UNIT 15 WHAT ARE THE RULES OF

PROTECTION OF
PRISONERS OF WAR?
Structure
15.1 Introduction
15.2 Objectives
15.3 Rationale for Protection of Prisoners of War
15.4 The 1949 Convention: Protection of Prisoners of War
15.4.1 Who is a Combatant?
15.4.2 Protection under the Third Convention

15.5 Beginning of Captivity

15.6 Condi tions of Captivity
15.7 Escape of Prisoners of War
15.8 Termination of Captivity
15.9 Summary
15.10 Terminal Questions
15.11 Answers and Hints

15.1 INTRODUCTION
In ancient times the concept of 'prisoner of war' was unknown and the defeated
became the victor's 'chattel'; in the Middle Ages it became customary to free
captives upon payment of a ransom. These practices were abandoned in modem
times, but it was not until the Peace Conferences of 1899 and 1907 that States first
agreed to limit, as between themselves, their sovereign rights over prisoners of war.

The first declaration that no reprisals should be carried out upon prisoners of war
was contained in the 1863 Instructions for the United States Army in the field. In
1874 the Brussels Conference drew up a draft International Declaration which was
the first international move with a view to regulating the status of prisoners of war.
Shortly thereafter in 1880, the International Law Institute adopted a set of rules
known as the Oxford Manual, which were also intended to codify the laws of war.

The Regulations annexed to The Hague Conventions of 1899 and 1907 concerning
the Laws and Customs of War on Land gave prisoners of war a definite legal statute
to protect them from arbitrary treatment by the Detaining Power. It proved necessary
during the First World War to supplement the Hague Regulations by special agreements
between the belligerents (the Berne Agreements of 1917 and 1918); thus the 1929
Conventon (being the Convention relative to the Treatment of Prisoners of War,
Geneva July 27, 1929) was based on the experience of practical application of the
principles stated at The Hague which recognized the right of prisoners to be humanely
treated.

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 What are the Rules of
The 1929 Convention was applied throughout the Second World War and provided
Protection of Prisoners
prisoners of war with effective protection and treatment far better than that which of War?
they had received during the 1914-1918 conflict. It nevertheless became apparent
to those who benefited from it as well as to those who had to apply it, that the 1929
Convention needed revision on a number of points because of changes in the conduct
and the consequences of war and even in human living conditions. In particular, it had
become necessary to widen the scope of the term 'prisoners of war' so as to
included members of armed forces following capitulation and in order to avoid the
arbitrary loss of that status at any given moment; there was also a need for stricter
regulations governing captivity, in view of the increase in work by prisoners of war,
assistance received by them or judicial proceedings brought against them. It was
necessary to reaffirm the principle of immediate liberation at the end of hosti lities;
lastly, it.was essential to ensure that the agencies responsible for looking after the
interests of prisoners of war and seeing that the relevant regulations were respected
should, in regard to both their status and their scope, be as independent as possible
of the relations between belligerents

15.2 OBJECTIVES
After reading this unit, you should be able to:

• discuss Rationale for protection of prisoners of war;

• describe the main features of the 1949 Convention: Protection ofPrisoners of war;
and

• discuss the provision the convention dealing with Beginning of Captivity, Conditions
of Captivity and Escape of Prisoners of war.

15.3 RATIONALE FOR PROTECTION OF

PRISONERS OF WAR
The protection of prisoners of war and its development is based on ethical, military
and political elements. The humane treatment of prisoners of war stems from the
conviction that captured combatants no longer pose any threat to the lives of the
persons who capture them nor to the detaining power. While specific forms and
procedures of treatment may be influenced by the former conduct of the prisoner
during the combat, e.g. the use of prohibited weapons, attacks against protected
persons, or perfidious conduct, standard rules of protection ccntinue to apply. These
are deeply rooted in international humanitarian law and human rights.

