Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 12 : Responsibility for the treatment of prisoners and conditions for their transfer to another Power
Text of the provision*
(1) Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.
(2) Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.
(3) Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
(a) High Contracting Parties for which a reservation is in force at the time of publication: Albania; Democratic People’s Republic of Korea; North Macedonia; People’s Republic of China; Russian Federation; and Viet Nam.[1] For the text and analysis of these reservations, see fn. 18.
(b) High Contracting Parties which previously had a reservation in force: Belarus (withdrawn 7 August 2001); Bulgaria (withdrawn 9 May 1994); Czechoslovakia (withdrawn 27 September 2001 by the Czech Republic and 5 June 2000 by Slovakia); German Democratic Republic (until reunification with the Federal Republic of Germany, 3 October 1990); Hungary (withdrawn 31 May 2000); Poland (withdrawn 22 September 2004), Romania (withdrawn 24 June 2002); and Ukraine Republic (withdrawn 30 June 2006).[2]**
Declarations: Australia; Barbados; New Zealand; United Kingdom; and United States.[3]
** Country names at the time the reservation was made.
Contents

A. Introduction
1502  Article 12 introduces Part II of the Convention on ‘General protection of prisoners of war’. The article lays down the responsibility of the Detaining Power for the treatment of prisoners of war and sets out conditions for the lawful transfer of prisoners from one Detaining Power to another. By assigning responsibility for the treatment of prisoners of war to the Detaining Power and by including certain requirements and safeguards relating to the transfer of prisoners of war to another Power, the drafters sought to ensure continuous protection of prisoners of war from the moment they fall into the power of the adversary until their final release and repatriation.
1503  Article 12 covers transfers both to co-belligerents in international armed conflicts and to neutral States. It does not, however, deal with the repatriation of prisoners of war to their home country, which is governed by Articles 109–110 and 118. Article 45 of the Fourth Convention contains a provision similar to Article 12, applicable to the transfer of persons protected under that Convention.
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B. Historical background
1504  The legal construct that prisoners of war are in the hands of the enemy Power and not of the individuals or units that capture them has a long history in humanitarian treaty law. It was first set out in the 1899 Hague Regulations and has been reiterated in every convention dealing with prisoners of war since.[4]
1505  However, it was not until 1949 that the responsibility of the Detaining Power for the treatment of prisoners of war was clearly spelled out in the present article, along with new rules on the transfer of prisoners. With respect to transfers of prisoners of war, the 1899 and 1907 Hague Regulations simply provided that the information bureau for prisoners of war should receive all necessary information on such transfers.[5] Although the 1929 Geneva Convention on Prisoners of War contained important rules on transfers, it only covered transfers between camps belonging to the same Detaining Power and transfers to the Power on which the prisoners depended (repatriation).[6] The recommendation to add rules on transfers between States was informed by the extensive practice of such transfers during the Second World War.[7] If the receiving Power was not party to the 1929 Convention, the transfer resulted in the prisoners being deprived of the protections they had enjoyed under the Convention until then. Moreover, even if the receiving Power was party to the 1929 Convention, it was not entirely clear which State was responsible for applying the Convention to the transferred prisoners.[8]
1506  During the negotiation of the 1949 Convention, delegations were therefore mindful to avoid a situation in which prisoners of war could be deprived of the protections of the Convention by a transfer to another Power. While the addition of rules on transfers and the notion that no prisoner of war may be transferred to a State not party to the Convention raised no difficulties, there was some debate over the way in which responsibility between the transferring and receiving States should be assigned.[9] Two approaches were discussed during the Conference of Government Experts in 1947. Some delegations proposed joint responsibility for the transferring and receiving Powers. Others believed that it was a fundamental principle of the Convention that only the Power actually holding the prisoners, i.e. the receiving Power after a transfer, would bear responsibility for the application of the Convention.[10] The draft approved by the International Conference of the Red Cross in Stockholm in 1948 embraced the former principle. Based on this draft, the transferring and receiving Powers were to be jointly responsible for the treatment of prisoners of war following their transfer.[11] Ultimately, however, this view did not prevail among States.[12]
1507  During the Diplomatic Conference in 1949, a number of delegations objected to the idea of joint responsibility,[13] while other delegations maintained the view that joint responsibility best served the interests of the prisoners, precluding a possible worsening of their conditions upon transfer.[14] In view of these disagreements, the United Kingdom submitted a compromise draft, which became the text of paragraphs 2 and 3 of the present article.[15] While accepting that responsibility for applying the Convention rests with the Power to which the prisoners of war are transferred, the draft also envisaged a continuous obligation on the transferring Power to satisfy itself that the receiving Power had the willingness and capacity to apply the Convention and that, after transfer, it did in fact do so in all important respects.[16] These pre- and post-transfer obligations on the transferring State were designed to ensure that it could not evade its responsibility vis-à-vis prisoners of war who had fallen into its hands. This text was adopted in the plenary meeting by 29 votes to 8, with 1 abstention.[17]
1508  The number of dissenting votes reflected the controversy over the issue. On ratifying the Convention, a number of States made reservations to Article 12 to the effect that the transferring State would remain responsible for applying the Convention to the prisoners even after their transfer.[18] These reservations reflect those States’ preference for the joint responsibility approach. Some States made declarations on ratifying or acceding to the Convention to the effect that the application of these reservations would constitute a violation of the Convention.[19]
1509  The 1949 Diplomatic Conference also considered proposals setting out permissible reasons for transfers. The Netherlands suggested that transfers should be allowed only in case of ‘urgent necessity’, whereas others foresaw many other valid reasons for transfers.[20] Ultimately, the final text of Article 12 does not require any specific reasons to undertake transfers. Nevertheless, it can be inferred that transfers carried out for the purpose of depriving prisoners of the protections to which they are entitled under the Convention would be incompatible with Article 12.[21]
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C. Paragraph 1: Responsibility for the treatment of prisoners of war
1. First sentence: Prisoners are in the hands of the enemy Power, not of individuals
1510  Pursuant to Article 12(1), prisoners of war are to be considered as under the control of the Power into whose hands they have fallen, and not of the individuals or units that captured them. This includes not only situations in which combatants fall into the hands of State organs as defined by the internal law of the State, but also when they fall into the hands of other persons or groups acting on its behalf.[22]
1511  It may not always be clear into whose hands prisoners of war have fallen and thus which State is responsible for their treatment. This may be the case, in particular, when multiple States are involved in a capture or a prisoner of war is transferred from one Power to another soon after capture. A prisoner will, however, always only be in the hands of a single Detaining Power. If a transfer to another Power occurs immediately after a person has fallen into the hands of the enemy, the fact that the transferring State is in a position to make the transfer demonstrates that it has control over that person. From the moment the person falls into this Power’s hands and until the transfer is completed, irrespective of how short this period is, the transferring Power has the primary responsibility for the prisoner’s treatment under Article 12.[23]
1512  Article 12(1) reproduces the text of Article 2(1) of the 1929 Geneva Convention on Prisoners of War, which in turn was derived from Article 4(1) of the 1907 Hague Regulations.[24] Even long before the twentieth century, it was recognized that control over of prisoners of war lay with the sovereign of the capturing armed forces and not with the individual captors, who may therefore not treat them as their personal prisoners.[25] This rule follows from the reasoning that international armed conflict is a relationship between States, and not between individuals, who are merely ‘instruments for carrying out such national policies’.[26]
1513  Although the text refers to ‘captured’ persons, it should be understood in line with the more commonly used phrase ‘fallen into the hands of’ as encompassing also persons who have surrendered to individuals or units of the adversary or have otherwise fallen into its hands.[27]
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2. Second sentence: Responsibility of the Detaining Power
a. The responsibility of the Detaining Power
1514  The second sentence of Article 12(1) underlines the responsibility of the Detaining Power for the treatment of prisoners of war. While the drafters of the Third Convention thus attributed responsibility to the Detaining Power, they did not specify whose or which conduct is covered by this responsibility. Article 12(1) should nowadays be interpreted in light of the International Law Commission’s 2001 Draft Articles on State Responsibility.[28] This means that the Detaining Power is responsible ‘for the conduct of all the organs, instrumentalities and officials which form part of its organization and act in that capacity, whether or not they have separate legal personality under its internal law’.[29] This includes all persons who are entrusted with the custody of prisoners of war. The responsibility of the Detaining Power is irrespective of any individual responsibilities that may exist.[30]
1515  The word ‘treatment’ refers to all the obligations owed to prisoners of war under the Convention. This includes, for example, the obligations set down in Article 15 to provide for the maintenance of prisoners of war (such as providing adequate accommodation, food and clothing) and to ensure they receive the medical attention required by their state of health.[31] This understanding flows from the position of Article 12 at the beginning of the section of the Convention on ‘General protection of prisoners of war’.
