Prisonniers de guerre aux mains de leur puissance d'origine


This paper assumes that at least some of the persons detained within the framework of the global confrontation against terrorism should have been granted the status of prisoners of war. This raises the question of what should be happening to these prisoners of war once they are transferred to their country of origin.

Persons deprived of freedom within the framework of the global confrontation against terrorism are considered as enemies by both the detaining authorities and the authorities from their country of origin. This is happening either because the latter changed between the moment they were made prisoners and the moment they were transferred (e.g. Afghanistan, Iraq) or because they have always been part of the opposition to their authorities. Being transferred to a country which should have offered them at least consular protection, and did not, means that they are once again jailed, abused, tortured, threatened, deprived of contacts with their family, etc.

This paper argues that prisoners of war should continue to benefit from this status if they are transferred to a country that will continue to detain them essentially because of their participation to an armed conflict, even if the receiving country is the prisoner of war’s country of origin. This position is founded on three arguments: (1) the Geneva POW Convention specifies it continues to apply until “final release and repatriation”; (2) international obligations forbid transferring someone to a country where they fear persecution; (3) loyalty instead of nationality should be the basis to determine whether an individual is entitled to the protection of the Geneva POW Convention.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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