Rule 128. Release and Return of Persons Deprived of Their Liberty

A. Prisoners of war must be released and repatriated without delay after the cessation of active hostilities.B. Civilian internees must be released as soon as the reasons which necessitated internment no longer exist, but at the latest as soon as possible after the close of active hostilities.C. Persons deprived of their liberty in relation to a non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist.The persons referred to may continue to be deprived of their liberty if penal proceedings are pending against them or if they are serving a sentence lawfully imposed.
State practice establishes these rules as norms of customary international law applicable in international (A and B) and non-international (C) armed conflicts respectively. Refusal to release detainees when the reason for their detention has ceased to exist would violate the prohibition of arbitrary deprivation of liberty (see Rule 990) and may also constitute hostage-taking (see Rule 96).
The Hague Regulations provide for the obligation to repatriate prisoners of war as soon as possible after the conclusion of peace.[1] The Third Geneva Convention requires the release and repatriation of prisoners of war without delay after the cessation of active hostilities.[2]
According to Article 132 of the Fourth Geneva Convention, each interned person must be released as soon as the reasons for internment end, while Article 133 provides that, in any event, internment must cease as soon as possible after the close of hostilities. Article 132 encourages the parties to the conflict to conclude, during the course of hostilities, agreements for the release, repatriation, return to places of residence or the accommodation in a neutral country of certain classes of internees with special needs (children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time).[3]
An “unjustifiable delay in the repatriation of prisoners of war or civilians” constitutes a grave breach of Additional Protocol I.[4]
The basic obligation to repatriate prisoners without delay upon the close of active hostilities is recognized in a number of other treaties.[5]
Numerous military manuals specify the obligation to repatriate prisoners after the end of (active) hostilities.[6] The unjustifiable delay in the repatriation of prisoners is an offence under the legislation of numerous States.[7] The rule is further supported by reported practice.[8] It has been reaffirmed on many occasions by the United Nations and other international organizations.[9]
On several occasions, the International Conference of the Red Cross and Red Crescent has called for respect for this rule. For example, the Plan of Action for the years 2000–2003, adopted by the 27th International Conference in 1999, called on all the parties to an armed conflict to ensure that:
prisoners of war are released and repatriated without delay after the cessation of active hostilities, unless subject to due judicial process; the prohibition of taking hostages is strictly respected; the detention of prisoners and internees is not prolonged for bargaining purposes which practice is prohibited by the Geneva Conventions.[10]
The practice establishing the customary nature of this rule in non-international armed conflicts consists of numerous agreements concluded, for example, in the context of the conflicts in Afghanistan, Angola, Bosnia and Herzegovina, Cambodia, Chechnya, El Salvador, Liberia, Mozambique and Rwanda.[11] The Esquipulas II Accords provide for the release by the “irregular forces of the country concerned” of all persons in their power simultaneously with the issuance of amnesty decrees.[12]
Unjustifiable delay in the return home of detainees held in connection with a non-international armed conflict is an offence under the legislation of some States.[13] There are also accounts of the release of persons detained in connection with non-international armed conflicts, for example, in Colombia, Nigeria and Rwanda.[14]
This rule is supported by official statements and other practice, which praise the releases of detainees when they occur, demand (further) releases or condemn parties failing to cooperate in such releases.[15]
The United Nations and other international organizations have on various occasions highlighted the importance of the release of detainees held in connection with non-international armed conflicts, for example, in Afghanistan, Angola, Bosnia and Herzegovina, Chechnya and Tajikistan.[16] Armed opposition groups have also indicated that they wish to comply with this rule, sometimes prompted by their inability to detain prisoners in safety.[17]
As is evident from its formulation, this rule does not apply to persons against whom criminal proceedings are pending nor to persons lawfully convicted and serving a sentence in connection with the armed conflict. This is reflected in a number of agreements.[18] Hence, those lawfully convicted and serving a sentence for reasons related to the armed conflict may remain in detention following the end of hostilities but should be considered for an amnesty, unless they are serving a sentence for a war crime (see Rule 159).
