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LAW 549

LAW 549. Treatment of Prisoners of War, Captured Persons and Detainees. Outline. Historical development of the law Sources of Law Status Who is a PW? Who is a captured person? Who is a detained person? Rights and Privileges of PW Standard of Treatment. The Law. Geneva Convention III

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LAW 549

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  1. LAW 549 Treatment of Prisoners of War, Captured Persons and Detainees

  2. Outline • Historical development of the law • Sources of Law • Status • Who is a PW? • Who is a captured person? • Who is a detained person? • Rights and Privileges of PW • Standard of Treatment

  3. The Law • Geneva Convention III • Sets the standard of care and is the prime convention dealing with PW • Common Article III • Geneva Convention IV • rights of interned persons • Additional Protocol I, 1977 • Provides further details concerning status of combatants in International Armed Conflict • Additional Protocol II, 1977 • Persons detained, captured or interned in NIAC

  4. Gaps in the Law? • There are none. • IAC, person is either a PW or some other category of detained/captured person • GC III and/or AP1 art. 75 • NIAC • Common Article 3 • AP2 arts. 4 and 5.

  5. Categories • Prisoner of War • Captured Person • Detained/Interred Persons

  6. Prisoner of War • All rights attached to PW status apply • Status determined by type of conflict and the involvement / association of the individual

  7. Captured Persons • Those who have no right to engage in armed conflict but have been captured for taking direct part in hostilities • No PW Status • No Combatant Immunity • No right to be returned at end of hostilities • Humane treatment

  8. Detained/Interred Persons • Persons who, for their own security or the security of the mission, are placed under the power of a belligerent force. • Detention lasts only as long as necessary • Humane treatment

  9. AP 2 Protections • All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. • They shall in all circumstances be treated humanely, without any adverse distinction. • It is prohibited to order that there shall be no survivors.

  10. Women and Children • Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault. • Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason • If arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units

  11. Prisoner of War Status “Status” is a legal term of art • Must be the right kind of person in the right kind of conflict

  12. PW: The Right Kind of Conflict • Geneva Conventions, Common Article 2 • Declared war; or • Armed conflict between two or more parties (International armed conflict) • Occupation • Additional Protocol I • Expands Common Article 2 to include conflicts against racist regimes, colonial domination and alien occupation

  13. The Right Kind of Person • GC III, Article 4 • Combatants - Armed forces of a party; and militia and resistance forces: • Commanded by a person responsible, and • Having a fixed distinctive insignia, and • Carrying arms openly, and • Following LOAC. • Protocol I • Carry arms openly in the attack • Commanded by a person responsible

  14. The Right Kind of Person • Persons who accompany the armed forces without being members ie, civilian members of military aircraft crews, supply contractors, members of labour units or of services responsible for the welfare of the troops • Crew of the merchant marine or civil aircraft of the parties to the conflict • War correspondents • Personnel of the armed forces temporarily assigned to medical duties during a limited period of time

  15. Who Does Not Have PW Status • Civilians who take part in hostilities other than a levée en masse • Mercenaries • Spies • Terrorists • Others who have no lawful right to participate in hostilities

  16. No PW Status – Retained Personnel • Medical and Religious Personnel are not PW. They are considered “Retained Personnel” • They must be afforded at least the same standard of treatment as PW GCIII art 33

  17. Padre J.W. Foote, V.C. On August 19, 1942 at Dieppe, France, Captain Foote coolly and calmly during the eight hours of the battle walked about collecting the wounded. His gallant actions saved many lives and inspired those around him by his example. At the end of this gruelling time he climbed from the landing craft that was to have taken him to safety and deliberately walked into the German position in order to be taken prisoner so that he could be of help to those men .