1516  The second sentence was also added to emphasize that the responsibility of the Detaining Power ‘in no way excludes the personal responsibility which may devolve upon its agents in respect of their acts relative to prisoners of war, nor the possibility of their punishment for such acts’.[32] Other articles of the Convention deal with individual responsibility for violations of the Convention.[33]
1517  Article 12(1) implies an obligation on the Detaining Power to ensure that all persons who have custody of prisoners of war treat them in accordance with the Convention.[34] This includes an obligation not to allow the transfer of the prisoners to the custody of anyone else without the Detaining Power having first satisfied itself that the prisoners will not be mistreated, including after a transfer within the State’s own armed forces.[35]
1518  Moreover, it follows from Article 12(1) that States must instruct their armed forces in their relevant duties under the Convention.[36] In this respect, Article 12(1) can be seen as a specific application of the general duty to respect and ensure respect for the Convention, as expressed in Article 1.[37] Another relevant provision in this regard is Article 127(1), which provides for the dissemination of the text of the Convention in time of peace and in time of armed conflict ‘so that the principles thereof may become known to all their armed forces and to the entire population’. Article 127(2) furthermore requires that authorities who assume responsibility for prisoners of war must have the text of the Convention and be specially instructed in its provisions.[38]
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b. Responsibility in multinational operations
1519  Where States conduct multinational operations in the context of an international armed conflict, it may not always be apparent which State is the Detaining Power and thus responsible for the treatment of the prisoners.[39] For example, multinational forces may have joint command over an internment facility or may carry out joint patrols during which enemy troops are captured or surrender.
1520  Identifying the Detaining Power is important not only to determine which State is responsible for the treatment of the prisoners, but also because several provisions of the Convention are based on the principle of assimilation. According to this principle, the standard of treatment to which prisoners of war are entitled is in the first instance determined by reference to the domestic standards and laws applicable to members of the armed forces of the Detaining Power.[40] The application of this principle may pose specific challenges in situations in which the United Nations as a Party to an international armed conflict were to intern prisoners of war.
1521  As a starting point, a person will always be in the hands of a single Detaining Power, and this Detaining Power is the State or international organization into whose hands the person first falls. That Power assumes control over, and thus responsibility for, the prisoner. The fact that prisoners of war are protected under the Convention from the moment they ‘fall into the power of the enemy’ means that immediately when combatants are captured, surrender or otherwise fall into a State’s hands, that State becomes the Detaining Power responsible for their treatment.[41]
1522  While this principle is not in itself controversial, its application in the case of multinational forces involved in an international armed conflict may not always be straightforward. For instance, it may not be clear which State is the Detaining Power in situations where combatants are captured by a patrol that consists of the national forces of different States. Nevertheless, while for certain conduct there may be joint responsibility by two or more States under international law,[42] even in these cases only one State will be considered the Detaining Power under the Third Convention. For another Power to assume that control and responsibility, a transfer pursuant to Article 12(2) and (3) is required.[43]
1523  Article 12(1) does not regulate the distribution of tasks and responsibilities among members of a multinational force involved in an international armed conflict, and it presupposes that in relation to any given prisoner of war, the responsible Power can be identified. The arrangements adopted by States involved in a multinational operation must therefore not render identification of the Detaining Power impossible, nor may they hinder the implementation of that Power’s responsibility pursuant to Article 12.[44]
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D. Paragraph 2: Transfer of prisoners of war to another Power
1. General: Transfer of prisoners of war
1524  The Detaining Power is responsible for the treatment of prisoners of war from the moment they fall into its power. According to Article 5(1), the Convention continues to apply to the prisoners ‘until their final release and repatriation’. Until that time, prisoners of war remain entitled to the protections of the Convention, and the transfer of prisoners of war must not result in an interruption in the application of the Convention.
1525  Article 12(2) clearly covers the transfer of prisoners of war to the territory of a co-belligerent State. However, there is nothing in the text of the paragraph that suggests that the transfer must be to the territory of another State. The article does not require that prisoners of war cross an international border or even be physically moved for a ‘transfer’ to occur. A prisoner can be transferred in the sense of paragraph 2 simply through a transfer of control from one Power to another. This is in line with the purpose of the paragraph, which is to ensure that there is no gap in the protection of prisoners of war or a reduction in the level of their protection below what is required by the Convention. If, for example, the Detaining Power hands over command and control of a prisoner-of-war camp to a co-belligerent, the former Power is no longer in a position to apply the Convention to the prisoners.[45] To ensure that those prisoners remain protected, it is only logical that the co-belligerent becomes responsible for their treatment from the moment it takes over command and control of the camp.[46]
1526  Article 12(2) does not limit the purposes for which a transfer may be effected. A transfer could, for example, be carried out because the capturing State lacks the material resources to set up prisoner-of-war camps,[47] or in satisfaction of an extradition request in respect of a prisoner of war.[48] Moreover, the transfer could occur immediately after capture, or days, months or even years later.[49] If several transfers occur in succession, each transfer must satisfy the requirements of paragraph 2.
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2. First sentence: Conditions for transfer
a. First condition: The receiving Power must be a Party to the Convention
1527  Prisoners of war may be transferred only to a Power that is a Party to the Convention. This condition is absolute and is designed to ensure that prisoners of war are not deprived of the protection of the Convention by the mere fact of a transfer, no matter its purpose. Today, given the current universal adherence to the Geneva Conventions, this requirement will be fulfilled where the transfer is to another State.
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i. Transfers to neutral Powers
1528  Article 12(2) clearly covers the transfer of prisoners of war to a co-belligerent. However, the wording of the paragraph is not limitative and does not explicitly require the receiving Power to be a co-belligerent. It simply describes that Power as ‘a Power which is a Party to the Convention’. A number of commentators have therefore interpreted Article 12(2) as covering transfers to neutral Powers[50] that agree to intern the prisoners on their territory.[51] This interpretation is consistent with the placement of Article 12 in the section on ‘General protection of prisoners of war’ and with the purpose of Article 12. The transfer of prisoners must not result in a lapse in the protection of, and responsibility for, prisoners of war, regardless of whether the receiving Power is a co-belligerent or a neutral State.
