Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section C. Exchange of prisoners
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 included detailed provisions on prisoner exchange.
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.
Lieber Code
Article 109(1) of the 1863 Lieber Code provides:
The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it cannot be demanded by either of them. No belligerent is obliged to exchange prisoners of war.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 109(1).
Brussels Declaration
Article 30 of the 1874 Brussels Declaration states: “The exchange of prisoners of war is regulated by a mutual understanding between the belligerent parties.”
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 30.
Oxford Manual
Article 75 of the 1880 Oxford Manual provides: “Prisoners of war may be released in accordance with a cartel of exchange, agreed upon by the belligerent parties.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 75.
Cairo Declaration on Human Rights in Islam
Article 3(a) of the 1990 Cairo Declaration on Human Rights in Islam provides: “In the event of the use of force and in case of armed conflict … it is a duty to exchange prisoners of war.”
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 3(a).
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:
1. Both Parties commonly declare that they shall exchange all prisoners and all persons deprived of their liberty, according to the principle of “all for all”.
2. The word “prisoner” is understood as including all persons deprived of their liberty who are detained in detention centers or prisoner camps, regardless of whether a criminal or other procedure has been opened against them, an indictment drawn up or a condemnation, whether executory or not, pronounced, and regardless of the territory in which these persons are detained or the place where they were captured, or taken as hostages or deprived of their liberty or freedom of movement.
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, §§ 1 and 2.
Protocol to the Moscow Agreement on a Cease-fire in Chechnya
Under Article 2 of the 1996 Protocol to the Moscow Agreement on a Cease-fire in Chechnya, a mutual exchange of lists of persons being detained was to be effected, and the exchange itself was to take place within two weeks.
Agreement on a Cease-fire, the Cessation of Military Activities, and on Measures for a Settlement of the Armed Conflict on the Territory of the Chechen Republic, Moscow, 27 May 1996, Article 2.
Ashgabat Protocol on Prisoner Exchange in Tajikistan
In paragraph 1 of the 1996 Ashgabat Protocol on Prisoner Exchange in Tajikistan, the Government of Tajikistan and the United Tajik Opposition agreed to conduct “a step-by-step exchange of an equal number of prisoners of war and detainees in accordance with the lists to be transmitted by the parties to the International Committee of the Red Cross (ICRC) before the end of the current round of inter-Tajik talks in Ashgabat”.
Protocol on the Implementation of a Humanitarian Action Involving the Exchange of Prisoners of War and Detainees, concluded between the Government of the Republic of Tajikistan and the United Tajik Opposition, Ashgabat, 21 July 1996, annexed to Report of the UN Secretary-General on the situation in Tajikistan, UN Doc. S/1996/754, 13 September 1996, § 1.
Bishkek Memorandum
In the 1997 Bishkek Memorandum, concluded between the President of Tajikistan and the leader of the United Tajik Opposition, an agreement was reached “to resolve … the problem of the exchange of POW’s [prisoners of war] and prisoners in all its aspects and to work out the corresponding mechanism”.
Bishkek Memorandum between the President of the Republic of Tajikistan and the leader of the United Tajik Opposition, Bishkek, 18 May 1997, annexed to UN Doc. S/1997/385, Letter dated 20 May 1997 from the permanent representative of Kyrgyzstan to the UN addressed to the UN Secretary-General, 20 May 1997, Annex II.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
2. … PW [prisoner-of-war] exchange is outside the provisions of [the 1949 Geneva Convention III] and although in the past there have been instances of the exchange of PW, man for man, in the course of truces or temporary cessation in hostilities, such instances are likely to be the exception.
3. Canada will not engage in PW exchange without the specific authority of the CDS [Chief of the Defence Staff]. When such authority is granted, the exchange is to take place under the supervision of the Protecting Power or the ICRC.
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, § 3H02.2–3.
Israel
Israel’s Manual on the Laws of War (1998) provides: “The parties to the conflict can reach an arrangement for the exchange of prisoners from both sides even before the war has ended. Exchanged prisoners of war may not return to active military service.”
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:
The parties to the dispute can reach an arrangement for the exchange of prisoners-of-war from both sides even before the war has ended. Prisoners-of-war exchanged shall not be returned to active military service.
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).
