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

Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist.

The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time. 

Internment shall cease as soon as possible after the close of hostilities.

Internees in the territory of a Party to the conflict, against whom penal proceedings are pending for offences not exclusively subject to disciplinary penalties, may be detained until the close of such proceedings and, if circumstances require, until the completion of the penalty. The same shall apply to internees who have been previously sentenced to a punishment depriving them of liberty. 

On the entry into force of this Joint Declaration, all Japanese citizens convicted in the Union of Soviet Socialist Republics shall be released and repatriated to Japan. With regard to those Japanese whose fate is unknown, the USSR, at the request of Japan, will continue its effort to discover what has happened to them. 

The Parties will take immediate coordinated measures to protect people unlawfully detained for reasons related to the armed conflict, regardless of whether they are interned or detained, and also in order to ensure return of POWs [prisoners of war] and the unconditional release of hostages. 

In fulfilling their obligations under international humanitarian law, including the 1949 Geneva Conventions, and in cooperation with the International Committee of the Red Cross, the parties shall without delay, release and repatriate all prisoners of war, … release and repatriate or return to their last place of residence all other persons detained as a result of the armed conflict. 

Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,

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Article 21

Each State Party shall take the necessary measures to ensure that persons deprived of liberty are released in a manner permitting reliable verification that they have actually been released. Each State Party shall also take the necessary measures to assure the physical integrity of such persons and their ability to exercise fully their rights at the time of release, without prejudice to any obligations to which such persons may be subject under national law. 

Cease-fire shall be declared immediately after the signature of this agreement, provided that its coming into effect should not exceed the 20th January 1977. A Joint Committee shall be composed of the two parties with the help of the Organization of the Islamic Conference represented by the Quadripartite Ministerial Commission to supervise the implementation of the cease-fire.

The said Joint Committee shall also be charged with supervising the following:

The cease-fire shall imply:

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4. The release of all prisoners-of-war; the effective release of all persons arrested because and as a result of this war within five days following the entry into force of the Cease-fire Agreement. 

The Government of the Republic of Côte d’Ivoire and the Patriotic Movement of Côte d’Ivoire (MPCI),

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Deploring the capture by their respective forces of numerous civilian and military prisoners of war and desiring to alleviate their suffering;

Agree upon the following:

1. The civilian and military prisoners detained in the context of the hostilities which started on 19 September 2002 are released by each of the parties detaining them. 

1) At the invitation of the President of the French Republic, a Round Table of the Ivorian political forces met in Linas-Marcoussis from 15 to 23 January 2003. It brought together the following parties FPI, MFA, MJP, MPCI, MPIGO, PDCI-RDA, PIT, RDR, UDCY, UDPCI … The delegations have shown high-mindedness to allow the Round Table to bring the positions closer together and to arrive at the following consensus, all elements of which – principles and annexes – have equal value:

2) The Round Table welcomes the cessation of hostilities, made possible and guaranteed by the deployment of the ECOWAS forces, supported by the French forces, and demands strict respect for it … It demands the immediate release of all political prisoners.

3) The Round Table reaffirms the need to preserve the territorial integrity of Côte d’Ivoire, respect for its institutions and to restore the authority of the State … It therefore agrees on the following provisions:

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5. The government of national reconciliation shall take the necessary measures for the release and amnesty of all military detained for attacks on the security of the State and shall have soldiers in exile benefit from the same measure. 

At the invitation of His Excellency Mr John Agyekum Kufour, President of the Republic of Ghana, incumbent Chairman of ECOWAS, a Round Table of the Ivorian political forces signatory to the Linas-Marcoussis Agreement met in Accra on 6 and 7 March 2003.

The following groups participated in that Round Table: FPI, MFA, MJP, MPCI, MPIGO, PDCI-RDA, PIT, RDR, UDCY, UDPCI.

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The Round Table reaffirms its will to adhere to the Marcoussis agreement, unanimously considered as a sustainable framework for the resolution of the Ivorian crisis.

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… It equally demands the immediate release of all political prisoners. And prisoners of war. 

(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished;

(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished;

(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished. 

G. P. I [1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts, when committed wilfully and in violation of the Conventions or the Protocol:

While all PWs [prisoners of war] are to be released and repatriated immediately upon cessation of active hostilities, parties to the conflict are to repatriate, regardless of rank or number, all seriously wounded and sick when fit to travel. 

Interned persons must be released by the detaining power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the close of hostilities. 

While all PWs are to be released and repatriated immediately upon the cessation of active hostilities, parties to the conflict are to repatriate, regardless of rank or number, all seriously wounded and sick when fit to travel. 

Interned persons must be released by the detaining power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the close of hostilities. However, internees who are in the territory of a belligerent and who are undergoing a sentence of confinement or against whom penal (that is, judicial) proceedings for offences not exclusively subject to disciplinary penalties are pending, may be detained until the close of the proceedings or end of the sentence. 

Except in cases of arrest or detention for penal offences, [any person arrested, detained or interned for actions related to the armed conflict] shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist. 

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1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:

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3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:

4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation. 

II. Rights and duties of prisoners of war

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The prisoner of war is an enemy combatant hors de combat due to the fact of his capture. As such, he enjoys a legal status which guarantees him rights.

Chapter 2. Combatants and objectives

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The term “combatant” is found in numerous treaties on the law of armed conflicts (LOAC). It is important to know who is a combatant because:

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Chapter 5. Prisoners of war

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I.3.1. Duty to release and repatriate

Prisoners of war shall be released and repatriated without delay after the cessation of hostilities. 

Seriously wounded and sick prisoners of war who are fit to travel and whose mental or physical fitness has been incurably or permanently diminished or whose recovery may not be expected within one year shall already be repatriated during the armed conflict. 

193. The [1949 Geneva] Convention [III] provides for direct repatriation (return to country of origin):

194. In some situations that arise at the end of a conflict, the principle established in the Code for prisoners of war of 1929, requiring the repatriation of prisoners on the conclusion of peace, could be detrimental to them. Experience has shown that a very long time can elapse between the time hostilities cease and the time peace is concluded. To remedy this, the Convention states that repatriation must take place “without delay after the cessation of active hostilities”.

