Imagen resumen de la nota cortesía de AI Google Gemini
By Luis Manuel Aguana
Those who have been following these notes for years know the importance I have given to formal definitions. To even begin to comment on what happened with the agreement reached by the governments of the United States and El Salvador with the regime that governs Venezuela, to exchange persons deprived of their freedom, I believe that the correct thing to do would be to present the internationally accepted definition of the figure known as “Prisoner Exchange”. For this purpose, I made several consultations in three different IAs because none of them alone covered all that the term entails. The first one, ChatGPT, defines the concept as follows:
"Prisoner exchange is the agreement or process by which parties to military conflict agree to release and return their respective detained combatants or civilians, usually in equal proportions, as part of a humanitarian agreement. This exchange seeks to alleviate the suffering of persons deprived of their liberty and to facilitate reconciliation between the parties, in accordance with the norms of International Humanitarian Law, especially the Geneva Conventions of 1949 and their Additional Protocols" (emphasis added).
On the other hand, the Chinese at DeepSeek are more precise - as the Chinese tend to be - and inform us of the main legal bases when it comes to prisoner exchange, and very importantly, the key conditions:
"Main legal bases
1.- Geneva Convention III (1949) - Relative to the treatment of prisoners of war:
· Article 109: States that seriously ill or wounded prisoners must be repatriated directly.
· Article 118: Obliges the release and repatriation of prisoners without delay after the cessation of hostilities.
2.- Additional Protocol I (1977) - Applicable in international armed conflicts:
· Article 85(4)(b): Prohibits unreasonable delay in the repatriation of prisoners.
3.- International custom and historical practice:
· Exchanges may be temporary or permanent, and are usually mediated by neutral organizations (such as the ICRC).
· Historical examples include agreements in the Korean War (1953), the Cold War (e.g. exchange of spies) or recent conflicts such as Ukraine-Russia (2022-2024).
Key conditions:
· Voluntariness: both parties must agree to the terms.
· Non-discrimination: Prisoners must be released without distinction as to race, sex, language, religion, ethnic or social origin, economic status or political affiliation - Express prohibition of Article 75, Additional Protocol (1977).
· Neutral supervision: Usually the International Committee of the Red Cross (ICRC) verifies the process."
When asked by Google Gemini AI about the existence of any updates more recent than 1949 of the international agreements regarding prisoner exchange, this was part of their response:
"The Geneva Conventions (especially the Third) and their Additional Protocols remain the pillars of international humanitarian law regulating the treatment and eventual release and repatriation of prisoners of war. These instruments, although adopted decades ago, are considered the current and fundamental legal frameworks. What does occur frequently, and is what has been seen most recently, are specific, bilateral agreements between the parties to the conflict to carry out prisoner exchanges. These agreements are not new international treaties modifying IHL (International Humanitarian Law), but are practical, negotiated applications of existing provisions of the Geneva Conventions that permit and facilitate such exchanges" (emphasis added).
Having defined so far what is considered a “prisoner exchange”, according to the international agreements in force, and the conditions that must prevail, we could come to the first conclusion that the prisoners in this arrangement with Maduro had much less real international guarantees than they would have had if they had been exchanged during an armed conflict.
Indeed, the Geneva Convention III (1949) - Relative to the Treatment of Prisoners of War, “provides that seriously ill or wounded prisoners shall be repatriated directly”. I do not even have to mention how many times seriously ill prisoners imprisoned in the various internment centers of the regime, never received proper medical treatment, and died in the prisons for that reason.
El Nacional reports in December 2024 that "Since 2015, at least 22 political prisoners in Venezuela have died in State custody, facts that generate alarm both in the country and internationally. The most recent deaths are linked to opposition citizens detained in the context of demonstrations against the results of the July 28 presidential elections. Human rights organizations have pointed out that the causes of these deaths include mainly torture, cruel and inhuman treatment and lack of adequate medical attention." (see El Nacional in Spanish, How many political prisoners have died in the custody of the Maduro government? in https://share.google/jQrXoZFK8T4kEClaL) (highlighted our). In an armed conflict, at least Article 109 of the 1949 Geneva Convention can be used to move them to safety on the opposing side.
