Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 21 : Restriction of liberty of movement and release on parole
Text of the provision*
(1) The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.
(2) Prisoners of war may be partially or wholly released on parole or promise, in so far as is allowed by the laws of the Power on which they depend. Such measures shall be taken particularly in cases where this may contribute to the improvement of their state of health. No prisoner of war shall be compelled to accept liberty on parole or promise.
(3) Upon the outbreak of hostilities, each Party to the conflict shall notify the adverse Party of the laws and regulations allowing or forbidding its own nationals to accept liberty on parole or promise. Prisoners of war who are paroled or who have given their promise in conformity with the laws and regulations so notified, are bound on their personal honour scrupulously to fulfil, both towards the Power on which they depend and towards the Power which has captured them, the engagements of their paroles or promises. In such cases, the Power on which they depend is bound neither to require nor to accept from them any service incompatible with the parole or promise given.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1918  Article 21 deals with two distinct issues: the entitlement of the Detaining Power to intern prisoners of war and the release of prisoners of war on parole or promise.
1919  The first paragraph sets out the entitlement of the Detaining Power to intern prisoners of war so that they cannot take up arms or otherwise participate again during the conflict. Internment under this provision has a preventive, not a punitive, purpose, contrary to the detention of prisoners of war for disciplinary or penal reasons.[1] This paragraph therefore also lays down the rule that prisoners may not, in principle, be held in close confinement, subject to certain exceptions.
1920  The second and third paragraphs of Article 21 regulate the possibility of releasing prisoners of war on parole or promise. Such release typically occurs in exchange for a pledge not to take up arms again in the same conflict. The practice of paroling prisoners of war has declined considerably since 1949. In addition, many States today prohibit members of their armed forces from accepting release on parole.[2]
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B. Historical background
1. Internment
1921  It is a longstanding custom that Parties to an armed conflict may capture combatants and intern them as prisoners of war to prevent them from returning to the battlefield. The 1899 Hague Regulations were the first to regulate this issue, providing that ‘[p]risoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed limits’, with the limitation that ‘they can only be confined as an indispensable measure of safety’.[3] The 1907 Hague Regulations replicated this provision almost verbatim.[4]
1922  The 1929 Geneva Convention on Prisoners of War elaborated on the earlier wording, stating that prisoners of war ‘may also be interned in fenced camps’, with the limitation that ‘they shall not be confined or imprisoned except as a measure indispensable for safety or health, and only so long as circumstances exist which necessitate such a measure’.[5]
1923  The drafters of the 1949 Geneva Conventions did not stray far from the language of the 1929 Convention. Significantly, they restated that close confinement is acceptable only where it is imposed to safeguard health, but specifically declined to include security measures as another exception.[6]
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2. Release on parole or promise
1924  The concept of conditional release is deeply rooted in history.[7] During the American War of Independence, American Civil War, Boer War and Napoleonic Wars, several kinds of pledges had begun to emerge. Released prisoners of war primarily pledged to abstain from military activity, but sometimes also to present themselves if summoned, to remain in a prescribed area, to refrain from sharing intelligence or to refrain from criticizing the enemy.[8]
1925  The 1863 Lieber Code laid down the rules of release on parole for Union forces during the American Civil War.[9] In addition to the usual pledge not to serve during the ongoing war, it notably introduced the concepts of whole or partial release, which would ultimately be incorporated in the present Convention.[10] These rules were also incorporated in the 1874 Brussels Declaration and later in the 1899 and 1907 Hague Regulations.[11]
1926  Releasing prisoners of war on parole fell out of practice, however, and there were only sporadic instances in the First World War.[12] As a result, the 1929 Geneva Convention on Prisoners of War made no mention of it, and the 1899 and 1907 Hague Regulations continued to govern release on parole until the Third Convention was adopted in 1949.
