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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- ACTIVITY AFTER REPATRIATION
This provision reproduces Article 74
of the 1929 Convention, and the same principle had already been expressed in Article 6
of the 1864 Geneva Convention.
[p.538] A. ' Repatriated persons '. -- The Article covers prisoners of war repatriated by the Detaining Power pursuant to Articles 109
, that is to say seriously wounded or seriously sick prisoners of war whom the Detaining Power is required to repatriate regardless of number or rank (Article 109, paragraph 1
), prisoners of war accommodated in a neutral country and subsequently repatriated following an agreement between the Powers concerned (Article 110, paragraph 2
), and lastly, able-bodied prisoners of war who have undergone a long period of captivity and are repatriated by agreement between the Powers concerned (Article 109, paragraph 2
B. ' Duration and scope of the prohibition '. -- The provision that active service may not be resumed obviously applies to the whole duration of the hostilities in the course of which military personnel were captured and subsequently released, but only for the duration of those hostilities. This conclusion is based first on the fact that active military service is inconceivable when no state of hostilities exists, and secondly on the fact that such a restriction is justified only by the security requirements of the Detaining Power. Hostilities cannot be considered as ended until the Parties to the conflict have carried out the terms of Article 1 18, paragraph 1
, which provides for the repatriation of all prisoners of war after the cessation of active hostilities.
Instead of being rendered harmless by internment in the territory of the Detaining Power, prisoners repatriated under Article 109
are still to some extent rendered harmless, but in the territory of the Power on which they depend. One may therefore assume that once the belligerents, by arranging for a general repatriation of prisoners of war, renounce the safeguards afforded by captivity, Article 117 ceases to be applicable.
It is obvious that the Article can be invoked only by the Detaining Power and its allies, and that a third Power cannot avail itself of its provisions.
C. ' The concept of "active" military service '. -- At the 1949 Diplomatic Conference there was lengthy discussion in the relevant Committee as to whether the word "active" should be deleted. After examining the provisions in this section, the Medical Experts Committee proposed that it should be deleted for several reasons: it would be appropriate to make the text of Article 117 consistent with one of the stipulations of the Model Agreement, which referred only to "military service"; it was in the interest of repatriated prisoners [p.539] of war whose health was seriously impaired to be completely released from military discipline; lastly, it was preferable to avoid an expression which might give rise to difficulties of interpretation and to adopt a wording covering all forms of service (1).
In interpreting this phrase, the spirit of the Convention rather than national legislation should serve as a guide. It is, of course, difficult to give a precise definition, but the expression may be considered as broadly covering any participation, whether direct or indirect, in armed operations against the former Detaining Power or its allies (2). In effect, Article 117 forbids any repatriated person to serve in units which form part of the armed forces but does not prevent their enrolment in unarmed military units engaged solely in auxiliary, complementary or similar work.
In concluding agreements pursuant to Articles 109
, the Parties concerned are at liberty to stipulate what is meant by "active" service in the particular case concerned.
D. ' Responsibility, in case of violation '. -- It is generally agreed that the prisoners of war themselves cannot be held responsible for any violation of this rule. A belligerent State would therefore not be entitled to prosecute prisoners of war captured for a second time after a violation of Article 117, since they cannot be held responsible for action by the State whose orders they were obliged to obey (3).
The Protecting Power should be authorized, under Article 8
, to verify in the territory of the Power of origin that respected there.
As already mentioned, the Mixed Medical faced with this problem on several occasions during the Second World War, when called upon to deal a second time with prisoners of war who had already been repatriated under an earlier decision (4).
* (1) [(1) p.539] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 365 and
(2) [(2) p.539] See Geneva Convention of 1864, Article 6,
paragraph 4; "... on condition that they shall not again,
for the duration of hostilities, take up arms";
(3) [(3) p.539] In this connection, see BRETONNI RE, op. cit.,
p. 464. See also CHARPENTIER: ' La Convention de Genève et
le droit nouveau des prisonniers. ' thesis, Rennes, 1936,
p. 160; RASMUSSEN: ' Code des prisonniers de guerre, '
Copenhagen, 1931, p. 47. In practice, it is to be feared
that the Detaining Power might take action against the
prisoner himself. Scheidl therefore suggests that a
prisoner released under Article 117 should promise not to
resume active service. If the Power of origin obliged him
to do so, it would then be for the prisoner to prove that
he had acted under compulsion. (See SCHEIDL, op. cit., pp.
(4) [(4) p.539] See above the commentary on Article 110,
paragraph 1, sub-paragraph (3);