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

4405  Article 116 deals with the question of who bears the costs of repatriation of prisoners of war or their transport to a neutral country during hostilities.[1] In principle, the Detaining Power is obliged to cover the costs up to its ‘frontiers’, i.e. its international borders. From this point, it is the Power on which the prisoners depend that is responsible for the further costs of repatriation or transfer to the neutral country.

4406  Article 73 of the 1929 Geneva Convention on Prisoners of War contained a similar provision, dividing the costs between the Detaining Power and the ‘Power in whose armed forces such prisoners served’. This last expression was replaced in the Third Convention by the words ‘Power on which the prisoners depend’ to take account of the fact that not all persons who benefit from prisoner-of-war status, such as merchant sailors and civilian air crews, necessarily serve in the armed forces.[2]

4407  No further amendments were made during the Diplomatic Conference in 1949 and the text was approved unanimously.[3]

4408  Articles 109–111 foresee different scenarios in which prisoners of war will be repatriated or accommodated or interned in a neutral territory during hostilities. Article 116 deals with the costs of such repatriations or transfers. The Power on which the prisoners of war depend must bear the costs of the journey from the borders of the territory where they were held.[4] It does not explicitly state that the costs of transport from the facility in which the prisoner of war was accommodated or interned to that territory’s borders are to be covered by the Detaining Power. However, this follows logically from the text of the provision and is in line with Article 48(4), which regulates transfers within a Detaining Power’s control and which provides that the Detaining Power must bear the costs of such transfers.[5]

4409  This framework appears to be based on the assumption that the transport will take place over land, crossing a physical border. However, such travel may take place by sea or, even more likely, by air, especially if the two States involved are not contiguous.

4410  The Third Convention does not explicitly regulate repatriations or transports that take place by air. Article 118(4), which deals with the costs of repatriation of prisoners of war at the close of hostilities, does, however, provide that if prisoners of war are repatriated by sea, the Detaining Power must bear the costs of transport ‘over its own territory as far as its … port of embarkation nearest to the territory of the Power on which the prisoners of war depend’.[6] The remaining costs of repatriation must be apportioned equitably by agreement between the Parties concerned.

4411  Article 118(4) could be applied by analogy to repatriations or transports to neutral countries of prisoners of war during hostilities, either by sea or by air, obliging the Detaining Power, again in line with Article 48(4), to bear the costs until its seaport or airport nearest to the country of destination.[7] Alternatively, the Detaining Power could, additionally, bear the costs of travel to the seaport or airport of destination.[8] Another possibility is to define the frontiers of the Detaining Power as the outer limit of its territorial sea or airspace; the Detaining Power would pay until that point, the Power on which the prisoners of war depend from that point. Details of how Parties split the costs in case of travel by air or sea is lacking. Ideally, the Powers concerned would make special arrangements for these cases, specifying how the costs of repatriation or transport to a neutral country will be apportioned.

4412  Apportioning the costs of repatriation of prisoners interned or accommodated in their own territory, i.e. in the territory of the Power on which they depend which is occupied by the Detaining Power, is not addressed in the Convention. It could be argued that the Detaining Power should bear the costs of such repatriation until the outer limits of the territory it occupies in the same way as it pays for the costs in its own territory. Ideally, however, Parties should conclude a special agreement laying out how these costs will be apportioned.