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

Article III(51)(b) of the 1953 Panmunjom Armistice Agreement provides:

In Article 2(1) of the 2000 Peace Agreement between Ethiopia and Eritrea, both States agreed, in accordance with IHL, including the 1949 Geneva Conventions, and in cooperation with the ICRC, to release and repatriate without delay all prisoners of war and other persons detained as a result of the armed conflict. 

Article II(3) of the 1991 Peace Accords between the Government of Angola and UNITA provided: “The cease-fire entails the release of all civilian and military prisoners who were detained as a consequence of the conflict … Verification of such release will be performed by the International Committee of the Red Cross.” 

Paragraph 13 of the 1991 Final Act of the Paris Conference on Cambodia stated:

Paragraphs 3, 4, 5, 6 and 11 of the 1991 Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners provided that the ICRC was to be given the lists of prisoners before repatriation and to visit and record them. The parties also undertook to place all prisoners to be exchanged under the protection of the ICRC. Paragraph 9 also provided that EC observers were to be present during the exchange of prisoners. 

Section IV of the 1992 Agreement No. 3 between the Parties to the conflict in Bosnia and Herzegovina on the ICRC Plan of Action provided: “ICRC delegates will lend their good offices in order to help conclude agreements to release [all persons captured or detained].” 

Article 1(1) of the 1992 Agreement between Croatia and the Federal Republic of Yugoslavia on the Release and Repatriation of Prisoners provided: “All prisoners visited by the ICRC and mentioned on the ICRC list appearing in Annex A shall be released in an operation which will take place under ICRC supervision in Nemetin on August 14, 1992.” 

Pursuant to Article 2(f) of the 1992 London Programme of Action on Humanitarian Issues, the parties to the conflict in Bosnia and Herzegovina accepted that:

Article 3 of the 1992 Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners provided that “the ICRC will draw up specific plans of operation” for the release and transfer of the prisoners and be granted “all the facilities necessary for the implementation of the specific plans”. It also provided: “The ICRC shall be given the lists of prisoners before repatriation, shall visit and record them, and verify whether the return is voluntary.” 

The 1992 General Peace Agreement for Mozambique specified that arrangements for and verification of the release process were to be agreed on by the ICRC together with the parties.  

Article II of the 1993 Agreement among the Parties to Halt the Conflict in Bosnia and Herzegovina provided that all detainees should be released on an all-for-all basis under the supervision of the Joint Commission which included the ICRC. On 9 November 1993, more than 700 prisoners were released simultaneously by the two parties to the conflict in Bosnia and Herzegovina under ICRC supervision. 

Article 10 of the 1993 Cotonou Agreement on Liberia provided that all prisoners of war and detainees were to be immediately released to the Red Cross authority in an area where such prisoners or detainees were held, for onward transmission to encampment sites or the authority of the prisoner of war or detainee. 

In paragraph 2 of the 1996 Ashgabat Protocol on Prisoner Exchange in Tajikistan, the Government of Tajikistan and the United Tajik Opposition agreed “to request ICRC to provide assistance in the implementation of this humanitarian operation [of prisoner exchange], on the understanding that it will be conducted in accordance with the rules and procedures of that organization”. 

The 2002 Lomé Agreement between the Government of the Republic of Côte d’Ivoire and the Patriotic Movement of Côte d’Ivoire on the release of civilian and military prisoners provides:

Argentina’s Law of War Manual (1969) provides:

Burundi’s Regulations on International Humanitarian Law (2007) states that prisoners of war “may be transferred by the Detaining Power to another (neutral) State … at the end of hostilities”. 

Cameroon’s Disciplinary Regulations (2007) states with regard to the treatment of prisoners of war: “At the end of hostilities, or at a suitable time, every facility must be given to the competent services of the International Committee of the Red Cross with regard to the repatriation of prisoners of war.” 

Djibouti’s Manual on International Humanitarian Law (2004) states: “Currently, the activities of the ICRC in Djibouti are focused on the following areas: … organizing family reunifications [and] repatriations.” 

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The Report on the Practice of Algeria states that, according to publications of the Armée de Libération Nationale (ALN), a large number of prisoners were eventually released during the Algerian war of independence, often through the intermediary of the ICRC. 

The Report on the Practice of Colombia states:

In implementing the 1992 N’Sele Cease-fire Agreement, the Rwandan Government released 23 prisoners which were returned to the Rwandese Patriotic Front (RPF) camp in July 1992 in cooperation with the ICRC, the Neutral Military Observer Group and the OAU. Similarly, the RPF released 11 prisoners using the ICRC as an intermediary. 

Switzerland’s ABC of International Humanitarian Law (2009) states: “The [Central Tracing] Agency works with the national authorities’ official information services, ICRC delegates and other institutions active in the field. It … carries out prisoner transfers and repatriations”. 

In a resolution adopted in 1996 on Tajikistan, the UN Security Council urged the parties “to cooperate fully with the International Committee of the Red Cross to facilitate the exchange of prisoners and detainees between the two sides”. 

In a resolution adopted in 1999, the UN Security Council reiterated “the obligation of Iraq, in furtherance of its commitment, to facilitate the repatriation of all Kuwaiti and third country nationals … and to extend all necessary cooperation to the International Committee of the Red Cross”. 

In a resolution adopted in 1996 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN Commission on Human Rights acknowledged the release of prisoners and demanded that the parties cooperate fully with the ICRC in the matter of release. 