1529  If a neutral Power agrees to receive the prisoners, their situations would be governed by Article 4B(2), which provides for certain exceptions from some of the provisions of the Convention, without prejudice to any more favourable treatment which the Power may choose to give the prisoners. These exceptions are based on the fact that the neutral State is not an enemy State.[52]
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ii. Transfers to non-State entities
1530  Because of the general understanding that only States can be High Contracting Parties to the Geneva Conventions, the first requirement implies that prisoners of war may not be transferred to entities other than States – such as non-State armed groups and paramilitary and non-military organizations. A ‘transfer’ of prisoners to such an entity that is under the overall control of the Detaining Power would not qualify as a transfer under Article 12(2) because the prisoner would remain under the responsibility of the Detaining Power. On the other hand, a transfer to such an entity that is under the overall control of another High Contracting Party would qualify as a transfer under Article 12(2), as it would constitute a transfer to that High Contracting Party.[53]
1531  A literal reading of the first condition likewise indicates that a Detaining Power may not transfer prisoners of war to an international organization, since international organizations cannot be party to the Geneva Conventions.[54] However, if an international organization such as the UN is party to the international armed conflict,[55] it would be bound by the customary rules of international humanitarian law relative to prisoners of war in its custody. There are therefore cogent reasons to argue that the objective of the first condition – to ensure that prisoners of war are not deprived of the protection of the Convention by the mere fact of a transfer – could also be satisfied by a transfer to an international organization that is party to the international armed conflict and under the obligation to treat prisoners of war in accordance with customary international humanitarian law.[56]
1532  The scenario of a transfer of a prisoner of war to an international criminal court or tribunal was not envisaged by the drafters of Article 12, nor was it contemplated in the 1960 ICRC Commentary. A strict application of the first condition of paragraph 1 would seem to exclude such a transfer, as it would entail the Detaining Power surrendering control over a prisoner of war to an international body that is party neither to the conflict nor to the Geneva Conventions.[57] Yet, legal developments subsequent to the adoption of the Third Convention in 1949 imply that a Detaining Power could today be required – whether pursuant to a UN Security Council resolution or a treaty commitment – to cooperate with an international criminal court or tribunal and to comply with arrest and transfer orders issued by it.[58] In the case of conflicting international commitments, it is for States to determine how best to resolve the conflict between norms. However, two observations may be made. First, the repression of war crimes, including through cooperation with international criminal courts and tribunals, is fully in line with the object and purpose of the Third Convention.[59] Second, regardless of the objective of a transfer of a prisoner of war to an international criminal court or tribunal, such a transfer must not result in a loss of protection for the prisoner. Undoubtedly, the ability and willingness of the receiving international court or tribunal to guarantee standards at least as protective as those set out in the Convention, in particular as relates to pretrial detention and fair trial guarantees, will therefore be a relevant consideration.[60]
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b. Second condition: The willingness and ability of the receiving Power to apply the Convention
1533  The second condition of Article 12(2) prescribes that prisoners of war may only be transferred to another Power after the transferring State has ‘satisfied itself of the willingness and ability of [the] transferee Power to apply the Convention’. This relates to all of the provisions of the Convention, not only those which the transferring Power might consider most relevant.[61] It further relates to each specific transfer, i.e. the transferring Power may not rely on a general willingness and ability to apply the Convention but must satisfy itself that in the transfer operation at hand, the receiving State has the willingness and ability to apply the Convention. The time at which the Detaining Power must have ‘satisfied itself’ is the time of transfer. Accordingly, where the Detaining Power has satisfied itself at a point prior to the time of transfer,[62] its assessment must not have changed by the time of transfer.
1534  It has been argued that this condition gives a broad margin of discretion to the transferring Power.[63] That clearly depends on what the standard ‘to satisfy itself’ means. The ordinary meaning of the term ‘satisfy’ is to ‘provide (someone) with adequate information about or proof of something’.[64] The term ‘satisfy itself’, therefore, means to obtain (i.e. provide oneself with) such information or proof. The French version of the text provides: ‘lorsque la Puissance détentrice s’est assurée que …’. The verb ‘s’assurer’, in its ordinary sense, means ‘rechercher la confirmation de quelque chose, vérifier’ (‘seek confirmation of something; verify’).[65] The condition to ‘satisfy itself’ therefore requires the transferring Power to verify, based on adequate and convincing information, that the receiving Power is willing and able to apply the Convention. The substantive content of that condition may vary according to the circumstances and what would suffice in one case, may not be adequate in another case, particularly where a receiving Power has a poor record of compliance with its humanitarian obligations or no relevant experience of handling prisoners of war.
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i. Measures to ascertain the willingness and ability of the receiving State
1535  Article 12(2) does not specify the measures a Detaining Power must take to satisfy itself of the willingness and ability of the receiving Power to apply the Convention. Belgium had proposed a clause obliging the transferring Power to ‘take all necessary steps at the time of transfer to ensure that the Power accepting the prisoners of war was in a position to fulfil all of the stipulations of the Convention’.[66] While this proposal was not included in the final text, the 1960 ICRC Commentary interpreted paragraph 2 as requiring a ‘prior investigation’.[67] Indeed, it is difficult to envisage how a Detaining Power can in good faith satisfy itself of the willingness and ability of the receiving Power without a prior assessment of the treatment to which the prisoners are likely to be subjected if transferred, including by inquiring into the receiving Power’s past record of treatment of prisoners of war.[68] Particular caution is required when this past record demonstrates a pattern of violations of the Convention with regard to the treatment of prisoners of war. Failure to make any affirmative inquiry may, in and of itself, amount to a breach of Article 12.[69]
1536  Concerns may arise that the steps a Detaining Power may need to take to satisfy itself of the willingness and ability of another Power to fulfil its obligations will cause friction among coalition partners.[70] Such concerns, however, do not constitute a valid excuse for transferring prisoners of war to a Power without first verifying its ability and willingness to grant the prisoners the protections of the Convention.
1537  One way in which States have approached this matter in practice is by concluding agreements on the handling of prisoners of war.[71] While the existence – or absence – of such agreements may be a relevant factor in ascertaining the willingness of the receiving Power to apply the Convention, it will generally not be sufficient of itself, especially if there is a systematic practice of non-compliance in the receiving country.[72] A general assurance to apply the Convention adds little in terms of demonstrating willingness to apply the Convention over and above the fact that the receiving State has already ratified or acceded to the Convention.[73] The specificity of the agreement, its binding nature, and the inclusion of an effective post-transfer monitoring mechanism, such as provisions governing access of the transferring Power, may contribute to demonstrating the willingness of the receiving Power to apply the Convention.[74] In the final analysis, what matters is whether the agreement, in its practical application and in the particular circumstances of each situation, will provide effective and sufficient assurance to the Detaining Power that the prisoners of war will be treated in accordance with the Convention.
1538  Whatever an agreement’s weight in demonstrating the willingness of the receiving Power to apply the Convention, the Power’s ability to do so cannot be ascertained merely by reference to the agreement. To ascertain the ability of the receiving Power to apply the Convention, the transferring Power will need information about the resources of that Power to care for the prisoners of war. This could involve visiting the prisoner-of-war camps,[75] and acquiring information on, among other things, ‘the location, size, and layout of the camps, as well as the quantity and quality of food and water, and the quality of medical services’.[76] If the receiving Power lacks the material resources to apply all of the provisions of the Convention, the transferring Power could provide or arrange for the provision of direct assistance to the receiving Power before the prisoners are transferred. If this is not sufficient to ensure the ability of the receiving Power to apply the Convention, the transfer must not take place.
