Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 126 : Supervision by the Protecting Powers and the ICRC
Text of the provision*
(1) Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access to all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage and arrival of prisoners who are being transferred. They shall be able to interview the prisoners, and in particular the prisoners’ representatives, without witnesses, either personally or through an interpreter.
(2) Representatives and delegates of the Protecting Powers shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure.
(3) The Detaining Power and the Power on which the said prisoners of war depend may agree, if necessary, that compatriots of these prisoners of war be permitted to participate in the visits.
(4) The delegates of the International Committee of the Red Cross shall enjoy the same prerogatives. The appointment of such delegates shall be submitted to the approval of the Power detaining the prisoners of war to be visited.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

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    A. Introduction
    4922  Article 126 provides for an in situ (on site) supervision mechanism for scrutinizing compliance with the rights and obligations governing the protection of prisoners of war. Supervision may be undertaken by two actors: the Protecting Powers, where such are appointed according to Article 8 (or its substitutes appointed according to Article 10), and the ICRC. This provision recognizes the supervisory role the ICRC had already been playing prior to 1949 on the basis of its right of humanitarian initiative. The ICRC’s right to access all persons detained in relation to an international armed conflict is today recognized as customary.[1]
    4923  Article 126 is a key provision for ensuring respect for the Third Convention, as is the parallel Article 143 of the Fourth Convention in relation to that Convention. The effectiveness of the Article 126 mechanism is ensured through a detailed list of prerogatives granted to the persons conducting the supervisory visits (hereinafter referred to as ‘supervisors’). All these prerogatives are essential to enable the supervisors to get an accurate idea of the living conditions and treatment of the prisoners of war they are visiting, detect any shortcomings and recommend measures to redress them. The existence of such a mechanism is generally considered a strong incentive for the Detaining Power to implement the Third Convention properly, and therefore helps prevent violations.
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    B. Historical background
    4924  The relevance of supervising the treatment of prisoners of war through visits to them in their places of captivity, as well as providing them with humanitarian relief, was recognized as early as 1864.
    4925  The ICRC has been carrying out visits to prisoners of war, to monitor their treatment and distribute relief, from the beginning of its existence. The first ICRC delegates began visiting prisoner-of-war camps in 1864, during the German-Danish War.[2] Since then, such visits have become one of the ICRC’s essential tasks during international armed conflicts, one which the organization has often been alone in performing. The 1899 Hague Regulations gave this task legal recognition, its Article 15 authorizing relief societies for prisoners of war to visit places of internment ‘for the effective accomplishment of their humane tasks’.
    4926  It was during the First World War that representatives of the Protecting Powers, given a mandate to that effect by the Powers on which the prisoners depended, were authorized by the Detaining Powers to inspect prisoner-of-war camps.[3] Visits were carried out separately by representatives of both the Protecting Powers and the ICRC, often using very similar methods.
    4927  These visits, far from duplicating each other, can be viewed as complementary. The position of the ICRC was different from that of the Protecting Powers. The latter were acting on behalf only of the Powers that had appointed them and for the benefit of the prisoners of war belonging to those Powers. ICRC visits, meanwhile, could apply to all prisoners without regard to nationality, solely on the grounds that they were in enemy hands as the organization was not acting on behalf of a particular Power. Its camp visits could apply to all prisoners without regard to nationality, solely on the basis of the fact that they were prisoners. The ICRC’s subsequent reports were transmitted not only to the Power on which the prisoners depended but, more importantly, to the Detaining Power visited, with suggestions for potential improvements. They were also published widely.[4]
    4928  Supervision of prisoner-of-war camps by the Protecting Powers was further regulated by the 1929 Geneva Convention on Prisoners of War, whose Article 86 recognized the role of the Protecting Powers in ensuring the Convention’s application. More specifically, its second and third paragraphs established the principle of visits to all places where prisoners of war might be held and detailed how these visits were to take place. The 1929 Convention recognized the ICRC’s humanitarian role in Article 88 but did not formally establish its monitoring role.
    4929  It was under this legal regime that Protecting Powers visited prisoner-of-war camps during the Second World War.[5] For its part, the ICRC was able to resume and extend from 1939 onwards the factual monitoring it had carried out during the First World War. It did so on the basis of its right of humanitarian initiative set forth in Article 88 of the 1929 Convention. Where permitted, ICRC monitoring visits to places of internment in Western Europe, combined with relief distributions, often had a positive impact on prisoners’ living conditions. In other cases, the treatment of prisoners of war proved wholly inadequate.[6] This was for a variety of reasons, including the fact that Japan and the USSR were not party to the 1929 Convention; a lack of goodwill on the part of certain States; the downward spiral of reciprocity; and, for the ICRC, the absence of a legal mandate in relation to access and conditions for visits.
    4930  In 1946, the ICRC submitted a number of suggestions made either by itself or by National Societies to strengthen the means of supervision.[7] Most of these recommendations were endorsed by the Conference of Government Experts the following year.[8] This led to the draft of the present Article 126 of the Third Convention proposed by the 17th International Conference of the Red Cross in Stockholm[9] and adopted without much discussion by the 1949 Diplomatic Conference.[10]
    4931  It was clearly the intention of the High Contracting Parties to establish a strong supervision mechanism, endowed with precise and detailed prerogatives. Improvements on Article 86 of the 1929 Convention, aimed at cutting short discussions on possibly divergent interpretations, limiting exceptions and avoiding arbitrary restrictions, were incorporated in Article 126 of the 1949 Convention. These included:
    – expanding the role of the Protecting Powers;
    – explicitly recognizing the supervisory role of the ICRC, with the same prerogatives as the Protecting Powers;
    – strengthening and clarifying the prerogatives of the supervisors: the right to visit all places where prisoners of war may be, including transit ones; a non-exhaustive list of places that could be visited, to prevent restrictive interpretations; and the full liberty of the supervisors in selecting the places to visit and in deciding the duration and frequency of visits.
