ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 12. Part II : General protection of prisoners of war
    [p.128] ARTICLE 12. -- RESPONSIBILITY FOR THE TREATMENT
    OF PRISONERS


    PARAGRAPH 1. -- RESPONSIBILITY OF THE POWER AS SUCH

    1. ' First sentence. -- Principle '

    War is a relationship between one State and another, or, one may also say, between one belligerent Power and another; it is not a relationship between individual persons. The logical consequence is that prisoners of war are not in the power of the individuals or military units who have captured them. They are in the hands of [p.129] the State itself of which these individuals or military units are only the agents. The present provision, which formally establishes this principle, reproduces the text of Article 2, paragraph 1 , of the 1929 Convention, which in turn was derived from Article 4, paragraph 1 , of the Hague Regulations of 1907.

    2. ' Second sentence. -- Responsibility of the State and of the individual '

    Although there is no room for doubt regarding the "power" of the State over prisoners, the Convention nevertheless makes a distinction between the responsibilities involved in the exercise of this power, according to whether they rest on individuals acting in the capacity of agents carrying out their normal duties, or on individuals who override their authority or act in their private capacity.
    Any breach of the law is bound to be committed by one or more individuals and it is normally they who must answer for their acts. Nevertheless, if the author of the act contrary to international law is an agent of the State, which is indubitably the capacity of members of the armed forces who take others prisoner or are responsible for guarding them, it is not his responsibility alone which is involved, but also that of the State, which must make good the damage and punish the offender. To the extent, however, that individual men and women acquire "international" rights and obligations as they do in connection with the laws and customs of war, so are they invested with the capacity of committing international offences, for which they personally may be held responsible, as well as the State to which they belong.
    The existence of this dual responsibility is well reflected in the Article, which declares that the State is responsible, while making a reservation in regard to individual responsibilities. The Convention thus shows clearly that two distinct responsibilities may co-exist and emphasizes that they are not alternatives but cumulative in relation to one another. The fact that the State has made good the damage caused in no way diminishes the responsibility of the author of the offence and, vice versa, punishment of the offender does not relieve the State of its responsibility. The two forms of sanction for violations of the Convention thus run parallel to each other, a fact the Diplomatic Conference wished to stress.
    Only the responsibility of the State will be dealt with here, as the question of individual responsibility is considered in Part VI in connection with Articles 129 and 130 (on penal sanctions).
    [p.130] The principle of the responsibility of the State implies an obligation on the State to instruct its agents in their duties and their rights. In that respect Article 12 is similar to Article 1 which, as we have seen, binds the Contracting Parties to respect and "ensure respect for" the Convention in all circumstances, and to Article 127 , which stipulates that the text of the Convention is to be disseminated as widely as possible both in time of peace and in time of war.
    The principle of responsibility further demands that a State whose agent has been guilty of an act in violation of the Convention should be required to make reparation. This already followed from Article 3 of the Fourth Hague Convention of 1907 respecting the Laws and Customs of War on Land, which states that "a belligerent Party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces".
    Compensation for damage resulting from the unlawful act, although not stipulated explicitly, is undoubtedly implied by the authors of Article 12. Consequently, a State which bears responsibility for a violation of the Convention is in duty bound to make good the damage caused, either by restoring everything to the former condition ' (restitutio in integrum) ' or by paying damages, the choice resting, as a general rule, with the injured party. In many cases, however, reparation will have to be limited to the payment of damages, when the nature of the prejudice caused makes restoration impossible. An example of this would be the physical and mental injury suffered by prisoners who, despite the individual safeguards provided in the Convention, have been brutally treated while in captivity.
    It was not for the Convention to lay down rules concerning the procedure for applying this Article. The position is not the same as in the case of the individual liability to punishment of persons guilty of infringing clauses of the Convention. That is a comparatively new principle of the law of war, while here we are dealing with a traditional provision of international law. It is possible to refer, on the matter, to recognized rules embodied in the clauses of peace treaties, to provisions of statute law and to awards in international arbitration.
    The safeguard contained in the present Article is reinforced by Article 131 relating to the responsibilities of the Contracting Parties, which may not absolve themselves of any liability incurred in respect of one of the grave breaches defined in Article 130 .
    One other point should be made clear. The Convention does not give a prisoner the right to make a personal claim for compensation. The State is answerable to another contracting State and not to the [p.131] former prisoner. On that point the recognized system was not in any way modified in 1949 (1).