1539  Practice shows that at least some States have established mechanisms, pursuant to Article 12(3), to verify whether receiving Powers comply with the Convention, including the creation of liaison or observation teams that assess the situation relative to prisoners of war in the receiving Power.[77] In addition to informing the relevant measures a transferring Power must take under Article 12(3), observations and conclusions from these assessments should also be taken into account, prior to a new transfer, in determining whether a State is able and willing to apply the Convention.
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ii. Recognition of prisoner-of-war status
1540  The transferring Power must be assured of the willingness and ability of the receiving Power to apply the Convention, including Article 4, to the transferred prisoners of war. Therefore, if the receiving Power is a co-belligerent, the transfer may only take place if the transferring Power is assured that the receiving Power will continue to recognize the prisoner-of-war status of the transferees. The willingness and ability of the receiving co-belligerent to apply the Convention presupposes that it accepts the transferring Power’s classification of the captured persons as prisoners of war and that it will not reclassify their status while they are in its custody.[78] If the receiving Power is a neutral Power, however, the internment of the transferee in the neutral State will be governed by Article 4B(2). In such cases, the transferring Power must verify that the neutral Power will, as a minimum, treat the persons in accordance with the Convention, except for the articles explicitly mentioned in Article 4B(2).[79]
1541  When persons who committed belligerent acts are transferred immediately or shortly after they have fallen into enemy hands, their status may not yet be clear. Pursuant to Article 5(2), these persons will enjoy the protection of the Convention until their status has been determined by a competent tribunal. If the persons are transferred before their status is determined, the transferring Power must satisfy itself that the receiving Power is willing and able to apply the Convention, which includes verifying that the receiving Power will treat the prisoners in accordance with the Convention until a competent tribunal has determined their status.[80] The transferring Power should share with the receiving Power any information it has regarding the circumstances of capture to facilitate the status-determination process.
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iii. Subsequent transfers
1542  The obligations that the receiving Power needs to respect include that of only transferring a prisoner of war in accordance with Article 12(2). Therefore, when planning to transfer a prisoner to another Power, the transferring Power also needs to satisfy itself that the receiving Power will not transfer the prisoner further in disregard of that provision. Some transfer agreements have addressed the risk of such subsequent transfers in relation to detainees in general, providing that the receiving State may not transfer the detainees without the further written approval of the initial transferring authority[81] or that the State planning to carry out a subsequent transfer must obtain assurances from the third State in terms of treatment and post-transfer monitoring.[82]
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iv. Death penalty
1543  If the Detaining Power knows or suspects that the prisoners may be subject to the death penalty while in the custody of the receiving Power, the transfer will not necessarily violate Article 12(2), provided that the Detaining Power is satisfied that the receiving State will comply with the provisions of the Convention relating to the death penalty.[83] However, the detaining State may be precluded from carrying out such a transfer by other applicable international commitments and/or by its domestic law or policy.[84]
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c. Violations of conditions for transfer
1544  Where prisoners of war are transferred without the Detaining Power verifying the willingness and ability of the receiving Power to apply the Convention, the individual who authorized that transfer could be held criminally responsible if such a failure amounts to aiding and abetting the commission of a war crime, such as torture or murder, should such a crime be committed against the prisoners of war after the transfer.[85]
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3. Second sentence: Responsibility after transfer
1545  Once prisoners of war have been transferred, responsibility for the application of the Convention rests on the receiving Power while they are in its custody. This provision establishes the principle of the full and complete responsibility of the receiving Power from the moment the prisoners are transferred to its control. It thereby embraces the notion that the State that actually holds the prisoners – whether or not it was the same Power that captured them – is the Detaining Power and has primary responsibility for their treatment.
1546  The obligation on the receiving Power to apply the Convention lasts until the final release and repatriation of the prisoners pursuant to Article 118, until the prisoners are transferred to another Power in accordance with Article 12(2), or until prisoners of war are repatriated or transferred to a neutral Power pursuant to Articles 109–111. Until that time, the receiving State must continue to apply the provisions of the Convention, even if the armed conflict in the course of which the prisoners were captured or surrendered has come to an end.[86]
1547  Moreover, the obligations of the receiving Power are independent of the post-transfer responsibility of the transferring State, which is governed by Article 12(3). The rights and duties of the receiving State as the new Detaining Power follow directly from the Convention. The transferring and receiving Powers are, of course, at liberty to conclude a special agreement, pursuant to Article 6, on more favourable treatment of the prisoners of war.
1548  On ratifying or acceding to the Convention, a number of States made reservations to Article 12 to the effect that the transferring State would remain responsible for applying the Convention even after a transfer had been made.[87] Although formulated as reservations, these statements attempted to create additional obligations for the transferring State beyond what Article 12 requires, and do not purport to ‘exclude or to modify the legal effect’ of Article 12.[88] Therefore, these statements are better characterized as unilateral declarations,[89] and the rules on the legal effects of reservations (and objections to reservations) as set out in the 1969 Vienna Convention on the Law of Treaties do not apply to them.[90]
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E. Paragraph 3: Requirement to take effective measures to ensure treatment in conformity with the Convention
1. Post-transfer responsibility of the transferring State
1549  While paragraph 2 stipulates that the responsibility for applying the Convention rests with the receiving Power after a transfer, Article 12(3) provides for a secondary, or contingent, responsibility on the transferring State. The 1949 Diplomatic Conference wanted to avoid a situation in which the Detaining Power could absolve itself of responsibility vis-à-vis prisoners of war by transferring them to another Power. Although the principle of shared responsibility was not adopted, it was never the intention of the authors of the Convention thereby to relieve the transferring Power of all responsibility with regard to the transferred prisoners.[91]
1550  The responsibility of the transferring State comes into play the moment it learns that the transferred prisoners are not being treated in accordance with the Convention in any important respect. This means that even in the case of a transfer that conforms to the requirements of paragraph 2, the transferring State is not relieved of all of its responsibilities towards the prisoners. As one delegation emphasized at the Diplomatic Conference, the post-transfer obligation on the transferring Power is ‘a very definite and continuing obligation’.[92] The temporal scope of the post-transfer obligation is determined by the period the prisoners remain in the custody of the receiving State; it does not depend on whether the transferring State is still engaged in an international armed conflict.[93]
1551  Moreover, the transferring Power retains a responsibility towards prisoners of war irrespective of how Article 12 came to be applicable to that Power. Accordingly, where the Detaining Power has transferred prisoners of war to a neutral Power, which in turn transfers the prisoners to another State other than the country on which they depend, the obligation in paragraph 3 applies to the transferring neutral Power.
1552  If prisoners of war are transferred through several Powers, the question might arise as to whether all of the Powers that transferred the prisoners are responsible under paragraph 3 in case of a failure by the last receiving Power to carry out the Convention in any important respect. The text of the provision indicates that it only regulates the relationship between the receiving State and the State that immediately transferred the prisoners to that State; it does not create joint responsibility for all transferring States in the event of one receiving Power failing to comply with the Convention. For example, if State A transferred prisoners of war to State B, which then transferred them to State C, State A would have to take action against State B for State C’s non-compliance but not against State C if that State failed to comply with the Convention in any important respect.[94] However, if State B does not act in the event of such a failure by State C, it would constitute a failure by State B to carry out the provisions of the Convention in an important respect, requiring State A to take action against State B under paragraph 3. In addition, if State B, prior to a transfer to State C, did not satisfy itself of State C’s willingness and ability to apply the Convention, it would amount to State B not carrying out the provisions of the Convention in an important respect. In turn, this would trigger State A’s responsibility to take action against State B from the moment of the transfer and prior to any possible violation of the Convention by State C.