    4932  In addition, the right to speak with prisoners without witnesses was bolstered by the insertion of the wording ‘shall be able to interview the prisoners’, in place of ‘may hold conversation with prisoners’ used in the 1929 Convention. The deletion of the ambiguous phrase ‘as a general rule’ contained in the 1929 Convention furthermore allowed no exception to the right of supervisors to interview prisoners without witnesses. The clause providing for the military authorities to be notified of visits was dropped to avoid it being misinterpreted as an essential condition and to ensure that it could not be used to delay visits, as had happened on previous occasions.[11]
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    C. Discussion
    1. Role of the Protecting Powers
    4933  Because of their general character, the provisions relating to the concept and role of the Protecting Powers are placed in Article 8 of the Convention, among the provisions common to all four 1949 Conventions. Thus, where Protecting Powers are appointed, Article 126 should be read in conjunction with Article 8.[12]
    4934  In terms of the protection of prisoners of war, discussion of the role of Protecting Powers remains essentially academic. This is because Protecting Powers have been appointed in international armed conflicts only rarely since 1949, and they played virtually no part in monitoring respect for the Third Geneva Convention as foreseen in Article 126.[13]
    4935  In practice, visits to prisoners of war, and therefore in situ direct supervision of implementation of the Third Convention, have essentially been performed by the ICRC, acting on the basis of the prerogatives granted to it by paragraph 4 of Article 126.
    4936  For this reason, in the text below, Article 126(4), which for the first time legally recognized the supervisory role of the ICRC and explicitly afforded its delegates the same prerogatives as the representatives or delegates of the Protecting Powers, is commented on first. It is also for this reason that the practice and experience of the ICRC as a supervisory body are mainly referred to, rather than that of Protecting Powers, as they have largely shaped how Article 126 is interpreted and applied today.
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    2. Role of the ICRC
    a. Supervisory role
    4937  Article 126(4), first sentence, legally establishes the supervisory role that the ICRC had for decades undertaken on its own initiative. This does not change the part played hitherto by the ICRC in relation to prisoners of war but expressly confirms that ICRC delegates enjoy the same detailed prerogatives as representatives or delegates of the Protecting Powers when visiting prisoners of war. However, unlike a Protecting Power, which may be limited to defending the interests of a particular Power, the ICRC is able to go into all places where prisoners of war are held, whatever their nationality or origin.
    4938  Article 126 grants the ICRC a direct right, regardless of whether Protecting Powers have been appointed. The separate paragraph reflects the specific nature of the ICRC as an independent, neutral and impartial humanitarian organization. In this sense, its role is also distinct from the subsidiary role of substitute to assume the humanitarian functions of the Protecting Power which, under specific circumstances, may be entrusted to a humanitarian organization (such as the ICRC) by the Detaining Power by virtue of Article 10(3).[14]
    4939  Stated in this form, supervision under Article 126 is left to the ICRC’s initiative and may be carried out freely according to circumstances. In performing this role, the ICRC is not working according to a mandate by a Power on which the prisoners depend and retains full discretion regarding its own actions. This is in line with the specific humanitarian nature of the ICRC and its principles of independence, neutrality and impartiality.[15] It also reflects the ICRC’s concern that it would not always be suitable or even equipped for exercising in every case complete supervision of the application of the Conventions. At the time of drafting the Convention, the ICRC was also concerned about jeopardizing its reputation for independence and neutrality by carrying out tasks which at that time it considered to be of a somewhat political nature and thus should fall to the Protecting Powers only. The ICRC initially had a very restricted interpretation of the concept of ‘humanitarian functions’. Its position evolved over time and was fully revised in 1971, the ICRC recognizing that all the tasks falling to a Protecting Power were indeed humanitarian in nature.[16]
    4940  The express right to visit prisoners of war must also be distinguished from the right of humanitarian initiative enshrined in common Article 9.[17] While a proposal made by the ICRC based on its right of humanitarian initiative may or may not be accepted by the concerned Parties, an ICRC request, based on Article 126, to visit a place where prisoners of war are held must be accepted.
    4941  In practice, the absence of Protecting Powers in most international conflicts since 1949 has significantly increased the importance of the ICRC’s role, as well as of its humanitarian right to request access to all prisoners of war.[18] The reality is that the ICRC has requested this access since 1949. Its right to visit prisoners of war – wherever they may be held – is included in all the memoranda that the organization transmits to the Parties at the beginning of an international armed conflict to remind them of their obligations under international humanitarian law.[19]
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    b. Additional role
    4942  It is important to mention that the role of the ICRC on behalf of prisoners of war is not merely supervisory. In addition to identifying problems and pointing them out to the Detaining Power, the ICRC seeks to ensure that individual and collective needs are met, whether by the Detaining Power on its own or with ICRC support.
    4943  Taking into account that the Detaining Power retains the primary responsibility for fully implementing the Third Convention, the ICRC may provide additional support, based on its role in relation to the Central Tracing Agency (established and managed by the ICRC)[20] or on its right to offer its services as a humanitarian and impartial organization.[21] That mandate encompasses activities including, but not limited to: making suggestions for practical measures to enhance the protection accorded to prisoners of war under the Convention; providing direct, regular and individual services to the prisoners, such as the restoration and maintenance of family links through Red Cross messages or other means; despatching and distributing relief (foodstuffs, clothing and other essential items); and providing medical assistance or technical support in the fields of water, sanitation and nutrition. In short, in accordance with Article 9, the ICRC may offer to do anything that can contribute to the humane treatment of those persons to whom the Convention is applicable.
    4944  Not negligible is the fact that ICRC visits may be the only direct contact the prisoners will have with the outside world, sometimes for extended periods. For them, these visits, and especially the possibility of speaking with the delegates in private, provide a degree of moral comfort.
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    3. Individual representatives and delegates
    a. Approval of the appointment
    4945  Article 126 confers prerogatives on representatives or delegates of the Protecting Powers and on ICRC delegates.
    4946  As concerns the Protecting Powers, the distinction between ‘representatives’ and ‘delegates’ is explained by Article 8. ‘Representatives’ refers to members of the diplomatic or consular staff of a Protecting Power. As they will already be serving in the country, they will need no special approval to fulfil this particular function entrusted to them by their government. ‘Delegates’, on the other hand, will be persons recruited by the Protecting Power for this purpose, sometimes in the country itself, outside the diplomatic corps and among its own nationals or even nationals of another neutral country. Those delegates, as stated in Article 8, will be subject to the approval of the Power with which they are to carry out their duties.
