DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

PROTECTION OF PRISONERS OF WAR UNDER IHL

SUBJECT

HUMANITARIAN LAW

NAME OF THE FACULTY

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 TABLE OF CONTENTS

1) ABSTRACT

2) INTRODUCTION

3) INTERNATIONAL ARMED CONFLICTS

4) THE ADOPTION OF 1949 GENEVA CONVENTION RELATIVE TO THE

TREATMENT OF PRISONERS OF WAR (GENEVA CONVENTION III)

5) NEW PERSPECTIVES FROM 1977 ADDITIONAL PROTOCOL I

6) HUMANITARIAN LAW AND HUMAN RIGHTS

7) STATUS DETERMINATION

8) RIGHTS OF A PRISONER OF WAR

9) THE DEVELOPMENT OF PRISONER OF WAR STATUS IN EARLY

DOCUMENTS OF THE HAGUE CONFERENCES 1899 AND 1907

10) POSSIBLE CONVERGENCE BETWEEN INTERNATIONAL AND NON-

INTERNATIONAL ARMED CONFLICTS IN THE FUTURE?

11) CONCLUSION

12) BIBLIOGRAPHY

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 ABSTRACT

Contemporary international humanitarian law classifies all armed conflicts into two basic
groups – international and non-international. In international armed conflict is clear
distinguishing between civilians and combatants. The civilian has right on immunity of the
attack, unless is joined to the armed forces, by what he loses the civilian’s rights, and gains
the combatant’s rights. The combatant's right is to participate in the hostilities, with no
criminal charges for this action. Captured combatant in international armed conflict becomes
prisoner of war. Unlike the recognized prisoner of war status in international armed conflict,
in non-international armed conflict there is no person called combatant, and captured
insurgent has no right and is not considered as prisoner of war. That is because the state does
not recognize possibility to any person to attack from inside their armed forces. Despite the
fact they are not entitled to prisoner of war status, the recommendation of the ICRC is to
approve certain rights to the members of insurgent’s groups, which are inherent to “regular”
combatant’s rights.

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 INTRODUCTION

Until the end of the 2nd World War, the concept of war was understood as an international
armed conflict only – the situation of war between two or more states. Contemporary
international humanitarian law (hereinafter: IHL) established after the 2nd World War by
four 1949 Geneva Conventions and refined, supplemented and developed by two 1977
Additional Protocols distinguishes two major categories of armed conflicts: international and
non-international. The first one may arise between two or more states; the second one occurs
on the territory of one state, within its border.1 The significance of this division mirrors in the
fact that the most contemporary armed conflicts of nowadays wage within border of
particular state, and international legal frame is quite different for each type of conflict,
following by different rights, obligations and position of protected person.

In international armed conflict is clear distinguishing between civilian and combatant. The
civilian has right on immunity of the attack, unless is joined to the armed forces, by what he
loses the civilian’s rights, and gains the combatant’s rights. The combatant's right is to
participate in the hostilities, with no criminal charges for this action. Captured combatant in
international armed conflict becomes prisoner of war and must be given humane treatment
from the time he falls into the power of the enemy until final release and repatriation.

For a long time states have been reluctant to comply with and consent to international
regulations of non-international armed conflicts, by referring to their own sovereignty. That
type of conflict was considered to be as exclusive matter of the state concerned, regulated by
internal legislation exclusively. Such position was based on the attitude that there is no
government which would renounce in advance the right to punish its citizens for the
cooperation and activities in rebellion against the state concerned.

Unlike the Article 3, it contains a definition of non-international armed conflicts and applies
only to the conflicts which meet a number of given material conditions. It refers to a conflict
which takes place in the territory of a state, between its armed forces and dissident armed
forces or other organized armed groups. Those groups has to act under responsible command,

1
Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of
International Armed Conflicts, 1125

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and exercise such control over a part of its territory, as to enable them to carry out sustained
and concerted military operations and to implement the provisions of Additional Protocol II.

For example, former Yugoslav conflict in 1990s was both – international and/or non-
international.2 When the Statute of International Criminal Tribunal for the Former Yugoslavia
(hereinafter: ICTY) was drafted in 1993, the conflicts in the area could have been
characterized as both – international and non-international, or alternatively, as non-
international conflict alongside an international, or as non-international conflict that had
become international because of external support, or as an international conflict that had
subsequently been replaced by one or more internal conflicts, or some combination thereof.