Military considerations also play an important role in the treatment of prisoners of

war. In principle, prisoners are of military value to the adversary. They can be used
as sources of information or to influence their comrades who are still fighting. On the
other . hand, taking and detaining prisoners can impede the detaining power's military
.

operations. Prisoners must be taken care of and guarded, and they may even have
to be protected from the angry population of the detaining power. In order to remove
prisoners from forward positions, transport facilities must be available. These few
examples show that the humane treatment cif prisoners of 'war is embedded in a
moral, military, and political framework that is likely to influence the interpretation
arid further development of relevant provisions of international humanitarian law. This
must be taken into account to ensure that applicable law can fulfill its purpose and
remain practicable. . 21
What arc the Rules of
To be effective, the relevant provisions of existing international humanitarian law and
Protection of the Different
Categories of Protected
any attempts for new rules must resolve five questions:
""rsons?
• Who is a prisoner of war?

• ~ow shouldprisoners of war be treated?

• What are the fundamental rights both of the prisoner of war and the detaining
power?:,.,

• For how long and under what circumstances shall protection of the prisoner of
war be guaranteed?

• Which institutions or organizations supervise this treatment and thereby

contribute to .theenforcement of the protective provisions?

15.4 THE 1949 CONVENTION-: PROTECTION

OF PRISONERS OF WAR
The underlying theme of the third Convention is that an enemy who surrenders must
be spared. Once he has laid down his arms no one has any right to take his life. He
must also be protected against the dangers of battle by being evacuated to the rear
as soon as circumstances allow, and until then must not be unnecessarily exposed to
danger. Article 19 of the Third Convention states this as follows:

Prisoners of war shall be evacuated, as soon as possible after their capture, to camps
situated in an area far.enough from the combat zone for them to be out of danger.

Only those prisoners of war who, owing to wounds or sickness, would run greater
risks by being evacuated than by remaining where they are, may be temporarily kept
back in a danger zon-e.

Prisoners of war shall not be unnecessarily exposed to danger while awaiting

evacuation from a fighting zone.

But before we discuss the kind of protection and circumstances under which protection
is granted, we must first identify the groups of people who are entitled to protection
under the Third Convention.

15.4.1 Who is a Combatant?

Combatants who fall into enemy hands are prisoners of war from the moment of
capture.

A combatant is either:

A member of the armed forces of a Party to the conflict, including members of

militias or volunteer corps forming part of such armed forces [Art. 4 (1), G.C. HI]

Or

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 such
militias or volunteer corps, including such organized resistance movements, fultt'l the
following conditions:
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 What are the Rules of
a) that of being commanded by a person responsible for his subordinates;
Protection of Prisoners
of War'?
b) that of having a fixed distinctive sign recognizable at a distance;

c) that of carrying arms openly;

d) that of conducting their operations in accordance with the laws and customs of
war. [Art. 4 (2), G.c. Ill]

Or

D The armed forces of a Party to a conflict consist of all organized armed forces,
groups and units which are under a command responsible to that Party for the
conduct or its subordinates, even if that Party is represented by a government or an
authority not recognized by an adverse Party. Such armed forces shall be subject
to an internal disciplinary system which, inter alia, shall enforce compliance with the
rules of international law applicable in armed conflict.

ii) Members of the armed forces of a Party to a conflict (other than medical personnel
and chaplains covered by Article 33 of the Third Convention) are combatants, that
is to say, theyhave the right to participate directly in hostilities.

ill) Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement

agency into its armed forces it shall so notify the other Parties to the conflict.[ Article
43 of Protocol I]

Or

In order to promote the protection of the civilian population from the effects of
hostilities, combatants are obliged to distinguish themselves from the civilian population
while they are engaged in an attack or in a military operation preparatory to an
attack. Recognizing, however, that there are situations in armed conflicts where,
owing to the nature of the hostilities an armed combatant cannot so distinguish
himself, he shall retain his status as a combatant, provided that, in such situations, he
carries his arms openly:

a) during each military engagement, and

b) during such time as he is visible to the adversary while he is engaged in a military

deployment preceding the launching of an attack in which he is to participate. Acts
which comply with the requirements of this paragraph shall not be considered as
perfidious within the meaning of Article 37, paragraph 1 (c) [Article 44 (3) of
Protocol I]

Or

Any combatant who falls into the power of an adverse Party while not engaged in
an attack or in a military operation preparatory to an attack shall not forfeit his rights
to be a combatant and a prisoner of war by virtue of his prior activities. [Article 44
(5) of Protocol I]

In essence, Combatants are members of armed forces. The main feature of their
status in international armed conflicts is that they have a right to directly participate
in hostilities. If fallen into the power of the enemy, they become prisoners of war who
may not be punished for having directly participated in hostilities.
What are the Rules of
Combatants have an obligation to respect International Humanitarian Law (IHL),
Protection of the Different
Categories of Protected
which includes distinguishing themselves from the civilian population. If they violate
Persons? IHL they must be punished, but they do not lose combatant status and retain, if
captured by the enemy, prisoner of war status, except if they violated their obligation
to distinguish themselves.