    4947  The situation for staff of the ICRC is the same as that for delegates of a Protecting Power: according to the second sentence of paragraph 4, their appointment is also subject to the approval of the Detaining Power. The form this approval takes may be decided upon by the Detaining Power. It may be given explicitly in a specific clearance, for the duration of a delegate’s assignment or for a set duration. In practice, it may also be given implicitly at the beginning of the delegate’s assignment by the granting of a visa or other official document.
    4948  The Detaining Power is entitled to approve each ICRC delegate, but this prerogative may not be abused. Nor in any circumstance may it amount to denial of ICRC access to prisoners of war by way of repeated rejections of any delegate proposed by the ICRC, as this would violate Article 126.[22]
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    b. Profiles and skills of the supervisors
    4949  A range of professional skills and expertise is required to perform a supervisory visit. The visiting team may therefore include medical doctors, including psychiatrists,[23] water, sanitation and habitat engineers, legal advisers, nutritionists and interpreters, as decided by the supervisors and as required by the scope and focus of the visit. Gender specificities must also be taken into account, both in the composition of the team and in the awareness of the supervisors.
    4950  It is important to mention the role of the inspecting medical doctor in relation to the numerous provisions of the Third Convention concerning the health of prisoners of war. In addition to visiting the premises devoted to health services and observing the organization and quality of these services, including access to adequate health care, the supervising medical personnel will need to talk to the medical personnel of the Detaining Power. According to contemporary standards of medical ethics, including medical confidentiality, only the medical members of the supervisory team may receive access to the individual medical files of the prisoners if this is required to provide them with the medical assistance they need. They may share elements of this information, when this is necessary to ensure the proper health care and protection of the prisoner, subject to the free and informed consent of the prisoner or the reliance on an alternative lawful basis if such consent is not possible given the vulnerability of the individual.[24]
    4951  Given the responsibility and confidence vested in them, the representatives or delegates must act professionally at all times. For example, they must refrain from passing or receiving any document or object from/to the prisoners without the prior authorization of the Detaining Power.
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    4. Prerogatives of the supervisors
    4952  Article 126 provides the supervisors with a set of prerogatives according to which their visits can be planned and implemented.
    4953  It is the combination of these prerogatives that enables the supervisors to collect firsthand information that is as objective and reliable as possible about the living conditions and treatment of the prisoners of war. Each of the prerogatives has a specific role to play and complements the others. Therefore, each is necessary and should not be compromised.
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    a. Access to all places where prisoners of war may be
    i. Access to all places
    4954  Article 126 expresses a general rule: ‘all places where prisoners of war may be’ must be open to supervision. The words ‘shall have permission’ indicate that the supervisors (once approved, as discussed above), following a request of permission to visit the place of detention or internment they have chosen, must be granted such permission. Only imperative military necessity would allow a visit to be exceptionally postponed (see paras 4968 – 4976 of this commentary).
    4955  The 1929 provision requiring the military authorities to be informed of visits was dropped from Article 126. It is therefore, strictly speaking, not an obligation or a formal precondition for a visit. Still, in practice, the ICRC generally notifies the Detaining Power of its visits in advance to facilitate logistical or organizational aspects,[25] or to obtain specific security guarantees for its delegates travelling in conflict areas or crossing front lines.
    4956  No restriction may be imposed on which places may be visited. Places open to supervision include all the places ‘where prisoners of war may be’, temporary or permanent, regardless of their denomination, location, function or status. Visits should also be permitted in places where there is reason to believe that prisoners may be present or, have been present or where they are normally present (even if they are not necessarily there at the time of visit) (‘places where they may be’ (emphasis added)).
    4957  The supervisors of the Protecting Powers and of the ICRC must be able to reach all prisoners of war, whether held in groups or in isolation, in the territory of the Detaining Power, in occupied territory, or in any other place, permanent or temporary, under the jurisdiction or effective control of the Detaining Power.
    4958  Article 126(1) provides a non-exhaustive list of places open to supervision, to prevent possible discussions about the extent of the supervisors’ access. It makes clear that all places of internment, imprisonment and labour (not only the main camps) are covered, as they are the three types of place in which the Convention finds its widest application. This includes also detention quarters (in which prisoners of war may serve disciplinary sentences), penitentiaries (where prisoners of war may serve sentences handed down by courts),[26] workshops or places occupied by labour detachments, hospitals, clinics or other medical facilities where sick or wounded prisoners of war may be accommodated and places of worship.
    4959  Places of departure, passage and arrival, are also specifically mentioned in Article 126(1), in order to cover all types of places that may be used to hold prisoners of war from the moment of capture.[27] Supervision of compliance with the Third Convention, including the provisions that apply at the very beginning of captivity, must therefore be permitted from the first moment of capture and throughout captivity.
    4960  The Detaining Power must therefore keep an updated record of all the places where prisoners of war under its jurisdiction or effective control may be and cannot keep them secret from the Protecting Powers or from the ICRC. Application in good faith of the Convention would require that the Protecting Powers and the ICRC be notified of all existing places of detention and that any of their enquiries about such places receive a quick and transparent response.[28] This obligation also derives from the obligation to notify the Central Tracing Agency of all relevant information related to prisoners of war (Article 123). The notification of the place where a prisoner of war is confined while awaiting trial or where they will serve their sentence is explicitly required by Articles 104 and 107.
    4961  All places where prisoners of war ‘may be’ also includes places where they are not interned, for example if they have been released on parole.[29] In that case, the ICRC must be able to visit the prisoner thus released to monitor their situation until their final repatriation at the end of active hostilities. This does not apply to prisoners who have been wholly released on parole and have returned home.
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    iii. Access to all premises occupied by prisoners of war
    4962  In all the places where there are prisoners of war, all the premises which they use, either permanently or temporarily, must be open to supervision: dormitories, canteens, sanitary installations, kitchens, infirmaries, confinement cells, etc. The same applies to premises not normally used for accommodating prisoners of war but devoted to their needs, such as offices, warehouses and other storage places. This helps the supervisors to gain a comprehensive overview of all aspects of the prisoners’ lives and of the organization and management of the place, as they directly affect the ability of the Detaining Power to respect the provisions of the Convention. The right of access to all premises also helps to avoid prisoners being hidden during supervisory visits (for example, in unusual locations such as basements or cupboards).