1927  During the Second World War, there were some instances of release on parole and some belligerents did to some extent permit such release after concluding agreements with the opposing Party, according to which certain prisoners of war could be granted temporary release on parole for reasons of health or hygiene.[13] Therefore, the 17th International Conference of the Red Cross in Stockholm in 1948 decided to include a reference to it in the updated convention on prisoners of war, with appropriate modifications.[14]
1928  The Stockholm Conference also proposed doing away with the rule in the 1899 and 1907 Hague Regulations that violations of parole led to forfeiture of prisoner-of-war status.[15] At the 1949 Diplomatic Conference, delegates unanimously agreed to this proposal.[16]
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C. Paragraph 1: Internment
1. First sentence: Entitlement to intern prisoners of war
1929  Pursuant to Article 21(1), the Detaining Power ‘may’ subject prisoners of war to internment. This wording indicates that a Detaining Power is not obligated to intern prisoners of war. Even if the Detaining Power chooses not to intern, the protections provided under the Convention continue to apply and the prisoners remain under its responsibility until the final repatriation of all prisoners.[17] Generally, however, a Detaining Power will intern prisoners of war to prevent them from participating again in hostilities.
1930  Internment in the sense of Article 21 does not apply to retained medical and religious personnel to the extent that such internment would interfere with the fulfilment of their medical and spiritual duties.[18]
1931  The usual method of restriction of prisoners’ movement, expressly authorized by Article 21(1), is internment. The provision provides a Detaining Power with a legal basis to intern prisoners of war as defined in Article 4 of the Convention.[19]
1932  Internment is a preventive measure; interning prisoners of war for the duration of active hostilities aims to ensure that captured enemy personnel are not able to participate again in the hostilities, which would pose a military threat to the Detaining Power.[20] With the number of active combatants reduced, the military forces of the opposing Party are effectively weakened.[21]
1933  Internment is to be distinguished from ‘confinement’ as used in the Third Convention, which denotes detention in execution of disciplinary or penal punishment.[22] The restriction of liberty of prisoners of war under the authority of this provision has no punitive character.
1934  The fact that internment has no punitive character informs the regime of internment set out in the subsequent chapters of the Third Convention: living conditions in prisoner-of-war camps are not like prison settings but offer access, for example, to canteens, sanitary facilities, common or recreation areas and to open air, as required by the Convention.[23]
1935  Additional restrictions on internment set out in the Convention are that prisoners may be interned only in premises located on land (Article 22), not in danger zones (Articles 19(1) and 23(1)), and only exceptionally in penitentiaries (Article 22).
1936  Article 21 provides the Detaining Power the authority to intern captured military personnel.[24] The Detaining Power has discretion to decide which of them should remain interned for the duration of active hostilities, since they are still part of the military forces of the enemy and as such a threat to the Detaining Power. There may be cases however, where certain prisoners would not pose such a threat and where the Detaining Power may consider that their internment is not or no longer required to protect its security interests.[25]
1937  In the case of civilians accompanying the armed forces without being members thereof (Article 4A(4)), in the ICRC’s view the Detaining Power should consider their specific functions and potential security threat in determining whether internment is necessary. This view is supported by Article 13 of the 1907 Hague Regulations, which refers to ‘[i]ndividuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy’s hands and whom the latter thinks expedient to detain’ (emphasis added). The term ‘expedient’ indicates that the need for internment must be assessed in light of military necessity.[26] The word ‘expedient’ should be understood in the sense of what is necessary and appropriate.[27]
1938  The same recommendation applies to the crews of the merchant marine and civil aviation of the Parties to a conflict (Article 4A(5)) Where such persons do not pose a threat to the security of the Detaining Power, direct or early repatriation or release on parole should be considered.[28] This also follows from Article 4A(5) according to which such persons must be granted prisoner-of-war status, unless they ‘benefit by more favourable treatment under any other provisions of international law’.[29] Such provisions include Article 6 of the 1907 Hague Convention (XI).[30] For crew of enemy merchant ships who are nationals of a neutral State, Article 5 of that Convention provides that they may not be made prisoners of war.
