Prisoner Exchanges in International Law (1–2)

Dr Inas Mohamed Ahmed

In ancient times, the world had no specific, clear or universally agreed rules governing the exchange of prisoners. Such exchanges were conducted according to the customs of each nation or people and in accordance with their beliefs, values, principles and rules of warfare.
What was generally accepted, however, was that the victorious party determined the conditions governing the exchange of prisoners and set the ransom payable for each captive according to the prisoner’s social status or military rank. For example, the ransom for a man was higher than that for a woman, the value assigned to a combatant was greater than that assigned to an ordinary civilian, and a tribal leader or notable commanded a higher ransom than an ordinary person. In contrast, a child was valued at less than a woman, and so forth.
As societies developed, states emerged, organised armies were established, and warfare became more frequent. Numerous military customs evolved, including practices governing the exchange of prisoners.
Prisoner exchanges became an established military custom used at the end of wars between states. Over time, the practice developed further, with exchanges taking place under temporary peace agreements or during temporary truces concluded either while a conflict was continuing or after it had ended.
In the eighteenth century, the term cartels referred to formal agreements concluded between belligerent states to regulate the treatment and exchange of prisoners.
In 1780, an agreement was concluded providing for the exchange of prisoners on a man-for-man, rank-for-rank basis. Sick prisoners, those incapable of further combat and those who had been wounded were to be repatriated without waiting for an exchange, thereby reducing the costs associated with their care and protection. The opposing state was expected to reciprocate by returning prisoners under the same arrangements.
The period between 1899 and 1907 witnessed the emergence of the first international agreements providing for the release or exchange of prisoners after hostilities ended. These represented a significant development and encouraged belligerent states to conclude agreements governing prisoner exchanges during or after wars.
It should be noted, however, that at this stage these remained temporary bilateral agreements concerning prisoner exchanges. They constituted a recognised custom that states could choose whether or not to apply.
The first international legal instrument specifically devoted to prisoners of war, their treatment, and the procedures governing their repatriation was the Geneva Convention, concluded on 27 July 1929.
The Convention established clear foundations for prisoner release and marked a significant milestone in the development of international humanitarian law.
It provided for the establishment of joint commissions composed of representatives of the belligerent states to locate and return prisoners to their families following the signing of peace agreements or the conclusion of hostilities.
The Convention also established international principles for protecting prisoners and preserving their dignity. It affirmed the requirement of humane treatment and prohibited all forms of violence and physical or psychological torture.
It allowed prisoners to correspond with their families and receive letters from them without interference from the Detaining Power. It also established the principle that prisoners must not be subjected to reprisals or acts of vengeance.
Through these principles, the Convention paved the way for international legal scholars to develop a comprehensive agreement that incorporated the military principles and customs that had evolved alongside changes in warfare, humanitarian conditions, and the mechanisms of international law.
This process was also influenced by the emergence of international organisations that played an important role in codifying agreements and introducing a humanitarian dimension into prisoner-exchange operations.
Foremost among these organisations was the International Committee of the Red Cross, which has consistently intervened as a neutral party to mediate or facilitate prisoner exchanges and ensure the safety of prisoners until they are returned to their countries or reunited with their families.
Through this work, the International Committee of the Red Cross accumulated extensive experience spanning many decades.
All these developments paved the way for the adoption of the Third Geneva Convention of 1949, which remains the principal legal framework governing the treatment and repatriation of prisoners of war today.
The 1977 Additional Protocol to the Geneva Conventions subsequently strengthened the legal protections afforded to prisoners and facilitated the work of the International Committee of the Red Cross in such operations.
At the international level, several landmark events profoundly affected the practical application of the Third Geneva Convention of 1949.
Among the most important were the events following the end of the Second World War, when the Korean Peninsula—which had been a Japanese colony—was divided into two parts: North Korea, which aligned itself with the Soviet Union and China, and South Korea, which aligned itself with the United States and its Western allies.
On 25 June 1950, a violent war broke out between the two Koreas. It resulted in thousands of military deaths and injuries, brutal massacres of civilians on both sides, and the capture of many thousands of prisoners.
These atrocities were documented through photographs and official records, yet no individual responsible for them has been prosecuted to this day. Nor has a peace treaty ever been signed between the two Koreas.
The conflict resulted in the capture of enormous numbers of military personnel and civilians from both sides, as documented in the records maintained by the belligerents.
Growing domestic public pressure in both countries, together with international calls for an end to the war, created the need for an international diplomatic platform under United Nations auspices through which the warring parties could engage in dialogue.
The immediate objective was to stop the fighting and then proceed directly towards the exchange of prisoners.
A group of neutral states subsequently undertook this task and helped establish temporary ceasefire arrangements to facilitate prisoner exchanges.
The first prisoner exchanges between the two Koreas began in April 1951.
Following the success of the initial operation, numerous further exchanges took place between the parties and continued until September 1953.
These operations constituted the largest prisoner-exchange process in history.
During them, United Nations forces handed over 75,823 prisoners of war, including 70,183 North Korean prisoners and 12,773 prisoners of various nationalities, among them 3,597 American prisoners and 7,862 South Korean prisoners.
This operation is regarded as the largest prisoner exchange in the world. It has become an important practical reference for states and international organisations in implementing prisoner-exchange operations on the ground.
We now turn to the Geneva Convention Relative to the Treatment of Prisoners of War, dated 12 August 1949, which contains 143 articles.
The Convention was adopted following the revision of the Convention concerning the protection of prisoners of war of 27 July 1929, which contained 97 articles, and was subsequently supplemented by the 1977 Additional Protocol.
The importance of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War lies in the following provisions:
It established a strict obligation to treat prisoners humanely, preserve their dignity, and protect them from coercion, torture and intimidation.
It established standards governing places of detention, requiring adequate sanitary conditions, protection from winter cold and summer heat, sufficient food, appropriate clothing, respect for prisoners’ religions and religious beliefs, and permission to practise their religious observances.
It established the right to medical care, including medical examinations and the provision of necessary treatment for prisoners.
It established legal protections under which a prisoner is required to provide only their name, rank, date of birth and military service number. Prisoners must not be subjected to pressure to extract information about the nature of their duties, their participation in military operations, their colleagues or any other information.
The information referred to in point four above is used to record the prisoner’s name and rank in official prisoner registers, which are provided to the International Committee of the Red Cross when prisoner-exchange operations take place.
It is noteworthy that the fundamental purpose of the Convention is to treat captivity as a temporary precautionary military measure intended to preserve the lives of soldiers and protect them from reprisals or killing.
States are therefore required to protect prisoners and provide them with the necessary medical care until they are eventually repatriated or released.
There is also a fundamental provision in the Convention concerning the dissemination of its rules.
Article 41 requires the text of the Convention to be displayed in prisoner-of-war camps in a language understood by the prisoners and by the authorities responsible for their detention.
A state or detaining authority cannot invoke ignorance of the Convention or lack of knowledge of its provisions as justification for failing to comply with its obligations.
To be continued…

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