    4963  In practice, ICRC delegates usually make a tour of the premises used by and for the prisoners at the beginning of a visit. They are usually accompanied by a representative of the Detaining Power, who can explain the situation, answer delegates’ queries and ensure that access is granted to all areas devoted to prisoners of war. The delegates must be free to decide which part of the premises they want to see.
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    iv. Right to freely select the places to be visited, duration of visits
    4964  The selection and number of places to be visited, as well as the duration of each visit and the frequency of their repetition, is left to the supervisors’ discretion. These decisions will depend on many circumstances: the size of the places; the problems previously identified; complaints received; date of the previous visit; and the requests of one or more prisoners of war. It also depends on the size and composition of the visiting team. In practice, the ICRC delegates take great care not to unduly disturb the camp’s daily routine.
    4965  In this respect, the number of supervisors and the composition of the team for a specific visit should also be left to their discretion, as it depends on a variety of factors, including the number of prisoners and the nature and size of the detention place.
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    v. Right to freely decide the frequency and repetition of visits
    4966  The right to freely select the places to be visited implies the right to return to any place already visited and to repeat visits to these places. Indeed, it is essential that the supervisors be allowed to return to a place they have already visited as often as they deem necessary. This allows them to assess the evolution of the situation, to monitor whether appropriate measures have been taken to address shortcomings, and, last but not least, to check that the prisoners of war who spoke with them have not been subject to reprisals.
    4967  ICRC experience visiting prisoner-of-war camps since the end of the Second World War has furthermore shown that the same facilities may be adequate for some times of the year and not others. There is therefore a need for a rolling assessment and to adapt facilities to new or changing circumstances, including those brought about by seasonal changes, be they heat or cold, wet or dry (monsoon, floods, or drought).[30]
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    b. Exception of imperative military necessity
    4968  The exception of imperative reasons of military necessity in Article 126 allows for the exceptional and temporary suspension of visits. This exception, which did not form part of the text of the 1929 Convention, was proposed by the ICRC. The ICRC considered that it was unrealistic to increase the number and activities of the delegates of the Protecting Powers and the ICRC and to extend the scope of their work and powers without giving the Detaining Powers the countervailing permission to exceptionally restrict such activities temporarily if imperative military necessity so demanded. This clause was accepted without discussion by the 1949 Diplomatic Conference.
    4969  The suspension must be exceptional, meaning it cannot automatically concern all places of detention in general, but only specific ones directly affected by the imperative military necessity at a given moment. It may only be resorted to exceptionally, on a case-by-case basis. Therefore, it may not be declared in a general manner, for example to prohibit access to all collection and transit places, by virtue of their transitory nature.
    4970  The suspension may also only be temporary, for the shortest period of time, that being the duration of the imperative military necessity. It implies that as soon as there is no longer an imperative military necessity, visits must be allowed again.
    4971  Any exception must have a valid and significant justification. Good faith would be especially required here, especially if the Detaining Party does not want to provide a detailed explanation of the nature of the imperative military necessity.
    4972  It should also be stressed that this exception applies only to visits to places where prisoners may be held. In no way may it be used to prevent the supervisors from interviewing without witnesses a specific prisoner or group of prisoners when a visit is taking place.
    4973  Article 126 requires more than mere military necessity to postpone supervisory visits. It requires an imperative military necessity. In this context, ‘imperative’ refers to an absolute constraint of such vital importance that it leaves the Party in question with no choice.[31] It cannot be a question of military convenience, for instance where a commander is reluctant to devote resources necessary to facilitate the visit. The exception may not be used to subject prisoners of war to illegal pressure to extract information from them or to hide or facilitate other violations of the Convention.
    4974  In practice, the ICRC considers there are only a very few, exceptional, situations in which postponing a supervisory visit to persons by definition out of combat may be a matter of such vital importance that a Party has no choice but to invoke this exception.
    4975  Instances where the exception of imperative military necessity has been invoked generally relate to security around or within a place of detention. A place may be temporarily out of reach owing to ongoing hostilities, and this may call for the postponement of a visit. However, this situation has to be understood in conjunction with Article 19, prescribing that ‘[p]risoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger’. Therefore, prisoners of war should be held, as soon as possible after their capture, in places where imperative military necessity would be unlikely to arise.[32]
    4976  Incidents involving the prisoners of war themselves, such as a riot, may also require the temporary suspension of visits, calling for the Detaining Power to take measures to restore order, such as imposing a lockdown, conducting a search or even the use of weapons.[33] However, it is important to allow visits to resume as soon as possible thereafter, as such incidents, and the response of the Detaining Power, carry risks in terms of the prisoners’ treatment.
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    c. Interviews without witnesses
    4977  Article 126(1), last sentence, provides that representatives or delegates of the Protecting Powers and ICRC delegates ‘shall be able to interview the prisoners, and in particular the prisoners’ representatives, without witnesses, either personally or through an interpreter’. Interviews without witnesses are essential for obtaining complete knowledge of actual conditions. Indeed, it is generally only when interviewed in private that individual prisoners will feel sufficiently confident and free to express themselves about their living conditions and treatment since capture, explain their needs and share their concerns, whatever their nature, with the supervisors. Prisoners’ allegations enable the supervisors, through careful analysis and crosschecking, to confirm, complement or contradict their own observations and information from other sources.
    4978  The need to carry out interviews without witnesses was profoundly felt during the Second World War. This provision was therefore given the character of an absolute right conferred on the agents of the Protecting Powers and the ICRC from the beginning of the 1929 Convention revision process, and the Diplomatic Conference accepted it in its new form without discussion.[34]
    4979  Supervisors have the right to freely select the prisoners of war they want to interview. It may be any prisoner of war met in the place, including but not limited to prisoners’ representatives.[35] Supervisors may decide to speak with prisoners in groups or individually, depending on the circumstances.[36] The exact timing of interviews with specific prisoners will nevertheless take into account the need not to disturb unduly the camp routine.