1939  The internment of children requires special consideration in light of, among other things, whether they were unlawfully recruited and the likely effects of internment on their development and education.[31] Where possible, alternatives to internment, early release on parole pursuant to this provision, or, if it would be in their best interests, transfer to a neutral country where their education can be better ensured should be considered.[32] Due consideration should also be given to the different impacts that internment may have on girls and boys of different ages and backgrounds and to their specific needs.[33]
1940  Article 21 authorizes the Detaining Power to intern prisoners of war until the end of active hostilities, at which point it must release all prisoners of war without delay.[34] Certain circumstances may additionally require the Detaining Power to release and repatriate prisoners of war before active hostilities have ceased. For instance, it must repatriate seriously wounded and seriously sick prisoners during the hostilities, provided they are fit to travel and that doing so would not be against their will.[35] Furthermore, if the Detaining Power does not have and is unable to secure the necessary resources to comply with its obligations under the Convention with respect to the prisoners in its power, it may ultimately be required to release and repatriate them.[36]
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2. Second sentence: Boundaries of internment
1941  Internment entails restricting a prisoner’s movement to a certain limit and guarding them to prevent their escape.[37] This limit may coincide with the boundaries of the camp, for example a fence, in case the camp is fenced in. The limit may also lie beyond the boundaries of the camp itself as the Detaining Power may allow prisoners to move a certain distance outside the camp.[38] For example, prisoners of war may be required not to leave a defined area, such as a town, village, or piece of land on which the camp installations are situated.[39]
1942  During the preparatory work for the Convention, the drafters stressed that the term ‘camp’ must not be understood in a restrictive sense, such as referring to a compound or hutments, but in the generic sense ‘already given by the 1929 Convention, and which has been confirmed by practice. The word therefore indicates all the premises and installations, whatever their nature, where a number of prisoners of war are interned.’[40]
1943  Practice regarding restrictions on movement within a camp has varied in recent conflicts. Where restrictions have been imposed, the reasoning has commonly been phrased in terms of security concerns. However, the ICRC has encountered internment regimes that have been more severe than supported by that rationale, for example involving restrictions on contact between different sections of a camp.[41]
1944  Restricting movement within a camp is not necessarily conducive to better order and discipline. The ICRC has observed the positive impact on the morale and attitude of prisoners when they were allowed to move around more freely. Depending on the circumstances, such a measure can alleviate tensions and contribute to greater camp order and discipline. One example of this was the lifting of a curfew allowing the prisoners to move around freely inside the camp, while guard towers and higher fences were installed.
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3. Third sentence: Close confinement
1945  Close confinement is defined as uninterrupted detention in a room, barrack or cell. The French text of the Convention refers to prisoners of war being locked up or confined (‘enfermés ou consignés’). Close confinement is to be distinguished from open confinement, which refers to confinement outside working hours.[42]
1946  Close confinement may only be ordered where prisoners of war are serving a disciplinary or penal punishment or awaiting a disciplinary hearing or trial.[43] In addition, according to the provision, close confinement may be ordered where required to safeguard a prisoner’s health.[44] Any such measure may only last as long as the circumstances exist which make such confinement necessary.
1947  Circumstances which could necessitate close confinement in the interest of the prisoners include climatic conditions that could aggravate a prisoner’s medical condition. It could also include, for example, in accordance with Article 30(1), the need to contain the spread of a communicable disease to the rest of the camp population.
1948  Besides penal and disciplinary sanctions and the health considerations referred to above, Article 21 provides for no other exceptions. Participants at the Conference of Government Experts in 1947 agreed that confinement as a security measure was no longer needed ‘considering how easy it is, as a rule, to supervise a fenced camp’ and that ‘this kind of internment might lead to abuses’.[45] The 1949 Convention therefore no longer contains this exception.[46]
1949  A question that arises regarding close confinement is whether it refers exclusively to confinement in a room, barrack or cell, or whether the concept encompasses other practices that also entail severe curtailment of movement. In several of the conflicts reviewed, the prisoners’ movement within the camp was restricted to such an extent that it arguably amounted to close confinement.[47]
1950  The interpretation of what constitutes ‘close confinement’ needs to take into account the effects of the various restrictions on the health of the prisoners. Where these effects are serious and the measures are not strictly necessary to ensure camp order and discipline, they may amount to a form of close confinement that does not accord with the limited circumstances provided for in the present article (disciplinary or penal sanctions and safeguarding health).
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D. Paragraph 2: Partial or whole release on parole or promise
1. First sentence: Partial or whole release on parole or promise
1951  Article 21(2) grants the Detaining Power the possibility of partially or wholly releasing a prisoner of war on parole or on the promise that the prisoner of war will fulfil certain conditions. In the context of humanitarian law, the concept of parole has been defined as ‘the promise of a prisoner of war to the detaining state that his conduct will conform to the prescriptions specified, given voluntarily in consideration of a grant of freedom of action’.[48] It should not be confused with parole under domestic criminal law.
1952  To avoid any doubt about the conditions of the parole, it is preferable for the precise terms to be in writing and signed by the prisoner of war.[49] For the same reason, a duplicate should be sent to the State on which the prisoner of war depends.[50] In any event, pursuant to Article 122(5), the Detaining Power must transmit to the national information bureau information regarding ‘releases’, including release on parole.