Netherlands
The Military Handbook (1995) of the Netherlands provides: “Exchange of prisoners may take place during the hostilities in accordance with agreements concluded between the Parties.”
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-42.
Netherlands
The Military Manual (2005) of the Netherlands states that “[i]f a protecting power is appointed during an armed conflict … it may play a role in the treatment of prisoners of war. Examples might include the exchange of prisoners of war”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0714.
The manual also states:
In addition to possible action as a protecting power and to gathering information on prisoners of war, the ICRC fulfils the following tasks:
…
- mediation in the exchange of prisoners (of war or otherwise).
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0243.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides:
The exchange of prisoners of war is nowadays rare. The rule generally observed is to exchange man for man and rank for rank, with due allowance if titles of ranks or grades differ or if there is no exact equivalent. A condition is often made that the men exchanged shall not participate as soldiers in the war – in fact they are paroled.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 249.
The manual further specifies:
The exchange of prisoners may be carried out by means of so-called “cartels”. Nothing more is required than a simple statement agreed by the commanders, such agreement being arrived at by parlementaires, that is, negotiations conducted during truce, or by the exchange of letters. But for exchanges on a large scale commissioners are usually appointed, and commanders ought not as a rule in such cases to act without having previously reported to their government and taken instructions. In modern war between civilised States, an exchange of prisoners will rarely be carried out except by agreement between the governments concerned.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 250.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
8.146. [The exchange of prisoners of war during hostilities] is not a matter that is dealt with in the [the 1949 Geneva Convention III] but it is allowed by the customary law of armed conflict on such terms as may be agreed between the states concerned. The practice generally observed is to exchange soldier for soldier and rank for rank, with due allowance for differences in titles of ranks or grades. The agreement between the parties, sometimes known as a cartel, may lay down other conditions, for example, that the soldiers concerned do not take any further active role in the conflict. The agreement may be negotiated during a truce by opposing commanders, or by exchange of letters between belligerent states, often through the intermediary of a neutral state.
8.146.1. Nowadays such an exchange would rarely be carried out except by agreement at government level between the parties concerned and it is likely that the assistance of a protecting power or the ICRC would be sought.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 8.146–8.146.1.
United States of America
The US Field Manual (1956) provides:
Exchange of prisoners of war, other than those whose repatriation is required by … [the 1949 Geneva Convention III], may be effected by agreement between the belligerents. No belligerent is obliged to exchange prisoners of war, except if a general cartel requiring such exchange has been concluded. The conditions for exchange are as prescribed by the parties thereto, and exchanges need not necessarily be on the basis of number for number or rank for rank.
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, § 197.
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Argentina
In 1994, during a debate in the UN Security Council on the situation in Tajikistan and along the Tajik-Afghan border, Argentina noted that the exchange of prisoners showed the will of the parties to cooperate in finding a solution to the crisis in Tajikistan.
Argentina, Statement before the UN Security Council, UN Doc. S/PV.3482, 1 January 1994, p. 11.
China
In 1995, during a debate in the UN Security Council on the situation in Tajikistan and along the Tajik-Afghan border, China welcomed the agreements on the exchange of detainees and prisoners of war.
China, Statement before the UN Security Council, UN Doc. S/PV.3544, 16 June 1995, p. 5.
Honduras
In 1995, during a debate in the UN Security Council on the situation in Tajikistan and along the Tajik-Afghan border, Honduras welcomed the agreements on the exchange of detainees and prisoners of war.
Honduras, Statement before the UN Security Council, UN Doc. S/PV.3544, 16 June 1995, p. 4.
Indonesia
In 1995, during a debate in the UN Security Council on the situation in Tajikistan and along the Tajik-Afghan border, Indonesia drew particular attention to the provision asking parties to implement the agreed confidence-building measures, including the exchange of detainees and prisoners of war.
Indonesia, Statement before the UN Security Council, UN Doc. S/PV.3544, 16 June 1995, p. 4.
United States of America
In 1994, during a debate in the UN Security Council on the situation in Tajikistan and along the Tajik-Afghan border, the United States encouraged the parties to resume discussions with the intention of participating in additional exchanges of prisoners.
United States, Statement before the UN Security Council, UN Doc. S/PV.3482, 1 January 1994, p. 9.