    4980  The requirement of interviews ‘without witnesses’ excludes not only the presence of guards or any other agent of the Detaining Power, but also that of another prisoner of war. In principle, supervisors must be allowed to ensure any other person remains completely out of view. When this is not possible, for example in overcrowded places or where there is a concrete reason to believe there is a risk to the safety of the supervisor which requires the Detaining Power to position a guard in sight, the conversation must nevertheless be out of earshot. Conversations may not be eavesdropped.
    4981  The location of the interview has to provide the required privacy. This place should ideally be freely decided by the supervisors. Time limits for interviews should not be imposed. Supervisors have the right to speak with a specific person as often as they wish. They must be ready to listen to whatever the prisoner finds important to relate, and to ask open questions, to which the prisoner should feel free to answer or not. The prisoner must be informed of the purpose of the visit, and of the use that will be made of the information provided to the supervisor. As a matter of principle, the content of the interviews remains confidential, except for any allegations that the prisoner has accepted be conveyed to the authorities, with or without allusion to the person’s name.
    4982  Prisoners of war must not suffer reprisals because they have spoken or complained to the supervisors, and they must not be threatened before or after speaking to a supervisor.[37] In this regard, the fact that the Protecting Power or the ICRC are able to repeat its visits and follow up on each prisoner individually (see para. 4979 of this commentary) is instrumental in limiting such problems.
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    d. Interpreters
    4983  Article 126(1) authorizes supervisors to be assisted by interpreters. It is of course desirable that the supervisors know the language of the prisoners of war they are visiting. However, this is not always the case. Recourse to interpreters is therefore sometimes necessary.
    4984  The importance of the function of the interpreter should not be overlooked. When they are used, they become part of the visiting team and are thus subject to the same rights and requirements as the rest of the team, as well as to individual approval by the Detaining Power.
    4985  The ICRC never uses the services of interpreters provided by the Detaining Power, even though this service is sometimes presented as one of the facilities that the Detaining Power is bound to provide to supervisors of the Protecting Powers under Article 8(2). Interpreters may be chosen by the supervisors from among the prisoners themselves. While this may be required under certain circumstances,[38] it must be handled with particular caution since it may not provide the necessary safeguards in terms of confidentiality and thus may not offer the opportunity for individual prisoners to speak freely. It may also involve the risk of the translation being inaccurate or the information altered.
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    e. Visits by compatriots
    4986  Article 86(3) of the 1929 Convention had provided that persons of the same nationality as prisoners of war would be allowed to take part in visits to camps. Although this possibility was rarely used during the Second World War, the provision was retained in Article 126(3) of the 1949 Convention.
    4987  The participation of prisoners’ compatriots in a visit is presented as an option, not an obligation, and requires the agreement of both the Detaining Power and the Power on which the prisoners depend. The provision does not specify whether the compatriots would participate in visits with a supervisory role, although the location of this provision in Article 126, under Title VI ‘Execution of the Convention’, indicates that this may be the case.
    4988  The 1960 ICRC Commentary links the participation of prisoners’ compatriots to Article 125(1) of the Convention, whereby representatives of religious organizations, relief societies or any other organization assisting prisoners of war must be given all necessary facilities for ‘visiting prisoners of war, distributing relief supplies and material, from any source, intended for religious, educational or recreative purposes, and for assisting them in organizing their leisure time within the camps’. The Commentary points out that ‘the term “compatriot” used here includes both relatives and delegates of the national relief societies’.[39]
    4989  A supervisory visit must be – and be perceived as – objective, independent, neutral and impartial. The supervisory team should therefore not include nationalities that the prisoners of war, the Power on which they depend or the Detaining Power may perceive as not possessing these attributes. In practice, the participation of prisoners’ compatriots within ICRC visiting teams would be an extremely rare exception.
    4990  In reality, there are no examples of relatives of prisoners of war being included in ICRC visiting teams. Visits by relatives – if they are authorized and organized under the auspices of the ICRC – must be kept distinct from any supervisory function, as they serve a completely different purpose.
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    5. Obligation to facilitate the work of the supervisors
    a. General duty to facilitate supervision
    4991  According to Article 8(2) of the Third Convention, the Parties to the conflict are obliged to facilitate to the greatest extent possible the tasks of the representatives or delegates of the Protecting Powers. This includes the supervision of places of internment or detention.
    4992  A similar duty is implicit in Article 126, this time in relation to both the Protecting Powers and the ICRC. For States party to Additional Protocol I, it should be noted that Article 81(1) of the Protocol explicitly requires the Parties to the conflict ‘to grant to the International Committee of the Red Cross all facilities within their power so as to enable it to carry out the humanitarian functions assigned to it by the Conventions and this Protocol in order to ensure protection and assistance to the victims of conflicts’. Supervision in accordance with Article 126 is among these humanitarian functions.
    4993  Facilitation goes beyond simply accepting the supervision and respecting the prerogatives described in Article 126. It includes actively ensuring that the necessary information about supervisory visits and the prerogatives of the supervisors is shared all along the chain of command, and that instructions to respect them are given to the authorities concerned. It also includes facilitating the practical aspects of the visits, such as granting the necessary visas and passes, taking all feasible measures to ensure the security of the area, and/or designating liaison officers to address any problems that may arise.
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    b. List of prisoners of war, notification to the Central Tracing Agency and individual follow-up
    4994  To facilitate the work of the supervisors, the Detaining Powers must communicate at the start of each visit a list of all the prisoners held in the place to be visited or allow the supervisors to establish such a list themselves during the visit. This list should also include the names and whereabouts of those who have been transferred or repatriated since the last visit, as well as those who have died, escaped or been released.
