Legal

________________________________________________________________________________

This Blog is written by Sagun Modi from National Law University, Odisha. Edited by Sonali Priyadarsani.

________________________________________________________________________________

INTRODUCTION

During ancient times and the early 20^th century, there often used to occur wars and armed conflicts between two or more enemy states. In fact, World War I and World War II were the deadliest wars that occurred in the history of humanity. During these wars, the armed forces of both parties used to fight against each other to protect their respective nation-states. In times of the war, some members of the armed forces fell into the hands of the enemy and they were treated as prisoners of war. Basically, prisoners of war or referred to as combatants are members of the armed forces who are captured and detained by the enemy state during a hostile situation/armed conflict or war[1]. Combatants exercise their right to participate in hostilities in order to protect their nation and often differ from civilians of that country. The enemy state has the power to detain the prisoners of war in order to end the hostility.

Often during these times, the prisoners of war were not treated properly and were subject to ridicule and violence. There was an immediate need for proper legislation or convention to bind all states for the proper treatment of these people. Even though there existed some treaties or legislation for governing the same, either the states didn’t oblige themselves to it or the legislations didn’t serve their purpose in the correct manner.

It was argued and debated that prisoners of war though captured and detained, their purpose of detention was to end the hostility between the parties at war. Ergo they should be treated in a humane manner.

There were a lot of conflicting opinions among scholars and experts, who decided that the treatment of prisoners of war should be regulated under the International Humanitarian Law (IHL) which was known as the law of armed conflict and a part of the International Public Law[2]. Thereafter the Geneva Conventions were drafted and enforced to regulate the treatment of prisoners of war.

SIGNIFICANCE OF THIS DEVELOPMENT

International Humanitarian Law derives ideas and concepts which defined that procedures and methods of warfare were subject to legal and ethical rules and limitations. It further went on to say that a victim of war or an armed conflict shouldn’t be deprived of humanitarian treatment and protection. Humanitarian law consists of two branches of the law of armed conflict, one being ‘jus in bello’ (the law in war) and the second ‘jus ad bellum’ (the law to war)[3]. However, the Humanitarian Law makes use of and follows the jus in bello in order to alleviate the hardships and difficulties faced during hostility.

There was no statutory recognition of the status of prisoners of war and were often enslaved by the victorious state. Therefore the Geneva conventions offered solutions to describe the treatment of prisoners of war which brought about major changes in the status of these people and provided care and protection to them.

International Public Law tends to discourage armed conflict between nation-states and promotes peaceful negotiations between them. At times it’s observed that powerful nations don’t adhere to the international law provisions and wage war against their enemy states to show their dominance. In order to make them liable, there should be legislation covering all aspects and intricacies that would emerge during a war. Hence the development of conventions and treaties plays an important part in order to regulate every possible scenario which could arise from an armed conflict.

The Geneva Conventions were the most significant development for the regulation of prisoners of war. The Geneva Convention related to the treatment of prisoners of wars was adopted in 1949 post world war II. This convention contained numerous articles covering a wide range of aspects. It correctly defined the meaning of prisoners of war; contained provisions on how to generally treat them, their protection, and specific provisions when the combatants are held captive. In all, it helped reduce the maltreatment of prisoners of war and the discrimination which prevailed against some less powerful nations’ armed forces. The Geneva Convention of 1949 was a uniform treaty binding all member nations. Along with the international humanitarian law, this convention was a significant development in the protection of the prisoners of war. In the subsequent chapters, it’ll be learned about its provisions and articles.

IMPACT

The second Geneva Convention of 1929 was specifically made relating to the treatment of the prisoners of war which had the provision of humanely treating them, allowing the furnishing of information and regular visits by neutral states as well[4]. However looking at the events of World War II, some of the belligerents didn’t adhere to the principles of the 1929 convention and exploited the rules. The 1929 convention didn’t have much regard for humanitarian ethics and principles and revision of the principles was highly required. Thereinafter the 1929 convention was amended and a new convention was developed and adapted in 1949.

