Treaties, States Parties and Commentaries
  • Print page
Commentary of 2020 
Article 46 : Conditions for transfer of prisoners
Text of the provision*
(1) The Detaining Power, when deciding upon the transfer of prisoners of war, shall take into account the interests of the prisoners themselves, more especially so as not to increase the difficulty of their repatriation.
(2) The transfer of prisoners of war shall always be effected humanely and in conditions not less favourable than those under which the forces of the Detaining Power are transferred. Account shall always be taken of the climatic conditions to which the prisoners of war are accustomed and the conditions of transfer shall in no case be prejudicial to their health.
(3) The Detaining Power shall supply prisoners of war during transfer with sufficient food and drinking water to keep them in good health, likewise with the necessary clothing, shelter and medical attention. The Detaining Power shall take adequate precautions especially in case of transport by sea or by air, to ensure their safety during transfer, and shall draw up a complete list of all transferred prisoners before their departure.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2610  In addition to the extensive provisions governing the Detaining Power’s obligation to ensure humane and safe conditions within prisoner-of-war camps, the Third Convention concerns itself with the welfare and safety of prisoners of war while outside camps, such as during transfers. Transfer refers to physically moving prisoners from one camp to another after their initial evacuation upon capture, regardless of the method of transportation used, the territory to and from which they are transferred, and the term used to describe the holding facilities concerned.[1]
2611  Although the Third Convention treats transfer between camps separately from the evacuation of newly captured prisoners of war from the battlefield to their initial camp,[2] a number of principles – especially that of humane treatment – apply to both instances. The Convention’s separate treatment of the topics appears to reflect an effort to provide protections relevant specifically to movements of prisoners of war who have already spent time in an established camp.
2612  It is worth noting that the obligations in this chapter of the Convention with respect to the treatment and safety of prisoners of war during intercamp transfers are also referred to in relation to the obligations of Detaining Powers with respect to prisoner-of-war repatriations.[3]
Back to top
B. Historical background
2613  Historically, prisoners of war have been at great risk when removed from the shelter, security and relative amenities of a camp setting. The 1929 Geneva Convention on Prisoners of War contained provisions on the transfer of wounded and sick prisoners of war between camps and on mail and prisoners’ possessions during transit,[4] but it did not include adequate precautions concerning prisoner safety and welfare during such transfers. Tens of thousands are thought to have perished as a result of attacks and deprivation of basic necessities during intercamp transfers during the Second World War, particularly while at sea or on forced marches.[5] Both the ICRC and a number of State delegations raised the issue repeatedly during the 1949 Diplomatic Conference and its preparatory meetings.[6]
Back to top
C. Paragraph 1: Decision to transfer
2614  Article 46(1) deals with the Detaining Power’s decision to transfer prisoners of war. While a number of factors, including geographical, logistical and operational considerations, may influence this decision, the Convention makes clear that the interests of the prisoners concerned must be taken into account before a decision is reached.[7] The article does not set out how this should be done. Ways in which the interests of the prisoners may be identified and thereby better taken into account include consultation with the prisoners’ representative and discussions with ICRC delegates visiting the prisoners. Whatever the case, proper preparation is essential to ensure compliance with the conditions and procedures for transfer set out in Articles 46–48, including the requirement of humane treatment.
2615  In the decades since the Third Convention’s entry into force, some of the reasons for which Detaining Powers have transferred prisoners of war include preventing escapes, diffusing tensions within a camp and reducing overcrowding.[8] While these are legitimate reasons, a Detaining Power must also take account of the interests of the prisoners affected by the transfer. Transfers may also take place for the benefit of prisoners, for example to facilitate family reunification.[9] In addition, prisoners may have to be transferred if the combat zone draws closer to the camp, as provided for in Article 47(2).
2616  Article 46(1) explicitly requires the Detaining Power to consider how a transfer might affect later repatriation efforts. For instance, the Detaining Power should bear in mind the Convention’s cost-sharing arrangement regarding repatriation expenses.[10] For example, the fact that transfers would complicate or raise the cost of repatriation should be taken into account.[11] It should be emphasized, however, that repatriation concerns do not override the Convention’s obligations regarding the safeguarding of the health and safety of prisoners of war. Thus, the decrease in the difficulty of repatriation does not serve as a justification for keeping prisoners in camps where they risk harm (e.g. when the combat zone draws closer) or deprivation of basic necessities.
