Free Law Essays - Prisoners War Law
Historical Evolution Relating to Prisoners of War
Has the changing face of how war is conducted led to confusion in the application of the rules of international humanitarian law, and in particular, the treatment of captured belligerents
This paper considers how the shifting nature of war has in the past shaped the creation and application of International Humanitarian Law (IHL) relating to the treatment of captured belligerents.
The paper considers the impact of recent changes in the conduct of war on the application of the current rules of IHL, particularly as they relate to captured belligerents and whether the rules are adequate or need to evolve further to remain relevant or to avoid confusion in their current application.
In order to asses the current application of international humanitarian law to combatants, it is appropriate to first consider the historical evolution of the laws and customs concerning prisoners of war.
For most of human history, depending on the culture of the victors, combatants on the losing side in a battle could expect to be either slaughtered, to eliminate them as a future threat, or enslaved, bringing economic and social benefits to the victorious side and its soldiers. Typically, little distinction was made between combatants and civilians, although generally it appears that women and children were more likely to be spared.[1]
During the Middle Ages the practice of enslaving enemy prisoners began to diminish as slavery ceased to be the basis of the economic and social system. The practice was explicitly forbidden in Europe, however, only in 1179 by the Third Lateran Council, and only with respect to Christian prisoners.[2]
The slaughter of perceived enemies continued to be acceptable however, and for example, during the Crusades there are extensive records of large-scale atrocities and massacres committed against the Saracens.[3] During this period wars were conducted more as a private enterprise between kings, feudal landlords, city states and the Church than as wars between states in the modern sense.[4]
From the Middle Ages until the sixteenth century the most characteristic method of treating prisoners of war who were not slaughtered on the battlefield was to hold them in captivity in the hope of receiving a ransom. Ransom only applied to the aristocracy, with common foot-soldiers usually either being slaughtered on the battlefield once their army had suffered defeat or ignored and left to flee. Generally the state was not involved in the welfare of the prisoner; with the economic value he represented belonging to the individual who captured him.
During the sixteenth century the development of warfare into a conflict between states and standing professional armies gradually led to the prisoner of war being considered as a representative of the regular armed forces of an enemy state. As the ideas surrounding the armies of the nation state were being developed the immunity of the civilian population from capture became more common.[5]
An early example of this was the exchange of prisoners of war concluded between France and the Netherlands in 1673 and 1675, where young children and medical personnel were to be released without ransom, no matter their political importance or wealth.[6] Following the Thirty Years’ War (1618 - 1648), ideas surrounding reciprocity grew in importance.[7] There was an increasing need to restrict the casualties of professional military manpower which represented large amounts of both time and money.
This meant, inter alia, that the killing of defenseless combatants that no longer offered resistance was considered potentially costly.[8] This idea of reciprocal rights for captured combatants eventually developed into customary international law. These rights regarding the exchange and ransom of prisoners were codified at the Peace of Westphalia in 1648, at the end of the Thirty Years’ War.[9]
Over the course of the 17th and 18th century there are clear signs that humanitarian concerns for prisoners of war were on the rise. The evidence for this is found in a number of provisions regarding the treatment of captured prisoners. One such provision provided by Allan Rosas in his book ‘The Legal Status of Prisoners of War’ can be found in the instructions issued by Catherine II of Russia for the Mediterranean armament of 1778, article 7, which reads:
‘The Turkish prisoners of every captured vessel shall be treated with great humanity, provided with provisions and against every other need and not be allowed to lack for anything. Their cloths shall not be taken from them and not any more rigour be used with them than the inspection and safety of the vessel shall require. If there be wounded among them efforts shall be made to cure them and to furnish every help as they duty of humanity required. Finally, it is completely forbidden to hand them over or to sell them to any other country.’[10]
Perhaps the most significant treaty relating to prisoners of war during the period was the Treaty of Amity and Commerce of 1785 between Prussia and the United States. The treaty contained article 24 which was dedicated to the protection of prisoners of war.[11] Rosas claims that this article, despite it being part of a bilateral agreement, must be given considerable credit for ‘specifying and developing the European laws and customs relating to prisoners of war which had evolved during the eighteenth century.’[12]
Rosas goes on to say that article 24 of the treaty of Amity and Commerce 1785 illustrates the rise of the principle that the main reason for taking and keeping prisoners of war is not based on ideas of revenge or economic considerations, but rather the attempt to prevent them from participating in the war and avoiding unnecessary violence.[13]
It is important to note here that the law and practice outlined in the examples above were generally only applicable between the (primarily European) post-feudal ‘civilized’ states. According to Hume these ‘civilized’ nations had to suspend the observance of the laws of war when dealing with ‘barbarians’, because the rules then no longer served any purpose.[14]
The development of commerce, trade and industry, particularly during the 18th century led to a shift in the role played by bourgeoisie in the economic sphere. This growth in economic power led to a corresponding increase in political power, which had previously been limited to the aristocracy and the king.[15] During this period 18th century warfare between European monarchies now underwent a profound change.
