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Commentary - Art. 110. Part IV : Termination of captivity #Section I : Direct repatriation and accommodation in neutral countries
    ARTICLE 110. -- CASES OF REPATRIATION AND ACCOMMODATION


    [p.514] This Article was not included in the 1929 Convention, but its essential features are taken from the Model Draft Agreement annexed to that instrument (1).
    The inclusion in the body of the Convention of the guiding principles formerly contained in the Model Draft Agreement annexed to the 1929 Convention is the result of a suggestion by the Government Experts. The International Committee of the Red Cross proposed an additional clause relating to the repatriation of prisoners of war accommodated in neutral countries (2). These provisions do not preclude the application of the Model Draft Agreement, for its principles have been retained and the text was developed and improved by the drafters of the new Convention, as will be seen in connection with paragraph 4 of the present Article.

    PARAGRAPH 1. -- DIRECT REPATRIATION

    The phrase "shall be repatriated direct" appeared in the 1929 Convention (Article 68, paragraph 2 ) and was deliberately included [p.515] here; it implies, in contrast to paragraph 2 below, that repatriation must take place without any intermediate stage of accommodation in a neutral country. Moreover, it will take place before the end of the hostilities; seriously sick and wounded prisoners of war must be afforded special conditions for speedy transport, or priority over any other convoys which may be organized by the Detaining Power pursuant to an agreement with the Power on which prisoners of war depend.
    The present paragraph defines the cases to be considered as seriously sick or wounded.

    (1) ' Incurable cases: ' This category came second on the list in the Model Draft Agreement annexed to the 1929 Convention; the 1949 Diplomatic Conference thought it preferable to place at the head of the list prisoners of war whose condition was such that there could be no question as to their right to repatriation, provided that the incurability was proved and that the mental or physical fitness of the persons concerned had been diminished to a considerable extent. The main objection raised by the Detaining Power against early repatriation is that repatriated prisoners of war might return to active service. This danger does not exist in the case of wounded and sick in this category.
    The decision as to the patient's condition will be taken by the appropriate medical officers: members of the Mixed Medical Commissions or doctors of the Detaining Power (3).
    The Model Agreement annexed to the Convention (Annex I) contains in section I.A (1) a list of disabilities which may come within the first category; this list is given as an indication and does not prevent a more generous interpretation, as the text expressly states. Moreover, it is stated in section II of the Agreement ' (General observations, ' paragraph (5)), that "The examples quoted... represent only typical cases. Cases which do not correspond exactly to these provisions shall be judged in the spirit of the provisions of Article 110 of the present Convention, and of the principles embodied in the present Agreement."
    This remark applies to all the lists contained in the Agreement.

    (2) ' Wounded and sick who are not likely to recover within one year: ' This provision appeared in almost identical terms in the Model Draft Agreement annexed to the 1929 Convention, in section A (1). During [p.516] the Second World War, the Mixed Medical Commissions usually considered the time-limit of one year as running from the date when the injury was sustained and not from the date of examination by the Commission (1). This is specified in paragraph 2, sub-paragraph (1), below, which relates to accommodation in a neutral country. The cases included in this category are listed in Annex I under section (2) for wounded prisoners of war, and (3) for those who are sick. The experts who drafted the Model Agreement considered, however, that in some cases the time-limit of one year was not sufficient (4).
    It should be noted that the opinion as to whether "recovery may be expected" will be not only that of the Mixed Medical Commissions provided for in Article 112, paragraph 1 , below, but also that of the medical authorities of the Detaining Power. The Model Agreement specifies that in certain cases the decision of the Mixed Medical Commission is to be based to a considerable extent on the records kept by camp physicians and surgeons of the same nationality as the prisoners of war, or on an examination by medical specialists of the Detaining Power (5).

    (3) ' Wounded and sick who have recovered but whose mental or physical fitness has been gravely and permanently diminished: ' This wording is also taken from the Model Draft Agreement annexed to the 1929 Convention (section A (3)); the drafters of the new Convention merely added the provision that the impairment must be not only grave but permanent (6).
    At the meeting of neutral members of the Mixed Medical Commissions, particular attention was paid to the case of prisoners of war who, after being repatriated following a first decision, appear before the Mixed Medical Commission a second time. During the Second World War, there were several instances where prisoners of war rejoined their national forces in violation of Article 74 of the 1929 Convention (now Article 117 ) and were recaptured. The Mixed Medical Commissions generally refused to recommend repatriation of such prisoners of war, even if they met the conditions specified in the present paragraph (7). Such an attitude is understandable but nevertheless [p.517] regrettable, since it makes the prisoner of war bear the full responsibility which is in fact incumbent on the State which permitted him to resume active service (8). Furthermore, there is no legal justification for such an attitude; if any breach of the Convention is committed, the State is responsible and not the individual, who may moreover in no case be deprived of the benefits
    secured to him by the Convention (Article 7 ). At the very least, one may suppose that it is not the business of the Mixed Medical Commissions to denounce such prisoners of war to the Detaining Power and make them liable to severe penalties.
    One possible solution in order to avoid further breaches of this kind might be to apply to such cases not paragraph 1 of the present Article, which relates to direct repatriation, but paragraph 2, which provides for accommodation in a neutral country. Moreover, pursuant to Article 8 , this is a matter for co-operation and supervision by the Protecting Powers which must ensure that Article 117 is applied to the letter by the Power of origin of prisoners of war in its own territory.

