Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

1881  Article 20 outlines the conditions in which the evacuation of prisoners of war from the combat zone to safe camps must be carried out. It supplements Article 19, which requires such evacuation to take place as soon as possible after the prisoners have fallen into the power of the enemy.

1882  Article 20 is an application of the more general obligation on the Detaining Power to always treat prisoners of war humanely, as set out in Article 13.[1] Modern warfare is characterized by fluid and rapidly shifting front lines and remote warfare, making the evacuation of prisoners of war away from the danger zone very challenging. Article 20 seeks to ensure that even in these complex environments the movement of prisoners of war is conducted in humane conditions.[2]

1883  The introduction of this provision in the Third Convention was prompted by the distressing experience of the Second World War, when the most flagrant instances of ill-treatment of prisoners of war occurred during their evacuation.[3] The drafters of the Convention therefore decided to devote a specific article to the issue. The 1929 Geneva Convention on Prisoners of War had failed to deal with the matter adequately, as it merely stated that the evacuation of prisoners on foot must be effected by stages of not more than 20 kilometres (12.4 miles) per day.[4] This stipulation was not included in the new text, since it was considered to be covered by the present article’s general requirement to conduct evacuations in humane conditions.[5]

1884  Following the Second World War, the first paragraph of Article 20 was the subject of lengthy discussion. The Conference of Government Experts in 1947 eventually agreed on the principle of humane conditions and determined that, when being moved, the conditions for prisoners of war must, as far are possible, be similar to those for the forces of the Detaining Power when they are moved.[6]

1885  The government experts also thought it prudent to add a second paragraph on the obligation to provide prisoners with the food, water, clothing, etc. needed on their journey.[7] During the Diplomatic Conference in 1949, a delegate from Costa Rica noted that the water supplied should be drinking water, leading to the addition of the word ‘potable’.[8]

1886  Paragraph 2 further contains an obligation to establish lists identifying the prisoners of war being evacuated. The ICRC included this provision in the draft convention submitted to the 17th International Conference of the Red Cross in Stockholm in 1948 in case prisoners should die during evacuation.[9] Paragraph 3 is another new provision in the Third Convention and deals with temporary transit camps. The requirement that any stay in such camps be as brief as possible – the importance of which was already emphasized during the 1947 Conference of Government Experts – also featured in the ICRC draft.[10] Both proposals were approved by the Stockholm Conference.[11]

1887  The 1949 Diplomatic Conference adopted Article 20 without much controversy.[12]

1888  The determining factor for any evacuation is the requirement of humane treatment, enshrined in Article 13: any evacuation, whether on foot or by vehicle, aircraft, train or ship, must be carried out humanely and not endanger the life, health or dignity of the prisoners of war.[13] Article 20(1) further stipulates that evacuations must be carried out in ‘conditions similar to those for the forces of the Detaining Power in their changes of station’, i.e. according to the ‘principle of assimilation’.[14] That conditions of evacuation must be ‘similar’ means that that they must not differ in any essential respect from conditions that would be used by a Detaining Power moving its own troops under comparable circumstances.[15]

1889  Where there is a conflict between the principle of assimilation and the humane treatment of prisoners of war, humane treatment must prevail. For example, combat circumstances may require the Detaining Power to transport its own troops in dangerous conditions. To do so in the case of prisoners of war would only be justifiable if it would be even more dangerous for the prisoners to temporarily remain where they are. Moreover, the standard of training and the state of health of combatants and prisoners may be very different. For example, conditions in which the Detaining Power’s troops are transported to the front for the first time or after a long rest behind the lines may not qualify as humane treatment when applied to prisoners of war who have just fallen into the power of the enemy and who may be exhausted by combat. General living conditions may also differ greatly: treatment which might be acceptable for the forces of the Detaining Power may cause prisoners significant suffering. Therefore, when applying this provision, in addition to considering the circumstances of the prisoners being transported, account must be taken of varying habits in regard to, among other things, climate, food, comfort and clothing.[16]