United States of America
In 1995, during a debate in the UN Security Council on the situation in Bosnia and Herzegovina, the United States stated that an exchange of prisoners between the Bosnian Serb side and the Bosnian Government gave reason for hope.
United States, Statement before the UN Security Council, UN Doc. S/PV.3591, 9 November 1995, p. 12.
UN Security Council
In a resolution on Tajikistan adopted in 1995, the UN Security Council urged the parties to cooperate fully with the ICRC in facilitating “the exchange of detainees and prisoners of war”.
UN Security Council, Res. 999, 16 June 1995, § 8, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1995, the UN Security Council called upon the Government of Angola and the União Nacional para Independência Total de Angola (UNITA) “to accelerate the exchange of prisoners”.
UN Security Council, Res. 1008, 7 August 1995, § 7, voting record: 15-0-0.
UN Security Council
In a resolution on Afghanistan adopted in 1996, the UN Security Council noted that proposals had been made for the “exchange of prisoners of war”.
UN Security Council, Res. 1076, 22 October 1996, preamble, voting record: 15-0-0.
UN Security Council
In 1998, in a statement by its President on the situation in Afghanistan, the UN Security Council called upon the parties to agree on an exchange of prisoners.
UN Security Council, Statement by the President, UN Doc. S/PRST/1998/22, 14 July 1998.
UN Commission on Human Rights
In a resolution adopted in 1995, the UN Commission on Human Rights called for the “simultaneous release of all prisoners of war” in Afghanistan.
UN Commission on Human Rights, Res. 1995/74, 8 March 1995, § 7, adopted without a vote.
This call was repeated in a resolution adopted in 1996.
UN Commission on Human Rights, Res. 1996/75, 23 April 1996, § 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1998, the UN Commission on Human Rights welcomed the release of prisoners of war in Afghanistan and called for the “simultaneous release of all remaining prisoners of war”.
UN Commission on Human Rights, Res. 1998/70, 21 April 1998, § 7, adopted without a vote.
UN Secretary-General
In 1991, in a report on the former Yugoslavia, the UN Secretary-General reported that, on 9 November 1991, in the context of the conflict in Bosnia and Herzegovina, more than 700 prisoners were released simultaneously by the parties under ICRC supervision.
UN Secretary-General, Report pursuant to Security Council resolution 721 (1991), UN Doc. S/23280, 11 December 1991, p. 7, § 18.
UN Secretary-General
In 1992, in a report on the former Yugoslavia, the UN Secretary-General reported that UNPROFOR had been involved in arranging and witnessing exchanges of prisoners of war.
UN Secretary-General, Report pursuant to Security Council resolution 752 (1992), UN Doc. S/24000, 26 May 1992, p. 3, §§ 9–10.
UN Secretary-General
In 1995, in a report on the situation in Tajikistan, the UN Secretary-General reported that it had been agreed during the fourth round of talks in May/June 1995 that both sides would exchange an equal number of detainees and prisoners of war by 20 July 1995.
UN Secretary-General, Report on the situation in Tajikistan, UN Doc. S/1995/472, 10 June 1995, pp. 2–3, § 8(b).
UN Secretary-General
In 1995, in a report on violations of IHL in the areas of Srebrenica, Žepa, Banja Luka and Sanski Most in Bosnia and Herzegovina, the UN Secretary-General reported that a prisoner exchange between the Bosnian Government and Bosnian Serb armies had occurred on 30 October 1995.
UN Secretary-General, Report pursuant to Security Council resolution 1019 (1995) on violations of IHL in the areas of Srebrenica, Žepa, Banja Luka and Sanski Most, UN Doc. S/1995/988, 27 November 1995, p. 15, § 70.
UN Secretary-General
In 1996, in a report on UNAVEM III in Angola, the UN Secretary-General, with reference to the Peace Accords concluded between the Government of Angola and the União Nacional para Independência Total de Angola (UNITA) providing for the release of prisoners of war based on lists presented to the ICRC, the UN Secretary-General highlighted as a positive development the release of additional prisoners registered with the ICRC.
UN Secretary-General, Report on UNAVEM III, UN Doc. S/1996/171, 6 March 1996, § 3.