POWs must be treated humanely in all circumstances. They are protected against any act of
violence, as well as against intimidation, insults, and public curiosity. IHL also defines
minimum conditions of detention covering such issues as accommodation, food, clothing,
hygiene and medical care.  

The fourth 1949 Geneva Convention and Additional Protocol I also provide extensive
protection for civilian internees during international armed conflicts. If justified by
imperative reasons of security, a party to the conflict may subject civilians to assigned
residence or to internment. Therefore, internment is a security measure, and cannot be used as
a form of punishment. This means that each interned person must be released as soon as the
reasons which necessitated his/her internment no longer exist.

DEFINITION OF POW

In the early history of warfare there was no recognition of a status of prisoner of war, for the
defeated enemy was either killed or enslaved by the victor. The women, children, and elders
of the defeated tribe or nation were frequently disposed of in similar fashion. The captive,
whether or not an active belligerent, was completely at the mercy of his captor, and if the
prisoner survived the battlefield, his existence was dependent upon such factors as the
availability of food and his usefulness to his captor. If permitted to live, the prisoner was
considered by his captor to be merely a piece of movable property, a chattel. During religious
wars, it was generally considered a virtue to put nonbelievers to death, but in the time of the
campaigns of Julius Caesar a captive could, under certain circumstances, become a freedman
within the Roman Empire.

2
The Prosecutor v. Dusko Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction

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As warfare changed, so did the treatment afforded captives and members of defeated nations
or tribes. Enslavement of enemy soldiers in Europe declined during the Middle Ages, but
ransoming was widely practiced and continued even as late as the 17th century. Civilians in
the defeated community were only infrequently taken prisoner, for as captives they were
sometimes a burden upon the victor. Further, as they were not combatants it was considered
neither just nor necessary to take them prisoner. The development of the use of
the mercenary soldier also tended to create a slightly more tolerant climate for a prisoner, for
the victor in one battle knew that he might be the vanquished in the next.

In the 18th century a new attitude of morality in the law of nations, or international law, had a
profound effect upon the problem of prisoners of war. The captive was no longer to be treated
as a piece of property to be disposed of at the whim of the victor but was merely to be
removed from the fight. Other writers, such as Jean-Jacques Rousseau and Emerich de Vattel,
expanded on the same theme and developed what might be called the quarantine theory for
the disposition of prisoners. From this point on the treatment of prisoners generally improved.

DEFINITION OF COMBATANT

Combatants have the “right” to participate directly in hostilities. They also have the unique
status of being prisoners of war should they be captured. Simply put they are not treated as
criminals, although they can be prosecuted for crimes committed both during and before the
conflict. Civilians also benefit from protection associated with their status. International
humanitarian law generally provides that they are to be protected from the dangers arising
from military operations and are not to be the object of an attack.3

Various international agreements have endeavored to define combatants9 with everyone else
being classified as a civilian. It has been suggested that this approach is preferable since it is
all inclusive, with no-one being left out. Further, the rules are kept as simple and
straightforward as possible.4 The goal of this approach is to enhance the likelihood that
international humanitarian law would be complied with.10 Of course this approach is only as
effective as the accuracy with which “combatants” as a group are defined and the degree that
there is a common understanding of the cross over criteria for civilians losing the protection
of their status. If the line between combatant and civilian is drawn in the wrong place or is

3
www.law.upenn.edu/institutes/cerl/conferences
4
www.icrc.org/eng/assets/files/other
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more porous than the law on its face indicates then the ability of the law to regulate the
conduct of hostilities can be adversely impacted.