1890  Security needs dictate that the conditions of evacuation of prisoners of war belonging to an adverse Party may differ from those involving the movement of the Detaining Power’s own forces. For instance, Article 20 does not prevent the Detaining Power from taking reasonable measures, such as the use of guards, to prevent prisoners escaping or engaging in other actions harmful to the Detaining Power during the evacuation. Subject to the requirement of humane treatment, restraining prisoners’ hands may be permitted if strictly required for security reasons and only for the time necessary. For instance, while awaiting evacuation in the combat zone, prisoners may need to have their hands left unrestrained to ensure their own security.[17] Moreover, the Detaining Power should consider whether lesser means (than restraint) would be effective in the circumstances. Means that might impact senses must comply with the requirement of humane treatment and must be used solely to protect the detaining forces and for the time necessary (e.g. while passing through operationally sensitive areas).[18]

1891  Various factors must be taken into account when assessing whether an evacuation meets the threshold of humane treatment, in particular the method of evacuation and the conditions in which it is carried out. Whichever mode of transport is used, the Detaining Power must ensure that the number of prisoners being conveyed does not exceed the transport’s capacity, and that the transportation is adequately heated, cooled and/or ventilated, according to the conditions.[19] Moreover, prisoners of war must be supplied with ‘sufficient food and potable water, and with the necessary clothing and medical attention’.[20]

1892  Sanitary provisions must be sufficient and made available for the number of prisoners and the duration of the evacuation. These will depend on the mode of evacuation. For example, if it is by passenger train or ship, sanitary facilities will generally be available, while if it is by vehicle or freight train, special provision has to be made and the Detaining Power could meet this need for example by regular rest stops.[21]

1893  Provided that this does not place prisoners in danger, for longer journeys rest stops should in any case be made at reasonable intervals, and if the journey is overnight, proper accommodation must be provided. Sometimes, for example if the evacuation takes place by water, periodic rest stops are not possible. However, if the prisoners’ accommodation on board the vessel is unduly restrictive, they should be allowed on deck from time to time.

1894  If evacuation takes place by air or by sea,[22] the prisoners must be acquainted with the emergency drills and there must be sufficient life-saving equipment on board for the number of prisoners being transported. If prisoners are to be restrained while onboard an aircraft or ship, the restraints must not prevent them evacuating in an emergency. If available, the Detaining Power could, for example, make use of a central release mechanism that can be activated in case of emergency.

1895  If the forces of the Detaining Power must be moved on foot – and when this can be done in a humane manner – prisoners of war may also be evacuated from the combat zone in this way. Several military manuals specify that foot marches may only be employed if no other means of transport is available or if the distance is short.[23] Some also mention that, while foot marches are acceptable for small groups over small distances, evacuation by foot of larger groups over longer distances should only be used as a last resort.[24]

1896  Unlike its predecessor in the 1929 Convention, Article 20(1) does not prescribe a maximum distance that may be covered by foot as this is regulated by the general requirement of humane treatment. The 20 kilometres a day specified in the earlier Convention may be used as guidance; however, whether the evacuation is humane must be assessed on the individual condition of the prisoners and the surrounding circumstances; for some, especially if conditions are harsh, 20 kilometres a day may still be too long.[25] Regardless of the distance, the pace should be dictated by the physical condition and the circumstances of the group being evacuated, including the terrain and climate.[26] For example, the Eritrea-Ethiopia Claims Commission held that the evacuation of prisoners of war from the battlefield after their footwear had been seized, forcing them to walk barefoot through harsh terrain, which ‘unnecessarily compounded their misery’, was in violation of Article 20 of the Third Convention requiring evacuations to be ‘effected humanely’.[27]

1897  If at any time the conditions specified in Article 20(1) cannot be fulfilled, evacuation must be suspended and may only be resumed if the prisoners concerned would be at greater risk by remaining where they are. The Detaining Power must take all possible steps to avoid a situation in which it is unable to carry out or continue the evacuation of prisoners.

1898  Article 20(2) lays down measures that are essential for an evacuation to be carried out in a humane manner, including that prisoners of war must be supplied with sufficient food and potable water and with the necessary clothing and medical attention. It also requires that suitable precautions be taken to ensure the safety of the prisoners and that a list of all those being evacuated be drawn up as soon as possible.