The third Geneva Convention of 1949 restored the principles of humanitarianism. It expressed that the prisoners should be treated in a humane manner without the loss of their citizenship[5]. The 1949 convention expanded the interpretation of prisoners of war and included members who weren’t part of the armed conflict and voluntarily took part. There was a provision that protections were granted and continued to exist even if they were held captive. The enemy state had no right to take away their protection by giving the excuse that they are held captive nor the prisoners would be allowed to give up their protection by themselves. Even if they did that, they would be entitled to protection.

There were major changes in the 1949 convention from the 1929 convention. The reason why a revision was done because, even though the 1929 Convention established appropriate principles, they weren’t followed in World War II. The parties in World War II thought that the ill-treatment of prisoners was like a custom and no changes could be brought about in that. Hence they didn’t oblige to the articles of it and continued doing things in their own way. The after-effects of the world war made the authorities, scholars; academicians, etc realize that stricter provisions were necessary in order to regulate the treatment of the prisoners.

Therefore in 1949 the legislations and articles were updated. They made an extensive and exhaustive list of around 143 articles covering all areas from the definition of the prisoners of war, to their general treatment when held captive, their medical and hygiene conditions, the financial services provided to them, their ranking and their labor work as well until they were released. The 1949 Geneva Convention tried and succeeded to encompass all aspects and ingredients which could be thought of, for the felicitous treatment of the prisoners.

This was a major development and made a huge impact on the regulation of prisoners of war.

IMPORTANT ARTICLES AND LEGISLATIONS

The Geneva Convention of 1949 compromised 143 articles that provided rules and guidelines facilitating the treatment of the prisoners of war. Some of the important articles are:

A. Article 4 defined the prisoners of war- as “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. 2. 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. 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 4. 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 labor 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. 5. 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 favorable treatment under any other provisions of international law. 6. 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.”

B. Article 7- “Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.”

C. Article 13- “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental, or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.”

D. Article 16- “Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.”

E. Article 22- “Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries. Prisoners of war interned in unhealthy areas, or where the climate is injurious for them, shall be removed as soon as possible to a more favorable climate. The Detaining Power shall assemble prisoners of war in camps or camp compounds according to their nationality, language, and customs provided that such prisoners shall not be separated from prisoners of war belonging to the armed forces with which they were serving at the time of their capture, except with their consent.”

F. Article 44- “Officers and prisoners of equivalent status shall be treated with the regard due to their rank and age. In order to ensure service in officers’ camps, other ranks of the same armed forces who, as far as possible, speak the same language, shall be assigned in sufficient numbers, account being taken of the rank of officers and prisoners of equivalent status. Such orderlies shall not be required to perform any other work. Supervision of the mess by the officers themselves shall be facilitated in every way.”

These were some of the important articles constructed in the Geneva Convention III.

ANALYSIS

There were a lot of questions before the Geneva Convention of 1949 was enacted. This pertained to who were prisoners of war and whether their treatment was in a fair and reasonable manner. The Geneva Convention of 1949 presented a comprehensive code of guidelines that helped in resolving the conflicts. It went on to further give the right to a fair trial to the combatants. The right to a fair trial is a fundamental right that is available to any person irrespective of their status and this wasn’t granted to the prisoners of war. However, the Geneva Convention keeping in mind the principles of International Humanitarian Law granted the right to fair trial mentioning that they can’t be prosecuted in an unlawful manner. It further states that the prisoners of war should be entitled to a council irrespective of their status explaining that it was their right to legal representation[6].

Howbeit the Geneva conventions were pertinent in their implementation, they were some provisions that were outmoded as the type of wars and armed conflict changed as time passed by. “New wars” came into recognition termed as national liberation, revolutionary wars, and non-international conflicts[7]. A new perspective was brought in 1977 and two additional protocols were adopted this year. This was done because the perceptions of an armed conflict were changed and revised or additional protocols were requisite to suit the best of the new cognizance.

The additional protocol I adopted in 1977 looks at a different approach to the question of prisoners of war. In this protocol, the definition of prisoners of war evolved as new military techniques were discovered and weren’t only restricted to combatants[8]. It stated that anyone who was part of an armed conflict and directly participated in hostility would be entitled to be treated as a prisoner of war.