INTERNATIONAL ARMED CONFLICTS

Distinction Between Combatants And Civilians In International Armed Conflicts

The fact is that the development of aviation and the use of new arms have almost wiped out
the fundamental distinction between combatants and civilians during the 2nd World War.
But, respecting a specific position of civilian population in particular – distinction must be
made. At all times persons taking part in the hostilities should be distinct from the civilian
population, to the effect that the later be spared as much as possible. Distinguishing between
civilians and combatants in international armed conflict is clear-cut. The right of a person is
changing when he changes the civilian or combatant status. 5

The combatant has the right to participate in the hostilities. During this participation
combatants are subject of being targeted as legitimate military objectives; targeting members
of the opposing armed forces is an integral part of waging war. Combatants also receive
immunity for the unintended collateral deaths of civilians (Additional protocol I, Article 51),
as long as these deaths are not excessive in relation to the concrete and direct military
advantage anticipated. This principle of combatant immunity is reflected in customary
international law and judicial decisions, and is codified in Article 43 of Additional Protocol I.

On the other side, the civilian is anyone who is not the combatant. In accordance to the
Additional Protocol I, any person who does not belong to the categories included under the
armed forces must be considered as a civilian.

The notion of direct participation in hostilities refers to specific hostile acts carried out by
individuals as part of the conduct of hostilities between parties to an armed conflict. It must
be interpreted synonymously in situations of international and non-international armed
conflict. The treaty terms of “direct” and “active” indicate the same quality and degree of
individual participation in hostilities.

5
By accession of South Sudan in 2013, these Conventions now (April 2014) have 195 states parties. Retrieved
from: http://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties

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This changed status is limited temporally by the words “for such time” and these words
definitely raise serious queries as to their scope. Unfortunately, there has been little attempt to
determine what does it actually means. Interestingly, where these words “for such time” has
been analyzed in relation to the temporal limitation, “direct participation” for civilians is most
closely associated with acting like a combatant. Therefore, civilians who present an
immediate threat are liable to be attacked to the same extent as combatants. Similarly, civilian
immunity is subject to very stringent conditions of not participating directly in hostilities. It is
therefore possible, based on such linkage to combatancy, to conclude that as long as civilians
perform the functions of combatants, such as planning, command, and the actual conduct of
operation, they remain liable to attack.6

In Watkin’s opinion, there is a danger that the term “for such time” will lead to an
interpretation that civilians are only combatants while they carry a weapon and revert to
civilian status ones they throw down a rifle or return home from a day in the trenches. This
has been referred to as a “revolving door” of protection for certain civilians.7 Taken to its
extreme, such a narrow interpretation appears not only to protect civilians who might be
confused with participants in hostilities, but also indirectly to provide cover for the actual
participants themselves, despite their prior and possible future hostile acts. However, such an
interpretation also appears to be inconsistent with the view that hostilities include
preparations for combat and the return from combat.

6
The Prosecutor v. Dusko Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction
7
IT-94-1AR72, IT-94-1-AR72, 2 October 1995

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THE ADOPTION OF 1949 GENEVA CONVENTION RELATIVE TO THE
TREATMENT OF PRISONERS OF WAR (GENEVA CONVENTION III)

The horror and bestiality of the 2nd World War had shown the need to reaffirm and expand
the protection of human beings through the international humanitarian instruments, and
thereby to provide the civilians and combatant with more appropriate and more adequate
protection. Four humanitarian conventions (revised or completely new) were adopted in
August of 1949.8 The binding force of the Geneva Conventions stems primarily from the fact
that the contracting parties undertake to respect the Conventions “in all circumstances”. Sixty
five year after their adoption, they represent one of the most outspread ratified international
treaties. The treatment and protection of prisoners of war protection in international armed
conflict (only) is covered by the Geneva Convention III, a comprehensive code centered upon
the requirement of humane treatment in all circumstances.

The definition of prisoners of war, contained in Article 4, is of particular importance, since it

has been regarded as the elaboration of combatant status. According to this provision,
prisoner of war is person who belongs to one of the enumerated categories, who have fallen
into the power of the enemy. (Geneva Convention III, Article 4.A) Firstly, that status is
recognized to the members of the armed forces of a party to the conflict. (Geneva Convention
III, Article 4.A.1) It covers all military personnel, whether they belong to the land, sea or air
forces. Prisoner of war status is also recognized to the members of other militias and of other
volunteer corps, including those of organized resistance movements, belonging to a party to
the conflict and operating in or outside their own territory.9

First of all, they have to been commanded by a person responsible for his subordinates.
(Geneva Convention III, Article 4.A.2a) Such person is responsible for the action taken on
his order, as well as for the action which he was unable to prevent. The competence of the

8
Bothe, Michael et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols
Additional to the Geneva Conventions of 1949, 1982
9
Boelaert-Suominen, S. (2000). Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is
Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conflicts, Journal of
Conflict and Security Law, 5(1), p. 63-103

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commander must be considered in the same way as that of a military commander. Respect for
this rule is moreover in itself a guarantee of the discipline, which must prevail in volunteer
corps, providing therefore reasonable assurance that the other conditions will be observed.

