PART IV TERMINATION OF CAPTIVITY

SECTION I-DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES

Article 109

"Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following Article.

Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the cooperation of the neutral Powers concerned, to make all arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. They may, in addition, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity.

No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article, who may be repatriated against his will during hostilities."

Article 110

"The following shall be repatriated direct:

(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished.

(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.

The following may be accommodated in a neutral country:

(1) Wounded and sick whose recovery may be expected within one year of the date of the wound or the beginning of the illness, if treatment in a neutral country might increase the prospects of a more certain and speedy recovery.

(2) Prisoners of war whose mental or physical health, according to medical opinion, is seriously threatened by continued captivity, but whose accommodation in a neutral country might remove such a threat.

The conditions which prisoners of war accommodated in a neutral country must fulfill in order to permit their repatriation shall be fixed, as shall likewise their status, by agreement between the Powers concerned. In general, prisoners of war who have been accommodated in a neutral country, and who belong to the following categories, shall be repatriated:

(1) Those whose state of health has deteriorated so as to fulfill the conditions laid down for direct repatriation;

(2) Those whose mental or physical powers remain, even after treatment, considerably impaired

If no special agreements are concluded between the Parties to the conflict concerned, to determine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country, such cases shall be settled in accordance with the principles laid down in the Model Agreement concerning direct repatriation and accommodation in neutral countries of wounded and sick prisoners of war and in the Regulations concerning Mixed Medical Commissions annexed to the present Convention."

Article 111

"The Detaining Power, the Power on which the prisoners of war depend, and a neutral Power agreed upon by these two Powers, shall endeavor to conclude agreements which will enable prisoners of war to be interned in the territory of the said neutral Powers until the close of hostilities."

Article 112

"Upon the outbreak of hostilities. Mixed Medical Commissions shall be appointed to examine sick and wounded prisoners of war, and to make all appropriate decisions regarding them. The appointment, duties and functioning of

these Commissions shall be in conformity with the provisions of the Regulations annexed to the present Convention.

However, prisoners of war who, in the opinion of the medical authorities of the Detaining Power, are manifestly seriously injured or seriously sick, may be repatriated without having to be examined by a Mixed Medical Commission."

Article 113

"Besides those who are designated by the medical authorities of the Detaining Power, wounded or sick prisoners of war belonging to the categories listed below shall be entitled to present themselves for examination by the Mixed Medical Commissions provided for in the foregoing Article:

(1) Wounded and sick proposed by a physician or surgeon who is of the same nationality, or a national of a Party to the conflict allied with the Power on which the said prisoners depend, and who exercises his functions in the camp. (2) Wounded and sick proposed by their prisoners' representative.

(3) Wounded and sick proposed by the Power on which they depend, or by an organization duly recognized by the said Power and giving assistance to the prisoners.

Prisoners of war who do not belong to one of the three foregoing categories may nevertheless present themselves for examination by Mixed Medical Commissions, but shall be examined only after those belonging to the said categories.

The physician or surgeon of the same nationality as the prisoners who present themselves for examination by the Mixed Medical Commission, likewise the prisoners' representative of the said prisoners, shall have permission to be present at the examination."

The provisions in the 1949 Convention concerning repatriation of seriously sick and wounded were also contained in the Geneva Conventions of 1929 and were the basis upon which repatriations were carried out in World War II. Parties to the Convention are bound unilaterally to repatriate those eligible and the only mutual agreements required of the parties involved pertain to procedural arrangements such as methods of transport and location of reception points. It should be noted, however, that no eligible prisoner may be repatriated against his will during hostilities. Repatriations of sick and wounded occurred during World War II, the Korean War (Little Switch) and the Vietnam conflict when the communists have agreed to accept their captive personnel.

The Convention provisions covering neutral internment and repatriation of long-held able-bodied prisoners requires mutual agreement of the parties involved. Both neutral internment and repatriation of able-bodied have been proposed numerous times, but have been either rejected or ignored by the communists in Southeast Asia.

