Protection of Prisoners of War

1. Protection of Prisoners of War karnaThapa Faculty of Law, T.U Emal: advkarna_thapa@yahoo.com

2. 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

3. 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

4. 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:

5. 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.

6. 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

7. 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

8. 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.

9. Emergence of the concept of protection • 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

10. Treatment of POWs until 19th century • POWs either killed or enslaved • No distinction made between combatants and non combatants • 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,

11. Treaty of friendship between Prussia and United States in 1785 which contained obligation for parties to the conflict to protect POWs • Liber’s code of 1863 contained detail provisions on protection of POWs. (Article.56) • ICRC establishment in 1863 took a new turn in protection of POWs and humanizing war

12. John Henry Dunant in Lebanon International Negotiation in 1872 proposed for introducing uniformity into the condition of POWs. • Brussels Conference first contributed 12 Articles on Protection of POWs • Hague Rules 1899 on Laws and Customs of War devoted one chapter on treatment of POWs

13. Basic Provisions of Hague Rules • 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

14. 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

15. 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

16. Geneva convention on treatment Prisoners of war 1929 • 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

17. Convention adopted basic three principles • Principle of human treatment • Prohibition of reprisal against POWs • Rights of POWs to give only certain information while questioned

18. II world war experience • 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

19. Fundamental Rules of Protection • 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

20. 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

21. 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

22. Geneva Convention relative to the Protection of Prisoners of War, 1949 Protection mechanism for Prisoners of war • Presumption of POW status • Protection during captivity (Art. 13 GC III)

23. 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)

24. 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)

25. 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.