5/5/2002 Translated from the French done by W.Kaschner

INTERNATIONAL COMMITTEE OF THE RED CROSS

CENTRAL AGENCY FOR PRISONERS OF WAR

GENEVA, August 21,1945

Palace of the General Counsel

MEMORANDUM

concerning the present situation of

Prisoners of war

Until such time as the Allied Powers establish by mutual agreement certain of the arrangements which they shall take as a result of the cessation of the war in Europe, the International Committee of the Red Cross can not disinterest itself from the present and future situation of prisoners of war and civilian internees.

In effect, the hostilities between the Allied Powers and the German Reich have come to an end not by a treaty, but by the unconditional surrender of the German military forces, with the disappearance of the German Government.  Thus the German prisoners of war find themselves in an unprecedented situation.

That situation can not be presently dealt with by means of an ad hoc agreement among the Powers detaining them and the State to which the prisoners of war in question belong.  This is why the International Committee of the red Cross – without having to take a position as to the situation thereby created – believes that the prisoners of war should continue to benefit from those guarantees that they are assured of by existing Conventions and that those Conventions preserve their entire effect, even if their normal application is suspended or modified, specifically because one of the belligerent parties has in fact disappeared.

In any case, the International Committee of the Red Cross is pleased to be able to determine that the intentions of the Allied Powers signatory to the Geneva Convention of 1929 concerning the treatment of prisoners of war are in conformity with such point of view.  In effect, those Powers specifically wish to authorize delegates from the International Committee of the Red Cross to visit the camps, to help in distributing aid to the prisoners of war, although a corresponding activity with respect to the adversary party no longer comes into play.  Moreover, the Powers signatory to the aforesaid Convention continue to furnish the International Committee of the Red Cross information as to the names of the prisoners of war whom they are detaining and to authorize these prisoners of war to notify and to exchange news with their families. 

The International Committee of the Red Cross is pleased to be able to confirm these generous arrangements, especially as it has continually been engaged, since the beginning of the war, -and in the majority of cases successfully – in promoting the application of the principles of the Geneva Convention regarding the treatment of prisoners of war, even where the parties in conflict do not recognize each other as such and, as a consequence, no protective Power was in a position to occupy itself with the detained prisoners from one side or the other.

Based on the above considerations, the International Committee of the Red Cross believes itself obliged to submit the following point to the Allied Powers.

Certain transfers of prisoners have taken place, the prisoners thereby passing from the power of one detaining Power to another Allied Power.  Although nothing in the existing Conventions deals with such transfers, one may nonetheless question whether, within the spirit of Articles 2 and 75 of the Geneva Convention of 1929, the detaining powers are entitled to dispose in this manner of the prisoners of war in their power.  However that may be, if any such measures are to be decided upon, the International Committee of the Red Cross believes that they should in no case result in a diminution of those guarantees under the Convention acquired by such prisoners of war, nor impair their situation in actual fact.

This is why the International Committee of the Red Cross believes that these transferred prisoners of war should, in any case, be the beneficiaries of a treatment at least equal or equivalent to that which would have been guaranteed them had they remained in the hands of the Power which had captured them in the first place.  This would specifically require assuring them the same possibilities of communicating with their families, of receiving regular reports of news and shipments of aid, of being assured of adequate conditions of hygiene and of being visited by an approved organization.

The above considerations deal solely with the régime under which, according to the International Committee, the prisoners of war should be the beneficiaries for as long as their captivity continues, that is to say their status as prisoners of war.  It should be remembered here, however, that the duration of captivity itself, which according to the Hague Convention depends upon the conclusion of a treaty of peace, should not be indeterminate, even if under the circumstances the effectiveness of such a treaty involves a very long delay.  Moreover, the fact that the detaining Powers by disarming the prisoners removes their designation and status as prisoners of war, without, however, permitting them to return home, should not in the opinion of the International Committee of the Red Cross be considered to be a normal end of their captivity.  Such a new condition, above all if it carries with it the loss or diminishment of the guarantees granted by the Conventions to prisoners of war, would to the contrary be, for those subjected to it, a worsening of their situation, on the subject of which the International Committee of the Red Cross has already expressed reservations, specifically by the note which it addressed to all the belligerent Powers on August 23, 1943.