HL Deb 10 February 1953 vol 180 cc293-6

2.39 p.m.

VISCOUNT SAMUEL

My Lords, I beg to ask the Question which stands in my name on the Order Paper.

[The Question was as follows:

To ask Her Majesty's Government whether, in view of the concern in this country and throughout the greater part of the world at the breakdown of the Korean armistice negotiations on the question of the forcible repatriation of prisoners of war, and the contention of the Soviet Government that this is obligatory under International Law, they will take steps to make clear that the principles on which the United Nations have taken their stand are in conformity with the 1949 Geneva Conventions.]

THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR FOREIGN AFFAIRS (THE MARQUESS OF READING)

My Lords, Her Majesty's Government intend to issue shortly a White Paper on Korea, which will include this amongst other topics. Your Lordships would, however, probably desire that I should state the position now as briefly as I can, though I fear that it must be at a certain length. The principles on which the United Nations have taken their stand on the question of the repatriation of prisoners of war rest ultimately on a moral basis, which has been endorsed by an overwhelming majority in the General Assembly. However, I welcome this opportunity to reaffirm that those principles are also, on a strictly legal interpretation, fully in conformity with the provisions of the Third Geneva Convention of 1949 on the Treatment of Prisoners of War.

Article 118 of the 1949 Convention lays down that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. It is incorrect to read into this language more than it actually says. The term "repatriate" cannot properly be interpreted to mean "forcibly repatriate," which introduces quite a different conception and one which is foreign to the whole spirit of the Prisoner of War Convention. The relevant phrase is "shall be released and repatriated." Forcible repatriation would obviously involve precisely the opposite from release. The 1949 Convention was intended to be mainly for the benefit and in the interests of the prisoners of war themselves. Its purpose was to safeguard the rights of individual prisoners and to impose obligations on States to respect these rights. It was no part of its purpose to increase in any way the powers of States over their nationals who are prisoners. It ought not, therefore, to be interpreted in such a way as to compel the repatriation of a prisoner of war against his wishes in any case where he has bona fide grounds for his objection.

Article 7 of the 1949 Convention provides that prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. The purpose of this Article was to guard against any attempt by the detaining Power to exercise pressure upon prisoners of war to consent to derogation from their rights, including, of course, the right to repatriation. It was designed to protect prisoners of war from being forced to surrender their rights against their will, but it was not intended to mean that prisoners of war should be forcibly compelled to exercise those rights where they were convinced that to do so would be contrary to their own interests.

In general, Article 118 of the Convention must be given a reasonable interpretation. It was intended, in the interests of prisoners, to place an obligation in principle on the detaining State to repatriate on the cessation of hostilities and to take positive steps to that end, such as the provision of the necessary facilities. It was in particular intended to break away from what used previously to be the rule, that in the absence of special agreement no obligation to repatriate prisoners arose merely on the cessation of active hostilities, but only on the actual conclusion of peace, when the prisoners would in any event cease to have the status of prisoners of war. It was designed to ensure that henceforth the cessation of hostilities would itself automatically result in the repatriation of all prisoners. To read into this art obligation on the detaining State to force a prisoner to return against his reasonable wishes would, however, be to go altogether beyond anything the provision was intended to achieve, and would be contrary to the whole spirit of the Convention, which was designed primarily in the interests of the prisoners themselves.

VISCOUNT SAMUEL

I thank the noble Marquess for his full reply.

LORD VANSITTART

My Lords, arising out of this reference to the Soviet Government, could we not stress rather more than we do the fact that, since the war, the Soviet Government have retained over 400,000 Japanese prisoners of war, and that the number of German prisoners of war retained and unaccounted for runs into seven figures?

VISCOUNT SIMON

My Lords, arising out of the answer of the noble Marquess, may I ask whether he has observed that at the end of the first German war there was an armistice, of thirty days I think, but there was no question of a general exchange of prisoners of war because an armistice had been arranged? On the contrary, the provision for the repatriation of prisoners appears as an Article in the Treaty of Versailles. Is that not the true relation between the duty to repatriate prisoners at the end of belligerency as opposed to the idea that there is a duty to return prisoners merely because an armistice is arrived at?

THE MARQUESS OF READING

My Lords, I think that was the conception which was current before this 1949 Convention was arrived at, but, as I understand the position, the 1949 Convention was designed to change that situation in the sense that I have given in my answer to the noble Viscount, and to introduce the system whereby the end of actual hostilities was the moment at which prisoners became eligible for return, and not the conclusion of an actual treaty of peace when, as I said, they cease to have the status of prisoners of war at all.

VISCOUNT SIMON

I am much obliged to the noble Marquess. What I ventured to suggest was not intended in criticism of his very full statement. But has the noble Marquess not observed that in Oppenheim's International Law, the seventh edition, second volume, in the part of the book which deals with armistices the learned author points out, at page 392, that the provision in the 1949 Convention was really aimed to cure a situation that arose after the second German war when, notwithstanding that all belligerency had ceased, prisoners of war remained for an indefinite time in the hands of the former belligerents? The learned author, I think, there points out that that is the reason why the Geneva Convention was made, and it would be quite wrong to interpret this provision in the Convention of 1949 as though it altered the ordinary practice as to the time when prisoners of war were due to be repatriated. May I point out that, if that is not so, an armistice, which is a "cease fire," loses all its meaning, for if, merely because you have arranged a "cease fire," you enter into an immediate obligation to return, it may be, hundreds of thousands of fighting men, then it is not a "cease fire"; it is an alteration of the situation for the benefit of one side or the other.

THE MARQUESS OF READING

I am much obliged to the noble and learned Viscount. The point that he raised has, of course, been observed and I appreciate the considerations which he has brought to your Lordships' attention.

LORD HANKEY

Could the noble Marquess say how many of the belligerents, have ratified the 1949 Convention? I only ask for information.

THE MARQUESS OF READING

I am afraid I have not the information with me.