According to the Fourth Geneva Convention, no protected person may be transferred to a country “where he or she may have reason to fear persecution for his or her political opinions or religious beliefs”.[19] While the Third Geneva Convention does not contain a similar clause, practice since 1949 has developed to the effect that in every repatriation in which the ICRC has played the role of neutral intermediary, the parties to the conflict, whether international or non-international, have accepted the ICRC’s conditions for participation, including that the ICRC be able to check prior to repatriation (or release in case of a non-international armed conflict), through an interview in private with the persons involved, whether they wish to be repatriated (or released).[20]
Practice indicates that release often occurs under an agreement at the end of a conflict based on bilateral exchange.[21] Each phase of the release process almost invariably involves the participation of a neutral intermediary, usually the ICRC, from negotiation of the release of persons to supervision of the release itself or even receipt of the former prisoners following their release. Practice stresses that the parties involved in such an exchange must cooperate in good faith with the ICRC or other intermediaries.[22] Similar practice is also reported with regard to Angola,[23] Colombia,[24] El Salvador,[25] Rwanda,[26] Somalia,[27] and Sudan.[28] The UN Security Council and UN Commission on Human Rights, as well as the Parliamentary Assembly of the Council of Europe, have called upon parties to cooperate with the ICRC in the release of detainees.[29]
Practice indicates that the responsibility of the former detaining power does not end at the moment of release, but continues in the sense of ensuring the safety of persons during return and providing subsistence for the duration of the journey. The Third Geneva Convention requires that the repatriation of prisoners of war take place under the same humane conditions as transfers of prisoners.[30] Additional Protocol II provides that “if it is decided to release persons deprived of their liberty, necessary measures to ensure their safety shall be taken by those so deciding”.[31] This last requirement is set forth in the Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners (March 1992),[32] a number of military manuals which are applicable in or have been applied in non-international armed conflicts,[33] national legislation providing for the punishment of violations of Additional Protocol II,[34] and in a statement by the President of the UN Security Council.[35]
With respect to the meaning of the expression “end of active hostilities” in Article 118 of the Third Geneva Convention, Germany’s Military Manual states that this requires neither a formal armistice agreement nor the conclusion of a peace treaty.[36]
N.B. The direct repatriation and accommodation in neutral countries of prisoners of war with special needs are governed by Articles 109–117 of the Third Geneva Convention.[37] The obligations set forth in these provisions are independent of the rule requiring release and repatriation at the end of active hostilities.
[1] Hague Regulations, Article 20 (cited in Vol. II, Ch. 37, § 604).
[2] Third Geneva Convention, Articles 118 (ibid., § 607).
[3] Fourth Geneva Convention, Article 132 (ibid., § 608) and Article 133 (ibid., § 609).
[4] Additional Protocol I, Article 85(4)(b) (adopted by consensus) (ibid., § 615).
[5] Panmunjom Armistice Agreement, Article III(51)(a) (ibid., § 611); Protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam concerning the Return of Captured Military Personnel and Foreign Civilians and Captured and Detained Vietnamese Civilian Personnel, Articles 4 and 6 (ibid., § 613); Agreement on Repatriation of Detainees between Bangladesh, India and Pakistan (ibid., § 614); CIS Agreement on the Protection of Victims of Armed Conflicts, Article 4 (ibid., § 618); Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords, Article IX (ibid., § 619); Peace Agreement between Ethiopia and Eritrea, Article 2(1) and (2) (ibid., § 620).
[6] See, e.g., the military manuals of Argentina (ibid., §§ 638–639), Australia (ibid., § 640), Cameroon (ibid., § 642), Canada (ibid., § 641), Colombia (ibid., § 643), Croatia (ibid., § 644), France (ibid., § 645), Germany (ibid., § 646), Hungary (ibid., § 647), Israel (ibid., § 648), Italy (ibid., § 649), Madagascar (ibid., § 650), Netherlands (ibid., § 651), New Zealand (ibid., § 653), Nigeria (ibid., § 654), South Africa (ibid., § 655), Spain (ibid., § 656), Switzerland (ibid., § 657), United Kingdom (ibid., §§ 658–659) and United States (ibid., §§ 660–661).