The small professional armies of the post-feudal state, as in the American War of Independence faced by national armies who fought for ideology as well as money and fear of punishment.[16] According to Rosas, this resulted in a considerable escalation of warfare both in quantity and quality.[17] The trend within Europe toward stronger legal guarantees for the humane treatment of prisoners of war that can be seen in documents such as the Treaty of Amity and Commerce of 1785, was strengthened and developed during and after the French Revolution. The sources of this development continued to be national legislation and regulations and bilateral treaties.[18]
The decree adopted by the French National Assembly on 4th May 1792 was particularly important in this regard. It placed prisoners of war under the safeguard and protection of the nation. According to the decree, all rigour, violence or insult committed against prisoners of war would be punished as if they had been committed against a French citizen.
This decree also provided, inter alia, that wounded and sick prisoners should, on the condition of reciprocity, be treated with the same care as French soldiers.[19] It is important to note that while these developments reflected official attitudes of the ‘civilized’ world toward the treatment of prisoners of war, the actual treatment in practice did often not fulfill these standards.
The later half of the 19th century and early 20th century saw a more detailed codification of the previous, usually unilateral agreements, into multilateral conventions. The most prominent of these was the Hague Conventions of 1899 and 1907.[20] It should be noted that while there were non-European/western signatories such as China and the Russian Federation, the vast majority of participants in multilateral conventions during this period were still European.
Pressure for a codification of the customary law regarding prisoners of war that had slowly been developing over the previous centuries increased. Henry Dunant, whose vision helped lead to the creation of the Red Cross movement was particularly important in initiating this codification.[21] Apart from the Geneva Convention of 1864 concerning wounded and sick prisoners of war[22] the first multilateral convention dealing with prisoners of war which entered into force was the Hague Relations of 1899, renewed in 1907.[23]
The Hague Regulations contain in Section I, Chapter I (articles 1-3), provisions on the qualifications of belligerents, and Chapter II (articles 4-20) with provisions on the treatment and repatriation of prisoners of war.[24] The question of the definition of lawful belligerents and prisoners of war, an issue which will be dealt with in more detail later in the paper, was an important part of the Brussels Conference of 1874 and the Hague Conferences of 1899 and 1907.
According the Brussels Declaration of 1874 and the Hague Regulations of 1899 the following categories were, if captured, entitled to the status of prisoners or war (with the first three categories also covering lawful belligerents).
- members of regular armies
- members of militias and volunteer corps not forming part of the army but fulfilling the conditions of i) that the forces be commanded by a person responsible for his subordinates; ii) that they have a fixed distinctive emblem recognizable at a distance; iii) that they carry arms openly; and iv) that they conduct their operations in accordance with the laws and customs of war.
- members of so-called levies, i.e. civilians offering spontaneous resistance to invading troops, provided these levies respected the laws and customs of war. In 1907 the condition was added that the levies carry arms openly.[25]
These conditions were an attempt to create in the Hague Regulations a codification of what was already customary law or at least general practice before 1899.[26]
Other important developments were taking place in the 19th and early 20th century regarding the development of humanitarian law and the treatment of prisoners of war. Perhaps the most important of these was the official involvement of the International Committee of the Red Cross (ICRC) at the beginning of the 20th century with the welfare of able-bodied prisoners of war.[27]
The warfare of the period which included the First World War meant inter alia, an increase in the number of states participating in war, the number of combatants, and the length of wars as compared to the 19th century. Rosas claims that the impact of this on POW’s was significant, with the total number of prisoners captured in the First World War amounting to over five million.[28]
As a result of these factors important advances to protect prisoners of war were made in 1929 when a new Convention of Prisoners of War was adopted based on the ICRC draft convention of 1923.[29] This Convention led to further improvements of the treatment conditions of the wounded and sick in armed conflict as well as seeing greater participation from non-European nations.[30]
This new Convention replaced, as between contracting parties, the 1864 Geneva Convention and supplemented the rudimentary protection afforded by the 1907 Hague Regulations.[31] The 1929 convention was also important as it signified a movement away from a largely European based participation to a more inclusive global agreement.
