Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

Judicial and Arbitral Settlement in Public International Law

Introduction Judicial and arbitral settlement are formal methods for resolving disputes between states under Public International Law. These methods provide impartial, legal means for peaceful dispute resolution, rather than resorting to force or coercion. This section will cover the principles, legal framework, key institutions, and procedures surrounding judicial and arbitral settlement in Public International Law.

1. Judicial Settlement

Judicial settlement refers to the resolution of disputes between states through the adjudication by an international court or tribunal. The most prominent institution for judicial settlement in Public International Law is the International Court of Justice (ICJ).

A. International Court of Justice (ICJ)

The ICJ, established by the United Nations Charter in 1945, serves as the principal judicial organ of the UN. It settles legal disputes submitted to it by states and gives advisory opinions on legal questions referred to it by authorized international organs and agencies.

i. Jurisdiction of the ICJ

The ICJ has two types of jurisdiction:

• Contentious Jurisdiction: The ICJ can only hear disputes between states that have consented to its jurisdiction. Consent may be given in the following ways:

  • Through special agreement (compromis) where both parties agree to submit the dispute to the ICJ.
  • Via compromissory clauses in treaties that provide for the ICJ to have jurisdiction over disputes related to that treaty.
  • Through optional clause declarations under Article 36(2) of the ICJ Statute, where states may declare they recognize the ICJ’s jurisdiction as compulsory in legal disputes with other states that have made the same declaration.
  • Forum prorogatum, where a state consents to the ICJ’s jurisdiction after proceedings have been initiated by another state.

• Advisory Jurisdiction: The ICJ provides advisory opinions on legal questions when requested by the UN General Assembly, the UN Security Council, or other UN bodies and specialized agencies. Advisory opinions are non-binding but carry significant legal and moral authority.

ii. Procedure Before the ICJ

The ICJ's procedure is governed by its Statute and Rules of Procedure:

• Written Phase: States submit memorials (written pleadings), detailing their legal arguments and evidence.
• Oral Phase: States present oral arguments before the court, which may include legal representatives, experts, and witnesses.
• Judgment: The ICJ’s decision is binding only on the parties to the dispute and is final, without appeal. States may request interpretation or revision of the judgment in certain circumstances.

iii. Enforcement of ICJ Judgments

ICJ judgments are binding, but enforcement is primarily political, relying on state compliance. The UN Security Council may intervene under Article 94 of the UN Charter to enforce an ICJ judgment if requested by one of the parties, but this requires the Council’s discretionary action and is subject to veto by its permanent members.

B. Other Judicial Tribunals

In addition to the ICJ, other judicial bodies contribute to the settlement of international disputes, such as:

• International Tribunal for the Law of the Sea (ITLOS): Established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to adjudicate disputes related to maritime law.
• World Trade Organization (WTO) Dispute Settlement Body: Handles disputes between WTO members regarding trade agreements.
• Regional Courts: Regional organizations like the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights, and the African Court on Human and Peoples' Rights resolve human rights disputes in their respective regions.
• International Criminal Court (ICC): Although primarily focused on criminal accountability, the ICC deals with state parties in cases involving international crimes (genocide, war crimes, crimes against humanity, and aggression).

2. Arbitral Settlement

Arbitration in Public International Law is a process where disputing parties agree to submit their dispute to a panel of arbitrators whose decision is binding. Arbitration allows for greater flexibility and control over the selection of arbitrators and procedural rules compared to judicial settlement.

A. Key Characteristics of Arbitration

• Voluntary Nature: States must agree to arbitration through a compromis or an agreement to arbitrate, which may be found in treaties or ad hoc arrangements.
• Binding Decision: The arbitral tribunal’s decision is binding on the parties.
• Selection of Arbitrators: Parties generally have the freedom to appoint arbitrators, often experts in the field of dispute.
• Flexibility in Procedure: Arbitration allows parties to define procedural rules, unlike courts where the procedure is set by statute or international conventions.

B. Major Arbitration Bodies

Several key institutions provide arbitral services in international law:

• Permanent Court of Arbitration (PCA): Established by the Hague Convention of 1899, the PCA provides services for the arbitration of disputes between states, state entities, intergovernmental organizations, and private parties. The PCA is not a court in the traditional sense but facilitates the establishment of ad hoc arbitral tribunals.

• International Centre for Settlement of Investment Disputes (ICSID): An institution of the World Bank Group, ICSID is designed to resolve disputes between investors and states. It operates under the ICSID Convention, which allows for arbitration of disputes arising from international investment agreements.

C. Arbitral Procedure

• Compromis (Agreement to Arbitrate): Arbitration begins when states agree to submit their dispute to arbitration, detailing the scope of the dispute, the tribunal's jurisdiction, and the applicable law.

• Appointment of Arbitrators: The parties usually appoint arbitrators of their choice, who must be impartial and independent. Tribunals typically consist of an odd number of arbitrators to avoid deadlocks.

• Proceedings: The arbitral process includes written submissions, oral hearings, and, in some cases, the presentation of evidence and witnesses. The process is less formal and rigid compared to court proceedings.

• Award: The arbitral tribunal issues an award that is binding on the parties. The award can address issues of compensation, restitution, or cessation of wrongful acts.

D. Enforcement of Arbitral Awards

Enforcement of arbitral awards in international law can be challenging due to the absence of a centralized enforcement mechanism. States are expected to comply voluntarily. However, if the award relates to a treaty-based dispute or an investment dispute under ICSID, specific enforcement mechanisms may apply. In the case of the PCA, enforcement may also rely on diplomatic pressure or recourse to the UN Security Council.

3. Principles and Considerations

Judicial and arbitral settlement in international law operate under several fundamental principles:

• Consent of the Parties: Whether through judicial or arbitral settlement, the fundamental principle is that of state consent. No state can be compelled to submit to dispute resolution without its consent, unless it has previously agreed to compulsory jurisdiction through treaties.