UN Secretary-General
In 1996, in a report concerning the situation in Abkhazia, Georgia, the UN Secretary-General reported that, following a series of hostage-taking incidents, the two sides had agreed to exchange all hostages. In the space of one month, UNOMIG assisted in the exchange of 13 hostages, 11 held by the Abkhaz side, 2 by the Georgian side.
UN Secretary-General, Report concerning the situation in Abkhazia, Georgia, UN Doc. S/1996/284, 15 April 1996, § 33.
UN Secretary-General
In 1997, in a report on the situation of human rights in the Republic of Chechnya of the Russian Federation, the UN Secretary-General reported that the OSCE had provided the following information:
There are still wartime detainees on both sides. The cease-fire and initial peace process agreements called for the exchange of prisoners all against all, a principle rhetorically accepted by both side. In fact, many prisoners held by the Chechens had been released in the past months, but there have not been commensurate releases on the federal side.
UN Secretary-General, Report on the situation of human rights in the Republic of Chechnya of the Russian Federation, UN Doc. E/CN.4/1997/10, 20 March 1997, p. 6.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992) found, with respect to its investigation into prison camps, that civilians were often arrested and detained by both Bosnian Government and Bosnian Croat forces, as well as Croat forces in Croatia, for the purpose of collecting prisoners for exchange. It was reported that the Bosnian Croats divided their prisoners at the Central Mostar Prison into five categories, one of which was prisoners held for the purposes of exchange.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, Annex Summaries and Conclusions, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, §§ 235, 281, 289, 290, 387 and 456.
UN Commission on the Truth for El Salvador
In its report in 1993, the UN Commission on the Truth for El Salvador noted that, following the abduction of the President’s daughter and a second woman by a Farabundo Martí para la Liberación Nacional (FMLN) commando in September 1985, several weeks of secret negotiations took place in which the Salvadoran Church and diplomats from the region acted as mediators. As a result, the two women were released in exchange for 22 political prisoners. Simultaneously, 25 mayors and local officials abducted by the FMLN were released in exchange for 101 war-wounded guerrillas, whom the government allowed to leave the country.
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, Annex, pp. 169–170.
Council of Europe Parliamentary Assembly
In 1994, in a report on the situation in Bosnia and Herzegovina submitted to the Council of Europe Parliamentary Assembly, it was stated that 500 Muslim prisoners held by Bosnian Croat forces and 364 Croat prisoners held by the Bosnian governmental forces had been released simultaneously on 20 March 1994.
Council of Europe, Parliamentary Assembly, Report on the situation in Bosnia and Herzegovina, Doc. 7065, 12 April 1994, p. 8.
Council of Europe Parliamentary Assembly
In 1996, in an information report on the situation in Chechnya submitted to the Council of Europe Parliamentary Assembly, it was noted that the cease-fire signed by both parties included measures for the exchange of detainees and concluded that this was the first phase to be implemented.
Council of Europe, Parliamentary Assembly, Information report on the situation in Chechnya, Doc. 7560, 24 June 1996, Conclusions, § 6.
League of Arab States Council
In a resolution adopted in 1987, the League of Arab States Council decided:
To invite Iran to respond to the call for peace and to agree to a peaceful solution of the conflict, in accordance with the UN Charter and International Law reflected in the Security Council Resolution No. 58 (1986), on the following bases: … A comprehensive and total exchange of prisoners.
League of Arab States, Council, Res. 4646, 6 April 1987, § 1(3).
International Conference of the Red Cross (1973)
The 22nd International Conference of the Red Cross in 1973 adopted a resolution in which it stated that it “received with great satisfaction the welcome news concerning the exchange of prisoners of war in the Middle East”.
22nd International Conference of the Red Cross, Teheran, 8–15 November 1973, Res. XIX.
Inter-American Commission on Human Rights
In the section of its Annual Report 1986–1987 concerning the situation of human rights in El Salvador, the Inter-American Commission on Human Rights noted that agreement was reached between the Salvadoran Government and the rebel forces to release a colonel who had been kidnapped by the rebels as a prisoner of war in exchange for a number of trade unionists, members of an NGO and disabled Farabundo Martí para la Liberación Nacional (FMLN) militants.
Inter-American Commission on Human Rights, Annual Report 1986–1987, Doc. OEA/Ser.L/V/II.71 Doc. 9 rev. 1, 22 September 1987, p. 225.
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