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2. Failure to carry out the provisions of the Convention ‘in any important respect’
1553  Paragraph 3 conditions the responsibility of the transferring Power to take action on a failure by the receiving State to carry out the provisions of the Convention in ‘any important respect’. The Convention does not explain the meaning of this phrase. One benchmark for determining whether a breach is ‘important’ is whether it violates the general obligation of humane treatment as articulated in Article 13.[95] It is clear that it covers an act or omission that qualifies as a grave breach under Article 130, whether carried out wilfully or not. In addition to grave breaches, it would constitute a failure to comply with the Convention in an important respect if the receiving Power failed to provide for the basic needs of the prisoners,[96] specifically as relates to quarters, food, water and medical care in a way that would endanger their health, or if it denied the prisoners contact with the outside world, including visits from the ICRC. Additional examples include denial of prisoner-of-war status or of the applicability of the Convention by the receiving Power,[97] and the transfer by the latter to another Power without first fulfilling the requirements of Article 12(2).[98] These examples do not constitute an exhaustive list.
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3. Notification of non-compliance
1554  The text of paragraph 3 suggests reliance on the Protecting Power to notify the transferring State of non-compliance by the receiving State. This raises the question whether, and if so how, this provision may be respected when no Protecting Power or substitute has been appointed, as has been the case in most international armed conflicts since the adoption of the Conventions in 1949.[99] The absence of a Protecting Power or substitute does not diminish the obligation on Parties to the conflict to take effective measures in case the receiving Power fails to carry out the provisions of the Convention in any important respect.
1555  Therefore, where there is no Protecting Power or substitute, the transferring Power must make sure before transfer that it has another effective and reliable method for obtaining information about possible failures by the receiving Power to carry out the provisions of the Convention in any important respect.[100] For example, in some contexts transfer agreements have included a right of access for impartial organizations.[101]
1556  Article 126 grants the ICRC such a right. However, assigning the ICRC as monitoring body under transfer agreements would be incompatible with its working methods. The confidential nature of its relations with any Detaining Power means that the ICRC will generally not inform the transferring State of its findings, except where violations persist and its confidential dialogue with the Detaining Power has had no effect. However, the ICRC will only share that information pursuant to its operating procedures and not on the basis of an agreement between the transferring and receiving States.[102]
1557  Another way for the former Detaining Power to obtain information about how prisoners of war are treated after their transfer is by establishing a system that enables it to monitor the situation of transferred prisoners of war itself. Such monitoring allows the transferring Power to determine whether it must take action against the receiving Power.[103] Several countries provide in their military doctrines for monitoring of the treatment of prisoners of war after their transfer.[104] Moreover, the establishment of post-transfer monitoring mechanisms is frequently included in transfer agreements, which typically provide for a right of access by the transferring State to the prisoners of war in their new place of internment.[105]
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4. Effective corrective measures or the return of the prisoners
1558  In the event that the receiving State fails to comply with the provisions of the Convention in any important respect, the transferring Power must take ‘effective measures’ to correct the situation or request the return of the prisoners of war. Article 12(3) also imposes an obligation on the receiving Power to comply with such a request, which should be done without delay. By the same logic, the receiving State must not hinder the measures taken by the transferring State to correct the situation.
1559  Where the failure to comply with the Convention is due to inadequate material conditions of internment, such as lack of space, food, water or medical care, measures to correct the situation may entail the transferring Power providing direct assistance, such as food, medical staff and equipment, to the receiving State or constructing additional prisoner-of-war camps. It will likely be more difficult for a transferring Power to correct the situation if the failure to comply arises from to the denial of judicial guarantees to a prisoner of war prosecuted for a criminal offence in the receiving State, or because of ill-treatment of prisoners of war by camp staff.[106] Training of the camp staff or judicial authorities in the treatment owed to prisoners of war under the Convention may not be sufficient to achieve compliance with the Convention. If for any reason the measures taken by the transferring State prove inadequate, it must request the return of the prisoners. The receiving Power must respond to such a request as quickly as possible, so that no further harm comes to the prisoners.
1560  If the requesting Power is not in a position to apply the Convention itself, it can arrange for the prisoners to be transferred to a third Power that is better equipped to receive them, provided that the conditions of paragraph 2 are met.[107]
1561  The returning Power does not, by the fact of returning the prisoners to the requesting Power, become a transferring Power such that it retains an obligation under paragraph 3 to take effective measures against the requesting Power in case of failure by the latter to comply with the Convention in any important respect. Rather, if the returning Power knows or suspects that the Power requesting the return of the prisoners is unable or unwilling to apply the Convention, it should either rectify the situation that led to the request or propose another Power that is able and willing to receive the prisoners of war.[108]
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Select bibliography
Chesney, Robert M., ‘Leaving Guantanamo: The Law of International Detainee Transfers’, University of Richmond Law Review, Vol. 40, 2006, pp. 657–752.
– ‘Prisoners of war’, version of October 2009, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
Droege, Cordula, ‘Transfers of detainees: legal framework, non-refoulement and contemporary challenges’, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 669–701.
Esgain, Albert J. and Solf, Waldemar A., ‘The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies’, North Carolina Law Review, Vol. 41, No. 3, 1963, pp. 537–596.
Ferraro, Tristan, ‘The applicability and application of international humanitarian law to multinational forces’, International Review of the Red Cross, Vol. 95, No. 891, December 2013, pp. 561–612.
Gillard, Emanuela-Chiara, ‘There’s no place like home: States’ obligations in relation to transfers of persons’, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 703–750.
Gisel, Laurent, ‘The principle of non-refoulement in relation to transfers’, in Detention in Armed Conflicts, Proceedings of the 15th Bruges Colloquium, 16–17 October 2014, College of Europe/ICRC, Collegium, No. 45, Autumn 2015, pp. 113–130.
Hingorani, Rup C., Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982, pp. 116–120.
Horowitz, Jonathan, ‘Transferring Wartime Detainees and a State’s Responsibility to Prevent Torture’, American University National Security Law Brief, Vol. 2, No. 2, 2012, pp. 43–66.
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.
Neff, Stephen C., ‘Prisoners of War in International Law: The Nineteenth Century’, in Sibylle Scheipers (ed.), Prisoners in War, Oxford University Press, 2010, pp. 57–73.
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.
Rosas, Allan, 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. 426–430.
Rowe, Peter, ‘Penal or Disciplinary Proceedings Brought against a Prisoner of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1025–1038.
Sassòli, Marco and Tougas, Marie-Louise, ‘International Law Issues Raised by the Transfer of Detainees by Canadian Forces in Afghanistan’, McGill Law Journal, Vol. 56, No. 4, 2011, pp. 959–1010.

1 - United Nations Treaty Series, Vol. 75, p. 420 (Albania); Vol. 260, p. 442 (China); Vol. 278, p. 264 (Democratic People’s Republic of Korea); Vol. 75, p. 460, and Vol. 1683, p. 229 (notification of continuation) (Russian Federation); Vol. 75, p. 462, and Vol. 1946, p. 342 (Republic of North Macedonia); Vol. 75, p. 462 (Federal Republic of Yugoslavia); Vol. 913, p. 176, and Vol. 1028, pp. 438‒439 (notification of continuation) (Viet Nam).