• Sovereign Equality of States: States are considered equal under international law, and the procedures are designed to ensure that no state has undue advantage over another.

• Peaceful Settlement of Disputes: Article 2(3) of the UN Charter mandates the peaceful settlement of disputes to avoid endangering international peace and security.

• Pacta Sunt Servanda: This principle means that agreements must be kept. It underpins the enforceability of arbitral awards and judicial decisions between states.

Conclusion

Judicial and arbitral settlement are vital tools in Public International Law for maintaining international peace and order. They provide legal means for resolving disputes, ensuring that states act in accordance with international law. While the ICJ is the leading institution for judicial settlement, arbitration offers states greater flexibility and control in resolving disputes. Both methods rely on state consent, and enforcement of decisions often depends on the cooperation of states and international mechanisms like the UN Security Council.

War and Neutrality | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

WAR AND NEUTRALITY UNDER PUBLIC INTERNATIONAL LAW

1. Definition of War in International Law War, in the context of international law, is a state of armed conflict between sovereign states or between organized groups within a state (in the case of civil wars), where the legal relations between the belligerents are governed by specific rules. War has traditionally been regarded as a legitimate means of resolving international disputes before the advent of the modern United Nations (UN) system, which prohibits the use of force except in cases of self-defense or when authorized by the UN Security Council.

• Article 2(4) of the UN Charter prohibits member states from using or threatening force against the territorial integrity or political independence of any state. The main objective of this prohibition is to maintain international peace and security.

2. The Jus ad Bellum and Jus in Bello Dichotomy The legal framework governing war is traditionally divided into two primary branches:

• Jus ad Bellum (Right to War): Refers to the legality of resorting to war or the use of force by a state. Key principles include:
  • The prohibition of force under Article 2(4) of the UN Charter.
  • Self-defense under Article 51 of the UN Charter, which allows states to defend themselves if an armed attack occurs.
  • Security Council authorization under Chapter VII of the UN Charter, where the UN Security Council can approve the use of force in response to threats to international peace and security.
• Jus in Bello (Law in War): Once a conflict begins, this body of law regulates the conduct of hostilities. It is also known as International Humanitarian Law (IHL) and includes:
  • The Geneva Conventions and their Additional Protocols, which regulate the treatment of non-combatants, prisoners of war, and the wounded.
  • The Hague Conventions that set out the means and methods of warfare.

3. Neutrality in International Law

Neutrality is the legal status of a state that chooses not to participate in an armed conflict between other states. Neutrality is based on international customary law and codified by various international treaties, most notably the Hague Conventions of 1907.

• Types of Neutrality:

  • Permanent Neutrality: A state that has declared itself permanently neutral, such as Switzerland, agrees not to participate in any future wars or alliances.
  • Temporary Neutrality: A state that adopts neutrality for the duration of a specific conflict without making a permanent declaration.

• Rights and Duties of Neutral States:

  • Right to Territorial Integrity: Belligerents must respect the territory of neutral states. This includes not engaging in hostilities, transporting troops, or utilizing the neutral state’s resources for warfare purposes.
  • Non-Interference: Neutral states must refrain from assisting belligerents in a conflict, directly or indirectly. This includes supplying arms, military assistance, or allowing their territory to be used for military purposes.
  • Impartiality: Neutral states must treat all belligerents equally. Favoring one side over the other can lead to a breach of neutrality and may result in the neutral state being considered a co-belligerent.

• Legal Framework for Neutrality:

  • The Hague Conventions (1907) set out the basic rules governing neutrality in war, such as the prohibition of the passage of troops through neutral territories and the seizure of neutral property.
  • The Geneva Conventions also recognize the status of neutrality in the context of humanitarian aid, particularly in allowing neutral actors to assist victims of armed conflicts without being considered as parties to the conflict.

4. Rights of Belligerents vis-à-vis Neutral States Despite the principles of neutrality, there are certain rights and privileges granted to belligerents with respect to neutral states:

• Search and seizure on the high seas: Belligerent states have the right to stop and search neutral ships to ensure they are not transporting contraband or assisting the enemy.
• Blockades: A belligerent may establish a blockade of enemy ports or coasts, but such blockades must be declared, notified, and applied impartially. Neutral vessels attempting to breach a blockade may be seized.

However, the rights of belligerents over neutral states have been greatly limited in modern times, particularly with the advent of the UN Charter and the principle of sovereign equality and non-intervention.

5. Violations of Neutrality When a neutral state breaches its duties, it may be considered to have violated neutrality and, as a consequence, can be treated as a co-belligerent by other states involved in the conflict. Violations can include:

• Allowing its territory to be used as a base of operations by one of the belligerent parties.
• Supplying military aid or permitting the passage of military personnel through its territory.
• Failing to enforce restrictions on its nationals, such as those who may seek to provide direct military assistance to a belligerent.

6. The Role of International Organizations in the Maintenance of Neutrality

• United Nations: The UN plays a critical role in maintaining peace and security, and its mechanisms may influence the obligations and status of neutrality. For instance, neutrality becomes complicated in situations where the UN Security Council authorizes collective measures, as neutral states may be pressured to contribute to international efforts.
• International Court of Justice (ICJ): The ICJ has jurisdiction over disputes involving neutrality, war, and the use of force. States may bring cases regarding the violation of neutrality, as well as other violations of international law in armed conflicts.

7. Sanctions for Breach of Neutrality and War Conduct

• A neutral state that breaches neutrality may lose its neutral status and be subjected to hostile actions from the aggrieved belligerent state.
• Belligerent states that violate the rules of war, including those related to neutral states, may be subject to international sanctions, criminal prosecution under international criminal law, and individual liability under frameworks such as the International Criminal Court (ICC) for war crimes or aggression.