NEW PERSPECTIVES FROM 1977 ADDITIONAL PROTOCOL I

While the Geneva Conventions did offer effective protection for the victims of armed conflict
when they were applied in good faith, the fact remains that they were often flagrantly
violated. Moreover, modern conflicts in the period from early 1950s to early 1970s were
generally very different in form from those in which the laws and customs of war had
developed over the century. Some kinds of these “new wars” were ones of national liberation;
then non-international conflict which were in reality proxy wars between the superpowers,
fuelled by their overt or covert intervention; armed subversion or revolutionary wars; or
straightforward conflicts between two or more factions within divided nations. The
Diplomatic conference for the reaffirmation and development of the IHL applicable in armed
conflict met in Geneva in four sessions, from 1974 to 1977.10 Two additional protocols were
adopted; one relates to the protection of victims of international armed conflict (Additional
Protocol I), the other one relates to the protection of victims of non-international armed
conflicts (Additional Protocol II).

Significance of the Additional Protocol I in a subject of protection of prisoners of war reflects

in introduction of the new concept. Anyone whose status of member of organized armed
forces of a party to a conflict is recognized, is considered to be a combatant, entitled to
participate directly in hostilities. (Additional Protocol I, Article 43(2)) Therefore, such person
is entitled to be treated as prisoner of war. Addition Protocol I also has simplified the legal
position by defining armed forces as all organized armed forces, groups and units which are
under a command responsible to that party for the conduct of its subordinates. Such armed
forces shall be subject to an internal disciplinary system which shall enforce compliance with
the rules of international law applicable in armed conflict. 11 (Additional Protocol I, Article
43(1)) Whenever a party to a conflict incorporates a paramilitary or armed law enforcement
agency into its armed forces it shall so notify the other parties to the conflict. (Additional

10
Gasser, Hans-Peter, International Humanitarian Law, Humanity for All (H. Haug ed.), Henry Dunant Institute,
Berne-Stuttgart-Wiena, 1993
11
Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, New York,
2009

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Although, in Schmitt's opinion, customary law incorporation is solely a factual matter and
failure to so notify the enemy does not preclude such groups’ treatment as members of the
armed forces for purposes of targeting and detention. (Schmitt, 2012, 125) The notion of
“party to the conflict” is considered to be fairly wide

HUMANITARIAN LAW AND HUMAN RIGHTS

Article 3 common to the Geneva Conventions deals with internal armed conflicts, i.e. with
matters pertaining to the internal affairs of States. As the regulation of internal affairs is
basically the prerogative of the sovereign State, the decision taken in 1949 to include Article
3 in the four Geneva Conventions was a great event. It must be remembered, however, that
one year earlier, in 1948, the United Nations General Assembly had adopted the Universal
Declaration of Human Rights. 12

That document reflected growing international concern about an important aspect of the
internal affairs of States. Indeed, international rules on the protection of human rights oblige
States to recognize and respect a number of basic rights of the individual and to ensure that
they are upheld. Humanitarian law does the same in times of armed conflict. It enjoins the
parties to a conflict to respect and to preserve the lives and dignity of captured enemy soldiers
or of civilians who are in their power.

What, then, distinguishes humanitarian law from human rights law? Or are they the
same?