Mr. MORSE. What is the most definitive statement that the other side has made about the prisoners of war, concerning repatriation, mail or anything else?

NORTH VIETNAM CLAIMS POW'S ARE WAR CRIMINALS

Mr. NUTTER. The other side has never addressed these specific problems. They have persistently claimed that these are not prisoners of war under the meaning of the Geneva Convention, that they are war criminals. That is the term they usually use. They have not been willing, up to this point, to discuss any details with regard to repatriation or any other provision of the convention.

We have not been able to engage in any meaningful discourse with them on these subjects. We have only heard the constant assertion that they are not covered by the Geneva Convention.

Mr. MORSE. You said in your statement that we shouldn't fall in the trap set by the enemy relating to the fate of prisoners. However, you did point out that you had introduced the subject at a political forum in Paris.

How do you reconcile these statements?

Mr. NUTTER. We introduced the prisoners-of-war question into the political forum because that is the only forum in which we have contact with the other side, in which we have discussion with them or possibilities of discussion. We are quite prepared to discuss the question with them in any other forum, if they are willing to have such discussions.

As you know, we have had private conversations with them within the context of the Paris talks, but aside from the actual talks themselves.

A MATTER FOR NEGOTIATION

We have indicated our willingness to discuss this and other matters through any mutually agreeable procedure. What I meant by the prisoner-of-war question's not being a matter for negotiation is that it is not associated with the question of the settlement of the war itself. It is a question to be discussed on its own merits.

Mr. MORSE. To your knowledge, was the matter of the prisoner or MIA's on the agenda of the talks between the President and Premier Chou En-lai?

Mr. NUTTER. I believe that the President or Mr. Kissinger has said that this matter was discussed.

Mr. MORSE. Did you brief the President or did anybody in the Department, brief the President?

Mr. NUTTER. The President is well informed on this matter, because we are in constant communication and coordination with the people on his staff who are concerned with this problem. He is very well aware of all the issues and we have provided information regularly.

Mr. MORSE. Will the matter of POW's and MIA's be one of the subjects that will be considered by the new discussions which are being undertaken by the powers, China, and the United States?

Mr. NUTTER. I cannot tell you that, Mr. Morse, because I really don't know. It would be best to address that question to the State Department. I would assume that, this being a matter of concern to us, it would enter into discussions.

STATE DEPARTMENT TO BE ALERTED

Mr. MORSE. I would hope that you would alert the State Department on that.

Mr. NUTTER. I will.

Mr. FINDLEY. Mr. Nutter, I am gratified to see this very favorable report about the Illinois Governor. I say that as a Member of the House from Illinois.

Mr. NUTTER. It is nice to see that initiative being taken.

Mr. FINDLEY. Some time ago, the House of Representatives by a unanimous vote, if I recall it correctly, approved a resolution encouraging the massive repatriation of POW's from the North now held in the South, as a means of focusing attention on the difference between our treatment of prisoners and that of Hanoi.

What has been done in the field of massive repatriation recently? Mr. NUTTER. We have, of course, made many offers, and the South Vietnamese have made many offers, to send back large numbers of prisoners to the north. We have made many offers for the exchange

of large numbers of prisoners. In fact, we have offered the full exchange of all prisoners with the North as a separate matter, and as a matter connected with the establishment of a cease-fire throughout the area.

REPATRIATION OF SICK AND WOUNDED

We have made virtually every kind of offer, but there has been no actual repatriation in large numbers.

The last effort to deliver sick and wounded prisoners to the North was refused by the North. The prisoners on board ship were turned back. The North said they would not accept them. These were prisoners who agreed to return.

There have been releases of prisoners on a large scale by the South Vietnamese in South Vietnam. I think the last release was more than 3,000 prisoners.