Even though the Geneva conventions lacked some specific provisions, efforts were made when the shortcomings were recognized to rectify them. It was at least better to have a set of codes and provisions with some errors than having nothing. Before the convention and additional protocol came into force, prisoners of war were treated ruthlessly and were shown no mercy. Even though we have come away forward in settling disputes in a peaceful manner, there are still diplomatic and political wars going on. This is when we realize the importance of the protocols and convention as they are drafted long back and are difficult to be altered.

CONCLUSION AND SUGGESTIONS

To sum up, the prisoners of war have faced discrimination when it’s a matter of their protection and treatment. There were many difficulties faced in applying the law of armed conflict. Scholars, socialists, authorities have debated in the implementation of appropriate laws and legislations to provide betterment to prisoners of war. The Geneva Convention helped to establish those protocols which significantly helped in the protection of the prisoners keeping in mind the humanitarian rights and laws. However, with time, human rights and demands change as newfangled objectives and perspectives are developed or found. Hence it’s highly necessary to form concepts that offer more efficient protection keeping in mind the humanitarian principles as and when required.

REFERENCES

(1) Bouchet-Saulnier, F. (2002). The practical guide to humanitarian law. Rowman & Littlefield.

(2) Gagro, S. F. (2014). Defining and recognizing prisoners of war in contemporary armed conflicts. International Journal of Social Sciences, 3(5), 60-78.

(3) Geneva conventions. (n.d.). Encyclopedia Britannica. https://www.britannica.com/event/Geneva-Conventions.

(4) International humanitarian law. (2018, February 15). International Justice Resource Center. https://ijrcenter.org/international-humanitarian-law/.

(5) Mofidi, M., & Eckert, A. E. (2003). Unlawful combatants or prisoners of war: The law and politics of labels. Cornell International Law Journal, 36(1), 59-92.

(6) Mumuney, Q. A. (2009). International humanitarian law and prisoners of war. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.1432722.

(7) Prisoner of war. (n.d.). Encyclopedia Britannica. https://www.britannica.com/topic/prisoner-of-war.

(8) Prisoners of war. (n.d.). How does law protect in war? – Online casebook. https://casebook.icrc.org/glossary/prisoners-war.

(9) JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950).

(10) PUBLIC PROSECUTOR v. OIE HEE KOI ( MAYLASIA, 1967).

(11) UNITED STATES OF AMERICA v. MANUEL ANTONIO NORIEGA, 746 U.S DC (1990).

(12) TRIAL OF JOHN PHILLIP WALKER LINDH, UNITED STATES (2002).

(13) INDIAN AIR FORCE WING COMMANDER ABHINANDAN VARTHAMAN CASE, INDIA (2019).

(14) Flight Lieutenant K Nachiketa DURING THE 1999 KARGIL WAR, INDIA.

[1] Prisoners of war. (n.d.). Prisoners of war | How does law protect in war? – Online casebook. https://casebook.icrc.org/glossary/prisoners-war.

[2] International Humanitarian Law. International Justice Resource Center. (2018, February 15). https://ijrcenter.org/international-humanitarian-law/.

[3] Mofidi, M., & Eckert, A. E. (2003). Unlawful combatants or prisoners of war: The law and politics of labels. Cornell International Law Journal, 36(1), 59-92.

[4] Geneva conventions. (n.d.). Encyclopedia Britannica. https://www.britannica.com/event/Geneva-Conventions.

[5] Prisoner of war. (n.d.). Encyclopedia Britannica. https://www.britannica.com/topic/prisoner-of-war.

[6]Mumuney, Q. A. (2009). International humanitarian law and prisoners of war. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.1432722.

[7]Gagro, S. F. (2014). Defining and recognizing prisoners of war in contemporary armed conflicts. International Journal of Social Sciences, 3(5), 60-78.

[8] Bouchet-Saulnier, F. (2002). The practical guide to humanitarian law. Rowman & Littlefield.