In 1991, the UN Secretary-General reported that, according to the Head of the EC/CSCE Monitoring Mission in the Former Yugoslavia, “the Mission sought to serve as a channel of communication between opposing forces, to assist in organizing cease-fire arrangements and certain humanitarian steps, such as exchanges of prisoners”. 

In 1992, the UN Secretary-General reported that one of the main activities of ICRC delegates in Bosnia and Herzegovina was participation in the release of prisoners, while UNPROFOR was involved in “arranging and witnessing exchanges of prisoners of war”. 

In 1992, in a report on UNAVEM II in Angola, the UN Secretary-General stated:

In 1993, in a progress report on the situation in Somalia, the UN Secretary-General reported that, as part of an informal preparatory meeting for a conference on national reconciliation in Somalia, it was agreed on 15 January 1993 that all prisoners of war would be freed and handed over to the ICRC and/or UNITAF. 

In its report in 1993, the UN Commission on the Truth for El Salvador noted that the ICRC had frequently negotiated for and carried out the release and exchange of detainees by the different parties. 

In a recommendation adopted in 1996 on refugees, displaced persons and reconstruction in certain countries of the former Yugoslavia, the Council of Europe Parliamentary Assembly invited member States “to support the International Committee of the Red Cross (ICRC) for the implementation of the tasks conferred on it by the Dayton Agreement, namely to organise the liberation of prisoners as early as possible”. 

In 1997, in a report on the situation in Angola, the OAU Secretary-General reported that the Angolan Government and the União Nacional para Independência Total de Angola (UNITA) had both released, under ICRC auspices, all the prisoners detained as a result of the conflict. 

The Conclusions of the London Peace Implementation Conference for Bosnia and Herzegovina in 1995 state that fulfilment of the 1995 Dayton Accords will require “full and immediate access by the ICRC to all places where prisoners and detainees are kept, to interview and register all of them prior to their release”. 

In a case before the Inter-American Commission on Human Rights in 1992, the Commission heard that in July 1989, the Government of El Salvador had released a man who had been arrested on suspicion of membership of a terrorist group and remanded him to envoys from the ICRC. 

In 1984, on the occasion of the release of the first three Soviet soldiers captured in Afghanistan by opposition movements and transferred to Switzerland by the ICRC on 28 May 1982 in order to serve out their internment period as agreed by the parties concerned, the ICRC issued a press release in which it made public its position regarding the victims of the Afghan conflict. The press release noted that eleven Soviet soldiers had accepted the proposal to serve their period of internment in Switzerland, stating: “The first three were transferred to Switzerland on 28 May 1982. Eight others arrived in August and October 1982, January and October 1983, and February and April 1984. One of them escaped to the Federal Republic of Germany in July 1983.” The press release added that upon reaching the end of their periods of internment, “in conformity with the spirit of the provisions of international humanitarian law in this respect, the Swiss authorities, under whose responsibility the soldiers are, have taken the measures necessary to repatriate those internees still wishing to return to their country of origin”. 

The ICRC’s 1986 Annual Report detailed the release and repatriation of 14 Sudanese prisoners who had been detained in Chad for over two and a half years in connection with the conflict in Sudan. The report further noted that two Italian monks “who had been captured in March by the Sudanese People’s Liberation Army (SPLA) were handed over to the ICRC delegation in Addis Ababa on 18 August. The ICRC subsequently entrusted them to representatives of the Holy See in Ethiopia.” 

The ICRC’s 1988 Annual Report documented the release and repatriation of almost 4,000 people, most of whom had been detained in Ethiopia and Somalia for nearly 11 years. The ICRC had been trying since 1984 to persuade the two governments to repatriate all prisoners of war, with priority being given to the seriously wounded and sick in accordance with Articles 109, 110 and 118 of the 1949 Geneva Convention III. After hearing that an agreement had been signed between the two parties on 3 April 1988, the ICRC offered its services to organize the repatriation operation and this offer was accepted, with the repatriation of prisoners who wished to return being carried out in August 1988. 

It has been reported that between October and December 1991, the ICRC participated in a multilateral negotiating commission, meeting almost daily in Zagreb to discuss, among other issues, the release of prisoners between Croatia and the Yugoslav People’s Army (YPA).  

In a communication to the press issued in 1992 in the context of the conflict in Bosnia and Herzegovina, the ICRC confirmed that it had “evacuated on 1 October [1992] 1,560 people from Trnopolje camp … to a reception centre … where they were handed over to staff of the United Nations High Commissioner for Refugees (UNHCR)”. 

Following the 2000 Agreement between Eritrea and Ethiopia, the ICRC repatriated 360 Ethiopian and 359 Eritrean prisoners of war on 23 and 24 December 2000. In addition, the ICRC repatriated to Ethiopia 1,414 civilian internees of Ethiopian origin. 

In a communication to the press issued in 2000 in the context of the conflict in Western Sahara, the ICRC stated that it had repatriated 201 Moroccan prisoners released by the Polisario Front on 14 December 2000. It added, however, that it remained concerned by the plight of the 1,481 Moroccans still held captive and that it viewed the repatriation as a step towards the release of all prisoners. 

In a communication to the press issued in 2002 in the context of the conflict in Western Sahara, the ICRC stated that on 7 July 2002, it had repatriated 101 Moroccan prisoners released by the Polisario Front. It added, however, that it remained concerned by “the plight of the 1,260 Moroccans still held captive and views the repatriation as a step towards the release of all prisoners”. 

The Report on SPLM/A Practice states that, “because the Sudan Government does not recognize the SPLM/A and can’t negotiate with it directly, the SPLM/A has on many occasions and through third parties including the ICRC released prisoners of war and allowed them to go to Government areas”.