MODULE 9

CHAPTER 9
T HE INTERNATIONAL CONVENTIONS ON RIGHTS OF PRISONERS OF WAR

Course Title: Human Rights Education

Course Code: CLJ 2

Name:
Course and Year:
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Introduction

I. Objectives:

II. Lecture and Discussions of the lesson/s

At first glance, prisoner(s) and detainee(s) may appear as a mere product of war.
One could say, captivity acts as a transitional state with regards to a surrendering
soldier or for a civilian infelicitous enough to present into vicinity of the battlefield or into
a besieged town, sometimes followed in order by execution, enslavement, or release for
ransom, on parole, or in exchange for prisoner(s) taken by the opponent.

According to Geoffrey Best, Prisoner(s) of War have been at the center of the
series of International Humanitarian Law row(s) since the year 1950. Parties to armed
conflicts have unceasingly exploited the weaknesses of Prisoner(s) of War regime and
the penetrability of its object(s) with an eye to serve their own political interest(s).

Parallel with an increased significance in quantified as well as qualitative term(s),

the issue of prisoner(s) and detainee(s) is in a number of ways a prism through which
more general research problems related to war become visible. First, the condition of
prisoner(s) and detainee(s) appears to be litmus test for compliance with cultural, legal,
and moral norms aimed at mitigating the effect(s) of war. Secondly, the issue of
prisoner(s) in war tells us something about the success and progress of the
humanitarian project as such.

Although combatants and other persons taking a direct part in hostilities are
military objectives and may be attacked, the moment such persons surrender or are
rendered hors de combat, they become entitled to protection. That protection is
provided for in Common Article 3 and the First and Third Geneva Conventions (GC)
relating to the treatment of the ‘wounded, sick and shipwrecked’ and ‘prisoners of war’
(POW) respectively; supplemented (for international conflicts) by Additional Protocol I.
These conventions are binding as treaty law, but the key provisions are in any event
customary in nature.
 Humanitarian treatment of prisoners of war was not emphasized until the second
half of the nineteenth century.
The Hague Regulations did not prevent many of the hardships that prisoners suffered
during World War I; they did provide an enlightened basis for regulation. Besides the
failure to anticipate the problems that arose in World War I, the chief defect of the
regulations were a lack of specificity and the absence of any enforcement procedures.
After the First World War, a conference at Geneva adopted new, more elaborate rules.
Like the prior rules, the new rules did not anticipate the new modes of warfare adopted
in the Would War that followed their acceptance.

PRISONERS OF WAR DEFINED

The Third Geneva Convention of 1949 is concerned with prisoners of war, and
consists of a comprehensive code centered upon the requirement of humane treatment
in all circumstances.

The definition of prisoners of war in GC III, Article 4(A) is of particular importance

since it has been regarded as the elaboration of combatant status. It covers members of
the armed forces of a party to the conflict, 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.’

This article reflected the experience of the Second World War, although the
extent to which resistance personnel were covered was constrained by the need to
comply with the four conditions. Since 1949, the use of guerrillas spread to the Third
World and the decolonization experience. Accordingly, pressures grew to expand the
definition of combatants entitled to prisoner of war status to such persons, who practice
has shown rarely complied with the four conditions.

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. In 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. Moreover, the onus is on a Detaining Power to demonstrate that
detainees, purportedly captured for their role in the conduct of hostilities, do not deserve
POW status. This 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 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. 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. 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.

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 are unable to agree upon such an appointment, the
detaining power is required to request a neutral state, an impartial organization, or a
humanitarian organization to substitute for the Protecting Power. Each contraction party
undertakes to provide penal sanctions against person who violates the established
norms. Parties to the conventions are obligated to search out those persons alleged to
have committed such breach. Many of the general provisions of the Geneva Convention
on prisoners of war are incorporated into the First and Second Geneva Conventions
with respect to the wounded and sick in armed forces in the field or at sea.

INFORMATION ON REASONS FOR ARREST AND DETENTION

The very first requirement for there to be a valid detention in international law is
that there be clear reasons for an arrest provided in law, followed by the duty to
determine the prisoners’ status, then information concerning these matters should be
conveyed to the prisoners themselves. Only once this has happened can they assert
the precise rights that correspond to them under international law. The right to such
information is enshrined as one of the minimal standards of protection due to persons in
the hands of the enemy under IHL and in Human Rights Law (HRL).

Article 75 (3) of AP I provide:

Any person arrested, detained or interned for actions related to the armed
conflict shall be informed promptly, in a language he understands, of the reasons
why these measures have been taken. Except in cases of arrest or detention for
penal offences, such persons shall be released with the minimum delay possible and in
any event as soon as the circumstances justifying the arrest, detention or internment
have cease to exist.

The right to be informed promptly of the reasons for detention under IHL thus
applies to persons detained for any reason related to the conflict. It does not depend on
the person being suspected of a criminal offence.

There is no precise time frame associated with the requirement of ‘promptness’,

as account must be taken of all the circumstances including (for as long as relevant)
military considerations arising out of the detention of persons in the zone of battle.
However, as the ICRC Commentary to the Additional Protocol itself makes clear, ‘even
in time of armed conflict, detaining a person for longer than, say, ten days, without
informing the detainee of the reasons for his detention would be contrary to this
paragraph’.
 The detainees therefore have a right to be informed of the reasons for their arrest
under the minimum rules of IHL protection applicable to all persons and under Human
Rights Law.

PROSECUTION- FAIR TRIAL RIGHTS

In respect of prosecution of prisoners of war, the law stipulates basic fair trial
rights which must not be derogated from. As noted above, the legal status of a prisoner
impacts on the legitimacy of prosecuting that detainee for certain crimes related to the
conflict. Specifically, if detainees were formerly privileged combatants (entitled to be
treated as POWs); they may not be prosecuted for acts of war, while those unprivileged
combatants, who fought absent the right to do so, may. All categories of prisoners,
however, may equally be prosecuted for the commission of international crimes such as
war crimes or crimes against humanity.

GC III provides that any POW subject to judicial proceedings is entitled to a fair
trial. So seriously are these rights taken that ‘willfully depriving a prisoner of war of the
rights of fair and regular trial prescribed in this convention’ is a grave breach, which
states parties are obliged to prosecute.