ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 77. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 77. -- HANDING OVER OF DETAINEES AT THE CLOSE
    OF OCCUPATION


    This provision is of prime importance; the absence of such a rule would have allowed an Occupying Power with not too many scruples to take detained persons with it in its retreat and thus to circumvent the prohibition on deportation in Articles 49 and 76 .
    The Convention states expressly that persons detained by the Occupying Power shall be handed over at the close of occupation to the "authorities of the liberated territory." This is an absolute obligation and no exception is permitted.
    The "authorities" mentioned will be those who in fact take over legal power in the territory abandoned by the Occupying Power, whether they are the government existing before the invasion of the country or another, newly formed, government.
    It is made clear that the provision covers both persons "accused of offences" (in preventive detention) and those "convicted by the courts" and serving their sentences.
    The obligation to hand over the "relevant records" at the same time is more important than it would seem at first sight. Indeed the prospect of having to hand over these documents may lead the Occupying Power to pay more scrupulous respect to the judicial guarantees laid down by the Convention. During the occupation, the Protecting Power will doubtless not have the time to study all cases closely, but after the relevant papers are handed over, it can go through them and determine whether the Occupying Power has acted according to the due forms of law.
    [p.367] The Convention does not lay down any rules concerning the practical arrangements for handing over detainees, because they will depend on circumstances and on whether the liberation of the occupied territory is accompanied by fighting or not, and whether the local administration has been able to continue to function or not. There again the intervention of the Protecting Power and the International Committee of the Red Cross will prove most useful.