Protection of Prisoners of War

karna ThapaFaculty of Law, T.U

Emal: advkarna_thapa@yahoo.com

Who is Prisoner of war?

Prisoners of war are the members of the armed forces of parties to the conflict, who fall into the power of the enemy

Prisoners of war, in the sense of the present convention are persons belonging to one of the following categories, who have who have fallen into the power of the enemy:

Members of the armed forces of the party to the conflict as well as members of militias or volunteer corps forming part of such armed force the armed force

Members of other militias or volunteer corps including those of organized resistance movements, belonging to the party to the conflict and operating in or outside their territory, even if this territory is occupied, provided that such militia or volunteer corps including such organized resistance movements, fulfill the following conditions:

That of being commanded by a person responsible for his subordinates

That of having a fixed distinctive sign recognizable at a distance

That of carrying arms openly That of conducting their operations in

accordance with the laws and customs of war Members of regular armed forces who profess

allegiance to a government or an authority not recognized by Detaining Power.

Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for welfare of armed forces, provided that they have received authorization from the armed forces which they accompany

Members of crews, including masters, pilots, and apprentices of the merchant marine and the crews of civil aircrafts of the parties to the conflict who do not benefit any more favourable treatment under any other provision in international law

Inhabitants of non occupied territory who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Prisoners of war are not criminals, but merely an enemy no longer able to bear arms, who should be liberated at the close of hostility and be respected and humanly treated while in captivity

Emergence of the concept of protection

Treatment of POWs until 19th centuryI. POWs either killed or enslavedII. No distinction made between combatants

and non combatantsIII. With the emergence of philosophy of

Rousseau in 1762 attempts to protect the POWs were surfaced

Some of the important legal mechanism for the protection of POWs were made,

I. Treaty of friendship between Prussia and United States in 1785 which contained obligation for parties to the conflict to protect POWs

II. Liber’s code of 1863 contained detail provisions on protection of POWs. (Article.56)

III. ICRC establishment in 1863 took a new turn in protection of POWs and humanizing war

I. John Henry Dunant in Lebanon International Negotiation in 1872 proposed for introducing uniformity into the condition of POWs.

II. Brussels Conference first contributed 12 Articles on Protection of POWs

III. Hague Rules 1899 on Laws and Customs of War devoted one chapter on treatment of POWs

Detainees are only entitled to POW status when they are captured by enemy armed forces

Human treatment should be given Personal belongings remain their property

except the things of military value POWs may be interned in town, fortress,

camp and other place

Basic Provisions of Hague Rules

POWs may be used as labourers Detaining power is responsible for their

maintenance POWs are subjected to the laws, regulations of

the army on whose power they are POWs are bound to give his true name and rank War corresponds and reporters, supply

contractors are subjected to POW status, provided that they should be in possession of certificates form the military authority, which they are accompanying

Enquiry office to be instituted by belligerent state

Relief societies should be properly constituted as per the laws of belligerent states

POWs shall enjoy complete freedom to exercise their religion

POWs shall be repatriated as quickly as possible at the conclusion of peace

The convention is remarked as the new era in the field of the protection of POWs

Negotiated by 47 states parties and signed by 46 states

Convention ratified prior to II world war Great Britain, France, Germany and USA

ratified the convention before out break of II second world war but Soviet Union didn't

Geneva convention on treatment Prisoners of war 1929

Convention adopted basic three principlesI. Principle of human treatmentII. Prohibition of reprisal against POWsIII. Rights of POWs to give only certain

information while questioned

Detained soldiers were not even given the POW status

Among 5.7 million soviet POWs 3.3 million died

Among 3 million German POWs 1 million died

Death caused lacking food, health care, forcing to dangerous work

German and Japanese even carried medical experiments

II world war experience

Prohibition of inhuman treatment (Article 13)

prohibition of unlawful act causing death or endangering health of POWs in custody

No POWs may be subjected to physical mutilation or medical or scientific experiments

POWs must at all times be protected, particularly against act of violence or intimidation and against insult and public curiosity

Fundamental Rules of Protection

POWs are entitled in all circumstances to respect for their persons and their honour

Women shall be treated with all regard due to their sex and shall in all cases benefit by treatment as favorable as that granted to men

The power detaining POWs shall provide free of charge their maintenance and for the medical attention required by their state of health

Prohibition of Discrimination ( Art. 16 GC III)

All POWs shall be treated alike by the detaining power without any adverse distinction based on race, nationality, religious belief or political opinion or any other distinction founded on similar criteria

Prohibition of Reprisal Measure of reprisals against POWs are

prohibited

Protection mechanism for Prisoners of war

Presumption of POW status

Protection during captivity (Art. 13 GC III)

Geneva Convention relative to the Protection of Prisoners of War, 1949

Protection during interrogation (Art.17 GC III)

POWs are only to give surname, first name, rank, date of birth, regimental, personal and serial number

Protection of property of the prisoners of war

Belongings except of military value shall be remain their property (Art. 18 GC III)

Protection of Religious, Intellectual and Physical Activities ( Art. 34 GC III), (Art.38),detaining power shall encourage POWs the intellectual, educational and recreational pursuits

Protection of Prisoners at Labour Work (Art. 50 (authorized works), 51(work

conditions),52(dangerous or humiliating work),53(duration of labor) GC III)

Information Bureaux for Prisoners of war ( Art. 122, 123 GCIII)

Establishment of Central Prisoners of war Agency

Central Prisoners of war agency shall be instituted in a neutral country

ICRC if deems necessary propose the power concerned the organization of such agency

Such agency shall collect all information and communicate information to concerned party.