    PARAGRAPH 2. -- RESPONSIBILITY OF THE RECEIVING POWER

    The provision in the first paragraph was accepted without difficulty by the authors of the Convention, but nevertheless it does not cover the special case of the transfer of prisoners from one belligerent Power to another. This practice, which became increasingly common during the Second World War, raises a problem quite distinct from the question of the accommodation and hospitalization of prisoners in a neutral country (2).
    The Conference of Government Experts gave immediate support to the proposal to prohibit any transfer of prisoners of war from a Power which was a party to the Convention to one which was not (3). With regard to transfers as between Powers which are parties to the Convention, the Conference discussed the matter at some length without coming to an agreement, particularly as to which of the Powers should be held responsible for implementing the Convention. Some delegations proposed stipulating joint responsibility for both Powers concerned, in order to avoid possible worsening of conditions for prisoners so transferred. Other delegations considered that joint responsibility would be a difficult matter in practice and that, further, it might furnish the enemy with opportunities of creating friction between the Powers concerned. In their view, it is one of the fundamental principles of the Convention that its application is the responsibility of the Power actually holding prisoners and not of the Power which captures them (4).
    The same question was discussed at the 1949 Diplomatic Conference (5). Finally, the majority of delegations supported the present compromise, which fell between the principle of joint responsibility and that of sole responsibility. The matter was [p.132] all the more important in that the scope of the obligations under the Convention depends, to some extent, on the identity of the Detaining Power since, in many cases, the Convention refers to the legislation of that Power in order to determine the applicable standards of treatment (6).
    Since the end of the Second World War, the significance of this question has deepened with the establishment of military organizations for collective defence such as the North Atlantic Treaty Organization and the Warsaw Pact, which place the armed forces of several Powers under a unified command in case of conflict. Most of the member States of these organizations are in fact bound by the Geneva Conventions; but, if that were not the case, any transfer of prisoners to such Powers would automatically be prohibited under this paragraph (7). It is nevertheless of great importance, because of differences in national legislation on matters to which the Convention makes express reference, as we have said above, to determine exactly which Power is the responsible Detaining Power of prisoners. A case in point is the application of the death penalty: an offence punishable by the death penalty in one country might perhaps be liable to a less severe sentence under the legislation of another country. Moreover, for soldiers who are about to surrender, it is
    not a matter of indifference to know which Power is facing them. Lastly, the general problem of responsibility for the treatment of prisoners of war can be solved only on the very basis on which the system provided by the Convention is itself founded: the States parties to the Convention must remain responsible for the prisoners captured by their armed forces. A unified command which has authority over the armed forces of several countries cannot in this case take over the responsibility incumbent upon States; otherwise the proper application of the Conventions which are, at least at the present stage, indissolubly linked to a structure composed of States, would be endangered.
    [p.133] The intervention of armed forces under the command of an international political organization such as the United Nations is distinct from that of a coalition of States.

    A. ' Coalition organizations '. -- Some authors consider that the coalition organizations which have developed since the end of the Second World War have wrought a complete transformation in traditional conceptions and call for a fundamental revision of the system of bilateral agreements. Consequently, the following solutions have been proposed with regard to the application of the Geneva Conventions:

    (a) by a special agreement concluded in advance, certain Powers should be designated to be responsible for the treatment accorded to prisoners of war;

    (b) the present Conventions should be modified by substituting fixed standards for those applicable under the national legislation of the Detaining Power; furthermore, unified commands might be associated in the Conventions by becoming parties to the Conventions on the same footing as States (8).