Of the 47 participants, 25 were European and 22 were non-European, although it should be noted that the majority of the 22 non-European states were under the economic and political domination of France, the United Kingdom or the U.S. It should also be noted that the Soviet Union did not participate in the Conference and so was still governed by the Hague Regulations of 1907 at the onset of the Second World War.[32]
The escalation of war during the Second World War saw the overwhelming power of ideology when used in warfare. This predominantly involved the ideological differences between Japan, Germany, the Soviet Union and Western Democracies.
As had been the case in the 1929 Convention, the experiences of the war led the ICRC to include the question of prisoners of war on the agenda of items that required new legal instruments. ICRC submitted its proposals to the Geneva Diplomatic Conference of 1949, which adopted the present four Geneva Conventions of August 12, 1949.[33]
It was these actions (what actions?) during the Second World War and by the ICRC that led to the First and Third 1949 Geneva Conventions. These Conventions assured, according to Ingrid Detter that ‘the essence of the treatment of prisoners of war is that it must not constitute a sanction but a set of precautionary measures. It is as a consequence of such considerations that it appears reasonable that prisoners of war are humanely treated.’[34]
The Geneva Convention III (GCIII) had improved on the treatment of prisoners of war under the 1929 Convention by specifying the categories of persons who would be entitled to protection. These rather broad categories are:
- 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: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) 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.[35]
Of particular interest to this paper is the status of members of armed forces who profess allegiance to a government or an ‘authority’ not recognised by the detaining power. Such members would, in any event, fight ‘on behalf’ of a party to a conflict. There is ambiguity surrounding what link is required between independent forces such as resistance movements and parties to the Convention.
It should be noted that the Fourth Geneva Convention of 1949 was the first multilateral convention devoted to the status of civilians who have been interned or are otherwise in the power of an enemy state.[36]
During the Vietnam conflict questions were raised as to the combat status of the Force de liberation nationale (FLN) guerrillas. As the rules stood the FLN were unable to comply with IHL combatant requirements. There was increasing ambiguity as to Protocol I of 1977 effectively extents the qualitative treatment of prisoners of war by subjecting them, along with other persons, to certain fundamental guarantees. These guarantees imply that, inter alia, a prisoner of war must not be subjected to any act included in the catalogue of prohibited practices as per article 11.[37] It should be noted that the U.S. has not ratified Protocol I.
Despite these provisions the scope of protection of prisoners of war remains uncertain.
POW status in International Humanitarian Law
As has been noted the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (GCIII), sets out, inter alia, two main principles. The first is that a prisoner of war cannot be prosecuted and punished for merely having taken part in hostilities[38] and the second is that prisoners of war must be given humane treatment from the time they fall into the power of the enemy until their final release and reparation.[39]
As has been seen earlier in the essay, the status of prisoners of war is not however always clear. GCIII provides under Article 5(2) that when there is doubt as to the status of a captured person who has committed a belligerent act, their status should be determined by a competent tribunal.[40] The Convention does not however provide adequate provision for what the composition of tribunal should be, or specify the due process rights of a person facing status determination procedures.[41]
As Article 5(2) states, any doubt must be based on the question of whether a captured person belongs to any of the six categories listed in Article 4 of GC III. But what does ‘doubt’ mean? The Commentary to GC III[42] is not really helpful in showing how any doubt arises. Examples are limited to those to whom Article 5(2) applies: deserters, and persons who accompany the armed forces and have lost their identity card.
It does go on to say however, that ‘[t]he clarification contained in Article 4 should, of course, reduce the number of doubtful cases in any future conflict. It therefore seems to us that this provision should not be interpreted too restrictively’. It seems obvious that the Commentary wishes for as wide as possible interpretation of who constitutes a POW.
While Article 5(2) of GC III was an important development in 1949 for the protection of people taking part in hostilities, the rule has remained, according to Sandoz, Swinarski and Zimmerman ‘rather imprecise and at an embryonic stage’.[43] For example the problems of legal recognition of combatants of guerrilla warfare highlighted the insufficiency of Article 5(2). Article 45 of Protocol I was designed to remedy this insufficiency.
