Prisoners of War Law

Prisoners of War Law

Introduction

Prisoners of War Law is mainly covered under the Geneva Convention which defines POWs as a person, civilian or combatant who is held in continuing custody by an enemy power during or immediately after an armed conflict. Prisioners of Law (POW) is 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.

Background

The procedure laid down by international agreement for the treatment of Prisoners of War under the Hague regulations was tested during the World War I and World War II under unprecedented difficulties. These arose not only from the passions and prejudices inevitably engendered in the course of such a vast conflict between the entire manhood of the nations concerned, but also from the facts that unexpectedly large numbers of combatants were taken prisoners, and that the captors had to deal with men of different nationalities, of varying characteristics and with widely different views as to the accommodation and food requisite for a prisoner of war.

Probably few people realized during the war how vast was the number of combatant prisoners taken by one side or the other. The final figures amounted to several millions in each world war. Only in the World War I, for example, Great Britain claims to have taken just under half a million, France just over that number, Italy nearly one million, Germany two and a half millions and Austria nearly one and a half millions. With regard to Russia, some idea of them may be gathered from the fact that Austria alone admitted to having lost to the Russians not less than one and a half millions.

Civilians

It is quite certain that the framers of the Hague Convention had not in view the treatment of persons other than combatants, but such large numbers of civilians were interned during the first world war that the arrangements made for them must shortly be considered.

In the first world war, the internment of civilians was a reality. In Great Britain it arose first from the widespread belief, justified probably only in a relatively small number of cases, that the German civilian population in England were either spies in the service of the German Government or an advance guard of a German army of occupation. But internment was not general in the United Kingdom. Every enemy alien had a right to have his case dealt with by an advisory committee.

In Germany, on the other hand, the internment of civilians?resulted from popular indignation in Germany at the entry of Great Britain into the war. Thus it was that in both countries? nearly every male enemy national of military age was interned, and the system, as applied to civilians, became established in both countries, although its working in Great Britain was later modified in the manner referred to above.

During World War II, and in many of the conflicts since, civilians have been the main victims of armed conflict. Civilians have always suffered in war, but the brutal impact of World War II, which included mass extermination, indiscriminate attacks, deportations, hostage taking, pillage and internment, took a high toll of civilian life. The response of the international community was the Fourth Geneva Convention adopted in 1949.

Before 1949 the Geneva Conventions protected wounded, sick, shipwrecked and captured combatants. The “civilians’ convention” recognized the changing nature of warfare and established legal protection for any person not belonging to armed forces or armed groups. The protection also included civilian property. Such protection was later reinforced with the adoption of the Additional Protocols to the Geneva Convention in 1977.

IHL provides that civilians under the power of enemy forces must be treated humanely in all circumstances, without any adverse distinction. They must be protected against all forms of violence and degrading treatment, including murder and torture. Moreover, in case of prosecution, they are entitled to a fair trial affording all essential judicial guarantees.

The protection of civilians extends to those trying to help them, in particular medical units and humanitarian or relief bodies providing essentials such as food, clothing and medical supplies. The warring parties are required to allow access to such organizations. The Fourth Geneva Convention and Additional Protocol I specifically require belligerents to facilitate the work of the ICRC.

While IHL protects all civilians without discrimination, certain groups are singled out for special mention. Women and children, the aged and sick are highly vulnerable during armed conflict. So too are those who flee their homes and become internally displaced or Refugees . IHL prohibits forced displacements by intimidation, violence or starvation.

Families are often separated in armed conflict. States must take all appropriate steps to prevent this and take action to re-establish family contact by providing information and facilitating tracing activities.

The protection of civilians provided by the Geneva Conventions and Additional Protocols is extensive. The problem of the past 50 years has been application. Neither States nor non-State armed groups have respected their obligations adequately. Civilians have continued to suffer excessively in almost every armed conflict.

In some conflicts civilians have been specifically targeted and subjected to terrible atrocities, ignoring the very basis of the Geneva Conventions, respect for the human person. It is for this reason that the ICRC continues to press States to respect and ensure respect for the principles of IHL, especially the protection of civilians.

