Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section E. Destination of returning persons
Geneva Convention III
Article 109 of the 1949 Geneva Convention III provides: “Parties to the conflict are bound to send back to their own country … seriously wounded and seriously sick prisoners of war.”
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 109.
(emphasis added)Geneva Convention III
Article 118 of the 1949 Geneva Convention III provides: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 118.
(emphasis added)Geneva Convention IV
Article 134 of the 1949 Geneva Convention IV leaves the choice between return to the last place of residence and repatriation, while Article 135 provides that the 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, Articles 134 and 135.
Geneva Convention IV
Article 45 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.
London Programme of Action on Humanitarian Issues
Pursuant to Article 2(d) of the 1992 London Programme of Action on Humanitarian Issues, the parties to the conflict in Bosnia and Herzegovina agreed that when the secure release and return of civilians to their homes was not immediately feasible, the following options should be adopted:
–repatriation to areas under the control of their respective ethnic authorities;
–choosing to stay temporarily in the area of detention;
–relocation in areas away from the conflict under international supervision;
–temporary refuge in third countries.
Programme of Action on Humanitarian Issues agreed between the Co-chairmen of the London International Conference and the Parties to the conflict in Bosnia and Herzegovina, London, 27 August 1992, annexed to Report by the Special Rapporteur of the UN Commission on Human Rights on the situation of human rights in the territory of the former Yugoslavia, UN Doc. E/CN.4/1993/50, 10 February 1993, Annex III, Article 2(d).
Cotonou Agreement on Liberia
Article 10 of the 1993 Cotonou Agreement on Liberia provided that all prisoners of war and detainees be immediately released to the Red Cross authority in an area where such prisoners or detainees were detained, for onward transmission to encampment sites or the authority of the prisoner of war or detainee.
Cotonou Peace Agreement on Liberia between the Interim Government of National Unity of Liberia (IGNU) of the first part and the National Patriotic Front of Liberia (NPFL) of the second part and the United Liberation Movement of Liberia for Democracy (ULIMO) of the third part, Cotonou, 25 July 1993, annexed to Letter dated 6 August 1993 from the Chargé d’affaires a.i. of the Permanent Mission of Benin to the UN addressed to the UN Secretary-General, UN Doc. S/26272, 9 August 1993, Article 10.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that prisoners of war “may be transferred by the Detaining Power … to their State of origin at the end of hostilities”.
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 105.
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “At the end of hostilities, prisoners of war must be liberated and repatriated to their state of origin.”
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 264, § 621.
The manual also states that with regard to prisoners of war “the obligation arises to … repatriate them (to their home) after the end of hostilities”.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 111, § 382; see also p. 153, § 441 and p. 179, § 491.A.
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, 134 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).
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Germany
In 1992, the German Foreign Minister declared that Germany was willing to receive 6,000 detainees from Serb detention camps in order to make their release possible. A statement in favour of this measure was supported by all political parties in Parliament.
Germany, Lower House of Parliament, Speech by Dr Kinkel, Minister of Defence, 10 December 1992, Plenarprotokoll 12/128, pp. 11102–11112; Speech by Representative Scharrenbroich, 10 December 1992, Plenarprotokoll 12/128, p. 11099.
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.
Nigeria
According to the Report on the Practice of Nigeria, at the end of the Nigerian civil war in 1970, the inhabitants of the former Biafran enclave were released so that they could return to their respective towns.
Report on the Practice of Nigeria, 1997, Chapter 5.4.
UN Security Council
In a resolution adopted in 1980 in the context of the independence struggle in Southern Rhodesia (Zimbabwe), the UN Security Council called upon the UK Government to take all necessary steps to release any South African political prisoners, including captured freedom fighters in southern Rhodesia, and to ensure their safe passage to any country of their choice.
UN Security Council, Res. 463, 2 February 1980, § 7, voting record: 14-0-0-1.
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