195. One exception to immediate repatriation is provided in the case of prisoners convicted of or prosecuted for criminal offences, who may be detained until the end of legal proceedings and, if necessary, until they have completed their sentence. 

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0750. Parties in a conflict should send seriously wounded and seriously sick prisoners of war back to their own countries (repatriation), even if hostilities continue. Seriously wounded and seriously sick mean, specifically, the incurably sick and wounded and sick who cannot be expected to recover within one year. 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. In addition, the parties to a conflict must strive to transfer non-serious cases of sick and wounded prisoners of war to neutral territory. This means especially those sick and wounded who are expected to recover within one year. A repatriated prisoner of war may not be employed in military service. After cessation of hostilities, prisoners of war must immediately be released and repatriated. 

0930. Escaped prisoners of war who are held on neutral territory should be freed.

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0931. If they are permitted to stay in the territory of the neutral State, a place of residence may be assigned (HC [1907 Hague Convention respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land] Article 13).

0932. A detaining power may transfer prisoners of war to a neutral State.

0933. To receive such prisoners of war does not constitute a violation of the State’s neutral position. Neutral status may be compromised if a prisoner of war escapes while held on neutral territory.

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0934. A State’s neutral position is not compromised if seriously sick or wounded prisoners of war are cared for within its territory.

The accommodation of such prisoners of war in neutral territory may moreover take place only by agreement between all parties concerned (including the State of origin and the detaining power).

0935. The neutral State receiving them must take the necessary measures to prevent those concerned from being redeployed on active military service.

A neutral State which has admitted prisoners of war to its territory should set up an information bureau (see points 0242 ff.) 

935. Parties to the conflict are to repatriate, regardless of rank or number, all seriously wounded and sick when fit to travel and, when possible, agreements should be made between the parties, with the cooperation of neutral states, for the detention of such persons in neutral territory pending such repatriation. …

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1133. Interned persons must be released by the Detaining Power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the end of hostilities but internees, who are in the territory of a belligerent and who are undergoing a sentence of confinement or against whom judicial proceedings … are pending, may be detained until the end of the proceedings or, as the case requires, of the sentence. Each State which is a party to the [1949 Geneva Convention IV] must endeavour, at the end of hostilities or of the occupation, to ensure the return of all internees to their last place of residence, or at least to facilitate their repatriation. 

a. Prisoners of war must be released and repatriated without delay after the cessation of active hostilities.

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d. It is not necessary to wait until active hostilities are over to repatriate prisoners of war. Early repatriation can be very advantageous for the detaining power, enabling it to avoid a heavy administrative and logistic burden. 

Prisoners of war charged with or convicted of an indictable offence may be detained until the end of the legal proceedings or until they have served their sentence. The parties to the conflict must notify each other of all such persons detained until the end of legal proceedings or their sentence. 

a. Prisoners of war must be released and repatriated without delay after the cessation of active hostilities.

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d. It is not necessary to wait until active hostilities are over to repatriate prisoners of war. Early repatriation can be very advantageous for the detaining power, enabling it to avoid a heavy administrative and logistic burden. 

Persons charged with or convicted of a criminal offence may be detained until the end of the legal proceedings and, if the case may be, until they have served their sentences.

The parties to the conflict must notify each other of all such persons detained until the end of legal proceedings or their sentences. 

Internees can be repatriated or authorized to return to their place of residence [or hospital in a neutral country, should the condition so warrant] … in accordance with the following provisions:

1.2.17. “Repatriation” means the return to the State of citizenship, permanent residence or origin of the persons who found themselves in the territory of another state for various reasons.

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1.8.5. Serious violations of international humanitarian law directed against people include:

Prisoners of war must be released and repatriated without delay after the cessation of active hostilities. The detailed arrangements should be included in an armistice agreement. However, if they are not, each of the detaining powers must quickly prepare and implement a repatriation scheme … The duty of repatriation is absolute and may not be made conditional upon the behaviour of the state on which the prisoners depend. 

Additional Protocol I extends the definition of grave breaches to include the following:

19. A soldier must know and strictly comply with international rules … [relative to] the treatment of … civilians in a war zone, as well as of prisoners of war.

20. … Military personnel captured and interned in neutral States retain the status of military personnel. Military commanders and other authorized State organs are obliged to protect the rights of soldiers and [ensure] their return to their homeland, in compliance with international law. 

(1) A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for 10 years.

(2) Strict liability applies to paragraph (1)(c). 

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

Whoever, in violation of the rules of international law, after the termination of a war or armed conflict, orders or conducts an unjustifiable delay in the repatriation of prisoners of war or civilians,

shall be punished by imprisonment for a term of between six months and five years. 

Whoever in violation of the rules of international law, after the termination of a war or armed conflict, orders or imposes an unjustifiable delay in the repatriation of prisoners of war or civilians shall be punished. 

Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.

Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.

The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:

The offences contained in the preceding article are punished with penal servitude for life.

If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty. 

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]. 

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]. 

(1) When a person who has the authority to repatriate prisoners of war, in cases where an armed conflict that caused the internment of prisoners of war has ceased, without justifiable reason, delays the repatriation of prisoners of war to the other Party to the armed conflict … the person shall be punished by imprisonment with labour for not more than 5 years.

(2) When a person referred to in the preceding paragraph, without justifiable reason, delays the repatriation of sick and wounded prisoners of war who are fit to travel to the repatriation territory, the person shall be dealt with in the same way prescribed for in the preceding paragraph. 

Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence. 

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. 

Any member of the military or police shall be imprisoned for a period of no less than five and no more than 15 years if her or she in the context of an international armed conflict:

A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

The following are persons protected by International Humanitarian Law:

Whereas, a Peace Agreement was signed and executed on 06 December 2000 between the Government of the Republic of the Philippines (GRP) and the Rebolusyonaryong Partido ng Manggagawa sa Pilipinas/Revolutionary Proletarian Army/A Boncayao Brigade (RPM-P/RPA/ABB) on the basis of their mutual interest to pursue a peaceful settlement of the present armed conflict and hasten the progress and development of the country to equally enjoy the fruits thereof by all citizens of the Republic of the Philippines.

