Back to: Geneva Convention (III) on Prisoners of War, 1949

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

Commentary of 2020

Article 117 - Activity after repatriation

Text of the provision

No repatriated person may be employed on active military service.

Reservations or declarations

None

Contents

A. Introduction
B. Historical background
C. Discussion
Select bibliography

A. Introduction

4413 Article 117 is the concluding article in the section that regulates the direct repatriation and accommodation or internment in neutral countries of wounded and sick prisoners of war and of ‘able-bodied’[1] prisoners of war who have undergone a long period of captivity. It prohibits the employment on active military service by the Power on which they depend of prisoners of war who are repatriated during an armed conflict.

4414 This article is a logical consequence of the fundamental idea underpinning the Third Convention that prisoners of war may be interned for the duration of active hostilities.[2] This notion is based on the fact that combatants are part of the armed forces, whose function in times of armed conflict is to overcome the adverse Party’s armed forces. When they fall into the power of the adversary, military necessity justifies their internment to prevent them from further participating in hostilities.[3] However, because the Convention obliges or encourages Detaining Powers to repatriate certain prisoners of war during hostilities, an additional safeguard is needed to prevent the Power on which the prisoners depend from employing them further in the ongoing hostilities. Article 117 provides this safeguard by explicitly prohibiting belligerents from such re-employment, thereby serving not only the interests of the prisoners of war concerned, but also the interests of the Detaining Power, as it will not face the repatriated persons again on the battlefield.

B. Historical background

4415 The codification of the rule that repatriated persons may not be re-employed in active hostilities dates back to the 1864 Geneva Convention, which conditioned the repatriation of wounded and sick combatants on them not taking up arms again for the duration of the hostilities.[4] The prohibition on employing repatriated persons on active military duty was reiterated in the 1929 Geneva Convention on Prisoners of War.[5]

4416 The inclusion in the Third Convention of the rule contained in Article 117 has never been questioned as such. One issue, however, gave rise to lengthy discussion both at the Conference of Government Experts in 1947 and at the Diplomatic Conference in 1949. The phrase ‘active military service’ was criticized for the lack of a clear definition, with some delegations preferring to delete the word ‘active’.[6] A Committee of Medical Experts tasked with reviewing, among others, the draft of article 117, also recommended deleting the word. It was felt that the term ‘military service’ without the word ‘active’, as used in the Model Agreement concerning Direct Repatriation and Accommodation in Neutral Countries of Wounded and Sick Prisoners of War annexed to the Convention, was more appropriate for Article 117 as it covered ‘all forms of military service: active, administrative, auxiliary, etc., in other words, any activity which may directly assist a belligerent in its war effort’.[7] While the amendment to delete the word ‘active’ was initially adopted by the Drafting Committee, it was ultimately rejected by a small majority.[8] Article 117 was thus adopted by the Diplomatic Conference without any amendments to the text that had been agreed upon at the 17th International Conference of the Red Cross in Stockholm in 1948, including the words ‘active military service’.[9]

C. Discussion

1. Persons covered

4417 The prohibition in Article 117 covers all persons repatriated during hostilities pursuant to Articles 109 and 110, i.e.:

1. seriously wounded or seriously sick prisoners of war, repatriated regardless of number or rank, after they have been cared for until they are fit to travel (Article 109(1));

2. wounded or sick prisoners of war who have first been accommodated in a neutral country before being repatriated from there (Article 110(3));

3. ‘able-bodied’ prisoners of war who have undergone a long period of captivity and who are repatriated in accordance with an agreement between the Powers concerned (Article 109(2)).

4418 The wording of Article 117, referring to repatriated persons generally, has received considerable attention in academic literature and military manuals with regard to the article’s possible application to ‘able-bodied’ prisoners of war who have been repatriated during hostilities but not pursuant to Article 109(2).[10] For instance, belligerents may also agree on the repatriation of prisoners of war who are not wounded or sick on humanitarian grounds other than a long period of captivity, such as age or family circumstances, or they may agree on an exchange of prisoners or war.[11]

4419 The relevance of the possible applicability of Article 117 to the repatriation of prisoners of war who are not wounded or sick other than those provided for in Article 109(2), second sentence, lies in the fact that the risk of re-employment on active military service after repatriation of such prisoners is greater than for wounded and sick personnel. They are, at least physically, more likely to be able to engage again in activities that qualify as active military service. Despite this risk, the placement of Article 117 in this specific section of the Convention indicates that it is only applicable to repatriations that take place pursuant to the articles in that section.[12] Therefore, only ‘able-bodied’ prisoners of war who have undergone a long period of captivity and are repatriated pursuant to an agreement based on Article 109(2) are covered by Article 117.