1953  Pursuant to the present provision, a Detaining Power may offer partial or whole release on parole. Partial release refers to the release of a prisoner which is limited in time or to a specific area or combined with a prohibition on going to a specific area. Partial release may take the form of a pass granting temporary authorization to leave the prisoner-of-war camp for a short time, for example to visit a place of worship or to attend a class.[51] Whole release refers to the unlimited release of a prisoner, including to the prisoner’s home. If release on parole or promise is granted, a typical condition is that the prisoner must promise not to bear arms or engage in hostilities against the Detaining Power for the duration of the conflict. In addition to the parole agreement, the prisoner is always obligated under this method of release to respect the laws and regulations of the Power on which they depend, i.e. the State that they belonged to before coming under the authority of the Detaining Power.[52] In most instances, this will be their State of nationality. However, in cases where an individual fought on behalf of, or otherwise belonged to, a State other than their State of nationality, this State is the Power on which they depend.
1954  Prisoners may apply for release on parole but the decision to grant it remains with the Detaining Power.[53] Release on parole may offer an advantage to the Detaining Power, for example if it does not have the means to intern prisoners of war. This might be the case if it lacks the necessary space, facilities and provisions.[54] On the other hand, no prisoner of war may be compelled to accept release on parole (see third sentence of Article 21(2)).
1955  Prisoners may be released on parole ‘in so far as is allowed by the laws of the Power on which they depend’. Such laws and regulations may either forbid prisoners of war to accept release on parole in any circumstances or allow them to do so subject to certain conditions.[55] The Detaining Power may not, therefore, grant release on parole to prisoners of war if the laws and regulations of the Power on which they depend forbid them to accept it; conversely, it may do so if the relevant laws and regulations allow for that possibility, but only to the extent and subject to the conditions specified therein. In such cases, the Detaining Power is not required to obtain prior agreement from the Power on which the prisoner of war depends.[56] Even in countries where accepting parole is generally prohibited, there may be exceptions, such as for health reasons or for other personal matters.[57]
1956  In principle, a prisoner of war who is offered the possibility of release on parole should know these laws and regulations. It may be, however, that a prisoner is not acquainted with them, if only because the laws and regulations have been promulgated since the beginning of their captivity. The Detaining Power should, however, be aware of them, since Article 21(3) expressly states that each Party to the conflict must notify the adverse Party of its laws and regulations in this regard.
1957  While the practice of release on parole was still widely employed during the American Civil War, its use has since declined considerably, with the exception of some sporadic occasions.[58] The main reason for the decline, in addition to national prohibitions on accepting release, may be mistrust of the opposing Party, as well as mistrust by fellow prisoners of those who accept offers of parole.[59]
1958  Although the practice has fallen out of favour, its use could offer benefits to the Detaining Power and also enable it to respect the Convention.[60] In addition, modern technologies, such as electronic monitoring systems, could assist in ensuring compliance with the promise on which a release is based.[61]
1959  Release on parole is distinct from release and repatriation upon the cessation of active hostilities. Release on parole is not mandatory and attaches obligations on the prisoner of war, depending on the parole agreement, whereas repatriation at the end of active hostilities is mandatory and unconditional. Release on parole under this provision, in particular in case of partial release on parole, therefore, does not relieve the Detaining Power of its obligations under Articles 118 and 119.[62]
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2. Second sentence: Parole for health reasons
1960  The second sentence of Article 21(2) provides that release on parole or promise must in particular be offered in cases where this may contribute to the improvement of the prisoner’s state of health. This provision was new in 1949 and inserted as a result of a practice which, if not widespread, was followed during the Second World War. It may be implemented in a variety of ways, ranging from temporary release on parole (even for a very short period such as to take a walk outside the camp limits) to allowing a prisoner to seek medical treatment not available in the camp or to live outside a camp for reasons of health.
1961  This provision is phrased in positive terms and encourages the Detaining Power to adopt this practice, particularly where it may contribute to improving a prisoner’s state of health. Even in countries where accepting parole is generally prohibited, there are exceptions to permit prisoners of war to obtain necessary medical treatment not available in their camp.[63]
1962  While parole may be conditionally offered to ameliorate the health of a prisoner of war, Article 109 of the Convention requires the repatriation of seriously wounded or sick prisoners of war who are in any case not likely to take part in hostilities again against the Detaining Power.[64] Depending on the severity of the health condition, another possibility is accommodation of the prisoner in a neutral country.[65] In each case, the Detaining Power should determine the best option in light of the prisoner’s state of health, while respecting their free will and without using any form of coercion.