The goals of human rights law and humanitarian law overlap. Both humanitarian law and
human rights are designed to restrict the power of State authorities, with a view to
safeguarding the fundamental rights of the individual. Human rights treaties (supported by
customary law) achieve this objective in a comprehensive way insofar as they cover almost
all aspects of life.. Its provisions are formulated in such a way as to take into account the
special circumstances of warfare. They may not be abrogated under any circumstances. 13
Usually they apply "across the front line", i.e. the armed forces have to respect humanitarian
law in their dealings with the enemy (and not in the relations with their own nationals). In
other words, humanitarian law is a specialized body of human rights law, fine tuned for times
of armed conflict. Some of its provisions have no equivalent in human rights law, in

12
Kalshoven Frits; Zegveld, Liesbeth, Constraints on the Waging of War, An Introduction to International
Humanitarian Law, Cambridge University Press, 2011
13
Shaw, Malcolm N., International Law, Cambridge University Press, 2008

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particular the rules on the conduct of hostilities or on the use of weapons. Conversely, human
rights law covers several domains which are outside the scope of humanitarian law (e.g. the
political rights of individual persons). Despite their overlapping, human rights law and
humanitarian law remain distinct branches of public international law.

STATUS DETERMINATION

Under International Humanitarian Law (IHL),combatant's privilege‟ entails three important

consequences. First, the privileged combatant is allowed to conduct hostilities and as such
cannot be prosecuted for bearing arms or attacking enemy targets, unless the conduct
amounts to a war crime. Second, he or she is a legitimate target to the opposing forces.
Third, in the event of capture, such combatants are afforded POW status.

The group of persons entitled to combatant's privilege, and in the event of capture to prisoner
of war status, is defined in GC III, Article 4(A). These include members of the armed forces
of another party, as well as irregulars such as members of militia or volunteer corps that fight
alongside a party to the conflict, provided they satisfy four conditions: being „commanded by
a person responsible for his subordinates; having a fixed distinctive sign recognizable at a
distance; carrying arms openly; and conducting operations in accordance with the laws and
customs of war.

‟ POW status is therefore automatically due to persons who fought in the armed forces of a
state. The fact that the government was not the recognized representative of the state is
irrelevant. It should be noted that the criteria set forth by Article 4 of the Third Geneva
Convention only apply to irregulars that fight alongside a party to the conflict and not to the
armed forces of a party to the conflict itself. 14In the event that there is an element of doubt
on the status of an irregular, the matter must then be determined by a competent tribunal.
The prisoners must be presumed POWs pending such determination. 15This significant burden
corresponds to the serious consequences for the combatants in question, including penal
consequences and loss of their entitlement to the enhanced rights protections due to POWs
under GC III which in some respects go beyond those guaranteed by International Human
Right Law. However, on numerous occasions, states have, as a matter of practice, extended
POW status to cover persons not strictly entitled to such status under the convention, as was

14
Rosas, Allan, The legal Status of the Prisoners of War, Institute for Human Rights, Åbo Akademi University,
2005
15
Schmitt, Michael N., The Status of Opposition Fighters in a Non-International Armed Conflict, in: Non-
International Armed Conflict in the Twenty-First Century

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for example the practice of the United States in Vietnam. This may reflect in part the core
humanitarian principles reflected in IHL manifest in the specific provisions of GC III, but
also the desire to ensure similar treatment of their own forces if captured.

RIGHTS OF A PRISONER OF WAR

The Third Geneva Convention is now the authoritative statement concerning prisoners of
war. An outstanding innovation of the convention, in addition to its application to all other
armed conflicts is that it makes reference to internal wars. The convention defined prisoners
in a way calculated to include every person likely to be captured in hostilities. Full and
primary responsibility for the treatment of prisoners of war fall upon the Detaining Power,
not upon the individuals. The Detaining Power is under a general obligation to treat prisoners
humanely and protect them from danger. They must be supplied with food, clothing and
medical attention. They should be protected from public curiosity.

They are also entitled to elaborate due process guarantees, including trial by the courts that
respect the same standards of justice as those respected by the courts that would try the
military of the detaining state. Medical and scientific experiments are prohibited. Prisoners
are to be treated alike regardless of race, nationality, religious beliefs or political opinions.
At the time of detention, the prisoner is required to give a minimum of information. He is not
to be subjected to torture and may retain his personal effects. Conditions at the detention
camp must meet standards provided in the convention. 16

The work that the prisoner is required to perform must not be inherently dangerous,
humiliating or directly connected with the operations of war. The prisoner must be permitted
contact with his family and correspondence privileges. 17 Procedures must be established for
registering complaints against the administration of the detention camp. Penal and
disciplinary sanctions, including procedures for determining guilt, are prescribed by the
convention. The convention also provides that the properties of prisoners shall not be
disposed of them when arrested. When hostilities have ceased, POWs must be repatriated.

