The Author, Gurmeet Singh Jaggi, is a Final Year Law Student at Delhi Metropolitan Education, Guru Gobind Singh Indraprastha University.
At first glance, prisoner(s) and detainee(s) may appear as a mere product of war. One could say, captivity acts as a transitional state with regards to a surrendering soldier or for a civilian infelicitous enough to present into vicinity of the battlefield or into a besieged town, sometimes followed in order by execution, enslavement, or release for ransom, on parole, or in exchange for prisoner(s) taken by the opponent.
According to Geoffrey Best, Prisoner(s) of War have been at the centre of the series of International Humanitarian Law row(s) since the year 1950. Parties to armed conflicts have unceasingly exploited the weaknesses of Prisoner(s) of War regime and the penetrability of its object(s) with an eye to serve their own political interest(s).
Parallel with an increased significance in quantified as well as qualitative term(s), the issue of prisoner(s) and detainee(s) is in a number of ways a prism through which more general research problems related to war become visible. First, the condition of prisoner(s) and detainee(s) appears to be litmus test for compliance with cultural, legal, and moral norms aimed at mitigating the effect(s) of war. Secondly, the issue of prisoner(s) in war tells us something about the success and progress of the humanitarian project as such.
2. WHO ARE PRISONER(S) OF WAR?
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
2.1 Article 4 of the Geneva Convention III[1].
- Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
- Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: 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 the Detaining Power.
- Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
- Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
- Inhabitants of a 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.
2.2 Article 43 of the Additional Protocol I[2].
Armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law applicable in armed conflict.
2.3 Article 44 of the Additional Protocol I[3].
Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war. It further mentions that violation(s) of International law applicable to armed conflict(s) by a person shall not deprive him of combatant or Prisoner of War status. However, if a combatant is not distinguishing himself from a civilian during a military operation as per Article 44 shall forfeit his right to be a Prisoner of War.
3. HOW ARE PRISONER(S) IN WAR USED.
Taking prisoners has a number of military advantages, the most obvious of which is the tactical benefit gained by depriving the opponent of manpower and increasing one’s own advantage in terms of the ratio of troop numbers. This advantage can even be increased by inducing captives to join one’s own armed forces. Additionally, taking prisoner(s) affects the adversary’s morale as well as the morale of one’s own troop(s). Not least, prisoner(s) are a potential source of military intelligence. Yet none of the military reasons for taking prisoners suggests that holding prisoners captive is equally useful.
Conversely, prisoner(s) in a warfare turn-out to be a trammel and/ or burden, sometimes. They need to be safeguarded and nurtured which can be notably challenging in arduous prudential situation(s) or when logistic support is fragile in genre. In the old days, prisoner(s) in such situation(s) was often to be a situation warranted by military necessity. Releasing prisoner(s) or exchanging them or enslaving them, either of them are alternative method(s) of avoiding the difficulties of holding them captive.
4. LAW OF WAR OR THE LAW OF ARMED CONFLICT.
International Humanitarian Law known as Law of War or the Law of Armed Conflict. International Humanitarian Law is a set of rule(s) which seeks, for humanitarian reason(s), to limit the effect(s) of armed conflict. Moreover, International Humanitarian Law is a set of rules which regulates the conduct of war and thereby protecting person(s) who are no longer participating in hostilities. It is important to take into account that International Humanitarian Law is les specialis, meaning thereby, it is created to govern specific subject matter(s).
5. IHL AS A BRANCH OF INTERNATIONAL LAW.
International law may be very broadly defined as the body of law that governs the legal relations between or among members of the international community- States and international organizations created by States. International law retains a structure which is fundamentally different from the municipal law or national legal order of a State concerned. The major difference is that international law is a consent-based law agreed upon by concerned States, wherein municipal law is made by the governments of concerned States and is made obligatory upon its citizens. Hence international law is binding upon the States only if they agree upon them, except in cases of Customary International Law and Jus Cogens.
Thus, there are two modes in which International Humanitarian Law operates, that can be understood through a representation below:
6. PROTECTION OF PRISONERS OF WAR.
Prisoners of War as mentioned under Article 4 of the Geneva Convention and Article 44 of the Additional Protocol I are entitled to specific protection and treatment. Prisoners of War are accorded with this special status recognizing the fact that combatants are acting upon the interest of their country, and once they are out of combat they are entitled to be protected. International Humanitarian Law provisions set out specific rules for the treatment of the Prisoners of War. The Geneva Convention III 143 Article(s) require that Prisoners of War be treated humanely, adequately housed and receive sufficient food, clothing and medical care. Its provision(s) also establish guidelines on labour, discipline, recreation and criminal trial.
6.1 General Protection of Prisoners of War.
It is to be taken into account that Prisoners of War is in the hands of enemy power, but not of the individual or military unit(s) who have captured them. Prisoners of War must all times be humanely treated. Any unlawful act or omission by the Detaining power causing death or seriously endangering the health of a Prisoners of War in its custody including subjecting to physical mutilation or to medical or scientific experiments(s) of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest is prohibited and will be regarded as a serious breach of International Humanitarian Law. Measures of reprisal against prisoners of war are prohibited.[4]
Prisoners of War are entitled in all circumstances to respect their person(s) and their honour. Women shall be treated with all the regard due to their sec and shall in all cases benefit by treatment as favourable as that granted to men. Prisoners of War shall retain the full civil capacity which they enjoy at the time of their capture.[5]
The State detaining Prisoners of War shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health[6]. All Prisoners of War shall be treated equally irrespective of race, nationality, religious belief or political opinion, or any other distinction founded on similar criteria.[7]
6.2 Specific Provision for Treatment of Prisoners of War in Captivity.
Every Prisoner of War, when questioned on the subject, is bound to give only their surname, first names and rank, date of birth, and army, regimental, personal or physical or mental condition, are unable to state their identity, shall be handed over to the medical service. No physical or mental torture, or any other form of coercion, may be inflicted on Prisoner of War to secure from them information of any kind, whatever. Prisoner of War who refuses to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.[8]
Officers and prisoners of equivalent status shall be treated with the regards due to their rank and age.[9] Personal belonging of the Prisoner of War shall remain in the possession of the Prisoner of War, including their mental helmets and gas mask(s) and like articles issued for personal protection. Only weapons including arms, military equipment and withdrawal articles of value from Prisoner of War laid down for sums of money impounded shall apply.[10]
The Detaining power may restrict the liberty of movement of the Prisoner of War within the perimeter of the Prisoner of War camp. Prisoner of War may be partially or wholly released on parole or promise, insofar as is allowed by the laws of the Power on which they depend.[11] No Prisoner of War may at any time be sent to, or detained in area(s) where they may be expose to fire of the combat zone, nor may their presence be used to render certain point(s) or area(s) immune from military operation(s).[12]
References:
[1] August 12, 1949.
[2] June 08, 1977.
[3] June 08, 1977.
[4] Article 13, Geneva Convention III.
[5] Article 14, Geneva Convention III.
[6] Article 15, Geneva Convention III.
[7] Article 15, Geneva Convention III.
[8] Article 17, Geneva Convention III.
[9] Article 44, Geneva Convention III.
[10] Article 18, Geneva Convention III.
[11] Article 21, Geneva Convention III.
[12] Article 23, Geneva Convention III.
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