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of Article 91 of the GPW shall be liable only to a disciplinary punishment in respect of this act,
even if it is a repeated offense.608
9.25.2.3 Disciplinary Punishment for Certain Offenses Committed in Connection
With Escape. In conformity with the principle stated in Article 83 of the GPW (i.e., leniency in
favor of disciplinary rather than judicial proceedings), offenses committed by POWs with the
sole intention of facilitating their escape and that do not entail any violence against life or limb,
such as offenses against public property, theft without intention of self-enrichment, the drawing
up or use of false papers, or the wearing of civilian clothing, shall occasion disciplinary
punishment only.609
For example, if a POW steals food, money, or means of transport; wears civilian
clothing; or fabricates false documents in order to facilitate his or her escape and is caught before
escaping successfully, such acts may only incur disciplinary punishment.
9.25.2.4 Escape Not an Aggravating Circumstance in Respect of a Judicial
Offense Committed During Escape. Escape or attempt to escape, even if it is a repeated offense,
shall not be deemed an aggravating circumstance if the POW is subjected to trial by judicial
proceedings in respect of an offense committed during his or her escape or attempt to escape.610
For example, an escaping POW who kills or injures a Detaining Power guard while
escaping could be liable to judicial punishment for that offense. However, the circumstance of
escape shall not be deemed to aggravate the sentence of the POW, even if the POW is one who
frequently attempts to escape.
9.25.3 Liability of POWs for Other POWs’ Escape or Attempts to Escape. POWs who
aid or abet an escape or an attempt to escape are liable on this count to disciplinary punishment
only.611
Collective punishment of POWs for an escape attempt by other POWs is also
prohibited.612
608 GPW art. 92 (“A prisoner of war who attempts to escape and is recaptured before having made good his escape in
the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated
offence.”).
609 GPW art. 93 (“In conformity with the principle stated in Article 83, offences committed by prisoners of war with
the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as
offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, or
the wearing of civilian clothing, shall occasion disciplinary punishment only.”).
610 GPW art. 93 (“Escape or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating
circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed
during his escape or attempt to escape.”).
611 GPW art. 93 (“Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to
disciplinary punishment only.”). See also GPW COMMENTARY 455 (“At the 1929 Conference, some delegations
maintained that accomplices should be exempt from any punishment, even disciplinary. This proposal was rightly
rejected. Furthermore, the punishment of accomplices is consistent with the principles of penal law. Escape is an
offence against the Detaining Power. The privilege of impunity which is granted to a prisoner of war who commits
this offence is based solely on the fact that captivity is interrupted and this is not so in the case of accomplices.”).
594
9.25.4 Special Surveillance of POWs as a Result of Unsuccessful Escape. Despite
Article 88 of the GPW, which articulates the principle that POWs who have served disciplinary
or judicial sentences may not be treated differently from other POWs,613 POWs punished as a
result of an unsuccessful escape may be subjected to special surveillance.614 Such surveillance:
(1) must not affect the state of their health; (2) must be undergone in a POW camp; and (3) must
not entail the suppression of any of the safeguards granted to them by the GPW.615
9.25.5 Notification of Escape and Recapture. If a POW escapes, the State on which the
POW depends should be notified by the Detaining Power’s National POW Information Bureau
through the intermediary of the Protecting Powers and Central Tracing Agency.616
If an escaped POW is recaptured, the Power on which the POW depends shall be notified
of the recapture in the manner prescribed in Article 122 of the GPW (i.e., by the Detaining
Power’s National POW Information Bureau through the intermediary of the Protecting Powers
and Central Tracing Agency), provided notification of the POW’s escape has been made.617
9.26 GENERAL PRINCIPLES APPLICABLE TO POW DISCIPLINE
In the GPW, the rules on POW discipline are provided under three sub-headings:
• General principles applicable at all times.618
•
“Disciplinary measures,” which means punishment by the commander of the POW camp,
and is equivalent to summary disposal by a commanding officer.619
•
“Judicial proceedings,” which means trial and punishment by a court having jurisdiction
to try POWs, and is equivalent to trial by court-martial.620
This section addresses the general principles applicable to both disciplinary and judicial
proceedings against POWs.
9.26.1 POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces
of the Detaining Power. A POW shall be subject to the laws, regulations, and orders in force in
612 Refer to § 9.26.6 (Prohibited Penalties).
613 Refer to § 9.26.7 (Treatment of POWs Undergoing Punishment).
614 GPW art. 92 (“Article 88, fourth paragraph, notwithstanding, prisoners of war punished as a result of an
unsuccessful escape may be subjected to special surveillance.”).
615 GPW art. 92 (“Such surveillance must not affect the state of their health, must be undergone in a prisoner of war
camp, and must not entail the suppression of any of the safeguards granted them by the present Convention.”).
616 Refer to § 9.31.1 (Accountability Information That the Detaining Power Should Collect).
617 GPW art. 94 (“If an escaped prisoner of war is recaptured, the Power on which he depends shall be notified
thereof in the manner defined in Article 122, provided notification of his escape has been made.”).
618 GPW arts. 82-88.
619 GPW arts. 89-98. Refer to § 9.27 (Disciplinary Proceedings and Punishment).
620 GPW arts. 99-108. Refer to § 9.28 (Judicial Proceedings and Punishment).
595
the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial
or disciplinary measures in respect of any offense committed by a POW against such laws,
regulations, or orders.621 For example, POWs in custody of the U.S. armed forces are subject to
the Uniform Code of Military Justice.622 However, no proceedings or punishments contrary to
the provisions of Chapter III of the GPW shall be allowed.623
POWs also remain subject to the laws of the State to which they claim allegiance, and
may be prosecuted by that State following release and repatriation for misconduct committed
during their captivity.624
9.26.2 Leniency in Favor of Disciplinary Rather Than Judicial Proceedings. In deciding
whether proceedings in respect of an offense alleged to have been committed by a POW shall be
judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise
the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.625
This requirement does not compel the competent authorities to choose disciplinary over
judicial proceedings in any particular case.
9.26.3 Trial by Military Courts. A POW shall be tried only by a military court, unless the
existing laws of the Detaining Power expressly permit the civil courts to try a member of the
armed forces of the Detaining Power in respect of the particular offense alleged to have been
committed by the POW.626
In no circumstances whatever shall a POW be tried by a court of any kind that does not
offer the essential guarantees of independence and impartiality as generally recognized and, in
particular, the procedure of which does not afford the accused the rights and means of defense
provided for in Article 105 of the GPW.627
621 GPW art. 82 (“A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces
of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect
of any offence committed by a prisoner of war against such laws, regulations or orders.”).
622 10 U.S.C. § 802 (“(a) The following persons are subject to this chapter [47 - Uniform Code of Military Justice]:
… (9) Prisoners of war in custody of the armed forces.”).
623 GPW art. 82 (“However, no proceedings or punishments contrary to the provisions of this Chapter shall be
allowed.”).
624 Refer to § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).
625 GPW art. 83 (“In deciding whether proceedings in respect of an offence alleged to have been committed by a
prisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities
exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.”).
626 GPW art. 84 (“A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining
Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the
particular offence alleged to have been committed by the prisoner of war.”).
627 GPW art. 84 (“In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does
not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the
procedure of which does not afford the accused the rights and means of defence provided for in Article 105.”).
Refer to § 9.28.4 (Rights of Defense and Trial Procedure).
596
9.26.4 Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts.
POWs prosecuted under the laws of the Detaining Power for acts committed prior to capture
shall retain, even if convicted, the benefits of the GPW.628 For example, POWs prosecuted for
pre-capture acts are entitled to the fair trial protections provided by the GPW.629 POWs’ fair
trial protections could not be ensured if the mere allegation of a war crime could deny them
POW status.630
9.26.5 Repetition of Punishment. No POW may be punished more than once for the
same act, or on the same charge.631
9.26.6 Prohibited Penalties. POWs may not be sentenced by the military authorities and
courts of the Detaining Power to any penalties except those provided for in respect of members
of the armed forces of the Detaining Power who have committed the same acts.632 The
following punishments are expressly prohibited:
• collective punishments for individual acts;633
• corporal punishment;
• imprisonment in premises without daylight;
• any form of torture or cruelty; and
• deprivation of rank or of the right to wear badges.634
628 GPW art. 85 (“Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to
capture shall retain, even if convicted, the benefits of the present Convention.”).
629 Refer to § 9.28.4 (Rights of Defense and Trial Procedure).
630 George Aldrich, Assistant Legal Adviser for Far Eastern Affairs, Department of State, Entitlement of American
Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under the Geneva Convention of
1949 Relative to the Treatment of Prisoners of War, Jul. 13, 1966, X WHITEMAN’S DIGEST 231, 232-33 (§7) (“No
nation has reserved the right to nullify its obligations under the Convention by a simple declaration that it regards
members of the armed forces of an opposing party in an international conflict as war criminals. … While a number
of Communist parties to the Convention, including North Viet Nam, have indicated, by reservations, that they will
not comply with Article 85, these reservations (1) apply only to prisoners guilty of war crimes as opposed to
recognized acts of warfare and (2) apply only after a prisoner has been tried in accordance with all the judicial
guarantees which the Convention provides, and only after conviction.”).
631 GPW art. 86 (“No prisoner of war may be punished more than once for the same act, or on the same charge.”).
632 GPW art. 87 (“Prisoners of war may not be sentenced by the military authorities and courts of the Detaining
Power to any penalties except those provided for in respect of members of the armed forces of the said Power who
have committed the same acts.”).
633 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).
634 GPW art. 87 (“Collective punishment for individual acts, corporal punishment, imprisonment in premises without
daylight and, in general, any form of torture or cruelty, are forbidden. No prisoner of war may be deprived of his
rank by the Detaining Power, or prevented from wearing his badges.”).
597
The courts and authorities of the Detaining Power, in reaching decisions on punishment,
must at all times remember that the accused:
• does not owe any allegiance to the Detaining Power and may be, for example, under a
duty to escape;635 and
• is in its power through circumstances beyond his or her control so that, for example,
depression brought on by captivity should not be regarded as self-induced.
Courts and disciplinary authorities shall have the discretion to reduce the penalty below
the minimum prescribed for members of the armed forces of the Detaining Power.636
9.26.7 Treatment of POWs Undergoing Punishment. Officers, non-commissioned
officers, and men and women who are POWs undergoing a disciplinary or judicial punishment,
shall not be subjected to more severe treatment than that applied in respect of the same
punishment to members of the armed forces of the Detaining Power of equivalent rank.637
A woman POW shall not be awarded or sentenced to a punishment more severe, or
treated while undergoing punishment more severely, than either a female or male member of the
armed forces of the Detaining Power dealt with for a similar offense.638
POWs who have served disciplinary or judicial sentences may not be treated differently
from other POWs.639 However, POWs who have been punished as a result of an attempted
escape may nonetheless be subjected to special surveillance.640
9.27 DISCIPLINARY PROCEEDINGS AND PUNISHMENT
In addition to the general principles applicable to POW punishment, the following rules
address disciplinary proceedings and punishment.
635 Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces).
636 GPW art. 87 (“When fixing the penalty, the courts or authorities of the Detaining Power shall take into
consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is
not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his
own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which
the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.”).
637 GPW art. 88 (“Officers, non-commissioned officers and men who are prisoners of war undergoing a disciplinary
or judicial punishment, shall not be subjected to more severe treatment than that applied in respect of the same
punishment to members of the armed forces of the Detaining Power of equivalent rank.”).
638 GPW art. 88 (“A woman prisoner of war shall not be awarded or sentenced to a punishment more severe, or
treated whilst undergoing punishment more severely, than a woman member of the armed forces of the Detaining
Power dealt with for a similar offence.”); GPW art. 88 (“In no case may a woman prisoner of war be awarded or
sentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a male
member of the armed forces of the Detaining Power dealt with for a similar offence.”).
639 GPW art. 88 (“Prisoners of war who have served disciplinary or judicial sentences may not be treated differently
from other prisoners of war.”).
640 Refer to § 9.25.4 (Special Surveillance of POWs as a Result of Unsuccessful Escape).
598
9.27.1 POW Camp Authorities Who May Order Disciplinary Punishment. Apart from
judicial authorities or superior military authorities, only the camp commander, the officer acting
in the commander’s place, or an officer to whom the commander has delegated his or her
disciplinary powers, may order disciplinary punishment.641 A camp commander’s power to
order disciplinary punishment of POWs may not be delegated to POWs.642
9.27.2 Confinement of POWs Pending Disposal of Offense. A POW accused of an
offense against discipline shall not be kept in confinement pending his or her hearing (e.g.,
during the investigation of the accusation), unless (1) a member of the armed forces of the
Detaining Power would be so confined if he or she were accused of a similar offense, or (2) if
confinement is otherwise essential in the interests of camp order and discipline.643
Any period spent in confinement awaiting disposal of an offense against discipline shall
be reduced to the absolute minimum and shall not exceed fourteen days.644
The provisions of Articles 97 and 98 of the GPW shall apply to a POW’s confinement
while awaiting the disposal of offenses against discipline.645 Thus, the conditions of any
confinement before the hearing should be at least as good as that afforded POWs who are
confined as part of disciplinary punishment.646
9.27.3 Rights of POWs in Disciplinary Proceedings. Before any disciplinary award is
pronounced, the accused shall be given (1) precise information regarding the offenses of which
he or she is accused; (2) an opportunity to explain his or her conduct; and (3) an opportunity to
defend himself or herself.647 He or she shall be permitted, in particular, to call witnesses and to
have recourse, if necessary, to the services of a qualified interpreter.648
641 GPW art. 96 (“Without prejudice to the competence of courts and superior military authorities, disciplinary
punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by
a responsible officer who replaces him or to whom he has delegated his disciplinary powers.”).
642 GPW art. 96 (“In no case may such powers be delegated to a prisoner of war or be exercised by a prisoner of
war.”).
643 GPW art. 95 (“A prisoner of war accused of an offence against discipline shall not be kept in confinement
pending the hearing unless a member of the armed forces of the Detaining Power would be so kept if he were
accused of a similar offence, or if it is essential in the interests of camp order and discipline.”).
644 GPW art. 95 (“Any period spent by a prisoner of war in confinement awaiting the disposal of an offence against
discipline shall be reduced to an absolute minimum and shall not exceed fourteen days.”).
645 GPW art. 95 (“The provisions of Articles 97 and 98 of this Chapter shall apply to prisoners of war who are in
confinement awaiting the disposal of offences against discipline.”).
646 Refer to § 9.27.6 (Conditions for POWs Serving Disciplinary Punishments).
647 GPW art. 96 (“Before any disciplinary award is pronounced, the accused shall be given precise information
regarding the offences of which he is accused, and given an opportunity of explaining his conduct and of defending
himself.”).
648 GPW art. 96 (“He shall be permitted, in particular, to call witnesses and to have recourse, if necessary, to the
services of a qualified interpreter.”).
599
The decision shall be announced to the accused POW and to the POW Representative.649
9.27.4 Record of Disciplinary Punishments. A record of disciplinary punishments shall
be maintained by the camp commander and shall be open to inspection by representatives of the
Protecting Power.650
9.27.5 Types of Disciplinary Punishments and Procedures for Dispensing Punishment. In
no case shall disciplinary punishments be inhuman, brutal, or dangerous to the health of
POWs.651 The disciplinary punishments applicable to POWs are the following:
• a fine that shall not exceed 50 percent of the advances of pay and working pay that the
POW would receive under Articles 60 and 62 of the GPW during a period of not more
than thirty days;
• discontinuance of privileges granted over and above the treatment provided for by the
GPW;
• fatigue duties, not exceeding two hours daily;
o
“Fatigue duties” refers to details of extra-duty chores (e.g., such as policing of the
POW camp grounds, kitchen duty).652
o The punishment of fatigue duties shall not be applied to officers.653 In addition,
fatigue details should meet normal standards for working conditions and must not
be made more arduous as a disciplinary measure.654
• confinement.655
649 GPW art. 96 (“The decision shall be announced to the accused prisoner of war and to the prisoners’
representative.”).
650 GPW art. 96 (“A record of disciplinary punishments shall be maintained by the camp commander and shall be
open to inspection by representatives of the Protecting Power.”).
651 GPW art. 89 (“In no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of
prisoners of war.”).
652 LEVIE, POWS 327 (“This punishment consists of extra-duty chores (beyond regular work hours and beyond
normal duty-roster assignments), such as policing of the prisoner-of-war camp grounds, kitchen police, etc. The
imposition of such extra fatigue duty as disciplinary punishment is limited to 2 hours per day; and Article 90 limits
the overall duration to 30 days.”).
653 GPW art. 89 (“The punishment referred to under (3) shall not be applied to officers.”).
654 Refer to § 9.19.3 (Suitable Work Conditions).
655 GPW art. 89 (“The disciplinary punishment applicable to prisoners of war are the following: (1) A fine which
shall not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise
receive under the provisions of Articles 60 and 62 during a period of not more than thirty days. (2) Discontinuance
of privileges granted over and above the treatment provided for by the present Convention. (3) Fatigue duties not
exceeding two hours daily. (4) Confinement.”).
600
The duration of any single punishment shall in no case exceed thirty days.656 The
maximum of thirty days may not be exceeded, even if the POW is answerable for several acts
when punishment is awarded, regardless of whether such acts are related.657
Any period of confinement awaiting the hearing of a disciplinary offense or the award of
disciplinary punishment shall be deducted from an award pronounced against a POW.658
The period between the pronouncing of an award of disciplinary punishment and its
execution shall not exceed one month.659 When a POW is awarded a further disciplinary
punishment, a period of at least three days shall elapse between the execution of any two of the
punishments, if the duration of one of these punishments is ten days or more.660
9.27.6 Conditions for POWs Serving Disciplinary Punishments. Conditions for
disciplinary punishments must comply with the requirements for humane treatment.661 In
addition, the following rules apply:
9.27.6.1 Premises Where Disciplinary Punishments Are to Be Served. POWs
shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict
prisons, etc.) to undergo disciplinary punishment.662
Officers and persons of equivalent status shall not be lodged in the same quarters as non-
commissioned officers or enlisted personnel.663
Women POWs undergoing disciplinary punishment shall be confined in separate quarters
from male POWs and shall be under the immediate supervision of women.664
9.27.6.2 Retention of the Benefits of the GPW While Undergoing Disciplinary
Punishment. A POW undergoing confinement as a disciplinary punishment shall continue to
656 GPW art. 90 (“The duration of any single punishment shall in no case exceed thirty days.”).
657 GPW art. 90 (“The maximum of thirty days provided above may not be exceeded, even if the prisoner of war is
answerable for several acts at the same time when he is awarded punishment, whether such acts are related or not.”).
658 GPW art. 90 (“Any period of confinement awaiting the hearing of a disciplinary offence or the award of
disciplinary punishment shall be deducted from an award pronounced against a prisoner of war.”).
659 GPW art. 90 (“The period between the pronouncing of an award of disciplinary punishment and its execution
shall not exceed one month.”).
660 GPW art. 90 (“When a prisoner of war is awarded a further disciplinary punishment, a period of at least three
days shall elapse between the execution of any two of the punishments, if the duration of one of these is ten days or
more.”).
661 Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).
662 GPW art. 97 (“Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons,
penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein.”).
663 GPW art. 97 (“Officers and persons of equivalent status shall not be lodged in the same quarters as non-
commissioned officers or men.”).
664 GPW art. 97 (“Women prisoners of war undergoing disciplinary punishment shall be confined in separate
quarters from male prisoners of war and shall be under the immediate supervision of women.”).
601
receive the benefits of the GPW, except insofar as these benefits are necessarily rendered
inapplicable by the mere fact that the POW is confined.665
In no case, however, may POWs undergoing disciplinary punishments be deprived of the
benefits of the provisions of Articles 78 and 126 of the GPW.666 Thus, POWs undergoing
disciplinary punishments may not be deprived of the right to make requests and complaints, or to
deal with representatives of the Protecting Power (including representatives of an impartial
humanitarian organization performing the functions of the Protecting Power).667
9.27.6.3 Disciplinary Punishment - Retention of Prerogatives of Rank. A POW
awarded disciplinary punishment may not be deprived of prerogatives attached to his or her
rank.668 The prerogatives referred to are those provided by the GPW, such as the right not to be
required to work or the right to wear the insignia of their rank.669
9.27.6.4 Attendance at Daily Medical Inspection and Medical Attention. POWs
awarded disciplinary punishment shall be allowed, on their request, to be present at the daily
medical inspection.670 They shall receive the attention that their state of health requires and, if
necessary, shall be removed to the camp infirmary or to a hospital.671
9.27.6.5 Exercise and Access to the Open Air. POWs awarded disciplinary
punishment shall be allowed to exercise and to stay in the open air at least two hours daily.672
9.27.6.6 Reading, Writing, Correspondence, and Packages. POWs awarded
disciplinary punishment shall have permission to read and write, and to send and receive
letters.673 Parcels and remittances of money, however, may be withheld from them until the
completion of the punishment; such parcels and remittances of money shall meanwhile be
665 GPW art. 98 (“A prisoner of war undergoing confinement as a disciplinary punishment, shall continue to enjoy
the benefits of the provisions of this Convention except in so far as these are necessarily rendered inapplicable by
the mere fact that he is confined.”).
666 GPW art. 98 (“In no case may he be deprived of the benefits of the provisions of Articles 78 and 126.”).
667 Refer to § 9.23 (POW Requests, Complaints); § 9.32 (Role of the Protecting Power in the GPW).
668 GPW art. 98 (“A prisoner of war awarded disciplinary punishment may not be deprived of the prerogatives
attached to his rank.”).
669 See GPW COMMENTARY 467 (“Officers retain the right to wear the insignia of their rank (Article 44). They may
not be required to work (Article 49, paragraph 3) or to provide their own service (Article 44, paragraph 2), for that
would amount to making them perform fatigue duties, which is forbidden under Article 89, paragraph 2. In
accordance with Article 97, paragraph 3, officers will be lodged in quarters separate from those of non-
commissioned officers and other ranks. These provisions were in the main observed during the Second World
War.”).
