Que 5 - How are ‘Prisoners of war’ to be treated under International Law? Explain with reference to various conventions.

CSS 2004

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What does international law say about prisoners of war?

The most important rule, enshrined in Common Article 3 of the 1949 Geneva Conventions, is that prisoners of war (POWs) must be treated humanely.

What are the most serious violations?
• Violence, in particular murder of all kinds, mutilation, cruel treatment, and torture.
• Violations of personal dignity, in particular humiliating and degrading treatment.
• Sentencing and executing prisoners without a judgment handed down by a regularly constituted court that offers all standard judicial guarantees.
• Hostage-taking.
• Withholding treatment from the wounded and sick.

What are the Geneva Conventions?
Part of the body of international humanitarian law that deals with how war is conducted. The law is laid out in a number of documents, the most important of which are four 1949 Geneva Conventions, two 1977 additions to them called protocols, and other treaties, such as the Hague Convention of 1907.

Is everyone captured considered a prisoner of war?
No. There is a large legal gray area about who is officially considered a POW, and thus over who is entitled to the detailed protections in the conventions. The law states that members of the armed forces of a nation, when captured, are prisoners of war. So are members of organized militias or volunteer corps that are part of the armed forces.
In general, legal combatants meet the following conditions:

• They are commanded by a person responsible for his subordinates.
• They wear uniforms or can otherwise be identified as fighters.
• They carry arms openly.
• They conduct their operations in accordance with the laws and customs of war.

Questions arise when fighters operate illegally and outside of the rules of war. For example, the United States has denied that al-Qaeda members qualify for POW status because, among other reasons, they do not constitute a national armed force.

Do illegal combatants have any protection under the law?
Yes. They are still guaranteed humane treatment. They are also guaranteed the right to appeal their status through a due process hearing.

Can prisoners of war be questioned?
Yes. According to Article 17 of the Geneva Conventions, every prisoner of war must give his name, rank, date of birth, and serial number when captured. International lawyers say POWs can also be questioned, but under strict guidelines. "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever," the law states. And POWs who refuse to answer "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

What other rules govern war?
The U.N. Charter regulates when one country can go to war with another. According to the charter, the use of force is generally banned, except under two conditions: in the pursuit of a nation's "inherent right of self defense" (Article 51), or when authorized by the U.N. Security Council (Chapter VII). Debate over the application of these provisions in practice is intense.

Are all countries agreed on the rules?
No. While both the United States and Iraq have ratified the 1949 Geneva Conventions, for example, neither has agreed to the 1977 agreements, which deal with guerrilla fighting and other issues of modern war. Generally, rules of war are determined not only by what is in treaties, but also by international consensus and practice. This is called customary international law.

In illegal wars, do humanitarian laws still apply?
Yes. No matter what one thinks about the legality of a war--some critics have said the U.S.-led assault on Iraq is unlawful--humanitarian laws must be followed. A strict interpretation of the Geneva Conventions would make illegal all tactics that unnecessarily endanger and target the civilian population.

Is pretending to surrender and then attacking an enemy a violation of the rules of war?
Yes. It is considered an act of treachery or perfidy--and is a serious violation. Broadly defined, perfidy, or abuse of trust, takes place when a combatant tricks the enemy into thinking that he deserves protection under the laws of war. According to Article 37 of the 1977 addition to the Geneva Conventions, perfidy includes feigning:

• an intent to negotiate under a flag of truce or of surrender.
• an incapacitation by wounds or sickness.
• civilian or non-combatant status.
• protected status by using the signs of neutral parties, such as a Red Cross or U.N. sign.

Pentagon officials have recently accused the Iraqi forces of perfidy. However, because the United States has not ratified the 1977 protocol defining perfidy, that could complicate its legal case, lawyers say.

Is it legal for fighters to dress in civilian clothes?
This can fall into a gray area, but generally the answer is no. Legal commentators say a combatant can use camouflage, but he cannot pretend to be a civilian and hide in a crowd. These distinctions can get tricky. If captured, such forces may not be entitled to POW status.

How often are these rules banning perfidy followed?
Often, they are not. In fact, many of the illegal actions banned by this law are staples of guerrilla warfare tactics. Such tactics were famously used by the Viet Cong in Vietnam and the irregular fighters in Somalia. That doesn't make them any less illegal. But in the heat of battle, the legality of actions may not be a major consideration.

Is any form of trickery permitted in war?
Yes. The law permits what it calls ruses, which are actions intended to mislead the enemy, or induce him to act recklessly, but not those that trick them into thinking a combatant is entitled to humanitarian protections. Military handbooks list many of these: staging surprise attacks and ambushes, using decoys, transmitting misleading messages in the press, removing the signs indicating rank from uniforms, and many kinds of psychological warfare.