8. Modern Developments and Challenges

• Cyberwarfare: The rise of cyber-attacks introduces new challenges to traditional concepts of war and neutrality. Neutral states may face difficulty in preventing their territories (such as cyber infrastructure) from being used in cyber conflicts, and there is an ongoing debate about how existing rules of neutrality apply in this domain.
• Terrorism and Non-State Actors: The participation of non-state actors in armed conflicts, such as terrorist groups, complicates the application of neutrality. International law generally holds that neutrality applies between states, but conflicts involving non-state actors (e.g., ISIS, Al-Qaeda) have led to debates about the obligations of states vis-à-vis such groups.

Conclusion The principles of war and neutrality in international law have evolved from traditional state-based conflicts to address modern challenges. The legal framework, grounded in treaties like the UN Charter, the Geneva Conventions, and the Hague Conventions, continues to guide the conduct of states in times of war and peace, while also being tested by contemporary issues like cyberwarfare and non-state actors. Neutrality remains a vital concept in safeguarding the rights of states that wish to remain outside of conflicts, though it faces growing complexities in today’s interconnected global landscape.

International Court of Justice | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

International Court of Justice (ICJ)

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN), established in 1945 by the UN Charter and beginning its operations in 1946. The ICJ is based in The Hague, Netherlands. Its role is to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized international organs and agencies.

1. Overview and Jurisdiction

The ICJ operates under a statute that forms an integral part of the UN Charter. All 193 UN member states are automatically parties to the Court's statute. The ICJ has two primary functions:

1. Contentious Jurisdiction: The Court settles disputes between States that recognize its jurisdiction, based on international law. The ICJ can only adjudicate disputes submitted by sovereign States, meaning individuals, non-governmental organizations (NGOs), and corporations do not have standing before the ICJ.

2. Advisory Jurisdiction: The Court provides advisory opinions on legal questions referred to it by the UN General Assembly, the Security Council, or other specialized agencies of the UN, such as the International Labour Organization (ILO) or the World Health Organization (WHO). Advisory opinions are non-binding but hold considerable weight and moral authority.

2. Composition and Structure

The ICJ is composed of 15 judges elected by the UN General Assembly and Security Council for nine-year terms. Elections are staggered, so only one-third of the judges are elected every three years. Judges can be re-elected. The Court’s composition aims to reflect the major legal systems of the world, and no two judges can be nationals of the same state.

Judicial Independence: Judges act independently of their governments and are required to uphold the integrity and impartiality of the ICJ. They cannot engage in activities that may interfere with their judicial duties. If a State party to a dispute does not have a judge of its nationality on the bench, it may appoint an ad hoc judge for that specific case.

3. Sources of Law Applied by the ICJ

The ICJ primarily applies international law in settling disputes. The following sources, outlined in Article 38(1) of the ICJ Statute, guide the Court:

• International conventions and treaties: Whether general or particular, establishing rules expressly recognized by the contesting states.
• International custom: Evidence of a general practice accepted as law (customary international law).
• General principles of law: Recognized by civilized nations, such as principles of equity, justice, and good faith.
• Judicial decisions and teachings of the most highly qualified publicists: Used as subsidiary means to determine rules of law, especially when there is a gap or ambiguity in the conventional or customary sources.

The ICJ does not create new international law but interprets and applies existing law to the facts of a dispute.

4. Contentious Cases Before the ICJ

The ICJ hears disputes between States concerning legal obligations under treaties, customary international law, and general principles of international law. Only States may be parties to contentious proceedings. Some notable areas of disputes include:

• Territorial and boundary disputes
• Maritime rights and delimitation: Particularly significant under the United Nations Convention on the Law of the Sea (UNCLOS).
• State sovereignty and self-determination
• Human rights obligations: States may be held responsible for violations of international human rights law.
• Treaty interpretation: The ICJ provides authoritative interpretations of treaties where the meaning of obligations is contested.
• State responsibility: Including reparations and compensation for wrongful acts.

Procedure in Contentious Cases:

1. Written Pleadings: States submit memorials (written arguments) outlining their case.
2. Oral Proceedings: These involve public hearings where agents, counsel, and advocates present their arguments to the Court.
3. Deliberation and Judgment: After the hearings, the judges deliberate in private and issue a judgment. The judgment is final, binding, and without appeal, although a party can request a revision if new facts emerge.

5. Advisory Opinions

The advisory function of the ICJ is crucial for the UN system, providing guidance on complex legal questions. These opinions, though non-binding, influence international law development and provide clarity on contentious issues. Advisory opinions have addressed topics such as:

• The legality of nuclear weapons.
• The legal consequences of Israel's construction of a wall in the occupied Palestinian territory.
• The status of Kosovo's declaration of independence.

Advisory opinions are often sought on controversial or unresolved matters of international law, and although they are not binding, they carry significant authority and are often referenced by States, courts, and international organizations.

6. Compulsory Jurisdiction and Optional Clause

A notable aspect of the ICJ's jurisdiction is that it is based on consent. States can choose to accept the ICJ’s jurisdiction in three main ways:

1. Compromissory Clauses in Treaties: Many international treaties include a clause stating that disputes arising under the treaty will be referred to the ICJ. If the ICJ has jurisdiction under such a clause, any party to the treaty can bring a case before the Court.

2. Special Agreement (Compromis): States involved in a dispute may enter into a special agreement, specifically consenting to submit their dispute to the ICJ.

3. Optional Clause Declarations: Under Article 36(2) of the ICJ Statute, States may make a unilateral declaration recognizing the Court’s jurisdiction as compulsory. This is known as accepting the "optional clause." Declarations made under this clause often include reservations or conditions to limit the types of disputes the Court can hear.