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3. Third sentence: Prohibition on compelling prisoners of war to accept parole
1963  Prisoners of war may not be compelled to accept any parole agreement. Therefore, any measure of coercion to get prisoners to agree to release on parole is prohibited.[66] Prisoners who are offered such release are faced with a choice – either to be interned or released on parole, with all that these options entail – and they must be free to choose. They must also be able to comply with the laws of their own country if these prohibit them from accepting release on parole.
1964  If a prisoner of war is compelled to accept a parole agreement, they would be entitled to ignore the promise on which it was based, although they would need to prove that there had been coercion. It is important, therefore, for a recaptured prisoner to remain entitled to the judicial guarantees set out in the Convention if they are prosecuted for breach of parole.[67]
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E. Paragraph 3: Procedure for application
1. First sentence: Notification of parole laws
1965  Article 21(3), stating that upon the outbreak of hostilities the belligerents must notify each other of their respective laws and regulations regarding liberty on parole or promise, is a corollary of the requirement in the second paragraph that the Detaining Power take into account such laws and regulations.[68]
1966  In practice, it will be the task of the respective diplomatic services of the Parties to an armed conflict or the Protecting Powers to exchange the relevant information. If neither are available, the ICRC may offer, or be invited to lend, its services to assist in implementing this provision.[69]
1967  The time frame for this obligation is clear, it arises ‘upon the outbreak of hostilities’. Thus, information must be exchanged as soon as possible after hostilities start, regardless of their intensity, without undue delay, as combatants may fall into the hands of the enemy from that time onwards, and release on parole would then become relevant.[70] This requires both Parties to implement this provision in good faith. Thus, if a State is considering offering parole and has not (yet) received the relevant information from the adverse Party, it should try to obtain it.
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2. Second sentence: Obligations for fulfilment of parole
1968  Prisoners who apply for release on parole give a personal undertaking on their honour ‘to scrupulously fulfil’ their promise, for which they are responsible towards the Detaining Power and the Power on which they depend. Once the Detaining Power offers a prisoner of war the possibility of increased movement in exchange for a promise that they will not take flight or will not take up arms again, and this is accepted, the Detaining Power has no other guarantee, but the word of the prisoner concerned.[71]
1969  Prisoners of war who violate the terms of their parole do not lose prisoner-of-war status. Therefore, if the Detaining Power prosecutes them for breaking their parole, they must still be treated in accordance with the judicial guarantees set out in the Convention.[72] Prior to the 1949 Convention, prisoners of war who broke their parole agreements forfeited the right to be treated as prisoners of war and therefore, if recaptured, were no longer protected as such. The drafters of the 1949 Convention did not wish to go so far and determined that, if found by the Detaining Power to be in violation of their parole, and recaptured, a prisoner of war must, in accordance with the Convention, be guaranteed a fair trial before the imposition of any sanctions.
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3. Third sentence: Obligations on the Power on which the prisoners of war depend
1970  Provided that release on parole was accepted by a prisoner in conformity with the relevant laws and regulations, the Power on which they depend is also bound by it. Thus, if parole requires the prisoner to abstain from taking up arms again, that Power may not require or accept from a member of its armed forces any service incompatible with this promise.
1971  The exact services that would be incompatible with the parole depend on the specific conditions of the parole agreement.[73]
1972  The Convention is silent on the attitude, from the penal or disciplinary point of view, to be taken by the Power on which the prisoner depends in regard to a breach of parole by members of its armed forces. This remains for that Power to regulate, if it so wishes, under its national laws and regulations. In particular, if a prisoner who has been paroled breaks their promise, there is nothing in the Convention that would oblige that Power to return the prisoner to the Detaining Power.[74]
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Select bibliography
Brown, Gary D., ‘Prisoner of War Parole: Ancient Concept, Modern Utility’, Military Law Review, Vol. 156, 1998, pp. 200–223.
Debuf, Els, Captured in War: Lawful Internment in Armed Conflict, Hart Publishing, Oxford, 2013, pp. 179–263.
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.
Flory, William Evans Sherlock, Prisoners of War: A Study in the Development of International Law, American Council on Public Affairs, University of Michigan Press, 1942.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 398–402.