Whereas, the Peace Agreement provides for the release of political prisoners and for the dismissal of charges filed against RPM-P/RPA/ABB officers and members currently under prosecution and for them to reintegrate and join the civil society. 

A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and its Additional Protocols I and II of 8 June 1977:

Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:

(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –

A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 

Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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The penalty shall be a custodial sentence not exceeding three years or a monetary penalty for any person who:

Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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The penalty shall be a custodial sentence not exceeding three years or a monetary penalty for any person who:

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

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[13] To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:

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[16] For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.

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[44] Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.

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[47] The Technical Arrangements further provide that:

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[53] As part of Canada’s military operations in Afghanistan, Canadian Forces are from time to time required to capture and detain insurgents, or those assisting the insurgents, who may pose a threat to the safety of Afghan nationals, as well as to members of the Canadian military and allied forces.

[54] The Canadian Forces possess a broad discretion to detain Afghan civilians, including individuals who may have no active role in hostilities.

[55] That is, Canadian Task Force Afghanistan’s Theatre Standing Order 321A regarding the “Detention of Afghan Nationals and Other Persons” provides that the Canadian Forces may detain any person on a “reasonable belief” (defined as “neither mere speculation nor absolute certainty”) that he or she is adverse in interest. This includes “persons who are themselves not taking a direct part in hostilities, but who are reasonably believed to be providing support in respect of acts harmful to the CF/Coalition Forces”.

[56] Under Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of a third country, is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently occupied by General Laroche.

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[61] It is both NATO and Canadian Forces’ policy to transfer or release detainees within 96 hours of their capture. However, the Canadian Forces has the ability to hold detainees for longer periods, and has done so for a variety of reasons.

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[63] The Canadian Forces have the sole discretion to determine whether a detainee “shall be retained in custody, transferred to [the Afghan National Security Forces] or released.” These determinations are made on a case-by-case basis by the Canadian Commander of Task Force Afghanistan at regular review meetings.

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[85] The respondents do maintain … that Canada has no legal authority to establish or run a long-term detention facility in Afghanistan. That is, according to the respondents, the Canadian Forces have not been authorized to detain for the long term, either by the Government of Canada or by ISAF commanders, who have operational control over Canadian Forces. Nor has the Government of Afghanistan authorized such an encroachment on their sovereignty.

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[108] R. v. Hape involved a question as to the admissibility of evidence obtained outside of Canada at a criminal trial in this country.

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[149] Similarly, in this case, as a foreign state, Canada would not ordinarily have the power to detain non-Canadians, including Afghan citizens, on Afghan soil, without the consent of Afghanistan.

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[162] Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.

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[182] In light of the foregoing, it is clear that while Afghanistan has consented to its citizens being detained by the Canadian Forces for the purposes described by the Afghan Compact, it cannot be said that Afghanistan has consented to the application or enforcement of Canadian law, including the Canadian Charter of Rights and Freedoms, to constrain the actions of the Canadian Forces in relation to detainees held by the Canadian Forces on Afghan soil.

[183] Furthermore, the Government of Afghanistan has not consented to having Canadian Charter rights conferred on non-Canadians, within its territorial limits.

[184] As a result, based upon the Supreme Court of Canada’s ruling in Hape, it would thus appear that the Charter does not apply to the conduct of the Canadian Forces in issue in this case.

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[274] Whatever its appeal may be, … the practical result of applying such a “control of the person” based test would be problematic in the context of a multinational military effort such as the one in which Canada is currently involved in Afghanistan. Indeed, it would result in a patchwork of different national legal norms applying in relation to detained Afghan citizens in different parts of Afghanistan, on a purely random-chance basis.

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[276] This would be a most unsatisfactory result, in the context of a United Nations-sanctioned multinational military effort, further suggesting that the appropriate legal regime to govern the military activities currently underway in Afghanistan is the law governing armed conflict – namely international humanitarian law.

[277] Indeed, international humanitarian law is a highly developed branch of international law comprised of both customary international law and treaties “that regulates the conduct of military operations and operated to protect civilians and other persons not actively participating in hostilities, and to mitigate harm to combatants themselves” …

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[279] Moreover, international humanitarian law applies not only during times of war, but applies as well, albeit with some modifications, to non-international armed conflicts within the territory of High Contracting Parties …

[280] The application of international humanitarian law to the situation of detainees in Afghanistan would not only give certainty to the situation, but would also provide a coherent legal regime governing the actions of the international community in Afghanistan.

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[296] Moreover, both military detentions and police searches and seizures involve the invasion of “the private sphere of persons”, which invasion is “paradigmatic of state sovereignty”: Hape at ¶87. According to the Supreme Court, such actions can only be authorized by the host state.

[297] In this case, the scope of the authority given to Canada by the Government of Afghanistan to detain individuals on its soil is limited, and specifically contemplates that Canadian actions in this regard be governed by international law. In addition, it is clear from a review of the documentation governing the relationship between Afghanistan and Canada that the rights to be accorded to detainees are those guaranteed by the Afghan constitution, and by international law.

[298] As a consequence, I cannot accept the applicants’ argument that the Charter applies to the conduct of members of the Canadian Forces in relation to detainees held by Canadian military personnel on Afghan soil, based upon the degree of control that the Canadian Forces exert over the detainees.

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[336] … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.

[337] As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …

[338] Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …

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[342] That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.

[343] Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law.  [emphasis in original]

I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law. 

46. … [D]etainees under the Internment of Unlawful Combatants Law [(2002)] may remain in detention for prolonged periods of time. Notwithstanding, as we shall explain immediately, the purpose of the law and the special circumstances in which it was intended to apply, lead to the conclusion that the fundamental arrangement that allows detention orders to be made without a defined date for their termination does not depart from the margin of proportionality, especially in view of the judicial review arrangements that are provided in the law.