2617  Based on the wording of Article 46(1), ‘increase [of] the difficulty of repatriation’ is just one example of how a transfer might negatively impact prisoners, but one that the drafters wished to emphasize by the introductory words ‘more especially’. Other considerations might include the climate or time differences (which could affect family contacts). The interests of wounded or sick prisoners must also be taken into account in accordance with the specific rule set down in Article 47(1).
Back to top
D. Paragraph 2: Conditions of transfer
1. First sentence: Requirement of humane treatment and conditions not less favourable than those for forces of the Detaining Power
2618  Article 46(2) concerns the actual conditions of transfer between camps. The article requires first and foremost that transfers ‘shall always be effected humanely’. This obligation mirrors the Detaining Power’s obligation in case of evacuation,[12] and reflects the general requirement of humane treatment.[13] The use of the word ‘always’ underlines the importance of this provision, which allows for no exception. Any transfer, whether on foot or by vehicle, aircraft, train or ship, must be carried out humanely and not endanger the life, health or dignity of the prisoners of war.[14]
2619  The emphasis on the requirement of humane treatment is justified, in particular in light of the increased risk for prisoners during the transfer process. The transferring Power has to mitigate these risks through the use of appropriately trained personnel, vehicles and oversight.[15]
2620  Article 46(2) further requires that transfers be carried out in ‘conditions not less favourable than those under which the forces of the Detaining Power are transferred’ and thus establishes a minimum standard.[16] As with other provisions of the Convention, this paragraph reflects the ‘principle of assimilation’.[17] Generally speaking, a Detaining Power is required to provide prisoners of war with the same conditions of transfer used to move its own armed forces. The article reflects the Parties’ assumption that conditions adequate to safeguard the health and safety of the Detaining Power’s own armed forces will similarly protect the health and safety of prisoners of war.[18] The reference to the principle of assimilation offers the practical advantage of permitting the Detaining Power to use means and methods of transfer already at its disposal. A Detaining Power generally need not acquire new means and methods or modify existing ones to meet its obligations under Article 46.
2621  However, while the principle of assimilation serves as the starting point for determining conditions of transfer, care must be taken to ensure that the prisoners are in a sufficient state of health and physical readiness to travel in the same conditions as the Detaining Power’s own troops. In particular, prisoners of war should not be made to march protracted distances covered by units that are better trained, equipped and conditioned to do so, especially if across difficult terrain or in harsh climatic conditions. Camp conditions may not have prepared prisoners of war to deal with the hardships of long, uninterrupted marches.[19] Similarly, although a Party may require a degree of deprivation of basic necessities or tolerate the suffering of its own armed forces to accomplish an important military mission, it may not necessarily impose the same conditions on prisoners of war. Where there is a conflict between the principle of assimilation and the principle of humane treatment of prisoners, humane treatment must prevail.[20]
2622  Security needs dictate that the conditions of transfer of prisoners of war belonging to an adverse Party may differ from those involving the movement of the Detaining Power’s own forces. For instance, Article 46 does not prevent the Detaining Power from taking reasonable measures, such as the use of guards, to prevent prisoners escaping or engaging in other actions harmful to the Detaining Power during the transfer. Subject to the requirement of humane treatment, restraining prisoners’ hands may be permitted if strictly required for security reasons and only for the time necessary. For instance, while being transferred in the combat zone, prisoners may need to have their hands left unrestrained to ensure their own security.[21] Moreover, the Detaining Power should consider whether lesser means (than restraint) would be effective in the circumstances. Means that might impact senses must comply with the requirement of humane treatment and must be used solely to protect the detaining forces and for the time necessary (e.g. while passing through operationally sensitive areas).[22]
Back to top
2. Second sentence: Climatic conditions and protection of prisoners’ health
2623  The second sentence of Article 46(2) contains two further guarantees. First, when assessing whether or not a particular transfer would be humane, climatic conditions to which the prisoners are accustomed must always be taken into account.[23] These could include, for example, altitude, cold, heat, dryness or humidity. The extent to which these conditions will impact a transfer depends on the place of origin of the prisoners and the climate they are accustomed to.[24]
2624  Second, the conditions of transfer must not prejudice the health of the prisoners. Both requirements were added in light of the experience in the Second World War where prisoners of war, many of them seriously ill, were required to make long marches in climatic conditions to which they were unaccustomed.[25]
2625  Concern for health and climatic conditions is also reflected in Article 22(2), which 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.