1899  First, during any evacuation, irrespective of the mode of transport, prisoners of war must be supplied with sufficient food and potable water for the duration of the journey. By ‘sufficient’ is meant that the amount of food and water rations must correspond to the actual needs of the prisoners of war, taking into account both their individual characteristics (e.g. health) and the environment in which they would usually live and work, including the climate.[28]

1900  Second, prisoners of war must also be provided with the necessary clothing and medical attention. The word ‘necessary’ implies that the clothing and medical attention must be that which takes into account the prisoners’ needs, including their state of health and customs, the climate and terrain, as well as that which is normally provided to the troops of the Detaining Power.[29]

1901  The Detaining Power must take ‘all suitable precautions’ to ensure the safety of prisoners of war.[30] This may include, for example, providing helmets and body armour, if available and necessary.[31] It may also includes selecting routes or timing movements to minimize prisoners’ exposure to hostilities.

1902  The obligation to take all suitable precautions to ensure the safety of prisoners also applies to the mode of transport. Any type of transport is permitted as long as it allows for a humane evacuation in conditions similar to those for the forces of the Detaining Power when they are moved.[32] Ideally, evacuation is carried out by vehicles that are dedicated exclusively to this purpose.[33] The realities of the battlefield, however, may make this impossible and may sometimes lead to evacuations taking place with vehicles that, for instance, also carry or are armed with weapons or ammunition.[34] In such situations, the Detaining Power must make an assessment as to whether it would be safer for the prisoners of war to be transported in such vehicles, to remain where they are and be evacuated as soon as possible in other vehicles, or to be evacuated by other means, such as walking. Whatever the case, a Detaining Power may not use the presence of the prisoners in a vehicle to render it immune from military operations.[35]

1903  Since transports used for the transfer of prisoners of war are, in principle, not medical transports, they may not display the distinctive emblem.[36] Nor may they display the letters ‘PW’ or ‘PG’ as these markings are reserved for prisoner-of-war camps.[37] If it is considered that marking the transport in some other manner will reduce the likelihood of it being attacked and better ensure the safety of the prisoners, this may, and should, be done.[38] In addition, the Detaining Power could communicate, where feasible, the transportation routes and times to enemy commanders. It should be noted that enemy vessels granted safe-conduct by agreement between the Parties to a conflict, such as ‘cartel vessels, e.g., vessels designated for and engaged in the transport of prisoners of war’[39] are exempt from attack.

1904  During the preparatory work for the 1949 Conventions, the ICRC suggested that the present paragraph should include the requirement that a list of evacuated prisoners of war be drawn up.[40] The reason for this proposal was that during the Second World War many prisoners of war had disappeared during transfer, particularly when they were transported by sea. In accordance with this suggestion, Article 20 states that such a list must be established ‘as soon as possible’. In fact, it is of the utmost importance that this list be drawn up before departure since it is during travel that there is the greatest danger of disappearance. If they are to be of any real use, the lists must also be accurate. Without going so far as to require all the information specified in the case of the capture card, for which provision is made in Article 70, it seems reasonable that these lists should include at least the details referred to in Article 17(1), i.e. surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. They should be drawn up in several copies, so that they can be checked on the prisoners’ arrival at their destination.

1905  Evacuation may take place over a great or small distance, may be of short or long duration according to the distance and the means of transport, and may take place in several stages or even over several periods. It is not always possible to evacuate prisoners of war from the combat zone immediately. In such cases, a temporary stay in a ‘transit camp’ may be inevitable.

1906  These camps must not, however, be confused with the transit camps of a permanent kind that are the subject of Article 24. The camps referred to in the present paragraph are those that the military authorities may have to establish temporarily (e.g. in a combat zone) in order to house prisoners captured during military operations in that particular zone.[41] Given that they are near the fighting zone, it is not always possible to require that such camps fulfil all the material conditions specified in the Convention. During the Second World War, however, it sometimes happened that prisoners of war were kept in transit camps for a lengthy period, without suitable conditions of internment. Moreover, they were often refused the right to be visited by the bodies responsible for supervision or to send notification of their whereabouts to the Central Prisoners of War Agency. In order to remedy this, the 1947 Conference of Government Experts recommended that the Convention state expressly that the stay of prisoners of war in transit camps should be as short as possible.[42] This provision was included in the final text as adopted.