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

Geneva Convention III
Article 109, third paragraph, of the 1949 Geneva Convention III provides: “No sick or injured prisoner of war who is eligible for repatriation may be repatriated against his will during hostilities.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 109, third para.
Geneva Convention III
Article 118, third paragraph, of the 1949 Geneva Convention III requires that prisoners of war be informed of the measures adopted for their release and repatriation. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 118, third para.
Geneva Convention IV
Article 45, fourth paragraph, of the 1949 Geneva Convention IV provides: “In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 45, fourth para.
Geneva Convention IV
Article 135, second paragraph, of the 1949 Geneva Convention IV provides that an internee can elect to return to his/her country on his/her own responsibility. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 135, second para.
Panmunjom Armistice Agreement
Article III(51)(a) of the 1953 Panmunjom Armistice Agreement provides:
Within sixty (60) days after this Armistice Agreement becomes effective, each side shall, without offering any hindrance, directly repatriate and hand over in groups all those prisoners of war in its custody who insist on repatriation to the side to which they belonged at the time of capture. 
Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, concerning a Military Armistice in Korea, Panmunjom, 27 July 1953, Article III(51)(a).
Article III(53) adds: “All the sick and injured prisoners of war who insist upon repatriation shall be repatriated with priority.” 
Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, concerning a Military Armistice in Korea, Panmunjom, 27 July 1953, Article III(53).
Paragraph I(3) of the Annex to the Agreement, establishing the terms of reference of a Neutral Nations Repatriation Commission, further provides: “No force or threat of force shall be used against the prisoners of war … to prevent or effect their repatriation.” 
Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, concerning a Military Armistice in Korea, Panmunjom, 27 July 1953, Annex, § I(3).
Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords
Article IX of the 1995 Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords provided:
The Parties shall take no reprisals against any prisoner or his/her family in the event that the prisoner refuses to be transferred … The Parties shall permit the ICRC to privately interview each prisoner at least forty-eight (48) hours prior to his or her release for the purpose of implementing and monitoring the plan, including determination of the onward destination of each prisoner. 
General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 1A, Military Aspects of the Peace Settlement, signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska, Dayton, 22 November 1995, Article IX.
Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners
The 1991 Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners provides:
6. The signatories of the present agreement agree that no prisoner shall be returned against his will and that each prisoner shall have the opportunity to express freely his will to the representative of the ICRC.
7. The signatories of the present agreement undertake not to exercise any pressure on the prisoners in order to persuade them to refuse or accept the return.
8. The signatories of the present agreement solemnly undertake not to take any reprisals against prisoners who refuse to return or their families. 
Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners and of Persons Deprived of Liberty, Zagreb, 6 November 1991, §§ 6–8.
Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners (July 1992)
Paragraph 3 of the Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners (July 1992) provided: “Each prisoner is interviewed in private by ICRC delegates and is entitled to refuse repatriation.” 
Agreement between Croatia and the Federal Republic of Yugoslavia on the Exchange of Prisoners, reached under the auspices of the International Committee of the Red Cross, Geneva, 28–29 July 1992, § 3.
Agreement between Croatia and the Federal Republic of Yugoslavia on the Release and Repatriation of Prisoners
Article 1(4) of the 1992 Agreement between Croatia and the Federal Republic of Yugoslavia on the Release and Repatriation of Prisoners provides:
The prisoners present at this operation shall be interviewed in private by ICRC delegates on their will to be repatriated. Those who wish to be repatriated are immediately handed over by ICRC delegates to the other side. Those who refuse to be repatriated are released on the spot – except, until the amnesty provided for in Article 2(2) becomes available to them, if they are accused of or sentenced for a crime – and may reach, with the assistance of the ICRC, the place of their choice. 
Agreement between Croatia and the Federal Republic of Yugoslavia on the implementation of the July 1992 Agreement on the Release and Repatriation of Prisoners, Budapest, 7 August 1992, Article 1(4).
Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners
Article 3(6) of the 1992 Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners provides:
Each prisoner to be released has the right to express to the ICRC in a private interview his free will on whether he wishes to be released and transferred according to the specific ICRC plan of operation, or wishes to be released on the spot, or wishes to remain in detention. 
Agreement on the Release and Transfer of Prisoners, concluded between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representative of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Mate Boban (President of the Croatian Democratic Community), Geneva, 1 October 1992, Article 3(6).
Argentina
Argentina’s Law of War Manual (1969) and Law of War Manual (1989) provide: “No sick or injured prisoner who is eligible for repatriation may be repatriated against his will during hostilities.” 
