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Understanding Prisoners of War Status

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19 views4 pages

Understanding Prisoners of War Status

Uploaded by

Faith Montalban
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

CRI 166 Guide for Teachers

Prepared By: Faith E. Montalban


Module 6
Suggested Date of Discussion:
Topic(s):
1. Prisoners of War

Prisoners of War - A combatant who falls into the hands of an adverse party to a conflict in
the course of an international armed conflict is a prisoner of war. Individuals who fall into the
hands of the enemy during an armed conflict are protected under humanitarian law.

Notes:
● Fallen into the hands of an adverse party/into power: This implies that the Detaining
Power exercises some level of physical control or restraint over the person, and
that the person is no longer willing or able to participate in hostilities or defend
themselves. It would thus not include persons who merely reside or operate in a
territory controlled by a belligerent Party.

● The term ‘enemy’ or ‘adverse party’ refers to the enemy State, namely the adversary
State during an international armed conflict arising between two or more States.

It is important to determine whether a person falls under the meaning of “prisoner of war” to
know if they are protected by humanitarian laws (IHL) if they are captured by an enemy country.

Who are Prisoners of War?

According to Article 4 of the Geneva convention, the following are considered to be Prisoners of
War: (6)

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.

The expression ‘members of the armed forces’ refers to all military personnel under a
command that is responsible to a Party to the conflict. ‘Party to the conflict’ means one of the
States involved in the war.

Q. Does this involve reservists of the military?


It depends on the national law of the person but if considered, a distinction needs to be made
between reservists on active duty, who will be considered members of the armed forces for the
purposes of Article 4A(1), and those who are not on active duty, who will not be so considered
as prisoners of war.

Q. What about spies?


It is a longstanding rule of customary international law that combatants captured while engaged
in espionage are not entitled to prisoner-of-war status.
CRI 166 Guide for Teachers
Prepared By: Faith E. Montalban
Q. What about deserters?
Persons who desert remain members of the armed forces and are therefore entitled to
prisoner-of-war status if they fall into enemy hands.

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
territory, even if this territory is occupied, provided that such militias or volunteer corps, including
such organized resistance movements, fulfill the following conditions:

Notes:
Article 4A(2) deals with militia, volunteer corps or organized resistance movement that do not
form part of the armed forces (like Article 4A(1) but represent and fight for the country.
Provided that the following conditions are met:

● That of being commanded by a person responsible for his subordinates;

Notes:
Serves a protective purpose, as a structured hierarchy has the capacity to maintain internal
discipline and to ensure that operations are planned, coordinated and carried out in a manner
consistent with humanitarian law. It also encourages accountability by commanders for
the conduct of their subordinates.

● that of having a fixed distinctive sign recognizable at a distance;

Notes:
'distinctive' - it should enable the identification of the person as belonging to the militia or
volunteer corps. For that purpose, the sign must be exclusive to that group, in a way that
effectively distinguishes it from the civilian population, it must be the same for all members
of the group and it must have some degree of consistency over time.

'recognizble at a distance' in the event they are seen, they are not mistaken for civilians,
nor for members of the enemy army.

Examples: the wearing of a uniform is the simplest example of satisfying this requirement. Other
examples include wearing a particular piece of clothing or insignia, provided that the piece of
clothing or insignia is worn consistently, similar to a uniform, fulfils the other conditions
mentioned above and effectively distinguishes the wearer from the civilian population.

● that of carrying arms openly; and

Notes:
Same as second condition, to be cognizable as a combatant and not a civiian.
CRI 166 Guide for Teachers
Prepared By: Faith E. Montalban
● that of conducting their operations by the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not
recognized by the Detaining Power.

Notes:
Other armed forces from countries even if they are not from the States involved in the war.

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 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 from more favorable
treatment under any other provisions of international law.

