Prisoners of War

Submitted by:
Ghazaal Khan
 INTRODUCTION
Combatants are those who take direct part in hostilities and may be attacked, at that
moment such persons are entitled to protection. The protection is provided under the
common Article 3 of the first and the third Geneva Convention.

These conventions are binding as treaty law but the main provisions are customary in
nature. There was no mention of humanitarian
treatment of prisoners until the 19th century.
The Hague convention before the Geneva
convention did not provide sufficient protection to the
prisoners during the World War 1.

After World War 1 a conference was held at Geneva and

many new rules were adopted.
 DEFINITION OF PRISONERS OF WAR

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.

ARTICLE 4:

A) Members of the armed forces of a Party to the conflict as

well as members of militias or volunteer corps forming
part of such armed forces
B) Members of other militias and members 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
 CONTD....
1) that of being commanded by a person responsible for his subordinates;
2) that of carrying arms openly;
3) Members of regular armed forces who profess allegiance to a government or an
authority not recognized by the Detaining Power.
HOW IS THE STATUS OF POW DETERMINED
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.

POW status is therefore automatically due to persons who fought in

the armed forces of a state.
 Rights of Prisoners of War
The PoWs are protected by the Third Geneva Convention. Geneva Convention of 1949 specifies the following
rules:
● The PoWs cannot be compelled to give any information other than their name, rank, age and service
number.
● If because of his physical or mental condition, he is unable to answer the question, he should be handed
over to the medical corps.
● A PoW must be allowed to keep with him all his personal
possessions which does not include arms and military papers.
● The PoWs shall be released and repatriated immediately
after the cessation of active hostilities.
● They should be treated with honour and humanely.
● PoWs should be allowed to inform the International
Committee of Red Cross of their capture.
 Rights of Prisoners of War (Continued)
● They should be allowed to inform their family of their status.
● If held captive for a long period of time, they should be allowed to contact their relatives on a regular
basis.
● They are allowed to receive packages.
● PoWs should be provided with adequate food.
● When held captive for long, they should be provided with housing as well as clothing.
● They should not be made to do any dangerous or degrading work.
● They should be reimbursed if any work was done by them.
● If a PoW has been wounded in the battlefield, he shall receive help from the International Committee of
Red Cross.
● POWs are entitled to a fair trial, including the right to counsel, advance knowledge of the charges,
services of a competent interpreter, and ample time for the preparation of their defense. The detaining
power must provide advance notice of trial to a representative of the POW and let them attend
proceedings.
 Prisoner Of War In Modern Day World
Guantánamo Bay Case Study

HISTORY
During the Spanish American War, the U.S. fleet attacking Santiago secured Guantánamo's harbor for protection during the
hurricane season of 1898. The Marines landed at Guantanamo Bay with naval support, and American and Cuban forces routed
the defending Spanish troops. The war ended with the Treaty of Paris of 1898, in which Spain formally relinquished control of
Cuba. Although the war was over, the United States maintained a strong military presence on the island.
The United States assumed territorial control over the southern portion of Guantánamo Bay under the 1903 Lease agreement
.The United States exercises jurisdiction and control over
this territory, while recognizing that Cuba retains ultimate sovereignty.
The current government of Cuba regards the U.S. presence in
Guantánamo Bay as "illegal" and insists the Cuban–American Treaty
"was obtained by threat of force and is in violation of international law." Some legal
scholars judge that the lease may be voidable.
 WHO ARE IN THE DETENTION CELLS?
Since January 2002, 779 men have been brought to Guantanamo. Nearly 200 were released by mid-2004, before there had been any
CSRTs (Combatant Status Review Tribunal) to review whether individuals were rightfully held as enemy combatants.
Although the Bush administration said most of the men had been captured fighting in Afghanistan, a 2006 report prepared by the
Center for Policy and Research at Seton Hall University Law School reviewed data for the remaining 517 men in 2005 and
"established that over 80% of the prisoners were captured not by Americans on the battlefield but by Pakistanis and Afghans, often in
exchange for bounty payments."
The U.S. widely distributed leaflets in the region and offered $5,000 per prisoner. One example is
Adel Noori, a Chinese Muslim protester who had been sold to the US by Pakistani bounty
hunters.
An estimated 17 to 22 minors under the age of 18 were detained at Guantánamo Bay, and it
has been claimed that this is in violation of international law.
In September 2006, President Bush announced that 14 "high-value detainees" were to be
transferred to military custody of the Guantánamo Bay detention camp from civilian
custody by the CIA. He admitted that these suspects had been held in CIA secret prisons
overseas, known as black sites. These people include Al-Qaeda leader and those who were
believed to be a link between Osama bin Laden and many Al-Qaeda cell. There are currently
107 detainees held in the US detention center in Guantánamo Bay, Cuba. Of them, 47 have been cleared for transfer, yet still remain
behind bars
 HUMAN RIGHTS VIOLATIONS
In 2012, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment identified the violations he
suspected were ongoing at Guantánamo Bay. The UN Special Rapporteur further noted that the UN Convention Against
Torture defines torture as a crime committed by state officials, and intent is an important prerequisite of torture. The UN
Special Rapporteur stated that the level of pain that must be inflicted to
constitute torture is “not as high as President Bush and his advisors
describe, it is not excruciating pain similar to organ failure or death.
It is somewhere in between.”