670 GPW art. 98 (“[POWs awarded disciplinary punishment] shall be allowed, on their request, to be present at the
daily medical inspections.”).
671 GPW art. 98 (“[POWs awarded disciplinary punishment] shall receive the attention which their state of health
requires and, if necessary, shall be removed to the camp infirmary or to a hospital.”).
672 GPW art. 98 (“Prisoners of war awarded disciplinary punishment shall be allowed to exercise and to stay in the
open air at least two hours daily.”).
673 GPW art. 98 (“They shall have permission to read and write, likewise to send and receive letters.”).
602
entrusted to the POW Representative, who will hand over to the infirmary the perishable goods
contained in such parcels.674
9.27.7 Disciplinary Punishment and Repatriation or Accommodation in a Neutral
Country. No POW on whom a disciplinary punishment has been imposed and who is eligible for
repatriation or for accommodation in a neutral country may be kept back because he or she has
not undergone his or her punishment.675
9.28 JUDICIAL PROCEEDINGS AND PUNISHMENT
In addition to the general principles applicable to POW punishment, the following rules
address judicial proceedings and punishment.
9.28.1 No Trial or Sentence Without Pre-Existing Law. No POW may be tried or
sentenced for an act that is not forbidden by the law of the Detaining Power or by international
law in force at the time that act was committed.676
9.28.2 Same Courts and Same Procedures. A POW can be validly sentenced only if the
sentence has been pronounced by the same courts according to the same procedure as in the case
of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of
Chapter III of the GPW have been observed.677 For example, evidence laws used in the trial of a
POW will be the same as those applicable in the trial of a member of the Detaining Power’s
military forces.
9.28.3 Notification of Proceedings, Investigation of Offenses, and Confinement Before
Trial.
9.28.3.1 Notification of Proceedings. In any case in which the Detaining Power
decides to institute judicial proceedings against a POW, the Detaining Power shall notify the
Protecting Power and the POW Representative as soon as possible and at least three weeks
before the opening of the trial.678 This period of three weeks shall run from the day on which
674 GPW art. 98 (“Parcels and remittances of money however, may be withheld from them until the completion of
the punishment; they shall meanwhile be entrusted to the prisoners’ representative, who will hand over to the
infirmary the perishable goods contained in such parcels.”).
675 GPW art. 115 (“No prisoner of war on whom a disciplinary punishment has been imposed and who is eligible for
repatriation or for accommodation in a neutral country, may be kept back on the plea that he has not undergone his
punishment.”).
676 GPW art. 99 (“No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the
Detaining Power or by international law, in force at the time the said act was committed.”).
677 GPW art. 102 (“A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same
courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and
if, furthermore, the provisions of the present Chapter have been observed.”).
678 See GPW art. 104 (“In any case in which the Detaining Power has decided to institute judicial proceedings
against a prisoner of war, it shall notify the Protecting Power as soon as possible and at least three weeks before the
opening of the trial. … The same communication shall be made by the Detaining Power to the prisoners’
representative.”).
603
such notification reaches the Protecting Power at the address previously indicated by the latter to
the Detaining Power.679 This notification shall contain the following information:
• surname and first names of the POW, his or her rank, his or her army, regimental,
personal or serial number, his or her date of birth, and his or her profession or trade, if
any;
• place of internment or confinement;
• specification of the charge or charges on which the POW is to be arraigned, giving the
legal provisions applicable; and
• designation of the court that will try the case, and the date and place fixed for the opening
of the trial.680
If no evidence is submitted at the opening of a trial that the notification referred to above
was received by the Protecting Power, by the POW, and by the POW Representative concerned
at least three weeks before the opening of the trial, then the trial may not take place and must be
adjourned.681
9.28.3.2 Rapid Investigations. Judicial investigations relating to a POW shall be
conducted as rapidly as circumstances permit so that his or her trial may take place as soon as
possible.682
9.28.3.3 Pre-Trial Confinement. A POW shall not be confined while awaiting
trial unless a member of the armed forces of the Detaining Power would be so confined if he or
she were accused of a similar offense, or if it is essential to do so in the interests of national
security.683
In no circumstances, however, may a POW be confined for more than three months.684
679 GPW art. 104 (“This period of three weeks shall run as from the day on which such notification reaches the
Protecting Power at the address previously indicated by the latter to the Detaining Power.”).
680 GPW art. 104 (“The said notification shall contain the following information: (1) surname and first names of the
prisoner of war, his rank, his army, regimental, personal or serial number, his date of birth, and his profession or
trade, if any; (2) place of internment or confinement; (3) specification of the charge or charges on which the prisoner
of war is to be arraigned, giving the legal provisions applicable; (4) designation of the court which will try the case,
likewise the date and place fixed for the opening of the trial.”).
681 GPW art. 104 (“If no evidence is submitted, at the opening of a trial, that the notification referred to above was
received by the Protecting Power, by the prisoner of war and by the prisoners' representative concerned, at least
three weeks before the opening of the trial, then the latter cannot take place and must be adjourned.”).
682 GPW art. 103 (“Judicial investigations relating to a prisoner of war shall be conducted as rapidly as
circumstances permit and so that his trial shall take place as soon as possible.”).
683 GPW art. 103 (“A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces
of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in
the interests of national security.”).
684 GPW art. 103 (“In no circumstances shall this confinement exceed three months.”).
604
Any period spent by a POW in confinement awaiting trial shall be deducted from any
sentence of imprisonment passed upon him or her and taken into account in fixing any
penalty.685
Articles 97 and 98 of the GPW apply to a POW’s confinement while awaiting trial.686
Thus, the conditions of any confinement before trial should be at least as good as that afforded
POWs who are confined as part of disciplinary punishment.687
9.28.4 Rights of Defense and Trial Procedure.
9.28.4.1 No Moral or Physical Coercion to Induce Admissions of Guilt. No moral
or physical coercion may be exerted on a POW in order to induce him or her to admit himself or
herself guilty of the act of which he or she is accused.688
9.28.4.2 Opportunity to Present Defense and Assistance of Counsel. No POW
may be convicted without having had an opportunity to present his or her defense and to have the
assistance of a qualified advocate or counsel.689
In judicial proceedings against a POW, the POW shall be entitled to:
• assistance by one of his or her POW comrades;
• defense by a qualified advocate or counsel of his or her own choice;
• the calling of witnesses; and
• if he or she deems necessary, the services of a competent interpreter.690
The POW shall be advised of these rights by the Detaining Power in due time before the
trial to enable him or her to exercise them.691
685 GPW art. 103 (“Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any
sentence of imprisonment passed upon him and taken into account in fixing any penalty.”).
686 GPW art. 103 (“The provisions of Articles 97 and 98 of this Chapter shall apply to a prisoner of war whilst in
confinement awaiting trial.”).
687 Refer to § 9.27.6 (Conditions for POWs Serving Disciplinary Punishments).
688 GPW art. 99 (“No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit
himself guilty of the act of which he is accused.”).
689 GPW art. 99 (“No prisoner of war may be convicted without having had an opportunity to present his defence
and the assistance of a qualified advocate or counsel.”).
690 GPW art. 105 (“The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by
a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the
services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before
the trial.”).
691 GPW art. 105 (“The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by
a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the
605
Failing a choice by the POW, the Protecting Power shall find him or her an advocate or
counsel, and shall have at least one week at its disposal for this purpose.692 The Detaining Power
shall deliver to the Protecting Power, on request, a list of persons qualified to present the
defense.693 Failing a choice of an advocate or counsel by the POW or the Protecting Power, the
Detaining Power shall appoint a competent advocate or counsel to conduct the defense.694
9.28.4.3 Facilities for Defense Counsel. The advocate or counsel conducting the
defense on behalf of the POW shall have at his or her disposal a period of two weeks at least
before the opening of the trial, as well as the necessary facilities to prepare the defense of the
accused.695 He or she may, in particular, freely visit the accused and interview him or her in
private.696 He or she may also confer with any witnesses for the defense, including POWs.697
He or she shall have the benefit of these facilities until the term of appeal or petition has
expired.698
9.28.4.4 Rights of the Accused to Particulars of Charge. Particulars of the charge
or charges on which the POW is to be arraigned, as well as the documents that are generally
communicated to the accused by virtue of the laws in force in the armed forces of the Detaining
Power, shall be communicated to the accused POW in a language that he or she understands, and
in good time before the opening of the trial.699 The same communication in the same
circumstances shall be made to the advocate or counsel conducting the defense on behalf of the
POW.700
9.28.4.5 Right of the Protecting Power to Attend Trial. Representatives of the
Protecting Power shall be entitled to attend the trial of the case unless, exceptionally, the trial is
services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before
the trial.”).
692 GPW art. 105 (“Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or
counsel, and shall have at least one week at its disposal for the purpose.”).
693 GPW art. 105 (“The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to
present the defence.”).
694 GPW art. 105 (“Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the
Detaining Power shall appoint a competent advocate or counsel to conduct the defence.”).
695 GPW art. 105 (“The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his
disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare
the defence of the accused.”).
696 GPW art. 105 (“He may, in particular, freely visit the accused and interview him in private.”).
697 GPW art. 105 (“He may also confer with any witnesses for the defence, including prisoners of war.”).
698 GPW art. 105 (“He shall have the benefit of these facilities until the term of appeal or petition has expired.”).
699 GPW art. 105 (“Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the
documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of
the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and
in good time before the opening of the trial.”).
700 GPW art. 105 (“The same communication in the same circumstances shall be made to the advocate or counsel
conducting the defence on behalf of the prisoner of war.”).
606
held in camera in the interest of State security.701 In such a case, the Detaining Power shall
advise the Protecting Power accordingly.702
9.28.4.6 Notification of Trial Outcome. Any judgment and sentence pronounced
upon a POW shall be immediately reported to the Protecting Power and the POW Representative
concerned in the form of a summary communication, which shall also indicate whether the POW
has the right of appeal with a view to the quashing of the sentence or the reopening of the trial.703
This communication shall also be sent to the accused POW in a language he or she understands,
if the sentence was not pronounced in his or her presence.704
9.28.5 Appeals and Notice of Final Conviction or Death Sentence.
9.28.5.1 Appeals. Every POW shall have, in the same manner as the members of
the armed forces of the Detaining Power, the right of appeal or petition from any sentence
pronounced upon him or her, with a view to the quashing or revising of the sentence or the
reopening of the trial.705
He or she shall be fully informed of his or her right to appeal or petition and of the time
limit within which he or she may do so.706
The Detaining Power shall immediately communicate to the Protecting Power the
decision of the POW to use or to waive his or her right of appeal.707
9.28.5.2 Notification of Final Conviction or Death Sentence. If a POW is finally
convicted or if a sentence pronounced on a POW in the first instance is a death sentence, the
Detaining Power shall as soon as possible address to the Protecting Power a detailed
communication containing:
• the precise wording of the finding and sentence;
701 GPW art. 105 (“The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless,
exceptionally, this is held in camera in the interest of State security.”).
702 GPW art. 105 (“In such a case the Detaining Power shall advise the Protecting Power accordingly.”).
703 GPW art. 107 (“Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported to
the Protecting Power in the form of a summary communication, which shall also indicate whether he has the right of
appeal with a view to the quashing of the sentence or the reopening of the trial. This communication shall likewise
be sent to the prisoners’ representative concerned.”).
704 GPW art. 107 (“It shall also be sent to the accused prisoner of war in a language he understands, if the sentence
was not pronounced in his presence.”).
705 GPW art. 106 (“Every prisoner of war shall have, in the same manner as the members of the armed forces of the
Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the
quashing or revising of the sentence or the reopening of the trial.”).
706 GPW art. 106 (“He shall be fully informed of his right to appeal or petition and of the time limit within which he
may do so.”).
707 GPW art. 107 (“The Detaining Power shall also immediately communicate to the Protecting Power the decision
of the prisoner of war to use or to waive his right of appeal.”).
607
• a summarized report of any preliminary investigation and of the trial, emphasizing in
particular the elements of the prosecution and the defense; and
• notification, where applicable, of the establishment where the sentence will be served.708
These communications shall be sent to the Protecting Power at the address previously
made known to the Detaining Power.709
9.28.6 Death Sentences. POWs and the Protecting Powers shall be informed, as soon as
possible, of the offenses that are punishable by death sentence under the laws of the Detaining
Power.710 Other offenses shall not thereafter be made punishable by the death penalty without
the concurrence of the Power on which the POWs depend.711
The death sentence may not be pronounced on a POW unless the attention of the court
has, in accordance with the second paragraph of Article 87 of the GPW, been particularly called
to the fact:
• that since the accused is not a national of the Detaining Power, he or she is not bound to it
by any duty of allegiance; and
• that he or she is in the power of the Detaining Power as the result of circumstances
independent of his or her own will.712
If the death penalty is pronounced on a POW, the sentence shall not be executed before
the expiration of a period of at least six months from the date when the Protecting Power
receives, at an indicated address, the detailed communication provided for in Article 107 of the
GPW.713
708 GPW art. 107 (“Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of
war in the first instance is a death sentence, the Detaining Power shall as soon as possible address to the Protecting
Power a detailed communication containing: (1) the precise wording of the finding and sentence; (2) a summarized
report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and
the defence; (3) notification, where applicable, of the establishment where the sentence will be served. The
communications provided for in the foregoing sub-paragraphs shall be sent to the Protecting Power at the address
previously made known to the Detaining Power.”).
709 GPW art. 107 (“The communications provided for in the foregoing sub-paragraphs shall be sent to the Protecting
Power at the address previously made known to the Detaining Power.”).
710 GPW art. 100 (“Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences
which are punishable by the death sentence under the laws of the Detaining Power.”).
711 GPW art. 100 (“Other offences shall not thereafter be made punishable by the death penalty without the
concurrence of the Power on which the prisoners of war depend.”).
712 GPW art. 100 (“The death sentence cannot be pronounced on a prisoner of war unless the attention of the court
has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not
a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the
result of circumstances independent of his own will.”).
713 GPW art. 101 (“If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before
the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated
608
9.28.7 Conditions for POWs Serving Judicial Punishments.
9.28.7.1 Establishments and Conditions Where Sentences Are Served. A sentence
pronounced on a POW after a conviction has become duly enforceable shall be served in the
same establishments and under the same conditions as in the case of members of the armed
forces of the Detaining Power.714 These conditions shall in all cases conform to the requirements
of health and humanity.715
9.28.7.2 Confinement of Women POWs Who Have Been Sentenced. A woman
POW on whom such a sentence has been pronounced shall be confined in separate quarters and
shall be under the supervision of women.716
9.28.7.3 Complaints and Access to ICRC and the Protecting Power During
Confinement. In any case, POWs sentenced to a penalty depriving them of their liberty shall
retain the benefit of the provisions of Articles 78 and 126 of the GPW.717 Thus, they may make
requests and complaints and deal with representatives of the Protecting Power or the ICRC.718
9.28.7.4 Correspondence, Relief Parcels, Exercise, Medical Care, and Spiritual
Assistance. Furthermore, POWs sentenced to a penalty depriving them of their liberty shall be
entitled to receive and send correspondence, to receive at least one relief parcel monthly, to take
regular exercise in the open air, to have the medical care required by their state of health, and to
have the spiritual assistance they may desire.719
9.28.7.5 Prohibited Penalties. Penalties to which POWs may be subjected shall
be in accordance with the provisions of the third paragraph of Article 87 of the GPW.720 Thus,
collective punishment for individual acts, corporal punishment, imprisonment in premises
address, the detailed communication provided for in Article 107.”). Refer to § 9.28.5.2 (Notification of Final
Conviction or Death Sentence).
714 GPW art. 108 (“Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shall
be served in the same establishments and under the same conditions as in the case of members of the armed forces of
the Detaining Power.”).
715 GPW art. 108 (“These conditions shall in all cases conform to the requirements of health and humanity.”).
716 GPW art. 108 (“A woman prisoner of war on whom such a sentence has been pronounced shall be confined in
separate quarters and shall be under the supervision of women.”).
717 GPW art. 108 (“In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain
the benefit of the provisions of Articles 78 and 126 of the present Convention.”).
718 Refer to § 9.23 (POW Requests, Complaints, and Reports About Conditions of Captivity); § 9.33 (Access to
POWs by the Protecting Powers, ICRC, and Relief Organizations).
719 GPW art. 108 (“Furthermore, they shall be entitled to receive and despatch correspondence, to receive at least
one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of
health, and the spiritual assistance they may desire.”).
720 GPW art. 108 (“Penalties to which they may be subjected shall be in accordance with the provisions of Article
87, third paragraph.”).
609
without daylight, and, in general, any form of torture or cruelty, are forbidden for POWs serving
judicial penalties.721
9.29 TRANSFER OF POWS FROM THE POW CAMP
9.29.1 Determining Whether to Transfer POWs. The Detaining Power, when deciding
upon the transfer of POWs, shall take into account the interests of the POWs themselves, more
especially so as not to increase the difficulty of their repatriation.722
Sick or wounded POWs shall not be transferred as long as their recovery may be
endangered by the journey, unless their safety imperatively demands it.723
If the combat zone draws closer to a camp, the POWs in that camp shall not be
transferred unless their transfer can be carried out in adequate conditions of safety, or unless they
are exposed to greater risks by remaining on the spot than by being transferred.724
9.29.2 Conditions for the Transfer of POWs. The transfer of POWs shall always be
effected humanely and in conditions not less favorable than those under which the forces of the
Detaining Power are transferred.725 Account shall always be taken of the climatic conditions to
which the POWs are accustomed, and the conditions of transfer shall in no case be prejudicial to
their health.726
The Detaining Power shall supply POWs during transfer with sufficient food and
drinking water to keep them in good health, and shall supply them with the necessary clothing,
shelter, and medical attention.727 The Detaining Power shall take adequate precautions,
especially in case of transport by sea or by air, to ensure their safety during transfer, and shall
draw up a complete list of all transferred POWs before their departure.728
721 Refer to § 9.26.6 (Prohibited Penalties).
722 GPW art. 46 (“The Detaining Power, when deciding upon the transfer of prisoners of war, shall take into account
the interests of the prisoners themselves, more especially so as not to increase the difficulty of their repatriation.”).
723 GPW art. 47 (“Sick or wounded prisoners of war shall not be transferred as long as their recovery may be
endangered by the journey, unless their safety imperatively demands it.”).
724 GPW art. 47 (“If the combat zone draws closer to a camp, the prisoners of war in the said camp shall not be
transferred unless their transfer can be carried out in adequate conditions of safety, or unless they are exposed to
greater risks by remaining on the spot than by being transferred.”).
725 GPW art. 46 (“The transfer of prisoners of war shall always be effected humanely and in conditions not less
favourable than those under which the forces of the Detaining Power are transferred.”).
726 GPW art. 46 (“Account shall always be taken of the climatic conditions to which the prisoners of war are
accustomed and the conditions of transfer shall in no case be prejudicial to their health.”).
727 GPW art. 46 (“The Detaining Power shall supply prisoners of war during transfer with sufficient food and
drinking water to keep them in good health, likewise with the necessary clothing, shelter and medical attention.”).
728 GPW art. 46 (“The Detaining Power shall take adequate precautions especially in case of transport by sea or by
air, to ensure their safety during transfer, and shall draw up a complete list of all transferred prisoners before their
departure.”).
610
9.29.3 Procedures for Transfer of POWs From the Camp.
9.29.3.1 Notification of Transfer. In the event of transfer, POWs shall be
officially advised of their departure and of their new postal address.729 Such notifications shall
be given in time for them to pack their luggage and inform their next of kin.730
9.29.3.2 Baggage. POWs shall be allowed to take with them their personal
effects and the correspondence and parcels that have arrived for them.731 The weight of such
baggage may be limited, if the conditions of transfer so require, to what each POW can
reasonably carry, which shall in no case be more than 25 kilograms (approximately 55 pounds)
per person.732
9.29.3.3 Forwarding of Mail. Mail and parcels addressed to their former camp
shall be forwarded to POWs without delay.733
9.29.3.4 Disposition of Community Property and Remaining Property. The camp
commander shall take, in agreement with the POW Representative, any measures needed to
ensure the transport of the POWs’ community property and of the luggage they are unable to
take with them in consequence of restrictions imposed by virtue of the second paragraph of
Article 48 of the GPW (i.e., restrictions on the weight of baggage).734
9.29.3.5 Costs of Transfers. The costs of transfers shall be borne by the Detaining
Power.735
9.30 TRANSFER OF POWS TO THE CUSTODY OF ANOTHER DETAINING POWER
The GPW specifies a number of rules that apply to the transfer of POWs by the Detaining
Power to the custody of another Detaining Power.
9.30.1 Requirements for Transfer to the Custody of Another Detaining Power. POWs
may only be transferred by the Detaining Power to a Power that is a Party to the GPW and after
729 GPW art. 48 (“In the event of transfer, prisoners of war shall be officially advised of their departure and of their
new postal address.”).
730 GPW art. 48 (“Such notifications shall be given in time for them to pack their luggage and inform their next of
kin.”).
731 GPW art. 48 (“They shall be allowed to take with them their personal effects, and the correspondence and parcels
which have arrived for them.”).
732 GPW art. 48 (“The weight of such baggage may be limited, if the conditions of transfer so require, to what each
prisoner can reasonably carry, which shall in no case be more than twenty-five kilograms per head.”).
733 GPW art. 48 (“Mail and parcels addressed to their former camp shall be forwarded to them without delay.”).
734 GPW art. 48 (“The camp commander shall take, in agreement with the prisoners’ representative, any measures
needed to ensure the transport of the prisoners’ community property and of the luggage they are unable to take with
them in consequence of restrictions imposed by virtue of the second paragraph of this Article.”).
