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Some Problems of the Law of War After the Conclusion of an Agreement for the Suspension of Hostilities

An armistice or a cease-fire is often the occasion for a release or an exchange of prisoners of war. A provision on this subject may be, but is not necessarily, an implementation of Article 118 of the Geneva Prisoners of War Convention, which requires that prisoners of war shall be released and repatriated without delay “after the cessation of active hostilities”.[1] When Egypt and Israel concluded an agreement in 1973 to carry out the cease-fire ordered by the Security Council, they agreed that once United Nations checkpoints were established, there would be an exchange of prisoners of war.[2] Were they under an obligation to do so ? The law prior to 1949 was that prisoners had to be repatriated only at the conclusion of peace—[3]that is, at the time of the conclusion (or perhaps the coming into force) of a treaty of peace, which might be many years after the actual conflict ended. But when have “active hostilities” ceased? If an unconditional surrender has taken place, it seems very unlikely that there will be any resumption of hostilities, and it is therefore altogether safe for a belligerent to release the prisoners in its hands. Some recent armistices appear to have had some aspects of peace settlements, and one of the reasons for concluding the armistice was to secure the release of prisoners.[4] Provisions on release and repatriation ofprisoners are therefore to be expected. But if an armistice is local or only a cease-fire has been concluded, the signing of the instrument is not necessarily an indication that “active hostilities” have ended. On the contrary, the agreement may be drafted in such a way as to indicate that the agreement is temporary and that hostilities will or may resume. To release prisoners under these circumstances thus goes beyond the obligation imposed by Article 118.

However, this question of timing is part of a much larger question about the interpretation to be given to Article 118.

The release of prisoners of war which was provided for in the Korean Armistice Agreement was complicated by the issue of the forced return of prisoners of war to the country from which they had come (or, as it was sometimes put, the granting of “asylum” to such persons). The principle that force should not be used against prisoners of war to compel their return to their home country had been affirmed by the General Assembly,[5] and the Armistice Agreement accordingly provided that those who did not exercise their right to be repatriated under the terms of the Armistice would be put in the hands of a Neutral Nations Repatriation Commission and released to civilian status after 120 days.[6] The theory was that, while in the custody of this neutral body, prisoners could make up their minds freely, without coercion from the Detaining Power or from their fellow prisoners. In the event, the Commission was unable to discharge its task of allowing a free choice by prisoners after they had been given “explanations” of the pros and cons of going or staying, and those who had not elected to be repatriated had to be returned to the custody of the Detaining Powers, who released them to civilian status.[7] What seemed at the time a humanitarian step to take actually proved to be largely unworkable, leading one to conclude that the drawing up of an armistice or the repatriation of prisoners is not the best possible time to provide an opportunity of emigration.

Those prisoners who are serving sentences for an indictable offence (including a war crime) or who are charged with such an offence need not be repatriated.[8] No such exception was made in the Korean Armistice, and in the Paris Peace Agreements of 1973 it was expressly provided that all prisoners would be returned.[9] In light of the fact that various American aviators had been charged with war crimes and had been wrongfully deprived of their status as prisoners of war, there were fears that certain prisoners might not be repatriated. The Protocol to the Agreement, concerning the Return of Captured Military Personnel, provided that “the detaining parties shall not deny or delay their [all captured persons’] return for any reason, including the fact that captured persons may, on any grounds, have been prosecuted or sentenced”.[10] The abuse of the doctrine of war criminality in recent years probably makes this a sensible step to take in all armistices and cease-fires providing for the repatriation of prisoners of war.

One related matter concerning prisoners of war may be mentioned. When the USS Pueblo was captured by the North Korean authorities in 1968, the question arose whether the United States should claim prisoner-of-war treatment for the members of the crew of this naval vessel.[11] The provisions of the Korean Armistice on the repatriation of prisoners of war had been fully executed years before, and it was feared that to seek prisoner-of-war status would indicate that hostilities had resumed, thus giving rise to the possibility that North Korea would claim that the Armistice was no longer in operation. The legal niceties were avoided, and the prisoners were released in December of 1968 under a face-saving formula, which kept the issue of the release of the prisoners a matter separate and apart from the Armistice.[12] This case is illustrative of the more general problem of how prisoners who are taken in outbursts of hostilities after the conclusion of an armistice are to be treated, more especially an armistice that has provided for the release of prisoners. It would be intolerable if such prisoners were held indefinitely, and, as in the Arab-Israeli conflict, quiet arrangements are usually made for the release or exchange of prisoners between armistices or cease-fires.

The armistices that were concluded in the Second World War sometimes contained provisions that were inconsistent with the law ofwar governing prisoners of war and belligerent occupation. The Parties, one of them acting under duress, purported to contract out of the law of war in various respects. In order to avoid this, the Geneva Conventions of 1949, in articles common to all four of the instruments, authorized the conclusion of special agreements relating to persons protected under the Conventions, but stipulated that “No special agreement shall adversely affect the situation of protected persons as defined by the present Convention, nor restrict the rights which it confers upon them”.[13] These multilateral treaties, which have secured nearly world-wide acceptance, thus place limits on the autonomy of the parties in concluding agreements relating to the suspension ofhostilities. It would be wrongful, for example, to include in an armistice bringing active hostilities to an end a provision that nevertheless prisoners of war would not be released and repatriated in conformity with Article 118 of the Prisoners of War Convention of 1949.

