INTERNATIONAL HUMANITARIAN LAW AND PRISONERS

OF WAR

by

Qudus A. Mumuney

INTRODUCTION

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.

1
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

1
International law; Oppenheim; p.367 (Lauterpacht) 1952

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conference at Geneva adopted new, more elaborate rules2. 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

2
Convention Relating to the Treatment of Prisoners of War, July 27, 1929

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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.3 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.4 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

3
Privileged or lawful combatants are subject to capture and detention as prisoners of war, and can be prosecuted
only for serious crimes such as war crimes or crimes against humanity, whereas unprivileged or unlawful
combatants can in addition, are subject to trial and punishment by military tribunals for acts which render their
belligerency unlawful.
4
See Article 5 (2) GC III on the independent tribunal that must be established in case of doubt.

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status.5 This significant burden corresponds to the serious consequences for the combatants in

question, including penal consequences6 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 wars7. 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.8 They must be supplied with food, clothing and medical attention. 9

They should be protected from public curiosity. 10 They are also entitled to elaborate due process
5
The presumption of POW status is reflected in Article 45(1) and (2) AP I, and can only be displaced by a tribunal.
6
They may be prosecuted for mere participation as opposed to only for crimes under international law.
7
International law cases and materials; Lori Damrosch, Louis Henkin, Richard Crawford Pugh, Oscar Schachter,
Hans Smith (Eds); p.1621 (USA)2001
8
Article 19 GC III
9
Article 20 GC III
10
Article 13 GC III

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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. 11 Medical and scientific

experiments are prohibited. Prisoners are to be treated alike regardless of race, nationality,

religious beliefs or political opinions.12

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.13 Conditions at the detention camp

must meet standards provided in the convention.14 The work that the prisoner is required to

perform must not be inherently dangerous, humiliating or directly connected with the operations

of war.15 The prisoner must be permitted contact with his family and correspondence privileges.16

Procedures must be established for registering complaints against the administration of the

detention camp.17 Penal and disciplinary sanctions, including procedures for determining guilt,

are prescribed by the convention.18 The convention also provides that the properties of prisoners

shall not be disposed of them when arrested. 19 When hostilities have ceased, POWs must be

repatriated.20

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

11
Article 84, 99-108 GC III
12
Article 16 GC III
13
Article 17 GC III
14
Article 22 and 23 GC III
15
Article 51,52 and 56 GC III
16
Section V Article 70-73 GC III
17
Article 78-90 GC III
18
Article 82-88 GC III
19
Article 18 GC III
20
Article 118 GC III provides that ‘POWs shall be released and repatriated without delay after the cessation of
active hostilities.’

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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 third 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 provides:

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 ceases to exist.21
21
Emphasis ours.

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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’.22

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.
22
Article 73(3) GC III

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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.24

ACCESS TO COUNSEL

The assistance of a defense counsel is a primary means of ensuring the protection of the

fundamental rights of people suspected or accused of criminal offences, protected both under

IHL and IHRL.

IHL provides, explicitly and implicitly, for access to counsel for persons suspected of having

committed a criminal offence, irrespective of their status as POWs, civilians or persons entitled

to the basic minima of human rights protection. The detailed rights afforded to POWs under the

GC III include the right to legal representation. 25 Likewise, among the due process rights

afforded to civilians protected by GC IV is the right ‘to be assisted by a qualified advocate or

counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary

facilities for preparing the defense’.26

The minimum standard set out in Article 75(4) provides simply for an accused: “...to be informed

without delay of the particulars of the offence alleged against him and shall afford the accused

before and during his trial all necessary rights and means of defense”. The ICRC Commentary to

AP I notes that ‘all necessary means of defence’ must be interpreted to include the right to

communicate with a ‘qualified defence lawyer’. The right to ‘all necessary rights and means of
23
Article 82-8 and 99-107 GC III
24
Article 130 GC IV
25
Article 84 GC III
26
Article 72 GC IV

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defence’ provision explicitly applies ‘before and during…trial’, and should be interpreted in the

light of human rights law which, as explained below, includes access to counsel from the early

stages of detention as one of the core protections against abuse and arbitrariness.

RIGHTS REGARDING INTERROGATION

IHL provides special rules that govern, and strictly limit, the information that POWs must

provide to a Detaining Power. According to GC III, POWs need only provide their name, date of

birth, rank and serial number. Furthermore, no ‘form of coercion may be inflicted on prisoners of

war to secure from them information of any kind whatsoever’.27

INDEFINITE DETENTION- REPATRATION

Another purported reason why affording POW status appears to have been considered too

significant relates to the rules on repatriation. Article 118 of GC III provides that ‘POWs shall be

released and repatriated without delay after the cessation of active hostilities’.

However, this right does not apply to persons who have been charged with a criminal offence

where proceedings are pending, or where the detainee has been convicted and is serving a

sentence, in which case Article 119 GC III provides an explicit exception to the duty to

repatriate. There is therefore nothing to prevent any state from conducting criminal proceedings

against persons responsible for criminal conduct.

27
Article 17 GC III

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The problem that the duty to repatriate was perceived to represent may be encapsulated by the

words of one commentator who noted that ‘if the captives are POWs, they must eventually be

returned…the Taleban fighters may be too dangerous ever to be released…which…commits the

US to detaining them indefinitely’.28Concern about affording POW status may reveal an

insidious assumption that if GC III does not apply there is no legal framework to limit the power

to detain indefinitely.

Whether or not GC III applies, it is certain that at a certain point hostilities will cease and reasons

‘related to the conflict’ that may justify detention under IHL, will also cease to exist. The

remaining question will then be whether there is any other basis justifying detention, in

accordance with IHL and IHRL. In most cases, such justification arises where a person is

suspected of, and charged with, a criminal offence.

CONCLUSION

Throughout the years, the International Committee has laboured unremittingly for the greater

protection in International Law of the individual against the hardships of war; it successively

elaborated the humanitarian Conventions and adapted them to current needs, or instituted new

ones. In the period between the two World Wars, the Committee's main achievement lay in

the establishment of a number of draft Conventions, chief among which was the Convention

on the Treatment of Prisoners of War ; this was signed in the summer of 1929. There has

been various transformation of this convention which has culminated into what we have

today as GENEVA CONVENTION RELATIVE TO THE TREATMENT OF

PRISONERS OF WAR OF AUGUST 12, 1949.

28
M. Dorf, ‘What is an Unlawful Combatant and Why Does it Matter?’ Find Law Forum, 23 January 2002(at
http://www.cnn.com/2002/LAW/01/columns/fl.dorf.combatants.)

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It is believed that if the provisions of this convention are strictly adhered to by all nations,

prisoners of war would be home away from home in the hands of Detaining Power.

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