[7] See, e.g., the legislation of Armenia (ibid., § 663), Australia (ibid., §§ 664–665), Azerbaijan (ibid., § 666), Bangladesh (ibid., § 667), Belarus (ibid., § 668), Belgium (ibid., § 669), Bosnia and Herzegovina (ibid., § 670), Canada (ibid., § 671), Cook Islands (ibid., § 672), Croatia (ibid., § 673), Cyprus (ibid., § 674), Czech Republic (ibid., § 675), Estonia (ibid., § 677), Georgia (ibid., § 678), Germany (ibid., § 679), Hungary (ibid., § 680), Ireland (ibid., § 681), Lithuania (ibid., § 684), Moldova (ibid., § 685), Netherlands (ibid., § 686), New Zealand (ibid., § 687), Niger (ibid., § 689), Norway (ibid., § 690), Slovakia (ibid., § 691), Slovenia (ibid., § 692); Spain (ibid., § 693), Tajikistan (ibid., § 694), United Kingdom (ibid., § 695), Yugoslavia (ibid., § 696) and Zimbabwe (ibid., § 697); see also the draft legislation of Argentina (ibid., § 662), El Salvador (ibid., § 676), Jordan (ibid., § 682), Lebanon (ibid., § 683) and Nicaragua (ibid., § 688).
[8] See, e.g., the reported practice of Botswana (ibid., § 701), Egypt (ibid., § 703) and Kuwait (ibid., § 709).
[9] See, e.g., UN Security Council, Res. 968 (ibid., § 719); UN General Assembly, Res. 50/193 (ibid., § 722); UN Commission on Human Rights, Res. 1996/71 (ibid., § 725) and Res. 1998/79 (ibid., § 727); Council of Europe, Parliamentary Assembly, Rec. 1287 (ibid., § 736); Gulf Cooperation Council, Supreme Council, Final Communiqués of the 12th, 13th, 14th, 15th and 16th sessions (ibid., §§ 740–744); League of Arab States, Council, Res. 4938 (ibid., § 745), Res. 5169 (ibid., § 747), Res. 5231 (ibid., § 746), Res. 5324 (ibid., § 747), Res. 5414 (ibid., § 748) and Res. 5635 (ibid., § 749); OIC, Conference of Foreign Ministers, Res. 1/6-EX (ibid., § 751); OSCE, Ministerial Council, Decision on the Minsk Process (ibid., § 752).
[10] 27th International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) (ibid., § 756).
[11] Afghan Peace Accord, Article 5 (ibid., § 635); Peace Accords between the Government of Angola and UNITA, § II.3 (ibid., § 627); Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners, Article 3(1) (ibid., § 631); Final Act of the Paris Conference on Cambodia, Articles 21–22 (ibid., § 626); N'Sele Cease-fire Agreement, Article 4 (ibid., § 633); Government of El Salvador-FMLN Agreement on Human Rights, § 3 (ibid., § 624); Cotonou Agreement on Liberia, Article 10 (ibid., § 634); General Peace Agreement for Mozambique, Protocol VI, Part III (ibid., § 632); Moscow Agreement on a Cease-fire in Chechnya, Article 2 (ibid., § 637).
[12] Esquipulas II Accords (ibid., § 617).
[13] See, e.g., the legislation of Georgia (ibid., § 678), Germany (ibid., § 679) and Tajikistan (ibid., § 694).
[14] See the practice of Colombia (ibid., § 702) and the reported practice of Nigeria (ibid., § 710) and Rwanda (ibid., § 712).
[15] See, e.g., the statements of Bangladesh (ibid., § 700) and France (ibid., § 704), the practice of the Philippines (ibid., § 711) and the reported practice of India (ibid., § 707) and United States (ibid., § 713).
