Humanitarian law creates a framework that sets up procedural guarantees used when deciding whether a person should qualify as a civilian or a combatant, and whether he or she should enjoy the status of prisoner of war. International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (jus in bello). “Prisoners of War and Contemporary Conflicts: The Case of the Taliban and Al Qaeda Detainees.” Military Law and the Law of War Review (2002): 141–67. The habitual diet of the prisoners must also be taken into account (GCIII Art. 17). Individuals who fall into the hands of the enemy during an armed conflict are protected under humanitarian law. The ICRC is doing it utmost to encourage the remaining States to accede to the Protocols as well. by. Article 3 common to the Geneva Conventions deals with internal armed conflicts, i.e. Articles 82 to 108 enumerate the penal and disciplinary sanctions: Prisoners of war who are seriously wounded or suffer from specified diseases must be repatriated directly back to their own country or to a hospital in a neutral State (Arts. The parties to the conflict commit to setting up information bureaus that will gather information and organize relief actions relating to prisoners of war (GCIII Arts. It is often considered that customary law allows a detaining power to deny its own nationals prisoner-of-war status, even if they fall into its hands as members of enemy armed forces. The Geneva Convention was extended, in 1906 and 1929 so as to improve the conditions of sick and wounded soldiers in the field and to define new rules on the protection of prisoners of war. The 1977 Additional Protocol I expanded the definition of a prisoner of war to take into consideration the evolving notion of “combatants,” tied to new military techniques. The distinction between civilians and combatants is the core element of the protection granted to civilians under humanitarian law. A combatant’s failure to respect the rules of international law applicable to armed conflicts may not deprive that person of his or her status as a prisoner of war (API Art. Better respect for humanitarian law by all States and all parties to armed conflicts will do much to help create a more humane world. 3, APII Art. London: Zed in association with BMA, 2001, chap. Protocol II has, however, a narrower scope of application than common Article 3. Over the centuries, classical Muslim jurists have provided impressive legal literature, which, just as international humanitarian law … 4), such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal (GCIII Art. Captured combatants and other persons whose freedom has been restricted shall be treated humanely. 45.1). There are four c… Additional Protocol II, relating to non-international armed conflicts, does not directly refer to the definition of prisoners of war. Today, a clear majority of States are already bound by the two Protocols (or at least by one of them). Under the new definition, prisoner-of-war status is no longer reserved exclusively for combatants who are members of the armed forces: it may also be granted to civilians who are members of resistance movements and to participants in popular uprisings. In 1977, the definition of a prisoner of war that had been established in 1949 was expanded to take into consideration the evolving notion of “combatants,” tied to new military techniques. The questioning of prisoners of war shall be carried out in a language they understand (GCIII Art. The officers and prisoners belonging to the same status are to be treated following their respective ages and rank. 49–57). —Even if convicted, prisoners of war continue to be protected by the provisions of the Convention (prisoners of war may never be deprived of the protection derived from Arts. —the incurably wounded or sick whose mental or physical fitness seems to have been gravely diminished; —the wounded or sick who have recovered but whose mental or physical fitness seems to have been gravely and permanently diminished; —the wounded or sick who, according to medical opinion, are not likely to recover within one year. Additional Protocol I weakened the obligation for combatants to distinguish themselves as it recognizes that there are situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant may be unable to adequately distinguish himself. the political rights of individual persons). 1, The Rules . The method of verifying respect for humanitarian law differs considerably from the procedures espoused by human rights treaties. —The scale of applicable disciplinary punishments is clearly established by the Convention. The representatives of the ICRC shall be entitled to attend the proceedings in which that question is adjudicated (API Art. Individuals who fall into the hands of the enemy during an armed conflict are protected under humanitarian law. ICRC delegates ensure that medical services or food aid are provided according to needs and that strict impartiality is observed. Armed conflicts are a sad reality in our contemporary world. I agree The substantive rules of humanitarian law governing non-international armed conflicts are much simpler than their counterparts governing international conflicts. Their rules must be applied to all persons and be respected in all circumstances (although a number of rights may be suspended in time of emergency). The objective of international humanitarian law is to limit the suffering caused by warfare and to alleviate its effects. They regulate the validity of individual wills, notification of death certificates, the right to individual burial, and the obligation of the detaining power to investigate any death the cause of which is suspect. 