735 GPW art. 48 (“The costs of transfers shall be borne by the Detaining Power.”).
611
the Detaining Power has satisfied itself of the willingness and ability of such receiving Power to
apply the GPW.736 U.S. policy may prescribe additional requirements.737
To ensure accountability, a POW should not be transferred before his or her formal
processing and submission of all required information to the National POW Information
Bureau.738
9.30.2 Responsibility When Transferred to the Custody of Another Detaining Power.
When POWs are transferred under such circumstances, responsibility for the application of the
GPW rests on the Power accepting them while they are in its custody.739
Nevertheless, if that Power fails to carry out the provisions of the GPW in any important
respect, the Power by whom the POWs were transferred shall, upon being notified by the
Protecting Power, take effective measures to correct the situation or shall request the return of
the POWs.740 Such requests must be complied with.741
9.30.3 Special Agreements on Transfers to the Another Detaining Power. Special
agreements may be concluded with respect to POW transfers to the custody of another Detaining
Power. U.S. policy has been to require a written agreement or arrangement before transferring
POWs to a coalition partner.742 For example, the receiving State may agree to inspections by the
transferring State to verify compliance with the GPW.743
736 GPW art. 12 (“Prisoners 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.”).
737 Refer to, e.g., § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be
Tortured).
738 Refer to § 9.31.2 (National POW Information Bureau).
739 GPW art. 12 (“When prisoners of war are transferred under such circumstances, responsibility for the application
of the Convention rests on the Power accepting them while they are in its custody.”).
740 GPW art. 12 (“Nevertheless, if that Power fails to carry out the provisions of the Convention in any important
respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting
Power, take effective measures to correct the situation or shall request the return of the prisoners of war.”).
741 GPW art. 12 (“Such requests must be complied with.”).
742 For example, FINAL REPORT ON THE PERSIAN GULF WAR 578-79 (“US policy requires approval of a formal
international agreement by the Assistant Secretary of Defense for International Security Affairs (ASD/ISA) and the
State Department as a prerequisite to transferring EPWs to a Coalition partner. A government-to-government
agreement was negotiated between Saudi Arabia and the United States authorizing the transfer of EPWs to Saudi
custody. This document was signed formally on 15 January. Separate military-to-military agreements, authorized
by the ASD/ISA and the State Department, were also negotiated. These negotiations resulted in the US/UK EPW
transfer agreement of 31 January and US/French transfer agreement of 24 February. The agreements outlined the
actions to be taken by capturing forces in processing EPWs and displaced civilians through US theater camps, and
medical channels to Saudi facilities. The agreement between the United States and Saudi governments provided the
United States would transfer custody of EPW to Saudi control after EPW registration by US forces. This agreement
also was applicable to EPW captured by the French and British and processed by the US.”).
743 For example, An Arrangement for the Transfer of Enemy Prisoners of War and Civilian Internees from the
Custody of British Forces to the Custody of American Forces, Jan. 31, 1991, reprinted as Appendix 1 in PETER
612
9.31 NATIONAL ACCOUNTING OF THE DETENTION OF POWS
A proper accounting of the detention of POWs is an important responsibility of the
Detaining Power.744 In order to provide as full an accounting as possible, and in order to
minimize misidentification of POWs in its custody, the Detaining Power shall obtain detailed
information about each POW for forwarding through its National POW Information Bureau to
the Protecting Powers and the Central POW Information Agency.
9.31.1 Accountability Information That the Detaining Power Should Collect. The
following information regarding POWs should be collected by the Detaining Power and given to
its National POW Information Bureau for forwarding to the Powers concerned through the
intermediary of the Protecting Powers and the Central POW Information Agency. This
information shall make it possible quickly to advise the next of kin concerned.745
This information includes, in respect of each POW:
• indication of the Power on which he or she depends;
• surname (i.e., last name) and first names (i.e., first and middle names);
• army, regimental, personal, or serial number;
• rank;
• place and full date of birth;
• first name of the father and maiden name of the mother;
• name and address of the person to be informed; and
• the address to which correspondence for the POW may be sent.746
ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 348 (1993) (“6 The British Forces will retain
a right of access to prisoners of war and civilian internees transferred from British custody while such persons are in
the custody of the American Forces.”); FINAL REPORT ON THE PERSIAN GULF WAR 578 (“Trained Reserve
Component (RC) EPW units were activated, and camp advisory teams were sent to Saudi Arabia to establish liaison
with Saudi units to provide technical assistance, and to maintain accountability for EPWs and displaced civilians
transferred to the Saudis.
(In accordance with Article 12, GPW, the United States retained residual responsibility for
EPWs transferred to the Saudi Arabian government.)”).
744 Refer to § 9.2.2 (Responsibility of the Detaining Power).
745 GPW art. 122 (“This information shall make it possible quickly to advise the next of kin concerned.”).
746 GPW art. 122 (“Subject to the provisions of Article 17, the information shall include, in so far as available to the
Information Bureau, in respect of each prisoner of war, his surname, first names, rank, army, regimental, personal or
serial number, place and full date of birth, indication of the Power on which he depends, first name of the father and
maiden name of the mother, name and address of the person to be informed and the address to which
correspondence for the prisoner may be sent.”).
613
In addition to this information, information regarding transfers, releases, repatriations,
escapes, admissions to a hospital, and deaths shall also be collected and transmitted.747
Likewise, information regarding the state of health of POWs who are seriously ill or seriously
wounded shall be supplied regularly, every week if possible.748
In addition to notices of death, wills and records of death of POWs may be forwarded in
accordance with Article 120 of the GPW.749 Lists of graves and the particulars of POWs interred
in cemeteries and elsewhere may also be forwarded in accordance with Article 120 of the
GPW.750
9.31.1.1 Difference Between the Accountability Information the Detaining Power
Must Seek and the Information the POW Must Provide. Although POWs are required to provide
full name, rank, date of birth, and service (or equivalent) number, and POWs are required to
show their identity card upon demand, POWs are not required to inform the Detaining Power of
their places of birth, the first name of fathers, the maiden name of mothers, or the names and
addresses of persons to be informed of capture.751
9.31.2 National POW Information Bureau. Upon the outbreak of a conflict and in all
cases of occupation, each of the parties to the conflict shall institute an official National POW
Information Bureau for POWs who are in its power.752 Neutral or non-belligerent Powers, who
may have received within their territory persons belonging to one of the categories referred to in
Article 4 of the GPW, shall take the same action with respect to such persons.753
The Power concerned shall ensure that the National POW Information Bureau is provided
with the necessary accommodation, equipment, and staff to ensure its efficient working.754 It
shall be at liberty to employ POWs in the National POW Information Bureau under the
conditions laid down in Section III of the GPW dealing with work by POWs.755
747 GPW art. 122 (“The Information Bureau shall receive from the various departments concerned information
regarding transfers, releases, repatriations, escapes, admissions to hospital, and deaths, and shall transmit such
information in the manner described in the third paragraph above.”).
748 GPW art. 122 (“Likewise, information regarding the state of health of prisoners of war who are seriously ill or
seriously wounded shall be supplied regularly, every week if possible.”).
749 Refer to § 9.34.1 (Transmittal of Wills); § 9.34.2 (Death Certificates).
750 Refer to § 9.34.4 (Maintenance and Records of Graves and Ashes).
751 Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).
752 GPW art. 122 (“Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflict
shall institute an official Information Bureau for prisoners of war who are in its power.”).
753 GPW art. 122 (“Neutral or non-belligerent Powers who may have received within their territory persons
belonging to one of the categories referred to in Article 4, shall take the same action with respect to such persons.”).
754 GPW art. 122 (“The Power concerned shall ensure that the Prisoners of War Information Bureau is provided with
the necessary accommodation, equipment and staff to ensure its efficient working.”).
755 GPW art. 122 (“It shall be at liberty to employ prisoners of war in such a Bureau under the conditions laid down
in the Section of the present Convention dealing with work by prisoners of war.”). Refer to § 9.19 (POW Labor).
614
Within the shortest possible period, each of the parties to the conflict shall give its
National POW Information Bureau the information referred to in the fourth, fifth, and sixth
paragraphs of Article 122 of the GPW regarding any enemy person belonging to one of the
categories referred to in Article 4 who has fallen into its power.756 Neutral or non-belligerent
Powers shall take the same action with regard to persons belonging to such categories whom
they have received within their territory.757
All written communications made by the National POW Information Bureau shall be
authenticated by a signature or a seal.758
The National POW Information Bureau: (1) receives and forwards certain information to
the Powers concerned through the intermediary of the Protecting Powers and the Central POW
Information Agency; (2) replies to inquiries; and (3) collects personal valuables left by POWs.
9.31.2.1 Receiving and Forwarding Certain Information. The National POW
Information Bureau receives certain information regarding POWs from other departments of the
State to which it belongs.759
The National POW Information Bureau shall immediately forward such information by
the most rapid means to the Powers concerned through the intermediary of the Protecting Powers
and likewise of the Central POW Information Agency provided for in Article 123 of the GPW.760
9.31.2.2 Replying to Inquiries Regarding POWs. The National POW Information
Bureau shall also be responsible for replying to all inquiries sent to it concerning POWs,
including those who have died in captivity; it will make any inquiries necessary to obtain the
756 GPW art. 122 (“Within the shortest possible period, each of the Parties to the conflict shall give its Bureau the
information referred to in the fourth, fifth and sixth paragraphs of this Article regarding any enemy person belonging
to one of the categories referred to in Article 4, who has fallen into its power.”).
757 GPW art. 122 (“Neutral or non-belligerent Powers shall take the same action with regard to persons belonging to
such categories whom they have received within their territory.”).
758 GPW art. 122 (“All written communications made by the Bureau shall be authenticated by a signature or a
seal.”).
759 GPW art. 122 (“Within the shortest possible period, each of the Parties to the conflict shall give its Bureau the
information referred to in the fourth, fifth and sixth paragraphs of this Article regarding any enemy person belonging
to one of the categories referred to in Article 4, who has fallen into its power. Neutral or non-belligerent Powers
shall take the same action with regard to persons belonging to such categories whom they have received within their
territory. … The Information Bureau shall receive from the various departments concerned information regarding
transfers, releases, repatriations, escapes, admissions to hospital, and deaths, and shall transmit such information in
the manner described in the third paragraph above. Likewise, information regarding the state of health of prisoners
of war who are seriously ill or seriously wounded shall be supplied regularly, every week if possible.”) (emphasis
added).
760 GPW art. 122 (“The Bureau shall immediately forward such information by the most rapid means to the Powers
concerned, through the intermediary of the Protecting Powers and likewise of the Central Agency provided for in
Article 123.”).
615
information that is asked for if the information is not in its possession.761 Responses to inquiries
must be made consistent with the protection of POWs against insults and public curiosity.762
9.31.2.3 Collection of Personal Valuables Left by POWs. The National POW
Information Bureau shall furthermore be charged with collecting all personal valuables including
sums in currencies other than that of the Detaining Power and documents of importance to the
next of kin that have been left by POWs who have been repatriated or released, or who have
escaped or died, and shall forward these valuables to the Powers concerned.763 Such articles
shall be sent by the National POW Information Bureau in sealed packets, which shall be
accompanied by statements giving clear and full particulars of the identity of the person to whom
the articles belonged, and by a complete list of the contents of the parcel.764 Other personal
effects of such POWs shall be transmitted under arrangements agreed upon between the parties
to the conflict concerned.765
9.31.3 Central POW Information Agency. The GPW contemplates that a Central POW
Information Agency shall be created in a neutral country.766 This organization may be the same
as that provided for in the GC.767
The function of the Central POW Information Agency shall be to collect all the
information it may obtain through official or private channels respecting POWs, and to transmit
it as rapidly as possible to the country of origin of the POWs or to the Power on which they
depend.768 The Central POW Information Agency shall receive from the parties to the conflict
all facilities for effecting such transmissions.769 Parties to the GPW, and in particular those
761 GPW art. 122 (“The Information Bureau shall also be responsible for replying to all enquiries sent to it
concerning prisoners of war, including those who have died in captivity; it will make any enquiries necessary to
obtain the information which is asked for if this is not in its possession.”).
762 Refer to § 9.5.3 (Protection Against Insults and Public Curiosity).
763 GPW art. 122 (“The Information Bureau shall furthermore be charged with collecting all personal valuables
including sums in currencies other than that of the Detaining Power and documents of importance to the next of kin,
left by prisoners of war who have been repatriated or released, or who have escaped or died, and shall forward the
said valuables to the Powers concerned.”).
764 GPW art. 122 (“Such articles shall be sent by the Bureau in sealed packets which shall be accompanied by
statements giving clear and full particulars of the identity of the person to whom the articles belonged, and by a
complete list of the contents of the parcel.”).
765 GPW art. 122 (“Other personal effects of such prisoners of war shall be transmitted under arrangements agreed
upon between the Parties to the conflict concerned.”).
766 GPW art. 123 (“A Central Prisoners of War Information Agency shall be created in a neutral country. The
International Committee of the Red Cross shall, if it deems necessary, propose to the Powers concerned the
organization of such an Agency.”).
767 Refer to § 10.31.3 (Central Information Agency for Protected Persons).
768 GPW art. 123 (“The function of the Agency shall be to collect all the information it may obtain through official
or private channels respecting prisoners of war, and to transmit it as rapidly as possible to the country of origin of
the prisoners of war or to the Power on which they depend.”).
769 GPW art. 123 (“It shall receive from the Parties to the conflict all facilities for effecting such transmissions.”).
616
States whose nationals benefit from the services of the Central POW Information Agency, are
requested to give the Central POW Information Agency the financial aid it may require.770
The provisions of the GPW establishing the Central POW Information Agency do not
restrict the humanitarian activities of the ICRC and of the relief societies described in Article 125
of the GPW.771
The GPW contemplates that the ICRC shall, if it deems necessary, propose to the Powers
concerned the organization of a Central POW Information Agency.772 The role of the Central
POW Information Agency has been performed by the ICRC Central Tracing Agency, which has
also performed this role for protected persons under the GC.
9.31.4 U.S. Practice in Reporting to the ICRC Central Tracing Agency. For the United
States, the National POW Information Bureau, which has been established and managed by the
Secretary of the Army, has been referred to at different times as the National Prisoner of War
Information Center (NPWIC) in Operation DESERT STORM in 1991,773 and as the National
Detainee Reporting Center (NDRC) in Operation IRAQI FREEDOM in 2003. The
NPWIC/NDRC has performed the same function for certain protected persons under the GC.
In general, the Theater Prisoner of War Information Center (TPWIC) has received reports
from all subordinate POW facilities, regardless of Military Service, consolidated them and
reconciled any discrepancies, and then forwarded its report to the NPWIC/NDRC. The
NPWIC/NDRC, on behalf of the United States, has further reviewed and reconciled reports as
needed, and forwarded its report to the ICRC Central Tracing Agency, which has acted as the
Central POW Information Agency. The release of POW accountability information outside this
process (such as directly from field components to ICRC field representatives) has been avoided
so as to reduce the likelihood of erroneous, conflicting, or duplicate reporting.
9.31.5 Exemption of National POW Information Bureau and Central POW Information
Agency From Certain Charges. The National POW Information Bureau and the Central POW
Information Agency shall enjoy free postage for mail, all the exemptions provided for in Article
770 GPW art. 123 (“The High Contracting Parties, and in particular those whose nationals benefit by the services of
the Central Agency, are requested to give the said Agency the financial aid it may require.”).
771 GPW art. 123 (“The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities
of the International Committee of the Red Cross, or of the relief societies provided for in Article 125.”).
772 GPW art. 123 (“The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers
concerned the organization of such an Agency.”).
773 For example, FINAL REPORT ON THE PERSIAN GULF WAR 579-80 (“HQDA [Headquarters, Department of the
Army] also operates the NPWIC, the central agency for all information pertaining to prisoners of war. Article 122,
GPW, and Article 136, GC, require captors to establish a national information bureau as quickly as possible after the
start of hostilities. The NPWIC, manned by Army Reserve (USAR) individual mobilization augmentees, volunteer
Reservists, and retired personnel, served as a central repository for information related to EPW and displaced
civilians captured or transferred to US forces. It also coordinated information with the ICRC pertaining to EPW
held by Coalition forces and provided information pertaining to Americans (POW) in Iraqi hands. Additionally, the
NPWIC consolidated information from the theater for dissemination to appropriate government agencies, Congress,
and the ICRC.”).
617
74 of the GPW,774 and, further, so far as possible, exemption from telegraphic charges or, at
least, greatly reduced rates.775
In addition, the National POW Information Bureau and the Central POW Information
Agency shall also enjoy exemption from postal charges in respect of letter-post items, postal
parcels, and monetary articles that concern POWs, which they send or receive, either directly or
as intermediaries under the conditions laid down in the Universal Postal Convention.776 Such
items exempt from postal charges should be marked appropriately.777
9.32 ROLE OF THE PROTECTING POWER IN THE GPW
The Protecting Power is an organ for ensuring implementation of the GPW. The
Protecting Power has extensive duties under the GPW. It transmits information between
belligerents, monitors Detaining Power compliance with the GPW, and takes an active role in
promoting the welfare of POWs.
9.32.1 Transmission of Information Between Belligerents. The Protecting Power helps
transmit information between belligerents, including:
• information concerning the geographic location of camps;778
• financial information, including working rates of pay, notifications of payment, lists of
credit balances, and claims for compensation;779
• notification of arrangements made for POW correspondence and relief shipments;780
• legal documents of POWs;781
774 Refer to § 9.20.4 (Exemptions From Postal and Shipping Charges).
775 GPW art. 124 (“The national Information Bureaux and the Central Information Agency shall enjoy free postage
for mail, likewise all the exemptions provided for in Article 74, and further, so far as possible, exemption from
telegraphic charges or, at least, greatly reduced rates.”).
776 Universal Postal Convention, art. 17(3), Dec. 14, 1989, 1687 UNTS 241, 252 (“The national Information
Bureaux and the Central Information Agencies mentioned above shall also enjoy exemption from postal charges in
respect of letter-post items, postal parcels and monetary articles which concern the persons referred to in paragraphs
1 and 2, which they send or receive, either direct or as intermediaries, under the conditions laid down in those
paragraphs.”). Consider Letter Post Regulations, Article RL 111 to Article 7 of the Universal Postal Convention of
Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL,
page C.10, C.10-11 (Berne 2013, Update 2 - Jan. 2015) (“The following shall enjoy exemption from postal charges
within the meaning of article 7.2 of the Convention: 1.1 the Information Bureaux provided for in article 122 of the
Geneva Convention of 12 August 1949 relative to the treatment of prisoners of war; 1.2 the Central Prisoner-of-War
Information Agency provided for in article 123 of the same Convention;”).
777 Refer to § 9.20.4.3 (Exemption From Postal Charges Under the Universal Postal Convention).
778 Refer to § 9.11.4.2 (Sharing Information on the Location of POW Camps).
779 Refer to § 9.18 (Financial Resources of POWs).
780 Refer to § 9.4.2.6 (Arrangements Made for POWs to Write Correspondence and Receive Collective Relief).
781 Refer to § 9.21.2 (Legal Documents and Assistance).
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• death certificates of POWs;782
• accountability information for the detention of POWs;783 and
• official translations of the GPW, and laws and regulations that parties to the conflict have
adopted to implement it.784
9.32.2 Monitoring or Inspecting Compliance With the GPW. The Protecting Power
monitors or inspects the Detaining Power’s compliance with the GPW, including by:
• visiting all places where POWs may be;785
• receiving complaints and requests by POWs, and periodic reports from the POW
Representatives;786
• communicating with POW Representatives, and receiving the rationale in cases in which
the Detaining Power refuses to approve an elected POW Representative or chooses to
dismiss a POW Representative;787
• inspecting records of disciplinary punishments;788
• receiving communications and subsequent reports of death or serious injury of a POW in
certain cases;789
• receiving the reasons for the limitations imposed by the Detaining Power on advances of
pay;790
• inspecting POW accounts;791
• receiving records of labor detachments;792 and
782 Refer to § 9.34.2 (Death Certificates).
783 Refer to § 9.31 (National Accounting of the Detention of POWs).
784 GPW art. 128 (“The High Contracting Parties shall communicate to one another through the Swiss Federal
Council and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as
well as the laws and regulations which they may adopt to ensure the application thereof.”).
785 Refer to § 9.33.1 (Access by Protecting Powers).
786 Refer to § 9.23.1 (POW Right to Make Requests and Complaints); § 9.23.3 (Periodic Reports by the POW
Representatives).
787 Refer to § 9.24.2.4 (Approval of Elected POW Representatives by the Detaining Power); § 9.24.5 (Dismissal of
POW Representative).
788 Refer to § 9.27.4 (Record of Disciplinary Punishments).
789 Refer to § 9.34.5 (Inquiries Into Death or Serious Injury of POWs in Certain Cases).
790 Refer to § 9.18.3.3 (Procedure for Limiting Amounts Drawn From Accounts Pending Special Agreement).
791 Refer to § 9.18.6 (POW Accounts).
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• observing trials of POWs if security permits and receiving notification of: (1) judicial
proceedings, (2) trial outcome, (3) whether the POW has decided to appeal, and (4) final
conviction or death sentence.793
9.32.3 Actively Working to Improve the Welfare of POWs. In many other instances, the
GPW contemplates that the Protecting Power will actively work to improve the welfare of
POWs, such as by:
• helping the Detaining Power determine the maximum amount of money that POWs have
in their possession;794
• approving any limitation on correspondence beyond two letters and four cards per
month;795
• proposing any necessary limitations on relief shipments;796
• supervising the distribution of collective relief;797
• setting up special means of transport to ensure the conveyance of relief shipments to
POWs;798
• finding POWs defense counsel when necessary;799
• notifying the transferring State in the event that a receiving State fails to carry out its
obligations;800
• participating in the appointment of members of a Mixed Medical Commission;801 and
• lending its good offices to assist in dispute resolution.802
792 Refer to § 9.19.7 (Labor Detachments).
793 Refer to § 9.28.4.5 (Right of the Protecting Power to Attend Trial); § 9.28.3.1 (Notification of Proceedings);
§ 9.28.4.6 (Notification of Trial Outcome); § 9.28.5.1 (Appeals); § 9.28.5.2 (Notification of Final Conviction or
Death Sentence).
794 Refer to § 9.18.1 (Detaining Power Regulations on the Maximum Amount of Money in POW Possession).
795 Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).
796 Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).
