Rule 125. Correspondence of Persons Deprived of Their Liberty

Rule 125. Persons deprived of their liberty must be allowed to correspond with their families, subject to reasonable conditions relating to frequency and the need for censorship by the authorities.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Correspondence is to be of a strictly personal nature, i.e., not connected with political or military issues in any way.
The rule that persons deprived of their liberty must be allowed to correspond with their families is laid down in the Third and Fourth Geneva Conventions.[1] With respect to civilians, derogation from this right is possible in accordance with Article 5 of the Fourth Geneva Convention.[2] This right is also recognized in other treaties, including in a protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam and in the Convention on the Rights of the Child.[3]
Numerous military manuals provide for the right of persons deprived of their freedom to correspond with their families.[4] This right is set forth in the legislation of several States.[5] It is also recognized in official statements and other practice.[6]
The 20th and 21st International Conferences of the Red Cross adopted resolutions recognizing the right of detainees to correspond with their families.[7]
In the context of the Iran–Iraq War, the ICRC reported that by 1 March 1983 it had registered 6,800 Iranian prisoners of war and that these prisoners had been able “to correspond with their families in a satisfactory manner”.[8] During the Gulf War, the United States condemned Iraq’s refusal to accord prisoners of war the rights afforded them by the Third Geneva Convention, “such as the right of correspondence authorized by Article 70”.[9]
It should also be noted that it is the regular practice of the ICRC to facilitate, with the cooperation of the authorities, correspondence between detainees and their families, in the form of “Red Cross messages”, in both international and non-international armed conflicts. For example, after the conflict of December 1971 between India and Pakistan, the ICRC facilitated the exchange of 15 million messages between prisoners of war and their families.[10] More recently, during the Gulf War in 1991, the ICRC recorded 683 Red Cross messages sent by detainees and 12,738 received by them. From 1998 to 2002, during the conflict between Ethiopia and Eritrea, detainees sent 64,620 Red Cross messages and received 55,025, including those sent after the Peace Agreement between Eritrea and Ethiopia of 12 December 2000.
Additional Protocol II provides that internees and detainees “shall be allowed to send and receive letters and cards, the number of which may be limited by competent authority if it deems it necessary”.[11] The right to correspondence is also set forth in other instruments pertaining to non-international armed conflicts.[12]
Several military manuals which are applicable in or have been applied in non-international armed conflicts specify the right of persons deprived of their liberty to correspond with their families.[13] National legislation and reported practice further support this rule in the context of non-international armed conflicts.[14]
The conclusion that this rule is also customary in non-international armed conflicts is further supported by the practice of exchange of Red Cross messages, which the ICRC requires as one of the conditions of its visits irrespective of the nature of the armed conflict. For example, between 1996 and 2002, 18,341 Red Cross messages were sent and 10,632 messages received by detainees during the conflict in Sri Lanka. During the same period, 2,179 Red Cross messages were sent and 2,726 received by detainees in the conflict in Liberia. In Colombia, also during the same period, 2,928 Red Cross messages were sent and 3,436 messages were received by detainees.
Furthermore, the obligation to allow persons deprived of their liberty to correspond with their families is consistent with the requirement to respect family life (see Rule 105), which implies that this obligation must be respected in both international and non-international armed conflicts.
No official contrary practice was found with respect to either international or non-international armed conflicts.
[1] Third Geneva Convention, Article 70 (cited in Vol. II, Ch. 37, § 466) and Article 71 (ibid., § 467); Fourth Geneva Convention, Article 106 (ibid., § 466) and Article 107 (ibid., § 467).
[2] Fourth Geneva Convention, Article 5.
[3] 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, Article 8 (cited in Vol. II, Ch. 37, § 469); Convention on the Rights of the Child, Article 37(c) (ibid., § 471).
[4] See, e.g., the military manuals of Argentina (ibid., §§ 475–476), Australia (ibid., § 477), Belgium (ibid., § 478), Benin (ibid., § 479), Cameroon (ibid., §§ 480–481), Canada (ibid., § 482), Colombia (ibid., §§ 483–484), Croatia (ibid., § 485), France (ibid., §§ 486–487), Germany (ibid., § 488), Israel (ibid., § 489), Madagascar (ibid., § 490), Netherlands (ibid., §§ 491–492), New Zealand (ibid., § 493), Nicaragua (ibid., § 494), Nigeria (ibid., § 495), Romania (ibid., § 496), Senegal (ibid., § 497), Spain (ibid., § 498), Switzerland (ibid., § 499), Togo (ibid., § 500), United Kingdom (ibid., §§ 501–502) and United States (ibid., §§ 503–505).
[5] See, e.g., the legislation of Azerbaijan (ibid., § 506), Bangladesh (ibid., § 507), Ireland (ibid., § 508), Norway (ibid., § 509) and Rwanda (ibid., § 510).
[6] See, e.g., the statement of the United States (ibid., § 515) and the practice of France (ibid., § 513).
[7] 20th International Conference of the Red Cross, Res. XXIV (ibid., § 519); 21st International Conference of the Red Cross, Res. XI (ibid., § 520).
[8] ICRC, Conflict between Iraq and Iran: ICRC Appeal (ibid., § 523).
[9] United States, Final Report of the Department of Defense on the Conduct of the Persian Gulf War (ibid., § 515).
[10] François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC, Geneva, 2003, p. 565.
[11] Additional Protocol II, Article 5(2)(b) (adopted by consensus) (cited in Vol. II, Ch. 37, § 470).
[12] Standard Minimum Rules for the Treatment of Prisoners, Rule 37 (ibid., § 472); European Prison Rules, Rule 43(1) (ibid., § 473); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 15 (ibid., § 474).
[13] See, e.g., the military manuals of Australia (ibid., § 477), Benin (ibid., § 479), Canada (ibid., § 482), Colombia (ibid., §§ 483–484), Croatia (ibid., § 485), Germany (ibid., § 488), Madagascar (ibid., § 490), New Zealand (ibid., § 493), Nicaragua (ibid., § 494), Senegal (ibid., § 497) and Togo (ibid., § 500).
[14] See, e.g., the legislation of Azerbaijan (ibid., § 506) and Rwanda (ibid., § 510) and the reported practice of Malaysia (ibid., § 514) and United States (ibid., § 516).