4420 This is confirmed by several military manuals. Two such manuals, for example, refer to the 1960 ICRC Commentary, and specify that Article 117 is only applicable to those repatriations that take place pursuant to Articles 109 and 110. They explicitly state that it is not applicable to ‘able-bodied’ prisoners of war who are voluntarily repatriated during hostilities by the unilateral decision of the Detaining Power; in their view, they may be further employed on active military service.[13] In practice, however, States will generally be very reluctant to repatriate prisoners of war voluntarily and unilaterally during hostilities, and even more so in the absence of any agreement that a condition similar to the one in Article 117 would be applicable to that repatriation.

2. ‘Active military service’

4421 The long debates about the phrase ‘active military service’ at the 1947 Conference of Government Experts and at the 1949 Diplomatic Conference reveal divergent views on how repatriated persons may be employed after their repatriation.

4422 During the First World War, States concluded agreements on this obligation, clarifying its scope by listing locations or units subject to this prohibition.[14] During the Second World War, the repatriation of prisoners of war who had sustained an injury or suffered a health condition during the war was often delayed or not carried out at all because belligerents feared that they ‘might again be employed in industries considered as indirectly promoting the war effort’.[15] While such contributions to the war effort would not have been violations of Article 74 of the 1929 Convention, and would not be of Article 117 either, this hesitation demonstrated the desire of some belligerents to prevent repatriated persons from working in any industry or function that was somehow related to the general war effort.

4423 The notion of ‘active military service’ is not so broad as to include any function that, even indirectly, contributes to the war effort in general. Article 6, fourth paragraph, of the 1864 Geneva Convention provided more clarity on the scope of the prohibition it contained and specified that repatriation was conditioned on the repatriated person not ‘tak[ing] up arms’ again for the duration of hostilities. Less concretely, and less strictly defined, ‘active military service’ may be interpreted as broadly covering any participation, direct or indirect, in armed operations against the former Detaining Power or its allies.[16] This means that repatriated persons may not be called upon to serve in units which form part of the armed forces, but Article 117 does not prevent their enrolment in medical or religious tasks or in unarmed military units engaged solely in auxiliary, complementary or similar work.[17] In any case, when concluding agreements pursuant to Articles 109 and 110, Parties to a conflict would ideally clarify what they understand ‘active military service’ to mean.[18]

4424 The special character of modern warfare – relying on new means of technology and communication and on the employment of weapons that have a long reach or that are operated remotely – reinforces the relevance of Article 117, as it has become easier to re-employ repatriated wounded or sick persons. It is conceivable, for example, that persons with certain disabilities would still be able to engage in active military service from a distance and without a physical combat function.

3. Temporal scope of application

4425 The prohibition on employing repatriated persons on active military service applies to the whole duration of the armed conflict in which the repatriated persons were captured and subsequently released.[19] The application of Article 117 does not extend beyond this time because conduct amounting to ‘active military service’ no longer takes place outside of that conflict.[20] Furthermore, as with the internment of prisoners of war during an armed conflict, Article 117 serves the security interests of the Detaining Power with regard to those prisoners of war released and repatriated during hostilities. Once the conflict has ended, the security requirements of the Detaining Power no longer justify the application of the prohibition laid down in Article 117.

4426 In line with this last consideration, evidently it is only the original Detaining Power and its allies that can avail itself of this provision. The prohibition does not apply to the relationship between the Power on which the repatriated person depends and a State external to the conflict in which the prisoners were repatriated. If these two Powers are also engaged in a different armed conflict, the former is not prohibited from re-employing the repatriated person on active military service in the context of this armed conflict and the latter cannot invoke the prohibition of Article 117 if it encounters such a person on the battlefield. Equally, the former Detaining Power or a co-belligerent cannot avail itself of Article 117 if at a later point it is again involved in a new armed conflict with its former adversary.

4. Violations of Article 117

4427 It is generally agreed that the prisoners of war themselves cannot be held responsible for any violation of this rule. The phrase ‘may be employed’ indicates that the repatriated person is merely the object of an obligation addressed to the State. It is thus the State that is exclusively responsible for any violation of Article 117.[21]

4428 This has two consequences. First, if a State violates Article 117 by employing repatriated persons on active military service and they are subsequently recaptured by the former Detaining Power, those persons may in no case be deprived of the benefits secured to them by the Convention. This means they do not lose the right to prisoner-of-war status.[22] By the same token, their recapture may not affect their renewed repatriation if they again become eligible for such. A mixed medical commission, for instance, may not decline to recommend repatriation for prisoners of war who qualify for repatriation pursuant to Articles 109 and 110 merely because they appear before it for a second time.[23] Otherwise, the prisoners would be being penalized for a violation committed by the State which ordered or permitted them to resume active service.