797 Refer to § 9.20.3.4 (Collective Relief for POWs).
798 Refer to § 9.20.5 (Special Means of Transport of Shipments to POWs).
799 Refer to § 9.28.4.2 (Opportunity to Present Defense and Assistance of Counsel).
800 Refer to § 9.30.2 (Responsibility When Transferred to the Custody of Another Detaining Power).
801 Refer to § 9.36.5 (Mixed Medical Commissions).
802 Refer to § 18.15.4 (Lending of Good Offices to Assist in Dispute Resolution).
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9.33 ACCESS TO POWS BY THE PROTECTING POWERS, ICRC, AND RELIEF ORGANIZATIONS
9.33.1 Access by Protecting Powers. Representatives or delegates of the Protecting
Powers shall have permission to go to all places where POWs may be, particularly to places of
internment, imprisonment, and labor, and shall have access to all premises occupied by POWs;
they also shall be allowed to go to the places of departure, passage, and arrival of POWs who are
being transferred.803 They shall be able to interview POWs, and in particular POW
Representatives, without witnesses, either personally or through an interpreter.804
Representatives and delegates of the Protecting Powers shall have full liberty to select the
places they wish to visit.805 The duration and frequency of these visits shall not be restricted.806
Visits may not be prohibited except for reasons of imperative military necessity, and then only as
an exceptional and temporary measure.807
9.33.1.1 Participation of Compatriots of POWs in Visits. The Detaining Power
and the Power on which these POWs depend may agree, if necessary, that compatriots of these
POWs be permitted to participate in the visits.808
9.33.1.2 ICRC Delegates Enjoying the Same Prerogatives of Access. The
delegates of the ICRC shall enjoy the same prerogatives as those of the representatives and
delegates of the Protecting Powers described in Article 126 of the GPW.809
The appointment of such delegates shall be submitted to the approval of the Power
detaining the POWs to be visited.810
9.33.2 Access by Relief Societies and Other Organizations. Subject to the measures that
the Detaining Powers may consider essential to ensure their security or to meet any other
reasonable need, the representatives of religious organizations, relief societies, or any other
organization assisting POWs shall receive from these Powers, for themselves and their duly
803 GPW art. 126 (“Representatives or delegates of the Protecting Powers shall have permission to go to all places
where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access
to all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage and
arrival of prisoners who are being transferred.”).
804 GPW art. 126 (“They shall be able to interview the prisoners, and in particular the prisoners’ representatives,
without witnesses, either personally or through an interpreter.”).
805 GPW art. 126 (“Representatives and delegates of the Protecting Powers shall have full liberty to select the places
they wish to visit.”).
806 GPW art. 126 (“The duration and frequency of these visits shall not be restricted.”).
807 GPW art. 126 (“Visits may not be prohibited except for reasons of imperative military necessity, and then only as
an exceptional and temporary measure.”).
808 GPW art. 126 (“The Detaining Power and the Power on which the said prisoners of war depend may agree, if
necessary, that compatriots of these prisoners of war be permitted to participate in the visits.”).
809 GPW art. 126 (“The delegates of the International Committee of the Red Cross shall enjoy the same
prerogatives.”).
810 GPW art. 126 (“The appointment of such delegates shall be submitted to the approval of the Power detaining the
prisoners of war to be visited.”).
621
accredited agents, all necessary facilities for visiting the POWs; for distributing relief supplies
and material, from any source, intended for religious, educational, or recreative purposes; and for
assisting them in organizing their leisure time within the POW camps.811 Such societies or
organizations may be constituted in the territory of the Detaining Power or in any other country,
or they may have an international character.812
9.33.2.1 Limitations on the Number of Relief Organizations. The Detaining
Power may limit the number of societies and organizations whose delegates are allowed to carry
out their activities in its territory and under its supervision, on condition, however, that such
limitation shall not hinder the effective operation of adequate relief to all POWs.813 The special
position of the ICRC in this field shall be recognized and respected at all times.814
9.33.2.2 Receipts for Relief Consignments. As soon as relief supplies or material
intended for religious, educational, or recreative purposes are handed over to POWs, or very
shortly afterwards, receipts for each consignment, signed by the POW Representative, shall be
forwarded to the relief society or organization making the shipment.815 At the same time,
receipts for these consignments shall be supplied by the administrative authorities responsible for
guarding the POWs.816
9.34 DEATH OF POWS
This section addresses rules relating to the death of POWs. The GWS and GWS-Sea also
have rules relating to the treatment of the dead; however, the GWS and GWS-Sea provisions are
broader in application, e.g., they address members of the armed forces who have died on the
battlefield and thus were not held as POWs.817
811 GPW art. 125 (“Subject to the measures which the Detaining Powers may consider essential to ensure their
security or to meet any other reasonable need, the representatives of religious organizations, relief societies, or any
other organization assisting prisoners of war, shall receive from the said Powers, for themselves and their duly
accredited agents, all necessary facilities for visiting the prisoners, for distributing relief supplies and material, from
any source, intended for religious, educational or recreative purposes, and for assisting them in organizing their
leisure time within the camps.”).
812 GPW art. 125 (“Such societies or organizations may be constituted in the territory of the Detaining Power or in
any other country, or they may have an international character.”).
813 GPW art. 125 (“The Detaining Power may limit the number of societies and organizations whose delegates are
allowed to carry out their activities in its territory and under its supervision, on condition, however, that such
limitation shall not hinder the effective operation of adequate relief to all prisoners of war.”).
814 GPW art. 125 (“The special position of the International Committee of the Red Cross in this field shall be
recognized and respected at all times.”).
815 GPW art. 125 (“As soon as relief supplies or material intended for the above-mentioned purposes are handed
over to prisoners of war, or very shortly afterwards, receipts for each consignment, signed by the prisoners’
representative, shall be forwarded to the relief society or organization making the shipment.”).
816 GPW art. 125 (“At the same time, receipts for these consignments shall be supplied by the administrative
authorities responsible for guarding the prisoners.”).
817 Refer to § 7.7 (Treatment and Handling of Enemy Military Dead).
622
9.34.1 Transmittal of Wills. The Detaining Power has an obligation to help POWs with
their wills.818 In all cases, after death, POWs’ wills shall be transmitted without delay to the
Protecting Power, and a certified copy shall be sent to the Central POW Information Agency.819
9.34.2 Death Certificates. Death certificates in the form given in Annex IV D to the
GPW, or lists certified by a responsible officer, of all persons who die as POWs shall be
forwarded as rapidly as possible to the National POW Information Bureau established in
accordance with Article 122 of the GPW.820
The death certificates or certified lists shall show:
• particulars of identity, as set out in the third paragraph of Article 17 of the GPW, that are
listed on the POW’s identity card;
o such as, surname; first names; rank; date of birth; and army, regimental, personal,
or serial number or equivalent information;821
• the date and place of death;
• the cause of death;
• the date and place of burial;
• where applicable, the fact of, and reasons for, cremation;822 and
• all particulars necessary to identify the graves or inurnment/columbarium location.823
9.34.3 Burial or Cremation and Inurnment.
9.34.3.1 Medical Examination Before Burial or Cremation. The burial or
cremation of a POW shall be preceded by a medical examination of the body with a view to
confirming death and enabling a report to be made and, where necessary, establishing identity.824
818 Refer to § 9.21.2 (Legal Documents and Assistance).
819 GPW art. 120 (“[I]n all cases, after death, the will shall be transmitted without delay to the Protecting Power; a
certified copy shall be sent to the Central Agency.”).
820 GPW art. 120 (“Death certificates in the form annexed to the present Convention, or lists certified by a
responsible officer, of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the
Prisoner of War Information Bureau established in accordance with Article 122.”).
821 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).
822 Refer to § 9.34.3.3 (Cremation).
823 GPW art. 120 (“The death certificates or certified lists shall show particulars of identity as set out in the third
paragraph of Article 17, and also the date and place of death, the cause of death, the date and place of burial and all
particulars necessary to identity the graves.”).
824 GPW art. 120 (“The burial or cremation of a prisoner of war shall be preceded by a medical examination of the
body with a view to confirming death and enabling a report to be made and, where necessary, establishing
identity.”).
623
For example, if a POW’s identity was not established before death, and the identity cannot be
established, the report should include information that will enable the Power on which the POW
depended to establish his or her identity (e.g., examination of teeth, fingerprints, photograph,
DNA samples).825
9.34.3.2 Burial. The detaining authorities shall ensure that POWs who have died
in captivity are honorably buried, if possible according to the rites of the religion to which they
belonged.826
Wherever possible, deceased POWs who depended on the same Power shall be interred
in the same place.827 Deceased POWs shall be buried in individual graves unless unavoidable
circumstances require the use of collective graves.828 For example, an epidemic or military
operations may require the Detaining Power to undertake collective burials in the interest of
public health because individual graves are not possible due to lack of time and resources.829
9.34.3.3 Cremation. Bodies of POWs may be cremated only for imperative
reasons of hygiene, on account of the religion of the deceased, or in accordance with his or her
express wish to this effect.830 In case of cremation, the fact shall be stated and the reasons given
in the death certificate of the deceased.831
9.34.4 Maintenance and Records of Graves and Ashes. The detaining authorities shall
ensure that the graves of POWs who have died in captivity are respected, suitably maintained,
and marked so as to be found at any time.832
9.34.4.1 Records Held by the Graves Registration Service. In order that graves
may always be found, all particulars of burials and graves shall be recorded with a Graves
825 GPW COMMENTARY 564-65 (“If, however, a prisoner’s identity remains in doubt (for instance, if he has not yet
been questioned as provided in Article 17), the doctor will follow the same procedure as for those who have fallen
on the battlefield: examination of papers found in the clothing of the dead man, questioning of his comrades or, if
that is not possible, other methods must be adopted in order to enable the adverse Party to establish his identity, e.g.
measurement and description of the body and its physical features, examination of the teeth, finger-prints,
photograph, etc..”).
826 GPW art. 120 (“The detaining authorities shall ensure that prisoners of war who have died in captivity are
honourably buried, if possible according to the rites of the religion to which they belonged, and that their graves are
respected, suitably maintained and marked so as to be found at any time.”).
827 GPW art. 120 (“Wherever possible, deceased prisoners of war who depended on the same Power shall be interred
in the same place.”).
828 GPW art. 120 (“Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances
require the use of collective graves.”).
829 Compare § 10.34.3 (Burial or Cremation and Inurnment).
830 GPW art. 120 (“Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of the
deceased or in accordance with his express wish to this effect.”).
831 GPW art. 120 (“In case of cremation, the fact shall be stated and the reasons given in the death certificate of the
deceased.”).
832 GPW art. 120 (“The detaining authorities shall ensure … that their graves are respected, suitably maintained and
marked so as to be found at any time.”).
624
Registration Service established by the Detaining Power.833 Lists of graves and particulars of the
POWs interred in cemeteries and elsewhere shall be transmitted to the Power on which such
POWs depended.834 Responsibility for the care of these graves and for records of any
subsequent moves of the bodies shall rest on the Power controlling the territory, if that Power is a
Party to the GPW.835
The Graves Registration Service shall also identify, record, and respectfully keep the
ashes until they can be disposed of in accordance with the wishes of the home country.836
The GWS also provides for the Graves Registration Service to record graves of persons
belonging to enemy military forces who died but were never held as POWs.837
9.34.5 Inquiries Into Death or Serious Injury of POWs in Certain Cases. Every death or
serious injury of a POW caused or suspected to have been caused by a sentry, another POW, or
any other person, as well as any death the cause of which is unknown, shall be immediately
followed by an official inquiry by the Detaining Power.838 A communication on this subject
shall be sent immediately to the Protecting Power.839
Serious injury, in many cases, may be understood to mean an injury that requires in-
patient treatment in a hospital or infirmary.840
833 GPW art. 120 (“In order that graves may always be found, all particulars of burials and graves shall be recorded
with a Graves Registration Service established by the Detaining Power.”).
834 GPW art. 120 (“Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall
be transmitted to the Power on which such prisoners of war depended.”).
835 GPW art. 120 (“Responsibility for the care of these graves and for records of any subsequent moves of the bodies
shall rest on the Power controlling the territory, if a Party to the present Convention.”).
836 GPW art. 120 (“These provisions shall also apply to the ashes, which shall be kept by the Graves Registration
Service until proper disposal thereof in accordance with the wishes of the home country.”).
837 Refer to § 7.7.5 (Graves Registration Service).
838 GPW art. 121 (“Every death or serious injury of a prisoner of war caused or suspected to have been caused by a
sentry, another prisoner of war, or any other person, as well as any death the cause of which is unknown, shall be
immediately followed by an official enquiry by the Detaining Power.”). For example, FINAL REPORT ON THE
PERSIAN GULF WAR 578 (“Eight EPW died in US custody; all as a result of injuries or sickness contracted prior to
capture. Five died from combat injuries, one from malnutrition/dehydration, and two from unknown causes. Three
US transferred prisoners died in Saudi camps due to wounds received while interned in the Saudi controlled camps.
These deaths were investigated and reported through command channels to the ICRC, as required by Articles 120,
122, and 123, GPW.”); 2004 UK MANUAL ¶8.176, footnote 452 (“In the Falklands conflict, an Argentinean PW was
shot and killed to prevent an attempt to sabotage the captured submarine Santa Fé. The British notified the
Argentinian authorities through the ICRC and established a board of inquiry to establish the facts.”).
839 GPW art. 121 (“A communication on this subject shall be sent immediately to the Protecting Power.”).
840 GPW COMMENTARY 570 (“What is meant by ‘serious injury’? At the 1949 Diplomatic Conference one
delegation suggested that it should be made clear that the term referred to an injury ‘as a result of which the prisoner
requires in-patient treatment in a hospital or infirmary’; this definition was not approved, however, and it might
indeed have made the application of the Article too rigid. An injury may be not at all serious and nevertheless
require treatment in the infirmary. Furthermore, it would have been dangerous to make the opening of an enquiry
depend on whether or not the patient had been admitted to hospital for treatment. The two things must remain quite
separate.”). Compare § 10.34.5 (Inquiries Into Death or Serious Injury of Internees in Certain Cases).
625
Statements shall be taken from witnesses, especially from those who are POWs, and a
report including such statements shall be forwarded to the Protecting Power.841
If the inquiry indicates the guilt of one or more persons, the Detaining Power shall take
all measures for the prosecution of the person or persons responsible.842
9.35 EXCHANGES AND OTHER RELEASE AND REPATRIATION OF POWS DURING HOSTILITIES
9.35.1 Exchange of POWs During Hostilities Through Cartel Agreements. The exchange
of POWs, other than those whose repatriation is required by the GPW, may be effected by
agreement between the belligerents.843 Such agreements have been called cartels.844
The modern practice in this area has been infrequent.845
As a general principle, the exchange of POWs, other than those whose repatriation is
required by the GPW, is an act of convenience to both belligerents.846
The conditions for exchange are generally prescribed in the cartel, and exchanges need
not be on the basis of number-for-number, or rank-for-rank.847
841 GPW art. 121 (“Statements shall be taken from witnesses, especially from those who are prisoners of war, and a
report including such statements shall be forwarded to the Protecting Power.”).
842 GPW art. 121 (“If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all
measures for the prosecution of the person or persons responsible.”).
843 For example, Edward Bates, Attorney General, Construction of a Cartel, Oct. 18, 1862, 10 OPINIONS OF THE
ATTORNEY GENERAL 357 (1868) (“Following your verbal direction, I have carefully examined the cartel for the
exchange of prisoners of war, agreed to by the parties on the 22d of July, 1862, at Haxall’s Landing, on James river,
Virginia, and signed, respectively, by Major General Dix and Major General Hill, as the same is embodied in
‘General Order No. 142’ issued from the War Department, September 25, 1862.”).
844 Refer to § 12.7 (Cartels).
845 For example, 1958 UK MANUAL ¶250 and note 3(b) (“In modern war between civilised States, an exchange of
prisoners will rarely be carried out except by agreement between the governments concerned. … In the First and
Second World War no such exchanges took place. During the latter war some measured agreement was reached
between Germany, the United Kingdom, the U.S.A. and Switzerland, whereby a number of prisoners of war of the
three belligerent States interned in Switzerland were repatriated. No formal agreement was drawn up, and the
negotiations were conducted by the diplomatic representatives of the belligerents direct with the Swiss Government.
Germany insisted on a distinction between interned aircrews and other prisoners of war so that a certain number of
German prisoners of war could be repatriated for every United States airman repatriated. Switzerland as a neutral
State refused to permit repatriation except on a basis agreeable to all the belligerents concerned. Agreement was
reached and repatriation was carried out on the basis of the German demand.”).
846 LIEBER CODE art. 109 (“The exchange of prisoners of war is an act of convenience to both belligerents. If no
general cartel has been concluded, it can not be demanded by either of them. No belligerent is obliged to exchange
prisoners of war.”).
847 1956 FM 27-10 (Change No. 1 1976) ¶197 (“Exchange of prisoners of war, other than those whose repatriation is
required by GPW, 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.”).
626
9.35.2 Release and Repatriation of POWs Not on the Basis of Exchange. Even when not
required by the GPW or done on the basis of an exchange, a Detaining Power may release and
repatriate POWs during hostilities to the Power to which they belong.848
Such release and repatriation of POWs during hostilities may be accomplished between
governments through agreements. In any case, POWs subject to release and repatriation should
be interviewed by representatives of the Protecting Power or the ICRC to ensure that their return
is voluntary.849
9.36 DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES DURING HOSTILITIES
The GPW provides for the direct repatriation or accommodation in neutral countries of
certain wounded and sick POWs during hostilities.
POWs who meet with accidents shall, unless the injury is self-inflicted, have the benefit
of the provisions of the GPW as regards repatriation or accommodation in a neutral country.850
States may also conclude agreements with a view to the direct repatriation or internment
in a neutral country of able-bodied POWs who have undergone a long period of captivity.851
9.36.1 Direct Repatriation of Seriously Wounded, Injured, or Sick POWs. Parties to a
conflict have an obligation to send back to their own country, regardless of number or rank,
certain seriously wounded and seriously sick POWs, after having cared for them until they are fit
enough to travel.852 Before the 1929 GPW, such repatriations occurred in accordance with
specific agreements.853 Under the GPW, such repatriations have been conducted as part of
exchanges or on a unilateral basis.854
848 For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE
VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND
HUMANITARIAN ACTION (1982) 31 (1984) (“The Falkland-Malvinas Islands’ conflict provides a rare example of
prisoners being released even before the end of active hostilities. The British soldiers and the group of civilians
captured by the Argentine forces when they landed on the island of South Georgia and on the Falkland-Malvinas
archipelago were released almost immediately, via Montevideo, without the ICRC’s participation. In May and June,
the ICRC took part in several release operations: … . At the end of the hostilities, i.e. after 14 June 1982, a great
number of prisoners were released in several groups over one month.”).
849 Compare § 9.37.4.2 (POWs Who Resist Repatriation).
850 GPW art. 114 (“Prisoners of war who meet with accidents shall, unless the injury is self-inflicted, have the
benefit of the provisions of this Convention as regards repatriation or accommodation in a neutral country.”).
851 GPW art. 109 (“They may, in addition, conclude agreements with a view to the direct repatriation or internment
in a neutral country of able-bodies prisoners of war who have undergone a long period of captivity.”).
852 GPW art. 109 (“Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound to
send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of
war, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following
Article.”).
853 For example, 1958 UK MANUAL ¶255 note 1 (“In June, 1918, an agreement for the repatriation of prisoners of
war on a large scale was concluded between Lord Cave’s mission and a German military mission. During the
Second World War repatriation of the sick and wounded was carried out by the belligerents in western Europe in
627
No sick or injured POW who is eligible for repatriation under the first paragraph of
Article 109 of the GPW may be repatriated against his or her will during hostilities.855
9.36.1.1 Categories of POWs Eligible for Direct Repatriation. The following
categories of POWs shall be repatriated directly:
• incurably wounded and sick whose mental or physical fitness seems to have been gravely
diminished;
• 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; and
• wounded and sick who have recovered, but whose mental or physical fitness seems to
have been gravely and permanently diminished.856
9.36.2 Accommodation in Neutral Countries. Throughout the duration of hostilities,
parties to the conflict shall endeavor, with the cooperation of the neutral Powers concerned, to
make arrangements for the accommodation in neutral countries of certain sick and wounded
POWs as discussed below.857 This provision of the GPW reflected prior State practice.858
accordance with the provisions of the 1929 Convention. There was no repatriation of sick and wounded between
Germany and the U.S.S.R., or between Japan and the Allies.”).
854 For example, LEVIE, POWS, 409-10 (“Subsequent to 1949 a number of occasions arose warranting the
implementation of the provisions of the first paragraph of Article 109. In February 1953 the United Nations
Command in Korea proposed the exchange of seriously wounded and seriously sick prisoners of war pursuant to that
Article, a proposal which the North Koreans and Chinese Communists accepted. During April and May 1953, some
6,640 North Korean and Chinese prisoners of war who had been found to be seriously wounded or seriously sick
within the meaning of those terms as used in the Convention were exchanged for 684 members of the armed forces
composing the United Nations Command. During the 1956 Middle East conflict, Israel repatriated a number of
seriously wounded Egyptian prisoners of war in the course of the hostilities. During the 1962 Sino-Indian conflict,
the People's Republic of China repatriated a number of seriously wounded or seriously sick Indian prisoners of
war.”).
855 GPW art. 109 (“No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this
Article, may be repatriated against his will during hostilities.”).
856 GPW art. 110 (“The following shall be repatriated direct: (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.”).
857 GPW art. 109 (“Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the
cooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of
the sick and wounded prisoners of war referred to in the second paragraph of the following Article.”).
