Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- DETAILS OF PROCEDURE
[p.554] The 1929 Convention did not contain any detailed provisions concerning the procedure for repatriating prisoners of war and Article 75, paragraphs 2 and 3
, referred only to prisoners of war who, at the time of repatriation, were subject to criminal proceedings, and also to the commissions instituted to search for scattered prisoners and ensure their repatriation.
The Stockholm Conference recommended that those provisions should be supplemented by new clauses concerning the actual conditions in which repatriation takes place and also the order of priority for the repatriation plan.
The 1949 Diplomatic Conference agreed with those recommendations and added additional provisions concerning the personal effects of prisoners of war (paragraphs 2 to 4 of the present Article).
PARAGRAPH 1. -- CONDITIONS OF REPATRIATION
At the 1949 Diplomatic Conference some objections were made to the application in full of Articles 46
to 48 as it was felt that rather serious difficulties might ensue. For instance, Article 48, paragraph 1
, states that prisoners of war must be able to inform their next of kin. [p.555] There may be cases, however, in which this requirement cannot be met because families have moved as a result of war events (1).
The 1949 Conference added to the Stockholm text the reservation at the end of the paragraph that regard must be had to the provisions of Article 118
and to those of the following paragraphs of the present Article (2).
The reference to Article 118
relates especially to the requirement of repatriation ' without delay ' after the cessation of active hostilities. A reservation therefore applies to measures provided under Articles 46
to 48 which, while being in the interest of prisoners of war, might result in undue delay in repatriation.
The Conference was opposed to any excessively detailed order of priority for repatriation, as it might result in complicating and thereby delaying repatriation (3). In our opinion, however, the Detaining Power must grant priority to wounded and sick prisoners of war, in accordance with the general spirit of the Convention. It is clear from Section I of Part IV, which relates to the repatriation of such prisoners of war during the hostilities, that they must receive privileged treatment.
PARAGRAPH 2. -- RETURN OF ARTICLES OF VALUE AND FOREIGN
Under Article 18, paragraph 4
, sums of money carried by prisoners of war at the time of capture and which are not in the currency of the Detaining Power, or are not converted into such currency, must be recorded in a special register. Paragraph 6 of the same Article provides that such sums must be returned to the prisoners of war concerned at the end of captivity, together with any articles of value withdrawn under Article 18, paragraph 5
The first sentence of the present paragraph therefore confirms those provisions by specifying the time at which these items must be restored, that is to say upon repatriation.
The second sentence merely confirms the provisions of Article 122, paragraph 9
below. In the confusion which may reign at the time of repatriation of prisoners of war, it is quite likely that sums of money and articles of value impounded from them at the time of capture [p.556] cannot be restored to them with all desirable guarantees. Since it would be unfortunate if repatriation was delayed because of this, the Convention provides that in such cases the Information Bureau provided for in Article 122
may be used as an intermediary.
PARAGRAPHS 3 AND 4. -- BAGGAGE AND PERSONAL EFFECTS
This provision reproduces the text of Article 48, paragraph 2
, of the Convention which concerns the procedure for transferring prisoners of war from one camp to another.
There is, however, a difference as regards the weight of the baggage which prisoners of war are permitted to take with them. Whereas Article 48, paragraph 2
, states that the authorized weight "shall in no case be more than twenty-five kilograms per head", the present provision permits "at least" twenty-five kilograms to be carried (4). It may well be that during captivity prisoners of war accumulate a large quantity of objects which they would wish to take with them.
Paragraph 4 of the present Article as finally adopted provides that the other personal effects of the repatriated prisoner are to be left in the charge of the Detaining Power which must forward them to him as soon as it has concluded an agreement with the Power on which he depends as regards the conditions of transport and payment of the costs involved (5).
PARAGRAPH 5. -- PRISONERS OF WAR UNDER PROSECUTION
OR CONVICTION FOR AN INDICTABLE OFFENCE
This provision is based on Article 75, paragraph 2
, of the 1929 Convention.
The Conference retained that provision, but replaced the phrase "a crime or offence at common law" by "an indictable offence" (6).
This amendment was considered necessary since it was not the intention of the drafters of the Convention that a prisoner should be detained because preceedings were being taken against him or because he was summoned to appear before court for neglect of some obligation in civil law; they were thinking only of prisoners of war subject to criminal proceedings (7).
[p.557] It should also be noted that the present provision does not oblige the Detaining Power to detain prisoners under such prosecution or conviction; it is a step which the Detaining Power may take if it wishes. In accordance with the practice followed by certain Powers at the end of the Second World War, the records of prisoners of war undergoing prosecution or conviction who have been repatriated may, where appropriate, be transmitted to the Power to whose territory they have been repatriated.
PARAGRAPH 6. -- COMMUNICATION OF THE NAMES OF DETAINED
PRISONERS OF WAR
This is a new provision which will eliminate any uncertainty as to the fate of the prisoners of war concerned and enable their next of kin to be informed. Although the text does not expressly say so, this communication should be made through the intermediary of the Information Bureau (Article 122
) and the Central Prisoners of War Agency (Article 123
PARAGRAPH 7. -- COMMISSIONS TO SEARCH FOR PRISONERS OF WAR
Although its wording is more imperative, this provision corresponds to Article 75, paragraph 3
, of the 1929 Convention; it was adopted without difficulty by the 1949 Diplomatic Conference, which merely inserted a phrase stating that the repatriation of such prisoners of war must be assured with the least possible delay (8).
* (1) [(1) p.555] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 296;
(2) [(2) p.555] Ibid., Vol. II-A, p. 338;
(3) [(3) p.555] Ibid., Vol. II-B, p. 320;
(4) [(1) p.556] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A pp. 452-453;
(5) [(2) p.556] Ibid., Vol. II-A, pp. 296-297, 339 and 455;
(6) [(3) p.556] Ibid., Vol. II-A, p. 455;
(7) [(4) p.556] Ibid., Vol. II-B, p. 318; see also Vol. II-A,
(8) [(1) p.557] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, pp. 339-340 and