Liivoja, Rain, ‘Chivalry Without a Horse: Military Honour and the Modern Law of Armed Conflict’, in Rain Liivoja and Andres Saumets (eds), The Law of Armed Conflict: Historical and Contemporary Perspectives, Tartu University Press, 2012, pp. 75–100.
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015.
Neff, Steven C., ‘Prisoners of War in International Law: The Nineteenth Century’, in Sibylle Scheipers (ed.), Prisoners in War, Oxford University Press, 2010, pp. 57–73.
Pejic, Jelena, ‘Detention in Armed Conflict’, in Ben Saul and Dapo Akande (eds), The Oxford Guide to International Humanitarian Law, Oxford University Press, 2020, pp. 277–298.
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 995–996.
Sassòli, Marco, ‘International Humanitarian Law and International Human Rights Law’, in Ben Saul and Dapo Akande (eds), The Oxford Guide to International Humanitarian Law, Oxford University Press, 2020, pp. 381–402.

1 - On penal and disciplinary sanctions, see Articles 82–108.
2 - See fn. 55 and accompanying text.
3 - Hague Regulations (1899), Article 5, which was itself based on Article 24 of the 1874 Brussels Declaration and Article 66 of the 1880 Oxford Manual.
4 - Hague Regulations (1907), Article 5.
5 - Geneva Convention on Prisoners of War (1929), Article 9.
6 - Report of the Conference of Government Experts of 1947, p. 130. See, further, para. 1948 of this commentary.
7 - For an overview, see Levie, pp. 398–402; Brown, pp. 201–203; and Eric Talbot Jensen, ‘Combatant Status: It Is Time for Intermediate Levels of Recognition for Partial Compliance’, Virginia Journal of International Law, Vol. 46, No. 11, 2005, pp. 209–249, at 240.
8 - Brown, pp. 203 and 205–206.
9 - Lieber Code (1863), Articles 119–133.
10 - Article 130 of the 1863 Lieber Code contained the rule that released prisoners of war could not serve in the ongoing war; Article 120 mentioned whole or partial release.
11 - Brussels Declaration (1874), Articles 31–33; Hague Regulations (1899), Articles 10–12; and Hague Regulations (1907), Articles 10–12.
12 - Brown, p. 208, and Liivoja, p. 82.
13 - By some accounts, release on parole was practised on only two occasions during the Second World War. The first concerned Italian prisoners captured and then released by US forces during the invasion of Sicily. The second was a mandatory parole arrangement imposed by Japanese troops on prisoners captured in the Philippines. See Neff, p. 61. See also Levie, pp. 399–400; Liivoja, p. 82; and Maia/Kolb/Scalia, p. 468.
14 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 60.
15 - Article 12 of the 1907 Hague Regulations provides that prisoners of war who violate their parole ‘forfeit their right to be treated as prisoners of war, and can be brought before the courts’. See also Article 12 of the 1899 Hague Regulations.
16 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 252–253, 347 and 472–474.
17 - See Article 5(1), as well as Articles 109 and 118.
18 - See also the commentary on Article 33, para. 2336.
19 - See e.g. European Court of Human Rights, Hassan v. UK, Judgment, 2014, para. 109 (‘[T]he United Kingdom authorities had reason to believe that [Hassan] might be either a person who could be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention (see Articles 4A and 21 of the Third Geneva Convention and Articles 42 and 78 of the Fourth Geneva Convention …)’.
20 - This is explicitly stated in the 1880 Oxford Manual, section III.A. See also Pejic, p. 285.
21 - See also the 1868 St. Petersburg Declaration: ‘[T]he only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.’
22 - See, in particular, Articles 89, 98 and 108. This should further be distinguished from the use of the term in the definition of the grave breach of ‘unlawful confinement of a protected person’ under Article 147 of the Fourth Convention.
23 - See e.g. Articles 25, 28, 29 and 38.
24 - See also Pejic, p. 289, and Sassòli, p. 394.
25 - Debuf, pp. 237–241 (citing examples of military personnel assigned to civil defence organizations and persons who participated in a levée en masse that has been put down and who no longer pose a security threat).
26 - See also Oxford Manual (1880), Article 22 (‘Individuals who accompany an army, but who are not a part of the regular armed force of the State, such as correspondents, traders, sutlers, etc., and who fall into the hands of the enemy, may be detained for such length of time only as is warranted by strict military necessity’ (emphasis added)). See also Debuf, pp. 225 and 239–240.
