Section F. Responsibility for safe return
Geneva Convention III
Articles 46–48 of the 1949 Geneva Convention III, which contain extensive provisions relating to the conditions in which transfer of prisoners of war shall take place, are also applicable to the return of prisoners of war.
Additional Protocol II
Article 5(4) of the 1977 Additional Protocol II provides: “If it is decided to release persons deprived of their liberty, necessary measures to ensure their safety shall be taken by those so deciding”.
Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners (March 1992)
Under Article VII of the Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners (March 1992), the parties pledged “to undertake the necessary measures to ensure safety in the places of exchange, for all phases of the exchange, as well as during the arrival and departure of all persons included in the exchange”.
Argentina’s Law of War Manual (1969) reproduces Articles 46–48 of the 1949 Geneva Convention III.
Canada’s LOAC Manual (1999) provides, with regard to non-international armed conflicts: “When persons who have been detained or interned are released, the detaining authority is obliged to take such steps as are necessary to ensure their safety.”
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “When persons who have been detained or interned are released, the detaining authority is obliged to take such steps as are necessary to ensure their safety.”
France’s LOAC Manual (2001) provides that when prisoners of war are released, their security must be ensured.
New Zealand’s Military Manual (1992) provides that, in both international and non-international armed conflicts, the detaining authority is obliged to take such steps as are necessary to ensure the safety of released detainees.
The manual also provides that prisoners of war are to be fed and provided with sufficient provisions if released.
United States of America
The US Field Manual (1956) reproduces Articles 46–48 of the 1949 Geneva Convention III.
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 46–48 of the Geneva Convention III, as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 5(4), are punishable offences.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “While releasing from detention, the dignity and rights of the person shall be guaranteed providing credible evidence of the release from detention.”
In 2006, in reply to a written question concerning the treatment of detainees in Iraq, the Minister of Defence of the Netherlands stated:
The Dutch armed forces bear responsibility for the persons they arrest. After the transfer, this responsibility shifts to the receiving party. The Third Geneva Convention does oblige the transferring party (in this situation the Netherlands) to take corrective measures against the receiving party or to request that the detainee be transferred back when the transferring party is notified that the receiving party does not satisfy its obligations under the Geneva Conventions. The Dutch troops are obliged to offer arrested persons guarantees and treatment which are applicable to prisoners of war.
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 5 prescribing humane treatment of persons whose liberty ha[s] been restricted … due to the fact that these norms are reflected in Common Article 3 of the  Geneva Conventions.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris
of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
UN Security Council
In a resolution adopted in 1992 in the context of the conflict in Bosnia and Herzegovina, the UN Security Council authorized UNPROFOR to engage in the protection of convoys of released detainees if requested by the ICRC.
UN Security Council
In 1998, in a statement by its President on Afghanistan, the UN Security Council demanded that “the Taliban release other Iranians detained in Afghanistan and ensure their safe and dignified passage out of Afghanistan without further delay”.