As we have said, the purpose of the Internment of Unlawful Combatants Law is to prevent “unlawful combatants” as defined in section 2 of the law from returning to the cycle of hostilities, as long as the hostilities are continuing and threatening the security of the citizens and residents of the State of Israel. For similar reasons the [1949] Third Geneva Convention allows prisoners of war to be interned until the hostilities have ended, in order to prevent them returning to the cycle of hostilities as long as the fighting continues. Even where we are concerned with civilians who are detained during an armed conflict, international humanitarian law provides that the rule is that they should be released from detention immediately after the specific ground for the detention has elapsed and no later than the date when the hostilities end. …

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50. As we said at the outset, the appellants, who are inhabitants of the Gaza Strip, were originally detained in the years 2002–2003, when the Gaza Strip was subject to a belligerent occupation. At that time, the administrative detention of the appellants was effected by virtue of the security legislation that was in force in the Gaza Strip. Following the end of military rule in the Gaza Strip in September 2005 and the cancellation of the security legislation in force there, on 20 September 2005 the chief of staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law. …

51. In their pleadings … it was argued [by the appellants] that according to the provisions of the Fourth Geneva Convention, Israel should have released the appellants when the military rule in the Gaza Strip ended, since they were inhabitants of an occupied territory that was liberated. …

52. … The end of military rule in the Gaza Strip did not oblige Israel to release automatically all the detainees held by it who are inhabitants of the Gaza Strip, as long as the personal threat that the detainees represented continued against the background of the continued hostilities against the State of Israel. This conclusion is clearly implied by the arrangements set out in articles 132–133 of the Fourth Geneva Convention. Section 132 of the aforesaid convention provides the general principle that the date for the release of detainees is when the grounds of detention that originally led to their detention no longer exist. The first part of article 133 of the convention, which relates to a specific case that is included within the scope of the aforesaid general principle, goes on to provide that the detention will end as soon as possible after the hostilities have ended. Article 134 of the convention, which concerns the question of the place where the detainees should be released, also relates to the date on which hostilities end as the date on which detainees should be released from detention. Unfortunately, the hostilities of the terrorist organizations against the State of Israel have not yet ended, and they lead almost on a daily basis to physical injuries and mortalities. In such circumstances, the laws of armed conflict continue to apply. Consequently it cannot be said that international law requires Israel to release the detainees that were held by it when the military rule in the Gaza Strip came to an end, when it is possible to prove the continued individual threat presented by the detainees against the background of the continued hostilities against the security of the state. 

26. An internment order under the Internment Law is not limited in time in advance. It is subject to periodic judicial review (section 5 of the Law). This review is intended to examine, the first time it is held, whether grounds exist for the internment. In subsequent reviews, which are made once every six months, the court must examine whether the release of the internee will harm state security, or if there are special reasons to justify his release (section 5(c) of the Law). …

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28. … [T]he court making the judicial review of detention under the Internment Law may limit and shorten the period of detention, giving consideration to the quality and intensity of the evidence brought before it regarding the security threat posed by the detainee, and giving consideration to the time that has passed since the order was made. The judicial review is intended to ensure that the absence of a date for termination of the internment order made under the Law does not disproportionately violate the detainee’s right to personal liberty, and that detainees under the Law are not held for a longer period of time than is necessary when taking into account significant security considerations. 

The main difficulty in approving a detention order is that the detention orders pursuant to the law [Internment of Unlawful Combatants Law (2002)] are not required to include a defined date for the conclusion of the detention. The law albeit notes that the detention shall not continue after “the cession of the hostilities”, but clearly, knowing the history of the struggle against terrorism, it can be said that at this time, at very least, it appears to be an abstract point in time (see also “A”, at par. 46 A. v. State of Israel case, 2008]). In this situation, persons who have been declared as unlawful combatants are liable to find themselves in detention for long periods, and in fact, for an unlimited period of time. The partial solution provided in the law for this difficulty is found in the periodic judicial review of the extension of the detention order, and the court’s ability to limit and shorten the detention period in accordance with the evidence brought before it, its intensity, quality and currency, and in light of the period of time during which the detainee has been detained pursuant to the detainment order. In this fashion, prevention of disproportional impingement upon the detainee’s right to liberty should be ensured (see also: CrimA 7446/08 Said v. The State of Israel (unpublished, 7 November 2008)).  [emphasis in original]

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat 2301 (“conclusion of peace” (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J. 503, 510-511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)). 

In conclusion, the Court notes again that “[i]n order to set the proper example and avoid diminishing the trust and respect of other nations”, the United States must honor fully its obligations according to the Convention [1949 Geneva Convention III]. Respect is earned by being fair and just in the administration of the law. The Defendant … was convicted as to a number of extremely serious crimes in this country and has been charge[d] elsewhere with serious crimes. Thus his present appearances notwithstanding, a strict adherence to the terms of the Convention, both as to the letter and the spirit of the Convention, does not mandate immediate repatriation but rather supports a decision that Defendant must face those charges, which are legitimately brought against him by other parties to the Convention, so long as our international obligations under the Convention are being met. Based upon the circumstances and argument presented by the parties, it appears that in this specific instance examined today as to this very unique Defendant, the United States is doing so.

The decision today is also consistent with Articles 5 and 85 of the Convention, as the United States has represented that Defendant will retain his rights as a POW [prisoner of war] while in France’s custody, i.e. presumably through final repatriation. 

Extradition is an executive function derived from the President’s power to conduct foreign affairs, and the judiciary historically has played a limited role in extradition proceedings.

…

The United States’ authority to extradite [the appellant] comes from the United States’ extradition treaty with France. The federal extradition statute generally permits extradition when based on a treaty or convention. See 18 U.S.C. § 3184. Article 1 of the extradition treaty between the United States and France, entitled “Obligation to Extradite,” states that “[t]he Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the competent authorities in the Requesting State have charged with or found guilty of an extraditable offense.” … The offense of which [the appellant] has been convicted in absentia in France, which corresponds to money laundering in the United States, undoubtedly falls within the purview of the treaty.

