protection of prisoners of war under international humanitarian law

To underline its special role States have granted the ICRC obevserver status at the United Nations General Assembly. An institution of a special nature has stepped into the breach: the International Committee of the Red Cross (ICRC) . Prisoners of war cannot be prosecuted under International Humanitarian Laws (for instance, for having attacked the enemy fighters). There are three answers of a legal nature to that question - and a sad conclusion: - The Charter has not completely outlawed the use of force. This is generally the case in non-international armed conflicts. The goals of human rights law and humanitarian law overlap. 8–10). Updated by the author in November 1998. Women must be treated with due regard to their specific needs and must benefit from treatment as favorable as that granted to men (GCIII Art. The extended definition of armed forces and combatant includes: According to the 1977 Additional Protocol I, the status of prisoner of war is linked with the objective criteria based on direct participation in the conflict, rather that legal criteria based on the formal belonging to armed forces. British Medical Association. Doctors without borders - All rights reserved, Situations and persons not expressly covered by humanitarian law, The Third Geneva Convention of 1949 specifically regulates the treatment of prisoners of war, the definition of which is derived from the definition of combatant (GCI–III). (GCIII Art. Those whose diseases or wounds warrant a direct repatriation are: To address the needs of direct repatriation or hospitalization in a neutral State, the parties to a conflict must set up Mixed Medical Commissions from the beginning of the conflict, which examine the state of the wounded and sick (Annex I of the Third Geneva Convention, relating to Art. While their essential meaning can be summarized as "Don't shoot" or "Don't attack", the exact conditions implied vary depending on the respective sign … London: Zed in association with BMA, 2001, chap. Accepted as they are by the whole community of nations, they have become truly universal law. They do not set limits to the way military operations may be fought. The whole body of law on prisoners of war, their status and their treatment is geared to wars between States (Third Convention). Let us now examine international humanitarian law as it stands today, with a brief glance at its history and its development. In the absence of an agreement on a Protecting Power, the International … (API Art. The various treaties that make up what is known as " Geneva law " deal extensively with the fate of persons who have ceased to fight or have fallen into the power of the adversary. A combination of international humanitarian law and action by the parties to an armed conflict, by the Red Cross and Red Crescent Movement and by the community of States, by non-governmental organizations and by all persons of good will is needed to bring about better protection for the vulnerable victims of warfare. . However, combatant status does not automatically cover all persons who have participated in hostilities (which may include civilians, mercenaries, or child soldiers), especially in internal armed conflicts. A prisoner may be prosecuted for violations of humanitarian law while maintaining his or her rights as a prisoner of war, including judicial guarantees. 118, 119). However, this article stipulates that, even when denied prisoner-of-war status, the combatant continues to enjoy protection equivalent to that granted to prisoners of war by Geneva Convention III and Additional Protocol I. The third Geneva Convention provides a wide range of protection for prisoners of war. 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. The latter provide, inter alia , for a system of formal complaints to a supranational body, and in some cases, to a supranational court. Mercenaries enjoy neither combatant nor prisoner-of-war status (API Art. Children, even if they are combatants, remain protected by the special provisions foreseen for them by humanitarian law, whether or not they are prisoners of war (API Art. They regulate the validity of individual wills, notification of death certificates, the right to individual burial, and the obligation of the detaining power to investigate any death the cause of which is suspect. Prisoners of war must be released and repatriated without delay after the cessation of active hostilities (GCIII Arts. Fourth Convention : on the protection of civilian persons in time of war. In situations of armed conflict detainees benefit from protection under a different set of rules depending on their legal status. —The scale of applicable disciplinary punishments is clearly established by the Convention. Therefore, such obligation does not include the duty to wear uniform and distinct insignias; it may be enough to openly carry arms when engaged in a military operation. Such complexity should not, however, make us forget that the gist of humanitarian law can be summarized in a few fundamental principles: 1. The management and transfer of prisoners of war’s financial resources are precisely regulated by Articles 58 to 68. This article addresses the question of whether current frameworks under international humanitarian law offer adequate protection to persons detained for reasons relating to armed conflict from crimes of sexual violence. Concurrently with the development of " Geneva law " , States have therefore codified, in various stages, international rules setting limits to the conduct of military operations. From 1929 onward, women have enjoyed special protection under international humanitarian law. These are the set of 4 treaties & 3 additional protocols thatestablish the standards of International law for humanitarian treatment in war… The Third Geneva Convention and Additional Protocol I stipulate that where doubt arises as to whether somebody is entitled to the status of prisoner of war, status shall be determined by a competent tribunal, and not by the detaining power. Civilians who participate in the hostilities also benefit from guarantees of treatment in international and non-international armed conflicts (GCIV). 