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, § 2.091; Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 3.31.
Australia
Australia’s Defence Force Manual (1994) states: “Seriously wounded and sick PWs [prisoners of war] must be repatriated as soon as they are fit to travel except that PWs cannot be involuntarily repatriated during the hostilities.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1046.
Australia
Australia’s LOAC Manual (2006) states: “Seriously wounded and sick PW [prisoners of war] must be repatriated as soon as they are fit to travel except that PW cannot be involuntarily repatriated during hostilities.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.58.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada
Canada’s LOAC Manual (1999) states: “PWs [prisoners of war] should not be repatriated against their wishes during hostilities.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-6, § 49.
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs): “PWs should not be repatriated against their wishes during hostilities.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1035.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Aliens in the territory of a party to the conflict”, the manual states: “In no circumstances may a protected person be transferred to a state where he or she has reason to fear persecution on account of his political opinions or religious beliefs.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1127.2.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states that “no PW [prisoner of war] who is eligible for repatriation may be repatriated against his wishes”. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 3H03.1.a.
With regard to asylum for prisoners of war, the manual states:
It is Canadian policy that PW should not be repatriated against their will. Arrangements for PW who do not wish to return to their state of origin will depend on the circumstances at the time but may include applications for asylum under normal procedures. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 3H04.4.
Germany
Germany’s Military Manual (1992) states: “No prisoner of war may be repatriated against his will during the hostilities.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 732.
Israel
Israel’s Manual on the Laws of War (1998) states: “As a general rule, prisoners of war should not be required to return to their country if they do not wish to, and an attempt should be made to find a solution to their problem via third-party States.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 54.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “Prisoners-of-war must not be forced to return to their own country if they do not want to do so, and solutions must be found for their problems through third countries.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 34.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Mexico
Mexico’s Army and Air Force Manual (2009) states:
193. The [1949 Geneva] Convention [III] provides for direct repatriation (return to country of origin) and hospitalization in a neutral country:
C. no sick or injured prisoner of war may be repatriated against his will during hostilities. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 193(C).
Netherlands
The Military Manual (1993) of the Netherlands provides: “No sick or injured prisoner of war who is eligible for repatriation may be repatriated against his will during hostilities.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VII-12, § 6.
Netherlands
The Military Handbook (1995) of the Netherlands provides: “During the hostilities, repatriation of the wounded and sick may not take place against their will.” 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-42.
Netherlands
The Military Manual (2005) of the Netherlands states: “A wounded or sick prisoner of war who is eligible for repatriation may not be returned to his own country against his will during the hostilities.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0750.
Peru
Peru’s IHL Manual (2004) states:
Some prisoners of war may decline to be repatriated because they fear the consequences they might face when they return to their own country. For example, they may be accused of treason or aiding the enemy, because they are residents in the country of the detaining power or a third State. In such circumstances, the prisoner of war should not be repatriated and an alternative solution should be found. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 52.e.
Peru
Peru’s IHL and Human Rights Manual (2010) states:
Some prisoners of war may decline to be repatriated because they fear the consequences they might face when they return to their own country. For example, they may be accused of treason or aiding the enemy because they are residents in the country of the detaining power or a third State. In such circumstances, the prisoner of war should not be repatriated and an alternative solution should be found. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 53(f), p. 261.
Spain
Spain’s LOAC Manual (1996) provides: “No prisoner of war may be repatriated against his will during the hostilities.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.8.(a).1.
Spain
Spain’s LOAC Manual (2007) states: “In no case shall sick or injured prisoners of war be repatriated against their will during hostilities.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.8.a.(1).
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “No prisoner may be repatriated against his will during hostilities.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 142(3).
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides:
Prisoners of war who are seriously sick are entitled to be sent back to their own country, regardless of number or rank, after having been cared for until they are fit to travel. No sick or injured prisoner of war who is eligible for repatriation under this provision may, however, be repatriated against his will during hostilities. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 251.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
A more contentious issue is whether prisoners of war must be repatriated even against their will. Recent practice of states indicates that they should not. It is United Kingdom policy that prisoners of war should not be repatriated against their will. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.170.
[emphasis in original]
United States of America
The US Field Manual (1956) provides: “No sick or injured prisoner of war who is eligible for repatriation may be repatriated against his will during hostilities.” 
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, § 188.
United States of America
The US Air Force Pamphlet (1976) provides: “No wounded and sick PW [prisoner of war] eligible for repatriation may be repatriated against his will during hostilities.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-10.
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
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 109 and 118 of the Geneva Convention III and Articles 45 and 135 of the Geneva Convention IV, is a punishable offence. 