2 - Switzerland, Federal Department of Foreign Affairs, Notification to the Governments of the States parties to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, 17 May 1994 (Bulgaria), and Notification to the Governments of the States parties to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, 22 October 2001 (Czech Republic); United Nations Treaty Series, Vol. 2117, p. 305 (Slovakia); United Nations Treaty Series, Vol. 2117, p. 305 (Hungary); Vol. 2283, p. 218 (Poland); and Vol. 2384, p. 219 (Ukraine).
3 - United Nations Treaty Series, Vol. 314, pp. 334–335 (Australia); Vol. 653, p. 454 (Barbados); Vol. 330, pp. 358–359 (New Zealand); Vol. 278, pp. 267–268 (United Kingdom); and Vol. 213, p. 383 (United States).
4 - See Hague Regulations (1899), Article 4; Hague Regulations (1907), Article 4; and Geneva Convention on Prisoners of War (1929), Article 2. See also Brussels Declaration (1874), Article 23, and Oxford Manual (1880), Article 61.
5 - Hague Regulations (1899), Article 14; Hague Regulations (1907), Article 14.
6 - Geneva Convention on Prisoners of War (1929), Articles 25–26, 68–75 and 77.
7 - Report of the Conference of Government Experts of 1947, p. 117.
8 - See Okimoto, p. 966.
9 - Report of the Conference of Government Experts of 1947, p. 117.
10 - Ibid.
11 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 11, p. 59.
12 - See Rosas, p. 427, and Levie, pp. 105–106.
13 - Reasons included that joint responsibility was considered impracticable; that there was a risk of disagreements between the transferring and receiving Powers over the interpretation of the Convention, which could generate friction between allies and provide an excuse for interference in the affairs of the other Power; that joint responsibility could lead to a weakening or even total absence of responsibility as supervision would be difficult and it would be impossible to determine which of the two Powers was responsible for any failure to abide by the Convention; and that small nations would lack the ability to force more powerful countries to respect the Convention, thereby making joint responsibility an unfair burden on them; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 245–247 and 327–328. See also ibid. Vol. II-A, p. 563.
14 - Ibid. Vol. II-A, pp. 245–247, 328 and 437–438. Those who favoured joint responsibility considered it unacceptable that a country could transfer prisoners to another country and thereby be absolved of responsibility for their treatment; see e.g. ibid. Vol. II-A, p. 245 (Belgium).
15 - Ibid. Vol. III, p. 64 (No. 98).
16 - Ibid. Vol. II-A, p. 563.
17 - Ibid. Vol. II-A, pp. 327–328 and 330–331, and Vol. II-B, pp. 272–276.
18 - For example, the reservation by the USSR read that it ‘does not consider as valid the freeing of a Detaining Power, which has transferred prisoners of war to another Power, from responsibility for the application of the Convention to such prisoners of war while the latter are in the custody of the Power accepting them’. The reservations of Albania, People’s Republic of China, Democratic People’s Republic of Korea, Russian Federation, North Macedonia and Viet Nam remain in force. States that have withdrawn their reservations to Article 12 include Belarus, Bulgaria, Czech Republic, the German Democratic Republic, Hungary, Poland, Romania, Slovakia and Ukraine. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 342–356, and fn. 1 of this commentary. See also Levie, p. 106.
19 - Australia, Barbados, New Zealand, United Kingdom and United States; see fn. 3 of this commentary.
20 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 245–247. For example, the delegate of the United Kingdom considered that ‘(t(here might be occasions when a detaining Power would consider it desirable and even proper to transfer persons from their territory to a more favourable climate, for example, which could not necessarily be claimed to be a case of urgent necessity. It would, however, be in the best interests of the prisoners so to transfer them.’ See Minutes of the Diplomatic Conference of Geneva of 1949, Committee II, Vol. I, 4th meeting, pp. 12–14.
21 - For a discussion, see Hingorani, p. 118.
22 - See also the commentary on Article 1, para. 177.
23 - See e.g. Droege, p. 683.
24 - Which was likewise based on Article 4(1) of the 1899 Hague Regulations.
25 - This principle has been recognized since the seventeenth century. See William Edward Hall, A Treatise on International Law, 7th edition, edited by Alexander Pearce Higgins, Clarendon Press, Oxford, 1917, p. 433, note 2. See also Neff, pp. 62–63.
26 - See e.g. Jean-Jacques Rousseau, The Social Contract, 1762, translated by G.D.H. Cole, Cosimo Classics, New York, 2008, pp. 19–20, and Hingorani, p. 88.
27 - For an explanation of who qualifies as a prisoner of war, see the commentary on Article 4. Pursuant to Article 5(1), a person who qualifies as a prisoner of war enjoys the protection of the Convention from the moment they fall into the power of the adversary until their final release and repatriation. During this period, the person must be treated in accordance with the Convention. For a discussion on the temporal scope of the Convention, see the commentary on Article 5, section C.
28 - For a discussion of the law of State responsibility as part of the legal framework relevant to the interpretation of the Convention, see Introduction, section C.5.e.
29 - Draft Articles on State Responsibility (2001), Commentary, p. 39, para. 7. See also Sanna, p. 981.
30 - See also Article 131. See also Remy Jorritsma, ‘Where General International Law Meets International Humanitarian Law: Attribution of Conduct and the Classification of Armed Conflicts’, Journal of Conflict and Security Law, Vol. 23, No. 3, 2018, pp. 405–431, at 419–420.
31 - See Articles 25–28 for more detailed rules on quarters, food and clothing of prisoners of war and Articles 29–31 for more detailed rules on hygiene and medical attention.
32 - Draft Conventions submitted to the 1948 Stockholm Conference, Remarks on draft article 11, p. 59.
33 - See Articles 129–130.
34 - See also Article 13(2), which imposes an obligation on the Detaining Power to ensure that prisoners of war are protected at all times.
35 - In Mrkšić, the ICTY Appeals Chamber held that a Party needs to ensure, when transferring prisoners to another entity or authority within that Party, that the receiving unit or authority will comply with its humanitarian obligations towards the prisoners; see Mrkšić Appeal Judgment, 2009, para. 71.
36 - See also Introduction, para. 57; Sanna, pp. 981–982; and Krähenmann, p. 367. This point was emphasized in the UK report of the Baha Mousa public inquiry. Although the Inquiry concerned the treatment of Iraqi civilian internees by UK armed forces, it contained general conclusions and recommendations that are also relevant to prisoners of war. With regard to training, the Inquiry concluded that the general training the soldiers received in the law of armed conflict ‘lacked specific guidance on how to handle a prisoner; what the permitted treatment of a prisoner actually was in practical terms; and most importantly what type of treatment was expressly forbidden’ (Vol. II, para. 6.67). In addition, the Inquiry identified deficiencies in specific teaching courses, including the training given to tactical questioners and interrogators. Accordingly, it made several recommendations, both general (Recommendations 47–58) and specific (Recommendations 59–73), on training soldiers in the handling of prisoners; see United Kingdom, The Report of the Baha Mousa Inquiry, Report of the public inquiry chaired by Sir William Gage, The Stationery Office, London, Vol. II, 2011, paras 6.66–6.73 and 6.339–6.349, and Vol. III, pp. 1279–1282 and 1282–1286. The Al Sweady Public Inquiry Report referred to several of these recommendations; see United Kingdom, The Report of the Al Sweady Inquiry, Report of the public inquiry chaired by Sir Thayne Forbes, The Stationery Office, London, Vol. II, 2014, para. 5.101.
37 - See the commentary on Article 1, section E.1. See also the commentaries on Article 45 of the First Convention, para. 2716, and on Article 46 of the Second Convention, para. 2828.
38 - For further details of this obligation, see the commentary on Article 127, section D.
