Protection of PoWs and Civilians
in International Armed Conflicts
Daniel Cahen
ICRC, Legal Advisor to the Operations
Oslo, 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
Combatants Civilians
Have the right to directly Do not have the right to directly
participate in hostilities participate in hostilities
(art. 43 § 2 API)
Are protected against the effect of
Can be directly targeted hostilities (art. 51 § 1 AP. I)
Are entitled to POW Lose their immunity against attack
status in case of capture if (and for such time as) they
directly participate (art. 51 § 3 AP.
Cannot be prosecuted I)
for their participation; Can be prosecuted for a mere
participation in hostilities;
Summary
International Armed Conflict
Combatants
(all persons who have the right to Civilians
engage (all persons who are neither members of
in DPH including participants in a the armed forces nor participants in a
levée en masse) levée en masse)
Currently Currently
engaging in DPH not engaging in DPH
(not protected) (protected)