4429 Second, a Detaining Power is not entitled to prosecute prisoners of war captured for a second time after a violation of Article 117.[24] They are not criminally responsible for the action of the State whose orders to serve in a specific context they were obliged to obey. Re-engaging in active military service against the former Detaining Power is also not included among the grave breaches listed in Article 130 of the Third Convention, and no rule has developed in customary international law whereby such re-engagement is a war crime.[25]

4430 The presumption of a future violation of Article 117 does not warrant a refusal to repatriate those persons who, pursuant to Articles 109 and 110, must be repatriated, nor does invoking the presumed bad faith of the opposing Party. Refusal to repatriate prisoners of war as a means of reprisal would be a violation of Article 13(3).[26]

Select bibliography

Debuf, Els, Captured in War: Lawful Internment in Armed Conflict, Hart Publishing, Oxford, 2013.

Dinstein, Yoram, ‘The release of prisoners of war’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 37–45.

Falk, Richard A., ‘International Law Aspects of Repatriation of Prisoners of War during Hostilities’, American Journal of International Law, Vol. 67, No. 3, July 1973, pp. 465–478.

Graham, David E., ‘Repatriation of Prisoners of War During Hostilities – A Task Unsuited for the Private Citizenry’, The International Lawyer, Vol. 8, No. 4, October 1974, pp. 832–858.

Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul.

Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411.

Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.

Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, pp. 480–483.

Rasmussen, Gustav, Code des prisonniers de guerre : Commentaire de la Convention du 27 juillet 1929 relative au traitement des prisonniers de guerre, Levin & Munksgaard, Copenhagen, 1931.

Sassòli, Marco, ‘Release, Accommodation in Neutral Countries, and Repatriation of Prisoners of War’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1039–1066.

Shields Delessert, Christiane, Release and Repatriation of Prisoners of War at the End of Active Hostilities: A Study of Article 118, Paragraph 1 of the Third Geneva Convention Relative to the Treatment of Prisoners of War, Schulthess Polygraphischer Verlag, Zurich, 1977.

Sommer, Jörg, Das Recht der Kriegsgefangenen in modernen bewaffneten Konflikten, Peter Lang GmbH, Frankfurt am Main, 2013.

1 - In contemporary contexts, this terminology may be interpreted as limited to the absence of physical injury, illness or impairment. In the context of Articles 109–117, the term refers to prisoners of war who do not qualify as wounded or sick, which includes both physical and mental health conditions, pursuant to Articles 109 and 110. See also the commentary on Article 109, fn. 2.

2 - See Articles 21 and 118. See also the commentary on Article 109, para. 4245.

3 - See Henckaerts/Doswald-Beck, commentary on Rule 99, p. 344, and Debuf, pp. 231–232.

4 - Article 6 of the 1864 Geneva Convention required the repatriation of wounded and sick combatants who, after their recovery, were considered unfit for further service. It went on to state that ‘[t]he others may likewise be sent back, on condition that they shall not again, for the duration of hostilities, take up arms’. See also Article 5 of the 1868 Additional Articles relating to the Condition of the Wounded in War, which provided that ‘the wounded fallen into the hands of the enemy shall be sent back to their country after they are cured, or sooner if possible, on condition, nevertheless, of not again bearing arms during the continuance of the war’.

5 - Geneva Convention on Prisoners of War (1929), Article 74. The same principle finds a historical foundation in rules regarding the release of prisoners of war on parole; see the commentary on Article 21, paras 1924 and 1953.

6 - Report of the Conference of Government Experts of 1947, p. 242; Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 374–375.

7 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. III, p. 87.

8 - Ibid. Vol. II-A, pp. 365 and 375. The proposal was rejected by 13 votes to 12, with 3 abstentions.

9 - This draft only differed in one word from the text of the 1929 Convention, which was left unchanged by the Conference of Government Experts. Article 74 of the Convention discussed at the Conference read: ‘No repatriated person shall be employed on active military service’ (emphasis added).

10 - See Falk, p. 470, and Graham, pp. 838–840, both writing about the repatriation by North Vietnam of three US pilots. Falk argues that Articles 109–117 are not applicable to ‘able-bodied’ prisoners of war, and thus discusses Article 117 by means of analogy, stating that the provisions in Articles 109–117 may nevertheless ‘provide some guidance’, especially Article 117. He argues that ‘if such a restriction is applicable to sick or wounded men repatriated to a neutral country, then it is even more strongly relevant to repatriations that send healthy combat personnel back to a belligerent power while the war continues’. Graham, on the other hand, refers to the 1960 ICRC Commentary, which explicitly states that Article 117 also applies to certain categories of ‘able-bodied’ prisoners of war directly. He concludes that although Article 117 may be directly applicable to ‘able-bodied’ prisoners of war, the repatriation of the three US pilots ‘did not occur in the context of Article 109. Thus, there is no sound international legal basis for declaring that the restrictions of Article 117 are specifically applicable to these individuals.’ The fact that the United States seemed, as is described by Falk, to ‘accept the relevance of Article 117’, does not, according to Graham, imply that the United States believes that Article 117 is directly applicable to such return processes.