The objective of Article 45 of Protocol I was to establish procedures which would include more people as a prisoner-of-war status.[44] In effect, the provision lists the cases in which doubt regarding the status of a combatant must give way to a presumption of prisoner-of-war status: (1) if he claims that status; (2) if he appears to be entitled to such status; and (3) if the Party on which he depends claims such status.[45] Where doubt remains the question then goes to the competent tribunal.
While these series of presumptions in Protocol I are a development of Article 5(2) of GC III, in contrast to the latter provision the burden of proof lies more obviously with the captor. If a captured person does not receive POW status the commentary to Protocol I claims that ‘he runs a double risk: a) to be accused of acts which are not necessarily offences (in the case of simply participating in the hostilities); b) to be deprived of the procedural guarantees to which POW’s are entitled, even when the acts of which he is accused are punishable.’[46]
Given this, it is important for the accused to have the right to at least claim POW status and to have the question determined by a competent tribunal. This was the basis for Article 45(2) of Protocol I. The Rapporteur of Committee III indicated that this provision constitutes: ‘a new procedural right (...) for persons who are not considered prisoners of war and who are to be tried for a criminal offence arising out of the hostilities.
Such persons are given the right to assert their entitlement to prisoner-of-war status and to have that question adjudicated de novo by a judicial tribunal, without regard to any decision reached pursuant to paragraph 1. (...) The judicial tribunal may either be the same one that tries the offence or another one. It may be either a civilian or military tribunal, the term judicial meaning merely a criminal tribunal offering the normal guarantees of judicial procedure.’[47]
It should also be noted that any right to POW status could rely not only on actual circumstances, but on interpretation. The Commentary to Protocol I states that ‘[t]here is no doubt that in principle it is preferable to determine the status of the accused with regard to the protection of the Third Convention, i.e. to make a decision regarding his status as a combatant and prisoner of war, before deciding on the merits of the case.’[48]
This attempted clarification was done as, due to the wide variety of national judicial procedures, a concrete single rule was thought unfeasible. The Rapporteur argued that ‘it should be so decided if at all possible, because on it depend the whole array of procedural protections accorded to prisoners of war by the Third Convention, and the issue may go to the jurisdiction of the tribunal.’[49]
The relationship between IHL and Human Rights Law
Yasmin Naqvi points out a key problem of international humanitarian law when she states, ‘international humanitarian law is silent as to what due process rights are applicable to prisoner-of-war status determination procedures.’[50]
She goes on to say that ‘as human rights law operates at all times, including situations of armed conflict, it may be argued that basic human rights standards guaranteeing the due process rights of persons in any form of detention should apply to the status determination procedure.’[51]
While international humanitarian law generally operates as lex specialis during times of armed conflict, fundamental due process rights are also contained in Article 75 of Protocol I and in the fair trial guarantees of Article 3 common to the Geneva Conventions, both of which are recognized as representing customary law.[52]
Additional Protocols I and II to the Geneva Conventions represent a degree of merger of international humanitarian law with international human rights law, in that they incorporate detailed and explicit human rights guarantees, drawn directly in some instances from the International Covenant on Civil and Political Rights.[53]
As a result, the Additional Protocols have blurred the distinction between what was traditionally seen as international humanitarian law, that emphasized generic rights determined according to the status of certain participants or other groups caught up in an armed conflict, and the more individual based rights, which form the core of international human rights law.
The question remaining is whether these rights are applicable to status determination procedures or exclusively to criminal prosecutions arising out of participation in hostilities. The Inter-American Commission of the Organization of American States (OAS) has recently given its opinion on the matter in answer to a Request for Precautionary Measures in regard to the Detainees in Guantanamo Bay, Cuba.[54]
The Commission firstly noted that in situations of armed conflict, the protections under international human rights and humanitarian law may complement and reinforce one another, ‘sharing as they do a common nucleus of non-derogable rights and a common purpose of promoting human life and dignity’.
The Commission found that where persons find themselves within the authority and control of a State and where circumstances of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law.
Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain entitled at least to the non-derogable protections under international human rights law.