In the exchange decided by the three governments, without there being any armed conflict in Venezuela, the regime unilaterally decided not to include women or military personnel, in contravention of the key conditions explicit in the Geneva Convention on non-discrimination, as well as open disregard for proportionality in the number of prisoners exchanged. There was no joint commission to decide the criteria for choosing who should be released, such as illness, age, gender, number of days in unjust imprisonment in order of highest to lowest. The regime decided who, period. No one said anything to prevent the revolving door of detentions for the continuity of human trafficking that was sure to follow.
The 1977 Additional Protocol I of the Geneva Convention, in its Article 75 “Establishes fundamental guarantees for all persons affected by conflicts, prohibiting: Discrimination based on race, sex, language, religion, ethnic or social origin, economic position or political affiliation”. Again, for political prisoners, it would seem better to have an exchange of prisoners on the occasion of a war than with the “peace” of the regime....
A recent note published by Emisora Costa del Sol 93.1 FM clearly highlights the discrimination against women in this prisoner exchange: “The Venezuelan Observatory of Women's Human Rights (OVDDHH) and the Center for Social Research for Training and Education for Women (CISFEM) raised their voices before national and international public opinion to denounce the discrimination committed against women detained for political reasons, who were left out of the recent prisoner exchange agreement between Venezuela and the United States” (see Emisora Costa del Sol 93.1 FM, Women political prisoners were not included in the recent prisoner exchange agreement between Venezuela and the United States)" (see in Spanish Emisora Costa del Sol 93.1 FM, Las mujeres presas politicas no estuvieron en los acuerdos del chavismo para la excarcelación, in https://www.costadelsolfm.org/2025/07/21/las-mujeres-presas-politicas-no-estuvieron-en-los-acuerdos-del-chavismo-para-la-excarcelacion/).
This reported discrimination against women prisoners in Venezuela for political reasons could have a normative floor of protection in the Geneva Convention if there is an armed conflict with the regime. It could be argued that in the absence of such a conflict in the country, the Geneva Convention does not apply. But that is precisely the serious problem I wish to point out here. The regime is taking the conflict with the opposition population to a terrain where all barriers are disappearing, and where some might conclude that given this uncontrolled situation, an open conflict would be preferable, where at least the guarantees of the limits and international regulations for the protection of prisoners exist. And that would be extremely serious, because we know that when something like this starts, you never know when it will end. Colombia has had more than 60 years of armed violence, of a fratricidal internal war....
But in an apparent act of humanity of exchanging people, hides the most abject intention of mistreating a people without any reason or motive. If indeed they already have control of the arms and the country, as they permanently state, what is the reason to continue persecuting and imprisoning people at will? Children, young people, pregnant women, the elderly, journalists, no one has been spared, without any evidence of armed movements against them. This armed conflict has been mounted by the regime against the unarmed civilian population, not the other way around.
The countries of the International Community and especially the USA, must understand that an exchange of prisoners in this context in Venezuela is like drying once the water from a floor in a house full of leaks. It will continue to get wet until the roof is repaired, or worse, until the dead are picked up when the roof finishes collapsing.
The US in particular should reflect on whether it is a success to have taken out 10 of its nationals now. And tomorrow, how many more will there be? There will always be some American prisoner who will fall into the regime's nets to be exchanged for anything they want, and that will extend beyond our borders, with different kidnappers -for example, the Colombian guerrilla-, which will start again another cycle of kidnapping and extortion with negotiation of human beings. They are wrong to think that anyone wins in this exchange of prisoners…
But the most regrettable thing about this exchange is that, in the Venezuelan case, every prisoner who leaves a prison of the regime, leaves with the possibility of returning to prison. In a war, at least the prisoner of an exchange goes to the other side to continue fighting or to discharge himself, if he so decides.
No one has the right to bargain with anyone's freedom. Those who do so must understand that, sooner rather than later, they will be responsible for the real wars that gave rise to the very conventions that regulate violence and death. It is up to those who are confronted to decide how it will be...
Caracas, July 22, 2025
Blog: TIC’s & Derechos Humanos, https://ticsddhh.blogspot.com/
Email: luismanuel.aguana@gmail.com
Twitter:@laguana
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