858 For example, 1958 UK MANUAL ¶255 note 1 (“During the First World War agreements were arrived at between
the Allies and Germany early in 1916 whereby all wounded prisoners of war held by their respective Governments,
as well as those suffering from any one of twenty specified diseases or infirmities, were to be transferred to
Switzerland. Later, agreements were arrived at whereby those who had been in captivity for not less than eighteen
months and who fulfilled certain conditions as regards age and citizenship were to be repatriated or interned in a
neutral country. Some 16,000 British and German prisoners of war were interned in Holland. In March, 1918, it
628
9.36.2.1 Categories of Wounded, Injured, or Sick to Be Accommodated in a
Neutral State. The following categories of POWs may be accommodated in a neutral country:
• wounded, injured, or sick whose recovery may be expected within one year of the date of
the wound or the beginning of the illness, if treatment in a neutral country might increase
the prospects of a more certain and speedy recovery; and
• POWs whose mental or physical health, according to medical opinion, is seriously
threatened by continued captivity, but whose accommodation in a neutral country might
remove such a threat.859
9.36.3 Agreements to Intern POWs in Neutral Territory. The Detaining Power, the
Power on which the POWs depend, and a neutral Power agreed upon by these two Powers, shall
endeavor to conclude agreements that will enable POWs to be interned in the territory of that
neutral Power until the close of hostilities.860 For example, if the Detaining Power were unable
to comply with the minimum standards in the GPW for the treatment of POWs, then it would
seek to negotiate such agreements with the Power on which the POWs depend and a neutral
Power.861
9.36.3.1 Repatriation From a Neutral State. The conditions that POWs
accommodated in a neutral country must fulfill in order to permit their repatriation shall be fixed,
as shall likewise their status, by agreement between the Powers concerned.862 In general, POWs
who have been accommodated in a neutral country, and who belong to the following categories,
should be repatriated:
was stated that 26,000 prisoners of war of the several belligerents were being cared for in Switzerland. Of these,
16,000 were British, French and Belgian, while 10,000 were German; besides these, some 500,000 invalid and sick
prisoners of war of various nationalities had been exchanged and repatriated through Switzerland since the
beginning of the war.”).
859 GPW art. 110 (“The following may be accommodated in a neutral country: (1) Wounded and sick whose
recovery may be expected within one year of the date of the wound or the beginning of the illness, if treatment in a
neutral country might increase the prospects of a more certain and speedy recovery. (2) Prisoners of war whose
mental or physical health, according to medical opinion, is seriously threatened by continued captivity, but whose
accommodation in a neutral country might remove such a threat.”).
860 GPW art. 111 (“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 until the close of hostilities.”).
861 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 365 (“The Committee considered
that it was necessary to insert a new Article between Articles 101 and 102, in order to provide for the possibility of
agreements between the Detaining Power, the Power on which the prisoners of war depend, and a neutral Power,
permitting the internment of prisoners of war on neutral territory. This decision, which arose out of a proposal by
the Canadian Delegation, aims at ensuring a reasonable standard of living for all prisoners of war, in the event of the
Detaining Power being unable, for any reason, to comply with the minimum standards regarding the treatment of
prisoners of war laid down in the Convention.”).
862 GPW art. 110 (“The conditions which prisoners of war accommodated in a neutral country must fulfil in order to
permit their repatriation shall be fixed, as shall likewise their status, by agreement between the Powers concerned.”).
629
• those whose health has deteriorated so far as to fulfill the conditions for direct
repatriation;863 and
• those whose mental or physical powers remain, even after treatment, considerably
impaired.864
9.36.4 Lack of Special Agreements to Determine Cases of Disablement or Sickness
Entailing Direct Repatriation or Accommodation in a Neutral Country. If no special agreements
are concluded between the parties to the conflict concerned to determine the cases of disablement
or sickness entailing direct repatriation or accommodation in a neutral country, such cases shall
be settled in accordance with the principles laid down in the Model Agreement concerning direct
repatriation and accommodation in neutral countries of wounded and sick POWs and in the
Regulations concerning Mixed Medical Commissions annexed to the GPW (GPW Annex II).865
9.36.5 Mixed Medical Commissions. Upon the outbreak of hostilities, Mixed Medical
Commissions shall be appointed to examine sick and wounded POWs, and to make all
appropriate decisions regarding them.866 The appointment, duties, and functioning of these
Commissions shall be in conformity with the provisions of the Regulations annexed to the GPW
(GPW Annex II).867
9.36.5.1 Examination Not Necessary for Manifestly Seriously Injured or Sick
POWs. POWs who, in the opinion of the medical authorities of the Detaining Power, are
manifestly seriously injured or seriously sick may be repatriated without having to be examined
by a Mixed Medical Commission.868
9.36.5.2 POWs Entitled to Present Themselves for Examination Before the
Commission. Besides those who are designated by the medical authorities of the Detaining
Power, wounded or sick POWs belonging to the categories listed below shall be entitled to
863 Refer to § 9.36.1.1 (Categories of POWs Eligible for Direct Repatriation).
864 GPW art. 110 (“In general, prisoners of war who have been accommodated in a neutral country, and who belong
to the following categories, should be repatriated: (1) those whose state of health has deteriorated so as to fulfil the
conditions laid down for direct repatriation; (2) those whose mental or physical powers remain, even after treatment,
considerably impaired.”).
865 GPW art. 110 (“If no special agreements are concluded between the Parties to the conflict concerned, to
determine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country,
such cases shall be settled in accordance with the principles laid down in the Model Agreement concerning direct
repatriation and accommodation in neutral countries of wounded and sick prisoners of war and in the Regulations
concerning Mixed Medical Commissions annexed to the present Convention.”).
866 GPW art. 112 (“Upon the outbreak of hostilities, Mixed Medical Commissions shall be appointed to examine
sick and wounded prisoners of war, and to make all appropriate decisions regarding them.”).
867 GPW art. 112 (“The appointment, duties and functioning of these Commissions shall be in conformity with the
provisions of the Regulations annexed to the present Convention.”).
868 GPW art. 112 (“However, prisoners of war who, in the opinion of the medical authorities of the Detaining Power,
are manifestly seriously injured or seriously sick, may be repatriated without having to be examined by a Mixed
Medical Commission.”).
630
present themselves for examination by the Mixed Medical Commissions provided for in Article
112 of the GPW:
• Wounded and sick proposed by a physician or surgeon who is of the same nationality, or
a national of a party to the conflict allied with the Power on which these POWs depend,
and who exercises his or her functions in the camp;
• Wounded and sick proposed by their POW Representative; and
• Wounded and sick proposed by the Power on which they depend, or by an organization
duly recognized by this Power and giving assistance to the POWs.869
POWs who do not belong to one of the three foregoing categories may nevertheless
present themselves for examination by Mixed Medical Commissions, but shall be examined only
after those belonging to the three foregoing categories.870
9.36.5.3 Observers at the Examination. The physician or surgeon of the same
nationality as the POWs who present themselves for examination by the Mixed Medical
Commission, and the POW Representative of these POWs, shall have permission to be present at
the examination.871
9.36.6 Costs of Repatriation or Transportation to a Neutral Country During Hostilities.
The costs of repatriating POWs or of transporting them to a neutral country are borne, from the
frontiers of the Detaining Power, by the Power on which the POWs depend.872
9.36.7 Employment of Persons Who Have Been Repatriated. No repatriated person may
be employed on active military service.873
9.36.7.1 No Repatriated Person. The rule against employment on active military
service only applies to POWs repatriated by the Detaining Power pursuant to Articles 109 and
869 GPW art. 113 (“Besides those who are designated by the medical authorities of the Detaining Power, wounded or
sick prisoners of war belonging to the categories listed below shall be entitled to present themselves for examination
by the Mixed Medical Commissions provided for in the foregoing Article: (1) Wounded and sick proposed by a
physician or surgeon who is of the same nationality, or a national of a Party to the conflict allied with the Power on
which the said prisoners depend, and who exercises his functions in the camp. (2) Wounded and sick proposed by
their prisoners’ representative.
(3) Wounded and sick proposed by the Power on which they depend, or by an
organization duly recognized by the said Power and giving assistance to the prisoners.”).
870 GPW art. 113 (“Prisoners of war who do not belong to one of the three foregoing categories may nevertheless
present themselves for examination by Mixed Medical Commissions, but shall be examined only after those
belonging to the said categories.”).
871 GPW art. 113 (“The physician or surgeon of the same nationality as the prisoners who present themselves for
examination by the Mixed Medical Commission, likewise the prisoners' representative of the said prisoners, shall
have permission to be present at the examination.”).
872 GPW art. 116 (“The cost of repatriating prisoners of war or of transporting them to a neutral country shall be
borne, from the frontiers of the Detaining Power, by the Power on which the said prisoners depend.”).
873 GPW art. 117 (“No repatriated person may be employed on active military service.”).
631
110 of the GPW.874 For example, able-bodied POWs who are voluntarily repatriated by the
unilateral decision of the Detaining Power during hostilities may be employed on active military
service.875
9.36.7.2 Active Military Service. Not all military service is “active military
service.” Repatriated persons may remain employed on military service.876 What “active
military service” they may engage in after repatriation may be the subject of agreements pursuant
to Articles 109 and 110 of the GPW. Absent such agreements, active military service may be
understood as broadly covering any participation, whether direct or indirect, in armed operations
against the former Detaining Power or its allies, but to exclude medical work or strictly
administrative duties.877
9.37 RELEASE AND REPATRIATION AFTER HOSTILITIES
POWs shall be released and repatriated without delay after the cessation of active
hostilities.878
874 See 1958 UK MANUAL ¶262 note 1 (“This article repeats the provisions of the 1929 Convention, Art. 74, which
was considered to apply only to prisoners who were repatriated sick or wounded and not to exchanges by
agreements made outside the Convention. This would also seem to be the proper scope of Art. 117.”); GPW
COMMENTARY 538 (“The Article covers prisoners of war repatriated by the Detaining Power pursuant to Articles
109 and 110, that is to say seriously wounded or seriously sick prisoners of war whom the Detaining Power is
required to repatriate regardless of number or rank (Article 109, paragraph 1), prisoners of war accommodated in a
neutral country and subsequently repatriated following an agreement between the Powers concerned (Article 110,
paragraph 2), and lastly, able-bodied prisoners of war who have undergone a long period of captivity and are
repatriated by agreement between the Powers concerned (Article 109, paragraph 2).”).
875 2004 UK MANUAL ¶8.155.1 footnote 417 (“Despite its apparent general application, Art 117 is taken to apply
only to PW repatriated under the special rules laid down in Arts 109-110 (see Pictet, Commentary, vol III, 538). It
does not apply to able-bodied PW who are voluntarily repatriated by the unilateral decision of the detaining power
during hostilities. The UK sent members of the Royal Marine garrison of the Falkland Islands, who had been
captured and then repatriated by Argentina, back into combat with the Task Force that re-took the Islands in 1982.”).
876 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 573 (“Articles 106 (Costs) and
107 (Activity after repatriation) reproduce the corresponding provisions of the 1929 Convention. It may be
mentioned, however, that the word ‘active’ in the expression ‘active military service’ in Article 107 gave rise to long
discussion. Some Delegations wished to see it deleted; others were in favour of keeping it because it is usual for
many repatriated prisoners of war to depend on the administrative service of armies. Finally, the proposal to delete
the word was rejected by the Committee by a small majority.”).
877 See GPW COMMENTARY 539 (“In interpreting this phrase, the spirit of the Convention rather than national
legislation should serve as a guide. It is, of course, difficult to give a precise definition, but the expression may be
considered as broadly covering any participation, whether direct or indirect, in armed operations against the former
Detaining Power or its allies. In effect, Article 117 forbids any repatriated person to serve in units which form part
of the armed forces but does not prevent their enrolment in unarmed military units engaged solely in auxiliary,
complementary or similar work. In concluding agreements pursuant to Articles 109 and 110, the Parties concerned
are at liberty to stipulate what is meant by ‘active’ service in the particular case concerned.”); 1956 FM 27-10
(Change No. 1 1976) ¶196b (“Although it is not possible to frame any comprehensive rule concerning what
constitutes ‘active military service,’ Article 117 does not preclude a repatriated person from performing medical or
strictly administrative duties but does foreclose service in combat against the power formerly detaining the
individual or an ally thereof.”).
878 GPW art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active
hostilities.”).
632
9.37.1 Agreements on POW Release and Repatriation. The release and repatriation of
POWs generally have been addressed by peace treaties or other agreements among belligerents
at the end of the war.879 For example, agreements may address the apportionment of costs or
commissions to search for dispersed POWs.880
In the absence of stipulations to the above effect in any agreement concluded between the
parties to the conflict with a view to the cessation of hostilities, or failing any such agreement,
each of the Detaining Powers shall itself establish and execute without delay a plan of
repatriation in conformity with the principle laid down in paragraph 1 of the Article 118 of the
GPW.881 Thus, once active hostilities have ceased, the Detaining Powers must release and
repatriate POWs, even if there is no specific agreement regarding the release and repatriation of
POWs, or even if a formal peace agreement ending the war has not yet been concluded.882
During the process of releasing and repatriating POWs, 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.883 For example, it would not be reasonable to
879 For example, FINAL REPORT ON THE PERSIAN GULF WAR 586 (“In March [of 1991], Coalition forces and Iraq
signed a memorandum of understanding detailing administrative procedures for the repatriation of the remaining
EPW, under ICRC auspices. On 4 March, Iraq released the first group of 10 Coalition POWs, six of whom were
American. On 6 March, the US reciprocated by releasing 294 EPWs to the ICRC for repatriation to Iraq.”);
Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme
Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other
hand, Concerning a Military Armistice in Korea art. 51, Jul. 27, 1953, 29 DEPARTMENT OF STATE BULLETIN 132,
137 (Aug. 3, 1953) (“The release and repatriation of all prisoners of war held in the custody of each side at the time
this armistice agreement becomes effective shall be effected in conformity with the following provisions agreed
upon by both sides prior to the signing of this Armistice Agreement.”).
880 Refer to § 9.37.6 (Costs of Repatriation at the Close of Hostilities); § 9.37.5 (Commissions to Search for
Dispersed POWs).
881 GPW art. 118 (“In the absence of stipulations to the above effect in any agreement concluded between the Parties
to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers
shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in
the foregoing paragraph.”).
882 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 613 (§275) (“That provision [of Article 118 of the GPW]
was inspired by the experience of the situation as it developed after the Second World War when, following upon
the unconditional surrender of Italy, Germany, and Japan, no treaty of peace was concluded between the principal
belligerents for some years and when public opinion in many countries viewed with disapproval the continued
detention of prisoners of war at a time when there was no longer any reasonable possibility that hostilities might be
resumed.”).
883 Eritrea Ethiopia Claims Commission, Partial Award: Prisoners of War, Eritrea’s Claim 17, ¶149 (Jul. 1, 2003)
(“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 Ethiopia 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.”).
633
expect that a State would release all of the POWs it holds without assurance that its own
personnel held by the enemy will also be released.884
9.37.2 Cessation of Active Hostilities. According to Lauterpacht, the phrase “cessation
of active hostilities” probably does not refer to a situation that leaves open the possibility of a
resumption of struggle, but to a situation in which it is out of the question for hostilities to
resume.885 It is the complete end of the fighting with clearly no probability of resumption of
hostilities in the near future.886 The cessation of active hostilities may also be understood as
describing the point in time when belligerents feel sufficiently at ease about the future that they
are willing to release and repatriate all POWs.887 The cessation of active hostilities may result
from a capitulation or agreement, but such an agreement is not required if there is no prospect
that hostilities will resume.
9.37.3 Without Delay. The GPW provides that release and repatriation take place
without delay. This requirement, however, does not affect the practical arrangements that must
be made to ensure that repatriation takes place in a safe and orderly manner in accordance with
the requirements of the GPW.888
884 Eritrea Ethiopia Claims Commission, Partial Award: Prisoners of War, Eritrea’s Claim 17, ¶148 (Jul. 1, 2003)
(“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 it holds without assurance that its own personnel held by its enemy will also be
released, and it is unreasonable to expect otherwise. At the hearing, distinguished counsel for Eritrea suggested that
the obligation to repatriate should be seen as unconditional but acknowledged the difficulty of the question and the
contrary arguments under general law.”).
885 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 613 (§275) (“Probably the phrase ‘cessation of active
hostilities’ in the sense of Article 118 [of the GPW] refers not to suspension of hostilities in pursuance of an
ordinary armistice which leaves open the possibility of a resumption of the struggle, but to a cessation of hostilities
as the result of total surrender or of such circumstances or conditions of an armistice as render it out of the question
for the defeated party to resume hostilities.”).
886 CHRISTIANE SHIELDS DELESSERT, 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 71-72 (1977) (“Is the phrase ‘end of active hostilities’ to be interpreted as
referring to situations where it is clear that active hostilities have definitely stopped and will not be resumed, for
example, as the result of surrender, or can it be interpreted in a more flexible way so as to take account of situations
where the pattern has been an alternation of military operations and peaceful periods? If, once again, one refers to
the Second World War which directly influenced the specific wording of Article 118, it would seem that what was
envisaged was a situation of complete end of the war, if not in a legal sense, at least in a material one with clearly no
probability of resumption of hostilities in a near future. The end of war for the purpose of the application of Article
118, meant the end of military operations. In the light of the history of Article 118, this would seem to be the proper
interpretation to be given to it.”).
887 Edward R. Cummings, Acting Assistant Legal Adviser for African Affairs, Memorandum of Law to Chester A.
Crocker, Assistant Secretary of State for African Affairs, Sept. 21, 1984, III CUMULATIVE DIGEST OF UNITED STATES
PRACTICE IN INTERNATIONAL LAW 1981-1988, 3471, 3474 (Under the GPW, “the ‘cessation’ concept describes the
point in time that belligerents feel sufficiently … [at ease] about the future that they are willing to release all
prisoners of war and civilian internees.”) (alterations to the quote in original).
888 GPW COMMENTARY 550 (“The text as finally adopted states that the repatriation must take place ‘without delay
after the cessation of active hostilities’. This requirement does not, of course, affect the practical arrangements
634
For example, the availability of manpower and transportation to conduct the repatriation,
continuing military operations in other theaters, or the ability of countries to receive POWs in
large numbers, may all increase the time required to conduct the release and repatriation.889 The
security situation in the country in which POWs are to be released may also be an important
factor.890 In addition, time may be needed based on the medical condition of the POWs or in
order to conduct interviews to ensure that repatriation is voluntary.
9.37.4 POWs Whom the Detaining Power Is Not Required to Repatriate.
9.37.4.1 Persons Illegally Enrolled in Enemy Forces and Deserters. The
obligation to repatriate does not apply to persons who have been illegally enrolled in the armed
forces of the enemy (for example, the inhabitants of occupied territories who have been forced to
enlist in the military of the Occupying Power), or to persons who have deserted to the other
side.891
9.37.4.2 POWs Who Resist Repatriation. The Detaining Power is not required to
repatriate forcibly POWs who do not wish to be repatriated.
Although the GPW provides that POWs may not renounce the rights secured to them by
the GPW,892 this principle is not violated by the POW rejecting repatriation and requesting
asylum, if it is established in a satisfactory manner that the POW is making an informed,
which must be made so that repatriation may take place in conditions consistent with humanitarian rules and the
requirements of the Convention, as defined in Article 119, paragraph 1, below, which refers to Articles 46 to 48
(relating to transfer).”).
889 For example, FINAL REPORT ON THE PERSIAN GULF WAR 586 (“After the cease fire, expeditious repatriation of
EPWs was a high priority and Coalition officials promptly began talks with Iraqi representatives on EPW
exchanges. Iraq said it was anxious to return Coalition POWs, but was unwilling to accept large numbers of EPWs
in return, saying it was not prepared to receive them.”); Martin Tollefson, Enemy Prisoners of War, 32 IOWA LAW
REVIEW 51, 74 (1946) (“Because of manpower and transportation shortages, because the war was still being fought
against Japan, and because of the inability on the part of the European and Mediterranean theaters to receive
prisoners of war from the United States in large numbers, the prisoner-of-war repatriation program did not assume
large proportions until after V-J Day.”).
890 For example, EARL F. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY, 1944-1946, 293 (1975)
(“SHAEF could not authorize a ‘blanket release’ of German forces, Eisenhower replied, because their discharge had
to be ‘strictly controlled in order to prevent widespread disorder, or other conditions which military government
agencies will be unable to cope with’; the release of the categories already approved (see below) would ‘tax the
administrative machinery for a considerable time
Until such time as indigenous resources can meet the needs,’
he concluded, 12th Army Group could use imported military government food for the disarmed forces.”) (ellipsis in
original).
891 GPW COMMENTARY 549 (“Enemy military personnel who have been illegally enrolled in the armed forces
cannot be treated on the same basis as other prisoners of war, nor can those who go over to the other side. Although
many countries, for instance Great Britain, treated the latter as prisoners of war, this does not mean that they are
entitled to that status. The Detaining Power is under no obligation to repatriate persons who have deserted to the
other side. Similarly, their names are not usually notified to their country of origin. It should, however, be noted
that the status of a deserter who has gone over to the other side must be determined by the way in which he
surrendered or by his statements during initial questioning. A prisoner of war does not become a deserter merely
because he makes a statement in the course of captivity.”).
892 Refer to § 9.3.7 (Non-Renunciation of Rights Secured by the GPW).
635
voluntary, and personal choice.893 Thus, the GPW does not itself change accepted principles of
international law under which asylum is applicable to POWs, and the Detaining Power may, but
is not required to, grant asylum.894 The policy of the United States has been not to conduct
forcible repatriation of POWs and, in particular, not to transfer any person when torture is more
likely than not to result.895
The voluntariness of POWs’ decisions may be established through interviews by an
impartial intermediary, such as a neutral State or the ICRC.896
9.37.4.3 POWs Undergoing Criminal Proceedings for an Indictable Offense. The
repatriation of a POW may not be delayed on the basis that the POW has not undergone
disciplinary proceedings or punishment.897
893 LEVIE, POWS 93 (“The question of the extent of the coverage of Article 7 was directly raised during the armistice
negotiations in Korea in connection with the problem of repatriation under Article 118. Is it a violation of Article 7
to permit a prisoner of war to reject repatriation and to seek asylum either in the territory of the Detaining Power, or
elsewhere, when hostilities cease? The decision ultimately reached in that controversy, one that had the support of a
large majority of the United Nations General Assembly as then composed, was that Article 7 was not violated if it
could be established in a satisfactory manner that the prisoner of war was actually making an informed, voluntary,
and personal choice.”).