Therefore, according to the Commission, ‘a competent court or tribunal, as opposed to a political authority, must be charged with ensuring respect for the legal status and rights of persons falling under the authority and control of a state.’ The Commission, noting that ‘doubt exists as to the legal status of the detainees’, requested the United States to take the ‘urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent authority’.[55]
The Changing face of war - The status of captured Taliban and Al-Qaeda fighters
War, over the past 20 years has undergone radical change. Far from the open battlefields of the past, today’s battlefield might entail suicide bombers, roadside explosives triggered from a distance, kidnappings, beheadings and uranium tipped artillery shells. Arnold Krammer claims that this new face of warfare has not been foreseen and therefore the creating of new rules to deal with the new circumstances has been ‘bewildering.’[56]
In the ‘War against Terror’uniforms are usually worn by one side only’the Western armies are identified by nation and rank, while the ‘Insurgents’ are indistinguishable from the general population. Krammer goes onto say that ‘[I]t appears that little effort is made by either side to understand the enemy’s culture, and each side’s unfathomable culture, religion and language only serve to heighten the perception of their danger.’[57]
Battlefield conditions change as conflicts widen to engulf entire regions, often driving moderates and nonviolent nationalist into more radical stances and stimulating new recruits in distant lands. With this changing in the conduct of war has come a new consideration of the treatment of POWs.
Perhaps the most well documented example of the challenges the current Geneva Convention faces in regard to POWs is that of the U.S. in its ‘war on terror’.
On the 7th of February 2002 the White House announced that GCIII applied to the Taliban by not to members of Al Qaeda, but that, despite this the Taliban did not qualify as POW’s under the terms of the Convention.[58] This announcement caused a considerable amount of unease within the international legal community[59] which almost completely agreed that under Article 5(2) GCIII , members of the Taliban forces were presumed to enjoy POW status, as long as a competent tribunal had not determined otherwise.
There was however, according to Luisa Vierucci, agreement that Al Qaeda members could be denied POW status as they did not appear to meet the GCIII combatants’ requirements for organized armed groups.
Vierucci goes on to say that the majority view was that even those who were not entitled to POW status remain protected by the guarantees enshrined in the 1949 Fourth Convention on the protection of Civilians in war, such as humane treatment as well as under international human rights law.[60]
There are three main arguments used to claim that certain groups such as Al Qaeda and the Taliban do not qualify for protection under GCIII. Firstly, and this is an argument used by the U.S. Department of Justice, it was claimed that the U.S. President has the ‘constitutional authority’ to determine the applicability of the GCIII to both Al Qaeda members and the Taliban.
Domestically, under the U.S. Constitution this might be applicable, but only as long as any presidential determination is consistent with relevant international rules.[61] POW status arises ipso facto due to the existence of the combatants’ requirements, as per Article 4 GCIII. Vierucci claims that due to Article 4(1) GCIII and inline with the majority of legal literature, members of the armed forces are not explicitly required to meet the four conditions set forth in article 4(2) in order to receive POW status.
When ambiguous cases arise, as has been seen, only a competent tribunal may determine the POW status of each detainee. It would therefore appear unlikely that an administrative authority, even the president himself may alone determine the POW status of a detainee. Indeed Ray Murphy believes that Article 4 of the GCIII is at the heart of controversy surrounding the status of captured Taliban and Al Qaeda fighters currently detained by the U.S. as it defines the people who are entitled to prisoner of war status.[62]
As has been noted, the Geneva Conventions are however often ambiguous. However if Article.4 is interpreted broadly the key question that needs to be asked is whether the Taliban and Al-Qaeda fighters distinguish themselves from Afghan civilians. Murphy claims that the clear organizational and command structure of both groups favour their categorization as prisoners of war and as has been noted the category of fighter entitled to claim the privilege of POW status was expanded in 1977 Additional Protocol I.
Secondly it has been suggested that Afghanistan at the time of the U.S. led invasion was a failed state, which did not exercise full control over territory and people and was not recognized by the international community. This therefore meant that in the eyes of the U.S. the Taliban was not a government but rather a terrorist organization, which in-turn meant that the Geneva Convention was not applicable as it only binds states. There are several reasons this argument has been rejected as unacceptable.
In regards to the quantity of territory held by the Taliban prior to invasion it is widely accepted that they controlled over 90 per cent of Afghan territory and was therefore according to Vierucci, the de facto government of Afghanistan.[63] Other examples of de facto recognition can be seen in Security Council resolutions addressed to the Taliban, as well as the ultimatum that the U.S. gave the Taliban following the September 11, asking them to deliver Osama Bin Laden to them.[64]
A third point made (this was in fact a recommendation of the U.S. Department of Justice) was that the war against terrorism is a new kind of war that is not fought between nations that adhere to the laws of war that from which the foundation of GCIII is set but rather it is a war against terrorist organizations whose main aim is to commit atrocities against civilians.