Prisioners of War in the World War I

Application of the Military Law of the Captors.?—?Article 8 enacts that prisoners of war are subject to the laws, regulations and orders in force in the army of the captor State, a provision which gave rise to a good deal of trouble, owing, in England, to the difficulty of carrying it out strictly while in some cases, as in Bulgaria, punishments were allowed?—?such as flogging?—?for ordinary breaches of discipline?—?which were quite alien to British ideas of what is permissible.

Parole.?—?Articles 10, 11 and 12 deal with the subject of parole. In the World War no combatant prisoners, with one exception, were allowed to leave Germany or Great Britain on parole, or to reside outside the camps. The only cases in which questions arose were with regard to the temporary parole given when officers left their camps for a walk, and the parole given by those who were interned in neutral countries.

No parole seems to have been taken from those officers who were interned in Switzerland or Holland under the agreements made in 1917 and 1918 with the German Government.

Relief Societies.?—?Article 15 deals with societies for the relief of prisoners. An immense amount of valuable work, was done by such societies. The American branch of the Y.M.C.A. especially did much for the prisoners in England and Germany, being permitted to work on the substantially the same conditions in both countries.

Pay.?—?Article 17 provides for officers receiving the same rate of pay as officers of the corresponding rank in the army of the captors. This provision was not observed by the German Government, who paid ranks rather more. Accordingly, the British Government declined to carry out the terms of the article.
Religious Exercises.?—?Article 18 is designed to secure to prisoners complete liberty in the exercise of their religion, and during the World War no real complaint was made on either side.

Letters.?—?Article 16 was observed by both countries, except that at one time in some of the camps in Germany customs duties were charged on the contents of parcels, but this seems to have been due to some misapprehension, and was soon abandoned. Prisoners were as a rule allowed to write two letters a month and a postcard every week, and, in addition, a postcard in the prescribed form acknowledging the receipt of a parcel. But later in the war a “first capture postcard” was introduced, by which on a printed form a prisoner was allowed to notify to his relatives his capture, his state of health and his address.

Prisoners of war and detainees protected under International humanitarian law

The third Geneva Convention provides a wide range of protection for prisoners of war. It defines their rights and sets down detailed rules for their treatment and eventual release. International humanitarian law (IHL) also protects other persons deprived of liberty as a result of armed conflict.

The rules protecting prisoners of war (POWs) are specific and were first detailed in the 1929 Geneva Convention. They were refined in the third 1949 Geneva Convention, following the lessons of World War II, as well as in Additional Protocol I of 1977.

The status of POW only applies in international armed conflict. POWs are usually members of the armed forces of one of the parties to a conflict who fall into the hands of the adverse party. The third 1949 Geneva Convention also classifies other categories of persons who have the right to POW status or may be treated as POWs.

POWs cannot be prosecuted for taking a direct part in hostilities. Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities. The detaining power may prosecute them for possible war crimes, but not for acts of violence that are lawful under IHL.

POWs must be treated humanely in all circumstances. They are protected against any act of violence, as well as against intimidation, insults, and public curiosity. IHL also defines minimum conditions of detention covering such issues as accommodation, food, clothing, hygiene and medical care.

The fourth 1949 Geneva Convention and Additional Protocol I also provide extensive protection for civilian internees during international armed conflicts. If justified by imperative reasons of security, a party to the conflict may subject civilians to assigned residence or to internment. Therefore, internment is a security measure, and cannot be used as a form of punishment. This means that each interned person must be released as soon as the reasons which necessitated his/her internment no longer exist.

Rules governing the treatment and conditions of detention of civilian internees under IHL are very similar to those applicable to prisoners of war.

In non-international armed conflicts, Article 3 common to the 1949 Geneva Conventions and Additional Protocol II provide that persons deprived of liberty for reasons related to the conflict must also be treated humanely in all circumstances. In particular, they are protected against murder, torture, as well as cruel, humiliating or degrading treatment. Those detained for participation in hostilities are not immune from criminal prosecution under the applicable domestic law for having done so.

