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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

Commentary - Art. 47. Part III : Captivity #Section II : Internment of prisoners of war #Chapter VIII : Transfer of prisoners of war after their arrival in camp

ARTICLE 47

. -- CIRCUMSTANCES PRECLUDING TRANSFER

GENERAL

Article 25

of the 1929 Convention read as follows:

"Unless the course of military operations demands it, sick and wounded prisoners shall not be transferred if their recovery might be prejudiced by the journey."

In the preliminary documentation prepared for the Conference of Government Experts, the International Committee of the Red Cross proposed that wounded or sick prisoners of war who could not be removed in suitable conditions should remain on the spot, even should they then fall into the hands of the Detaining Power's adversary.

A draft text in this sense was approved at the Stockholm Conference and was subsequently adopted unanimously and without objection at the Geneva Diplomatic Conference (1).

[p.256] PARAGRAPH 1. -- TRANSFER OF WOUNDED OR SICK PRISONERS OF WAR

In order to determine whether recovery may be jeopardized by the journey, one must know not only the patient's state of health, but also the travelling conditions. The doctor will therefore give an opinion on each case, after making all relevant enquiries.

The transfer must be justified by reasons of absolute necessity. This implies pressure of circumstances which cannot be evaded. If the reason is the proximity of the battlefield, before effecting the transfer one should endeavour to make contact with the belligerents in order to notify them that prisoners of war are in the vicinity.

PARAGRAPH 2. -- TRANSFER IN THE VICINITY OF THE COMBAT ZONE

This paragraph was motivated by the tragic events towards the end of the Second World War, when prisoners of war were forced to march under inhuman conditions until finally it was decided perforce to let them be taken by the adverse party. The provision refers to able-bodied prisoners as well as wounded and sick. "Adequate conditions of safety" are those set forth in Article 46

; if these conditions cannot be fulfilled, the transfer may be effected only if the prisoners would be "exposed to greater risks" by remaining on the spot.

The camp commander must therefore, in the first place, endeavour to reduce risks by applying the provisions of the Convention which relate to evacuation immediately following capture (Article 19, paragraph 1

, and Article 20

) and to the marking of camps (Article 23, paragraph 4

). Detaining Powers are required to give each other, through the intermediary of the Protecting Powers, "all useful information regarding the geographical location of prisoner-of-war camps" (Article 23, paragraph 3

) and the Detaining Power must avoid keeping prisoners of war in any area or place which might be of tactical or strategic interest.

The present Article must be read in conjunction with other Articles relating to transfers of prisoners of war: Article 12

(transfer to another Power), Article 19

(evacuation after capture), Article 20

(conditions of evacuation). These Articles, which are based on the same principle, obviously overlap, and the same precautions and measures must be taken in all the different cases of transfer so as to ensure that it is effected humanely. Reference should therefore be made to the commentary on Articles 12

, 19

and 20

for any additional remarks which may be useful in connection with the present Article.

* (1) [(2) p.255] See ' Final Record of the Diplomatic

Conference of Geneva of 1949, ' Vol. II-A, p. 270;