[16] See, e.g., UN Security Council, Res. 968 (ibid., § 719) and Statements by the President (ibid., §§ 720–721); UN General Assembly, Res. 50/193 (ibid., § 722), UN Commission on Human Rights, Res. 1994/72 and 1995/89 (ibid., § 724), Res. 1996/71 (ibid., § 725), Res. 1998/79 (ibid., § 727) and Statement by the Chairman (ibid., § 728); European Parliament, Resolution on the situation in Chechnya (ibid., § 739); League of Arab States, Council, Res. 5231 (ibid., § 746); OAU, Report of the Secretary-General on the situation in Angola (ibid., § 750).
[17] See, e.g., the statement of FARC-EP (ibid., § 765) and the reported practice of the SPLM/A (ibid., § 766) and armed opposition groups (ibid., §§ 762–764).
[18] See, e.g., Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners, Article 3(1); General Peace Agreement for Mozambique, Protocol VI, Part III (ibid., § 631).
[19] Fourth Geneva Convention, Article 45, fourth paragraph (ibid., § 835).
[20] See, e.g., Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords (ibid., § 823); Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners, § 6 (ibid., § 840); Agreement between Croatia and the FRY on the Exchange of Prisoners (July 1992), § 3 (ibid., § 841); Agreement between Croatia and the FRY on the Release and Repatriation of Prisoners, Article 1(4) (ibid., § 842); Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners, Article 3(6) (ibid., § 843).
[21] See, e.g., Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords, Article IX (ibid., § 787); Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners, §§ 1–2 (ibid., § 792); Protocol to the Moscow Agreement on a Cease-fire in Chechnya, Article 2 (ibid., § 793); Ashgabat Protocol on Prisoner Exchange in Tajikistan, § 1 (ibid., § 794).
[22] See, e.g., Peace Accords between the Government of Angola and UNITA, Cease-fire Agreement, Section II(3) (ibid., § 913); Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners, §§ 3–6 and 11 (ibid., § 915); Agreement No. 3 on the ICRC Plan of Action between the Parties to the Conflict in Bosnia and Herzegovina, Section IV (ibid., § 916); Agreement between Croatia and the FRY on the Release and Repatriation of Prisoners, Article 1(1) (ibid., § 917); London Programme of Action on Humanitarian Issues, Article 2(f) (ibid., § 918); Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners, Article 3 (ibid., § 919); Agreement among the Parties to Halt the Conflict in Bosnia and Herzegovina, Article II (ibid., § 921); General Peace Agreement for Mozambique, Protocol VI, Section III(2) (ibid., § 920); Cotonou Agreement on Liberia, Article 10 (ibid., § 922); Ashgabat Protocol on Prisoner Exchange in Tajikistan, § 2 (ibid., § 923).
[23] See UN Secretary-General, Further report on the UN Angola Verification Mission (UNAVEM II) (ibid., § 937).
[24] Report on the Practice of Colombia (ibid., § 928).
[25] See UN Commission on the Truth for El Salvador, Report (ibid., § 939).
[26] See Association rwandaise pour la défense des droits de la personne et des libertés publiques, Rapport sur les droits de l’homme au Rwanda – Année 1992 (ibid., § 929).
[27] UN Secretary-General, Progress report on the situation in Somalia (ibid., § 938).
[28] See ICRC, Annual Report 1986 (ibid., § 945).
[29] See, e.g., UN Security Council, Res. 1089 (ibid., § 932) and Res. 1284 (ibid., § 933); UN Commission on Human Rights, Res. 1996/71 (ibid., § 934); Council of Europe, Parliamentary Assembly, Rec. 1287 (ibid., § 940).
[30] Third Geneva Convention, Article 119, first paragraph (the provision refers to the conditions for transfers set forth in Articles 46–48 of the Convention).
[31] Additional Protocol II, Article 5(4) (adopted by consensus) (cited in Vol. II, Ch. 37, § 891).
[32] Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners (March 1992), Article VII (ibid., § 892).
[33] See, e.g., the military manuals of Canada (ibid., § 895) and New Zealand (ibid., § 897).
[34] See, e.g., the legislation of Ireland (ibid. , § 900) and Norway (ibid., § 901).
[35] UN Security Council, Statement by the President (ibid., § 905).
[36] Germany, Military Manual (ibid., § 646).
[37] Third Geneva Convention, Articles 109–117 (ibid., § 606).