International Humanitarian Law

Prisoners of war

A prisoner of war (POW) is a combatant who has fallen into the hands of the adversary. The third Geneva Convention specifically refers to the treatment of prisoners of war.

Prisoner of war status

The status of prisoner of war is granted to combatants, who are members of armed groups belonging to a party to the conflict (which can only be a state) and meet the following criteria:

Commanded by a person responsible for his subordinates.
Having a fixed distinctive emblem recognizable at a distance.

Article 44(3) of the First Additional Protocol (IAP) gives an exception to this rule when the nature of the hostilities prevents the combatant from distinguishing himself or herself. There is an ongoing legal debate about the scope of a distinctive sign which combatants of non-regular armed forces need to wear. Article 44(3) is not considered international customary law.

To ICRC and Article 44(3)

Carrying arms openly.
Conducting their operations in accordance with the laws and customs of war.

Members of groups that do not fulfil the conditions above are civilians. If they take direct part in the hostilities (violent resistance), they are not regarded as combatants and do not enjoy the status of prisoners of war. Even if IHL does not prohibit non-combatants from taking direct part in hostilities, it may be forbidden according to domestic law. Additionally, non-combatants can be prosecuted for their acts, such as murder, committed during their participation in hostilities. Such acts would be exempt from prosecutions if committed by a combatant.

The right to humane treatment

All POW:s should be treated humanely and never subjected to torture, inhuman and degrading treatment. The Third Geneva Convention specifies the conditions of the prisoners of war camp, the procedure of their captivity and treatment according to international humanitarian law (IHL).

To ICRC and the Third Geneva Convention

To be a prisoner of war is a right of a combatant. A combatant can and should not be punished for merely taking part in the hostilities. Only if s/he has allegedly committed a violation of IHL s/he should be tried in a court of law in a fair trial, as stipulated by international law.

Examples of POWs rights under the Third Geneva Conventions:

POWs shall be detained under good conditions, including receiving sufficient daily food rations of sufficient quality, and due medical attention.
Clothes and shoes shall be provided to the POWs.
The POWs have the right to adequate premises and necessary equipment for study, sports and games.
POWs shall at all times be protected against acts of violence or intimidation and against insults and public curiosity

The right to registration

All POWs should be registered. The registration is often a life insurance because the prisoner is placed on record. The family has the right to know where the prisoner of war is kept and has the right to keep in contact through personal messages. Every country is obliged to put up a national information bureau to collect information on persons being detained. The bureau will send the information to the Central Tracing Agency in Geneva to be forwarded to the relatives and to the respective state

The right to repatriation

POWs should be offered to return to their country of origin when the hostilities have ceased

Visits of internees

The International Committee of the Red Cross (ICRC) has the right to visit prisoners of war and civilian internees. It has set up certain criteria in conducting the visits; delegates must be allowed to see all prisoners and internees falling within the ICRC mandate and to have access to all places where they are held. Interviews are held in private and the ICRC must be allowed to repeat the visits as often as necessary.

Illegal Combatants?

In the fight against terrorism the concept illegal combatants or unlawful combatants has been frequently used. It is not a term that can be found in the conventions. It has been used for persons who are members of unorganised armed groups taking part "illegally" in the hostilities, that is without being combatants. Many scholars and states are of the opinion that there is no category between civilians and combatants. Either you are a civilian taking direct part in the hostilities- thus becoming a legitimate target whilst doing so, but without benefitting from prisoner of war status if captured - or you are a combatant who has the right to participate in hostilities and receive prisoner of war status when captured.

Revised
20/04/2011 Berenice Van Den Driessche ihl@diakonia.se

Easy Guide to International Humanitarian Law in the Occupied Palestinian Territory (oPt)