16
Moir, Lindsay, The Law of Internal Armed Conflict, Cambridge Studies in International and Comparative Law,
Cambridge, 2003
17
Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian
Law, International Review of the Red Cross, Vol. 90, Nr. 872, 2008, p. 991-1047

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The convention elaborates the idea of a Protecting Power appointed by mutual agreement,
which determines whether the provisions of the convention are being followed. When the
belligerents

THE DEVELOPMENT OF PRISONER OF WAR STATUS IN EARLY DOCUMENTS

OF THE HAGUE CONFERENCES 1899 AND 1907

In ancient times the concept of prisoner of war was unknown. Captured enemies were the
“chattels” of their victors who could kill them or reduce them to bondage. They were held
responsible for the suffering of the civilian population, and punished for having served an
unjust cause. They had been defeated. History indeed records countless occasions on which
they were massacred, sold as slaves and they could hardly hope for clemency. The
chroniclers report rare examples of magnanimous treatment of prisoners, although they have
invariably remarked that such generosity was in stark contrast to the customs of the time.

But, situation had been changed for better throughout the centuries, and military commanders
have been known to ordain their troops to show respect and humanely treat the enemy
soldiers. The first attempt to codify such good practice and confirm it as a general applicable
rule of international law had occurred at the end of the 19th and the beginning of the 20th
century. At that moment states were ready to limit their respective sovereignty in relation to
the treatment of prisoners of war, by protecting them from arbitrary treatment.

At the 1899 and 1907 Peace Conferences held in The Hague, the lengthiest and most
important discussions were centered on the provisions relating to belligerent status. Once one
is accorded the status of a belligerent, one is bound by the obligations of the laws of war, and
entitled to the rights which they confer. The most important of these is the right of captured to
be recognized as a prisoner of war and to be treated accordingly. (3rd Geneva Convention
Commentary, 1960, p. 4547) The belligerent status is not reserved only for the members of
the armies. In countries where militia or volunteer corps constitutes the army, or form part of
it, they are included under the denomination “army”. The laws, rights and duties of war also
apply to militia and volunteer corps, if they fulfill prescribed conditions.

These conditions are:

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a) to be commanded by a person responsible for his subordinates;

b) to wear a fixed distinctive emblem recognizable at a distance;

c) to carry arms openly; and

d) to conduct their operations in accordance with the laws and customs of war. (The Hague
regulations, Article 1) These conditions will be repeated in the further IHL documents, and
also are mentioned as conditions for allowing similar rights to the participants in non-
international armed conflicts, which will be elaborated later. The Hague regulation of 1907
also contains very important provision of giving some specific rights to the inhabitants of
non-occupied areas, who spontaneously took up arms to resist their invaders, without having
time to organize them. According to its provision, those civilians shall be regarded as
belligerents. The conditions they have to fulfill are to carry arms openly and respect the laws
and customs of war. (The Hague regulations, Article 2) Also, the right to be recognized and
treated as prisoner of war is warranted to non-combatants of the armed forces (The Hague
regulations, Article 3) According to that rule, the armed forces of the belligerent parties may
consist of combatants and non-combatants, and in the cases of capture, all of them will enjoy
the right to be treated as prisoners of war.

The adoption of 1949 Geneva Convention relative to the Treatment of Prisoners of War
(Geneva Convention III) The horror and bestiality of the 2nd World War had shown the need
to reaffirm and expand the protection of human beings through the international humanitarian
instruments, and thereby to provide the civilians and combatant with more appropriate and
more adequate protection. Four humanitarian conventions (revised or completely new) were
adopted in August of 1949. The binding force of the Geneva Conventions stems primarily
from the fact that the contracting parties undertake to respect the Conventions “in all
circumstances”.

Sixty five year after their adoption, they represent one of the most outspread ratified
international treaties.4 The treatment and protection of prisoners of war protection in
international armed conflict (only) is covered by the Geneva Convention III, a comprehensive
code centred upon the requirement of humane treatment in all circumstances. The definition
of prisoners of war, contained in Article 4, is of particular importance, since it has been
regarded as the elaboration of combatant status. According to this provision, prisoner of war
is person who belongs to one of the enumerated categories, who have fallen into the power of

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the enemy. Firstly, that status is recognized to the members of the armed forces of a party to
the conflict.