    PARAGRAPH 2. -- ACCOMMODATION IN A NEUTRAL COUNTRY

    Despite the fact that the clause in the 1929 Convention (Article 72 ) (9) providing for the accommodation in a neutral country of wounded and sick prisoners of war was never applied during the Second World War, the drafters of the new Convention thought fit, as has been seen in connection with Article 109, paragraph 2 , above, to retain the principle in the new Convention. The purpose of the present paragraph is to define the categories of wounded and sick who may benefit by this measure; they are more extensive than the categories eligible for repatriation, since in accordance with the general wording in Article 109, paragraph 1 , repatriation is available for ' seriously wounded ' and ' seriously sick ' prisoners of war, while accommodation in a neutral country is provided for ' wounded ' or ' sick ' prisoners of war in general.
    Unlike paragraph 1 above, which is in the imperative form ("shall be repatriated direct"), the present paragraph is in the nature of a recommendation and merely invites the belligerents to arrange for accommodation in a neutral country; this corresponds to the wording [p.518] of Article 109, paragraph 2 ("Parties to the conflict shall endeavour... to make arrangements for the accommodation in neutral countries...").

    (1) ' Wounded and sick whose recovery may be expected within one year: ' This notion is similar to that contained in paragraph 1, subparagraph (2), above; the period of one year was taken as a basis for judging the condition of a wounded or sick prisoner of war. Whereas sub-paragraph (2) of paragraph 1 applies to wounded or sick prisoners of war not likely to recover within one year, however -- and this places them in the category of seriously wounded and seriously sick who are eligible for repatriation -- the present provision concerns those whose recovery can be expected within that time. The stipulation that the period of one year is to run from the date of the wound or the beginning of the illness confirms the interpretation given above of paragraph 1, sub-paragraph (2).
    Transfer to a neutral country is nevertheless subject to the condition that the treatment which the prisoner of war will receive there is likely to increase the prospects of a more certain and speedy recovery. The interest of the prisoner of war is therefore the determining factor, and in order to respect this condition, accurate information must be available in each individual case as regards the possibilities of treatment and cure offered by the neutral country (10).
    As regards the cases which come under this heading, one should refer to the annexed Model Agreement (Annex I), section B.

    (2) ' Prisoners of war whose mental or physical health is seriously threatened: ' This provision corresponds almost exactly to section B (2) of the 1929 Model Agreement. In particular, this category includes cases mentioned under section B (5) of the Model Agreement, that is to say cases of war or captivity neurosis. The Model Agreement also states under "General observations", paragraph (1), that such cases must be considered in as broad a spirit as possible.

    [p.519] PARAGRAPH 3. -- REPATRIATION OF PRISONERS OF WAR
    ACCOMMODATED IN A NEUTRAL COUNTRY

    The state of health of wounded or sick prisoners of war accommodated in a neutral country may deteriorate to such an extent as to make them eligible for consideration as seriously wounded or seriously sick. The present clause makes provision for this possibility and reproduces the text of section C of the Model Draft Agreement annexed to the 1929 Convention.
    Repatriation in such cases is, however, subject to agreement between the Powers concerned, and the Convention merely indicates the general rules to be followed by them in concluding such agreements. The question therefore arises whether the neutral Power is entitled of its own accord to send prisoners of war which it has accommodated back to their country of origin, or whether on the contrary it must submit such cases to the former Detaining Power (11).
    As regards repatriation of prisoners of war who fulfil the conditions specified in sub-paragraphs (1) to (3) of paragraph 1 above, the answer is obvious: the neutral Power is not only entitled but is obliged to send such prisoners of war back to their own country. Had they fulfilled the conditions specified in paragraph 1 at the time when it was decided that they should be accommodated in a neutral country, they would simply have been declared eligible for repatriation. There is therefore no reason why such a decision should not be taken at a later stage. It would seem that the neutral Power, particularly if it takes on, with regard to the wounded or sick prisoners of war to whom it has offered hospitality, the responsibilities specified in Article 12 which are none other than the responsibilities of the Detaining Power, should be authorized to repatriate those prisoners of war without having to consult the Power which initiated the transfer; if need be, the neutral Power would refer to the agreement concluded with the transferring Power.
    This does not apply to the second category, specified in sub-Paragraph (2), that is to say, those whose condition has not been [p.520] improved by treatment in a neutral country and who remain in a considerably diminished state of health. If such cases are repatriated, there is still a risk that, contrary to the provisions of Article 117 , they might resume active service, and the consent of the transferring Power must therefore be obtained before any repatriation.