Treaties and customary law

International Humanitarian Law is based on a large number of Treaties , in particular the Geneva Conventions of 1949 and their Additional Protocols, and a series of other conventions and protocols covering specific aspects of the law of armed conflict. There is also a substantial body of customary law that is binding on all States and parties to a conflict.

Limits on the way warfare can be conducted have existed for centuries, but until 1864 they were for the most part unwritten customs. In that year the First Geneva Convention was adopted. It proved to be the first of many treaties limiting the way wars are waged.

The core of IHL is the Geneva Conventions. The initial text of 1864 was revised and recast in 1906 and again in 1929. Their current version was adopted on 12 August 1949, in the wake of the Second World War, and is now known as the “four Geneva Conventions”. They have achieved universal ratification.

IHL covers two main areas, the protection of persons who are not, or no longer taking part in fighting and restrictions on the means and methods of warfare such as weapons and tactics.

The First Geneva Convention of 1949 covers the protection and care for the wounded and sick of armed conflict on land.

The Second Geneva Convention concerns the protection and care for the wounded, sick and shipwrecked of armed conflict at sea.

The Third Geneva Convention relates to the treatment of prisoners of war.

The Fourth Geneva Convention concerns the protection of civilians in time of war.

Since 1949 three Protocols have been added to the Geneva Conventions. Additional Protocol I of 1977 relates to the protection of victims of international armed conflicts. Additional Protocol II of the same year covers the protection of victims of non-international armed conflicts.

Additional Protocol III of 2005 created a new protective emblem, the red crystal, alongside the existing red cross and red crescent.

IHL also includes a series of other treaties relating to specific weapons, tactics or protected persons and objects such as the 1954 Convention on the Protection of Cultural Property during armed conflict, the 1972 Biological Weapons Convention, the 1980 Convention on Conventional Weapons, the 1993 Convention on Chemical Weapons and the 1997 Ottawa Convention on anti-personnel mines.

In addition to treaty law, there is a considerable body of customary International Humanitarian Law . This has been catalogued in a major study by the ICRC and published by Cambridge University Press. This study provides a comprehensive analysis of the customary rules that apply to armed conflict based on State practice.

The 1949 Geneva Conventions

The first Geneva Convention protects wounded and sick soldiers on land during war.

This Convention represents the fourth updated version of the Geneva Convention on the wounded and sick following those adopted in 1864, 1906 and 1929. It contains 64 articles. These provide protection for the wounded and sick, but also for medical and religious personnel, medical units and medical transports. The Convention also recognizes the distinctive emblems. It has two annexes containing a draft agreement relating to hospital zones and a model identity card for medical and religious personnel.

The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war.

This Convention replaced Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. It closely follows the provisions of the first Geneva Convention in structure and content. It has 63 articles specifically applicable to war at sea. For example, it protects hospital ships. It has one annex containing a model identity card for medical and religious personnel.

The third Geneva Convention applies to prisoners of war. This Convention replaced the Prisoners of War Convention of 1929. It contains 143 articles whereas the 1929 Convention had only 97. The categories of persons entitled to prisoner of war status were broadened in accordance with Conventions I and II. The conditions and places of captivity were more precisely defined, particularly with regard to the labour of prisoners of war, their financial resources, the relief they receive, and the judicial proceedings instituted against them. The Convention establishes the principle that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. The Convention has five annexes containing various model regulations and identity and other cards.

The fourth Geneva Convention affords protection to civilians, including in occupied territory.

The Geneva Conventions, which were adopted before 1949. were concerned with combatants only, not with civilians. The events of World War II showed the disastrous consequences of the absence of a convention for the protection of civilians in wartime. The Convention adopted in 1949 takes account of the experiences of World War II. It is composed of 159 articles. It contains a short section concerning the general protection of populations against certain consequences of war, without addressing the conduct of hostilities, as such, which was later examined in the Additional Protocols of 1977. The bulk of the Convention deals with the status and treatment of protected persons, distinguishing between the situation of foreigners on the territory of one of the parties to the conflict and that of civilians in occupied territory. It spells out the obligations of the Occupying Power vis-à -vis the civilian population and contains detailed provisions on humanitarian relief for populations in occupied territory. It also contains a specific regime for the treatment of civilian internees. It has three annexes containing a model agreement on hospital and safety zones, model regulations on humanitarian relief and model cards.