122–125). In the same way, misuse of the red cross or the red crescent distinctive emblem must be prosecuted under domestic law. - Domestic legislation on implementation : Many provisions of the Geneva Conventions and of their Additional Protocols imperatively require each State Party to enact laws and issue other regulations to guarantee full implementation of its international obligations. 16). In non-international armed conflicts, the combatant status is not officially recognized for members of non-state armed groups. In modern humanitarian law there is no place for discriminatory treatment of victims of warfare based on the concept of " just war " . However, in certain situations—namely, in non-international armed conflicts—the benefits of reciprocity are not always sufficient to prevent ill treatment. These principles give expression to what the International Court of Justice has called in the Corfu Channel Case " elementary considerations of humanity " , and later " fundamental general principles of humanitarian law " (Case concerning Military and Paramilitary Activit ies in and against Nicaragua). Under Articles 79.2 and 51.3 of Protocol I, journalists enjoy the protection afforded by international humanitarian law provided that they do not take a direct part in the hostilities. Extract from "International Humanitarian Law : an introduction", Henry Dunant Institute, Geneva/Paul Haupt Publishers, Bern, 1993. 3. If the individual is a combatant, he or she is accorded protection as a prisoner of war. Each party to a conflict is required to furnish each prisoner of war under its jurisdiction with an identity card. Additional Protocol I also establishes guarantees to prevent the status from being denied to a person who is entitled to it. A mere glance at the newspapers or a world map reveals, however, that conflicts between States are today the exception rather than the rule. Indeed, six major treaties with more than 600 articles and a fine mesh of customary law rules place restrictions on the use of violence in wartime. The Geneva Convention was extended, in 1906 and 1929 so as to improve the conditions of sick and wounded soldiers in the field and to define new rules on the protection of prisoners of war. If they fall into enemy hands, they become prisoners of war who may not be punished for having directly participated in hostilities. 44.4). 130). In internal armed conflicts, however, human rights law and international humanitarian law apply concurrently. The questioning of prisoners of war shall be carried out in a language they understand (GCIII Art. 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. Additional Protocol I made this point clear. 45.1–3). International armed conflicts are conflicts between States. 32, 2008, pp. This status takes into account the fact that combatants have a legitimate right to use violence, until they are captured. 47). 5. The PDF of this page is being created. —Escape may be punished only by disciplinary punishment. 4. Premises of internment must provide every guarantee of hygiene and healthfulness and take into account the climate in the area (GCIII Art. 109–117). 25). 13.3). - Finally (and this is not a legal argument! 1. 45.1). A combatant’s failure to respect the rules of international law applicable to armed conflicts may not deprive that person of his or her status as a prisoner of war (API Art. ▸. In this short overview, only three such ob ligations will be mentioned, as examples: - Instructions to and training of the armed forces : the complex set of obligations arising out of the Conventions and the Protocols must be translated into a language which is clearly understandable to those who have to comply with the rules, in particular the members of armed forces, according to their ranks and their functions. However, Additional Protocol II includes clauses that aim to protect detained persons or persons deprived of their liberty in relation to the conflict, prohibit ill-treatment, and set out fundamental guarantees and judicial guarantees granted to such persons, regardless of whether they have taken part in hostilities. Prisoner-of-war status entails certain fundamental guarantees in the case of disciplinary and penal sanctions. The individual will be afforded protection under the Third Convention if he claims the status of prisoner of war, if he appears to be entitled to such status, or if the party on which he depends claims such status on his behalf by notifying the detaining Power or the Protecting Power [ICRC]. 