…

We find it unnecessary to resolve the question of whether the [1949] Geneva Conventions are self-executing, because it is within Congress’ power to change domestic law, even if the law originally arose from a self-executing treaty. … That is, because “‘an Act of Congress … is on a full parity with a treaty, … [and] when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.’” Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) … Thus, as discussed below, while the United States’ international obligations under the Geneva Conventions are not altered by the enactment of § 5 of the MCA [Military Commissions Act (2006)], Congress has superseded whatever domestic effect the Geneva Conventions may have had in actions such as this.

The parties’ dispute centers on the extent to which § 5 removes an individual’s ability to invoke the Conventions in a civil action against the United States, including a habeas proceeding. Section 5 of the MCA provides:

[The appellant] maintains that while under § 5 he cannot invoke the Third Geneva Convention as a source of individual rights in a judicial proceeding, “his right to enforce the provisions of the Geneva Convention against the Secretary of State, the Bureau of Prisons, or the Department of Justice [is] in no way abrogated.” (Appellant’s Reply Br. 15.) Thus, [the appellant] argues that article 118 of the Third Geneva Convention mandates that he be immediately repatriated to Panama, as his term of imprisonment in the United States is complete. See Third Geneva Convention art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”). The Government maintains that § 5(a) of the MCA precludes invocation of the Third Geneva Convention in this proceeding, as § 5(a) “codified the principle that the Geneva Conventions [are] not judicially enforceable by private parties,” and that regardless, the Third Geneva Convention authorizes his continued detention pending his extradition for criminal proceedings in France. (Appellees’ Br. 14 n.6, 15.)

Despite [the appellant]’s arguments to the contrary, it appears that [he] is invoking the Third Geneva Convention as a source of rights – the alleged right to immediate repatriation under article 118. While the legal effect of § 5 has not been widely discussed, the plain language of § 5 prohibits exactly this type of action. The district court appears to have read § 5 similarly, noting that § 5 “attempts to remove entirely the protections of the Convention from any person, even a citizen of the United States, in any American courtroom whenever the United States is involved.” Noriega II, 2007 WL 2947572, at *4. …

These readings of § 5(a) are consonant with the MCA’s legislative history, which further suggests that the express language of § 5 was understood to preclude individuals from invoking the Geneva Conventions as a source of rights. …

Accordingly, the plain language of § 5 of the MCA, which is clearly supported by its legislative history, precludes Noriega’s Geneva Convention claims. As the Geneva Convention is [the appellant]’s only substantive basis for relief he has failed to state a claim upon which habeas relief could be granted.

…

Articles 118 and 119 of the Third Geneva Convention set forth the permissible duration for the detention of prisoners of war. Article 118 provides, in pertinent part, that “[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities.” Third Geneva Convention art. 118. Article 119 further qualifies that “[p]risoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence.” Id. at art. 119. As a result of [the appellant]’s conviction in the United States, article 119 authorized the United States to prolong his detention for the duration of his sentence – beyond the cessation of hostilities between the United States and Panama. Nowhere, however, is it suggested that a prisoner of war may not be extradited from one party to the Convention to face criminal charges in another. Nor do the stated purposes of articles 118 and 119, as reflected by their commentary, preclude detention in these circumstances: article 118 is intended to prohibit “prolong[ed] war captivity,” while article 119 unambiguously reflects the intention of the drafters to permit detention of prisoners of war subject to criminal proceedings. …

Article 12 [of 1949 Geneva Convention III] further supports the principle that repatriation is not automatic. Article 12 provides that “[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.” Third Geneva Convention art. 12. As France and the United States are both parties to the Third Geneva Convention, and “the United States sought and obtained from the Republic of France specific information regarding all of the rights that the defendant will be guaranteed by France upon his extradition,” Noriega III, 2007 WL 2947981, at *1, these conditions have been satisfied. The text of article 12 imposes no further limitations on the ability to extradite prisoners of war, and nothing in article 12 implies that a contracting party cannot abide by a valid extradition treaty and extradite a prisoner of war to another contracting party simply because the person is a prisoner of war.

[The appellant] maintains, however, that the omission of the term “extradition” in article 12 demonstrates that extradition is not permitted under the article, and that the district court erred in looking to article 45 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 [Geneva Convention IV], 6 U.S.T. 3516, 75 U.N.T.S. 287 (“Fourth Geneva Convention”), to define the term “transfer” as used in article 12 of the Third Geneva Convention. While article 12 of the Third Geneva Convention is silent as to extradition, article 45 of the Fourth Geneva Convention, which parallels article 12 and provides for the transfer of civilians between parties to the Convention, specifically notes that nothing in this article “constitute[s] an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law.” Fourth Geneva Convention art. 45. The district court noted the commentary’s definition of the term “transfer” as used in article 45 as “internment in the territory of another Power, repatriation, the returning of protected persons to their country of residence or their extradition.” Noriega II, 2007 WL 2947572, at *2 (quoting 4 Int’l Comm. Of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 266 (J. Pictet ed.1958)). We agree with the district court that while the purposes behind the Third and Fourth Geneva Conventions may be different, it is still “compelling that the convening parties expressed an understanding of the term ‘transfer’ which included extradition.” Noriega II, 2007 WL 2947572, at *2. To conclude otherwise would mean that a country would be obligated to extradite a civilian, but not a prisoner of war, when they are facing identical criminal charges. We are hesitant to imply such an inconsistent result, particularly when both articles permit the transfer of prisoners of war or civilians under the same limited restraints.

