The Obligation to Release and Repatriate Prisoners of Wars: Revisiting the Arbitral Award of Eritrea–Ethiopia Claims Commission

Abstract

Abstract The Eritrea–Ethiopia Claims Commission hugely contributed to the development of IHL jurisprudence by interpreting, clarifying and applying IHL rules. However, the Commission’s decision regarding the suspension and delay of repatriation of Eritrean POWs by Ethiopia, which was handed down nearly two decades ago, still draws much criticism. On the one hand, the date marking cessation of hostilities, which according to Article 118 of the Geneva Convention Relative to the Treatment of Prisoners of War (GC III) triggers the obligation of Ethiopia to repatriate Eritrean POWs, had not been properly determined. On the other hand, the decision suggested that the obligation of states to repatriate POWs is dependent on the behavior of the other party or subjected to reciprocity. According to the Commission, the repatriation of POWs can be delayed after cessation of hostilities unless the detaining powers get an assurance that their troops would similarly be released and repatriated. However, as I will argue in this article, the suspension and delaying of the repatriation of POWs on the ground of reciprocity runs counter to the unilateral and unconditional nature of the obligation to repatriate POWs under Article 118 of GC III. Nor can it be justified as a legitimate reprisal under IHL and countermeasure under the general rules of state responsibility.