Back to top
E. Paragraph 3: Prisoners’ maintenance and safety
1. First sentence: Sufficient food and drinking water; necessary clothing, shelter and medical attention
2626  The first sentence of Article 46(3) emphasizes that conditions of transfer do not justify any deterioration of the life-sustaining duties owed to prisoners of war by the Detaining Power. Thus, the Detaining Power is required to provide ‘sufficient food and drinking water to keep [prisoners] in good health’, as well as ‘necessary clothing, shelter and medical attention’ during transfer. This requirement mirrors similar obligations in the case of evacuation,[26] with the addition of the requirement to provide necessary shelter.[27]
2627  Transfers will often strain logistical capabilities, and Detaining Powers should plan for these in advance of any movement of prisoners of war. For example, additional medical personnel may be required during transfers owing to the greater chance of illness or injury.
Back to top
2. Second sentence: Adequate precautions to ensure prisoners’ safety and lists of transferred prisoners
2628  The second sentence of Article 46(3) requires the Detaining Power to take ‘adequate precautions’ to ensure the safety of prisoners during transfer. It mirrors similar obligations in case of evacuation.[28] The provision reflects the efforts of the ICRC and delegates at the 1949 Diplomatic Conference to address the peculiar risks of moving prisoners of war by sea or air.[29] For this reason, the ICRC proposed including various safeguards, such as equipping vessels with lifeboats and lifebelts, marking vessels, having representatives of the Protecting Power present on board vessels, and using neutral vessels.[30] However, no agreement on these precautions could be reached as some delegates feared such vessels would be abused.[31] Nowadays, depending on the means of transport used, rules regarding such safeguards in bodies of international law other than humanitarian law will in any event also need to be complied with. For example, the Regulations annexed to the International Convention for the Safety of Life at Sea require passenger and cargo ships engaged in international voyages to carry lifebuoys, lifejackets and survival craft.[32] Further precautions might include selecting routes or timing movements to minimize exposure to hostilities or, where feasible, providing notice of a transfer to enemy commanders.
2629  Since transports used for the transfer of prisoners of war are, in principle, not medical transports, they may not display the distinctive emblem.[33] Nor may they display the letters ‘PW’ or ‘PG’ as these markings are reserved for prisoner-of-war camps.[34] If it is considered that marking the transport in some other manner will reduce the likelihood of it being attacked and better ensure the safety of the prisoners, this may, and should, be done. In addition, the Detaining Power could communicate, where feasible, the transportation routes and times to enemy commanders. Lastly, enemy vessels granted safe-conduct by agreement between the Parties to a conflict, such as ‘cartel vessels, e.g. vessels designated for and engaged in the transport of prisoners of war’[35] are exempt from attack.
2630  Article 46(3) specifically includes a requirement to ‘draw up a complete list of all transferred prisoners before their departure’.[36] Ensuring all prisoners can be accounted for remains an important duty during transfers. International armed conflicts since 1949 involving a significant number of prisoners of war have demonstrated the risk of prisoners being subjected to ill-treatment or poor transfer conditions where the Detaining Power lacks oversight or control over the transfer. Regular roll calls during transfer are not explicitly required but seem consistent both with the article’s goal to ensure every prisoner is accounted for and with the security interests of the Detaining Power. Moreover, the Convention requires that the lists of transferees be provided to the national information bureau, which must submit them to the Central Tracing Agency.[37]
2631  Lastly, while Article 46 does not mention access by representatives or delegates of the Protecting Powers, if any, or delegates of the ICRC to prisoners of war during transfer, Article 126 requires that these have access to ‘all places where prisoners of war may be’ and to ‘the places of departure, passage, and arrival of prisoners who are being transferred’ (emphasis added).[38] Thus a Detaining Power must be prepared to make arrangements for such representatives or delegates to visit the prisoners, in accordance with Article 126, particularly during lengthy or large-scale transfers. In addition, ICRC delegates must be able to receive lists of prisoners being moved that have been established before transfer and after their arrival in the new camp.
Back to top
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.
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 369–371.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, pp. 187–194.
– (ed.), Documents on Prisoners of War, International Law Studies, U.S. Naval War College, Vol. 60, 1979.