Accordingly, should any doubt exist as to the principal holding here, [the appellant]’s habeas petition would also be denied because extradition would not violate [his] rights under the Third Geneva Convention.  [emphasis in original; footnotes in original omitted]

With the government’s detention authority established as an initial matter, we turn to the argument that [the appellant] must now be released according to longstanding law of war principles because the conflict with the Taliban has allegedly ended. See Hamdi Hamdi v. Rumsfeld, 542 U.S. 507] 521. [The appellant] offers the court a choice of numerous event dates – the day Afghans established a post-Taliban interim authority, the day the United States recognized that authority, the day Hamid Karzai was elected President – to mark the official end of the conflict. No matter which is chosen, each would dictate the release of [the appellant] if we follow his reasoning. His argument fails on factual and practical grounds. First, it is not clear if [the appellant] was captured in the conflict with the Taliban or with Al Qaeda; he does not argue that the conflict with Al Qaeda is over. Second, there are currently 34,800 U.S. troops and a total of 71,030 Coalition troops in Afghanistan, … with tens of thousands more to be added soon. The principle [the appellant] espouses – were it accurate – would make each successful campaign of a long war but a Pyrrhic prelude to defeat. The initial success of the United States and its Coalition partners in ousting the Taliban from the seat of government and establishing a young democracy would trigger an obligation to release Taliban fighters captured in earlier clashes. Thus, the victors would be commanded to constantly refresh the ranks of the fledgling democracy’s most likely saboteurs.

In response to this common sense observation, [the appellant] contends the current hostilities are a different conflict, one against the Taliban reconstituted in a non-governmental form, and the government must prove that [the appellant] would join this insurgency in order to continue to hold him. But even the laws of war upon which he relies do not draw such fine distinctions. The Geneva Conventions require release and repatriation only at the “cessation of active hostilities.” Third Geneva Convention [1949 Geneva Convention III] art. 118. That the Conventions use the term “active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the document is significant. It serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. See id art. 2 (provisions apply “even if the state of war is not recognized”), art. 118 (discussing the possibility of the cessation of active hostilities even in the absence of an agreement to cease hostilities). The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.

Even so, we do not rest our resolution of this issue on international law or mere common sense. The determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war. 

The Colombian Government has ordered the demilitarization of certain regions of the country in order to advance dialogue conducive to the demobilization and reintegration of guerrilla groups and also to carry out humanitarian operations, such as those designed to secure the release of persons deprived of liberty, both military and civilian. 

The Federal Government will also in future urge the Ethiopian government to agree to a return of prisoners on humanitarian grounds. However, neither the Third Geneva Convention of 1949, to which Ethiopia is a party, nor customary international humanitarian law places any obligation on Ethiopia to repatriate or take back prisoners of war during a continuing armed conflict. 

We are looking forward … to the release of … Arab and Palestinian prisoners from Israeli prisons …

…

… I would like to … renew our demand of instant and unconditional release of all Arab and Palestinian prisoners and detainees in Israeli occupation prisons. 

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. 

A party detaining prisoners of war may not repatriate its prisoners [against] their openly and freely expressed will, which shall not be regarded as unjustifiable delay in the repatriation of prisoners of war constituting a grave breach of this Protocol. 

85. As far as the facts at issue are concerned, it will be remembered that the 1980s were a time of serious instability in the Casamance region in the south of Senegal and that this resulted in the intervention of the armed forces to restore and maintain order. This conflict between the central Government and the separatist movement in the region (MFDC [Movement of Democratic Forces of Casamance]) took the form of armed confrontations leading to deaths and injuries on both sides.

86. One of these clashes, at Kaguitt on 1 September 1992 was particularly deadly, as it occurred the day after the agreement was signed between the Senegalese Government and the separatist movement. The latter broke its promises by suddenly taking up arms again. The security forces arrested many persons who were brought before the courts.

87. The 1993 agreement led to the release of all persons detained in connection with this event, even before trial. However, some Senegalese and international non-governmental organizations took up the Kaguitt file by lodging a complaint with the African Commission on Human and Peoples’ Rights in Banjul and with the monitoring bodies of the Commission on Human Rights in Geneva. These complaints contained a list of the names of persons who had allegedly disappeared or been executed extrajudicially during the September 1992 events. 

International humanitarian law contains, first, specific rules to be respected with regard to persons in custody or under the power of a party to a conflict, such as prisoners and civilians in occupied territories. Such rules include … the obligation to release prisoners after the end of the armed conflict. 

(a) why, more than a year after the end of major fighting, the nine British citizens held at Guantanamo (Cuba) and Bagram (Afghanistan) have not been either charged or released;

(b) whether their future depends solely on the United States Government;

(c) if so, why; and

(d) whether it was correctly reported in some editions of The Times of 3 February that British officials warned the men that there is little that Her Majesty’s Government can do to secure their release, despite their having answered intelligence questions. 

The US has said that the detainees are enemy combatants captured in a continuing armed conflict and held in that capacity by the US military authorities. The question of the status of the detainees at Guantanamo Bay under international humanitarian law has to be considered in the light of the facts relating to each individual detainee.

We remain in regular contact with the United States, at both ministerial and official level, about the situation of the detainees. My right honourable friend the Foreign Secretary has raised the issue several times with US Secretary of State Colin Powell, most recently on 23 January. We have been encouraging the US to move forward with the process of determining the future of the British detainees. We shall continue to do so.

The discussions between British officials and the detainees are confidential as they contain personal information about the detainees. I am withholding further details of the visits by British officials to the detainees at Guantanamo Bay under exemption 1a of the Code of Practice on Access to Government Information, (information whose disclosure would harm national security or defence). 

FCO officials and I call regularly upon the parties to the Western Sahara dispute to take action on human rights issues. In February this year, I called for the immediate release of the remaining 1,160 Moroccan prisoners of war held by the Polisario Front, some held for over 25 years and some are in poor physical and mental health. 

Lord Oakeshott of Seagrove Bay asked Her Majesty’s Government:

Further to the Written Answer by the Lord Bach on 30 June (WA 64), how many people captured by British forces in Iraq and transferred to United States internment facilities have neither been released nor classified as prisoners of war.

Lord Bach: As of 3 July 2003, the United States is holding one prisoner of war and 22 other persons captured by British forces, who are either suspected of committing criminal offences or are interned where necessary for imperative reasons of security in accordance with the Fourth Geneva Convention. All other British captured prisoners of war have been released under the supervision of British forces, and with the knowledge of the International Committee of the Red Cross.