11 - Although exchange agreements are not encouraged by the Third Convention for ethical reasons (the wish not to encourage ‘human trade’), they do not violate international humanitarian law with regard to the repatriation during hostilities of prisoners of war who the Parties to a conflict are not under an absolute obligation to repatriate. Several military manuals provide for such exchange agreements: see e.g. United States, Law of War Manual, 2016, p. 647, para. 9.35.1, which states: ‘The exchange of POWs, other than those whose repatriation is required by the [Third Convention], may be effected by agreement between the belligerents’; and Israel, Manual on the Rules of Warfare, 2006, p. 34, which states that Parties may make arrangements for the exchange of prisoners of war even before the war has ended, and adds that ‘[p]risoners-of-war exchanged shall not be returned to active military service’.

12 - Levie, p. 413.

13 - United States, Law of War Manual, 2016, pp. 652–653, para. 9.36.7.1; United Kingdom, Manual of the Law of Armed Conflict, 2004, pp. 200–201, paras 8.155–8.155.1. See also Australia, Manual of the Law of Armed Conflict, 2006, p. 10-14, para. 10.60, which states: ‘[Prisoners of war] who are repatriated for medical reasons or for reasons of prolonged captivity are not permitted to rejoin the conflict. No such restrictions apply where [prisoners of war] are repatriated for any other reason’ (emphasis added).

14 - Agreement between France and Germany concerning Prisoners of War (1918), Article 19; Agreement between France and the Ottoman Empire on the Repatriation of Prisoners of War and Civilians (1918), Article 10; and Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 21.

15 - ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, p. 376.

16 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 539.

17 - Ibid. Dinstein, p. 38, referring to the 1956 US Field Manual, argues that ‘performance of medical or strictly administrative duties in the military service’ is not precluded and that only ‘participation in combat against the former Detaining Power (or one of its allies)’ would violate Article 117. The United States’ most recent manual maintains this interpretation; see Law of War Manual, 2016, p. 653, para. 9.36.7.2. See also United Kingdom, Manual of the Law of Armed Conflict, 2004, pp. 200–201, para. 8.155, and Joint Doctrine Captured Persons, 2015, p. 12-18, para. 1245, both of which use a similar formulation and exclude administrative or medical work from the prohibition.

18 - Shields Delessert, p. 112. This has also been recognized explicitly in e.g. United States, Law of War Manual, 2016, p. 653, para. 9.36.7.2.

19 - For a discussion of when an international armed conflict must be considered to have ended, see the commentary on Article 2, section D.2.c.

20 - See the commentary on Article 118, section C.2, for a discussion of when hostilities are considered to have ended.

21 - See Rasmussen, p. 47, and Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, p. 464, with regard to the same prohibition laid down in Article 74 of the 1929 Convention. See also Sassòli, p. 1044; Krähenmann, p. 407; Dinstein, p. 39; and Sommer, p. 148.

22 - Sassòli, p. 1044. See also Dinstein, p. 39, who refers to this as ‘[t]he commonly held view’.

23 - This issue was discussed during the Meeting of Neutral Members of the Mixed Medical Commissions in 1945, which was convened to examine possible revisions to the provisions of the 1929 Convention regarding mixed medical commissions. Some members had submitted that they had indeed been faced with prisoners of war who had been repatriated earlier in the conflict following a decision of the mixed medical commission and that the practice usually applied was not to recommend the repatriation of such prisoners. They classified them as having violated Article 74 of the 1929 Convention by rejoining the armed forces and concluded that the Model Draft Agreement annexed to that Convention should be amended so as not to make recaptured prisoners of war eligible for repatriation; ICRC, Report on the Meeting of Neutral Members of the Mixed Medical Commissions of 1945, pp. 18–19. See, however, Annex I, Part II – General Observations, para. 3, which states that ‘[i]njuries and diseases which existed before the war and which have not become worse, as well as war injuries which have not prevented subsequent military service, shall not entitle to direct repatriation’ (emphasis added). Therefore, if the prisoner of war appears before the mixed medical commission for the second time, presenting exactly the same condition that was the ground for repatriation the first time, the Detaining Power is not obligated to repatriate this prisoner again.

24 - For an opposing view, see Dinstein, p. 39.

25 - See Krähenmann, p. 407; Sommer, pp. 148–149; and Debuf, p. 235.

26 - On the non-reciprocal nature of the Convention, see, further, the commentary on Article 1, para. 221.

Acknowledgements and Abbreviations

Citation

Citation

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

Commentary of 2020