45.1).In such situations, protection of an individual is strengthened; according to Additional Protocol I, where the detained person claims such status, a competent tribunal decides, and the procedures may be controlled, in particular by the ICRC. —Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. Murphy, Ray. The two Protocols of 1977 which are Additional to theGeneva Conventions reaffirm and supplement the G… 14). The ICRC acts in its own name, as a neutral intermediary between the two sides. Civilians who take direct part in the hostilities and for such time as they take a direct part in hostilities are not afforded the protection humanitarian law normally grants to civilians (API Art. The definition of a prisoner of war is rarely applicable to internal armed conflicts. 2. In the same way, parties to armed conflicts have to allow relief operations in favour of those in need, be they detainees, especially vulnerable groups of civilians or the general population, including in occupied territories. Any person who falls into the power of an adverse party shall be presumed to be a prisoner of war. Rules which are not understood by or remain unknown to those who have to respect them will not have much effect. . 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. The Fourth Geneva Convention Relating to the Protectionof Civilian Persons in Times of War deals with the protection of civiliansincluding children. 2.1 The Evolution of International Humanitarian Law 11 2.2 Sources of International Humanitarian Law 20 2.3 Principles of International Humanitarian Law 23 2.4 Scope and Applicability of International Humanitarian Law 27. The majority of armed conflicts are waged within the territory of a State: they are conflicts of a non-international character. Persons who are not, or are no longer, taking part in hostilities shall be respected, protected and treated humanely. A "Protecting Power" is a neutral State or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the enemy Party and has agreed to carry out the functions assigned to a Protecting Power under international humanitarian law. They were adopted on 8 June 1977 and, since that date, they have been open for ratification or accession by all States party to the 1949 Geneva Conventions. One may even go a step further and argue that States have an obligation to work for respect for those treaties by the parties to a given armed conflict. Members of the medical personnel and chaplains held by the detaining power with a view to assisting prisoners of war shall not be considered prisoners of war. Spies may not benefit from prisoner-of-war status if they act without wearing the uniform of their armed forces (API Art. OSWALD Bruce, “The Detention of Civilians in Military Operations: Reasons for and Challenges to Developing a Special Law of Detention”, in Melbourne University Law Review, Vol. As such, Protecting Powers have to ensure that the belligerents fulfil their humanitarian obligations. The core of international humanitarian law rules can be found in the four 1949 Geneva Conventions and their two 1977 Additional Protocols. Additional Protocol II, relating to non-international armed conflicts, does not directly refer to the definition of prisoners of war. The provisions include the fact that the detaining power must notify the authorities on which the prisoners depend of the capture, and it must allow the prisoners to receive and send letters—two to four per month, depending on the model card used. The officers and prisoners belonging to the same status are to be treated following their respective ages and rank. On 17 July 1998, a Diplomatic Conference convened by the United Nations in Rome adopted the Statute of the International Criminal Court. A war of national liberation is a conflict in which a people is fighting against a colonial power, in the exercise of its right of self- determination. . This protection rests on the Convention’s reaffirmation of certain rights and obligations, as well as on the mechanism of supervision embodied in the mandate of the protecting power. History. It tries to ascertain that capture and detention are not used as an occasion for revenge, ill treatment, or torture of prisoners of war to obtain information. Questioning is not prohibited, but the Third Convention stipulates that no physical or mental torture, or any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war are entitled in all circumstances to respect for their person. 43). The Geneva Convention III 143 Article (s) require that Prisoners of War be treated humanely, adequately housed and receive sufficient food, clothing and medical care. A combatant who fails to meet the requirement to distinguish himself from civilians and who falls into the power of an adverse party forfeits his right to be a prisoner of war (API Art. —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, even if this territory is occupied, provided that [they] fulfill the following conditions: —Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. The following categories of persons are prisoners of war: members of the armed forces of a party to the … Its funds are provided by voluntary contributions from States party to the Geneva Conventions, from National Societies and from private donors. The Conventions furthermore require that each party to an international armed conflict designate a third (neutral) State as a Protecting Power . The Charter of the United Nations states clearly that the threat or use of force against other States is unlawful. It defines their rights and sets down detailed rules for their treatment and eventual release. A certain number of guarantees are foreseen to regulate which persons—either combatants