13.3). However, this person will enjoy the protections the Third Geneva Convention normally grants to prisoners of war, particularly with regard to judicial guarantees. In contrast to this well- structured system, humanitarian law relies much more on informal procedures. 77). Children, even if they are combatants, remain protected by the special provisions foreseen for them by humanitarian law, whether or not they are prisoners of war (API Art. 5. After the shock of seeing the battlefield of Solferino and the agony of so many wounded soldiers lying untended, Henry Dunant suggested action on two levels: - to establish an organization to assist wounded military personnel: the Red Cross; and. “The Legal Situation of ‘Unlawful/Unprivileged Combatants.’” In International Review of the Red Cross 849 (March 2003): 45–85. A war of national liberation is a conflict in which a people is fighting against a colonial power, in the exercise of its right of self- determination. Only if confidential representations have no further chance of bringing about the intended result will the ICRC appeal publicly to States. The Fourth Geneva Convention Relating to the Protectionof Civilian Persons in Times of War deals with the protection of civiliansincluding children. Prisoner-of-war status entails certain fundamental guarantees in the case of disciplinary and penal sanctions. 32, 2008, pp. 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 considered a serious breach of humanitarian law (GCIII Art. The detaining power may hire the prisoners of war as workers, taking into account their state of health, as well as their age, sex, and rank, and only for work that is not for military purposes. This status takes into account the fact that combatants have a legitimate right to use violence, until they are captured. —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 [they] fulfill the following conditions: —Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 19, 20). Prisoners of war must be given sufficient food and drinking water and the necessary clothing and medical attention (GCIII Arts. In modern humanitarian law there is no place for discriminatory treatment of victims of warfare based on the concept of " just war " . Treatment due to prisoners of war is spelled out in detail in the Third Geneva Convention. All prisoners of war are … Some of these measures have to be taken in peacetime, others in the course of an armed conflict. Dormann, Knut. 25). Women must be treated with due regard to their specific needs and must benefit from treatment as favorable as that granted to men (GCIII Art. Under the Geneva Conventions, parties to an international armed conflict are under an obligation to accept visits by ICRC delegates to all prisoner-of-war camps, to all places where civilians of enemy nationality may be detained and to occupied territories in general. Prisoners of war must be treated humanely at all times. The detaining power is bound to provide prisoners of war, free of charge, with the necessary maintenance and medical attention required by their state of health (GCIII Art. —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. They shall, however, receive as a minimum the benefits and protection of the Third Convention and shall be given all facilities necessary to carry out their work (GCIII Art. It applies only if the insurgent party controls part of the national territory. ▸ Death penalty ▸ Fundamental guarantees ▸ Ill treatment ▸ Judicial guarantees. 110, provides a model agreement concerning direct repatriation and accommodation in neutral countries of wounded and sick prisoners). (API Art. The goals of human rights law and humanitarian law overlap. The detaining power is bound to take all necessary sanitary measures to ensure the cleanliness and healthfulness of camps and to prevent epidemics. War is forbidden. This means that the detaining power must prove before a competent tribunal that an individual may not benefit from this status. Founded in 1863 as a charitable organization on the instigation of Henry Dunant, the ICRC has over the years maintained its character as a private institution anchored in Swiss law, with Swiss citizens making up its governing body. Neither the civilian population as such nor individual civilians or civilian objects shall be the target of military attacks. The definition of a prisoner of war is rarely applicable to internal armed conflicts. If they fall into enemy hands, they become prisoners of war who may not be punished for having directly participated in hostilities. These foreign volunteers should be granted prisoner-of-war status and have access to a tribunal to decide on their status, regardless of their nationality. ), wars do in fact occur, as we all know, despite their being outlawed by the Charter of the United Nations. Indeed, Common Article 3 to the four Geneva Conventions