27 - See the commentary on Article 16 of the Second Convention, para. 1579.
28 - It has been argued that, in view of international human rights law, prisoners of war covered by Articles 4A(4) and (5) ‘must have the possibility to argue in habeas corpus proceedings that, in their individual case, there is no reason to intern them as being part of the military potential of the enemy’; Sassòli, p. 260, para. 8.79.
29 - For further details, see the commentary on Article 4A(5), section H.3.
30 - ‘The captain, officers, and members of the crew, when nationals of the enemy State, are not made prisoners of war, on condition that they make a formal promise in writing, not to undertake, while hostilities last, any service connected with the operations of war.’ Article 8 of the same Convention provides that this rule does not apply to ‘ships taking part in the hostilities’.
31 - See Introduction, para. 25, and the commentary on Article 16, para. 1755. See also Convention on the Rights of the Child (1989), Article 37(b), and UN Security Council, Res. 2427, 9 July 2018, paras 20–21. See also e.g. Canada, Prisoner of War Handling Manual, 2004, para. 302.9.b; Belgium, Law of Armed Conflict Training Manual, 2009, Part IX, pp. 39–40; Germany, Military Manual, 2013, p. 80, para. 508; Philippines, Soldiers’ Handbook, 2010, p. 70, para. 3; and Turkey, LOAC Manual, 2001, p. 159, para. 5c. See also Debuf, pp. 241–242.
32 - On the accommodation of persons under the age of 18, see the commentary on Article 25, para. 2103.
33 - For a general discussion of the protection of different categories of prisoners with distinct needs, see Introduction, section A.3.b.
34 - Article 118(1).
35 - Article 109(1) and (3).
36 - See Introduction, para. 114. See also the commentaries on Article 15, para. 1721, and on Article 26, para. 2119.
37 - On the use of weapons to prevent escape, see Article 42.
38 - Krähenmann, p. 392, para. 717.1. The French wording helps to clarify this point: ‘[La Puissance détentrice] pourra leur imposer l’obligation de ne pas s’éloigner au-delà d’une certaine limite du camp où ils sont internés’ (‘[The Detaining Power] may impose the obligation not to go beyond a certain limit of the camp where they are interned.’)
39 - See e.g. Canada, LOAC Manual, 2001, p. 10-5, para. 1024(3); Netherlands, Military Manual, 2005, para. 0724 (referring to an ‘open camp’); and Switzerland, Basic Military Manual, 1987, p. 33, para. 6.3, Article 118.
40 - Draft Conventions submitted to the 1948 Stockholm Conference, remarks on draft article 19, p. 66. For a discussion of the types of premises that may be used for the internment of prisoners of war, see the commentary on Article 22, section C.1.a.
41 - Segregation of prisoners is allowed subject to the conditions of Article 22(3).
42 - See also the commentary on Article 89, para. 3754.
43 - See Articles 89, 95, 103 and 108.
44 - See e.g. Canada, Prisoner of War Handling Manual, 2004, para. 1024; United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 158, para. 8.36; and United States, Law of War Manual, 2016, p. 566, para. 9.12.1.1.
45 - Report of the Conference of Government Experts of 1947, p. 130.
46 - Article 5 of the 1899 and 1907 Hague Regulations allowed confinement as ‘an indispensable measure of safety’.
47 - Examples include a camp where the amount of time prisoners were allowed outside their rooms or cells was limited to a few hours and where movement within the camp was further restricted to certain sections, and a camp where prisoners of war were only allowed to walk in the corridor for 15 minutes a day and to visit each other’s cells but were otherwise locked in their own cells.
48 - Flory, p. 119.
49 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 183, para. 8.105.
50 - See e.g. ibid.
51 - See also the commentaries on Article 34, para. 2374, and Article 38, para. 2460.
52 - See also United States, Law of War Manual, 2016, p. 535, para. 9.1.2.1.
53 - This was explicitly stated in Article 11 of the 1907 Hague Regulations but was so evident that the drafters did not consider it necessary to include it in the 1949 Convention; Levie, pp. 400–401.
54 - See also the commentaries on Article 12, para. 1527, on Article 15, para. 1721, and on Article 26, para. 2119.