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 - This notion of transfer is distinct from ‘transfer’ under Article 12. Pursuant to Article 12, a Detaining Power may transfer a prisoner of war to another Power. This may, but does not necessarily, entail a physical move of the prisoners to a different location. If a transfer to another Power occurs, for example by handing over the command and control of a prisoner-of-war camp to another Power while the prisoners themselves are not moved, such a ‘transfer’ is governed only by Article 12. Where prisoners of war are both moved to another location and handed over to the control of a different Detaining Power in the new location are governed by Articles 12 and 46–48. If a prisoner is moved to another location but remains under the control of the same Detaining Power, only Articles 46–48 apply. See also the commentary on Article 12, para. 1525.
2 - On which, see Articles 19–20.
3 - See Article 119(1).
4 - Geneva Convention on Prisoners of War (1929), Articles 25–26.
5 - ICRC Remarks and Proposals on the 1948 Stockholm Draft, p. 49; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 269 (United Kingdom); Bretonnière, p. 156. See also United Kingdom, Military Court at Singapore, Anami and others case, 1946, Abstract of evidence, p. 3; Aoki case, 1946, Confirmation of findings; Daimon case, 1946, Abstract of evidence, p. 1; Jotani case, 1947, Abstract of evidence, p. 1; Kaneoka case, 1946, Abstract of evidence; Kokubo and others case, 1946, Abstract of evidence, p. 1; and Komasawa and others case, 1946, Abstract of evidence, p. 2.
6 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 268 and 359–360.
7 - According to the Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 8, ‘take account of’ means ‘consider with other factors before reaching a decision’. For a critical view on the practical meaning of this provision, see Levie, pp. 190–191.
8 - See Krähenmann, p. 369; New Zealand, Military Manual, 2019, Vol. 4, p. 12-61, para. 12.11.1; and United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 3-11(a). See also examples from the First World War: Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Article 65(1)(c); and Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 134.
9 - Examples from the First World War include: Agreement between Austria-Hungary and Italy concerning Prisoners of War and Civilians (1918), Article 65(1)(b); and Agreement between France and Germany concerning Prisoners of War (1918), Article 54.
10 - See Article 116 for more on repatriation during hostilities and Article 118(4) for repatriation after the cessation of active hostilities.
11 - Examples cited during the 1949 Diplomatic Conference were the transfers of prisoners of war from the United Kingdom and North Africa to the United States and from Egypt to New Zealand; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 268 (Italy and New Zealand).
12 - See Article 20(1).
13 - According to Article 13, prisoners of war must at all times be treated humanely.
14 - For more details on the obligation of humane treatment, see also the commentary on Article 13, section C.1.
15 - This point was emphasized in UK Report of the Baha Mousa Public Inquiry. Although the Inquiry concerned the treatment of Iraqi civilian internees by UK armed forces, it contains general conclusions and recommendations that are also relevant to prisoners of war; United Kingdom, The Report of the Baha Mousa Inquiry, Report of the public inquiry chaired by Sir William Gage, The Stationery Office, London, 2011, Vol. II, para. 6.67.
16 - In case of evacuation, Article 20(1) requires conditions ‘similar’ to those of the forces of the Detaining Power, arguably a less stringent standard. On this basis, Okimoto, p. 965, para. 37, considers that ‘the more predictable nature of transfers of POWs between camps [as compared with evacuation] requires the Detaining Power to take additional precautions’.
17 - For a general discussion of the principle of assimilation, see Introduction, section A.3.c.
18 - See, however, Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 136–137, where the Commission found that even though the transportation conditions of Eritrea’s own forces were equally miserable owing to the limited resources and infrastructure, Eritrea ‘did not do all within its ability to make transfer of the POWs as humane as possible’. The Commission highlighted ‘purposefully cruel treatment’, such as ‘pouring fuel on the bed of [a] transport truck before a twelve-hour trip in open sun’.
19 - For guidance on the permissible length of marches, see the commentary on Article 20, para. 1896.
20 - See the commentary on Article 20, para. 1889.
21 - See e.g. Denmark, Military Manual, 2016, p. 473, para. 4.1.1; New Zealand, Military Manual, Vol. 4, 2019, pp. 12-31–12-32, paras 12.8.1–12.8.4; United Kingdom, Joint Doctrine Captured Persons, 2015, pp. 2-13–2-18, paras 221–223; and United States, Law of War Manual, 2016, p. 552, para. 9.6.2. See also the non-binding Mandela Rules (2015), Rules 47(2)(a) and 48(1)(a)–(c).