894 SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the
Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 5 (Jun. 27, 1955)
(“Members of the committee, exploring the problem of involuntary repatriation with the executive branch, were
informed at the hearing that the United States official position continues to be that maintained in Korea and
overwhelmingly supported in the resolution of the General Assembly, and that article 118 does nothing to change
accepted principles of international law under which asylum is applicable to prisoners of war. The committee
unqualifiedly concurs. It finds nothing in the Geneva conventions of 1949 which will compel the United States
forcibly to repatriate prisoners of war who fear political persecution, personal injury, or death should they return to
their homeland. That article, being intended for the benefit and the well-being of prisoners, will permit the United
States to continue the policy of nonforceable repatriation, while at the same time leaving it free, where necessary, to
refuse requests for asylum. The interpretation which has thus prevailed gives due weight to the word ‘release’ in
article 118, is faithful to precedent and legislative history, and is fully consistent with the great humanitarian
purposes which underlie all four of the conventions.”).
895 Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).
896 For example, FINAL REPORT ON THE PERSIAN GULF WAR 587 (“By international convention, no EPW was
forcibly repatriated. Coalition forces identified to the ICRC Iraqi EPW not desiring repatriation. When an Iraqi
reached the exchange site, the ICRC reconfirmed willingness to be repatriated. Those who indicated they no longer
desired to return to Iraq were returned to the custody of Saudi Arabia. … On 2 May 1991, the last EPW in US
custody was transferred to the Saudi Arabian government. The Coalition repatriation began on 6 March and ended
on 22 August. A total of 13,418 EPWs refused repatriation (13,227 remain at Camp Al-Artawiyah and 191 officer
EPWs remain at Camp Tabuk).”); R. R. Baxter, Asylum to Prisoners of War, 30 BRITISH YEAR BOOK OF
INTERNATIONAL LAW 489, 489-90 (1953) (“After hostilities had ended in Korea and those prisoners of war who
desired to be repatriated had been restored to the forces of which they were members, there remained over 22,000
prisoners of war in the custody of the United Nations Command and several hundreds in the hands of the Command
of the Korean People’s Army and Chinese People’s Volunteers who had not elected to return. In accordance with
the Resolution of the United Nations General Assembly of 3 December 1952, the Terms of Reference for the
Neutral Nations Repatriation Commission annexed to the Korean Armistice Agreement provided that prisoners who
had not ‘exercised their right to be repatriated’ should be placed in the custody of a Neutral Nations Repatriation
Commission (N.N.R.C.), composed of members appointed by Sweden, Switzerland, Poland, Czechoslovakia, and
India.
… Commissions with neutral representation had in a number of previous instances been employed to
supervise the repatriation of prisoners.”).
636
POWs against whom criminal proceedings for an indictable offense are pending may be
detained until the end of such proceedings, and, if necessary, until the completion of the
punishment.898 The same shall apply to POWs already convicted for an indictable offense.899
In fact, in most instances, as the Supreme Court has observed, the practical administration
of the system of military justice under the law of war would fail if such authority were thought to
end with the cessation of hostilities because only after their cessation could the greater number of
offenders and the principal ones be apprehended and tried.900
Parties to the conflict shall communicate to each other the names of any POWs who are
detained until the end of the proceedings or until punishment has been completed.901
The GPW does not prohibit the extradition of POWs to other Parties to the GPW to face
criminal charges.902
POWs held after the cessation of active hostilities on this basis, even if they have been
convicted, remain entitled to the benefits of the GPW until they are released and repatriated.903
9.37.5 Commissions to Search for Dispersed POWs. By agreement between the parties
to the conflict, commissions shall be established for the purpose of searching for dispersed
POWs and of ensuring their repatriation with the least possible delay.904
897 Compare § 9.27.7 (Disciplinary Punishment and Repatriation or Accommodation in a Neutral Country).
898 GPW art. 119 (“Prisoners 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.”).
899 GPW art. 119 (“The same shall apply to prisoners of war already convicted for an indictable offence.”).
900 See In re Yamashita, 327 U.S. 1, 12 (1946) (“We cannot say that there is no authority to convene a commission
after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace
has been officially recognized by treaty or proclamation of the political branch of the Government. In fact, in most
instances the practical administration of the system of military justice under the law of war would fail if such
authority were thought to end with the cessation of hostilities. For only after their cessation could the greater
number of offenders and the principal ones be apprehended and subjected to trial.”).
901 GPW art. 119 (“Parties to the conflict shall communicate to each other the names of any prisoners of war who are
detained until the end of the proceedings or until punishment has been completed.”).
902 See Noriega v. Pastrana, 564 F.3d 1290, 1298 (11th Cir. Fla. 2009) (“As a result of Noriega’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.”).
903 Refer to § 9.3.6 (Commencement and Duration of POW Status and Treatment).
904 GPW art. 119 (“By agreement between the Parties to the conflict, commissions shall be established for the
purpose of searching for dispersed prisoners of war and of assuring their repatriation with the least possible delay.”).
637
9.37.6 Costs of Repatriation at the Close of Hostilities. The costs of repatriation of
POWs shall in all cases be equitably apportioned between the Detaining Power and the Power on
which the POWs depend.905
If the two Powers are contiguous, then the Power on which the POWs depend shall bear
the costs of repatriation from the frontiers of the Detaining Power.906
If the two Powers are not contiguous, the Detaining Power shall bear the costs of
transport of POWs over its own territory as far as its frontier or its port of embarkation nearest to
the territory of the Power on which the POWs depend.907 The Parties concerned shall agree
between themselves on the equitable apportionment of the remaining costs of the repatriation,
but the conclusion of such agreement shall in no circumstances justify any delay in the
repatriation of the POWs.908
9.38 PROCEDURE ON RELEASE AND REPATRIATION AFTER HOSTILITIES
9.38.1 Conditions During Release and Repatriation. Repatriation shall be effected in
conditions similar to those laid down in Articles 46 through 48 of the GPW for the transfer of
POWs, having regard to the provisions of Article 118 of the GPW and to those of Article 119 of
the GPW.909
9.38.1.1 Conditions of Movement. The conditions of repatriation must be humane
and not less favorable than those under which the forces of the Detaining Power are
transferred.910 Adequate precautions must be taken for the health and safety of POWs, including
provision of sufficient food, drinking water, clothing, shelter, and medical attention.911
9.38.2 Notification of Repatriation Plan and Departure. POWs should be informed of the
plan for their repatriation.912 For example, this may take place through notices posted in the
camps and provided to the POW Representatives, or a public announcement.913
905 GPW art. 118 (“The costs of repatriation of prisoners of war shall in all cases be equitably apportioned between
the Detaining Power and the Power on which the prisoners depend.”).
906 GPW art. 118 (“If the two Powers are continguous, the Power on which the prisoners of war depend shall bear
the costs of repatriation from the frontiers of the Detaining Power.”).
907 GPW art. 118 (“If the two Powers are not contiguous, the Detaining Power shall bear the costs of transport of
prisoners of war over its own territory as far as its frontier or its port of embarkation nearest to the territory of the
Power on which the prisoners of war depend.”).
908 GPW art. 118 (“The parties concerned shall agree between themselves as to the equitable apportionment of the
remaining costs of the repatriation. The conclusion of this agreement shall in no circumstances justify any delay in
the repatriation of the prisoners of war.”).
909 GPW art. 119 (“Repatriation shall be effected in conditions similar to those laid down in Articles 46 to 48
inclusive of the present Convention for the transfer of prisoners of war, having regard to the provisions of Article
118 and to those of the following paragraphs.”).
910 Refer to § 9.29.2 (Conditions for the Transfer of POWs).
911 Refer to § 9.29.2 (Conditions for the Transfer of POWs).
912 GPW art. 118 (“In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.”).
638
POWs who are to be moved must be identified and listed before departure, and both the
National POW Information Bureau and the POWs themselves officially notified in advance, so
that they can pack their baggage and inform their next of kin.914
9.38.3 Personal Property. On repatriation, any articles of value impounded from POWs
under Article 18 of the GPW,915 and any foreign currency that has not been converted into the
currency of the Detaining Power, shall be restored to them.916 Articles of value and foreign
currency that, for any reason whatever, are not restored to POWs on repatriation, shall be sent to
the National POW Information Bureau set up under Article 122 of the GPW.917
POWs shall be allowed to take with them their personal effects and any correspondence
and parcels that have arrived for them.918 The weight of such baggage may be limited, if the
conditions of repatriation so require, to what each POW can reasonably carry.919 Each POW
shall in all cases be authorized to carry at least 25 kilograms (approximately 55 pounds).920 The
other personal effects of the repatriated POW shall be left in the charge of the Detaining Power,
which shall have them forwarded to him or her as soon as it has concluded an agreement to this
effect, regulating the conditions of transport and the payment of the costs involved, with the
Power on which the POW depends.921
9.38.4 POW Accounts and Financial Matters. POW accounts should be addressed in
accordance with Article 66 of the GPW.922
In addition, the Powers concerned should make arrangements concerning advances of
pay, compensation payments, and remittances.923
913 Refer to § 9.22.5 (Posting of Convention and Camp Orders).
914 Refer to § 9.29.3.1 (Notification of Transfer).
915 Refer to § 9.7.4 (Money and Articles of Value).
916 GPW art. 119 (“On repatriation, any articles of value impounded from prisoners of war under Article 18, and any
foreign currency which has not been converted into the currency of the Detaining Power, shall be restored to
them.”).
917 GPW art. 119 (“Articles of value and foreign currency which, for any reason whatever, are not restored to
prisoners of war on repatriation, shall be despatched to the Information Bureau set up under Article 122.”).
918 GPW art. 119 (“Prisoners of war shall be allowed to take with them their personal effects, and any
correspondence and parcels which have arrived for them.”).
919 GPW art. 119 (“The weight of such baggage may be limited, if the conditions of repatriation so require, to what
each prisoner can reasonably carry.”).
920 GPW art. 119 (“Each prisoner shall in all cases be authorized to carry at least twenty-five kilograms.”).
921 GPW art. 119 (“The other personal effects of the repatriated prisoner shall be left in the charge of the Detaining
Power which shall have them forwarded to him as soon as it has concluded an agreement to this effect, regulating
the conditions of transport and the payment of the costs involved, with the Power on which the prisoner depends.”).
922 Refer to § 9.18.6.4 (Statements of Credit Balance on Termination of Captivity).
923 GPW art. 67 (“Such advances of pay, as well as all payments made by the said Power under Article 63, third
paragraph, and Article 68, shall form the subject of arrangements between the Powers concerned, at the close of
hostilities.”).
639
9.38.5 Canteen Profits. The profits of the canteen should be disposed of in accordance
with Article 28 of the GPW.924
9.39 CODE OF CONDUCT FOR U.S. ARMED FORCES
The Code of Conduct is a moral code designed to provide U.S. military personnel with a
standard of conduct.925 Although designed for situations in which members of the U.S. armed
forces may be held as POWs, the spirit and intent of the Code apply to service members
subjected to other types of hostile detention, such as hostage scenarios.926
9.39.1 Text of the Code of Conduct and Discussion. The Code of Conduct was written to
be consistent with the requirements imposed by the GPW. Violations of the Code of Conduct
are not criminally punishable as such, but conduct that violates the Code of Conduct may also
violate the Uniform Code of Military Justice.
9.39.1.1 Code of Conduct - Article I.
I am an American, fighting in the forces which guard my country and our way of
life. I am prepared to give my life in their defense.
9.39.1.2 Code of Conduct - Article II.
I will never surrender of my own free will. If in command, I will never surrender
the members of my command while they still have the means to resist.
Under Article II of the Code of Conduct, the responsibility and authority of a commander
never extends to the surrender of command, even if isolated, cut off, or surrounded, while the
unit has a reasonable power to resist, break out, or evade to rejoin friendly forces.927
Under the Uniform Code of Military Justice, a U.S. commander who shamefully
surrenders to the enemy any command or place that is his or her duty to defend is subject to
924 Refer to § 9.17.3.2 (Disposition of Canteen Profits Upon Camp Closure).
925 See Executive Order 10631, Code of Conduct for Members of the Armed Forces of the United States, 20
FEDERAL REGISTER 6057 (Aug. 17, 1955), as amended by Executive Order 12017, Amending the Code of Conduct
for Members of the Armed Forces of the United States, 42 FEDERAL REGISTER 57941 (Nov. 3, 1977), and as
amended by Executive Order 12633, Amending the Code of Conduct for Members of the Armed Forces of the United
States, 53 FEDERAL REGISTER 10355 (Mar. 28, 1988).
926 See, e.g., DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶E2.1.1 (Jan. 8, 2001)
(“Although designed for evasion and prisoner of war (POW) situations, the spirit and intent of the CoC are
applicable to Service members subjected to other hostile detention, and such Service members should conduct
themselves consistently in a manner that avoids discrediting themselves and their country.”); Joint Chiefs of Staff
Memorandum 290-81, Code of Military in Hostage Situations (Aug. 5, 1981) (“a. All U.S. military personnel are
subject to being taken hostage under circumstances short of war. In such situations, the conduct of military
personnel will be guided by the Code of Conduct.”).
927 DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶ E2.2.2.1.2 (Jan. 8, 2001) (“The
responsibility and authority of a commander never extends to the surrender of command, even if isolated, cut off, or
surrounded, while the unit has a reasonable power to resist, break out, or evade to rejoin friendly forces.”).
640
punishment.928 In addition, any person subject to the Uniform Code of Military Justice who
compels or attempts to compel a commander of any place, vessel, aircraft, or other military
property, or of any body of members of the armed forces, to give it up to an enemy or to abandon
it, or who strikes the colors or flag to an enemy without proper authority, is subject to
punishment.929
Article II of the Code of Conduct is consistent with the authority of commanders under
the law of war to conclude capitulation agreements for the surrender of forces under their
command.930
9.39.1.3 Code of Conduct - Article III.
If I am captured I will continue to resist by all means available. I will make every
effort to escape and to aid others to escape. I will accept neither parole nor
special favors from the enemy.
By limiting the punishment of POWs with respect to an unsuccessful escape, the GPW
acknowledges that POWs may have a duty to seek to escape, as reflected in Article III of the
Code of Conduct.931
Although the GPW contemplates that POWs may accept parole,932 U.S. policy, as
reflected in Article III of the Code of Conduct, prohibits accepting parole.
9.39.1.4 Code of Conduct - Article IV.
If I become a prisoner of war, I will keep faith with my fellow prisoners. I will
give no information [n]or take part in any action which might be harmful to my
comrades. If I am senior, I will take command. If not, I will obey the lawful
orders of those appointed over me and will back them up in every way.
Article IV of the Code of Conduct exemplifies the spirit of comradeship that many POWs
have exhibited in past conflicts.933 It reflects a higher standard of conduct than that punishable
928 10 U.S.C. § 899 (“Any member of the armed forces who before or in the presence of the enemy— … (2)
shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty
to defend; … shall be punished by death or such other punishment as a court-martial may direct.”).
929 10 U.S.C. § 900 (“Any person subject to this chapter who compels or attempts to compel the commander of any
place, vessel, aircraft, or other military property, or of any body of members of the armed forces, to give it up to an
enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished by
death or such other punishment as a court-martial may direct.”).
930 Refer to § 12.8.2 (Authority of Commanders to Conclude Capitulation Agreements).
931 Refer to § 9.25 (POW Escapes).
932 Refer to § 9.11.2 (Parole of POWs).
933 For example, The Secretary of Defense’s Advisory Committee on Prisoners of War, POW The Fight Continues
After The Battle: The Report of the Secretary of Defense’s Advisory Committee on Prisoners of War, 14 (Aug.
1955) (“Many servicemen exhibited pride in themselves and their units. This was particularly pronounced where
they had belonged to the same unit for years. They stood by one another like that ‘band of brothers’ inspired by
Nelson. If a soldier were sick, his fellow soldiers took care of him. They washed his clothes, bathed him, and
641
under Article 105 of the Uniform Code of Military Justice regarding misconduct towards fellow
POWs.934 The senior POW in command is not necessarily the POW Representative.935 In POW
camps containing only enlisted personnel, the POW Representative is elected.936
9.39.1.5 Code of Conduct - Article V.
When questioned, should I become a prisoner of war, I am required to give name,
rank, service number and date of birth. I will evade answering further questions
to the utmost of my ability. I will make no oral or written statements disloyal to
my country and its allies or harmful to their cause.
Article V of the Code of Conduct reflects the obligations of the POW to provide
accountability information.937 The Detaining Power may have further obligations to collect
additional accountability information relating to POWs.938
Article V of the Code of Conduct also underscores one aspect of Article 104 of the
Uniform Code of Military Justice regarding aiding the enemy by specifically forbidding oral or
written statements disloyal to the United States or harmful to its cause.939
9.39.1.6 Code of Conduct - Article VI.
I will never forget that I am an American, fighting for freedom, responsible for
my actions, and dedicated to the principles which made my country free. I will
trust in my God and in the United States of America.
pulled him through. They exhibited true fraternal spirit comradeship, military pride. These soldiers did not let each
other down. Nor could the Korean Reds win much cooperation from them.”).
934 See DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 99-100 (Oct. 23, 1962) (“The
provisions of the Code of Conduct are not as restrictive in their application as in Article 105(1), U.C.M.J. There is
no requirement that the act be motivated by the desire to secure favorable treatment or that an actual detriment be
inflicted on the other PWs as a direct result of the act.”).
935 See DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶E2.2.4.1.6 (Jan. 8, 2001)
(“U.S. policy on POW camp organization requires that the senior military POW assume command. The Geneva
Convention on POWs (reference (g)) provides additional guidance to the effect that in POW camps containing only
enlisted personnel, a prisoners’ representative shall be elected. POWs should understand that such an elected
representative is regarded by U.S. policy as only a spokesperson for the senior POW. The prisoners’ representative
does not have command, unless the POWs elect the senior POW to be the prisoners’ representative. The senior
POW shall assume and retain actual command, covertly if necessary.”).
936 Refer to § 9.24.2.3 (Places Without Officer POWs).
937 Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).
938 Refer to § 9.31.1.1 (Difference Between the Accountability Information the Detaining Power Must Seek and the
Information the POW Must Provide).
939 DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 99 (Oct. 23, 1962) (“The Uniform Code
continues to apply to an American serviceman after his capture by the enemy. A prisoner of war is often in a better
position then before capture to ‘aid the enemy.’ The Code of Conduct underscores one aspect of Article 104
U.C.M.J. by specifically forbidding oral or written statements disloyal to the U.S. or harmful to its cause. Such
statements may materially aid the enemy in its propaganda efforts.”).
642
9.39.2 Background on the U.S. Code of Conduct. Although misconduct by POWs was
not unique to the Korean War, the Code of Conduct was introduced after public awareness of
instances of misconduct by U.S. servicemembers during their captivity as POWs during the
Korean War. The Secretary of Defense established a committee that recommended that a unified
and purposeful standard of conduct for Americans who become POWs be promulgated.940
President Dwight D. Eisenhower promulgated the Code of Conduct on August 17, 1955.941 A
review of the Code of Conduct after the return of U.S. POWs from the Vietnam War confirmed
the value of the Code of Conduct.942
940 The Secretary of Defense’s Advisory Committee on Prisoners of War, POW The Fight Continues After The
Battle: The Report of the Secretary of Defense's Advisory Committee on Prisoners of War, vii (Aug. 1955) (“[T]he
Committee unanimously agreed that Americans require a unified and purposeful standard of conduct for our
prisoners of war backed up by a first class training program. This position is also wholeheartedly supported by the
concensus [sic] of opinion of all those who consulted with the Committee. From no one did we receive stronger
recommendations on this point than from the former American prisoners of war in Korea-officers and enlisted
men.”).
941 Executive Order 10631, Code of Conduct for Members of the Armed Forces of the United States, 20 FEDERAL
REGISTER 163 (Aug. 20, 1955).
942 DoD, Report of the Defense Review Committee for the Code of Conduct 6-7 (1976) (“There was consistent
agreement throughout Committee proceedings that the Code of Conduct has served as a useful guide to the
American Serviceman through a wide spectrum of circumstances during normal service, on the battlefield and in
captivity. It represents the high standard of behavior which is expected of the individual and which he may expect
of all other members of the Armed Forces. There was never any question that the Code is needed, and some POW
returnees attributed their very survival to the inspiration provided by the Code of Conduct.”).
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X - Civilians in the Hands of a Party to the Conflict
Chapter Contents
10.1 Introduction
10.2 National-Level GC Implementation Measures
10.3 Protected Person Status
10.4 Derogation for Security Reasons
10.5 Humane Treatment and Other Basic Protections for Protected Persons
10.6 Measures of Control and Security
10.7 General Treatment of Protected Persons in a Belligerent’s Home Territory
10.8 Expulsion From Areas Within a Belligerent’s Home Territory and Departure
and Transfers of Protected Persons From a Belligerent’s Home Territory
10.9 Internment
10.10 Segregation of Internees
10.11 Safety, Hygiene, and Living Conditions in Places of Internment
10.12 Canteens for Internees
10.13 Food, Water, Tobacco, and Clothing for Internees
10.14 Medical Attention for Internees
10.15 Religious Exercise by Internees
10.16 Intellectual, Physical, and Recreational Activities
10.17 Internee Labor
10.18 Internees’ Articles of Personal Use
10.19 Financial Resources of Internees
10.20 Administration of Places of Internment and Discipline
10.21 Internee Petitions, Complaints, and Reports About Conditions of
Internment
10.22 Internee Committees
10.23 Internee Correspondence and Relief Shipments
10.24 Private Legal Matters of Internees
10.25 Internees and Visits of Family and Friends
10.26 Internee Escapes
10.27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions
Regarding Internees
10.28 Disciplinary Proceedings and Punishment
10.29 Judicial Proceedings Regarding Protected Persons in Occupied Territory or
Internees in a Belligerent’s Home Territory
10.30 Transfers of Internees From the Place of Internment
10.31 National Accounting for Protected Persons in Its Power
10.32 Role of the Protecting Power in the GC
10.33 Access to Internees by Protecting Powers, ICRC, and Other Relief
Organizations
10.34 Death of Internees
10.35 Release, Return, Repatriation of Internees After the Close of Hostilities
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10.1 INTRODUCTION
This Chapter addresses protection of civilians in the hands of a party to an international
armed conflict. In particular, the Chapter addresses civilians who are interned in the home
territory of a belligerent or occupied territory.