Self Assessment Question

1) Define the term combatant under IHL.

15.4.2 Protection under the Third Convention

Combatants who fall into enemy hands are prisoners of war from the moment of
capture. Who is responsible for their treatment? Article 12 of the Third Convention
states the principle that: 'Prisoners of war are in the hands of the enemy Power,
but not of the individuals or military units who have captured them. ' This means
that the Detaining Power is responsible for everything that happens to them; this
responsibility of the state does not, however, detract from the responsibility of any
individuals that may arise from violations ofthe Convention.

The opening sentence of Article 13 provides that' Prisoners of war must at all
times be humanely treated'. Obviously, they may not be arbitrarily killed; the article
makes the point explicit when it prohibits any unlawful act or omission ... causing
death or seriously endangering the health of a 'prisoner of war' . Always according
to Article 13, prisoners of war must be protected, 'particularly against acts of
violence or intimidation and against insults and public curiosity'; and reprisals
directed against prisoners of war are prohibited. Additionally, they' are entitled in
all circumstances too respect for their persons and their honour' (Article 14).

To the-authorities of a Detaining Power a prisoner of war is mainly of interest as a

potential source of information. In order to secure this information they may interrogate
him, use kind words and create a congenial atmosphere to make him talk, listen in
on his conversations, and so on. They are not allowed, however, to have recourse
to 'physical or mental torture' or 'any form of coercion'. The only information every
prisoner of waris obliged to give is 'his surname, first names and rank, date of
birth, and army, regimental .personal. or serial number, or failing this, equivalent.
information' (Article 17).

Prisoner of war captured in a combat zone must be evacuated as soon as possible

after their capture and if their condition permits, to camps situated outside the danger
area, where they may be kept interned at the expense of the Detaining Power
(Article 15, 19,21). Every such prisoner-of -war camp 'shall be put under the
immediate authority of a responsible commissioned officer belonging to the
regular armedforces of the Detaining Power'. This officer, who, under the direction
of his government bears responsibility for the application of the Convention in the
camp, must not only himself possess a copy of the Convention but also' ensure that
its provisions are known to the' camp staff and the guard' (Article 39). The text
of the Convention must moreover' be posted, in the prisoners' own language, in
24 places where all may read them' (Article 41).
 What aloe the Rules of
Further Article 23 of the Third Convention stipulates that:
Protection of Prisoners
of War?
No prisoner of war may at any time be sent to, or detained in areas where he may
be exposed to the fire of the combat zone, nor my his presence be used to render
certain points or areas immune from military operations.

With reference to non international armed conflicts, Article 3 of the 1949 Conventions
stipulates that

Persons taking no active part in hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds,
detention or any other cause, shall in all circumstances be treated humanely ...

It is therefore forbidden to expose such persons deliberately to fighting, whether to

shield certain objectives from military operations or for any other reason. Furthermore,
Article 5 of Protocol II states that

Places of internment and detention shall not be located close to the combat zone
[and that persons deprived of heir liberty] shall be evacuated when the places where
they are interned or detained become particularly exposed to danger arising out of
the armed conflict, if their evacuation can be carried out under adequate conditions
of safety.

The safety of prisoners of war depends largely on where their camps are situated.
A nearby airfield, railway junction, armaments factory or other likely target increases
the danger to them. Article 23 of the Third Convention requires the detaining power
to give the enemy authorities, through the Intermediary of the Protecting Powers, all
useful information regarding the geographical location of prisoner-of-war camps. The
lack of a Protecting Power does not invalidate this obligation, which is imposed to
ensure the prisoner's safety, and the detaining power will then have to find another
intermediary, The best qualified and most readily trusted will generally be the ICRC.
For example, in the Korean War it was requested to pass on to the government of
the Democratic Republic of Korea the information supplied by the UN Unified
Command on the location of prisoner-of-war camps controlled by the United Nations
forces.

