ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 46. Part III : Captivity #Section II : Internment of prisoners of war #Chapter VIII : Transfer of prisoners of war after their arrival in camp
    [p.253] ARTICLE 46. -- CONDITIONS


    PARAGRAPH 1 (1) -- INTERESTS OF THE PRISONERS

    The interests of the prisoners of war themselves will not always correspond to what is most convenient for the Detaining Power, especially in matters of repatriation, as this paragraph appropriately notes. The need to take into account the possibility of repatriation may, however, conflict with the obligation to treat prisoners in accordance with the terms of the Convention, for not all regions are equally suitable for the internment of prisoners of war. In this case, the general obligations set forth in the Convention certainly override the recommendation in the present paragraph, and the Detaining [p.254] Power could not cite the need to take account of the possibility of repatriation at a date still unknown as justification for interning prisoners of war in regions where their rights could not be respected in full.

    PARAGRAPH 2. -- GENERAL PRINCIPLES

    The basic principle underlying this paragraph is that of assimilation to the forces of the Detaining Power, which is referred to earlier in Article 20 (conditions of evacuation).
    One might presume that the transport conditions accorded to such troops would be generally acceptable for prisoners of war, but this is not certain, particularly since troops trained in different climates might be unaccustomed to such conditions (2).
    Moreover, it is clear from the second sentence of this paragraph that, in any case of doubt, humanitarian considerations must override the principle of assimilation.

    PARAGRAPH 3. -- MAINTENANCE AND SECURITY

    1. ' First sentence. -- Maintenance '

    During transfer, the supply of food, water and shelter will always give rise to difficult problems which cannot be settled by improvised arrangements.
    Furthermore, the obligations set forth in the present paragraph are similar to those incumbent upon the Detaining Power pursuant to the general provisions of the Convention, and they are implicit in the second paragraph.

    2. ' Second sentence. -- Security '

    During the Second World War, many prisoner-of-war convoys, particularly those transferred by sea, were attacked and heavy losses were caused. The International Committee of the Red Cross therefore appealed to the Detaining Powers to resort to conveyance of prisoners of war by sea only for imperative reasons.
    [p.255] While it is regrettable that no agreement could be reached on a text more explicit than that of the present paragraph, nevertheless the Detaining Power is obliged to take every possible precaution when transferring prisoners of war (3).
    The preparation of lists is an elementary measure to be taken by the commander responsible for any detachment. Although the text does not say so, one may logically consider that these lists should be drawn up in several copies and should be sufficiently detailed to preclude any possible confusion or dispute at a later date. Transfers should preferably be notified and copies of the lists sent: (a) to the Protecting Power; (b) to the Central Prisoners of War Agency; this is an extremely
    important precaution.


    * (1) [(1) p.253] The insertion of this paragraph was proposed
    by Italy at the 1949 Diplomatic Conference (see ' Final
    Record of the Diplomatic Conference of Geneva of 1949, '
    Vol. II-A, p. 268; Vol. II-B, pp. 289-290). In presenting
    the amendment, the Italian representative called it "an
    appeal to the good faith and to the very conscience of all
    civilized nations" (ibid., Vol. II-B. p. 289). In this
    connection, one may also refer to the ' Report on the Work
    of the Conference of Government Experts, ' pp. 163-164;

    (2) [(1) p.254] The amendment proposed by the New Zealand
    Delegation was adopted by the 1949 Diplomatic Conference
    (see ' Final Record of the Diplomatic Conference of Geneva
    of 1949, ' Vol. II-A, pp. 268 and 359-360);

    (3) [(1) p.255] See ' Revue internationale de la
    Croix-Rouge, ' 1944, p. 199;