7. Enforcement of ICJ Judgments

While the ICJ’s judgments are binding, the Court lacks direct enforcement mechanisms. Enforcement relies on the parties’ good faith and the political authority of the UN Security Council under Article 94 of the UN Charter. If a State fails to comply with an ICJ judgment, the other party can bring the matter to the Security Council, which may recommend or decide on measures to give effect to the judgment. However, political considerations may limit the Security Council’s willingness to act.

8. Notable Cases

Several landmark cases demonstrate the ICJ's role in the peaceful resolution of international disputes:

• Nicaragua v. United States (1986): The ICJ ruled that the U.S. had violated international law by supporting Contra rebels in Nicaragua and mining Nicaraguan harbors, upholding the principle of non-intervention.
• Bosnia and Herzegovina v. Serbia and Montenegro (2007): The ICJ held that Serbia had failed to prevent genocide in Srebrenica during the Yugoslav wars, marking the first case to define a State's obligations under the Genocide Convention.
• Maritime Delimitation in the Caribbean Sea (Colombia v. Nicaragua): The ICJ resolved a longstanding maritime dispute between Colombia and Nicaragua, affecting sovereignty over islands and maritime zones in the Caribbean.

9. The Role of the ICJ in the Development of International Law

The ICJ contributes to the development of international law by clarifying and interpreting key principles and norms. Although the Court cannot legislate, its judgments and advisory opinions have shaped areas such as the law of the sea, humanitarian law, and the law of state responsibility. The Court’s decisions also influence other international tribunals and national courts.

10. Challenges and Criticisms

While the ICJ plays a crucial role in the international legal system, it faces several challenges:

• Consent-based Jurisdiction: The Court can only hear cases when states consent, which limits its ability to resolve disputes. Many powerful states, including the U.S., Russia, and China, have not accepted the Court’s compulsory jurisdiction or have placed reservations that limit their exposure to ICJ rulings.
• Enforcement Difficulties: As mentioned, the ICJ lacks direct enforcement power, and compliance often depends on the political will of states or the UN Security Council.
• Lengthy Proceedings: ICJ cases can take years to resolve, which may delay justice or create diplomatic tensions.

Conclusion

The International Court of Justice is a cornerstone of the modern international legal order, providing a peaceful means for resolving disputes between states and offering authoritative interpretations of international law. Its role in maintaining international peace and security, promoting justice, and developing international law is indispensable, even though its jurisdiction is limited by state consent and enforcement challenges.

Permanent Court of Arbitration | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

The Permanent Court of Arbitration (PCA) plays a significant role in the judicial and arbitral settlement of international disputes under the framework of public international law. As part of the broader realm of judicial and arbitral settlement mechanisms, it is an essential institution for resolving disputes between states, state entities, intergovernmental organizations, and private parties.

1. Establishment and Legal Framework

The PCA was established in 1899 during the Hague Peace Conference, making it the oldest institution for the settlement of international disputes. Its establishment was part of a broader initiative to promote peace through arbitration rather than armed conflict. The legal framework governing the PCA is primarily found in:

• The 1899 Hague Convention for the Pacific Settlement of International Disputes (revised in 1907)
• The PCA’s administrative and procedural rules, updated periodically to ensure compliance with contemporary international law standards.

2. Nature and Composition of the PCA

The PCA is not a court in the traditional sense, but rather an organization that facilitates arbitration and dispute resolution. It provides administrative support for arbitration and other dispute resolution processes. It is often misunderstood as a standing tribunal, but instead, it is a permanent framework that assists in the creation of arbitral tribunals on an ad hoc basis.

Composition:

• Members: The PCA’s membership consists of 122 contracting parties, including states and international organizations.
• International Bureau: The PCA’s administrative body, based in The Hague, is responsible for supporting the arbitral process.
• Arbitrators: Parties to a dispute select arbitrators from a list maintained by the PCA or by agreement. Arbitrators do not have to be from the list and may be chosen based on expertise or neutrality.

3. Jurisdiction of the PCA

The PCA’s jurisdiction extends to a wide range of disputes, primarily in the following categories:

• Disputes between States: Traditional interstate disputes, including territorial, sovereignty, and boundary disputes.
• Disputes involving State entities: These may include conflicts between a state and private entities or investors.
• Disputes between States and International Organizations: Including disagreements between states and intergovernmental bodies.
• Investor-State Arbitration: The PCA also handles disputes under bilateral and multilateral investment treaties, such as disputes arising under the United Nations Convention on the Law of the Sea (UNCLOS).

One of the PCA’s most notable cases involved the Philippines v. China arbitration under the UNCLOS, concerning the South China Sea disputes. The tribunal ruled in favor of the Philippines in 2016, which became a landmark case on maritime law and territorial claims.

4. Procedures and Process

The PCA offers flexibility in arbitration proceedings. The procedure follows several steps designed to ensure fairness, neutrality, and efficiency.

4.1 Initiation of Proceedings:

Proceedings can be initiated by a state, an entity, or an organization by filing a request for arbitration with the PCA. The request must outline the basis for jurisdiction, the nature of the dispute, and the relief sought.

4.2 Constitution of the Tribunal:

After initiating proceedings, the tribunal is constituted. Parties are free to select arbitrators, either from the PCA’s roster or external candidates. Each party typically appoints one arbitrator, and the appointed arbitrators jointly select a presiding arbitrator (or chairperson).

4.3 Rules Governing the Proceedings:

The PCA offers several sets of procedural rules, including:

• UNCITRAL Arbitration Rules (1976, 2010, and 2013)
• PCA Optional Rules for Arbitrating Disputes between Two States (1992)
• PCA Optional Rules for Arbitration between International Organizations and States (1996)
• PCA Optional Rules for Arbitration Involving Non-State Parties (1993)

The parties can agree on which rules apply to their case. If no agreement is reached, the tribunal may determine the procedural rules.