…

Lord Oakeshott of Seagrove Bay asked Her Majesty’s Government:

What assurances they have received from the United States authorities about the treatment of people captured by British forces in Iraq and transferred to United States internment facilities; whether any of them could face the death penalty; and when they will be released or tried.

Lord Bach: The United Kingdom of Great Britain and Northern Ireland’s and United States’ responsibilities in relation to captured persons are contained in an arrangement between the nations. In accordance with this arrangement, the United States agreed to treat persons in accordance with the relevant Geneva Conventions. Under the terms of the arrangement, the United Kingdom of Great Britain and Northern Ireland has primary right to criminal jurisdiction for offences committed prior to transfer. For offences committed after transfer, the United States has primary right to jurisdiction, and in such cases it is up to the United States to decide sentence. We are not aware of any situation where United Kingdom of Great Britain and Northern Ireland captured persons have committed any post transfer offences. In the absence of any post transfer offences, the decision to release rests with the United Kingdom of Great Britain and Northern Ireland authorities.

Persons suspected of crimes other than against coalition forces or the security of Iraq are immediately handed over to Iraqi authorities. Persons suspected of crimes against coalition forces or the security of Iraq are held pending collection of evidence and a decision as to the forum for trial. Persons held for imperative reasons of security, in accordance with the Fourth Geneva Convention, will be released as soon as their internment ceases to be necessary. 

Lord Oakeshott of Seagrove Bay asked Her Majesty’s Government:

Further to the Written Answer by the Lord Bach on 16 July (WA125), for how much longer they expect to keep without trial the 71 persons captured by British forces interned for imperative reasons of security; and how and by whom they expect the prisoners to be tried if they are not released.

Lord Bach: Of the 71 persons held for imperative reasons of security on 15 July, 49 have already been released. The remainder will be held until it is assessed that their internment is no longer necessary for reasons of security, all cases are subject to regular review. In cases where there is evidence to suggest that a criminal offence has been committed, persons captured by United Kingdom of Great Britain and Northern Ireland forces are handed to the Iraqi judicial system. If internment is based on intelligence material that justifies internment, the case will not be suitable for trial, although cases will be subject to regular review.  

Article 78 of the IV Geneva Convention (1949) allows the UK as the Occupying Power to intern people where it considers it necessary for reasons of security. Internees will continue to be held until such time as they are no longer considered a threat to Coalition Forces. A review is conducted at the 10, 28 and 90 day points (and every 90 days thereafter) to determine whether continued internment is necessary. Internees enjoy all their rights under the Geneva Conventions.

As at 1 December, all internees held by the UK Forces in Iraq are of either Iraqi or Sudanese nationality. 

The legal basis for the detention of all security internees is Geneva Convention IV. Their status is regularly reviewed and anyone no longer deemed to constitute an imminent threat to security may be released. 

12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. … [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:

Commending the Governments of Ethiopia and Eritrea on the progress made thus far in the peace process, including the recently concluded release and repatriation of prisoners of war, and calling on both parties to cooperate with the International Committee of the Red Cross (ICRC) to clarify and to resolve the remaining issues in accordance with the Geneva Conventions, and with the commitments made in the Algiers Agreements. 

Strongly encourages all parties to fulfil the commitments made at Dayton, Ohio, to release without delay all civilians and combatants held in prison or detention in relation to the conflict, in conformity with international humanitarian law and the provisions of the General Framework Agreement for Peace in Bosnia and Herzegovina. 

Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict. 

Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict.  

Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict. 

Calls upon the parties to cooperate with the International Committee of the Red Cross in its efforts to solve the problem of the fate of the people unaccounted for, and calls upon the parties to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict. 

Demands the immediate internationally-supervised release of all persons arbitrarily or otherwise illegally detained and the immediate closure of all places of detention not authorized by and in compliance with the Geneva Conventions of 12 August 1949. 

Demands the immediate internationally supervised release of all persons arbitrarily or otherwise illegally detained and the immediate closure of all places of detention not authorized by or in compliance with the Geneva Conventions of 12 August 1949 and the Additional Protocols thereto. 

During the past two months, there has regrettably been no progress towards the repatriation of the remaining 1,481 Moroccan prisoners of war held in camps in the Tindouf area of Algeria. The plight of these men, most of whom have been held for more than 20 years, is a humanitarian and human rights issue that should be addressed on an urgent basis. I once again call on the parties to arrange for the early repatriation of all prisoners, under the auspices of the ICRC. 

Intensive pressure has resulted in the release of most prisoners registered by the ICRC who were detained in connection with the conflict. For the remaining prisoners, a process was devised whereby case files on persons alleged to have committed war crimes were passed to the ICTY for review. The parties complied fully with this process, including release of all persons for whom ICTY determined that there was insufficient evidence to warrant further detention. 

to intensify efforts on all fronts for both sides to release the prisoners of war and to repatriate them in conformity with the Security Council’s Resolution no. 598/87 and the Third Geneva Convention, in order to end their sufferings and the social and humanitarian problems resulting from their sustained detention. 

To request the International Community to adopt all measures for Israel to immediately release all the Lebanese prisoners and hostages from the prisons and places of detention controlled by its forces, as this constitutes a breach of the provisions of international law, the Fourth Geneva Convention of 1949, and the Hague Convention of 1907. 

prisoners of war are released and repatriated without delay after the cessation of active hostilities, unless subject to due judicial process; the prohibition of taking hostages is strictly respected; the detention of prisoners and internees is not prolonged for bargaining purposes which practice is prohibited by the Geneva Conventions. 

20. … [I]nternational law and practice recognize the importance of the timely release and return of POWs [prisoners of war], as demonstrated by Article 118 of [the 1949] Geneva Convention III which requires that such POWs “be released and repatriated without delay following the cessation of active hostilities.”

