Protection of PoWs and Civilians in International Armed ConflictsProtection of PoWs and Civilians in International Armed Conflicts

Daniel CahenICRC, Legal Advisor to the OperationsOslo, 11 October 2007

Protection of persons in the power of the enemy (Geneva law)

Three categories :

Wounded, sick and shipwrecked Prisoners of war Civilians

Protection of Prisoners of War - General

Starting point is the fundamental distinction between combatant and civilian

Combatant has a right to participate in hostilities See GC III and AP I (a43 to a47) for details

Special cases – spies and mercenaries

Combatant Status

All members of the armed forces, except religious and medical personnel, are combatants and therefore may participate in hostilities

This includes organized groups and units under a command responsible to the Party, which are subject to discipline assuring respect for IHL

A combatant loses his status and also to be a PoW after capture, if he does not: Wear a uniform or a distinctive sign Wear arms openly while taking part or preparing for an

attack

Combatant Status

These tests were modified in API to include guerilla activities (a44)

So where a soldier, due to the nature of the hostilities, cannot distinguish himself from the civilian population, and in those situations he carries his arms openly,

In each military engagement and 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

Combatant Status

However, if he contravenes this rule, he loses his status of combatant, and may be tried for any criminal actions under criminal law.

Combatant Status

Medical personnel and religious personnel are not given PoW status (eg GC II a33)

Thus, when captured have preferential treatment, and remain in the service of their nationals. If their services are not needed, they are repatriated

Combatant Status, special cases

Spies (API a46)

If caught while engaging in espionage, then no PoW status

Not a spy if in uniform while gathering information Need act of false pretences or deliberately clandestine

manner, but must be caught while doing so to lose PoW status.

Note – Spying itself is not illegal, but if loss of PoW status, then possibility to be subjected to the laws of the detaining State on spying

Combatant Status, special cases

Mercenaries (API a47) :

Do not automatically lose their PoW status, this is up to the detaining state, which is unusual in IHL. Do not have the "right" to be a combatant or PoW

Hard test to satisfy : recruited, in hostilities, for private gain, not national, not in armed forces of state in conflict, and not been sent on official duty

Combatant Status

Being a combatant gives the right to participate in hostilities

However, it also means that you are a legitimate target

PoWs can be prosecuted for war crimes, pursuant to domestic legislation and IHL, and do not lose their PoW status unless for a question relating to distinction (a44 API)

PoWs : Captivity

Principle – PoW are not criminals and are held by the Party to the conflict. Entitled to humane treatment, women benefit from treatment related to their gender

Interrogation : not required to give anything but name, surname, rank, date of birth and serial number, or equivalent information (GCIII a17). Failure to give information can lead to reduction in privileges

PoWs : Captivity

Conditions of internment, long list of elements (art. 21 to 48 of GC III) :

Right to food, water, religious practices, medical care, treated concordant to rank

Labour – authorised to use PoW to work, but not officers, and not of a military character/dangerous, paid for work.

Disciplinary offences established, GCs to be affixed in the camp. Use of weapons against those who try to escape only in last resort after warning, no criminal offence for those who try to escape

Relations with outside world, family: he has the right to send and receive letters, with a right of censor.

PoWs : End of Captivity

Wounded and Sick – gravely wounded repatriated during conflict. Test is whether can’t be cured in one year, or incurable sickness which is deteriorating

General principle, kept for the duration of active hostilities (GC IIIa118), then repatriated.

Exception, those prosecuted/sentenced who stay until end of proceedings/sentence (GCIII a119)

Non-Refoulement and forced repatriations issues : ICRC position

PoWs : Captivity, Role of the ICRC

Right to visit PoWs, article 126 GCIII

interviews without witnesses

exchange of family news

repeated visits

exception is imperative military necessity, only as an exceptional and temporary nature.

Protection of the Civilian Population

Source : GC IV, also in API

GC IV: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”

Regulates different situations, mostly : Persons of enemy nationality on territory Persons in occupied territory

Exceptions – nationals of neutrals where diplomatic presence and persons benefiting from other GCs, eg GCIII

Protection of the Civilian Population

General Protection : see a13 to 26 of GC IV, and APIa75

Particular protection given to: Medical establishments Old and infirm, pregnant women, children Neutralised zones intended to protect:

Wounded and sick combatants or non-combatants

Civilians not taking part in hostilities and military work

Protection of the Civilian Population

Fundamental guarantees API a75 mini human rights convention, including fair trial rights

Article 27 GC IV is key:“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity”

However, parties to conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

Protection of the Civilian Population

Prohibitions :

Collective punishments Pillage Reprisals Taking of hostages

Protection of the Civilian Population, Occupation

Difference between occupation and IAC GC IV and Hague Regulations

Must leave economic, legal, social structures, but can alter laws to ensure order and to implement the GCs, however UNSC 1483 re Iraq, debate about human rights

issues and reform to the system.

Prohibition of transfers of protected persons out of OT (a49 GC IV)

Prohibition of transfer of own population (a49 GC IV)

Protection of the Civilian Population, Internment

Civilian internees: Possible for OT and IAC but GC IV a42, a78:

internment or placing in assigned residence of protected persons only if the security of the Detaining Power makes it "absolutely necessary"

Internment on an individual basis, subject to reviews (GCIV a43)

Based on PoW provisions, including sending / receiving family news, ICRC has right to visit in (GC IV a143)

Protection of the civilian population against the effect of hostilities

Civilians

Do not have the right to directly participate in hostilities

Are protected against the effect of hostilities (art. 51 § 1 AP. I)

Lose their immunity against attack if (and for such time as) they directly participate (art. 51 § 3 AP. I)

Can be prosecuted for a mere participation in hostilities;

Combatants

Have the right to directly participate in hostilities (art. 43 § 2 API)

Can be directly targeted

Are entitled to POW status in case of capture

Cannot be prosecuted for their participation;

Summary

International Armed Conflict

Combatants(all persons who have the right to

engage in DPH including participants in a

levée en masse)

Civilians (all persons who are neither members of

the armed forces nor participants in alevée en masse)

Currentlyengaging in DPH(not protected)

Currentlynot engaging in DPH

(protected)