Finally the combat situation may be such that the detaining power can neither ensure
the safety of prisoners of war in its hands nor evacuate them. This is particularly likely
when prisoners are taken by resistance movements engaged in guerrilla warfare.

Both in international conflicts and in wars of national liberation as defined by Article

1, paragraph 4, of Protocol I, the detaining power must release prisoners that it
cannot evacuate from the combat zone. That obligation is laid down in Article 41,
paragraph 3, of Protocol I:

'When persons entitled to protection as prisoners of war have fallen into the power
of an adverse party under unusual conditions of combat which prevent their evacuation
as provided for in Part Ill, Section I, ofthe Third Convention, they shall be released
and all feasible precautions shall be taken to ensure their safety.

In internal conflicts, it is not certain that the detaining authority is under any obligation
to free prisoners it cannot evacuate. It can, however, do so (and often has done so)
at its own discretion. The ICRC's good offices have thus been requested at various
times to facilitate the release of military prisoners captured by insurgent groups and
resistance or liberation movements.
25
What are the Rules of
Apart from an exchange or unilateral release, which in such a situation depends on
Protection of the Different
Categories of Protected
the goodwill of the detaining authority, the safety of prisoners can be ensured only
Persons? by arranging for them to be intemed in a neutral country under the terms of Article
III of the Third Convention:

The Detaining Power, the Power on which the prisoners of war depend, and a
neutral Power agreed upon by these two Powers, shall endeavour to conclude
agreements which will enable prisoners of war to be intemed in the territory of the
said neutral Power until the close of hostilities.

The purpose of captivity is to exclude enemy soldiers from further military operations.
Since soldiers are permitted to participate in lawful military operations, prisoners of
war shall only be considered as captives detained for reasons of security, not as
criminals.

The purpose of captivity is not defined in GC Ill. It is in the interestof the detaining
power to prevent enemy combatants from taking part in further military operations;
The group of persons liable to be taken prisoner goes beyond the narrow term of
'soldiers'. All persons falling into the hands of the detaining power and considered
to be prisoner of war under Article 4 GC III and Article 43 AP I belong to this
group. War correspondents or supply contractors, for example, in so far as they are
authorized to carry out their activities by the armed forces which they accompany,
shall also be considered prisoners of war if they [don't (?)] possess the identity card
required for their activities. A new practice regarding joumalists has emerged during
Iraq war in 2003. TV and other joumalists had been permitted to observe and report
about the fighting between allied and Iraqi forces while embedded in units of the U.S.
forces. Iraq also permitted joumalists to report on the hostilities from Baghdad.
Several of those reporting were killed as a result ofU.S. attacks. Embedded joumalists
who do not qualify as war correspondents however are not prisoners of war when
captured and cannot be attacked due to their civilian status.

Prisoners of war are not prisoners of the capturing unit but prisoners of the state to
whose armed forces the capturing unit belongs (detaining power). The detaining
power is responsible for the treatment of prisoners of war (Article 12, para.1, GC
Ill).

In any case of doubt as to whether persons having committed a belligerent act and
having fallen into the hands of the enemy are to be protected as prisoners of war
such persons shall enjoy that protection until such time as their status has been
determined by a competent tribunal (Article 5, para. 2, GC Ill; Article 45, paras.
1 and 2, AP I).

Persons who are in the power of a party to the conflict and who do not benefit from
more favourable treatment shall be treated humanely under all circumstances and
shall enjoy, as a minimum, fundamental human rights protections (Article 75 AP I).

A detaining power may transfer prisoners of war to another power only if it has
satisfied itself of the willingness and ability of the latter to apply the rules of international
law as to the protection of prisoners of war (Article 12, para. 2, GC Ill)

Representatives of the protecting power and delegates of the ICRC may visit prisoners
in their camps at any time and talk to them individually and without witnesses.

26
 What are the Rules of
Fundamental rules for the treatment of prisoners of war
Protection of Prisoners
of War"!
• It is prohibited to treat prisoners of war inhumanely or dishonorably (Article 13 and
14 GC Ill).

