PRISONERS OF WAR UNDER PUBLIC INTERNATIONAL LAW

Prisoners of War (POWs) occupy a significant place in the body of public international law, particularly under the law of armed conflict and international humanitarian law. The legal framework governing the treatment of POWs is primarily derived from customary international law and various treaties, especially the Geneva Conventions of 1949, specifically the Third Geneva Convention, which extensively outlines the rights and protections afforded to POWs.

1. Definition of Prisoners of War

Under Article 4 of the Third Geneva Convention, the term “Prisoners of War” includes, but is not limited to:

Members of the armed forces of a party to the conflict.
Militias or volunteer corps forming part of such armed forces.
Members of other militias and members of other volunteer corps, including organized resistance movements, provided they:
- Are commanded by a person responsible for their subordinates.
- Have a fixed distinctive sign recognizable at a distance.
- Carry arms openly.
- Conduct operations in accordance with the laws and customs of war.
Civilians accompanying the armed forces, such as war correspondents, supply contractors, and members of labor units, provided they have received authorization from the armed forces they accompany.

The status of POWs is automatically granted upon capture, irrespective of whether a formal determination has been made.

2. Fundamental Rights of Prisoners of War

The Third Geneva Convention outlines several fundamental rights for POWs, which are supplemented by customary international law. Key protections include:

Humane Treatment: POWs must be treated humanely at all times (Article 13). This includes protection from violence, intimidation, insults, and public curiosity.
Prohibition Against Torture and Inhumane Treatment: Torture, mutilation, and cruel, degrading, or inhumane treatment of POWs are strictly prohibited. This aligns with the broader prohibition under customary international humanitarian law and human rights law, including the Convention Against Torture.
Non-Discrimination: POWs must be treated without any adverse distinction based on race, nationality, religion, political opinions, or other similar criteria (Article 16).
Medical Care: POWs must receive adequate medical care, including necessary treatment for wounds and diseases. They should also be housed in conditions that safeguard their health.

3. Captivity and Detention of POWs

Conditions of Detention: POWs must be held in a camp separate from the local civilian population and treated in accordance with their status as combatants. The detaining power is responsible for the provision of food, clothing, and quarters that are equivalent to those provided to its own armed forces.
Work and Labor: POWs may be required to work, but the work must not be excessive, dangerous, or humiliating. Article 50 of the Third Geneva Convention specifies that POWs can only be assigned to work tasks related to camp maintenance, agriculture, public works, or industries that are not directly connected with the war effort. Working conditions should be reasonable, and POWs should be compensated.
Correspondence and Communication: POWs have the right to send and receive letters and cards to maintain contact with their families (Article 71). The detaining power must facilitate this communication, including by using the International Committee of the Red Cross (ICRC) as an intermediary when necessary.
Religious Freedoms: POWs must be allowed to practice their religion, including access to chaplains or religious services where possible (Article 34).

4. Judicial Guarantees for POWs

Fair Trial Guarantees: If a POW is charged with a criminal offense, they are entitled to the same judicial guarantees that apply to members of the detaining power’s armed forces. This includes the right to a fair trial, representation, and the ability to present a defense (Article 84).
Penal and Disciplinary Measures: POWs are subject to the laws of the detaining state and may be disciplined for offenses. However, disciplinary measures must be proportionate, and capital punishment is only allowed in very extreme cases, such as grave breaches of law, and only after following the due process of law.
Repatriation and Release: Article 118 provides that POWs must be released and repatriated without delay after the cessation of active hostilities unless they are subject to legitimate criminal proceedings or sentences. A prisoner may not be repatriated against their will.

5. Role of the Protecting Power and the ICRC

Protecting Power: Under the Geneva Conventions, a neutral country or the ICRC typically serves as the “Protecting Power.” Their role is to monitor the treatment of POWs, including visiting detention facilities to ensure compliance with international humanitarian law.
International Committee of the Red Cross (ICRC): The ICRC plays a critical role in ensuring the well-being of POWs by facilitating communication with families, delivering humanitarian aid, and investigating allegations of mistreatment.

6. Protections Afforded During Armed Conflicts of Non-International Character

While the Geneva Conventions primarily apply to international armed conflicts, Common Article 3 provides minimum protections for persons who do not take part in hostilities in non-international armed conflicts, including captured fighters. It prohibits violence, torture, and extrajudicial executions. Though these persons may not qualify as POWs under the Third Geneva Convention, they still benefit from a base level of humanitarian protection.

7. Customary International Law on POWs

Customary international law complements the Geneva Conventions and applies to both international and non-international armed conflicts. This body of law includes several key principles related to the treatment of POWs, such as the prohibition of torture and the requirement to treat all captives humanely, irrespective of their legal classification.

8. Accountability and Remedies for Violations

Violations of the rights of POWs may constitute war crimes under the Rome Statute of the International Criminal Court (ICC), and individuals responsible can be prosecuted. War crimes include willful killing, torture, inhuman treatment, and unlawful deportation of POWs. States are obligated to investigate and prosecute such violations through national or international tribunals.

9. Neutral States and POWs

Neutral states also have obligations under international law regarding POWs. If POWs enter neutral territory, they are to be interned by the neutral state until the end of hostilities, as outlined in Articles 11 and 12 of the Hague Convention V (1907).

Conclusion

The legal framework governing POWs is robust, combining treaty obligations (particularly the Third Geneva Convention) with customary international law. States are obligated to ensure humane treatment, adequate living conditions, and judicial guarantees for POWs. The mechanisms for protection and accountability ensure that the mistreatment of POWs can lead to state and individual responsibility under international law. The ICRC and Protecting Powers play an essential role in overseeing compliance, reinforcing the international community's commitment to upholding the dignity and rights of POWs.