Prisoners of War

prisoners of war in international law, persons captured by a belligerent while fighting in the military. International law includes rules on the treatment of prisoners of war but extends protection only to combatants. This excludes civilians who engage in hostilities (by international law they are war criminals) and forces that do not observe conventional requirements for combatants

Historical Attitudes toward Prisoners of War

Attitudes toward prisoners of war have changed over time. Originally slaughtered, captives were later considered war booty. The captor still held life-and-death power, but it became more useful to make slaves of the prisoners. In feudal Europe the nobles were ransomed, and the Ottoman Empire and the Barbary States generally ransomed their Christian captives.

The basis of the modern treatment of prisoners of war was stated by Montesquieu in De l'esprit des lois and by J. J. Rousseau in his Social Contract; both held that the right of the captor over the prisoner was limited to preventing him from taking up arms again and ceased altogether with the end of hostilities. Their view was elaborated by Emerich de Vattel . During the American Civil War, Francis Lieber drew up the first systematic, written regulations on the treatment of prisoners of war.

The first international convention on prisoners of war was signed at the Hague Peace Conference of 1899. It was widened by the Hague Convention of 1907. These rules proved insufficient in World War I , and the International Red Cross proposed a more complete code.

The 1929 Geneva Convention

In 1929 the Geneva Convention Relative to the Treatment of Prisoners of War was signed by 47 governments. Chief among the nations that did not adhere to the Geneva Convention of 1929 were Japan and the USSR. Japan, however, gave a qualified promise (1942) to abide by the Geneva rules, and the USSR announced (1941) that it would observe the terms of the Hague Convention of 1907, which did not provide (as does the Geneva Convention) for neutral inspection of prison camps, for the exchange of prisoners' names, and for correspondence with prisoners.

According to the Geneva Convention no prisoner of war could be forced to disclose to his captor any information other than his identity (i.e., his name and rank, but not his military unit, home town, or address of relatives). Every prisoner of war was entitled to adequate food and medical care and had the right to exchange correspondence and receive parcels. He was required to observe ordinary military discipline and courtesy, but he could attempt to escape at his own risk. Once recaptured, he was not to be punished for his attempt. Officers were to receive pay either according to the pay scale of their own country or to that of their captor, whichever was less; they could not be required to work. Enlisted men might be required to work for pay, but the nature and location of their work were not to expose them to danger, and in no case could they be required to perform work directly related to military operations. Camps were to be open to inspection by authorized representatives of a neutral power.

In World War II, Switzerland and Sweden acted as protecting powers. The International Red Cross at Geneva acted as a clearinghouse for the exchange of all information regarding prisoners of war and had charge of transmitting correspondence and parcels. With minor and inevitable exceptions on the lower levels, the United States and Great Britain generally honored the Geneva Convention throughout the conflict. Japan at first committed such atrocities as the "death march of Bataan," but began to abide by the rules after a sufficient number of Japanese prisoners had fallen into Allied hands to make reprisals possible. Germany did not treat all its prisoners alike. Americans and British subjects received the best treatment, Polish prisoners the worst.

The 1949 Geneva Convention

The changed methods of warfare in World War II, the maltreatment of prisoners of war that constituted an important part of the war crimes indictments, and the retention of a great number of German prisoners of war by the USSR for several years after the war showed that the 1929 Convention required revision on many points. A new convention, reaffirming and supplementing the 1929 Convention, was signed at Geneva in 1949 and subsequently ratified by almost all nations. It broadened the categories of persons entitled to prisoner-of-war status, clearly redefined the conditions of captivity, and reaffirmed the principle of immediate release and repatriation at the end of hostilities.

Although the North Koreans promised to respect the Geneva Convention in the Korean War , they refused to recognize the impartial status of the Red Cross and denied it access to the territory they controlled. The unprecedented refusal of prisoners to be repatriated, moreover, established a new principle of political asylum for prisoners of war. The governments of North and South Vietnam, parties to the 1949 Geneva Convention, were charged with violating it in the Vietnam War —the North by not permitting full reporting, correspondence, and neutral inspection, and the South by allegedly torturing captives and placing them in inhumane prisons. The national anguish over the Vietnam War was extended for decades after the war's end in part because of the lack of resolution over the POW and MIA (missing in action) issue. While the Pentagon's MIA list still contains names of missing servicemen, the last official prisoner of war was declared dead in 1994.

Combatants captured and held by the United States as a result of its operations in Afghanistan against the Taliban government and Al Qaeda forces were not recognized as as prisoners of war by the Bush administration and were termed "unlawful combatants" instead. This decision was criticized by human rights groups as a failure to abide by international law, and drew criticism from the International Committee of the Red Cross (ICRC) as well. In June, 2004, the U.S. Supreme Court ruled that these prisoners, which the Bush administration had claimed it could hold indefinitely (most them at the Guantánamo, Cuba, naval base), were not beyond the bounds of U.S. federal law and had the right to challenge their detention.

