Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section A. Release and return without delay
Spain’s LOAC Manual (1996) provides that internees and prisoners of war must be released and repatriated without delay after the cessation of hostilities. It specifies that certain categories of internees must be released as soon as the reasons for their internment no longer exist, regardless of whether their return to their place of residence can be authorized during the hostilities. These provisions apply to: persons with incurable wounds or illnesses, who are not expected to recover within one year or those people who, although recovered, remain debilitated; children; expectant mothers or those with young children; and wounded, sick or interned persons who have been interned for long periods. It also specifies that when releasing and repatriating internees and prisoners of war, priority should be given to the wounded and sick, the elderly and those who have been detained the longest.
The manual further provides: “It is a grave breach which shall be qualified as a war crime … to delay without justification the repatriation of prisoners of war and civilian internees.”
Spain’s LOAC Manual (2007) states: “Prisoners of war must be released and repatriated without delay after the cessation of active hostilities … A repatriation plan must be established, giving priority to the wounded and sick, those who are oldest and those who have been detained for the longest.”
With regard to internees, the manual states that they “must be released as soon as the reasons necessitating their internment cease to exist”.
The manual then states that, during hostilities:
Internees can be repatriated or authorized to return to their place of residence [or hospital in a neutral country, should the condition so warrant] … in accordance with the following provisions:
- The incurably wounded and sick.
- The wounded and sick unlikely to recover within a year.
- The wounded and sick who have recovered, but have been left with serious impairments.
- Pregnant women.
- Mothers with young children.
- The wounded and sick and internees who have been detained for a long time.
The manual further states that the provisions that apply to the release and repatriation of internees after the cessation of hostilities are the same as those that apply to prisoners of war.
Spain’s Penal Code (1995) punishes anyone who unjustifiably prevents or delays the release or repatriation of prisoners of war or civilians.