    These proposals call for the following comments: solution (a) is contrary to the letter of the present provision: prisoners are "in the hands of the enemy Power" which must be construed as meaning the Power to which "the individuals or military units who have captured them" are responsible. The proposed solution is contrary to the spirit and the letter of the Convention in that it would result in a restriction of the rights conferred upon prisoners of war by Article 6 , to an extent which could only be determined by detailed study of the national legislations. Furthermore, it is obvious that such a responsibility could never be assigned to a Power which is not a party to the Convention, since any such transfer is expressly prohibited by Article 12 .
    Solution (b), which involves a modification of standards, is notas revolutionary as it may seem at first sight, but it is in fact a matter which has been a strumbling-block for many important international assemblies: the international codification of penal law. The difficulties would therefore be considerable (9). The provisions of the Conventions [p.134] of the International Labour Organisation would make it easier to solve problems relating to labour of prisoners of war.
    It is none the less certain that the establishment of coalition organizations such as those which have been formed since the end of the Second World War causes practical problems as far as the application of the Geneva Conventions is concerned.
    Let us assume that the coalition is made up of States A, B, C and D. The prisoners have been captured by State A, which is a party to the Convention and is therefore responsible for the strict application of the Convention to them. It might be, however, that the prisoners captured by State A are interned on the territory of State B, and guarded by troops of State C under the general command of an officer of State D. The difficulties which would ensue for the delegates of the ICRC and the representatives of the Protecting Power are obvious. Furthermore, unless every precaution is taken in time, that is to say at the time of capture or surrender, confusion would inevitably occur and it might be virtually impossible to determine which State is the responsible Power; as we have seen, this question is far from being unimportant, since on many points it is the legislation of the Detaining Power which is to be applied to prisoners.

    A solution might be found to these problems along the following lines:

    (a) as a general rule, subject to considerations relating to their
    security, prisoners should be interned on the territory of the Power
    which captured them, and guarded by troops of that Power;

    (b) if prisoners are interned on the territory of a Power other than that
    which captured them, they should nevertheless wherever possible be
    guarded by troops of the latter Power and should receive the
    treatment to which they would have been entitled if they had been
    interned on the territory of that Power;

    (c) if prisoners are interned on territory other than that of the Power
    which captured them, and if they are guarded by troops other than
    those of the latter Power, the necessary arrangements should be made
    for them to be transferred to another Detaining Power in accordance
    with paragraph 2 of Article 12 .

    (d) full regard should always be had to the provisions of paragraphs 2
    and 3 of Article 12 concerning transfer .

    [p.135] B. ' International armed forces '. -- This applies particularly to military action by the United Nations. There are two possible cases:

    (a) The United Nations takes action through a member State which is
    instructed to engage in armed operations on its behalf (10);

    (b) The United Nations acts in its own name, and the armed forces
    provided by member States are under the political responsibility of
    the United Nations only.

    In each of these cases, one cannot conceive that the United Nations, most of whose members are bound by the Geneva Conventions, would not apply the latter in full and to the letter, even if the military action was directed against one or more States which were not parties to these Conventions. Moreover, the member States would probably not agree to provide military forces without the assurance that the Conventions would be respected. This view was in fact confirmed when an international force was set up at the time of the Suez conflict in 1956; in reply to the International Committee of the Red Cross, the Secretary-General of the United Nations stated that, if the occasion arose, the troops engaged would apply the laws of war and in particular the Geneva Conventions.
    In the first case, the State entrusted with carrying out the operation would be responsible for the prisoners captured, whether or not it was a party to the Convention; in the second case, the States which had provided military contingents would be responsible jointly. One may add that in both cases, there is nothing to prevent the United Nations from being held responsible in the second instance for the treatment and fate of prisoners of war.

    ' General '. -- Whether the case involves a coalition of States, an international armed force or any other organization within which military personnel of several States fight side by side, one general principle prevails: wherever it is impossible or difficult, for any reason, to determine which is the State which has captured prisoners of war and consequently is responsible for them, this responsibility is borne jointly by all the States concerned. In such a case, the [p.136] broadest obligations in the humanitarian field of one or several of the States concerned must of course be applied by all of them; it is therefore of little significance if one of these States is not a party to the Conventions.
    Any other solution would be inconsistent with Article 1 , which requires the High Contracting Parties to respect and to ensure respect for the Convention in all circumstances. There must be no possibility for a group of States which are fighting together to agree to hand over to one of their members not a party to the Convention all or some of the prisoners whom they have captured jointly, thus evading the application of the Convention. Such a solution would be a flagrant violation of the spirit and the letter of the Convention.

