to take all feasible precautions to ensure the prisoners’ safety after their release.[25]
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D. Paragraph 2: Evacuation of the wounded and sick
1877  While prisoners of war in good health must be evacuated as soon as possible after falling into enemy hands, wounded or sick prisoners may be kept in a danger zone if evacuation would endanger them more than would remaining where they are.[26] The assessment as to which of the two options will expose the prisoners to greater danger should, where possible, be made by medical staff. Wounded or sick prisoners may only be kept back ‘temporarily’. This implies that as soon as it is considered that evacuation is the safer option and the wounded or sick prisoners are transportable, they must be promptly evacuated.
1878  This provision reflects the Convention’s concern for the best interests of prisoners of war. During the time that wounded and sick prisoners cannot be evacuated because it would put them at greater risk than if they remain where they are, the Detaining Power is, of course, not relieved of its obligations towards this category of prisoners of war. In this connection, Articles 12 and 15 of the First Convention on medical care, search and collection and protection against pillage and ill-treatment are relevant. It can happen that it is not possible to evacuate the wounded or sick prisoners of war in humane conditions, nor keep them out of danger where they are, while providing them with the medical care they require. According to Article 41(3) of Additional Protocol I, such prisoners must be released. Article 12(5) of the First Convention requires that as far as military considerations permit, the Detaining Power must leave with them a part of its medical personnel and material to assist in their care.
1879  With regard to the evacuation of persons captured at sea, Article 16 of the Second Convention determines that the wounded, sick and shipwrecked who fall into enemy hands are prisoners of war and that ‘the provisions of international law concerning prisoners of war shall apply to them’. This includes Article 19 of the Third Convention. However, it only applies to the extent that Article 16 of the Second Convention does not provide more specific rules for the evacuation of prisoners of war at sea. That article gives the Detaining Power four options: to hold the prisoners of war, or to convey them to a port in its own country, to a neutral port or to a port in enemy territory. Thus, while Article 19 of the Third Convention requires the Detaining Power to evacuate prisoners of war who have fallen into its power at sea as soon as possible, pursuant to Article 16 of the Second Convention, this does not necessarily have to be to a prisoner-of-war camp.[27]
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E. Paragraph 3: Measures of protection
1880  Whether the prisoners of war concerned are wounded, sick or in good health, the Detaining Power must ensure that they are not unnecessarily exposed to danger while awaiting evacuation. The practical steps to be taken during this period will depend on the means available to the units which captured the prisoners, but prisoners of war would in any case be ‘unnecessarily exposed’ if they came under enemy fire when the Detaining Power was aware of this specific risk and it would have been possible to provide the prisoners with shelter. In this connection, Article 23(1) is relevant as it forbids combatant units from using prisoners of war as shields to protect themselves from enemy fire.
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Select bibliography
Glod, Stanley J. and Smith, Lawrence J., ‘Interrogation Under the 1949 Prisoners of War Convention’, Military Law Review, Vol. 21, July 1963, pp. 145–156.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982.
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411, at 386–388.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 98–104.
Okimoto, Keiichiro, ‘Evacuation and Transfer of Prisoners of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 957–976.

1 - See Article 5(1).
2 - Krähenmann, p. 387, para. 713.1.
3 - It would, moreover, be a violation of Article 23, which more specifically prohibits the use of prisoners of war to shield certain areas from military operations.
4 - Articles 19 and 20 are closely related to, but should be distinguished from, Articles 46–48, which deal with the transfer of prisoners of war. While the former articles apply to the evacuation of prisoners of war from the combat zone to a safe camp, the latter articles regulate any further movements.
5 - Report of the Conference of Government Experts of 1947, p. 128.
6 - Ibid.
7 - Draft Conventions submitted to the 1948 Stockholm Conference, draft articles 17 and 18, pp. 63–64, and Draft Conventions adopted by the 1948 Stockholm Conference, draft articles 17 and 18, pp. 58–59.
8 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 252.
9 - In the French text of the Third Convention, both notions are translated as ‘zone de combat’.
10 - See also Krähenmann, pp. 387–388, para. 713.2, who defines the terms ‘combat zone’ and ‘fighting zone’ as ‘the area of military ground operations and tactical measures supporting them from the air’.
11 - Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, p. 33. See, however, Okimoto, p. 958, para. 6, for whom all three terms – ‘combat zone’, ‘danger zone’ and ‘fighting zone’ – are used interchangeably in Article 19.
12 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 54 and 61.
13 - Ibid. p. 63.
14 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 58.
15 - Article 5 provides that the Convention applies to prisoners of war from the moment they fall into the power of the enemy. See also Article 41(3) of Additional Protocol I, which uses the phrase ‘when persons entitled to protection as prisoners of war have fallen into the power of an adverse Party’ when referring to ‘their’ evacuation pursuant to Articles 19 and 20.
16 - See Okimoto, p. 962, para. 24.
17 - Article 5(2).
18 - Krähenmann, p. 388, para. 713.3. See also Canada, Code of Conduct, 2002, p. 2-8, para. 6, and Kenya, LOAC Manual, 1997, p. 8, which both require evacuations to begin ‘as rapidly as the tactical situation permits’.
19 - Levie, p. 100. See also the commentary on Article 17, paras 1799 and 1822.
20 - Glod/Smith, p. 151.
21 - See Krähenmann, p. 387, para. 713.2.
22 - See also Article 23(1) prohibiting the Detaining Power from sending prisoners of war to, or detaining them in, areas where they may be exposed to the fire of the combat zone and prohibiting the use of the presence of prisoners of war to render certain points or areas immune from military operations.
23 - See also Okimoto, p. 960.
24 - See Canada, LOAC Manual, 2001, p. 6-4, para. 609; Denmark, Military Manual, 2016, para. 5.1; Turkey, LOAC Manual, 2001, para. 6; and United States, Law of War Manual, 2016, p. 557, para. 9.9.3.1.
25 - Kenya’s LOAC Manual, 1997, pp. 7–8, suggests as examples of such precautions ‘giving them water and food, the means to signal their location, and subsequently providing information about their location to rescue teams’. See also Philippines, LOAC Teaching File, 2006, p. 8-4; Sierra Leone, Instructor Manual, 2007, p. 37; Sri Lanka, Military Manual, 2003, para. 1612; Turkey, LOAC Manual, 2001, para. 6; Ukraine, Manual on the Application of IHL Rules, 2004, para. 2.5.4.4; and United States, Law of War Manual, 2016, pp. 557–558, para. 9.9.3.2.
26 - See also Article 47, which prohibits the transfer of wounded or sick prisoners of war if the journey would endanger their recovery, unless their safety imperatively demands the transfer. On the definition of ‘danger zone’, see para. 1869 of this commentary.
27 - See also Okimoto, p. 960. For an example of a military manual addressing the evacuation of, among others, prisoners of war from sea, see United States, Naval Handbook, 2017, p. 11-3, para. 11.3.5(1), which provides that ‘[w] hen picked up at sea, they may be temporarily held onboard as operational needs dictate, pending a reasonable opportunity to transfer them to a shore facility or to another vessel for evacuation to a shore facility’.