Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
The Military Manual (1993) of the Netherlands provides: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” It also provides: “Parties to the conflict are bound to send back to their own country seriously wounded and seriously sick prisoners of war.”
The Military Handbook (1995) of the Netherlands provides: “Seriously wounded and seriously sick prisoners of war must be repatriated by the Detaining Power.”
The Military Manual (2005) of the Netherlands states:
Section 8 - End of captivity
0750. Parties in a conflict should send seriously wounded and seriously sick prisoners of war back to their own countries (repatriation
), even if hostilities continue. Seriously wounded and seriously sick mean, specifically, the incurably sick and wounded and sick who cannot be expected to recover within one year. A wounded or sick prisoner of war who is eligible for repatriation may not be returned to his own country against his will during the hostilities. In addition, the parties to a conflict must strive to transfer non-serious cases of sick and wounded prisoners of war to neutral territory. This means especially those sick and wounded who are expected to recover within one year. A repatriated prisoner of war may not be employed in military service. After cessation of hostilities, prisoners of war must immediately be released and repatriated.
In its chapter on neutrality, the manual states:
0930. Escaped prisoners of war who are held on neutral territory should be freed.
0931. If they are permitted to stay in the territory of the neutral State, a place of residence may be assigned (HC [1907 Hague Convention respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land] Article 13).
0932. A detaining power may transfer prisoners of war to a neutral State.
0933. To receive such prisoners of war does not constitute a violation of the State’s neutral position. Neutral status may be compromised if a prisoner of war escapes while held on neutral territory.
0934. A State’s neutral position is not compromised if seriously sick or wounded prisoners of war are cared for within its territory.
The accommodation of such prisoners of war in neutral territory may moreover take place only by agreement between all parties concerned (including the State of origin and the detaining power).
0935. The neutral State receiving them must take the necessary measures to prevent those concerned from being redeployed on active military service.
A neutral State which has admitted prisoners of war to its territory should set up an information bureau (see points 0242 ff.)
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit, in an international armed conflict, “the following acts if committed intentionally and in violation of the Geneva Conventions and Additional Protocol (I): … unjustifiable delay in the repatriation of prisoners of war or civilians”.
The Military Handbook (1995) of the Netherlands provides: “Exchange of prisoners may take place during the hostilities in accordance with agreements concluded between the Parties.”
The Military Manual (2005) of the Netherlands states that “[i]f a protecting power is appointed during an armed conflict … it may play a role in the treatment of prisoners of war. Examples might include the exchange of prisoners of war”.
The manual also states:
In addition to possible action as a protecting power and to gathering information on prisoners of war, the ICRC fulfils the following tasks:
- mediation in the exchange of prisoners (of war or otherwise).
The Military Manual (1993) of the Netherlands provides: “No sick or injured prisoner of war who is eligible for repatriation may be repatriated against his will during hostilities.”
The Military Handbook (1995) of the Netherlands provides: “During the hostilities, repatriation of the wounded and sick may not take place against their will.”
The Military Manual (2005) of the Netherlands states: “A wounded or sick prisoner of war who is eligible for repatriation may not be returned to his own country against his will during the hostilities.”
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.