    1. ' First sentence. -- Conditions for transfer '

    This provision sets forth two mandatory conditions for any transfer of prisoners:

    (a) prisoners of war may only be transferred from one Power which is a
    party to the Convention to another Power which is a party to the
    Convention;

    (b) such transfer may only take place after the transferring Power has
    satisfied itself of the willingness and ability of the receiving
    Power to apply the Convention.

    The first condition is clearly stated and its interpretation arouses no difficulties. With regard to the second condition, it may be asked how the transferring Power is to satisfy itself that the receiving Power is able to apply the Convention. The Power wishing to transfer prisoners can only satisfy itself of the ability of the receiving Power to accept the prisoners through prior investigation; in our view the future Protecting Power of the prisoners who are to be transferred would seem to be the best qualified authority to effect such an investigation, subject to any special agreement on the subject which may be concluded between the two parties.

    2. ' Second sentence. -- Responsibility after the transfer '

    This provision establishes the principle of the full and complete responsibility of the receiving Power from the moment at which [p.137] prisoners are transferred and for the whole period during which those prisoners are on the territory of the Power concerned. This obligation for the receiving Power is independent of the transferring Power, whose relationship with the former is defined in the third paragraph of the present Article. The rights and duties of the receiving Power in regard to prisoners follow directly from the Convention, and this Power is therefore in the same situation as any other Protecting Power.

    PARAGRAPH 3. -- OBLIGATIONS OF THE TRANSFERRING POWER

    Despite the fact that a certain responsibility is thus laid on the receiving Power, it was never the intention of the authors of the Convention thereby to relieve the transferring Power of all responsibility with regard to the prisoners who are transferred.
    As we have seen, the authors of the Convention first considered a system of joint responsibility (11) which maintained the responsibility of the transferring Power to a subsidiary degree and in certain cases. This system was not adopted in 1949, but it was the subject of lengthy discussion. Although joint responsibility may seem the most appropriate way of ensuring the maximum safeguards to prisoners, there would undoubtedly be difficulties of application, since it would give the transferring Power the right to interfere in the affairs of the receiving Power to an unlimited extent (12). The Geneva Conference therefore adopted a system of subsidiary responsibility, subject to certain specific conditions.

    A. ' Conditions of the obligation '. -- The text states that the responsibility of the transferring Power is involved if the receiving Power "fails to carry out the provisions of the Convention in any important respect". It is therefore in this case, and in this case alone, that the transferring Power continues to have responsibility, But what constitutes failure to carry out the provisions in any important respect, and how would the transferring Power be informed thereof ? The text supplies the answer to the second question by providing for notification by the Protecting Power, but there is no answer to the [p.138] first question. However, Article 130 of the Convention, which is one of the provisions relating to the execution of the Convention, gives a list of "grave breaches" which is not incompatible with the notion of "any important respect" as mentioned in the present provision. According to Article 130 , the following acts are considered to be grave breaches: "wilful killing, torture or inhuman treatment, including biological
    experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention". The commentary on this text will be found under the Article concerned (13), but there is no doubt that this list specifies matters on which the transferring Power should intervene in accordance with the present provision. On the other hand, we do not consider that these types of grave breaches need necessarily be committed "wilfully" in order to justify any such intervention. The transferring Power may and indeed must intervene if these acts have been committed and if the receiving Power is unable or unwilling to rectify the situation immediately.
    The obligations of the receiving Power are, however, more extensive. The general conditions of internment stipulated in the Convention must be respected: quarters, food, hygiene, labour and working pay. If the receiving Power fails to carry out these provisions in any "important" respect, the responsibility of the transferring Power is again involved. The breach would have this effect, not only if it caused serious prejudice to the prisoners, but also if it amounted to systematic violation of the Convention. Differences of interpretation as between the Powers concerned will, of course, always exist; but if it is the interpretation of the transferring Power which is more favourable to the prisoners, then it must prevail.
    Lastly, reference may be had to Article 13 , which states the general principle of humane treatment, in order to determine whether or not the alleged breach constitutes failure to carry out the provisions of the Convention "in any important respect".

