Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section F. Responsibility for safe return
Geneva Convention III
Articles 46–48 of the 1949 Geneva Convention III, which contain extensive provisions relating to the conditions in which transfer of prisoners of war shall take place, are also applicable to the return of prisoners of war.
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Articles 46–48.
Additional Protocol II
Article 5(4) of the 1977 Additional Protocol II provides: “If it is decided to release persons deprived of their liberty, necessary measures to ensure their safety shall be taken by those so deciding”.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 5(4). Article 5 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 92.
Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners (March 1992)
Under Article VII of the Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners (March 1992), the parties pledged “to undertake the necessary measures to ensure safety in the places of exchange, for all phases of the exchange, as well as during the arrival and departure of all persons included in the exchange”.
Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners, Pècs, 20 March 1992, Article VII.
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Argentina
Argentina’s Law of War Manual (1969) reproduces Articles 46–48 of the 1949 Geneva Convention III.
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, §§ 2.042–2.044.
Canada
Canada’s LOAC Manual (1999) provides, with regard to non-international armed conflicts: “When persons who have been detained or interned are released, the detaining authority is obliged to take such steps as are necessary to ensure their safety.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 27.
Canada
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “When persons who have been detained or interned are released, the detaining authority is obliged to take such steps as are necessary to ensure their safety.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1715.4.
France
France’s LOAC Manual (2001) provides that when prisoners of war are released, their security must be ensured.
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 102.
New Zealand
New Zealand’s Military Manual (1992) provides that, in both international and non-international armed conflicts, the detaining authority is obliged to take such steps as are necessary to ensure the safety of released detainees.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1814.
The manual also provides that prisoners of war are to be fed and provided with sufficient provisions if released.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 919.
United States of America
The US Field Manual (1956) reproduces Articles 46–48 of the 1949 Geneva Convention III.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 122–125.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 46–48 of the Geneva Convention III, as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 5(4), are punishable offences.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
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Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “While releasing from detention, the dignity and rights of the person shall be guaranteed providing credible evidence of the release from detention.”
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, § 9.
Netherlands
In 2006, in reply to a written question concerning the treatment of detainees in Iraq, the Minister of Defence of the Netherlands stated:
The Dutch armed forces bear responsibility for the persons they arrest. After the transfer, this responsibility shifts to the receiving party. The Third Geneva Convention does oblige the transferring party (in this situation the Netherlands) to take corrective measures against the receiving party or to request that the detainee be transferred back when the transferring party is notified that the receiving party does not satisfy its obligations under the Geneva Conventions. The Dutch troops are obliged to offer arrested persons guarantees and treatment which are applicable to prisoners of war.
Netherlands, Lower House of Parliament, Statement by the Minister of Defence, Handelingen, 2003–2004 Session, 25 May 2004, Appendix No. 1630, p. 3450.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 5 prescribing humane treatment of persons whose liberty ha[s] been restricted … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
Report on US Practice, 1997, Chapter 5.3.
UN Security Council
In a resolution adopted in 1992 in the context of the conflict in Bosnia and Herzegovina, the UN Security Council authorized UNPROFOR to engage in the protection of convoys of released detainees if requested by the ICRC.
UN Security Council, Res. 776, 14 September 1992, § 2, voting record: 12-0-3.
UN Security Council
In 1998, in a statement by its President on Afghanistan, the UN Security Council demanded that “the Taliban release other Iranians detained in Afghanistan and ensure their safe and dignified passage out of Afghanistan without further delay”.
UN Security Council, Statement by the President, UN Doc. S/PRST/1998/27, 15 September 1998, p. 1.
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