4.4 Conduct of the Proceedings:

The tribunal conducts the arbitration proceedings in accordance with the rules chosen. Hearings, submission of evidence, and expert testimony form part of the arbitration process. The PCA ensures procedural fairness and offers full support for translations, expert panels, and secure handling of documents.

4.5 Rendering of the Award:

Once proceedings are concluded, the tribunal renders an arbitral award. The decision is binding on the parties and must be respected. The PCA’s arbitral awards are considered final, although there may be limited grounds for appeal or annulment under certain domestic arbitration laws, depending on where enforcement is sought.

5. Enforcement of Arbitral Awards

The enforcement of PCA arbitral awards is facilitated by international treaties, primarily the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Under this Convention, awards rendered by the PCA tribunals are enforceable in the courts of over 160 states.

Furthermore, in cases involving state actors, enforcement may also be governed by customary international law and state immunity principles, subject to the conditions of waiver of immunity typically outlined in arbitration agreements.

6. Notable PCA Cases

While the PCA has handled a range of disputes, certain cases stand out for their significance in shaping international law:

• Philippines v. China (South China Sea Arbitration) (2013-2016): This is one of the most significant cases in the PCA’s history. It dealt with maritime entitlements and the legality of China’s “nine-dash line” claims in the South China Sea. The tribunal found that China’s claims had no legal basis under the UNCLOS and that many of the contested areas were within the Philippines’ exclusive economic zone (EEZ).

• Island of Palmas Arbitration (Netherlands v. United States) (1928): This case is one of the early examples of PCA arbitration and is significant for its contribution to the development of territorial sovereignty principles under international law.

7. Advantages of Using the PCA

The PCA offers several advantages for the peaceful settlement of international disputes:

• Neutrality: The PCA is independent and neutral, making it an attractive option for states seeking to resolve disputes without appearing to be partial or aligned with any geopolitical bloc.
• Flexibility: Parties have control over the selection of arbitrators, the procedural rules, and the venue for arbitration, offering a high degree of customization.
• Confidentiality: Arbitration at the PCA can be confidential if the parties so agree, protecting sensitive state or corporate information.
• Expertise: The PCA has extensive experience in handling complex disputes involving multiple legal issues, particularly in the context of public international law.

8. Challenges and Criticisms

Despite its successes, the PCA has faced challenges and criticisms:

• Limited Enforcement Mechanisms: While arbitral awards are generally binding, the PCA itself lacks direct enforcement power. The enforcement of awards depends on the domestic courts of the state where enforcement is sought, which can sometimes lead to complications, particularly when state immunity is invoked.

• Perception of Costs: Arbitration proceedings can be expensive, depending on the complexity of the dispute and the duration of the proceedings. This may deter smaller states or entities with limited financial resources from utilizing the PCA’s services.

• Lack of Jurisprudence: Since PCA proceedings can be confidential, this limits the development of a consistent body of publicly available case law. The lack of published decisions may hinder legal certainty in certain areas of international law.

Conclusion

The Permanent Court of Arbitration remains a vital institution in the peaceful resolution of international disputes. Its flexibility, neutrality, and capacity to handle both interstate and investor-state disputes make it indispensable in the realm of public international law. As exemplified by high-profile cases like the South China Sea arbitration, the PCA plays a key role in upholding international law principles, especially those related to sovereignty, maritime boundaries, and territorial disputes. Despite the challenges, it continues to be a preferred forum for dispute settlement due to its long history, neutrality, and adaptability in accommodating the evolving nature of international disputes.

Peaceful Settlement of International Disputes | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

Peaceful Settlement of International Disputes

Peaceful settlement of international disputes is a fundamental principle in international law aimed at preventing the use of force or threats in resolving conflicts between states. This principle is enshrined in Article 2(3) and Article 33 of the United Nations (UN) Charter, which require states to resolve their disputes by peaceful means that do not endanger international peace, security, and justice. Several peaceful mechanisms are available for the settlement of international disputes, categorized into diplomatic and legal/judicial methods.

1. Diplomatic Means

Diplomatic means of settlement involve negotiation and dialogue between the disputing states, often with the involvement of a third party, but without legally binding decisions. The goal is to reach a mutually agreeable solution.

1. Negotiation:

   • The most common method of dispute settlement.
   • It involves direct discussions between the parties to the dispute.
   • The parties attempt to reach a compromise without outside intervention.
   • No third party is involved unless both parties agree to it.
   • The outcome is not binding unless formalized in a treaty or agreement.

2. Good Offices:

   • Involves a third party offering its services to bring the disputing states together to negotiate.
   • The third party does not take part in the negotiations but helps facilitate dialogue.
   • Often conducted by an impartial state or an international organization, such as the UN Secretary-General.

3. Mediation:

   • In mediation, a third party actively participates in the negotiations between the disputing states.
   • The mediator suggests solutions and assists in crafting a settlement.
   • Mediation is non-binding, and the parties retain full control over the outcome.

4. Conciliation:

   • A more formalized process where a conciliation commission is established to investigate the dispute and propose a solution.
   • The process is non-binding, but the commission's report is expected to provide a fair and objective solution.
   • Unlike mediation, where the third party’s role is more flexible, conciliation results in a formal recommendation for resolving the dispute.

5. Inquiry:

   • A fact-finding process in which a commission is established to investigate the facts surrounding the dispute.
   • The commission's role is to clarify the factual circumstances, which can help facilitate a negotiated settlement.
   • Inquiry is particularly useful in disputes where the facts are contested.

2. Legal/Judicial Means

When diplomatic means fail or are insufficient to resolve a dispute, states may resort to legal or judicial methods, which involve adjudication by an international tribunal or court. These methods produce binding decisions based on international law.