or civilians—are granted the status of prisoner of war. ), wars do in fact occur, as we all know, despite their being outlawed by the Charter of the United Nations. Its rules are the result of a delicate balance between the exigencies of warfare ( " military necessity " ) on the one hand and the laws of humanity on the other. In practice, this reciprocal principle is pivotal to convince the parties to the conflict to respect the rights established by the Third Convention. The main thrust of what is known as " Hague law " , with the various Hague Conventions of 1907 as its main expression, is to limit warfare to attacks against objectives which are relevant to the outcome of military operations. - The Charter's prohibition of the use of force does not encompass internal armed conflicts (or civil wars). The difference between prisoner-of-war status and being treated as a prisoner of war implies that an individual who has used force without acting openly as a combatant may be prosecuted according to the domestic law of the detaining power for this fact. INTRODUCTION. The Geneva Conventions and the Additional Protocols require the States party to adopt a number of measures in order to assure compliance with these treaties. 4.B). In 1899, in The Hague, international protection was extended to wounded, sick and shipwrecked members of armed forces at sea , and in 1929 prisoners of war were also placed under the protection of the law of Geneva. Let us, however, underline that legal rules alone are unable to cope with the real problems caused by armed conflicts. In order to spare the civilian population, armed forces shall at all times distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Humanitarian law has become a complex set of rules dealing with a great variety of issues. —The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give. History of International Humanitarian Law International humanitarian law is founded on the principles of humanity, impartiality and neutrality. The Court's jurisdiction does not affect the obligation of States Parties to prosecute war criminals in their own domestic courts. Although a private institution, the ICRC has an important role to play in the implementation of humanitarian law by the parties to an armed conflict. Its political implications, on the other hand, have not yet been fully understood. Decolonization had more than doubled the number of States and, with new types of conflict (wars of national liberation), some new priorities for humanitarian law had emerged. Geneva: Henry Dunand Institute, 1988. are persons belonging to one of the following categories, who have fallen into the power of the enemy: that of being commanded by a person responsible for his subordinates; that of having a fixed distinctive sign recognizable at a distance; that of conducting their operations in accordance with the laws and customs of war. Articles 82 to 108 enumerate the penal and disciplinary sanctions: Prisoners of war who are seriously wounded or suffer from specified diseases must be repatriated directly back to their own country or to a hospital in a neutral State (Arts. the armed forces have to respect humanitarian law in their dealings with the enemy (and not in the relations with their own nationals). If they violate international humanitarian law or do not comply with the law of war, they may have to face prosecution for war crimes. If put on trial they shall enjoy the fundamental guarantees of a regular judicial procedure. Dormann, Knut. Prisoner-of-war status also prevents prisoners from being prosecuted and sentenced solely for having taken part in a conflict. The Geneva Conventions of 1949 are a legacy of World War II. Prisoner of war status is closely tied to the definition of combatants and hence to the status of members of the armed forces. Sexual violence against detainees is a persistent issue in both international and non-international … Burundi’s Regulations on International Humanitarian Law (2007) states: If captured, a combatant must have the status of prisoner of war. The Additional Protocol to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), adopted in 1977, takes a different approach to the question of prisoners of war. 5, API Art. All prisoners of war are … “The Legal Situation of ‘Unlawful/Unprivileged Combatants.’” In International Review of the Red Cross 849 (March 2003): 45–85. Therefore, the category of “unlawful combatants” used to prevent some combatants from enjoying the status or the protection to afforded prisoners has no legal basis in humanitarian law since the 1977 Additional Protocols. During an armed conflict, an individual who directly participates in the hostilities and falls into the hands of the enemy will enjoy protection under the Third Convention until such time that his or her status is determined by a competent independent and impartial tribunal, according to the rule of law (GCIII Art. Parties to a given humanitarian treaty have to comply with obligations arising out of that treaty, whereas all States have to respect provisions that are part of customary law. International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (jus in bello). Despite their overlapping, human rights law and humanitarian law remain distinct branches of public international law. Some of its provisions have no equivalent in human rights law, in particular the rules on the conduct of hostilities or on the use of weapons. 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