22 - See e.g. Denmark, Military Manual, 2016, pp. 473–474, para. 4.1.2; New Zealand, Military Manual, Vol. 4, 2019, pp. 12-31–12-32, paras 12.8.1–12.8.5; United Kingdom, Joint Doctrine Captured Persons, 2015, pp. 2-13–2-18, paras 221–223; and United States, Law of War Manual, 2016, p. 552, para. 9.6.2. In its 2017 judgment in Alseran, para. 95, the UK High Court of Justice held that ‘putting sandbags (or other hoods) over the heads of prisoners at any time and for whatever purpose is a form of degrading treatment which insults human dignity’ constituting a violation of the requirement of humane treatment ‘at all times’ set out in Article 13 of the Third Convention. Other measures of so-called ‘sensory deprivation’ were discussed in the same case, namely the use of blacked-out goggles and ear defenders (ibid. paras 659–666). See also United Kingdom, The Report of the Baha Mousa Inquiry, Report of the public inquiry chaired by Sir William Gage, Vol. III, The Stationery Office, London, 2011, p. 1177, para. 16.71, and pp. 1267–1277, Recommendations 1, 10, 13–14, 33–34 and 39.
23 - See also New Zealand, Military Manual, 2019, Vol. 4, p. 12-63, para. 12.11.12, which provides that transfer is to occur ‘in a method adequate for the weather conditions’.
24 - See also the commentary on Article 22, section D (in relation to places of internment from which prisoners must be removed).
25 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 268 and 359–360 (New Zealand). See also B.V.A. Röling and C.F. Rüter (eds), The Tokyo Judgment: The International Military Tribunal for the Far East (I.M.T.F.E.), 29 April 1946–12 November 1948, University Press, Amsterdam, 1977, Vol. I, pp. 402–403, and United States, Military Court at Nuremberg, The Ministries case, Judgment, 1949, pp. 436–437 and 443–447.
26 - For more details on these requirements, see the commentary on Article 20, section D.1, which applies, mutatis mutandis, in the context of transfers.
27 - This requirement was added at the 1949 Diplomatic Conference, prompted by the experience of the Second World War, when no shelter was provided during overnight halts; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 269 (United Kingdom).
28 - For more details on these requirements, see the commentary on Article 20, section D.2. Under Article 46 the precautions have to be ‘adequate’, whereas under Article 20(2) they have to be ‘suitable’. However, in the French version of the Convention, both articles use the phrase ‘e’ (‘all useful precautions’). This indicates that the standards under both articles are the same. See, however, Okimoto, p. 965, para. 38, who considers that the standard under Article 46 is stricter than that under Article 20.
29 - In its judgment, the International Military Tribunal for the Far East reported incidents where ‘prison ships were often attacked in the same manner as other Japanese ships by the Allied forces who could not distinguish them from other ships’; B.V.A. Röling and C.F. Rüter (eds), The Tokyo Judgment: The International Military Tribunal for the Far East (I.M.T.F.E.), 29 April 1946–12 November 1948, University Press, Amsterdam, 1977, Vol. I, p. 411.
30 - ICRC Remarks and Proposals on the 1948 Stockholm Draft, p. 49.
31 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 359–360.
32 - International Convention for the Safety of Life at Sea (1974), Annex, Chapter III, Regulations 7, 21, 22, 31 and 32. As to the applicability of this Convention in time of armed conflict, see the Commentary on the Second Convention, Introduction, paras 51–59.
33 - However, the evacuation of wounded and sick prisoners of war from the combat zone qualifies as a protected transport pursuant to Article 35 of the First Convention. Such transports may display the distinctive emblem; see Article 39 of the First Convention and the commentary on Article 35 of the First Convention, para. 2403.
34 - See the commentary on Article 23(4), para. 2056. See also the commentary on Article 20, para. 1903.
35 - San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 47(c)(i). For the conditions of exemption from attack, see ibid. para. 48.
36 - See also New Zealand, Military Manual, 2019, Vol. 4, p. 12-64, para. 12.11.13, requiring that other information, including descriptions and photographs, be recorded if a list of names cannot be drawn up. Under Article 20, the standard in case of evacuation is less stringent as the Detaining Power must establish a list of evacuated prisoners ‘as soon as possible’.
37 - See Article 122(3) and (5).
38 - See also the commentary on Article 126, section C.4.a.