    4995  As far as the ICRC is concerned, the obligation to communicate such lists, or to allow registration by its delegates, is a necessary consequence of, on the one hand, the inspecting role entrusted to the ICRC by Article 126 and, on the other hand, the rights and responsibilities of the Central Tracing Agency managed by the ICRC, as foreseen in Article 123.[40]
    4996  It is important that the supervisors are able to identify personally the prisoners of war they interview and that they are able to see them again and follow up on them individually. It is also essential that they are permitted to see all the persons captured and protected under the Third Convention, wherever they may be. Personal identification, notification and subsequent follow-up all constitute protection against forced disappearances, summary executions or ill-treatment, including reprisals. It also contributes to ensuring that prisoners of war enjoy other rights to which they are entitled, such as informing relatives of their capture,[41] corresponding with their families,[42] receiving individual parcels[43] and, last but not least, being released and repatriated without delay at the end of active hostilities.[44]
    4997  According to Article 122(4) of the Third Convention, the information to be recorded includes, ‘in respect of each prisoner of war, his surname, first names, rank, army, regimental, personal or serial number, place and full date of birth, indication of the Power on which he depends, first name of the father and maiden name of the mother, name and address of the person to be informed and the address to which correspondence for the prisoner may be sent’. Article 122(5) and (6) furthermore requires the detaining authorities to provide all the necessary ‘information regarding transfers, releases, repatriations, escapes, admissions to hospital, and deaths’, as well as regularly supplying ‘information regarding the state of health of prisoners of war who are seriously ill or seriously wounded’.
    4998  ICRC experience has demonstrated that non-compliance with Articles 122 and 123 impacts on its ability to perform its functions under Article 126. For instance, the absence of an overarching authority with complete and up-to-date information on the number of prisoners of war, their individual data and their places of detention severely compromises the organization’s access to all prisoners of war.
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    c. Commitment to a meaningful dialogue between the supervisors and the detaining authorities
    4999  The supervisory visits in themselves do not ensure full respect for the Third Convention. They are the basis on which the supervisors are able to develop an understanding of the situation they observe, including exploring the causes of any shortcomings and analysing the motivations of and possible constraints on the detaining authorities. Such an understanding in turn helps the supervisors identify potential solutions and feeds into a dialogue with the Detaining Power, so that the necessary improvements can be made, and hence ensure better compliance with the Convention.
    5000  This is why the ICRC traditionally takes great care to develop and nurture a meaningful dialogue with the Detaining Power, at all appropriate levels. As a matter of practice, each ICRC visit starts with an initial meeting with the persons in charge of the place of internment. This first stage is intended to enable delegates to explain the humanitarian nature of the ICRC’s activities and the purpose of the visit. They brief the authorities on the standard procedures for visits, as established by Article 126. It is often at this stage that the ICRC delegates will obtain all the necessary administrative data, including: internal regulations, lists of prisoners (whether present, transferred in/out, escaped or deceased since previous visits); initial information on how the facility is run; the main problems encountered by the authorities; and any change since the previous visit.
    5001  Visits conclude with a meeting with the same authorities. During this meeting, the ICRC delegates will submit their preliminary findings and recommendations and take note of the authorities’ responses.
    5002  Visits to prisoner-of-war camps and other places of internment are generally followed by written reports summarizing the delegates’ findings and recommendations in relation to the various provisions of the Third Convention and their corresponding recommendations.[45]
    5003  The ICRC may also prepare additional reports, summarizing the situation in a number of places, during a specific period or on specific issues.
    5004  ICRC practice in terms of the transmission of its reports has evolved over time. During the Second World War and in subsequent decades, the ICRC addressed the reports simultaneously to both the Detaining Power and the Power on which the prisoners of war depend. This practice has been progressively replaced such that reports are addressed, confidentially, only to the Detaining Power, to avoid the risk of politicization or propaganda. This confidentiality is considered by the ICRC as instrumental in building an atmosphere of trust in which a constructive dialogue can be developed on the problems and solutions identified.[46]
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    d. Internment by neutral Powers
    5005  Article 4B(2) of the Third Convention excludes from the benefit of supervision based on Article 126 persons belonging to one of the categories of persons ‘who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law’.
    5006  Although they must enjoy the treatment of prisoners of war, these persons are not in the hands of the enemy but in the hands of neutral or non-belligerent Powers, and usually enjoy ordinary diplomatic and consular protection, which includes the right of consular personnel to be notified of their detention and have access to them.[47]
    5007  That being said, the ICRC may still request access to them to monitor their situation, based on the right of initiative granted to it by Article 9 of the Third Convention. It is, in practice, on this basis that the ICRC has requested and been granted access to such persons, in accordance with its Article 126 prerogatives.
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    D. Critical assessment
    a. Relevance of the key prerogatives established by Article 126
    5008  The ICRC’s longstanding experience in visiting prisoners of war has confirmed that the key prerogatives granted by Article 126 (in particular access to all places where protected persons may be, the right to freely decide the frequency and repetition of visits, the right to conduct interviews without witnesses) are highly suitable and relevant. Indeed, each of these prerogatives plays an essential part in the supervision mechanism established by Article 126. They complement each other and enable the supervisors to ensure that their findings are as objective and as reliable as possible.
    5009  Outside the context of Article 126, the ICRC applies similar working procedures in its monitoring activities for persons deprived of their liberty in relation to non-international armed conflicts or other situations of violence, whatever their status or the reason for their detention. They are today routinely called ‘standard ICRC working procedures’ and are contained in numerous unilateral authorizations given to the ICRC or memoranda of understanding concluded between the ICRC and detaining authorities, be they States, non-State armed groups, international courts and tribunals, or UN forces.[48]
    5010  Article 126 has also been a source of inspiration for international, regional and national monitoring mechanisms. Similar prerogatives have been established for other monitoring mechanisms, both national and international, and enshrined in other international instruments.[49]
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    b. Practical application of the Article 126 prerogatives
    5011  Despite their relevance, Detaining Powers do not always easily grant the prerogatives set out in Article 126. This may be for military, legal, logistical, security, political or other reasons. Obstacles may be temporary or permanent and may arise at the level of one specific place or one specific commander, or be the consequence of State policies. While they may emerge from objective constraints or a debatable legal situation/legal considerations, unfortunately, obstacles are often deliberate. When this is the case, they generally do not target one prerogative in isolation. Rather, one can observe a combination of obstacles intended to prevent independent supervision or hide violations of the Third Convention.