39 - Although the Convention was drafted on the assumption that the Detaining Power is a State, Article 12 must today be viewed in light of the possibility that an international organization is party to an international armed conflict. Depending on the level of control exerted by the UN over the troops put at its disposal, there is a presumption, albeit rebuttable, where multinational operations are conducted under UN command and control that only the UN and not the troop-contributing countries is party to the international armed conflict. If prisoners of war are captured in the course of such operations, it follows mutatis mutandis that the UN is responsible for their treatment under customary international humanitarian law. See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared for the 32nd International Conference of the Red Cross and Red Crescent, Geneva, 2015, p. 24, and Ferraro, p. 593.
40 - For a general discussion of the principle of assimilation, see Introduction, section A.3.c. For the principle of assimilation in penal and disciplinary matters specifically, see the commentary on Article 82(1), section C. See also Rosas, p. 426.
41 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 153, paras 8.26–8.26.1, which provides that the State whose troops effected the initial capture is the capturing Power and that the responsibility for the prisoners lies with that Power.
42 - For a discussion on the notion of joint responsibility, see André Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’, Michigan Journal of International Law, Vol. 34, No. 2, 2013, pp. 358–438.
43 - See e.g. United Kingdom, Manual of the Law of Armed Conflict, 2004, pp. 153–154, paras 8.26.2–8.27. See also European Court of Human Rights, Hassan v. UK, Judgment, 2014, paras 76 and 78–79. The Court concluded that, coupled with a capturing State’s initial ‘physical power and control’ over the detainee, its subsequent authority over the detention regime – in particular, its ‘responsibility for the classification of … detainees under the Third and Fourth Geneva Conventions and for deciding whether they should be released’ – establishes a State’s continuing responsibility.
44 - In any event, States involved in multinational operations which are not the Detaining Power are still bound by the obligation of Article 1 to ensure respect for the Convention by other States, including the Detaining Power; see the commentary on Article 1, paras 197–198.
45 - Approval for the release or transfer of some operational control to another State, however, may not be sufficient to relieve a Detaining Power of responsibility; see e.g. European Court of Human Rights, Hassan v. UK, Judgment, 2014, para. 78.
46 - On the post-transfer responsibilities of the transferring Power, see section E.
47 - See e.g. Canada, Prisoner of War Handling Manual, 2004, p. 1-7; New Zealand, Military Manual, 2019, Vol. 4, p. 12-61, para. 12.11.1; and Philippines, LOAC Teaching File, 2006, pp. 9-9 and 23-7.
48 - See e.g. United States, District Court for the Southern District of Florida, Noriega case, Order, 2007.
49 - For example, during the 1990–1991 Gulf War, some of the Iraqi prisoners of war captured by the United Kingdom were evacuated soon after by US transport to transit camps belonging to the United States. Conversely, General Noriega was captured by the United States in 1989 during the armed conflict with Panama and transferred to France 21 years later, in satisfaction of an extradition request. See Okimoto, p. 968, and United States, District Court for the Southern District of Florida, Noriega case, Order, 2007.
50 - The term ‘neutral Power’ refers to a State which is not a Party to the international armed conflict in question. For a further discussion, see the commentary on Article 4B(2), para. 1082.
51 - Pursuant to this approach, the applicability of the Convention for the neutral State would thus be triggered by Article 12 itself (rather than by Article 2). See Rosas, p. 428, who comes to this conclusion based on a literal interpretation of Article 12, and Okimoto, p. 968.
52 - For a further discussion on internment by neutral Powers, see the commentary on Article 4, section J.2.
53 - See also the commentary on Article 39(1), para. 2483
54 - See the commentary on Article 139, para. 5438. See also e.g. Canada, Prisoner of War Handling Manual, 2004, p. 1-7.
55 - See the commentary on Article 2, fn. 48 and para. 281, and e.g. ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared for the 32nd International Conference of the Red Cross and Red Crescent, Geneva, 2015, p. 24, and Ferraro, p. 593.
56 - See UN Secretary-General’s Bulletin (1999), Section 8, which states: The United Nations force shall treat with humanity and respect for their dignity detained members of the armed forces and other persons who no longer take part in military operations by reason of detention. Without prejudice to their legal status, they shall be treated in accordance with the relevant provisions of the Third Geneva Convention of 1949, as may be applicable to them mutatis mutandis.
57 - See Krähenmann, p. 370, and Rowe, p. 1037, fn. 64.
58 - See ICTY Statute (1993), Article 29; ICC Statute (1998), Articles 59, 86, and 89; and UN Security Council, Res. 827, 25 May 1993. To be noted in this respect is Article 103 of the 1945 UN Charter, which states that ‘(i(n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’.
59 - See Articles 129–132.
60 - See Articles 82–108.
61 - See e.g. Gillard, p. 710. However, with respect to the transfer of prisoners of war to a neutral State, this requirement must be read in light of Article 4B(2), which provides for certain exceptions from some of the provisions of the Convention (without prejudice to any more favourable treatment which the Power may choose to give the prisoners). See the commentary on Article 4, section J.2.e.
62 - See e.g. Canada, Prisoner of War Handling Manual, 2004, Annex A, p. 1A – 1 (this ‘would have to be resolved between participating States before any transfer of PW could occur, and should occur early in the coalition campaign planning phase’).
63 - Rosas, p. 428.
64 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1278.
65 - Le Petit Larousse, Larousse, Paris, 2008, p. 73.
66 - This proposal was supported by Denmark. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 245. Emphasis added.
67 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 136.
68 - See e.g. Military Police Complaints Commission of Canada, Final Report Concerning a Complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008, Ottawa, 27 June 2012, p. 333.
69 - See Stuart Hendin, ‘“Do as we say, Not as we do”: A Critical Examination of the Agreement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of Afghanistan’, New Zealand Armed Forces Law Review, Vol. 7, 2007, pp. 18–47, at 31.
70 - During the 1949 Diplomatic Conference, one of the concerns voiced over the principle of joint responsibility was notably that it could give the impression that the transferring Power doubted the good faith of its ally, thus creating friction among coalition partners; see e.g. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 246 (United Kingdom). In the same vein, Hingorani, p. 119, writes that the Detaining Power ‘has simply to believe the word of her ally who, impatient to get the labour or any other advantage from the prisoners, may undertake to comply without intending to do so. The captor must necessarily believe what its ally says; otherwise relations between them may get strained.’
71 - Examples include the 1982 Memorandum of Agreement between the Republic of Korea and the United States and the arrangements between the United Kingdom and the United States during the 1990–1991 Gulf War. See also Okimoto, p. 969.
72 - For a discussion of bilateral agreements in relation to non-refoulement, see Gisel, pp. 126–127. See also Sassòli/Tougas, p. 980.
73 - See also Krähenmann, p. 371.
74 - See Gisel, p. 127.
75 - See e.g. United States, Army Regulation on Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 3-11(b), requiring a visit from a US representative to the internment facility prior to transfer.
76 - Okimoto, p. 969.
77 - See e.g. Turkey, LOAC Manual, 2001, p. 52 (‘The detaining power should form an observer team in order to ensure that prisoners of war are treated well’); United Kingdom, Joint Doctrine Captured Persons, 2015, p. 12-3, para. 1207 (‘close liaison with other states’ holding facility staff’); and United States, Law of Armed Conflict Deskbook, 2012, p. 84 (‘To ensure compliance with [the Third Geneva Convention], U.S. Forces routinely establish liaison teams …’). It is important that such observation teams have the relevant expertise to allow for a proper assessment of the detention conditions. See, further, para. 1557 of this commentary.