1. Arbitration:

   • A flexible and consensual form of legal dispute resolution where the disputing parties agree to submit their dispute to one or more arbitrators.
   • The arbitrators' decision, known as an award, is binding.
   • Arbitration allows the parties to select the arbitrators, the applicable law, and the procedural rules.
   • The Permanent Court of Arbitration (PCA) is a key international institution that administers arbitration cases.
   • Arbitration is often preferred for its flexibility, speed, and confidentiality, but it remains legally binding.

2. Judicial Settlement (International Court of Justice):

   • The International Court of Justice (ICJ), the principal judicial organ of the United Nations, provides a venue for the judicial settlement of disputes between states.
   • The ICJ's decisions are based on international law and are binding on the parties involved.
   • Only states may bring cases before the ICJ, and jurisdiction is either compulsory (if states have accepted the court’s compulsory jurisdiction) or based on consent (ad hoc jurisdiction or through specific treaties).
   • ICJ rulings are final, without appeal, though parties can request interpretations or revisions under certain circumstances.

3. Hybrid Mechanisms

Some mechanisms combine aspects of diplomatic and legal approaches to dispute resolution.

1. Advisory Opinions (International Court of Justice):

   • While not technically a method for settling disputes between states, the ICJ may issue advisory opinions upon request from UN organs or specialized agencies.
   • These opinions are non-binding but carry significant legal weight and can influence international law and relations.

2. Other International and Regional Courts:

   • States may also turn to other judicial bodies for dispute settlement. For example:
     • International Tribunal for the Law of the Sea (ITLOS) for maritime disputes.
     • World Trade Organization Dispute Settlement Body (WTO-DSB) for trade disputes.
     • European Court of Human Rights (ECHR), Inter-American Court of Human Rights, and other regional courts for human rights-related disputes.
   • While these courts have specific jurisdiction, they offer alternative forums for judicial settlement.

4. The Role of the United Nations and Other International Organizations

The UN plays a central role in the peaceful settlement of disputes. Chapter VI of the UN Charter encourages states to resolve disputes by peaceful means and provides the UN Security Council with the authority to investigate disputes that could lead to conflict.

1. Security Council and Chapter VI:

   • The Security Council can recommend procedures or terms of settlement in cases where disputes threaten international peace and security.
   • The Council can also call upon parties to a dispute to settle their differences through peaceful means.

2. General Assembly:

   • The General Assembly can discuss and make recommendations on issues relating to the peaceful settlement of disputes.
   • While it lacks enforcement power, its resolutions carry moral and political weight.

3. Regional Organizations:

   • Regional organizations, such as the Organization of American States (OAS), African Union (AU), and Association of Southeast Asian Nations (ASEAN), also play important roles in dispute resolution.
   • The UN Charter encourages the use of regional organizations in resolving disputes before bringing them to the attention of the UN.

5. Prohibition of Force and Peaceful Dispute Resolution

Article 2(4) of the UN Charter prohibits the threat or use of force in international relations, except in self-defense or with UN Security Council authorization. This provision reinforces the obligation to settle disputes through peaceful means.

6. Treaties Governing Peaceful Settlement

Several international treaties provide frameworks for peaceful dispute settlement, including:

1. The Hague Conventions of 1899 and 1907:

   • These conventions established mechanisms for the peaceful settlement of disputes, including the Permanent Court of Arbitration (PCA).
   • The PCA continues to play a key role in arbitrating disputes.

2. UN Convention on the Law of the Sea (UNCLOS):

   • UNCLOS includes detailed provisions on the peaceful settlement of disputes regarding maritime boundaries and the use of the seas.
   • States may submit disputes to the International Tribunal for the Law of the Sea (ITLOS), the ICJ, or arbitration under UNCLOS.

3. Vienna Convention on Diplomatic Relations (1961):

   • Provides for dispute settlement mechanisms regarding diplomatic and consular matters.

Conclusion

The peaceful settlement of international disputes is a cornerstone of international law, aimed at preserving global peace and stability. Various diplomatic and judicial methods offer states a range of options, from informal negotiations to binding legal rulings. The UN Charter and numerous international treaties reinforce this commitment, providing structures and procedures to avoid conflict and ensure that disputes are resolved according to international law principles.

Use of Force Short of War | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

Use of Force Short of War under International Law

In the realm of Public International Law, the issue of "Use of Force Short of War" pertains to state actions that involve the application of force but do not rise to the level of full-scale armed conflict or war. This issue is governed by both customary international law and treaty law, particularly under the framework of the United Nations Charter, various conventions, and judicial decisions by international courts.

Legal Framework Governing the Use of Force Short of War

1. United Nations Charter (1945)

   • The most significant legal instrument regarding the use of force is the UN Charter, which lays out the principles for state conduct in relation to the use of force.

     • Article 2(4): The foundational principle prohibiting the use of force states that:

       "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations."

     This clause establishes the general prohibition on the use of force in international relations but has certain exceptions, as discussed below.

2. Exceptions to the Prohibition on the Use of Force

   Under customary and conventional international law, there are limited exceptions to the prohibition on the use of force. These exceptions may allow states to engage in actions that involve force but fall short of an armed conflict.

   a. Self-defense (Article 51 of the UN Charter)

   • The right of self-defense is an exception to the prohibition under Article 2(4). Article 51 provides that:

     "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

   The invocation of self-defense may include not only armed force in response to an armed attack but also pre-emptive actions, depending on how self-defense is interpreted by the state invoking it. However, this right is conditioned by the requirement that the force used must be necessary and proportionate to the threat faced.

   • Preemptive or anticipatory self-defense: There is ongoing debate about whether states can engage in preemptive self-defense against an imminent threat, particularly where an armed attack has not yet occurred. Although not universally accepted, certain state practices and judicial decisions (such as in the Nicaragua case before the International Court of Justice) provide some recognition for preemptive actions, though this remains controversial.