    B. ' Extent of the obligation '.-- The phrase "effective measures to correct the situation" refers especially to measures of direct assistance: food supplies, the sending of teams of doctors and nurses, equipment, etc., and in our view, as an indispensable corollary of the responsibility [p.139] laid upon the transferring Power, the receiving Power is obliged to accept this offer of assistance. If these measures nevertheless prove inadequate, if the poor treatment given to prisoners is not caused merely by temporary difficulties but by ill-will on the part of the receiving Power, or if for any other reason the situation cannot be remedied, the power which originally transferred the prisoners must request that they be returned to it. In no case may the receiving Power refuse to comply with this request, to which it must respond as rapidly as possible.
    The Power which originally transferred the prisoners of war may moreover arrange for them to be transferred to a third Power which is better qualified to receive them, provided the latter is also a party to the Convention (14).


    * (1) [(1) p.131] The Peace Treaty with Japan (concluded at San
    Francisco in 1951) provides an example of the assumption
    by a State of responsibility for the treatment of
    prisoners. In Article 16 of that Treaty, Japan affirmed
    her desire to make compensation to Allied prisoners of war
    who suffered undue hardship during their captivity, and
    authorized the use of Japanese assets in neutral countries
    for this purpose. The ICRC was made responsible for
    distributing these funds among the various countries
    concerned;

    (2) [(2) p.131] This question is dealt with in Part IV below,
    ad Articles 109, 110 and, more particularly, 111;

    (3) [(3) p.131] See ' Report on the Work of the Conference of
    Government Experts ', p. 117;

    (4) [(4) p.131] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 245-247,
    327-328;

    (5) [(5) p.131] Cf. Actes, II-A, pp. 236-239, 318-319 (Edition
    française);

    (6) [(1) p.132] In the first place, with regard to penal and
    disciplinary sanctions (Art. 82, 84, 87, 88, 95, 99, 100,
    103, 104, 105, 106, 108) and working conditions (Art. 51,
    53 and 57); a similar reference is also made in connection
    with evacuation and transfer (Art. 20 and 46), quarters
    and security (Art. 23 and 25);

    (7) [(2) p.132] All the member States of the Warsaw Pact
    (Albania, Bulgaria, Czechoslovakia, the German Democratic
    Republic, Hungary, Poland, Rumania and the USSR) are
    parties to the Convention. The member States of the North
    Atlantic Treaty Organization (Belgium, Canada, Denmark,
    France, the Federal Republic of Germany, Greece, Iceland,
    Italy, Luxemburg, the Netherlands, Norway, Portugal,
    Turkey, United Kingdom, United States of America) are all
    parties to the Convention with the exception of Canada and
    Iceland which, at the time of preparation of the present
    volume, had not yet deposited instruments of ratification;

    (8) [(1) p.133] See Major R.R. BAXTER, ' "Constitutional forms
    and some legal problems of international military
    command", British Year Book of International Law, ' 1952,
    p. 354;

    (9) [(2) p.133] An interesting attempt has, however, been made
    in this regard in Articles 81 and 82 of the draft Treaty
    constituting the European Defence Community;

    (10) [(1) p.135] During the Korean conflict it was never
    possible to determine who was responsible for the
    treatment of prisoners of war, but these difficulties were
    essentially due to the fact that the principal executive
    agent of the United Nations in Korea -- the United States
    of America -- was not at that time a party to the 1949
    Geneva Conventions;

    (11) [(1) p.137] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions, ' p. 59;

    (12) [(2) p.137] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-B, p. 273;

    (13) [(1) p.138] See below, Article 130;

    (14) [(1) p.139] Although the 1929 Convention contained no
    express provision to this effect, the International
    Committee of the Red Cross has always held the view that
    in case of transfer the Power which captured the prisoners
    retains a certain responsibility. Thus, in August 1945 it
    drew the attention of the United States Government to the
    difficult situation of German prisoners of war who had
    been handed over by the United States military authorities
    to the French authorities, because of the general shortage
    of foodstuffs in France. Following this intervention, the
    United States placed very large quantities of foodstuffs
    and clothing at the disposal of the International
    Committee of the Red Cross, and these supplies were
    forthwith distributed to prisoner-of-war camps in France.
    The text of this Article is largely based on this
    experience. (See ' Report of the International Committee
    of the Red Cross on its activities during the Second World
    War, ' Vol. III, pp. 110-111.);