78 - See Okimoto, p. 970.
79 - See e.g. United States, District Court for the Southern District of Florida, Noriega case, Order, 2007, in which the Court held that although the United States did not ask France to recognize General Noriega’s prisoner-of-war status after the transfer, the United States had nevertheless satisfied itself that Noriega would be afforded the same benefits that he enjoyed during the 15 years of US custody, in accordance with the 1992 Order of the same Court declaring Noriega a prisoner of war.
80 - This applies unless the Parties have agreed that only the transferring Party will carry out the status determination; see Okimoto, p. 970.
81 - See e.g. Memorandum of Understanding between Afghanistan and Denmark concerning the Transfer of Persons between the ISAF Danish Contingent and Afghan Authorities (2005, as amended in 2007), section 6(2); Arrangement between Canada and the United States concerning the Transfer of Persons between Canadian Forces and US Forces in Afghanistan (2011), para. 9(4); Supplemental Arrangement to the Status of Forces Agreement between the UN and the Central African Republic (2014), para. 16; and Agreement between the European Union and the Central African Republic concerning the Transfer of Detained Persons (2014), Article 4(5).
82 - See e.g. Arrangement between the United Kingdom and the United States concerning the Transfer of UK-held Detainees to Afghan Authorities at Parwan (2013), paras 7 and 17; Supplemental Arrangement to the Status of Forces Agreement between the UN and Mali (2013), para. 11; and Agreement between the European Union and the Central African Republic concerning the Transfer of Detained Persons (2014), Article 4(5).
83 - See Articles 100–101.
84 - See e.g. United Kingdom, Joint Doctrine Captured Persons, 2015, pp. 12-1–12-2, para. 1205. Some transfer agreements include a provision proscribing the imposition by the Detaining Power of the death penalty on transferred persons, e.g. Arrangement for the Transfer of Detainees between the Government of Canada and the Government of the Islamic Republic of Afghanistan (2007), para. 12. See also e.g. European Court of Human Rights, Al-Saadoon and Mufdhi v. UK, Judgment, 2010, paras 137–138 and 144, where the Court held that the psychological suffering caused by the fear of a death sentence and execution following a transfer by the United Kingdom to the custody of Iraqi courts constituted inhuman treatment. It further held, paras 137–138, that a Member State of the European Convention on Human Rights should not enter into any arrangement or agreement with another State, such as in the present case, with a view to transferring individuals to stand trial and subjecting them to a real risk of the death penalty, if such an agreement conflicts with its obligations under the Convention. See also Louise Doswald-Beck, ‘Judicial Guarantees’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 469–494, at 485.
85 - See Sassòli/Tougas, p. 1002. Although the case dealt with a transfer from one authority to another within the same Detaining Power, it is of interest to note that in Mrkšić, the ICTY Appeals Chamber found that the defendant’s failure to ensure the safety of the prisoners after transfer substantially contributed to their murder, and he was found guilty of having aided and abetted the commission of the war crime of murder; see Mrkšić Appeal Judgment, 2009, paras 101–103.
86 - See Horowitz, p. 49, and Okimoto, p. 970.
87 - See para. 1508 of this commentary. A number of other States made objections to these reservations.
88 - Vienna Convention on the Law of Treaties (1969), Article 2(1)(d). See also Okimoto, p. 967.
89 - This conclusion is supported by the International Law Commission’s Guide to Practice on Reservations to Treaties, which states that ‘unilateral statements which are submitted as reservations but which, instead of limiting themselves to excluding (negatively) the legal effect of certain treaty provisions, actually seek to increase (positively) the obligations of other contracting States … are [not] reservations’; Guide to Practice on Reservations to Treaties, UN Doc. A/66/10/Add.1, 2011, pp. 91–92.
90 - Okimoto, p. 967. For the legal effects of such unilateral declarations, see International Law Commission, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, UN Doc. A/61/10, 2006, Principles 7 and 9.
91 - The States that rejected the principle of shared responsibility set out in the Stockholm draft did so ‘because of the form in which it is stated, and not because we do not agree that there must be a continuing responsibility [on the transferring State]’; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 273.
92 - Ibid. Vol. II-B, p. 273 (New Zealand).
93 - Horowitz, p. 49 (‘Article 12 … would become hollow if [it] allowed a State to transfer all of its prisoners of war … to a co-belligerent and then skirt its transfer obligations by ending its participation in the conflict’). For example, General Noriega was captured by the United States in 1989 and was extradited to France in 2010. The United States was therefore under the obligation to take action in case of a failure by France to comply with the Convention in any important respect, even though the international armed conflict between the United States and Panama had ended. This obligation continued until France repatriated General Noriega to Panama in 2011. See e.g. Okimoto, p. 970.
94 - Okimoto, pp. 970–971.
95 - For a discussion of the obligation of humane treatment, see the commentary on Article 13, section C.1.
96 - Because of the distinct needs of certain categories of prisoners of war, the assessment whether a Detaining Power is providing for the prisoners’ basic needs is an individual one. For a further discussion of the protections for such categories of prisoners, see Introduction, section A.3.b.
97 - See e.g. Canada, Prisoner of War Handling Manual, 2004, Annex A, p. 1A-1.
98 - See Okimoto, p. 971.
99 - See Introduction, section A.3.e, and the commentary on Article 8, section H.
100 - See Droege, 2008, p. 698.
101 - See e.g. Arrangement for the Transfer of Detainees between the Government of Canada and the Government of the Islamic Republic of Afghanistan (2007), para 2.
102 - For a discussion of this topic, see ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law or of other fundamental rules protecting persons in situations of violence’, International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 393–400.
103 - See also the commentary on Article 1, para. 201.
104 - See e.g. Netherlands, Military Manual, 2005, p. 86, and United Kingdom, Joint Doctrine Captured Persons, 2015, p. 12-10, para. 1226 (stating that there is ‘no legal obligation upon the UK to track and monitor detainees once transferred to another state’ but that ‘as a matter of policy’ it should do so ‘for a reasonable period of time’). Australia’s military manual gives as an example its post-transfer practice during the Vietnam War, where ‘a staff officer from the HQ Australian Force Vietnam kept records of these PW and their location and … visited the various PW camps each month to inspect their conditions, accept complaints and report on their overall treatment’; Manual of the Law of Armed Conflict, 2006, p. 10-6. As another example, in the 1990–1991 Gulf War, the United Kingdom established a team to monitor the treatment of prisoners of war captured by the United Kingdom, ‘regardless of their final place of detention’; Manual of the Law of Armed Conflict, 2004, p. 153, para. 8.26.2, fn. 95. The United States did the same; it sent camp advisory teams to Saudi Arabia ‘to establish liaison with Saudi units to provide technical assistance, and to maintain accountability for [prisoners of war] … transferred to the Saudis’; Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, April 1992, p. 578.
105 - See e.g. Arrangement for the Transfer of Enemy Prisoners of War and Civilian Internees from the Custody of the British Forces to the Custody of the American Forces (1991), and Gisel, pp. 127–128.
106 - See Okimoto, p. 971.
107 - See e.g. Canada, Prisoner of War Handling Manual, 2004, Annex A, p. 1A-1 (‘The original transferring States can arrange for the prisoners to be transferred to another State(s) if they are still unable to deal with them. However, in the event that no other States are willing or able to take on responsibility for the prisoners, each State will either have to take back the PW captured by its forces and establish camps or release them’).
108 - Okimoto, p. 972.