Treaties, States Parties and Commentaries
  • Print page
Commentary of 1958 


Subject to what has just been said with regard to voluntary repatriation, it is as a rule important for civilian internees as for prisoners of war that internment should cease as soon as possible after the close of hostilities.
The expression "the close of hostilities" should be taken to mean a state of fact rather than the legal situation covered by laws or decrees fixing the date of cessation of hostilities. The similar provision concerning prisoners of war speaks of "the cessation of active hostilities" [p.515] and the wording of the paragraph here should be understood in the same sense.
However, this does not mean, in spite of the urgent wish thus expressed, that internment can always be brought to an end shortly after the end of active hostilities. The Rapporteurs of the Committee of the Diplomatic Conference which dealt with this question even explained that it did not even mean that no one could be interned after hostilities had ended (1). The disorganization caused by war may quite possibly involve some delay before the return to normal. What it was wished to avoid, and what this Article will avoid if it is applied in good faith, is the indefinite prolongation of situations such as those of which many prisoners of war in some countries were victim in that they were retained under various provisions in the service of the Detaining Power; that is something against which the International Committee of the Red Cross has constantly fought.
It should be noted, finally, that this paragraph only repeats, with special application to internment, a principle stated in general fashion in Article 46 , according to which restrictive measures taken regarding protected persons are to be cancelled as soon as possible after the close of hostilities (2). It also follows logically from paragraph 1 of Article 132 . Since hostilities are the main cause for internment, internment should cease when hostilities cease.


The case of offenders against the ordinary law nevertheless calls for a reservation, since it would not be just if immediate release after the end of hostilities hindered prosecution or prevented the carrying out of judicial penalties inflicted before or during internment.
Following the Second World War, certain Powers released only those prisoners of war whose sentence did not exceed a certain number of years. Other countries released, and even repatriated, prisoners of war undergoing long sentences and forwarded the record of the case to the Power of origin for that Power to make whatever use of it it considered expedient. During the preparatory work for the Convention, some thought of prescribing a general review of sentences, in view of the harshness usual in time of war and the sometimes unjust classification of certain offences as offences against ordinary law. Since, however, it did not seem possible to reach agreement on satisfactory [p.516] wording in view of the extreme diversity of circumstances, the present clause was drawn up, which leaves the Detaining Power wide discretionary powers in this matter.


The rule stated in paragraph 1 may remain ineffective if the disorganization caused by operations during the final stage of the war makes it impossible to have a complete list of internees or to discover their whereabouts. The idea of setting up committees to make the necessary searches was suggested by the International Committee of the Red Cross and adopted without opposition. Obviously, these committees must be established by agreement between the Detaining Power and the other Powers concerned since neither the assistance of the former nor the moral authority of the latter could be dispensed with.

Notes: (1) [(1) p.515] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 844;

(2) [(2) p.515] This comment was made during the discussions
at the Diplomatic Conference. See ' Final Record, ' Vol.
II-A, pp. 688-689;