ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 111. Part IV : Termination of captivity #Section I : Direct repatriation and accommodation in neutral countries
    [p.521] ARTICLE 111. -- INTERNMENT IN A NEUTRAL COUNTRY


    This provision is not entirely new. In accordance with a practice established during the First World War, Article 72 of the 1929 Convention provided that during the continuance of hostilities, and for humanitarian reasons, belligerents might conclude agreements with a view to the direct repatriation or accommodation in a neutral country of prisoners of war ' in good health ' who had been in captivity for a long time.
    This provision was therefore distinct from Article 68 , which referred only to the wounded and sick; it was nevertheless based on the same humanitarian considerations, since it was intended to mitigate the effects of several years' captivity, which can seriously affect the psychological condition of prisoners of war and make it extremely difficult for them to readapt themselves to normal life (1).
    Despite the fact that this provision is placed in Part IV, Section I, entitled "Direct repatriation and accommodation in a neutral country", the position is very different from that referred to in Articles 109 and 110 . As far as neutral countries are concerned, Articles 109 and 110 refer to the ' accommodation in a hospital or similar institution of wounded or sick ' prisoners of war. In such cases, the relevant agreements are concluded between the Detaining Power and the neutral Power concerned, without the intervention of the Power on which the prisoners of war depend.
    The present Article is much broader in scope; it authorizes a general exception from the system of captivity as provided under the [p.522] Convention and makes possible, by means of agreements between the three Powers concerned -- the Detaining Power, the neutral Power and the Power on which prisoners of war depend -- a system of ' internment ' in a neutral country.
    This would be a special kind of agreement concluded between the Powers concerned in order to establish a new régime applicable to prisoners of war. So long as such agreements and the conditions of internment provided therein do not in any way prejudice the safeguards which the Convention affords to prisoners of war -- for this is expressly forbidden by Article 6 -- it is considered that a neutral country can offer more favourable conditions than the country of detention. In particular, such agreements will be concluded when the Detaining Power is unable to afford to the prisoners in its hands the minimum standards specified by the Convention (2). Article 111 does not therefore merely authorize the Powers concerned to adopt such a solution -- it encourages them to do so (" shall endeavour to conclude agreements...")
    What is the situation if the neutral Power in question is not a party to the Convention? Although Article 12 forbids the Detaining Power to transfer prisoners of war to a State which is not a party to the Convention, that does not seem to constitute a valid obstacle to the conclusion of an agreement in the present case. Article 12 relates to decisions taken by the Detaining Power alone ("Prisoners of war may only be transferred by the Detaining Power...") and not, as in the present case, to decisions taken jointly by the Detaining Power and the Power of origin of the prisoners of war concerned. The only restriction in the Convention on Article 111 is therefore that contained in Article 6 : no agreement of any kind may adversely affect the situation of prisoners of war, as defined by the Convention, nor restrict the rights which it confers upon them. The conditions afforded to prisoners of war interned in neutral territory pursuant to Article 111 must therefore at least conform to the minimum standards laid down by the Convention (3). If the
    neutral Power is not a party to the Convention, it must nevertheless apply it or grant more favourable treatment.


    * (1) [(1) p.521] See ' Report on the Work of the Conference of
    Government Experts, ' p. 241.
    This provision was reinserted in the new Convention
    by the following amendment submitted by the Canadian
    Delegation: "If the Detaining Power is not in a position,
    for any reasons, to conform to certain minimum standards
    as regards the treatment of prisoners of war as envisaged
    in the present Convention, special agreements shall be
    concluded among the Detaining Power, the Power on which
    the prisoners of war depend and a neutral Power which may
    be acceptable to the two Powers. which will enable
    prisoners of war to be detained in future in a neutral
    territory until the close of hostilities, the whole
    expense to be borne by the Power on which the prisoners of
    war depend". (See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 292);

    (2) [(1) p.522] This condition is not essential, since the
    wording of Article 111 is very general; but it indicates
    the spirit in which this Article should be interpreted.
    See ' Final Record of the Diplomatic Conference of Geneva
    of 1949, ' Vol. II-A, p. 365;

    (3) [(2) p.522] During the Second World War some neutral
    Governments objected to the application in full of the
    1929 Convention to military internees who were in their
    territory as a result of the conflict. This case is not
    the same as that of Article 111 which requires the
    agreement of the neutral Power. As regards these
    objections, see ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, p. 559;