A month before the ruling, U.S. prestige had suffered a significant blow when it was revealed that U.S. forces had abused Iraqi prisoners in 2003-4. Later revelations suggested that the abuse may have been an outgrowth of U.S. prisoner policy in place since the 2001 terror attacks on the United States, and the ICRC expressed concern that the United States might be continuing to hide prisoners from it, as had been attempted in Iraq. The ICRC subsequently privately charged that U.S. treatment of some prisoners at Guantánamo was "tantamount to torture." Also in 2004 the Bush administration determined that some non-Iraqi prisoners captured in Iraq were not subject to the Geneva Conventions, and that such prisoners could be transferred out of Iraq, as the CIA secretly had done with a small number of prisoners since 2003.

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When you have to shoot, shoot. Don't talk. ~ The Good, The Bad, and the Ugly

Prisoner of War

(pow, or Pw), any person captured or interned by a belligerent power during war. In the strictest sense it is applied only to members of regularly organized armed forces, but by broader definition it has also included guerrillas, civilians who take up arms against an enemy openly, or noncombatants associated with a military force.
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.

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 16th and early 17th centuries some European political and legal philosophers expressed their thoughts about the amelioration of the effects of capture upon prisoners. The most famous of these, Hugo Grotius, stated in his De jure belli ac pacis (1625; On the Law of War and Peace) that victors had the right to enslave their enemies, but he advocated exchange and ransom instead. The idea was generally taking hold that in war no destruction of life or property beyond that necessary to decide the conflict was sanctioned. The Treaty of Westphalia (1648), which released prisoners without ransom, is generally taken as marking the end of the era of widespread enslavement of prisoners of war.

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 French political philosopher Montesquieu in his L’Esprit des lois (1748; The Spirit of Laws) wrote that the only right in war that the captor had over a prisoner was to prevent him from doing harm. 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.

By the mid-19th century it was clear that a definite body of principles for the treatment of war prisoners was being generally recognized in the Western world. But observance of the principles in the American Civil War (1861–65) and in the Franco-German War (1870–71) left much to be desired, and numerous attempts were made in the latter half of the century to improve the lot of wounded soldiers and of prisoners. In 1874 a conference at Brussels prepared a declaration relative to prisoners of war, but it was not ratified. In 1899 and again in 1907 international conferences at The Hague drew up rules of conduct that gained some recognition in international law. During World War I, however, when POWs were numbered in the millions, there were many charges on both sides that the rules were not being faithfully observed. Soon after the war the nations of the world gathered at GenevaWorld War II was ratified by France, Germany, Great Britain, the United States, and many other nations, but not by Japan or the Soviet Union. to devise the Convention of 1929, which before the outbreak of

During World War II millions of persons were taken prisoner under widely varying circumstances and experienced treatment that ranged from excellent to barbaric. The United States and Great Britain generally maintained the standards set by the Hague and Geneva conventions in their treatment of Axis POWs. Germany treated its British, French, and American prisoners comparatively well but treated Soviet, Polish, and other Slavic POWs with genocidal severity. Of about 5,700,000 Red Army soldiers captured by the Germans, only about 2,000,000 survived the war; more than 2,000,000 of the 3,800,000 Soviet troops captured during the German invasion in 1941 were simply allowed to starve to death. The Soviets replied in kind and consigned hundreds of thousands of German POWs to the labour camps of the Gulag, where most of them died. The Japanese treated their British, American, and Australian POWs harshly, and only about 60 percent of these POWs survived the war. After the war, international war crimes trials were held in Germany and Japan, based on the concept that acts committed in violation of the fundamental principles of the laws of war were punishable as war crimes.

Soon after the end of World War II the Geneva Convention of 1929 was revised and set forth in the Geneva Convention of 1949. It continued the concept expressed earlier that prisoners were to be removed from the combat zone and be humanely treated without loss of citizenship. The convention of 1949 broadened the term prisoner of war to include not only members of the regular armed forces who have fallen into the power of the enemy but also the militia, the volunteers, the irregulars and members of resistance movements if they form a part of the armed forces, and persons who accompany the armed forces without actually being members, such as war correspondents, civilian supply contractors, and members of labour service units. The protections given prisoners of war under the Geneva Convention remain with them throughout their captivity and cannot be taken from them by the captor or given up by the prisoners themselves. During the conflict prisoners might be repatriated or delivered to a neutral nation for custody. At the end of hostilities all prisoners are to be released and repatriated without delay, except those held for trial or serving sentences imposed by judicial processes

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When you have to shoot, shoot. Don't talk. ~ The Good, The Bad, and the Ugly