It covers all military personnel, whether they belong to the land, sea or air forces. Prisoner of
war status is also recognized to the members of other militias and of other volunteer corps,
including those of organized resistance movements, belonging to a party to the conflict and
operating in or outside their own territory, even if this territory is occupied, if they fulfill four
conditions. First of all, they have to been commanded by a person responsible for his
subordinates. Such person is responsible for the action taken on his order, as well as for the
action which he was unable to prevent. The competence of the commander must be
considered in the same way as that of a military commander.

Respect for this rule is moreover in itself a guarantee of the discipline, which must prevail in
volunteer corps, providing therefore reasonable assurance that the other conditions will be
observed. Second condition required by the Geneva Convention III, is that of having a fixed
distinctive sign recognizable at a distance. In this case a distinctive emblem or sign replaces a
uniform and therefore is considered as an essential factor of loyalty in the struggle and must
be worn constantly, in all circumstances. Third condition is one of carrying arms openly. This
provision is intended to guarantee the loyalty of the fighting, it is not an attempt to prescribe
that a hand-grenade or a pistol must be carried at belt or shoulder rather than in pocket or
under a coat. Finally, fourth condition, and an essential provision, is that of conducting their
operations in accordance with the laws and customs of war. Combatants are nevertheless
required to respect the Geneva Conventions to the fullest extent possible. They must be
guided by the moral criteria in the absence of written provisions; must not cause violence and
suffering disproportionate to the military result which they may reasonably hope to achieve.
They must not attack civilians or disarmed

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POSSIBLE CONVERGENCE BETWEEN INTERNATIONAL AND NON-
INTERNATIONAL ARMED CONFLICTS IN THE FUTURE?

The question arise – is it possible to enlarge the concept of prisoner of war, relating to the
position of non-international armed conflict insurgents in contemporary IHL relations? One
could envisage for instance that certain detainees in non-international armed conflicts could
be entitled to the full protection of the Geneva Convention III, but not to the status of lawful
combatants, or conversely, that they could be entitled to the later status but not to the full
protection of the Convention. It could be said that their behavior in the battle field would
show the answer whether they are mere felons, or real combatants deserved to “enjoy” the
protection of 1949 Geneva Convention III. 18

If insurgents apply humanitarian provisions and obey the IHL in general, so much the better
for the victims of both sides. Furthermore, if they are complied with humanitarian principles,
it could be hard enough to speak of “anarchy” or “terrorism”. On the other side, if they do not
apply it, it will prove that those who regard its actions as mere acts of anarchy of terrorism
are right. The concept of prisoners of war could be enlarged so as to encompass, for instance,
all military prisoners captured in an armed conflict, whatever its legal nature and whether or
not the Geneva Convention III is applicable. However, this attitude has not been widely
accepted so far. The scope of the concept of existing IHL may be changed (and has been
changed so as to encompass wars of national liberation), but at the same time the concept
contains a certain basic essence, which is not susceptible to significant modification in the
present historical stage.

Despite the fact that insurgents in non-international armed conflicts are not combatants, the
recommendation of the ICRC is (as a mean of after-war national reconciliation) to approve
certain rights to the members of dissident groups, which are inherent to “regular” combatant’s

18
Schmitt, Michael N., The Status of Opposition Fighters in a Non-International Armed Conflict, in: Non-
International Armed Conflict in the Twenty-First Century (eds. Watkin, Kenneth & Norris, Andrew J.),
International Law Studies, Naval War College, Newport, Rhode Island, Vol. 88., 2012, p. 120-144 Rosas

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rights. That “unification” tendency demands that a member of the armed forces in the power
of adverse party, and civilian deprived of his liberty for reasons related to the conflict enjoy
the same legal protection, under the conditions of complying with the principle of
distinguishing from civilians, and by respecting and undertaking the principles of IHL. In
general, it is a specific modification of the principle from the Geneva Convention III, which
recognizes the war prisoner status to members of other militias and members of other
volunteer corps, including those of organized resistance movements, if they fulfil the
prescribed conditions.

