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Commentary - Art. 115. Part IV : Termination of captivity #Section I : Direct repatriation and accommodation in neutral countries
    ARTICLE 115. -- PRISONERS SERVING A SENTENCE


    HISTORICAL BACKGROUND

    Article 53 of the 1929 Convention stated that prisoners of war who fulfilled the conditions laid down for repatriation or accommodation in a neutral country were not to be retained on the ground that they had been awarded a disciplinary punishment.
    Under the same provision, the Detaining Power was authorized to retain prisoners of war under prosecution for criminal offences or serving a sentence of imprisonment until the expiry of the sentence.
    This rule was similar to that contained in Article 75 of the 1929 Convention and placed wounded or sick prisoners of war who were serving [p.535] a judicial sentence, even for a relatively slight offence, in a situation similar to that of able-bodied prisoners of war whose repatriation at the end of the hostilities was delayed because they were serving a sentence of imprisonment.
    At the Stockholm Conference it was proposed that the 1929 text should re-drafted in a more liberal form in order to make express provision for the repatriation or accommodation in a neutral country of wounded or sick prisoners of war who were under judicial prosecution or conviction, provided the Detaining Power agreed. A lively discussion took place at the Diplomatic Conference (1), which ultimately adopted the suggestion made by the Stockholm Conference.

    PARAGRAPH 1. -- PRISONERS OF WAR SERVING A DISCIPLINARY
    PUNISHMENT

    This provision corresponds to Article 53, paragraph 1 , of the 1929 Convention, with the insertion by the Diplomatic Conference of the words "or for accommodation in a neutral country" (2). It therefore applies to all wounded or sick prisoners of war referred to by Article 110 and whom it is decided to repatriate or accommodate in a neutral country during hostilities. A fortiori, therefore, it is also applicable to repatriation at the end of hostilities pursuant to Article 118 .
    This provision was the subject of some discussion at the 1929 Diplomatic Conference, when some delegates expressed the fear that it might, during the last few days before repatriation, deprive camp commanders of all means of maintaining discipline (3). This does not apply to the present case, however, for it is most unlikely that wounded or sick prisoners of war, whose condition is such that they qualify for inclusion in the categories specified in Article 110, paragraphs 1 and 2 , could engage in demonstrations prejudicial to camp discipline.

    [p.536] PARAGRAPH 2. -- PRISONERS OF WAR DETAINED IN CONNECTION
    WITH A JUDICIAL PROSECUTION OR CONVICTION (4)

    It is for the Detaining Power to decide whether a wounded or sick prisoner of war detained in connection with a judicial prosecution or conviction shall be allowed to benefit by repatriation or accommodation in a neutral country under Article 110, paragraphs 1 and 2 . Only after some discussion did the 1949 Diplomatic Conference adopt this provision, which is actually similar in meaning if not in form to the corresponding provision of the 1929 Convention (Article 53, paragraph 2 ). At most, the wording of the present text is more favourable to the prisoners of war, since it is expressly stated that the Detaining Power may agree to the departure of prisoners of war detained in connection with a judicial prosecution or conviction.
    The text nevertheless presents some disadvantages: there is a risk that a prisoner of war whose state of health qualifies him for repatriation, but who is serving a short sentence of imprisonment of not more than three months for a relatively minor offence, might not be repatriated; the present provision also makes it possible to retain a prisoner of war accused of a relatively slight offence during the judicial proceedings and until judgment has been given. If it is not possible to include him in a group of wounded or sick being repatriated during hostilities, he might have to wait a long time for the departure of another convoy and his state of health might be seriously impaired (5).
    In this regard, the present provision therefore affords no special privilege to wounded and sick as compared with able-bodied prisoners of war to whom Article 119, paragraph 5 , refers, unless the Detaining Power takes a lenient view, as the present provision invites it to do. In accordance with the spirit of the Convention, the Detaining Power should withhold consent only if it has good grounds for doing so and if its refusal would not seriously impair the state of health of the prisoners concerned.

    PARAGRAPH 3. -- COMMUNICATION OF LISTS

    This provision corresponds to Article 53, paragraph 3 , of the 1929 Convention, and is designed to ensure that prisoners of war who are [p.537] kept back can benefit by Article 110 as soon as possible after their release.
    The communication will be made through the intermediary of the Protecting Powers or, if there are none, the International Committee of the Red Cross (6).


    * (1) [(1) p.535] The Committee to which this Article had been
    referred approved the following amendment: "Prisoners of
    war prosecuted for an offence for which the maximum
    penalty is not more than ten years or sentenced to less
    than ten years shall similarly not be kept back". Further
    discussion took place in a plenary meeting, however, and
    after a first vote in which the voting was divided, this
    amendment was rejected. Apart from a few minor changes,
    the text of Article 115 therefore corresponds to that
    contained in the Stockholm draft;

    (2) [(2) p.535] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 335-336;

    (3) [(3) p.535] See ' Actes de la Conference de 1929, ' pp.
    421-492;

    (4) [(1) p.536] The French text reads: "Prisonniers de guerre
    poursuivis ou condamnés judiciairement ...";

    (5) [(2) p.536] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-B, pp. 314-315;

    (6) [(1) p.537] The notification that prisoners of war have
    been kept back will, if necessary, indicate that action on
    the decision by the Mixed Medical Commissions -- which
    under Article 12 of the Regulations (Annex II) must be
    carried out within three months -- has been postponed (see
    below, p. 662);