…

147. … [R]epatriation should occur at an early time and without unreasonable or unjustifiable restrictions or delays. At the same time, repatriation cannot be instantaneous. Preparing and coordinating adequate arrangements for safe and orderly movement and reception, especially of sick or wounded prisoners, may be time-consuming. Further, there must be adequate procedures to ensure that individuals are not repatriated against their will.  [footnotes in original omitted]

They were gathered within a hollow square of rebel Tommy-gunners and harangued by Raul Castro: “We hope that you will stay with us and fight against the master who so ill-used you. If you decide to refuse this invitation – and I am not going to repeat it – you will be delivered to the Cuban Red Cross tomorrow. Once you are under Batista’s orders again, we hope that you will not take arms against us. But, if you do, remember this: we took you this time. We can take you again. And when we do, we will not frighten or torture or kill you … If you are captured a second time or even a third … we will again return you exactly as we are doing now. 

Since the proclamation of the Provisional Government of the Algerian Republic in September 1958, 40 French soldiers who had been taken prisoner were released by the ALN [Armée de Libération Nationale] without any condition. 20 were released in Algeria and 20 others were released in Tunisia and Morocco, through the Algerian Red Crescent. 

148. There is also a fundamental question whether and to what extent each Party’s obligation to repatriate depends upon the other’s compliance with its repatriation obligations. The language of Article 118 is absolute. Nevertheless, as a practical matter, and as indicated by state practice, any state that has not been totally defeated is unlikely to release all the POWs [prisoners of war] it holds without assurance that its own personnel held by its enemy will also be released, and it is unreasonable to expect otherwise.

…

149. The Commission finds that, given the character of the repatriation obligation and state practice, it is appropriate to consider the behavior of both Parties in assessing whether or when [one of the Parties] failed to meet its obligations under Article 118. In the Commission’s view, Article 118 does not require precisely equivalent behavior by each Party. However, it is proper to expect that each Party’s conduct with respect to the repatriation of POWs will be reasonable and broadly commensurate with the conduct of the other. Moreover, both Parties must continue to strive to ensure compliance with the basic objective of Article 118 – the release and repatriation of POWs as promptly as possible following the cessation of active hostilities. Neither Party may unilaterally abandon the release and repatriation process or refuse to work in good faith with the ICRC to resolve any impediments.  [footnotes in original omitted]

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. 

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. 

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. 

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. 

In addition to possible action as a protecting power and to gathering information on prisoners of war, the ICRC fulfils the following tasks:

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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.  

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. 

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. 

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. 

193. The [1949 Geneva] Convention [III] provides for direct repatriation (return to country of origin) and hospitalization in a neutral country:

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. 

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. 

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. 

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.  [emphasis in original]

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]. 

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]. 

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. 

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. 

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. 

–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. 

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]. 

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]. 

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. 

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. 

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]. 

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]. 

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. 

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. 

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. 

Each side shall release all those remaining prisoners of war, who are not directly repatriated, from its military control and from its custody and hand them over to the Neutral Nations Repatriation Commission for disposition in accordance with the provisions in the Annex hereto: “Terms of Reference for Neutral Nations Repatriation Commission”. 

The joint Red Cross teams shall assist in the execution by both sides of those provisions of this Armistice Agreement relating to the repatriation of all the prisoners of war specified in Sub-paragraph 51a hereof, … by the performance of such humanitarian services as are necessary and desirable for the welfare of the prisoners of war. 

The States participating in the Conference requested the International Committee of the Red Cross to facilitate, in accordance with its principles, the release of prisoners of war and civilian internees. They express their readiness to assist the ICRC in this task. 

The international community will monitor the [release] … closely to ensure that the security and well being of those held in detention is assured. To this end, they undertake to give free access to representatives of the international community including the UN, ICRC, EC and the CSCE. 

The Government of the Republic of Côte d’Ivoire and the Patriotic Movement of Côte d’Ivoire (MPCI),

…

Deploring the capture by their respective forces of numerous civilian and military prisoners of war and desiring to alleviate their suffering;

Agree upon the following:

1. The civilian and military prisoners detained in the context of the hostilities which started on 19 September 2002 are released by each of the parties detaining them.

2. A committee is created, charged with the release of the civilian and military prisoners of the war, presided by the International Committee of the Red Cross (ICRC), and consisting of the commander of the ECOWAS Force controlling the cessation of the hostilities, or his representative, or the commander of Operation Licorne while expecting the establishment of the West-African Force, of representatives of the Government of Côte d’Ivoire, of the Patriotic Movement of Côte d’Ivoire, of UNICEF, and of other pertinent agencies of the United Nations and of NGOs.

3. The committee charged with the release of the civilian and military prisoners of war immediately takes up its work by getting in contact with the competent authorities of the Government of Côte d’Ivoire and the qualified representatives of the Patriotic Movement of Côte d’Ivoire with a view to proceed to the immediate release of the civilian and military prisoners of the war. 

The Detaining Power, the Power on which the prisoners of war depend, and a neutral Power agreed upon by these two Powers, shall endeavour to conclude agreements which will enable prisoners of war to be interned in the territory of the said neutral Power agreed until the close of the hostilities. 

The release and return of persons deprived of their liberty in the Colombian armed conflict are customarily guaranteed by the ICRC and sometimes other civilian social organizations such as the Church, State-controlled bodies, and journalists, subject to an accord between the parties or the exercise of the ICRC’s right of initiative. 

To obtain the release of 70 soldiers, the Government and the guerrillas agreed to the demilitarization of an area measuring 13,161 square kilometres in the department of Caquetá. To guarantee the suspension of military operations so that the soldiers could be handed over, the two sides agreed to the presence in the demilitarized zone of representatives of the ICRC, the National Conciliation Commission, the national Government and other competent bodies. 

Under the Peace Accords, all civilians and military prisoners held by the government of Angola and UNITA [União Nacional para Independência Total de Angola] have to be released. ICRC confirmed that the first phase of this process, consisting of releases based on lists of prisoners presented to the ICRC by both sides, was concluded on 2 April 1992. By that time, in the presence of the ICRC, the government had released 940 prisoners and UNITA had released 3,099 prisoners.