• Any discrimination on the grounds of race, nationality, religious belief or political

opinions, or similar criteria is unlawful (Article 16 GC Ill).

• Reprisals against prisoners of war are prohibited (Article 13, para. 3, GC ITI).

Self Assessment Question

2) What are the protection available to prisoners or war under this convention?

15.5 BEGINNING OF CAPTIVITY

• The status of prisoner of war begins as soon as a combatant (Articles 4A, Nos. 1-
3 and 6, GC Ill; Article 44 AP I) or other person with equal status (Article 4A,
NasA and 5; Article 4B, No. 1; and Article 5, para. 2 GC Ill; Article 45, para. 1,
AP I) and hors de combat (Article 41, para.2, AP I) falls into the hands of the
adversary. An adversary who, having laid down his arms, or no longer having means
of defence, surrenders or is otherwise unable to fight or defend himself shall no
longer be made the object of attack (Article 41, para. 1, AP I; Article 23, para 1,
HagueReg). He shall be taken prisoner of war.

• Prisoner of war shall be disarmed and searched. Their military equipment and military
documents shall be taken away from them (Article 18, para. 1, GC Ill).

• Prisoners of war shall keep all effects and articles of personal use, their metal helmets,
and NBC protective equipment as well as all effects and articles used for their
clothing and feeding (Article 18, para. 1, GC Ill). They shall also keep their badges
of rank and nationality, their decorations, and articles of mainly personal or
sentimental value, e.g. pictures of family members (Article 18, paras. 3,40 GC
Ill).

• The detaining power is obliged to forward information regarding the fate of prisoners
of war (Article 122 GC Ill) as well as wounded, sick, shipwrecked, and dead
(Article 16 GC I; Article 19 GC 1I), and of protected civilians (Article 136 -141
GC IV). For this purpose, each of the patties to the conflict shall institute an official
Information Bureau on the outbreak of a conflict and in all cases of occupation
(Article 122, para. 3, and 123 GC Ill). The Bureau shall co-operate with the
Central Prisoners of War Information Agency of the ICRC (Aricle 122, para. 3,
and 123 GC Ill). .
-
• Sums of money and articles of value carried by prisoners of war may not be taken
away from them except by order of an officer of the detaining power and after a
receipt has been given. Such money and objects shall be retumed to prisoners of
war at the end oftheir captivity (Article 18, paras. 4-6, GC Ill).
27
What are the Rules of
• Prisoners of war shall be evacuated as soon as possible to camps situated in an
Protection of the Different
Categories of Protected area far enough from the area of operations for them to be out of danger. Prisoners
Persons? of war shall not be unnecessarily exposed to danger while awaiting evacuation
(Article 19 GC Ill).

• The evacuation of prisoners of war shall be effected in humane conditions, similar

to those for the forces of the detaining power in their changes of station. Prisoners
of war shall be supplied with sufficient food, clothing, and medical care. The civilian
population shall be prevented from attacking prisoners of war (Article 20 GC Ill).

• Prisoners of war who, under unusual conditions of combat, cannot be evacuated

shall be released; in this case, too, all feasible precautions shall be taken to ensure
their safety (Article 41, para. 3, AP I)

• Every prisoner of war, when questioned on the subject, is entitled to give only
his surname, first names, rank, date of birth, and army, regimental, personal, or
serial number (in the German Armed Forces: service number). The exercise of
this right shall not cause him any disadvantage (Article 17, para. 4, GC Ill). The
questioning of prisoners of war shall be carried out in a language which they
understand (Article 17, para 6, GC Ill). No physical or mental torture, nor any
other form of coercion, may be inflicted n prisoners of war to secure from them
information of any kind whatsoever. Prisoners of war who refuse to answer may
not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment
of any kind (Article 17, para. 4, GC Ill).

15.6 CONDITIONS OF CAPTIVITY

• The detaining power may subject prisoners of war to internment, i.e. put them
into camps and guard them (Article 21, para 1, GC Ill). These camps shall not
be situated in danger zones (Article 19, para. 1, and 23, para 1, GCIII). They
shall not be used to render certain areas immune from military operations (Article
23, para. 1, GC Ill).