  18. Determination of PW Status Persons who take part in hostilities and fall into the power of an adverse Party shall be presumed to be a PW if: • they claim the status of PW; • they appear to be entitled to such status; or • the Party on which they depend claims such status on their behalf

  19. Determination of PW Status GC III, Article 5 • Should there be any doubt as to PW status, that person shall be treated as a PW until the status has been determined by a competent tribunal

  20. Primary Protections for Detained Persons • Humane treatment (all) • No medical experiments (all) • Protection from violence, intimidation, insults, and public curiosity (all) • Equality of treatment (all) • Specific protections for women and children (all) • Free maintenance and medical care (all) • Respect for persons and their honour (all) • No reprisals (all) • No renunciation of rights or status (PW) • Combatant Immunity (PW)

  21. Beginning of Captivity - Capture • PW bound to give only name, rank, date of birth, and service number • If PW willfully refuses to provide above information, they may be liable to restriction of the privileges accorded to their rank • May give blood type, religion (as found on ID disks) • PW are required to be provided with an identity card

  22. Interrogation • No physical or mental torture, nor any form of coercion, may be used to obtain information of any kind • Persons who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment • The questioning of PW shall be done in a language they understand

  23. Beginning of Captivity – Prisoners’ Property • All personal effects except arms, military equipment, and military documents are to be retained by PW • Individual protective equipment such as helmets, gas masks, etc. • Feeding utensils and clothing are to be retained

  24. Beginning of Captivity – Prisoners’ Property • Sums of money and valuable articles may only be taken away by order of an officer. • Receipts must be provided • Badges of rank and nationality, decorations and articles having personal or sentimental value are to be retained by PW. German PW in Espanola, Ontario

  25. Beginning of Captivity - Evacuation PW shall be evacuated as soon as possible after their capture to camps situated far enough from the combat zone to be out of danger

  26. Beginning of Captivity - Evacuation • The evacuation of PWs shall always be effected humanely and in conditions similar to those of the Detaining Forces • PWs being evacuated will be provided with sufficient food, water, necessary clothing and medical attention

  27. Public Curiosity and Intimidation • PW must be protected, particularly against acts of violence or intimidation and against insults and public curiosity. • Measures of reprisal against prisoners of war are prohibited. • GC III, art 13 Flt Lt John Peters

  28. Location of PW Camps • PW may be interned only on premises located on land • No PW may be sent or detained in areas where he/she may be exposed to the fire of the combat zone

  29. Standard of Accommodation • Quartered under conditions similar to those of forces of the detaining power who are billeted in the same area • Protected from dampness • Adequate heating and lighting • Men and women in separate dormitories

  30. Food and Water • Food is to be sufficient in quantity and quality to maintain health • Dietary requirements are to be respected (e.g. no pork for Muslims) • Sufficient drinking water must be provided

  31. Clothing and Hygiene • Environment appropriate clothing shall be provided to PW • Cleanliness and healthfulness of camps are the responsibility of the detaining power • Ablution facilities, sufficient water and soap are to be provided to prisoners

  32. Discipline • Combatant immunity for pre-capture conduct in accordance with LOAC • PW subject to disciplinary measures for post-capture misconduct • PW will be subject to the laws, regulations and orders of the Detaining Force • PW also remain subject to their own system of military justice

  33. Transfer of PW to Other Power • PW may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. • Responsibility for the application of the Convention rests on the Power accepting them .…but if the accepting power fails to apply Convention, Detaining power must take effective measures

  34. Successful Escape • PW has joined own forces or allied forces • PW has left the territory of the Detaining Force or territories of its allies • A PW who has successfully escaped and who is recaptured, shall not be punished for the previous escape

  35. Unsuccessful Escape • A PW who fails in an attempt to escape shall only be liable to a disciplinary punishment, even if it is a repeated offence Group Captain Sir Douglas Bader

  36. Unsuccessful Escape • PW who have committed offences with the sole intention of facilitating their escape, and which do not entail any violence against life or limb, shall be liable to only disciplinary punishment • Such offences may be against property, theft without intention of self-enrichment, the creation and use of false documents or the wearing of civilian clothing

  37. Release and Repatriation of PW PW shall be released and repatriated without delay after the cessation of active hostilities. Does not necessarily apply to Captured Persons

  38. National and Individual Responsibility • The State is responsible for the proper treatment of PW and Detainees • Individuals who mistreat PW and captured persons are liable to be tried as War Criminals

  39. Summary • Humane treatment at all times • Responsibility rests with individuals, commanders and nations • Evacuation to safe area • Prompt medical treatment • Food and quarters to standard of own troops • No intimidation or violence • If in doubt treat as PW

  40. QUESTIONS?

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