Thus, the interrogation techniques used at Guantánamo,

as well as many other methods of extracting confessions, can be
considered torture according to this definition especially waterboarding.
Interrogation tactics that constitute ill treatment or torture include
stress positions, sensory deprivation, prolonged isolation, the use of twenty-hour interrogations, hooding during transportation
and interrogation, stripping, forcible shaving, and “using detainees individual phobias (such as fear of dogs) to induce stress.”
Similarly, although psychological methods used against detainees what the U.S. government has called “enhanced
interrogation techniques” Leave no physical trace, these methods still qualify as mental harm under the UN Special
Rapporteur’s definition of torture
 LEGAL OBLIGATIONS
The ICCPR became law in the United States in 1992; it is a legally binding treaty, and each signatory must agree to
adopt domestic legislation that gives effect to the ICCPR. The treaty aims to protect the right to life, peaceful
assembly, and “prohibits, torture, slavery, and retroactive criminal legislation. However, US before ratifying the
treaty limited its scope by stating the federal government will legislate and take appropriate measures for its
fulfillment.
A similar agreement was reached when the United States ratified CAT in 1994, when the United States ratified CAT,
it limited the definition of torture. mental suffering would not constitute torture unless it is intended to inflict severe
pain and the harm is prolonged. Similarly, the United States limited the definition of “cruel, inhuman or degrading
treatment or punishment” contained in CAT Article 16 through a reservation that the United States would be “bound
by Article 16 ‘only insofar as the term . . . means the cruel and unusual punishment
prohibited’ by the Constitution,” not as it has been defined
under the much more inclusive international law
The United States also has obligations under the Geneva Conventions particularly Common Article 3,
which applies to prisoners of war.
Common Article 3 was created as a response to international concern about prisoner treatment during
World War II and the need for expanded international humanitarian law; it prohibits “cruel treatment
and torture,” in addition to “humiliating and degrading treatment.”
In addition, under the Geneva Conventions, torture constitutes a “grave breach” and is “punishable
under the War Crimes Act. One problem with the application of the Geneva Conventions at
Guantánamo is that the War on Terror is not an “international armed conflict cognizable under
Common Article 2 of the Geneva Conventions nor even under the expanded definition of Article 1(4)
of Additional Protocol I of 1977.
Moreover USA does not recognise the
authority of Geneva Convention on the
prisoners of war who have violated the
rules of war and takes defence under the
extraterritorial issue.
 History of Vietnam war
Before WW2, Vietnam was part of French empire but was captured by Japan during WW2.

Japanese lost in WW2 hence, the French tried to gain control over the area again but Vietnam
declared independence.

A civil war broke out between in Vietnam over a communist leader.

USA was afraid of the spread of communism so it kept on aiding the rebellious groups (south
Vietnam)

North Vietnam attacked the US navy in the gulf of Tonkin

USA got the excuse it needed to escalate the war hence came
it’s entry into Vietnam war.
 US POW in Vietnam war

Vietnam war was the first ever war that US lost.

More than 80%of the prisoners held in Vietnam were US military persons.

Many of them were physically, mentally or psychologically tortures. ( a complete violation

of geneva convention)

They were forced to confess crimes of war.

Vietnam had, from the very beginning, treated the POW as war criminals who had committed acts of aggression into their state.

Despite of them being signatory party to the third Geneva convention (which demanded decent and humane treatment of the
prisoners of war) , they still kept treating the POW inhumanly and justified it by labeling them as criminals of war.

In 1969, US administration publically highlighted the issue and started implementing Geneva convention itself, to gain political
advantage over Vietnam and to pressurize it as well, as a result of which Vietnam released a few of its prisoner as a gesture of
negotiation.

Even during those negotiations, vietnam did not change their stance of referring to the POW as war criminals, however they did treat
agreed on treating them as per some of the guidelines of the the geneva convention.
 Treatment of the prisoners

Public parade

Solitary confinement, often for many years

Improper medical facilities

Waterboarding

Strappado

Beatings
 Pleading of both parties in implementation of the Geneva
convention
USA’s pleadings:

International armed conflict

north vietnam a belligerent state

Viet cong( rebellious groups of vietnam) were agents of the government of north vietnam

Vietnam's pleading;

Internal conflict

War had not been declared

America carried on with its assertions that Geneva convention would be applicable, whereas North Vietnam kept on denying it
which led to a stagnancy
 CONCLUSION

Once captured by the enemy, prisoners of war are subject to the laws of the armed
force that is holding them. They must act according to the rules and regulations of
their captors, and breaking those rules leaves them open to the same trial and
punishment as that faced by a member of the detaining military. They are under the
control of the detaining power and their detention is legal; as such, their escape is a
breach of that law.