• The camps shall meet certain minimum requirements of hygiene and health (Article
22, para. 1, GC Ill). They shall be provided with shelters against air raids and
other hazards of war (Article 23, para. 2, GC Ill). Whenever the military situation
permits, prisoner-of-war camps shall be marked by the letters PG (prisonniers
de guerre) or PW (prisoners of war), clearly visible from the air (Article 2, para.
4, GC Ill).

• As far as possible, prisoners of war shall be assembled according to their

nationality, language, and customs (Article 22, para. 3, GC Ill).

• Prisoners of war shall receive sufficient food (Article 26 GC Ill) and clothing
(Article 27 GC Ill) as well as necessary medical attention (Article 29-31 GCIII).

• The detaining power may utilize the labour of able-bodied enlisted men for
certain non- military works (Article 49, para. 1, and 50 GC In). Non-
commissioned officers shall only be required to do supervisory work. Officers
are exempted from compulsory work (Article 49, paras. 2 and 3, GC Ill).

• No prisoner of war shall be employed against his will on labour which is of

unhealthy or otherwise dangerous nature (e.g. mineclearing), or which is humiliating;
28
 What are the Rules of
nevertheless, he may volunteer to do dangerous or unhealthy work (Article 52
Protection of Prisoners
GC Ill). of War?

• Not more than one week after arrival at camp, every prisoner of war shall be
enabled to write direct to his family and the central Prisoners of War Agency,
informing them of his captivity (Articles 70 and 123 GC Ill), and to correspond
regularly with his relatives thereafter.

• A prisoner of war shall be subject to the laws, regulations, and orders effective
in the armed forces ofthe detaining power. The detaining power shall be justified
in taking judicial or disciplinary measures in respect of any offence committed by
a prisoner of war against these provisions (Article 82, para. 1, GC IU).

• Acts which constitute offences against discipline shall be investigated immediately

(Article 96, para. 1, GC UI). Disciplinary punishment may b ordered only by
appropriate courts of law, military commanders, camp commanders, and their
representatives who have been assigned disciplinary powers (Article 96, para. 2,
GC Ill). In no case may prisoners of war themselves exercise disciplinary powers
(Article 96, para. 3, GC IU).

Self Assessment Question

3) Discuss the provisions of the convention concerning the treatment of prisoners
of war during captivity.

15.7 ESCA:PE OF PRISONERS OF WAR

Prisoners of war who have made good their escape and who are recaptured shall
not be liable to any punishment in respect of their escape (Article 91, para. 2, GC
IU). The escape of a prisoner of war shall be deemed to have succeeded when
(Article 91, para. 1, GC UI):

• He has joined friendly or allied armed forces

• He has entered neutral territory or otherwise left the territory under control ofthe
adversary; or

• He has joined a ship in the territorial waters but not under the control of the detaining
power.

A prisoner of war who has been captured in his attempt to escape shall be liable only
to disciplinary punishment in respect of his act (Article 92, para. 1, GC UI). This
shall also apply to a repeated offence.

A prisoner of war shall not be eligible to judicial prosecution even if he has committed
offences to facilitate his escape, e.g. theft of food or clothing, or the drawing up and
use of false papers. This shall not apply to cases in which the escapee has used
violence against-life or limb during his escape.(Article 93, para. 2, GC ITI).
29
What are the Rules of
Protection of the Different 15.8 TERMINATION OF CAPTIVITY
Categories of Protected
Persons?
Save by successful escape, captivity shall cease with the release of the prisoner from
the.custody of the detaining power. Seriously wounded and seriously sick prisoners
of war who are fit to travel and whose mental or physical fitness has been incurably
or permanently diminished or whose recovery may not be eXPe:~tedwithin one year
shall be repatriated during the annend conflict. No prisoner of war however, may,
be repatriated against his will during hostilities (Articles 109, 1to GC Ill).

All prisoners of war shall be released and repatriated without delay after the cessation
of active hostilities (Article 118 GC Ill). This requires neither a formal armistices
agreement nor the conclusion of a peace treaty. What matters is the actual cessation
of hostilities- provided that, according to a reasonable estimate, they are unlikely to
resume. Repatriation is carried out in an orderly manner, in accordance with a plan
agreed by all parties, working with and under- the control of the protecting powers
and the International Committee of the Red Cross (Articles 8-10 GC Ill).