Customary International Law is made up of rules that come from “a general practice accepted as law”and that exist independent of treaty law. Customary International humanitarian law (IHL) is of crucial importance in today’s armed conflicts because it fills gaps left by treaty law in both international and non-international conflicts and so strengthens the protection offered to victims.

International law comes from both treaty law and rules of what is known as Customary International Law . Treaties are written conventions in which States formally establish certain rules. Customary international law, on the other hand, is not written but derives from “a general practice accepted as law”. To prove that a certain rule is customary, one has to show that it is reflected in state practice and that the international community believes that such practice is required as a matter of law.

Customary IHL continues to be relevant in today’s armed conflicts for two main reasons. The first is that, while some States have not ratified important treaty law, they remain nonetheless bound by rules of customary law. The second reason is the relative weakness of treaty law governing non-international armed conflicts those that involve armed groups and usually take place within the boundaries of one country . A study published by the ICRC in 2005(“Customary International Humanitarian Law”) showed that the legal framework governing internal armed conflicts is more detailed under customary international law than under treaty law. Since most armed conflicts today are non-international this is of particular importance.

Main Source: ICRC web site

See Also

  • Humanitarian Law
  • Treaty Law
  • Third Geneva Convention, 1949
  • Fourth Geneva Convention, 1949
  • Protocol I additional to the Geneva Conventions, 1977
  • Protocol II additional to the Geneva Conventions, 1977

Further Reading

  • Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention)The Convention was adopted by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held at Geneva from 21 April to 12 August 1949. It was signed on 12 August 1949.
  • Optional Protocol to the Convention against Torture (OPCAT)The UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) is one of the United Nations mechanisms directed to the prevention of torture and other forms of ill-treatment. It started its work in February 2007. The OPCAT gives the SPT the right to visit all places of detention in those States and examine the treatment of people held there.
  • Prisoners of War and Detainees Overview – International Committee of the Red CrossThe third Geneva Convention provides a wide range of protection for prisoners of war. It defines their rights and sets down detailed rules for their treatment and eventual release. International humanitarian law (IHL) also protects other persons deprived of liberty as a result of armed conflict.
  • Uniform Code of Military JusticeThe Uniform Code of Military Justice (UCMJ, 64 Stat. 109, 10 U.S.C. Chapter 47), is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that “The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval forces.”
  • United Nations – Geneva Convention and the Treatment of Prisoners of WarAlthough one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
  • Federal Research Division (FRD) – POW/MIA Databases and Documents. In December 1991, Congress enacted Public Law 102-190, commonly referred to as the McCain Bill. The statute requires the Secretary of Defense to make available to the public–in a “library like setting”–all information relating to the treatment, location, and/or condition (T-L-C) of United States personnel who are unaccounted-for from the Vietnam War. The facility chosen to receive this information was the Library of Congress (LoC). The Federal Research Division (FRD) created the PWMIA Database, the online index to those documents. The microfilmed documents themselves are available at the Library of Congress or borrowed through local libraries.
  • NPS -Andersonville National Historic Site – Sacrifice and CourageFrom the Revolutionary War to Operation Iraqi Freedom, American prisoners of war have endured untold hardships, and shown tremendous courage. Andersonville NHS commemorates the sacrifices of these brave Americans through exhibits in the National Prisoner of War Museum; preserves the site of Camp Sumter (Andersonville prison); and manages Andersonville National Cemetery.

Conclusion

Notes

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

Customary International Law, Geneva Conventions, International Humanitarian Law, International humanitarian law, International humanitarian law, Refugees, Treaties, country.

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This entry was last modified: December 27, 2012