provides fundamental guarantees for all persons who do not, or no longer, participate in hostilities (in international or non-international armed conflicts). As a minimum, they will be afforded fundamental guarantees if detained, and due process of law will apply if they have to be prosecuted for violations of humanitarian law. protection of military victims of warfare, the protection of the civilian population against direct effects of hostilities, Protocols additional to the Geneva Conventions, Instructions to and training of the armed forces, Prosecution of persons who have committed grave breaches of international humanitarian law, International Committee of the Red Cross (ICRC). It must be respected in all circumstances, for the sake of the survival of human values and, quite often, for the sheer necessity of protecting life. Prisoners’ relations with the exterior are regulated by Articles 69 to 77. 45.2). A common feature of many such internal armed conflicts is the intervention of armed forces of another State, supporting the government or the insurgents. Certain prisoners of war accommodated in a neutral country can be directly repatriated following their treatment, under an agreement between the powers concerned, if: —their state of health has deteriorated so as to fulfill the conditions laid down for direct repatriation; —their mental or physical powers remain considerably impaired, even after treatment. These principles give expression to what the International Court of Justice has called in the Corfu Channel Case " elementary considerations of humanity " , and later " fundamental general principles of humanitarian law " (Case concerning Military and Paramilitary Activit ies in and against Nicaragua). Should any doubt arise as to whether any such person is entitled to prisoner-of-war status, he shall continue to have such status and, therefore, to be protected by the Third Convention and Additional Protocol I until such time as his status has been determined by a competent tribunal (API Art. Whereas the general principles mentioned above are common to the law on all types of armed conflict, there are two different sets of specific rules: one for international armed conflicts and another for non-international armed conflicts (or civil wars). The first treaty on the protection of military victims of warfare was drawn up and signed in 1864 in Geneva, on the initiative of Henry Dunant, at a Diplomatic Conference convened by the Swiss Government and attended by representatives of almost all States of that time. Premises of internment must provide every guarantee of hygiene and healthfulness and take into account the climate in the area (GCIII Art. They were adopted on 8 June 1977 and, since that date, they have been open for ratification or accession by all States party to the 1949 Geneva Conventions. The provisions include the fact that the detaining power must notify the authorities on which the prisoners depend of the capture, and it must allow the prisoners to receive and send letters—two to four per month, depending on the model card used. Spies may not benefit from prisoner-of-war status if they act without wearing the uniform of their armed forces (API Art. The latter provide, inter alia , for a system of formal complaints to a supranational body, and in some cases, to a supranational court. The conclusion is inevitable: there is a need for international rules which limit the effects of war on people and property, and which protect certain particularly vulnerable groups of persons. Its political implications, on the other hand, have not yet been fully understood. It can also be partially applied by way of Special Agreement in situations that do not amount to an international armed conflict. 1. Broadly speaking, IHL distinguishes between combatants who are deprived of their liberty in international armed conflicts, and benefit from prisoner of war status under the third Geneva Convention. Despite their overlapping, human rights law and humanitarian law remain distinct branches of public international law. 3. Article 110 sets forth the specific conditions governing such decisions. Dinstein, Yoram. Therefore, both combatants and civilians directly taking part in a conflict may claim prisoner-of-war status and the protection attached to it. Prisoners of war may not be deprived of their personal belongings (GCIII Art. If a party fails to do so, the State may be held responsible for a wrongful act. - Finally (and this is not a legal argument! A "Protecting Power" is a neutral State or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the enemy Party and has agreed to carry out the functions assigned to a Protecting Power under international humanitarian law. With armed conflicts taking place in so many parts of the Muslim world, the Islamic law of war is as indispensable as ever for the protection of civilians and other persons hors de combat. The whole body of law on prisoners of war, their status and their treatment is geared to wars between States (Third Convention). The two Protocols of 1977 which are Additional to theGeneva Conventions reaffirm and supplement the G… This holds particularly true for the obligation to make grave breaches of international humanitarian law (commonly called " war crimes " ) crimes under domestic law. Extract from "International Humanitarian Law : an introduction", Henry Dunant Institute, Geneva/Paul Haupt Publishers, Bern, 1993. . We shall rather discuss his second suggestion, namely the creation of humanitarian law, its substance and some of the problems encountered in its implementation. Goldman, Robert K. Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights under International Humanitarian and Human Rights Law . Hingorani, R. C. Prisoners of War. It tries to ascertain that capture and detention are not used as an occasion for revenge, ill treatment, or torture of prisoners of war to obtain information. International Committee of the Red Cross 19, avenue de la Paix 1202 Geneva, Switzerland T +41 22 734 60 01 F +41 22 733 20 57 … Any person who falls into the power of an adverse party shall be presumed to be a prisoner of war. In the absence of an agreement on a Protecting Power, the International … In the course of more than 125 years the ICRC has acquired considerable experience in persuading States and other parties to armed conflicts to respect h umanitarian law in international conflicts and in civil war. In situations of armed conflict detainees benefit from protection under a different set of rules depending on their legal status. During an armed conflict, an individual who directly participates in the hostilities and falls into the hands of the enemy will enjoy protection under the Third Convention until such time that his or her status is determined by a competent independent and impartial tribunal, according to the rule of law (GCIII Art. This is of course the case for all international law rules. Such evacuation must be carried out humanely and in conditions similar to those for the forces of the detaining power in their changes of station. Each respective prisoner of war upon interrogation is liable to provide professional information such as their first... 2. The lessons of Coventry, Dresden, Stalingrad or Tokyo were still to be drawn. In non-international armed conflicts, the combatant status is not officially recognized for members of non-state armed groups. Prisoners of war must be released and repatriated without delay after the cessation of active hostilities (GCIII Arts. British Medical Association. A certain number of guarantees are foreseen to regulate which persons—either combatants or civilians—are granted the status of prisoner of war. They are binding under all circumstances and no derogation is ever permissible. The Diplomatic Conference which met at Geneva from April 21 to August 12,1949 adopted four Conventions, commonly known as the Geneva Conventions of1949. - Chapter VII of the Charter allows member States the use of force in collective action to maintain or restore international peace and security. One may even go a step further and argue that States have an obligation to work for respect for those treaties by the parties to a given armed conflict. The role of the ICRC is even more important in such cases. 3. Should any doubt arise as to whether any such person is entitled to prisoner-of-war status, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal. Human rights treaties (supported by customary law) achieve this objective in a comprehensive way insofar as they cover almost all aspects of life. The specific category of protected persons is one that one applies in situations of international armed conflict, and applies to situations when the person is under the authority of the warring state. International Humanitarian Law provisions set out specific rules for the treatment of the Prisoners of War. Its funds are provided by voluntary contributions from States party to the Geneva Conventions, from National Societies and from private donors. The Third Geneva Convention defines the categories of persons who are entitled to prisoners of war status: —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. Conversely, human rights law covers several domains which are outside the scope of humanitarian law (e.g. With these two steps, Dunant hoped to ease the suffering caused by war. Those whose diseases or wounds warrant a direct repatriation are: To address the needs of direct repatriation or hospitalization in a neutral State, the parties to a conflict must set up Mixed Medical Commissions from the beginning of the conflict, which examine the state of the wounded and sick (Annex I of the Third Geneva Convention, relating to Art. Individuals who cannot benefit from this status are nonetheless protected by the minimum rights and fundamental guarantees to which all individuals are entitled under … Once prisoners of war are in the hands of the adversary, they are particularly vulnerable to acts of revenge, pressure, and humiliation. The core of international humanitarian law rules can be found in the four 1949 Geneva Conventions and their two 1977 Additional Protocols. Prisoners are also allowed to receive individual parcels or collective shipments containing, in particular, foodstuffs, clothing, medical supplies, and articles of a religious, educational, or recreational character, under the ICRC’s supervision. All prisoners of war must be treated alike by the detaining power (GCIII Art. The extended definition of armed forces and combatant includes: According to the 1977 Additional Protocol I, the status of prisoner of war is linked with the objective criteria based on direct participation in the conflict, rather that legal criteria based on the formal belonging to armed forces. This decision was confirmed by international jurisprudence and customary law. ▸. The basic daily food rations must be sufficient in quantity, quality, and variety to keep prisoners of war in good health and to prevent weight loss or the development of nutritional deficiencies. States cannot invoke the specific nature of the conflict, the difficulty to qualify it, the accusation of illegal participation in the hostilities, terrorism, or the nationality of the person concerned to refuse the application of Common Article 3 to persons who are placed under their power and effective control. To underline its special role States have granted the ICRC obevserver status at the United Nations General Assembly. In this context, the U.S. Supreme Court rejected in 2006 the argument used by U.S. authorities and ruled that Common Article 3 was applicable in the context of the war on terror to the Guantanamo detainees. Offenses punishable by the death penalty are limited. If put on trial they shall enjoy the fundamental guarantees of a regular judicial procedure. Washington, DC: American Society of International Law, Task Force Paper, 2002. A combination of international humanitarian law and action by the parties to an armed conflict, by the Red Cross and Red Crescent Movement and by the community of States, by non-governmental organizations and by all persons of good will is needed to bring about better protection for the vulnerable victims of warfare. Humanitarian law does the same in times of armed conflict. A person who takes part in hostilities and falls into the power of an adverse party shall be presumed to be a prisoner of war. New Delhi: Oxford & IBH, 1982. The third Geneva Convention provides a wide range of protection for prisoners of war. Fourth Convention : on the protection of civilian persons in time of war. From 1929 onward, women have enjoyed special protection under international humanitarian law. 26). In the same way, parties to armed conflicts have to allow relief operations in favour of those in need, be they detainees, especially vulnerable groups of civilians or the general population, including in occupied territories. However, in certain situations—namely, in non-international armed conflicts—the benefits of reciprocity are not always sufficient to prevent ill treatment. In order to spare the civilian population, armed forces shall at all times distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. It defines their rights and sets down detailed rules for their treatment and eventual release. 16). The Court's jurisdiction does not affect the obligation of States Parties to prosecute war criminals in their own domestic courts. The PDF of this page is being created. » Albert Camus. Usually they apply " across the front line " , i.e. The rules protecting prisoners … 45.1–3). On 17 July 1998, a Diplomatic Conference convened by the United Nations in Rome adopted the Statute of the International Criminal Court. The individual will be afforded protection under the Third Convention if he claims the status of prisoner of war, if he appears to be entitled to such status, or if the party on which he depends claims such status on his behalf by notifying the detaining Power or the Protecting Power [ICRC]. Why do we need international humanitarian law? The rules regulating the internment and detention of combatants during international armed conflicts are covered under the precise and detailed rules of humanitarian law concerning the treatment of prisoners of war … ▸ Civilians ▸ Detention ▸ Fundamental guarantees ▸ Judicial guarantees. CHAPTER THREE: LEGAL PROTECTION OF VICTIMS OF WAR 3.1 Combatants 31 3.2 Prisoner of War … Rules which are not understood by or remain unknown to those who have to respect them will not have much effect. 524-553. Moreover, in its approach to governments, the ICRC chooses the course of confidential diplomacy, an approach which incidentally enables its delegates in their contacts with belligerents to use words as tough and clear as circumstances require. All persons who are not covered by more favorable provisions are at least entitled to the fundamental guarantees and hence have the right to the respect for their person, their honor, their religious convictions and practices, and their right to be treated humanely, without any adverse distinction (GCI–IV Common Art. From 1974 to 1977 that conference worked out two new treaties of international humanitarian law, the Protocols additional to the Geneva Conventions . The main thrust of what is known as " Hague law " , with the various Hague Conventions of 1907 as its main expression, is to limit warfare to attacks against objectives which are relevant to the outcome of military operations. The message seems to be clear. In particular, they failed to cover a fundamental issue of international humanitarian law: the protection of the civilian population against direct effects of hostilities (attacks on the civilian population, indiscriminate bombardment, etc.). 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