   • Collective self-defense: States may also intervene to assist an ally or another state under attack, provided there is an express request for assistance.

   b. Use of Force Authorized by the UN Security Council (Chapter VII of the UN Charter)

   • The UN Security Council, under Chapter VII of the Charter, is empowered to determine the existence of any threat to peace, breach of the peace, or act of aggression. It may then take measures to restore international peace and security, which could include authorizing the use of force.
     • Article 42: If the Security Council considers measures not involving the use of armed force to be inadequate, it may take action by air, sea, or land forces as necessary to maintain or restore international peace and security.

   c. Humanitarian Intervention and the Responsibility to Protect (R2P)

   • Humanitarian intervention refers to the use of force by a state or group of states to prevent large-scale human rights violations, such as genocide, ethnic cleansing, or crimes against humanity. This doctrine is not explicitly provided for under the UN Charter and remains controversial due to concerns about abuse and violations of sovereignty.

   • The Responsibility to Protect (R2P), a more recent development in international law, emerged from the 2005 World Summit. Under R2P, the international community has the responsibility to intervene when a state is unable or unwilling to protect its population from mass atrocities. However, any use of force under R2P must still be authorized by the UN Security Council.

Use of Force Short of Armed Conflict (Gray Areas)

In modern international relations, states have resorted to actions that involve the use of force but do not amount to war or armed conflict. These gray areas include:

1. Non-Military Coercive Measures

   • States often engage in non-military actions that exert pressure on other states to achieve political or strategic objectives. These actions, while involving force, do not meet the threshold of armed conflict. Examples include:
     • Economic blockades: Although economic blockades do not involve military force, they can cause significant damage to the target state and raise issues under international law, particularly if they target civilian populations.
     • Cyberattacks: Cyber operations that disrupt infrastructure or military systems may be seen as acts of force under international law, but whether they constitute a "use of force" remains debated. States have increasingly resorted to cyberattacks, recognizing their capacity to harm without physical destruction.

2. Use of Force Below the Threshold of Armed Attack

   • The International Court of Justice (ICJ), in the Nicaragua v. United States case (1986), distinguished between uses of force that constitute an "armed attack" and those that fall short. Lesser uses of force (such as small-scale incursions, cross-border skirmishes, or certain types of support for rebel groups) do not trigger the right of self-defense but may still violate Article 2(4) of the UN Charter.
   • In its jurisprudence, the ICJ has emphasized that not every breach of sovereignty or territorial integrity constitutes an armed attack under Article 51. For example, mere border violations or indirect forms of force may not necessarily justify self-defense.

3. Proportional Responses

   • Reprisals: These are acts of force taken in retaliation for another state's unlawful conduct. Traditionally, reprisals were considered lawful, but under modern international law, armed reprisals are generally prohibited. Nevertheless, there remains some ambiguity regarding the use of force as a reprisal, particularly if it is deemed necessary and proportionate to counter an ongoing violation.

4. Use of Force in Territorial Disputes

   • In certain situations, states may use limited force to assert territorial claims, especially in disputed territories. While such use of force generally falls short of war, it raises complex issues of legality under international law. Examples include maritime confrontations over islands or natural resources.
   • States have sometimes engaged in limited military actions to protect their claims or interests in disputed regions without resorting to full-scale war. However, such actions may still be seen as violations of the prohibition on the use of force under Article 2(4), depending on the context and the extent of the force used.

Judicial and Arbitral Settlement of Use of Force Short of War

International courts and arbitral bodies play a key role in determining whether the use of force by states conforms to international law. The International Court of Justice (ICJ), in particular, has been involved in resolving disputes relating to the use of force short of war, such as:

1. Nicaragua v. United States (1986)

   • In this landmark case, the ICJ ruled that the United States' support for the Contras in Nicaragua and its mining of Nicaraguan harbors constituted a violation of international law. The Court held that the use of force, even if short of war, must still comply with Article 2(4) of the UN Charter.
   • The ICJ made an important distinction between use of force and armed attack, holding that not every instance of the use of force justifies the right to self-defense.

2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)

   • The ICJ gave an advisory opinion that considered the legality of Israel's construction of a wall in the Occupied Palestinian Territories. While the Court did not address the use of force directly, it touched on issues relating to the rights of states to protect themselves and the limits of actions that fall short of war but involve coercive measures.

3. Congo v. Uganda (2005)

   • In this case, the ICJ addressed the legality of Uganda's military intervention in the Democratic Republic of Congo. The Court found that Uganda had violated the prohibition on the use of force under Article 2(4) by conducting military operations in Congo without consent or a legitimate self-defense claim, even though it did not amount to full-scale war.

Conclusion

The "Use of Force Short of War" under Public International Law remains a complex and evolving area, characterized by the balance between state sovereignty, the prohibition on the use of force, and the right to self-defense. While the UN Charter lays down a general prohibition on force, states have navigated the gray areas of coercive measures, limited interventions, and reprisals to further their political objectives. International courts and arbitral tribunals play a critical role in clarifying the limits of permissible force and ensuring that state actions adhere to the established principles of international law.

Treatment of Civilians | War and Neutrality | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

Treatment of Civilians in the Context of War and Neutrality: A Public International Law Analysis

1. Introduction

In the context of war and neutrality, the treatment of civilians has become a cornerstone of modern international law, especially within the frameworks of International Humanitarian Law (IHL) and Customary International Law. The key objective is to protect civilians from the dangers of armed conflict and ensure their humane treatment. These protections are enshrined in various international conventions, customary principles, and jurisprudence from judicial and arbitral settlements.

2. Legal Framework Governing the Treatment of Civilians

The primary legal instruments governing the treatment of civilians during armed conflicts are:

• Geneva Conventions of 1949 (particularly the Fourth Geneva Convention).
• Additional Protocols to the Geneva Conventions of 1977 (especially Additional Protocol I).
• Customary International Humanitarian Law as codified by the International Committee of the Red Cross (ICRC).
• Hague Regulations of 1907.
• International Criminal Court (ICC) Statute under the Rome Statute of 1998.
• UN Security Council Resolutions (binding, under Chapter VII of the UN Charter).
• Jurisprudence from International Courts and Arbitral Tribunals (ICJ, ICTY, ICTR, etc.).