Rules for the protection of civilians in the conduct of hostilities are addressed in Chapter
V. Rules for the protection of civilians that are specific to occupied territory are addressed in
Chapter XI, while rules that apply to both civilians in occupied territory and civilians in a
belligerent’s home territory are addressed in this Chapter.
10.1.1 Interpretation and Application of the GC. The GC underlies most of the
international law rules applicable to the United States for the treatment of civilians in the hands
of a party to the conflict.
As with the GPW, the GC’s provisions should be interpreted in light of the principles that
underlie the treatment of civilians and, in particular, in light of the goal of advancing the humane
treatment of protected persons.1 The subsequent practice of States in applying the GC could also
assist in interpreting its provisions because States’ decades of experience in applying the GC
may be very helpful in understanding its requirements.2
10.1.1.1 GC - Notes on Terminology. In the GC, protected persons does not
simply refer to persons who are “civilians” in the sense of not being members of the military;
rather, protected persons refers to persons who are protected by the GC in connection with
international armed conflict or occupation.3
In the GC, internees refers to protected persons who are interned.
In the GC, the Detaining Power refers to the State that holds the internee.
In the GC, the Protecting Power refers to a neutral State that helps implement the GC.4
10.1.1.2 Special Agreements Under the GC. Under the GC, States may conclude
a variety of special agreements during international armed conflict to facilitate the protection of
civilians. The GC specifically provides for agreements:
• to entrust to an effective and impartial organization the duties of the Protecting Powers;5
• to establish and recognize civilian hospital zones and localities;6
1 Refer to § 9.1.2 (Interpretation and Application of the GPW).
2 Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).
3 Refer to § 10.3.1 (Protected Person - Notes on Terminology).
4 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).
5 Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties
Under the 1949 Geneva Conventions).
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• to establish and determine the conditions of neutralized zones;7
• for the removal of wounded, sick, infirm, and aged persons, children, and maternity
cases, from besieged or encircled areas or for the passage of medical and religious
personnel on their way to such areas;8
• to settle practical details regarding the departure of protected persons from a belligerent’s
home territory;9
• to establish the conditions for the sending of individual parcels and collective relief
shipments;10
• for the release, 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;11 and
• on the procedure, or to select an umpire who will decide the procedure, to be followed for
an inquiry concerning any alleged violation of the GC.12
In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108,
109, 132, 133, and 149 of the GC, Parties to the GC may conclude other special agreements for
all matters concerning which they may deem it suitable to make separate provision.13 No special
agreement shall adversely affect the situation of protected persons, as defined by the GC, nor
restrict the rights that it confers upon them.14
Protected persons shall continue to have the benefit of such agreements as long as the GC
is applicable to them, except where express provisions to the contrary are contained in these
6 Refer to § 5.14.3.1 (Civilian Hospital and Safety Zones and Localities).
7 Refer to § 5.14.3.3 (Neutralized Zones).
8 Refer to § 5.19.2 (Removal and Passage of Certain Personnel - Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
9 Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory).
10 Refer to § 10.23.3.3 (Special Agreements Concerning Relief Shipments).
11 Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain Classes
of Internees).
12 Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).
13 GC art. 7 (“In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108, 109, 132, 133
and 149, the High Contracting Parties may conclude other special agreements for all matters concerning which they
may deem it suitable to make separate provision.”).
14 GC art. 7 (“No special agreement shall adversely affect the situation of protected persons, as defined by the
present Convention, nor restrict the rights which it confers upon them.”).
646
agreements or in subsequent agreements, or where more favorable measures have been taken
with regard to them by one or other of the parties to the conflict.15
10.1.2 DoD Policies and Regulations for the Treatment of Internees. DoD policies and
regulations regarding the treatment of internees provide authoritative guidance for DoD
personnel and fill an important role in implementing the complex requirements of the GC.16
Practitioners are advised to consult all applicable policies and regulations, as these, in many
cases, exceed the requirements of the GC, U.S. statutes, and Executive Orders.
10.2 NATIONAL-LEVEL GC IMPLEMENTATION MEASURES
The GC requires a number of measures at the national level to facilitate protection for
protected persons.
10.2.1 Appointment or Establishment of Entities. The GC provides for certain bodies or
entities to be appointed or established.
10.2.1.1 Appointment of a Protecting Power. The GC contemplates that a
Protecting Power has been appointed to assist in the implementation of the GC.17 A Protecting
Power has a variety of roles under the GC related to the protection of protected persons.18
10.2.1.2 Establishment of a National Protected Person Information Bureau. A
National Protected Person Information Bureau shall be established by each of the parties to the
conflict.19
10.2.1.3 Establishment of a Central Information Agency for Protected Persons. A
Central Information Agency for protected persons shall be established in a neutral country.20
10.2.2 Notification of Certain Laws or Policies Between Belligerents. Parties to a
conflict must notify opposing belligerents or the Protecting Power of certain matters relating to
protected persons.
10.2.2.1 Location and Marking of Places of Internment Camps. The Detaining
Power shall provide the Powers concerned useful information regarding the geographic location
of places of internment, and agreements on their markings may be reached.21
15 GC art. 7 (“Protected persons shall continue to have the benefit of such agreements as long as the Convention is
applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent
agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties
to the conflict.”).
16 Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).
17 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).
18 Refer to § 10.32 (Role of the Protecting Power in the GC).
19 Refer to § 10.31.2 (National Protected Person Information Bureau).
20 Refer to § 10.31.3 (Central Information Agency for Protected Persons).
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10.2.2.2 Notification of Measures Taken for Implementing GC Provisions That
Address Relations Between Internees and the Exterior. Immediately upon interning protected
persons, the Detaining Power shall inform them, the Power to which they owe allegiance, and
their Protecting Power of the measures taken for executing the provisions of Chapter VIII of
Section IV of the GC, which address the relations between internees and the exterior (e.g.,
correspondence, relief shipments, family visits).22 The Detaining Power shall likewise inform
the Parties concerned of any subsequent modifications of such measures.23
10.3 PROTECTED PERSON STATUS
In general, the GC uses the concept of protected person to define the individuals who are
entitled to receive its protections. Principally, protected persons include persons of enemy
nationality living in the territory of a belligerent State and the inhabitants of occupied
territories.24 Even if persons are not protected persons under the GC, other rules may be
applicable to them. For example, certain baseline rules apply to the treatment of all detainees,
including those who are not protected persons or POWs.25
10.3.1 Protected Person - Notes on Terminology. Protected persons is used in the GC as
a term to refer to persons who are protected by the GC in connection with international armed
conflict or occupation.
Protected persons is often understood as a term that is specific to the GC. In a few
places, however, the GPW, the GWS, and the GWS-Sea also refer to “protected persons” or
“persons protected.”26 In such cases, “protected persons” and “persons protected” refer to
persons protected by that respective convention, as opposed to protected persons for purposes of
the GC.
21 Refer to § 10.11.1.2 (Sharing Information on the Location of Places of Internment); § 10.11.1.3 (Marking of
Internment Camps).
22 GC art. 105 (“Immediately upon interning protected persons, the Detaining Powers shall inform them, the Power
to which they owe allegiance and their Protecting Power of the measures taken for executing the provisions of the
present Chapter.”).
23 GC art. 105 (“The Detaining Powers shall likewise inform the Parties concerned of any subsequent modifications
of such measures.”).
24 GC COMMENTARY 45 (“When work was begun on the preparation of the texts, it became clear—as early as the
time of the Tokyo Draft—that there were two main classes of civilian to whom protection against arbitrary action on
the part of the enemy was essential in time of war—on the one hand, persons of enemy nationality living in the
territory of a belligerent State, and on the other, the inhabitants of occupied territories. The idea that the Convention
should cover these two categories was accepted from the first and has never really been disputed. Any discussions
which have taken place on the subject have been concerned with points of detail which we shall consider later. This
Article [4 of the GC] is, in a sense, the key to the Convention; for it defines the people to whom it refers.”).
25 Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).
26 See, e.g., GPW art. 11 (“In cases where they deem it advisable in the interest of protected persons, particularly in
cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of
the present Convention, the Protecting Powers shall lend their good offices with a view to settling the
disagreement.”).
648
Although the GC addresses the protection of civilians, protected persons may include
certain unprivileged belligerents. Certain rights and privileges that protected persons who are
unprivileged belligerents receive, however, are subject to derogation for security reasons.27
10.3.2 Persons Who Receive Protected Person Status Under the GC. Subject to certain
exceptions addressed below, persons protected by the GC are those who, at a given moment and
in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a
party to the conflict or Occupying Power of which they are not nationals.28
Because the definition of protected person is framed negatively in terms of persons who
are in the hands of a State of which they are not nationals, the definition of protected person
allows for the possibility that persons without any nationality may be protected persons.29
10.3.2.1 “Find Themselves”. The persons must “find themselves” in the hands of
a party to the conflict or Occupying Power, which suggests an element of happenstance or
coincidence.30 For example, nationals of a neutral or non-belligerent State who travel to an
occupied State to fight the Occupying Power cannot be said to have “found themselves” within
that occupied territory within the meaning of Article 4 of the GC.
10.3.2.2 In Occupied Territory or the Home Territory of a Party to the Conflict.
To be entitled to the protections provided under the GC for “protected persons,” a person must
be located in either (1) occupied territory or (2) the home territory of a party to the conflict.31
27 Refer to § 10.4 (Derogation for Security Reasons).
28 GC art. 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever,
find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of
which they are not nationals.”).
29 GC COMMENTARY 47 (“It will be observed that owing to its negative form the definition covers persons without
any nationality. The Rapporteur to Committee III pointed out that it thus complied with the recommendation made
to the Diplomatic Conference by the representative of the International Refugee Organization. In the actual course
of the discussions, however, certain speakers observed that the term ‘nationals’ (ressortissants, in the French
version) did not cover all cases, in particular cases where men and women had fled from their homeland and no
longer considered themselves, or were no longer considered, to be nationals of that country. Such cases exist, it is
true, but it will be for the Power in whose hands they are to decide whether the persons concerned should or should
not be regarded as citizens of the country from which they have fled. The problem presents so many varied aspects
that it was difficult to deal with it fully in the Convention.”).
30 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth
Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 51 (“Alternatively, the
phrase “find themselves” [in Article 4 of the GC] can be read more narrowly to suggest an element of happenstance
or coincidence, and to connote a lack of deliberate action relating to the circumstances that leave the persons in
question in the hands of an occupying power.”).
31 See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (“To receive the
protections provided for ‘protected persons,’ one must be located in either (1) ‘occupied territory,’ or (2) the
‘territory of a party to the conflict.’ This limitation does not emerge from article 4 itself, but rather from other
provisions in GC.”); GC COMMENTARY 46 (“Nevertheless, disregarding points of detail, it will be seen that there are
two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to the
conflict and (2) the whole population of occupied territories (excluding nationals of the Occupying Power). The
other distinctions and, exceptions extend or restrict these limits, but not to any appreciable extent.”).
649
The references in the GC that limit the scope of protections for protected persons to those “in the
territory of a Party to the conflict” refer to the home territory of the party to the conflict in whose
hands the protected person finds himself or herself.32 For example, Section II of Part III of the
GC, which applies to “Aliens in the Territory of a Party to the Conflict,” addresses the protection
of aliens present on the home territory of a party to the conflict in relation to that State.
10.3.2.3 Not Protected by the GWS, GWS-Sea, or the GPW. Persons protected by
the GWS, the GWS-Sea, or the GPW shall not be considered as protected persons within the
meaning of the GC.33 For example, persons who receive POW status under the GPW are not
considered as protected persons within the meaning of the GC.34
10.3.2.4 Unprivileged Belligerents Not Per Se Excluded From Protected Person
Status. The fact that a person has engaged in hostile or belligerent conduct does not per se
exclude that person from protected person status under the GC.35
Certain rights and privileges of the GC that a protected person who has engaged in such
conduct would otherwise receive are, however, subject to derogation for security reasons.36
32 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth
Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (“The meaning of the
phrase ‘territory of a Party to the conflict,’ considered in isolation, is not self-evident. At first glance, one might
think that the phrase includes occupied territory, because the occupied power (to whom the territory belongs) is a
party to the conflict. But in the context of the entire Convention, the phrase clearly refers to the home territory of
the party to the conflict in whose hands the ‘protected person’ finds himself. This is evident from several provisions
in GC4.”).
33 GC art. 4 (“Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the
Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as
protected persons within the meaning of the present Convention.”).
34 Refer to § 9.3.2 (Persons Entitled to POW Status).
35 See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 48 (“GC4’s full
title—‘Geneva Convention Relative to the Protection of Civilian Persons in Time of War,’ (emphasis added)—
suggests that ‘[t]he main object of the Convention is to protect a strictly defined category of civilians.’ 4 Pictet,
Commentary at 10 (emphasis added). Consistent with this title, article 4(4) of GC expressly excludes lawful
combatants who enjoy POW status from ‘protected person’ status. These factors, combined with the fact that
unlawful combatants generally receive less favorable treatment than lawful combatants under the Geneva
Convention system, see, e.g., Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee,
Assistant Attorney General, Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949
at 1-7 (Feb. 7, 2002) (concluding that GPW withholds protections from persons who engage in hostilities but fail to
satisfy criteria for lawful combatancy), might lead one to assume that unlawful combatants are categorically
excluded from ‘protected person’ status under GC. GC’s text, however, contemplates that persons who ‘find
themselves’ in occupied territory within the meaning of article 4 may engage in at least some forms of unlawful
belligerency without forfeiting all of the benefits of ‘protected person’ status.”); 1956 FM 27-10 (Change No. 1
1976) ¶247b (“Subject to qualifications set forth in paragraph 248 [relating to derogations], those protected by GC
also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as
prisoners of war.”).
36 Refer to § 10.4 (Derogation for Security Reasons).
650
10.3.3 Categories of Nationals Specifically Excluded From the Definition of Protected
Person Under the GC. As discussed in this subsection, the GC specifically excludes certain
classes of persons from the definition of protected person.37
The provisions of Part II of the GC, which address the general protection of populations
against certain consequences of war, are, however, wider in application, as defined in Article 13
of the GC.38 These provisions cover the whole of the populations in conflict without any adverse
distinction based, in particular, on race, nationality, religion, or political opinion, and are
intended to alleviate the sufferings caused by war.39 Thus, persons excluded by reason of their
nationality from the definition of protected person may nonetheless receive the protections of
Part II of the GC.
10.3.3.1 A State’s Own Nationals. In general, a State’s own nationals who are in
its hands are not protected persons under the GC.40 This exclusion from the definition of
“protected person” in the GC is consistent with a traditional principle of international law—the
GC “does not interfere in a State’s relations with its own nationals.”41 However, the GC does
limit the arrest, prosecution, conviction, or deportation of nationals of any Occupying Power
who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State.42
10.3.3.2 Nationals of a State That Is Not Bound by the GC. Nationals of a State
that is not bound by the GC are not protected by it.43 This provision of the GC reflects a legal
principle underlying the GC: a State must accept the burdens of the GC in order to receive its
benefits.44
37 Compare § 4.4.4 (Nationality and Combatant Status).
38 See GC art. 4 (“The provisions of Part II are, however, wider in application, as defined in Article 13.”).
39 GC art. 13 (“The provisions of Part II cover the whole of the populations of the countries in conflict, without any
adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to
alleviate the sufferings caused by war.”).
40 GC art. 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever,
find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of
which they are not nationals.”) (emphasis added).
41 GC COMMENTARY 46 (“The definition has been put in a negative form; as it is intended to cover anyone who is
not a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains
faithful to a recognized principle of international law: it does not interfere in a State’s relations with its own
nationals. The only exception to this rule is the second paragraph of Article 70, which refers to nationals of the
Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities. This is
a very special case, based on the position such people have taken up with regard to their own country.”).
42 Refer to § 11.11.7 (Limitation on Criminal Jurisdiction With Respect to Pre-Occupation Acts).
43 GC art. 4 (“Nationals of a State which is not bound by the Convention are not protected by it.”).
44 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth
Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 54 (“The benefits-burdens
principle also finds expression in article 4(2), which provides: ‘Nationals of a State which is not bound by the
Convention are not protected by it.’ The ICRC’s Official Commentary states that article 4(2)’s exception to the
definition of “protected person” in article 4(1) is a ‘truism’ and an ‘unnecessary addition’ that follows naturally from
article 2(1) even in the absence of article 4(2). See 4 Pictet, Commentary at 48. Whether or not this is true, article
4(2) makes this much clear: persons in occupied territory, including those who commit hostile acts there, are not
651
10.3.3.3 Nationals of a Neutral State or Co-Belligerent State While Normal
Diplomatic Representation Exists. Nationals of a neutral State who find themselves in the
territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as
protected persons while the State of which they are nationals has normal diplomatic
representation in the State in whose hands they are.45
These persons were omitted from the GC’s definition of “protected person” in order to
avoid creating complications or inconsistencies in procedures should both the GC and the law
applicable to normal diplomatic representation apply.46
Nationals of a neutral State in occupied territory, however, are regarded as protected
persons under the GC.47
10.3.4 Commencement and Duration of Protected Person Status. As with the general
application of the GC, protected persons shall receive their protections from the outset of any
conflict or occupation mentioned in Article 2 of the GC.48 In general, the application of
protected person status also ceases when the GC ceases to apply.
In the territory of parties to the conflict, the application of the GC shall cease on the
general close of military operations.49 In most cases, the general close of military operations will
be the final end of all fighting between all those concerned.50
‘protected persons’ under GC if the State that represents them has not formally accepted the Convention’s
burdens.”).
45 GC art. 4 (“Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of
a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has
normal diplomatic representation in the State in whose hands they are.”).
46 See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 814 (“At the first reading several
Delegates argued that the Convention should merely regulate the relations between a belligerent State and the
nationals of an enemy State, and that it should not include relations between the State and nationals of a neutral
country. Other delegates, however, argued that stateless persons should be borne in mind and that, moreover, there
might be, in the territory of a belligerent State, nationals of foreign States who did not benefit by any diplomatic
representation either because their home country had broken off diplomatic relations with the country where they
were or because they had themselves broken away from their country of origin. Our Committee gave the most
careful consideration to this problem and the majority recognized the weight of the reasons put forward by States
sheltering a large number of aliens: the superposition of normal diplomatic representation and of the protection
ensured by the Convention, would lead to complications and would be indefensible from the point of view of
consistency of procedure.”).
47 Refer to § 15.6.4.1 (Protected Person Status of Neutral Persons in Occupied Territory).
48 GC art. 6 (“The present Convention shall apply from the outset of any conflict or occupation mentioned in Article
2.”).
49 GC art. 6 (“In the territory of Parties to the conflict, the application of the present Convention shall cease on the
general close of military operations.”).
50 GC COMMENTARY 62 (“What should be understood by the words ‘general close of military operations’? In the
opinion of the Rapporteur of Committee III, the general close of military operations was ‘when the last shot has
been fired’. There are, however, a certain number of other factors to be taken into account. When the struggle takes
place between two States the date of the close of hostilities is fairly easy to decide: it will depend either on an
armistice, a capitulation or simply on debellatio. On the other hand, when there are several States on one or both of
652
In the case of occupied territory, the application of the GC shall cease one year after the
general close of military operations; however, the Occupying Power shall be bound, for the
duration of the occupation, to the extent that such Power exercises the functions of government
in such territory, by the provisions of the following Articles of the GC: 1 through 12, 27, 29
through 34, 47, 49, 51, 52, 53, 59, 61 through 77, and 143.51
Protected persons whose release, repatriation, or re-establishment may take place after
such dates shall meanwhile continue to benefit from the protection of the GC.52 “Re-
establishment” refers to protected persons who cannot be repatriated because, for example, they
would be liable to persecution in their own country or because their homes have been
destroyed.53
10.3.5 State Responsibility for Its Agents’ Treatment of Protected Persons. A party to the
conflict is responsible for the treatment accorded to protected persons by its agents, irrespective
of any individual responsibility that may be incurred.54
10.3.6 Non-Renunciation of Rights Secured by the GC. Protected persons may in no
circumstances renounce in part or in entirety the rights secured to them by the GC or by special
agreements, if any, referred to in Article 7 of the GC.55 A similar provision of the GPW applies
to POWs, and similar provisions of the GWS and GWS-Sea apply to the wounded, sick,
shipwrecked, and military medical and religious personnel.56
the sides, the question is harder to settle. It must be agreed that in most cases the general close of military
operations will be the final end of all fighting between all those concerned.”).
51 Refer to § 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory).
52 GC art. 6 (“Protected persons whose release, repatriation or re-establishment may take place after such dates shall
meanwhile continue to benefit by the present Convention.”).
53 1956 FM 27-10 (Change No. 1 1976) ¶249b (“Reestablishment of Protected Persons. The word
‘reestablishment,’ as used in a, refers to protected persons who cannot be repatriated because, for example, they
would be liable to persecution in their own country, or because their homes have been destroyed.”). See also GC
COMMENTARY 64 (“The time when the Convention as a whole ceases to apply, both in the territory of the Parties to
the conflict and in occupied territory, may quite conceivably come before the protected persons have been able to
resume a normal existence, especially if they have to be repatriated or assisted to resettle. … The word
‘resettlement’ is used in regard to protected persons who cannot be repatriated for one reason or another and are not
allowed to settle permanently in the country where they are living. In such cases another country must be found
where they will be received and allowed to settle. It was in particular the experience gained at the end of the Second
World War which led to the adoption of this clause.”).
54 GC art. 29 (“The Party to the conflict in whose hands protected persons may be, is responsible for the treatment
accorded to them by its agents, irrespective of any individual responsibility which may be incurred.”). Refer to
§ 18.9.1 (State Responsibility for Violations of the Law of War by Its Armed Forces).