    PARAGRAPH 4. -- APPLICATION OF THE MODEL AGREEMENT
    AND THE REGULATIONS CONCERNING MIXED MEDICAL COMMISSIONS

    Article 68, paragraph 2 , of the 1929 Convention specified that the Model Draft Agreement annexed to that instrument was for reference purposes. At the beginning of the Second World War, the belligerents declared that they were ready to apply the Model Draft Agreement, and repatriation during hostilities was organized on that basis.
    The present provision goes farther than the 1929 text: in the absence of any other agreement, the Model Agreement is to be applicable; moreover, it gives the most authoritative interpretation of paragraphs 1 and 2 of the present Article, and it is to be hoped that the Parties to a conflict will respect the definitions which it contains, even if they supplement them by a special agreement. It is in the interest of the belligerents that the provisions relating to repatriation and accommodation in a neutral country should be applied in the most effective manner possible. Furthermore, the "Report on the Meeting of the Sub-Commission for the Revision of the Model Draft Agreement (Annex to the Prisoners of War Convention of July 27, 1929)" (12) contains a sort of commentary on the very detailed text of the Model Draft Agreement; we shall not consider this in detail here. It should, however, be pointed out that the present text is considerably improved and more comprehensive as compared with the 1929 text. It does not, however, appear to take into
    account wounds caused by the use of nuclear weapons, or by chemical and bacteriological weapons.
    In the absence of any special agreement between the Powers concerned, the Regulations concerning Mixed Medical Commissions (Annex II) are also applicable (13).


    * (1) [(1) p.514] See ' Annex to the Convention of July 27,
    1929, relative to the treatment of prisoners of war, Model
    Draft Agreement for the direct repatriation and
    accommodation in a neutral country of prisoners of war for
    reasons of health, Actes de la Conference Diplomatique de
    1929, ' pp. 721-724.
    Article 68, paragraph 2, of the 1929 Convention,
    which followed the provision now contained in Article 109,
    paragraph 1, above (Article 68, paragraph 1, of the 1929
    Convention) read as follows:
    "Agreements between the belligerents shall therefore
    determine, as soon as possible, the forms of disablement
    or sickness requiring direct repatriation and cases which
    may necessitate accommodation in a neutral country.
    Pending the conclusion of such agreements, the
    belligerents may refer to the Model Draft Agreement
    annexed to the present Convention."
    The Draft Agreement was therefore merely a model and
    during the Second World War it was only applied because
    the Governments concerned declared at the outbreak of
    hostilities that they were ready, subject to reciprocity,
    to apply it without amendment.
    See ' Report of the International Committee of the
    Red Cross on its activities during the Second World War, '
    Vol. I, p. 374;

    (2) [(2) p.514] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions for the
    Protection of War Victims, ' p. 121;

    (3) [(1) p.515] See ' International Committee of the Red
    Cross, Report on the Meeting of the Sub-Commission for the
    Revision of the Model Draft Agreement (Annex to the
    Convention of July 27, 1929, relative to the treatment of
    prisoners of war), ' Geneva, July 1946, pp. 3-4;

    (4) [(1) p.516] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' p. 18;

    (5) [(2) p.516] See Annex I, section I, A. (3) sub-paragraphs
    (c), (d), (e), (g), (i) and (k);

    (6) [(3) p.516] See ' Report on the Meeting of the
    Sub-Commission for the Revision of the Model Draft
    Agreement (Annex to the Convention of July 27, 1929,
    relative to the treatment of prisoners of war), ' pp. 4-5;

    (7) [(4) p.516] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' pp. 18-19;

    (8) [(1) p.517] See the commentary on Article 117;

    (9) [(2) p.517] See below, p. 739;

    (10) [(1) p.518] In the Regulations concerning Mixed Medical
    Commissions (Annex II), Article 10 mentions, among
    decisions to be taken by the Commission, only examination
    with a view to possible repatriation. In our view,
    however, provided the necessary agreements have been
    concluded between the Powers concerned, the Commissions
    should also be responsible for examination with a view to
    accommodation in a neutral country, since Article 113
    provides for examination by the Mixed Medical Commissions
    of ' wounded or sick ' prisoners of war in general, and
    not merely the seriously wounded and seriously sick who,
    pursuant to Articles 109 and 110, are alone eligible for
    repatriation during hostilities;

    (11) [(1) p.519] Here the English text contains an obvious
    error of translation; while in the French the wording is
    the same as that used at the beginning of the paragraph
    ("seront rapatriés"), which is imperative, the English
    text ("should be repatriated") corresponds neither to the
    French nor to the English text as it appears at the
    beginning of the Article -- "shall be repatriated";

    (12) [(1) p.520] Geneva, June 1946, series I, No. 2, pp. 30-31;

    (13) [(2) p.520] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' series I, No. 1;