Provisions of the Geneva Conventions stipulating when the Conventions and various articles thereof cease to be applicable also were responsive to a problem that arose out of the capitulations at the end of the Second World War. After the unconditional surrender of Germany, were the treaties and customary law of belligerent occupation still applicable? It was maintained by the United States that the law of belligerent occupation looked to an essentially tentative state of affairs, whereas the outcome of the war had been decided by the defeat and surrender of Germany; that there was no German government, other than the four occupying powers, to claim rights under the law; and that the victorious powers could have taken the extreme step of annexing the territory of Germany and, having elected to take the lesser step of occupying the country, should not now be confined by the constraints of a body of law that, in any event, would have ceased to have application at the time of an annexation of Germany.[14] The United States and the United Kingdom did apply some of the law of belligerent occupation in occupied Germany but only ex gratia.[15] The matter has now been resolved under the Geneva Conventions by the provision when the obligations created by the treaties cease to apply, without regard to any agreement for suspension of hostilities that may have been concluded by the parties[16].

  • [1] Geneva Convention relative to the Treatment of Prisoners of War, done at Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 135.
  • [2] Agreement regarding the implementation of United Nations Security Council resolutions 338 (1973) and 339 (1973), done 11 Nov. 1973, Security Council Official Records, 28th Year, Supplementfor October, November and December 1973, p. 98.
  • [3] Convention relating to the Treatment of Prisoners of War, signed at Geneva, 27 July 1929, Art.75, League of Nations Treaty Series, Vol. 118, p. 343. Article 75 provided: “When belligerents conclude a convention of armistice, they must, in principle, have appeartherein stipulations regarding the repatriation of prisoners of war. If it has not been possibleto insert stipulations in this regard in such convention, belligerents shall nevertheless cometo an agreement in this regard as soon as possible. In any case, repatriation of prisoners shallbe effected with the least possible delay after the conclusion of peace.”
  • [4] E.g., the Paris Peace Agreements on Vietnam, as cited note 29, supra.
  • [5] General Assembly resolution 610 (VII), 3 Dec. 1952, General Assembly Official Records, SeventhSession, Supplement No. 20, p. 3, UN Doc. A/2361 (1953).
  • [6] Agreement between the Commander-in-Chief, United Nations Command, on the One Hand,and the Supreme Commander of the Korean People’s Army and the Commander of the ChinesePeople’s Volunteers, on the Other Hand, concerning a Military Armistice in Korea, signed atPanmunjom, 27 July 1953, Art. 3, subpara. 51 (b), and Terms of Reference for Neutral NationsRepatriation Commission, United States Treaties and Other International Agreements, Vol. 4, p. 234,TIAS No. 2782.
  • [7] Baxter, “Asylum to Prisoners of War”, in British Year Book of International Law, Vol. 30 (1953),p. 489 at pp. 492-495.
  • [8] Geneva Convention relative to the Treatment of Prisoners of War, as cited note 100, supra,Art. 119.
  • [9] Protocol to the Agreement on Ending the War and Restoring Peace in Vietnam concerning theReturn of Captured Military Personnel and Foreign Civilians and Captured and Detained VietnameseCivilian Personnel, as cited note 29, supra, Art. 1. As to the problem in Korea, see Baxter, op. cit., supra,note 106 at pp. 494-495.
  • [10] Art. 6.
  • [11] The various statements made by the United States (e.g., that of 26 Jan. 1968, Department ofState Bulletin, Vol. 58 (1968), p. 192, and that of 12 Feb. 1968, id., at p. 356) soon after the capturemade no claim to prisoner-of-war status for the crew ofthe Pueblo. See as to the issue ofprisoner-of-warstatus, Rubin, “The Seizure of the Pueblo: Some International Law Aspects”, in [United States]Congressional Record, Vol. 114 (1968), p. 2351 at p. 2352.
  • [12] Statement by Department of State Spokesman, 22 Dec. 1968, Department of State Bulletin, Vol.60 (1969), p. 1.
  • [13] Geneva Convention relative to the Treatment of Prisoners of War, as cited note 100, supra,Art. 6.
  • [14] Von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice ofBelligerent Occupation (1957), pp. 276—285; Jennings, “Government in Commission”, in British YearBook of International Law, Vol. 23 (1946), p. 112; cf. von Laun, “The Legal Status of Germany”, inAmerican Journal of International Law, Vol. 45 (1951), p. 267 at p. 274, citing the German literature.
  • [15] Office of General Counsel, Office of the United States High Commissioner for Germany,Selected Opinions, Vol. 19 (1950), pp. 18 and 46.
  • [16] Geneva Convention relative to the Protection of Civilian Persons in Time of War, dated atGeneva, 12 Aug. 1949, Art. 6 UNTS, Vol. 75, p. 287.
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