55 GC art. 8 (“Protected persons may in no circumstances renounce in part or in entirety the rights secured to them
by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.”).
Refer to § 10.1.1.2 (Special Agreements Under the GC).
56 Refer to § 7.2.2 (Non-Renunciation of Rights Secured by the GWS or GWS-Sea); § 9.3.7 (Non-Renunciation of
Rights Secured by the GPW).
653
10.4 DEROGATION FOR SECURITY REASONS
Certain rights and privileges of the GC that protected persons receive are subject to
derogation for security reasons.
10.4.1 Derogation in Home Territory. Where, in the territory of a party to the conflict,
the latter is satisfied that an individual protected person is definitely suspected of or engaged in
activities hostile to the security of the State, such individual person shall not be entitled to claim
such rights and privileges under the GC as would, if exercised in the favor of such individual
person, be prejudicial to the security of such State.57
10.4.2 Derogation in Occupied Territory. Where in occupied territory an individual
protected person is detained as a spy or saboteur, or as a person under definite suspicion of
activity hostile to the security of the Occupying Power, such person shall, in those cases where
absolute military security so requires, be regarded as having forfeited rights of communication
under the GC.58 For example, it may be necessary to keep the fact of detention secret
temporarily so as not to compromise an ongoing operation against a conspiracy or network of
spies.59
The derogation provisions relating to the home territory of a belligerent are not applicable
in occupied territory, even though the occupied territory may arguably be characterized as the
home territory of the opposing belligerent (i.e., the country being occupied).
10.4.3 Derogation in Other Areas. To the extent that the rights and privileges of
protected persons afforded by the GC are applied outside the home territory of a party to the
conflict or outside occupied territory, it would be reasonable for such rights and privileges
similarly to be subject to derogation. Thus, if a party to the conflict is satisfied that an individual
protected person is definitely suspected of or engaged in activities hostile to the security of the
State in other contexts, such individual person similarly could be deemed not entitled to claim
such rights and privileges under the GC as would, if exercised in favor of such individual person,
be prejudicial to the security of such State.60
57 GC art. 5 (“Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected
person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person
shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the
favour of such individual person, be prejudicial to the security of such State.”).
58 GC art. 5 (“Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a
person under definite suspicion of activity hostile to the security of the Occupying Power, such person, shall, in
those cases where absolute military security so requires, be regarded as having forfeited rights of communication
under the present Convention.”).
59 GC COMMENTARY 53 (“There may of course be occasions when it is desirable to keep the fact of an arrest secret
in the hope of capturing a whole organization or spy ring.”).
60 1956 FM 27-10 (Change No. 1 1976) ¶248b (“Where, in territories other than those mentioned in a above, a Party
to the conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities
hostile to the security of the State, such individual person is similarly not entitled to claim such rights and privileges
under GC as would, if exercised in favor of such individual person, be prejudicial to the security of such State.”).
654
10.4.4 Limits on Derogation. In each case, such persons shall nevertheless be treated
with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial
prescribed by the GC.61 No derogation from the provision of humane treatment and the rights of
fair and regular trial is permitted.62
Such persons shall also be granted the full rights and privileges of a protected person
under the GC at the earliest date consistent with the security of the State or Occupying Power, as
the case may be.63
10.5 HUMANE TREATMENT AND OTHER BASIC PROTECTIONS FOR PROTECTED PERSONS
Protected persons are entitled, in all circumstances, to respect for their persons, their
honor, their family rights, their religious convictions and practices, and their manners and
customs. They shall at all times be humanely treated, and shall be protected especially against
all acts of violence or threats of violence, and against insults and public curiosity.64
10.5.1 Protection Against Violence or Threats. Protected persons must at all times be
protected, particularly against acts or threats of violence. For example, the murder of protected
persons is forbidden.
Protected persons should be protected not only against unlawful acts by the agents of the
Detaining Power, but also against violence from other protected persons, such as during
internment or, in the case of protected persons in a belligerent’s home territory, violence from
members of the civilian population.
10.5.1.1 Measures of Physical Suffering, Extermination, or Other Brutality. The
Parties to the GC specifically agree that each of them is prohibited from taking any measure of
such a character as to cause the physical suffering or extermination of protected persons in their
hands.65 This prohibition applies not only to murder, torture, corporal punishment, mutilation,
61 GC art. 5 (“In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be
deprived of the rights of fair and regular trial prescribed by the present Convention.”).
62 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons); § 10.29 (Judicial
Proceedings Regarding Protected Persons in Occupied Territory or Internees).
63 GC art. 5 (“They shall also be granted the full rights and privileges of a protected person under the present
Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.”).
64 GC art. 27 (“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their
family rights, their religious convictions and practices, and their manners and customs. They shall at all times be
humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults
and public curiosity.”). See also GC COMMENTARY 199-200 (“Article 27, placed at the head of Part III, occupies a
key position among the Articles of the Convention. It is the basis of the Convention, proclaiming as it does the
principles on which the whole of ‘Geneva Law’ is founded. It proclaims the principle of respect for the human
person and the inviolable character of the basic rights of individual men and women. The statement of these
principles in an international convention gives them the character of legal obligations and marks an essential stage in
the history of international law -- in particular international humanitarian law, which is concerned above all with
man as man.”).
65 GC art. 32 (“The High Contracting Parties specifically agree that each of them is prohibited from taking any
measure of such a character as to cause the physical suffering or extermination of protected persons in their
hands.”).
655
and medical or scientific experiments not necessitated by the medical treatment of a protected
person, but also to any other measures of brutality whether applied by civilian or military
agents.66
10.5.1.2 Protection for Women Against Rape or Other Indecent Assault. Women
shall be especially protected against any attack on their honor, in particular against rape,
enforced prostitution, or any form of indecent assault.67
Although the GC provides special protection for women against these offenses, all
individuals, including children and men, should also be protected against these offenses.
Indecent assault is generally referred to today as sexual assault.
10.5.1.3 Presence May Not Be Used to Render Places Immune From Military
Operations. The presence of a protected person may not be used to render certain points or areas
immune from military operations.68
10.5.1.4 Taking of Hostages. The taking of hostages is prohibited.69
10.5.2 Protection Against Insults and Public Curiosity. Internees must at all times be
protected against insults and public curiosity. For example, displaying internees in a humiliating
fashion on television or on the internet would be prohibited.70 For this reason and others, DoD
policy has prohibited the taking of photographs of detainees except for authorized purposes.71
10.5.3 Other Prohibited Measures.
10.5.3.1 No Physical or Moral Coercion. No physical or moral coercion shall be
exercised against protected persons, in particular to obtain information from them or from third
parties.72 For example, protected persons in occupied territory may not be compelled to provide
information about their State’s military defenses.73 Other requirements, including the
requirements of U.S. law and policy, would apply to the interrogation of protected persons.74
66 GC art. 32 (“This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or
scientific experiments not necessitated by the medical treatment of a protected person, but also to any other
measures of brutality whether applied by civilian or military agents.”).
67 GC art. 27 (“Women shall be especially protected against any attack on their honour, in particular against rape,
enforced prostitution, or any form of indecent assault.”).
68 GC art. 28 (“The presence of a protected person may not be used to render certain points or areas immune from
military operations.”).
69 GC art. 34 (“The taking of hostages is prohibited.”).
70 Compare § 9.5.3 (Protection Against Insults and Public Curiosity).
71 Refer to § 8.2.2.3 (DoD Practice of Generally Prohibiting Taking Photographs Without Authorization).
72 GC art. 31 (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain
information from them or from third parties.”).
73 Refer to § 11.20.1.4 (Prohibition Against Forcing Inhabitants to Provide Information About the Opposing Army or
Its Means of Defense).
74 Refer to § 10.6.2 (Interrogation of Protected Persons).
656
The GC’s prohibition against the use of coercion does not apply to those measures
implicitly or explicitly authorized by the GC (such as the use of force to prevent one internee
from harming another) or other lawful measures that are otherwise consistent with the GC (such
as the use of force to prevent internees from escaping internment).75
10.5.3.2 Collective Penalties and Measures of Intimidation or Terrorism. No
protected person may be punished for an offense he or she has not personally committed.76
Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.77
Collective penalties are prohibited as a general matter.78
10.5.3.3 Pillage Against Protected Persons. Pillage is prohibited.79 In addition to
this specific prohibition in the GC, pillage is prohibited as a general matter.80
10.5.4 Reprisals Against Protected Persons and Their Property. Reprisals against
protected persons and their property are prohibited.81
10.5.5 No Adverse Distinction Based on Race, Religion, or Political Opinion. Without
prejudice to the provisions of the GC relating to their state of health, age, and sex, all protected
persons shall be treated with the same consideration by the party to the conflict in whose power
they are, without any adverse distinction based, in particular, on race, religion, or political
opinion.82
75 GC COMMENTARY 220 (“The general nature of the new provision marks an important step forward in
international law. For its exact significance to be appreciated, it should not be considered in isolation but rather in
the light of the other provisions of the Convention. It will then be seen that there is no question of absolute
prohibition, as might be thought at first sight. The prohibition only applies in so far as the other provisions of the
Convention do not implicitly or explicitly authorize a resort to coercion. Thus, Article 31 is subject to the unspoken
reservation that force is permitted whenever it is necessary to use it in the application of measures taken under the
Convention. This power is embodied and expressed particularly in penal legislation and in the control and security
regulations enacted by the belligerents and to which protected persons are subject.”).
76 GC art. 33 (“No protected person may be punished for an offence he or she has not personally committed.”).
77 GC art. 33 (“Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”).
Consider AP I art. 51(2) (“Acts or threats of violence the primary purpose of which is to spread terror among the
civilian population are prohibited.”).
78 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).
79 GC art. 33 (“Pillage is prohibited.”).
80 Refer to § 5.17.4 (Pillage Prohibited).
81 Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).
82 GC art. 27 (“Without prejudice to the provisions relating to their state of health, age and sex, all protected persons
shall be treated with the same consideration by the Party to the conflict in whose power they are, without any
adverse distinction based, in particular, on race, religion or political opinion.”).
657
Distinctions are permitted, and in some cases required, for humanitarian reasons.83 For
example, the GC provides for special treatment for children during internment.84
Distinction based on religion, political opinion, or other similar criteria may also be made
so long as it is not adverse and it is made to advance legitimate interests, such as maintaining
order in a place of internment.85
10.5.6 Facility for Applying to the Protecting Powers and Assistance Organizations Such
as the ICRC. Protected persons shall have every facility for making application to the Protecting
Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the
country where they may be, as well as to any organization that might assist them.86
These several organizations shall be granted all facilities for that purpose by the
authorities, within the bounds set by military or security considerations.87
Apart from the visits of the delegates of the Protecting Powers and of the ICRC, provided
for by Article 143 of the GC, the Detaining or Occupying Powers shall facilitate as much as
possible visits to protected persons by the representatives of other organizations whose object is
to give spiritual aid or material relief to such persons.88
83 GC COMMENTARY 426 (“All discrimination contrary to Article 27 is prohibited. On the other hand implicit
authority is given for the discrimination permitted by that Article for humanitarian reasons, in order to favour classes
of people who are in particular need of help (the infirm, the sick, pregnant women, etc.). All this is an example of
the application of the principle of non-discrimination, as understood in humanitarian law--that is to say the rule
which forbids all differentiation based on race, political opinions, religion or social class, but at the same time
demands that the different degrees of suffering should be alleviated by different degrees of assistance.”).
84 Refer to § 4.20.4 (Protection for Children in the Context of Internment Under the GC).
85 Compare § 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief).
86 GC art. 30 (“Protected persons shall have every facility for making application to the Protecting Powers, the
International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the
country where they may be, as well as to any organization that might assist them.”).
87 GC art. 30 (“These several organizations shall be granted all facilities for that purpose by the authorities, within
the bounds set by military or security considerations.”). See also GC COMMENTARY 218 (“The Convention requires
the Parties to the conflict to grant all facilities to the Protecting Powers and relief organizations. That means that it
will not be enough merely to authorize them to carry out their work; their task must be facilitated and promoted. It
is the duty of the authorities to take all necessary steps to allow approved organizations to take rapid and effective
action wherever they are asked to give assistance. Among examples of such measures can be mentioned the
provision of facilities for delegates to move about and carry on correspondence, to have free access to all places
where protected persons are living, transport facilities and facilities for distributing relief, etc. The obligation to
facilitate this work is limited however by military or security considerations, as stated in the reservation at the end of
the paragraph. It is essential, however, that the belligerents, who will be sole judges o [sic] the validity of the
reasons put forward, should show moderation in the use they make of this reservation and only apply it in cases of
real necessity”).
88 GC art. 30 (“Apart from the visits of the delegates of the Protecting Powers and of the International Committee of
the Red Cross, provided for by Article 143, the Detaining or Occupying Powers shall facilitate as much as possible
visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or
material relief to such persons.”).
658
10.6 MEASURES OF CONTROL AND SECURITY
The parties to the conflict may take such measures of control and security in regard to
protected persons as may be necessary as a result of the war.89 For example, in a belligerent’s
home territory, measures of control are normally taken with respect to, at the very least, persons
known to be active or reserve members of a hostile army, persons who would be liable to service
in the enemy forces, and persons who it is expected would furnish information or other aid to a
hostile State.90
These measures may include, for example, requiring protected persons: (1) to register
with and report periodically to the police authorities; (2) to carry identity cards or special papers;
(3) to refrain from carrying weapons; (4) to refrain from changing their place of residence
without permission; (5) to refrain from accessing certain areas; (6) to have an assigned residence;
and (7) to be interned.91
This section addresses searches, interrogation, and general rules for measures of control
and security applied to protected persons, which must be applied consistent with humane
treatment requirements.92
10.6.1 General Authority of a Belligerent to Search and Secure Protected Persons and
Their Property. The measures of control and security that a belligerent may take in regard to
protected persons include searching and securing protected persons and their property when
necessary as a result of the war (e.g., for security reasons and intelligence purposes).93
10.6.1.1 Searches of Protected Persons. The dignity and honor of the protected
person being searched should be protected to the greatest degree possible under the
circumstances.94 The person conducting the search should avoid doing or saying anything likely
to be regarded as indecent. In some circumstances, it may be appropriate for a witness to
89 GC art. 27 (“However, the Parties to the conflict may take such measures of control and security in regard to
protected persons as may be necessary as a result of the war.”).
90 1956 FM 27-10 (Change No. 1 1976) ¶26 (“Measures of control are normally taken with respect to at least
persons known to be active or reserve members of a hostile army, persons who would be liable to service in the
enemy forces, and persons who it is expected would furnish information or other aid to a hostile State.”).
91 GC COMMENTARY 207 (“The various security measures which States might take are not specified; the Article
merely lays down a general provision. There are a great many measures, ranging from comparatively mild
restrictions such as the duty of registering with and reporting periodically to the police authorities, the carrying of
identity cards or special papers, or a ban on the carrying of arms, to harsher provisions such as a prohibition on any
change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, or
even assigned residence and internment (which, according to Article 41, are the two most severe measures a
belligerent may inflict on protected persons). A great deal is thus left to the discretion of the Parties to the conflict
as regards the choice of means. What is essential is that the measures of constraint they adopt should not affect the
fundamental rights of the persons concerned.”).
92 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).
93 Compare § 9.6 (Security Measures With Respect to POWs).
94 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).
659
observe the search so as to protect both the person being searched from abuse and the person
conducting the search from unfounded accusations of abuse.
10.6.1.2 Search of Female Protected Persons. It is appropriate for female
protected persons to be searched by female personnel, if possible. This practice helps reduce the
risk of accusations of indecent behavior.
A woman internee shall not be searched except by a woman.95
10.6.1.3 Securing Protected Persons With Handcuffs and Other Security Devices.
When necessary for security reasons, protected persons may be secured temporarily with
handcuffs, flex cuffs, blindfolds, or other security devices.96
10.6.1.4 Search of the Property of Protected Persons. When necessary as a result
of the war, items in the possession of protected persons may be removed and searched, but
property should be returned as soon as possible, absent a legal basis for the seizure of the
property.97
10.6.2 Interrogation of Protected Persons. The law of war does not prohibit interrogation
of protected persons, but specifies conditions and limitations for conducting interrogation.
10.6.2.1 Humane Treatment During Interrogation. Interrogation must be carried
out in a manner consistent with the requirements for humane treatment, including the prohibition
against acts of violence or intimidation, and insults.98
No physical or moral coercion shall be exercised against protected persons to obtain
information from them or from third parties.99
10.6.2.2 Additional U.S. Law and Policy on Interrogation. U.S. law and policy
impose additional requirements on the interrogation of protected persons.100
10.6.3 No Measures of Control More Severe Than Assigned Residence or Internment. If
the measures of control mentioned in the GC for protected persons are considered to be
inadequate by the Power imposing them, that Power may not have recourse to any other measure
of control more severe than that of assigned residence or internment, in accordance with the
provisions of Articles 42 and 43 of the GC.101
95 GC art. 97 (“A woman internee shall not be searched except by a woman.”).
96 Compare § 9.6.2 (Securing POWs With Handcuffs and Other Security Devices).
97 Refer to § 5.17 (Seizure and Destruction of Enemy Property).
98 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).
99 Refer to § 10.5.3.1 (No Physical or Moral Coercion).
100 Refer to, e.g., § 8.4.2 (Additional U.S. Law and Policy on Interrogation).
101 GC art. 41 (“Should the Power in whose hands protected persons may be consider the measures of control
mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control
660
Similarly, if the Occupying Power considers it necessary, for imperative reasons of
security, to take safety measures concerning protected persons, it may, at the most, subject them
to assigned residence or to internment.102
10.6.4 Support to Persons Who Are Assigned Residence Should Be Guided by
Internment Standards. In applying the provisions of the second paragraph of Article 39 of the
GC to the cases of persons required to leave their usual places of residence by virtue of a
decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as
closely as possible by the standards of welfare set forth in Part III, Section IV of the GC.103 In
other words, if the State assigns residence to a protected person in its home territory that results
in the protected person being unable to support himself or herself and his or her dependents, the
State shall provide support to that protected person and his or her dependents, being guided as
closely as possible by the standards of welfare set forth in Part III, Section IV of the GC, which
provides regulations for the treatment of internees.
Similarly, in occupied territory, protected persons made subject to assigned residence and
thus required to leave their homes shall enjoy the full benefit of Article 39 of the GC.104 For
example, the internment standards in the GC should also be a guide for support to protected
persons and their dependents who are subject to assigned residence in occupied territory.
10.6.5 Refugees Who Do Not Enjoy the Protection of Any Government. In applying the
measures of control mentioned in the GC to protected persons in its home territory, the Detaining
Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an
enemy State, refugees who do not, in fact, enjoy the protection of any government.105 For
example, a refugee who is not actually protected by his or her government should not be
automatically subject to control measures simply on the basis of enemy nationality, but may be
subject to any other recognized control measure if there are additional reasons for such action.106
more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and
43.”).
102 GC art. 78 (“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety
measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”).
103 GC art. 41 (“In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave
their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining
Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of this
Convention.”).
104 GC art. 78 (“Protected persons made subject to assigned residence and thus required to leave their homes shall
enjoy the full benefit of Article 39 of the present Convention.”).
105 GC art. 44 (“In applying the measures of control mentioned in the present Convention, the Detaining Power shall
not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not,
in fact, enjoy the protection of any government.”).
106 See 1956 FM 27-10 (Change No. 1 1976) ¶283b (“The purpose of the foregoing article [37 of the GC] is to insure
that refugees who may only technically remain enemy aliens are not on that basis automatically subject to control
measures, notwithstanding the fact they actually are not protected by their government. However, the quoted
provision does not in any way deny the right of a State to intern any such person or subject him to any other
recognized measure of control when there is any additional reason that renders necessary the taking of such action as
may be required for the security of the State in a moment of national crisis.”).
661
10.7 GENERAL TREATMENT OF PROTECTED PERSONS IN A BELLIGERENT’S HOME TERRITORY
10.7.1 Regulation of the Situation of Protected Persons, in Principle, by Provisions
Applicable to Aliens in Time of Peace. With the exception of special measures authorized by the
GC, in particular by Articles 27 and 41 of the GC (i.e., measures of control and security, such as
internment), the situation of protected persons shall continue to be regulated, in principle, by the
provisions concerning aliens in time of peace.107 In any case, the following rights shall be
granted to them:
• They shall be enabled to receive the individual or collective relief that may be sent to
them (e.g., by their home country or national or international relief organizations, such as
the ICRC).
• They shall, if their state of health so requires, receive medical attention and hospital
treatment to the same extent as the nationals of the State concerned.
• They shall be allowed to practice their religion and to receive spiritual assistance from
ministers of their faith.
• If they reside in an area particularly exposed to the dangers of war, they shall be
authorized to move from that area to the same extent as the nationals of the State
concerned.
• Children under fifteen years, pregnant women, and mothers of children under seven years
shall benefit from any preferential treatment to the same extent as the nationals of the
State concerned.108
10.7.2 Opportunity for Employment and Other Support. Protected persons who, as a
result of the war, have lost their gainful employment, shall be granted the opportunity to find
paid employment.109 That opportunity shall, subject to security considerations and to the
107 GC art. 38 (“With the exception of special measures authorized by the present Convention, in particular by
Articles 27 and 41 thereof, the situation of protected persons shall continue to be regulated, in principle, by the
provisions concerning aliens in time of peace.”).
108 GC art. 38 (“In any case, the following rights shall be granted to them: (1) They shall be enabled to receive the
individual or collective relief that may be sent to them. (2) They shall, if their state of health so requires, receive
medical attention and hospital treatment to the same extent as the nationals of the State concerned. (3) They shall be
allowed to practise their religion and to receive spiritual assistance from ministers of their faith.
(4) If they reside in
an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same
extent as the nationals of the State concerned. (5) Children under fifteen years, pregnant women and mothers of
children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State
concerned.”).
109 GC art. 39 (“Protected persons who, as a result of the war, have lost their gainful employment, shall be granted
the opportunity to find paid employment.”).
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