    5012  In its experience, the ICRC has encountered the following obstacles:[50]
    – Denial that a situation is an international armed conflict: this generally comes with an overall denial of the applicability of the Third or Fourth Convention and to difficulties and lack of respect extending far beyond the Article 126 prerogatives
    – Denial that prisoners have been taken
    – Denial of the status of prisoner of war to specific individuals and therefore of the benefit of the Third Convention
    – Refusal of access to prisoners of war under criminal investigation or serving sentences
    – Denial of access to some places, for example collection points after capture, transit places or during transfer from the battlefield to a permanent place of internment
    – Establishment of unofficial or secret places of detention, about the existence of which the ICRC was not notified
    – Abuse of the exception of imperative military necessity to prevent access to one place or a category of places
    – Within a specific camp, denial of access to certain parts of the premises, such as interrogation rooms, disciplinary cells and medical wards, which are of particular interest in terms of treatment
    – Denial of access to prisoners of war during the first days of captivity or during questioning or of access to a specific prisoner; the concealment of prisoners from ICRC delegates during visits or their transfer to un-notified locations prior to a visit
    – Denial of interview without witnesses. This may be through the imposition of the presence of guards or other persons, including other prisoners, the hidden recording of private conversations, intimidation of or threats against prisoners willing to speak in private with the ICRC, or reprisals against prisoners who have spoken to the ICRC
    – Reciprocity as a reason to refuse access.
    5013  It is only if all the prerogatives of Article 126 are respected that the supervision set down by this provision can be achieved. Renouncing one of the prerogatives is detrimental to the overall efficiency of the supervision mechanism set up by the Convention. The ICRC therefore always strives for the full respect of Article 126.
    5014  This does not mean that the ICRC has always been successful in its efforts: its ability to perform its duties efficiently depends in the end on the willingness of the Detaining Powers to honour their commitment to respect international humanitarian law. Indeed, the ICRC was prevented from visiting prisoners of war in various international conflicts during the twentieth century and still is today. Unfortunately, history shows that when the ICRC is denied access, it is often accompanied by other serious violations of the Third Convention.
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    Select bibliography
    Aeschliman, Alain, ‘Protection of detainees: ICRC action behind bars’, International Review of the Red Cross, Vol. 87, No. 857, March 2005, pp. 83–122.
    Aeschlimann, Alain and Roggo, Nicolas, ‘Systématique des visites aux personnes privées de liberté : l’expérience du CICR’, in Dominique Bertrand and Gérard Niveau (eds), Médecine, santé et prison, Editions Médecine et Hygiène, Geneva, 2006, pp. 91–99.
    Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003.
    Chesney, Robert M., ‘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.
    de Sinner, Philippe and Reyes, Hernan, ‘Activités du CICR en matière de visites aux personnes privées de liberté : une contribution à la lutte contre la torture’, in Antonio Cassese (ed.), The international fight against tortureLa lutte internationale contre le terrorisme, Nomos, Baden-Baden, 1991, pp. 153–171.
    Gasser, Hans-Peter, ‘Scrutiny’, Australian Year Book of International Law, Vol. 9, 1980, pp. 345–358.
    Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume 1: Rules, ICRC/Cambridge University Press, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul.
    ICRC, ‘Protecting people deprived of their liberty’, International Review of the Red Cross, Vol. 98, No. 903, December 2016, pp. 1043–1066.
    Maia, Catherine, Kolb, Robert and Scalia, Damian, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, pp. 204–254.
    Pfanner, Toni, ‘Various mechanisms and approaches for implementing international humanitarian law and protecting and assisting war victims’, International Review of the Red Cross, Vol. 91, No. 874, June 2009, pp. 279–328.
    Rasmussen, Gustav, Code des prisonniers de guerre : Commentaire de la Convention du 27 juillet 1929 relative au traitement des prisonniers de guerre, Levin & Munksgaard, Copenhagen, 1931, pp. 56–62.
    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. 458–469.
    Sassòli, Marco, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, Cheltenham, 2019, pp. 136–147.

    1 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 124(A). For a further discussion of the customary character of the ICRC’s right to access all detained persons, see Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 55–62.
    2 - Bugnion, pp. 30–31; ICRC, Secours aux blessés: communication du Comité international faisant suite au compte rendu de la Conférence internationale de Genève, Imprimerie Frick, Geneva, 1864, pp. 154–155.
    3 - See e.g. Agreement between France and the Ottoman Empire on the Repatriation of Prisoners of War and Civilians (1918), Article 16; Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Articles 121–122. See also Rosas, pp. 463–464.
    4 - Between 1914 and 1920, the ICRC sent 54 monitoring missions to more than 20 countries or territories and performed more than 524 visits to places of detention. For more details, see Bugnion, pp. 90–96.
    5 - On the visits of prisoners of war made by the ICRC during the Second World War, see Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, pp. 526–523.
    6 - Between 1939 and 1948, ICRC delegates made more than 12,750 visits to places of internment. The ICRC distributed about 430,000 tonnes of relief to prisoners, the equivalent of 90,000 individual parcels, in addition to medical supplies, books, etc. However, the ICRC did not gain access to most of the Soviet prisoners in German hands, nor to German prisoners in Soviet hands. For more details, see Bugnion, pp. 177–194. For further details on the history of ICRC visits, see Maia/Kolb/Scalia, pp. 201–207.
    7 - See Reports and Documents submitted by the ICRC to the Preliminary Conference of National Societies of 1946, Vol. II, p. 11.
    8 - Report of the Conference of Government Experts of 1947, pp. 265–266.
    9 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 116, pp. 98–99.
    10 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 302–303 and 366.
    11 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 132–133.
    12 - For more details of the role of Protecting Powers, their historical background and contemporary developments, see the commentary on Article 8. For a full list of tasks entrusted to the Protecting Powers in relation to prisoners of war, see section E.1.d of that commentary. See also Introduction, section A.3.e.
    13 - Bugnion, pp. 864–866.
    14 - On this point, see the commentary on Article 10(3).
    15 - See the explanations given in the commentary on Article 9, paras 1336–1337.
    16 - See the commentary on Article 9, section C.2.a and its references on this issue.
    17 - See the commentary on Article 9.
    18 - See also section C.1.
    19 - For examples of such memoranda, see International Review of the Red Cross, Vol. 73, No. 787, February 1991, pp. 24–27, and ICRC, ‘Conflict in Iraq: Memorandum to the belligerents’, International Review of the Red Cross, Vol. 85, No. 850, June 2003, pp. 423–428.
    20 - See Article 123.