55 - See e.g. Canada, Code of Conduct, 2002, para. 311, and LOAC Manual, 2001, p. 10-5, para. 35 (‘Canadian law does not permit members of the [Canadian Forces] to give their parole’); Chile, Operational Law Manual, 2009, p. 2–55 (‘La doctrina de operaciones del Ejército chileno prohíbe a su personal aceptar la libertad parcial o total bajo la promesa obligatoria de no emprender hostilidades contra la potencia detenedora a cambio de su libertad’ (‘The operational doctrine of the Chilean armed forces prohibits its personnel from accepting partial or whole release on the obligatory promise not to take up arms again against the Detaining Power in exchange for his or her liberty’); Netherlands, Military Manual, 2005, para. 0755 (‘A member of the Dutch armed forces who is taken prisoner of war is prohibited in principle from accepting general release on parole or promise’); New Zealand LOAC Manual, 2019, Vol. 4, p. 12-70, para. 12.12.28 (‘It is now unusual to grant parole as most armed forces generally prohibit their personnel from accepting parole if captured.’); United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 184, para. 8.108 (‘As a matter of United Kingdom practice, personnel of its armed forces are not permitted either to seek or to be granted parole.’); and United States, Code of Conduct for Members of the US Armed Forces, 1955, p. 6057, Article III (service members ‘will accept neither parole nor special favors from the enemy’), and Law of War Manual, 2016, p. 662, para. 9.39.1.3. For US practice, see also Brown, pp. 214–216.
56 - See Allan Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 1976, reprinted 2005, pp. 475–476.
57 - See e.g. Netherlands, Military Manual, 2005, para. 0755; Nigeria, IHL Manual, 1994, p. 17, para. 10; United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 184, para. 8.108 (‘temporary parole may be authorized for limited periods to enable a prisoner of war to perform acts that materially contribute to the health or welfare of himself or of his fellow prisoners of war.’); and United States, Law of War Manual, 2016, p. 560, para. 9.11.2. On release on parole for health reasons, see section D.2.
58 - See also fn. 13.
59 - See e.g. William P. Lyons, Prisoners of War and the Code of Conduct, International Law Studies, U.S. Naval War College, Vol. 62, 1980, p. 352, and Maia/Kolb/Scalia, p. 467.
60 - See also para. 1954 of this commentary.
61 - Chris Jenks and Eric Talbot Jensen, ‘Indefinite Detention under the Laws of War’, Stanford Law and Policy Review, Vol. 22, No. 1, 2011, pp. 41–91, at 88–89. The authors also suggest that the Detaining Power could require a guarantor of the prisoner of war’s promise, such as a government or an organization which might be in a better position than itself to ensure compliance with the parole agreement; ibid. p. 89.
62 - See also Maia/Kolb/Scalia, p. 465.
63 - Levie, p. 401. For examples, see fn. 57.
64 - Article 109(1).
65 - Article 109(2).
66 - For an example, see Levie, p. 400, and International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 1948, pp. 49695–49698.
67 - See also para. 1969 of this commentary.
68 - See para. 1955 of this commentary.
69 - See also Introduction, para. 51. On the channels for exchanging information, see also the commentary on Article 43, section C.1.
70 - On the notion of ‘outbreak of hostilities’, see also the commentary on Article 112, section C.1.a.
71 - See e.g. Netherlands, Military Manual, 2005, para. 0734; United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 183, para. 8.105; and United States, Law of War Manual, 2016, p. 560, para. 9.11.2.
72 - See paras 1928 and 1964 of this commentary, as well as Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 252–253, 347 and 472–474. For examples, see e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 184, para. 8.107. See also Brown, p. 212 (referring to Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 181), and Maia/Kolb/Scalia, pp. 466–467.
73 - Article 130 of the 1863 Lieber Code specified that the promise of parole ‘refers only to the active service in the field, against the paroling belligerent or his allies actively engaged in the same war. … [B]ut the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or to civil or diplomatic service for which the paroled officer may be employed.’ For the meaning of ‘active military service’ in the context of the Third Convention, see also the commentary on Article 117, section C.2.
74 - For historical examples of action taken by the Power on prisoner depends, see Brown, p. 211 (during the Napoleonic Wars, British officers who broke parole were subject to being stripped of their commission and sent to prison, or even back to France), and Liivoja, p. 81 (‘In similar circumstances, the French apparently sent their own service members back to the enemy for reimprisonment.’).