Prisoners of war who have committed an indictable offence and against whom
criminal proceedings are pending or who have yet to complete a punishment may be
detained beyond the cessation of active hostilities (Article 119, para. 5, GC Ill).
'-,

15.9 SUMMARY
• Combatants who fall into enemy hands are prisoners of war from the moment of
capture

• Prisoners of War (PW) are in the hands of the enemy power, which becomes
responsible for everything that happens to them (Art. 12)

• Prisoners of War must at all times be humanely treated (Art. 13)

• Reprisals directed against prisoners of war are prohibited. Additionally, they are
entitled in al circumstances to respect for their persons and their honour (Art. 14)

• They are not allowed to have recourse to 'physical or mental torture' or 'any other
form of coercion'. (Art. 17)

• Article 42 provides that weapons may be used against prisoners of war only as 'an
extreme measure, which shall always be preceded by warnings appropriate to the
circumstances' .

• An attempt to escape which remains abortive exposes the PW to nothing more than
disciplinary punishment (Art. 92)

• One obvious method by which detention ofPW s may be terminated is not specifically
mentioned in the Convention: iris their exchange as a result of an express agreement
between parties to the conflict. Agreements to this effect are often brought about
and executed in the course of an armed conflict through the intermediary of the
ICRC.

30
 What are the. Rules.of
.

15.10 TERMINAL QUESTIONS Protection of Prisoners

of War?

I) 'Wh'at nature of protection was afforded by the Convention related to the Treatment
of Prisoners of War, Geneva July 27, 1929? In what way did the Second World
War serve to highlight the shortcomings ofthis Convention?

2) What are the various categories of individuals who can be defined under the term
'Combatant' as enshrined in the Geneva Convention of 1949 [GC Ill]? Can this
status be disregarded ifthe combatant indulges in actions which are in violation of
existing principles ofIHL?

3) Under IHL what is the purpose of captivity of the prisoners ofwar? Is this position
reflected in the Geneva Convention of 1949?

5) What are circumstances under which captivity can legitimately be terminated as per
the provisions ofthe Geneva Convention of 1949? Do the same apply in the case of
an escape?

15.11 ANSWERS AND HINTS

Self Assessment Questions
I) Combatants who fall into enemy hands are prisoners of war from the moment of
capture.

A combatant is either:

A member of the armed forces of a Party to the conflict, including members of

militias or volunteer corps forming par! of such armed forces [Art. 4 (1), G.c.
III]

Or
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 such militias or volunteer corps.

2) Article 12 of the Third Convention states the principle that: 'Prisoners of war are
in the hands of the enemy Power, but not ofthe individuals or military units who
have captured them.' This means that the Detaining Power is responsible for
everything that happens to them; this responsibility of the state does not, however,
detract from the responsibility of any individuals that may arise from violations of
the Convention. The opening sentence of Article l3 provides that 'Prisoners of
war must at all times be humanely treated.

3) The important provisions are:

The detaining power may subject prisoners of war to intemment, i.e. put them
into camps and guard them (Article 21, para 1, GC 1II). These camps shall not
be situated in danger zones (Article 19, para. 1, and 23, para 1, GCIlI). They
shall not be used to render certain areas immune from military operations (Article
23, para. 1, GC Ill). As far as possible, prisoners of war shall be assembled
according to their nationality, language, and customs (Article 22, para. 3, GC
Ill). Prisoners of war shall receive sufficient food (Article 26 GC Ill) and
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What are the Rules of clothing (Article 27 GC Ill) as well as necessary, medical attention (Article~29-
., .

Protection of the Different

Categories of Protected
31 GCIIl). The detaining power may utilize the labour of able-bodied enlisted
Persons? men for certain non- military works (Article 49, para. 1, and 50 GC 111). Non-
commissioned officers shall only be required to do supervisory work. Officers
are exempted from compulsory work (Article 49, paras. 2 and 3, GC In).

Terminal Questions
1) Refer to Section 15.4 and 15.5

2) Refer to Section 15.4

3) Refer to Section 15.4

4) Refer to Section 15.7 and 15.8

32