Notes on 4th and 5th:


Subparagraphs 4A(4) and (5) concern two categories. These civilians are the only two
categories of persons who are entitled to prisoner-of-war status but not entitled to
combatant status, immunity or privileges. Their inclusion recognizes that their proximity to
the armed forces increases the risk of their being interned with combatants, and makes
explicit the protective framework that applies to them.

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.

If you need to read further, check the commentary of the ICRC on Article 4 of the Geneva
Convention:
[Link]
68

All those falling under the definition of Prisoners of War (POW) shall enjoy the protection of the
present Convention (Geneva Convention) until their status has been determined by a competent
tribunal.
CRI 166 Guide for Teachers
Prepared By: Faith E. Montalban
Detaining Power - the state/government that detains, holds, or incarcerates those who are
alleged to have committed an offense against this jurisdiction or others (which for whatever
reason have not been or will be proven not to be fit to process the detainees in question).

ex. During the war between China and Japan, Sammy was a military personnel fighting on
behalf of her country China. When China lost, Sammy along with other soldiers were captured
by the soldiers of Japan. In this case, Sammy is a prisoner of war and the Detaining Power is
Japan because they are the ones holding the soldiers captive.

The rest of the articles are rights of Prisoners of War and are self explanatory :)

Common questions

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War correspondents and supply contractors are granted a protective framework that recognizes their proximity to combat scenarios, increasing their risk of internment, but they are not given combatant status, immunity, or privileges. They receive prisoner-of-war status due to the critical nature of their roles and the potential for misunderstanding their participation in hostilities, which differentiates them from traditional combatant protections .

The Geneva Convention accounts for inhabitants of a non-occupied territory who spontaneously take up arms against an invading force by granting them prisoner-of-war status, provided they carry arms openly and conduct operations according to the laws and customs of war. This provision reflects the need to protect civilians engaged in defense activities under extreme circumstances when regular armed unit formation is not feasible .

Fixed distinctive signs play a critical role in distinguishing combatants from civilians by providing a visual marker that sets combatants apart. This identification aids in reducing accidental targeting of civilians, helps enforce the conduct of hostilities according to humanitarian principles, and ensures compliance with rules of engagement. The distinctive sign must be exclusive, consistently used, and recognizable at a distance to effectively fulfill this role .

To be recognized as prisoners of war under the Geneva Convention, members of militias or volunteer corps, including organized resistance movements, must meet several conditions: they must be commanded by a person responsible for their subordinates, have a fixed distinctive sign recognizable at a distance, carry arms openly, and conduct their operations in accordance with the laws and customs of war .

International law provides that deserters captured during an armed conflict remain members of the armed forces and, thus, are entitled to prisoner-of-war status. This categorization underscores their ongoing affiliation with military forces despite their desertion, affirming legal protections under international humanitarian law consistent with Article 4 of the Geneva Convention .

The Geneva Convention differentiates between active-duty military reservists and those not on active duty by granting prisoner-of-war status to reservists on active duty as they are considered members of the armed forces. Reservists not on active duty are not granted this status .

The structured command hierarchy serves a protective purpose by maintaining internal discipline and ensuring that operations are planned and executed according to humanitarian law. This hierarchy promotes accountability among commanders for the conduct of their subordinates, facilitating adherence to international laws and customs of war necessary for prisoner-of-war recognition under Article 4 of the Geneva Convention .

Carrying arms openly is crucial for militia members to be recognized as lawful combatants because it allows them to be distinguished from civilians, reducing the risk of being targeted as unlawful combatants. This visibility is intended to ensure combatants conduct themselves in a manner that adheres to the laws of war, preventing them from having an element of surprise that could unjustly threaten civilians .

The principle of humanity ensures that all individuals captured during armed conflict are treated with respect and dignity, offering protections under international law even during hostilities. The Geneva Convention's definition of prisoners of war reflects this principle by specifying categories and conditions under which combatants and certain civilians are afforded these protections, demonstrating a commitment to minimizing suffering and safeguarding human rights during conflict .

Spies are not entitled to prisoner-of-war status under international law when they are combatants engaged in espionage at the time of capture .

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