Mr. MORSE. Were these prisoners North Vietnamese or Vietcong? Mr. NUTTER. They were South Vietnamese because they were released inside the country, some through the Chieu Hoi program but a large number without restriction. It has been impossible to achieve any massive repatriation because the North refuses to accept their prisoners.

Mr. FINDLEY. Have any prisoners from the North been released in the South?

Mr. SHIELDS. There have been some-Vietnamese soldiers who have rallied on the battlefield, and who have rallied to the allied side.

RELEASE OF NORTH VIETNAMESE

However, they were not prisoners of war. The North Vietnamese prisoners who have been released have been released to North Vietnam. The last such release was made in January 1971.

Mr. FINDLEY. How many were so released?

Mr. SHIELDS. I have the numbers here. There were 35 released. It was a small number of sick and wounded prisoners.

Mr. FINDLEY. If you recall the resolution passed by the House, it contemplated a unilateral repatriation, voluntary, entirely voluntary. The repatriation would occur someplace near the DMZ, and the prisoners permitted to proceed on foot toward the North.

Has any effort been made to canvass the some 8,000 POW's from the North now held in the South, to determine if any of them would be willing to be released under those circumstances?

Mr. NUTTER. Yes, sir; we have canvassed the prisoners in South Vietnam. When I say "we," I mean the South Vietnamese. For example, in connection with the attempted release of sick and wounded last year, the South Vietnamese and representatives of the International Committee of the Red Cross interviewed 660 North Vietnamese prisoners of war. There were only 13 who agreed to return home. This was a most unfortunate outcome.

FEARFUL OF RETURNING TO NORTH VIETNAM

We believe the refusal of repatriation comes from the fact that the prisoners are fearful of returning home. In addition, the discipline in

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the camps is of a nature that prevents prisoners from volunteering to go home.

Those 13 who did agree, as I said, were then rejected by the North. Mr. FINDLEY. Was any canvass made of the able-bodied on that question? The resolution passed by the House encouraged the massive unilateral repatriation of prisoners held in the South, without regard to their physical condition.

Mr. SHIELDS. Able-bodied prisoners from North Vietnam have been canvassed, and in fact, we have undertaken an intensive study to determine the attitudes of these prisoners, and why, for example, we had such a small number of the sick and wounded who were willing to go home.

Able-bodied prisoners have been canvassed as part of that study to determine their attitudes. As Mr. Nutter mentioned, we find that the discipline inside the prison camps administered by the prisoners themselves very harsh, and their attitude seems to be that they have been ordered not to go home, and those prisoners who deviate from this policy are dealt with very harshly by their fellow prisoners.

DISCIPLINE IN POW CAMPS

Mr. FINDLEY. The discipline is exerted by their fellow POW prisoners within the camp, then?

Mr. SHIELDS. In many cases, yes, sir; and, of course, we don't know what would await these men when they returned home. The chances are that they would face disciplinary action at that end, also.

Mr. FINDLEY. Are you satisfied that the canvassing occurred under circumstances which would be likely to produce a fairer indication of the attitude of each prisoner? Were U.S. officials involved in the canvassing?

Mr. SHIELDS. We have advisers, American advisers in all of these prison camps, and these American advisers did help take part in this exercise, the canvassing. The canvassing with regard to the sick and wounded, as you know, was done by International Committee of the Red Cross officials. This was done in such a way that the prisoners were given the opportunity to state their own feelings.

We have been told in many cases by these prisoners that they would be willing to go home at the end of the conflict, but would adamantly refuse while the conflict was still in progress.

Mr. NUTTER. I have here, if you would like, a summary of the number of prisoners that we have released to give you an idea of what the problem has been.

ONE HUNDRED AND EIGHTY-EIGHT NORTH VIETNAMESE RETURNED

The North Vietnamese that have been repatriated to North Vietnam up to the present number 188. They have been returned by various means, in some cases across the DMZ and in some cases by boats into

the shore.

The Vietcong released into the Chin Hoi program from prisoner status number 3,082, and the Vietcong released outright number 1,231.