The legal obligations concerning civilians apply during international armed conflicts (IAC) and, in some cases, during non-international armed conflicts (NIAC), although the specifics may vary.

3. Core Principles Protecting Civilians

a. Distinction

One of the most important principles in IHL is the rule of distinction — the obligation of parties to an armed conflict to distinguish at all times between civilians and combatants, and between civilian objects and military objectives (Article 48, Additional Protocol I). Civilians should not be the object of direct attack.

b. Prohibition of Attacks on Civilians

Under customary international law and treaty law, deliberate attacks on civilians are strictly prohibited (Geneva Conventions, Article 51 of Additional Protocol I). Civilians are defined as individuals who do not take a direct part in hostilities. Targeting civilians constitutes a grave breach and a war crime under the Rome Statute of the ICC.

c. Proportionality

The principle of proportionality prohibits attacks where the incidental loss of civilian life or injury to civilians, or damage to civilian objects, would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b), Additional Protocol I). Violations of this principle may also lead to individual criminal liability.

d. Precautionary Measures

Before launching an attack, parties must take all feasible precautions to avoid, or at least minimize, civilian harm (Article 57, Additional Protocol I). This includes:

• Verifying that the target is a lawful military objective.
• Providing effective advance warning of attacks likely to affect the civilian population unless circumstances do not permit.
• Avoiding attacks if the expected harm to civilians is disproportionate to the anticipated military advantage.

e. Prohibition of Indiscriminate Attacks

Indiscriminate attacks are those that strike military targets and civilians without distinction, or are not directed at a specific military objective. Indiscriminate use of weapons or methods of warfare is prohibited under Articles 51 and 52 of Additional Protocol I.

4. Special Protections for Vulnerable Civilian Groups

a. Women and Children

Women and children enjoy special protections under both the Geneva Conventions and customary international law. Article 76 of Additional Protocol I provides that women must be the object of special respect and protection, particularly against any form of indecent assault. Children are entitled to care and aid, and the recruitment of children under 15 into armed forces is prohibited under the Additional Protocols and the Rome Statute.

b. Medical Personnel and Humanitarian Workers

Medical personnel, humanitarian workers, and other civilians engaged in relief operations enjoy protection under the Geneva Conventions and Additional Protocol I. Deliberate attacks on such persons constitute war crimes.

c. Prisoners of War (POWs) and Civilians under Occupation

The Fourth Geneva Convention also protects civilians under occupation and civilians in the hands of an adversary (non-nationals of the detaining power). Such civilians are entitled to humane treatment, and the detaining power must respect their rights to family life, religious practices, and personal dignity.

5. Prohibitions Related to Civilians under Occupation

The Fourth Geneva Convention sets detailed rules regarding the treatment of civilians in occupied territories. It prohibits:

• Deportation of civilians to another territory (Article 49).
• Collective punishment (Article 33).
• Taking of hostages (Article 34).
• Pillaging (Article 33).
• Reprisals against protected persons and their property (Article 53).

The Occupying Power has duties to ensure the basic needs of the civilian population, including food, medical supplies, and public health. Arbitrary displacement and transfer of civilians within or outside the occupied territory is also prohibited.

6. War Crimes Related to the Treatment of Civilians

Under the Rome Statute of the ICC, specific war crimes relating to civilians include:

• Direct attacks on civilians (Article 8(2)(b)(i)).
• Killing or causing serious injury to civilians (Article 8(2)(a)(i)–(ii)).
• Torture, inhumane treatment, and outrages upon personal dignity (Article 8(2)(a)(ii)).
• Use of starvation as a method of warfare (Article 8(2)(b)(xxv)).
• Forcible transfer of populations (Article 8(2)(a)(vii)).
• Rape and sexual violence against civilians (Article 8(2)(b)(xxii)).

7. Judicial and Arbitral Settlements on Civilian Treatment

International courts and tribunals have developed substantial jurisprudence related to the protection of civilians. These include:

• International Court of Justice (ICJ) rulings on the legality of the use of force and obligations under IHL (e.g., the Nicaragua v. United States case).
• International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) have prosecuted individuals for war crimes involving attacks on civilians, sexual violence, and displacement.
• International Criminal Court (ICC) rulings on cases such as the Lubanga and Katanga cases, which have set important precedents on the recruitment of child soldiers and attacks on civilian populations.

8. Treatment of Civilians in Non-International Armed Conflicts

While much of IHL is developed around international conflicts, civilians are also protected during non-international armed conflicts (NIACs). The primary sources of law for NIACs are:

• Common Article 3 of the Geneva Conventions.
• Additional Protocol II (applicable in non-international conflicts).
• Customary International Law.

In NIACs, civilians are similarly protected from direct attacks, indiscriminate violence, and other abuses. However, the legal regime is less detailed compared to IACs, though still robust under customary law.

9. Role of Neutral States

Under the law of neutrality, states not involved in a conflict have obligations to ensure their territory is not used to support belligerent operations. They are also required to offer asylum or refuge to civilians fleeing the conflict. Neutral states have humanitarian obligations, but they must refrain from actions that would jeopardize their neutral status.

10. Conclusion

The treatment of civilians during armed conflict is a critical aspect of both public international law and international humanitarian law. Through treaties, customary norms, and jurisprudence, the international community has established stringent protections for civilians to mitigate the horrors of war. Violations of these protections not only undermine the human rights of civilians but also constitute serious international crimes, which are subject to prosecution under international criminal law.

Prisoners of War | War and Neutrality | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

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.