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Commentary - Art. 20. Part III : Captivity #Section I : Beginning of captivity

    This provision resulted from the distressing experience of the Second World War, when the most flagrant instances of ill-treatment of prisoners occurred during evacuation, both immediately after capture and when prisoners of war were transferred from one camp to another.
    The authors of the Convention therefore resolved to devote one Article to the conditions in which prisoners should be evacuated; the 1929 Convention failed to make adequate provision in this matter, and merely stated that the evacuation of prisoners should be effected by stages of not more than twenty kilometres per day. This latter stipulation is not included in the new text, since it is covered by the general wording of the present Article.


    This paragraph was the subject of lengthy discussion during the meetings which preceded the 1949 Diplomatic Conference. The Conference of Government Experts finally agreed on the principle of humane conditions similar to those for the forces of the Detaining power. At first sight, this stipulation seems to provide all the necessary safeguards. The circumstances of the combat may nevertheless, in certain cases, require the Detaining Power to transport its own troops in dangerous conditions which would be absolutely unjustifiable in the case of prisoners of war. Moreover, the standard of training and the [p.174] state of health of combatants and prisoners may be very different, and the same treatment cannot be given to prisoners of war, who are frequently exhausted by combat or by prolonged isolation, as is given to fresh troops going to the front for the first time or after a long rest behind the lines. Lastly, general living conditions may differ greatly: treatment which might be bearable for the captors might cause indescribable suffering for
    their prisoners. Account must be taken of varying habits in regard to climate, food, comfort, clothing, etc., and the Second World War on more than one occasion showed the consequences of this disparity in standards of living.
    The determining factor is therefore the concept of humane treatment, which is briefly defined in Article 13 above: evacuation must not endanger the life or health of prisoners of war. Moreover, although evacuation inevitably involves fatigue, it must be carried out in such a way as to avoid great hardship and suffering. There is therefore an absolute prohibition on the "death marches" of evil memory during the Second World War, when thousands of prisoners fell by the wayside. Nor may prisoners ever again be herded more than eighty together in a coach built to hold forty, so that many of them died during the journey.


    In order to emphasize their concern for the most essential steps to be taken by the Detaining Power before evacuation, the authors of the Convention gave some detailed provisions in the present paragraph. It is obviously in the interest of the capturing Power to evacuate prisoners of war to the rear as soon as possible, since they cannot but hinder military operations; furthermore at any moment during fluctuations in the fighting the adversary might be able to liberate them. It was therefore impossible to lay down very detailed requirements concerning evacuation and the present Article merely specifies essential matters: prisoners of war must be supplied with sufficient food and potable water and with the "necessary" clothing and medical attention.
    The word "necessary" implies the clothing and attention which are necessary for prisoners of war, taking into account their state of health, their training and their customs, as well as what is normally given to the troops of the Detaining Power (1).
    [p.175] The present paragraph also mentions the safety of prisoners of war and requires the Detaining power to take "all suitable precautions". In the first place the Detaining power must avoid evacuating prisoners across the fighting lines where they might come under fire (see Article 19 above). It must also take all suitable measures to protect prisoners from the dangers of air bombardment, in accordance with the provisions of Article 23 below. Lastly -- and this point may be of great importance in certain circumstances -- the Detaining Power must protect prisoners of war against any attack by the civilian population. If at any time the conditions specified in the first paragraph of this Article and in the present paragraph cannot be fulfilled, evacuation must be suspended and may only be resumed if the prisoners concerned would run greater risks by remaining where they are. But the Detaining Power must obviously take all possible steps to avoid such a situation.
    During the preparatory work, the International Committee of the Red Cross suggested that the present paragraph should include the requirement that a list of evacuated prisoners of war must be drawn up. The reason for this proposal was that during the Second World War many prisoners of war had disappeared during transfer, particularly when they were transported by sea. In accordance with this suggestion the Convention states that such a list must be established "as soon as possible". In actual fact, it is of the utmost importance that this list should be drawn up before departure since it is during travel that there is the greatest danger of disappearance. If they are to be of any real use, the lists must be accurate. Without going so far as to require all the information specified in the case of the capture card for which provision is made in Article 70 below, it seems reasonable that these lists should include at least the details referred to in Article 17, paragraph 1 , i.e. surname, first names, rank, army, regimental, personal or serial number
    or equivalent information, and date of birth. They should be drawn up in several copies, in order to facilitate checking on arrival at the camp.


    Evacuation may take place over a great or small distance, may be of short or long duration according to the distance and the means of transport and, lastly, may take place in several stages or even over several periods. It is not always possible to evacuate prisoners of war from the combat zone immediately; in most cases a temporary stay in [p.176] "transit camps" is inevitable. These camps must, however, not be confused with the transit camps of a permanent kind, to which Article 24 refers. The camps mentioned in the present paragraph are those which the military authorities may have to establish in a combat zone in order to house prisoners captured during military operations in that particular zone. In view of the fact that they are near the fighting zone, it is not always possible to require that such camps should fulfil all the material conditions specified in the Convention. During the Second World War, however, it sometimes happened that prisoners of war were kept in transit camps for a very long time, without adequate conditions of internment
    and, moreover, they were often refused the right to be visited by the bodies responsible for scrutiny and to send a notification of their whereabouts to the Central Prisoners of War Agency. In order to remedy this situation, the International Committee proposed that the Convention should state expressly that the stay of prisoners of war in transit camps should be "as brief as possible". Only in case of absolute necessity and for a very brief period may the full application of the conditions of internment provided by the Convention be suspended.

    * (1) [(1) p.174] Reference may also be made to Articles 26 and
    27 below, which deal respectively with food and clothing
    for prisoners of war;