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 … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(a).
No data.
Croatia
A communiqué issued by the Croatian Ministry of Defence after the operation in Western Slavonia in 1995, stated that during the armed conflict in Croatia, the captured combatants of the adverse party entitled to amnesty were released and, depending on their choice, were “allowed to choose either to stay in Croatia as peaceful citizens or to leave the country”. 
Croatia, Ministry of Defence Communiqué after the operation in Western Slavonia, 5 May 1995.
Malaysia
In 2010, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
8. [The delegate of Malaysia] said that …
10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …
11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [w]here vessels were captured, the protections provided in the Second and Fourth Geneva Conventions of 1949 and [the 1977 Additional] Protocol I continued to apply to the persons on board the vessels. 
Malaysia, Statement by the delegation of Malaysia before the Sixth Committee of the UN General Assembly on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 18 October 2010, as published in the summary record of the 13th meeting, 8 December 2010, UN Doc. A/C.6/65/SR.13, §§ 8, 10 and 11.
Republic of Korea
Upon accession to the 1949 Geneva Conventions, the Republic of Korea stated: “The Republic of Korea interprets the provisions of Article 118 [of the 1949 Geneva Convention III], paragraph 1, as not binding upon a Power detaining prisoners of war to forcibly repatriate its prisoners against their openly and freely expressed will.” 
Republic of Korea, Interpretative declarations made upon accession to the 1949 Geneva Conventions, 16 August 1966.
UN Security Council
In a resolution adopted in 2005 on the situation concerning the Democratic Republic of the Congo, the UN Security Council:
Recalls that, by its resolution 1565, the Council has mandated MONUC to support operations led by the Armed Forces of the Democratic Republic of the Congo to disarm foreign combatants, and to facilitate the voluntary repatriation of disarmed foreign combatants and their dependants. 
UN Security Council, Res. 1649, 21 December 2005, § 9, voting record: 15-0-0.
No data.
No data.
Eritrea-Ethiopia Claims Commission
In its Prisoners of War (Eritreas Claim) partial award in 2003, the Eritrea-Ethiopia Claims Commission stated that “there must be adequate procedures to ensure that individuals are not repatriated against their will”. 
Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 1 July 2003, § 147.
(footnote in original omitted)
ICRC
The ICRC Commentary on the Third Geneva Convention states: “Where the repatriation of a prisoner of war would be manifestly contrary to the general principles of international law for the protection of the human being, the Detaining Power may, so to speak, grant him asylum.” To this effect, “[t]he supervisory bodies must be able to satisfy themselves without any hindrance that the requests have been made absolutely freely and in all sincerity, and to give prisoners of war any information which may set at rest groundless fears”. 
Jean S. Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, Geneva, 1960, pp. 547–548.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that seriously wounded and seriously sick prisoners of war may not be repatriated against their will during hostilities. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 723.
ICRC
According to the ICRC, in every repatriation operation in which the ICRC has played the role of neutral intermediary, the parties to the conflict have accepted the ICRC’s conditions for participation. One of these conditions is that the ICRC be able to verify, during private interviews, that protected persons are not repatriated against their will.
ICRC
In a communication to the press issued in 2000 in the context of the conflict in Western Sahara, the ICRC stated that on 14 December 2000 it had repatriated 201 Moroccan prisoners released by the Polisario Front. Before the repatriation, ICRC delegates interviewed the prisoners individually to make sure that they were being repatriated of their own free will. 
ICRC, Communication to the Press No. 00/46, Morocco/Western Sahara: 201 Moroccan prisoners released and repatriated, 14 December 2000.
ICRC
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. Before the operation, ICRC delegates had interviewed the prisoners individually to make sure that they were being repatriated of their own free will. 
ICRC, Communication to the Press No. 02/38, Morocco/Western Sahara: 101 Moroccan prisoners released and repatriated, 7 July 2002.
World Veterans Federation
In a resolution adopted at its conference in Seoul in November 1997, the World Veterans Federation demanded that prisoners of war and persons who went missing during the Korean War be returned according to their freely expressed will. 
World Veterans Federation, Chosun Daily News, Seoul, 15 November 1997, § 2.
Sudan People’s Liberation Movement/Army (SPLM/A)
The Report on SPLM/A Practice states that, with regard to sections of the population who have fallen under its administration or who have been captured as prisoners of war, “the SPLM/A has followed the practice of allowing people to voluntarily return to the government side if they wish and to other areas held by rival factions”. 
Report on SPLM/A Practice, 1998, Chapter 5.4.