    21 - See Article 9. Examples of activities may be found in Articles 73, 75 and 77.
    22 - See also Maia/Kolb/Scalia, p. 215.
    23 - On the importance of psychological considerations in ICRC visits, see ibid. pp. 221–222.
    24 - See Ethical Principles of Health Care in Times of Armed Conflict and Other Emergencies (2014), Principle 8. See also World Medical Association, WMA Regulations in Times of Armed Conflict and Other Situations of Violence, adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, last revised by the 63rd WMA General Assembly in Bangkok, Thailand in October 2012: ‘Whatever the context, medical confidentiality must be preserved by the physician. However, in armed conflict or other situations of violence, and in peacetime, there may be circumstances in which a patient poses a significant risk to other people and physicians will need to weigh their obligation to the patient against their obligation to other individuals threatened.’ If the prisoner, given their vulnerable circumstances, has no genuine choice in consenting to the sharing of their personal data (i.e. refusal to provide consent means a denial of life-saving medical assistance or protection services), then consent is not freely given and thus invalid. An alternative lawful basis to consent, provided under the law, may be relied upon and the prisoner provided a right to object. See Modernised Convention for the Protection of Individuals with Regard to the Processing of Personal Data (2018), Article 9: ‘Every individual shall have a right … to object at any time, on grounds relating to his or her situation, to the processing of personal data concerning him or her unless the controller demonstrates legitimate grounds for the processing which override his or her interests or rights and fundamental freedoms’. See also Council of Europe, Explanatory Report to the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, 10 October 2018, Council of Europe Treaty Series, No. 223, para. 42 (regarding the validity of consent). See also the commentary on Article 122, section F.5.
    25 - Although unannounced visits may appear preferable in principle, observation and the possibility of speaking without witnesses with the prisoners (see paras 4977–4982 of this commentary) will in any case enable delegates to spot if special preparations have been made for their visit. In addition, repeating visits (see paras 4966–4967 of this commentary) will enable them to make sure that any such arrangements are genuine and lasting. See also Maia/Kolb/Scalia, pp. 214–215.
    26 - In this connection, attention should be drawn to Articles 87(3) and (4), 88, 98 and 108, which set forth the essential safeguards to be afforded to prisoners of war undergoing confinement.
    27 - Indeed, during the Second World War delegates of the ICRC found it difficult to visit prisoners of war immediately after capture or during transfer; see Draft Conventions submitted to the 1948 Stockholm Conference, p. 133.
    28 - Article 56(3) gives an example of such transparency: ‘The camp commander shall keep an up-to-date record of the labour detachments dependent on his camp, and shall communicate it to the delegates of the Protecting Power, of the International Committee of the Red Cross, or of other agencies giving relief to prisoners of war, who may visit the camp.’
    29 - Prisoners released on parole remain prisoners of war and entitled to the protections of the Convention, including visits by the ICRC pursuant to Article 126. On parole, see the commentary on Article 21, sections D and E.
    30 - See the commentary on Article 25, para. 2094.
    31 - See also the commentary on Article 8, section G.
    32 - According to Articles 50 and 51, this would be the same for the prisoners’ places of work.
    33 - On the use of weapons in response to riots, see the commentary on Article 42, section C.2.
    34 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 773.
    35 - For more information about the function and duties of the representatives of the prisoners of war, see Articles 79–81.
    36 - It may happen that prisoners of war refuse to speak with the supervisors. This is their right, but when this is the case, such a refusal should be confirmed by each prisoner of war individually in a private interview, to ensure they are doing so of their own free will. For an illustration of the large-scale unconfirmed refusal of prisoners of war to speak with the supervisors, see e.g. UN Security Council, Report of the mission dispatched by the Secretary-General on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, August 1988, UN Doc. S/20147, 24 August 1988, paras 51–62.
    37 - See also Article 13.
    38 - For example, when nobody in the supervisory team speaks the prisoner’s language, or if the prisoner freely requests it to facilitate communication.
    39 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 612.
    40 - The functions of the Central Tracing Agency are detailed in Bugnion, pp. 555–579.
    41 - See Article 70.
    42 - See Article 71.
    43 - See Article 72.
    44 - See Article 118.
    45 - For a detailed discussion of the standard procedures for ICRC visits, see ICRC, ‘Protecting people deprived of their liberty’, International Review of the Red Cross, Vol. 98, No. 903, December 2016, pp. 1043–1066. See also Maia/Kolb/Scalia, pp. 227–254.
    46 - For more information about ICRC confidentiality, see ICRC, Memorandum: The ICRC’s privilege of non-disclosure of confidential information, Geneva, April 2015, reprinted in International Review of the Red Cross, Vol. 97, No. 897/898, Spring/Summer 2016, pp. 433–444. See also Gasser, pp. 345–358; Chesney, paras 53–54; and Maia/Kolb/Scalia, pp. 223–227.
    47 - See Vienna Convention on Consular Relations (1963), Article 36.
    48 - For ICRC working procedures, see ICRC Study on Customary International Humanitarian Law (2005), Rule 124, and Henckaerts/Doswald-Beck, commentary on Rule 124, p. 445. For examples of agreements between the ICRC and international tribunals and courts pertaining to ICRC visits to persons deprived of liberty, see: (i) Letter from Antonio Cassese, President of the International Criminal Tribunal for the former Yugoslavia, to Cornelio Sommaruga, President of the International Committee of the Red Cross, 28 April 1995, and Letter from Cornelio Sommaruga, President of the International Committee of the Red Cross, to Antonio Cassese, President of the International Criminal Tribunal for the former Yugoslavia, 5 May 1995; and (ii) Agreement between the International Criminal Court and the International Committee of the Red Cross on Visits to Persons deprived of Liberty Pursuant to the Jurisdiction of the International Criminal Court, ICC-PRES/02-01-06, The Hague and Geneva, April 2006.
    49 - See e.g. European Convention for the Prevention of Torture (1987), Article 8; Optional Protocol to the Convention against Torture (2002), Article 14; and the non-binding Mandela Rules (2015), Rule 84.
    50 - For historical illustrations of the obstacles that the ICRC has encountered in practice, see Maia/Kolb/Scalia, pp. 212–215.