The ICRC, for its part, applying its long-established method of work, combines advocacy
with supervision in today’s internal armed conflicts as well it has contributed to the
improvement of the status of insurgents. In effort to maintain human dignity during the non-
international armed conflict, or even during the internal tensions and rebellions, the ICRC
play a part of conciliator in humanitarian issues, and, with the agreement of the government,
visit the places where the person deprived of their liberty in non-international conflicts are
settled, and, to the extent necessary, take all steps to improve their position during
deprivations. It always made every effort to secure such insurgent captured by their
adversaries the benefit of treatment as prisoner of war. It has to emphasized that in non-
international armed conflicts the parties are not obliged to accept the ICRC’s offers of
services or to allow its delegates access to the “prisoners” they hold. But, in many conflicts
after the 2nd World War the ICRC has drawn attention to the fundamental obligation to
respect and protect any persons falling into enemy hands. 19

In Bugnion’s opinion, whenever a conflict has broken out, the ICRC has reminded all
concerned that an enemy who surrenders must be spared and that any prisoners must be
humanely treated. In that respect, there is no possible distinction between international and
non-international armed conflicts. Furthermore, the request from the Additional Protocol II
has to be considered significant as well. At the end of the hostilities, the authorities in power
shall endeavour to grant the broadest possible amnesty to persons who have participated in
the armed conflict, or those deprived of their liberty for reasons related to the armed conflict.
(Additional Protocol II, Article 6(5)) The object of this provision is to encourage gestures of
reconciliation which can contribute to re-establishing normal relations in the life of a nation
which has been divided.

Pomper, Stephen, Toward a Limited Consensus on the Loss of Civilian Immunity in NonInternational Armed
19

Conflict: Making Progress through Practice, in: Non-International Armed Conflict in the Twenty-First Century

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possibility of amnesty is not very often executed, and there are no guaranties for such
persons. Even the provision of the broadest possible amnesty to persons who have
participated in the conflict from 1977 Additional Protocol II is only the proposal to the state.
This proposition has without a doubt contributed to improving the status and the perceptions
of the rebellion group, which surely is the interest of all parties to the armed conflict.

CONCLUSION

By supporting the “unification view”, one could say that the time has come to approach to an
entirely new concept of more efficient humanitarian protection in general, including the
expansion of “frame” of individuals entitled to prisoners of war status. The development of
international law, international human rights law and international criminal law, as well as
the ICRC humanitarian activities, encourage the unification of the legal regimes in a way that
necessarily influences the IHL, too. One could say it will not be easy to maintain the
differences between international and non-international aspects of armed conflicts, especially
in situations where the elements of both conflicts are mingled. Considering that the human
rights law is primarily concerned with behavior within a state, it is possible that further
resistance to unification tendency will be eroded by human rights

The situation at the 1949 Geneva Conference during the adoption of the Common Article 3
was quite complicated. On one hand, the idea of the International Committee of the Red
Cross (hereinafter: ICRC) to apply all four 1949 Geneva Conventions to both international
and non-international armed conflicts was not supported by many countries. Interference in
the internal disturbances and domestic affairs, what non-international conflicts were supposed
to be, was considered as unfriendly attack on state sovereignty. On the other hand, the new
concept of human rights protection has been arising after the 2nd World War and the
international community of those days had expressed the general understanding of necessity
to protect the victims of non-international conflicts as well. The Common Article 3 represents
the result of these confrontations; it is an “umbrella” which merely demands respect of
certain rules of human treatment and nondiscrimination in situation of non-international
armed conflict. Adopted almost thirty years later, in the era of expanded development of
human rights protection, Additional Protocol II develops and supplements the short provision
of the Common Article 3.

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 BIBLIOGRAPHY

ARTICLES

 Bugnion, François, The International Committee of the Red Cross and the Protection of
War Victims, International Committee of the Red Cross, 2003 Commentary

 The Geneva Conventions of 12 August 1949, Commentary, III Geneva Convention

Relative to the Treatment of Prisoners of War (J.S. Pictet ed.), International Committee of
the Red Cross, Geneva, 1960

 Bothe, Michael et al., New Rules for Victims of Armed Conflicts: Commentary on the
Two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982

BOOKS:

 INTERNATIONAL HUMANITARIAN LAW By M. P Tandooon



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