Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty

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Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners (July 1992)
Paragraph 1 of the Agreement on the Exchange of Prisoners between the Federal Republic of Yugoslavia and Croatia (July 1992) provided that prisoners “shall be released simultaneously by both parties, according to the principle ‘all for all’ and without conditions”. 
Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners, reached under the auspices of the International Committee of the Red Cross, Geneva, 28–29 July 1992, § 1.
London Programme of Action on Humanitarian Issues
Pursuant to Article 3(v) of the 1992 London Programme of Action on Humanitarian Issues, the parties to the conflict in Bosnia and Herzegovina undertook “to abide by the following provision: … there should be unconditional and unilateral release under international supervision of all civilians currently detained”. 
Programme of Action on Humanitarian Issues agreed between the Co-chairmen of the London International Conference and the Parties to the conflict in Bosnia and Herzegovina, London, 27 August 1992, annexed to Report by the Special Rapporteur of the UN Commission on Human Rights on the situation of human rights in the territory of the former Yugoslavia, UN Doc. E/CN.4/1993/50, 10 February 1993, Annex III, Article 3(v).
Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners
Article 3 of the 1992 Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners provided: “All prisoners not accused of, or sentenced for, grave breaches of International Humanitarian Law … will be unilaterally and unconditionally released.” 
Agreement on the Release and Transfer of Prisoners, concluded between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representative of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Mate Boban (President of the Croatian Democratic Community), Geneva, 1 October 1992, Article 3.
Afghan Peace Accord
Paragraph 5 of the 1993 Afghan Peace Accord provided that there should be “immediate and unconditional release of all Afghan detainees held by the Government and different parties during the armed hostilities”. 
Peace Accord between the Islamic State of Afghanistan, Harkat-e-Inqilab-e-Islami, Mahaz-e-Milli, Harkat-e-Islami, Hizbe-e-Islami, Jabha-e-Nijat-e-Milli, Ahmadzai Ittehad-e-Islami and Hizb-e-Wahdat-e-Islami, Islamabad, 7 March 1993, annexed to Letter dated 10 March 1993 from the permanent representative of Pakistan to the United Nations addressed to the Secretary-General, UN Doc. S/25398, 11 March 1993, § 5.
Ashgabat Protocol on Prisoner Exchange in Tajikistan
In paragraph 4 of the 1996 Ashgabat Protocol on Prisoner Exchange in Tajikistan, the Government of Tajikistan and the United Tajik Opposition agreed “to deliver with the assistance of ICRC and in the presence of 5 family representatives, to return 26 prisoners of war, freed earlier by the opposition without preconditions, to their homes”. 
Protocol on the Implementation of a Humanitarian Action Involving the Exchange of Prisoners of War and Detainees, concluded between the Government of the Republic of Tajikistan and the United Tajik Opposition, Ashgabat, 21 July 1996, annexed to Report of the UN Secretary-General on the situation in Tajikistan, UN Doc. S/1996/754, 13 September 1996, § 4.
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Algeria
During the Algerian war of independence, it was reported that:
Since the proclamation of the Provisional Government of the Algerian Republic in September 1958, 40 French soldiers who had been taken prisoner were released by the ALN [Armée de Libération Nationale] without any condition. 20 were released in Algeria and 20 others were released in Tunisia and Morocco, through the Algerian Red Crescent. 
“La révolution algérienne tient au respect de l’homme”, El Moudjahid, Vol. 3, p. 57.
Iraq
In 2012, in a speech at the “Conference of Consolidation with Arab and Palestinian Detainees in the Prisons of Israeli Occupation”, the Minister of Foreign Affairs of Iraq stated: “I would like to … renew our demand of instant and unconditional release of all Arab and Palestinian prisoners and detainees in Israeli occupation prisons.” 
Iraq, Speech by the Minister of Foreign Affairs of Iraq at the “Conference of Consolidation with Arab and Palestinian Detainees in the Prisons of Israeli Occupation”, Baghdad, 11–12 December 2012, p. 3.
UN Security Council
In 1996, in a statement by its President on the situation in Bosnia and Herzegovina, the UN Security Council stressed that “the obligation to release prisoners is unconditional. Failure to do so constitutes a serious case of non-compliance.” It also noted “the readiness of the High Representative to propose measures to be taken against any party that fails to comply”. 
UN Security Council, Statement by the President, UN Doc. S/PRST/1996/15, 4 April 1996, p. 2.
UN Commission on Human Rights
In a resolution adopted in 1995, the UN Commission on Human Rights called for “the unconditional … release of all prisoners of war” in Afghanistan. 
UN Commission on Human Rights, Res. 1995/74, 8 March 1995, § 7, adopted without a vote.
This call was repeated in a resolution adopted in 1996. 
UN Commission on Human Rights, Res. 1996/75, 23 April 1996, § 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1996, the UN Commission on Human Rights strongly urged the Government of Myanmar “to release … unconditionally all detained political prisoners”. 
UN Commission on Human Rights, Res. 1996/80, 23 April 1996, § 3, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1998, the UN Commission on Human Rights welcomed the release of prisoners of war in Afghanistan and called for “the unconditional … release of all remaining prisoners of war”. 
UN Commission on Human Rights, Res. 1998/70, 21 April 1998, § 7, adopted without a vote.
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Eritrea-Ethiopia Claims Commission
In its Prisoners of War (Eritreas Claim) partial award in 2003, the Eritrea-Ethiopia Claims Commission, in considering the obligation to release and return persons deprived of their liberty without delay, stated:
148. There is also a fundamental question whether and to what extent each Party’s obligation to repatriate depends upon the other’s compliance with its repatriation obligations. The language of Article 118 is absolute. Nevertheless, as a practical matter, and as indicated by state practice, any state that has not been totally defeated is unlikely to release all the POWs [prisoners of war] it holds without assurance that its own personnel held by its enemy will also be released, and it is unreasonable to expect otherwise.
149. The Commission finds that, given the character of the repatriation obligation and state practice, it is appropriate to consider the behavior of both Parties in assessing whether or when [one of the Parties] failed to meet its obligations under Article 118. In the Commission’s view, Article 118 does not require precisely equivalent behavior by each Party. However, it is proper to expect that each Party’s conduct with respect to the repatriation of POWs will be reasonable and broadly commensurate with the conduct of the other. Moreover, both Parties must continue to strive to ensure compliance with the basic objective of Article 118 – the release and repatriation of POWs as promptly as possible following the cessation of active hostilities. Neither Party may unilaterally abandon the release and repatriation process or refuse to work in good faith with the ICRC to resolve any impediments. 
Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 1 July 2003, §§ 148–149.
[footnotes in original omitted]
ICRC
In 1993, in a paper presented to the International Conference on the Former Yugoslavia, the ICRC reported that the agreed process for the release of detainees had come to a standstill when the Bosnian Serbs freed all prisoners and the other two parties did not release all their prisoners as promised during talks with the President of the ICRC. The Bosnian Government indicated that it was “ready to release all prisoners, except war criminals, after an amnesty had been proclaimed”. The Bosnian Serbs claimed that they had made “enough unilateral gestures”. In response, the ICRC stated that the closure of places of detention could “no longer be contingent on considerations of reciprocity … [and that all prisoners should] be released under ICRC auspices in unilateral and unconditional operations”. 
ICRC, Paper presented to the International Conference on the Former Yugoslavia, UN Doc. S/25050, 6 January 1993, Annex IV, pp. 14–15.
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