It is argued that this new war renders the Geneva Convention obsolete.[65] It was claimed that the ability to quickly obtain information from captured terrorists and their sponsors and the need to try terrorists and their sponsors and ‘the need to try terrorists for war crimes such as wantonly killing civilians’ have become stringent priorities which justify deviation from the relevant GCIII provisions.’[66] Despite these recommendations the White House decided that GCIII applied to the Taliban but not Al Qaeda, but that because of a lack of meeting criteria 4(2) the Taliban would not be granted POW status under GCIII.[67]
Reciprocity
As has have seen earlier in this paper, historically, the idea of reciprocity was an important part of the development of International Humanitarian Law. The importance of reciprocity in international law still arises in today’s world. For example some American’s might ask, why should the U.S. restrain itself in detaining, interrogating, and targeting terrorists when they show it no similar forbearance? Is it fair to expect one side to fight by more stringent rules than the other, placing itself at disadvantage? Is the disadvantaged side then permitted to use the tactics and strategies of its opponent? If so, then America’s most controversial counterterrorism practices are justified as commensurate responses to indiscriminate terror.[68]
Indeed Lee Casey and David Rivkin claim that as Al Qaeda and its allies make no pretense of compliance with either the Geneva Conventions or customary laws of was, granting captured Al-Qaeda members manifold rights of POSs would be foolhardy and irresponsible.[69] The solution that Casey and Rivkin suggest is that the U.S. should adopt reciprocity rule vis-a-vis Al-Qaeda.
As can be seen when examining the history of IHL regarding POWs this argument does have precedent. As has been noted the 1899 Hague Convention with Respect to the Laws and Customs of War on Land provided that the regulations annexed thereto were ‘only binding on the Contracting Parties in case of war between two or more of them.’[70]
To conclude that no state observes rules which its enemy states do not comply with may be true at first glance, but it is not valid in every respect, as a difference must be drawn between treaty obligations and compliance in state practice.[71]
Need to tie in how IHL has traditionally been based on practical as well as compassionate principles...
Whether these are challenges that can be met or if as Sir Hersch Lauterpacht stated ‘[I]f international law is the weakest point of all law, then the law of war is virtually its vanishing point.[72]
Conclusion
This paper has sought to examine how the basis of International Humanitarian Law relating to Prisoners of War has historically reflected and responded to the changing nature of how war has been conducted. The speed of this evolution has in recent times increased as a wider variety of ‘belligerents’ have been involved in combat.
The combat and therefore combatants that IHL was originally created to monitor and protect now includes stakeholders that are no longer solely from a club of mostly European nations, but incorporates a huge spectrum of cultures. As the paper has explored, the nature of war has changed, and with it the nature and conduct of the combatants.
International humanitarian law texts rarely admit it, yet without reciprocity in practice those texts may be of little avail, for not all belligerents will be so saintly as to observe restraint and to honour humanitarian obligations in the face of an enemy’s persistent refusal to do so. The most effective actual working engine of international humanitarian law observance, far from being established or even mentioned in the Geneva Conventions . . .works in fact in apparent defiance of them. Reciprocity is its name. Reciprocity may roughly back humanitarian principle, whether humanitarians or principle ask it to or not.
Geoffrey Best, War and Law since 1945, 1994
[1] Rosas, A (1976) The Legal Status of Prisoners of War Academia Scientiarum Fennica pp.44-45
[2] Ibid pp.47
[3] Draper, G (1965) The Interaction of Christianity and Chivalry in the Historical Development of the Law of War, IRRC, pp.3-23
[4] Fuller, J (1946) Armament and History. A Study of the Influence of Armament on History from the Dawn of Classical Warfare to the Second World War. London pp. 60-79
[5]
[6] Rosas (1976) op.cit pp.52
[7] Adams S, Parker, G (1997) The Thirty Years’ War Routledge
[8] Ghei, N Parisi, F (2003) The Role of Reciprocity in International Law Cornell International Law Journal vol.36, no.1 pp.93-123
[9] Pipeline.com The Thirty Years War [online] http://www.pipeline.com/~cwa/TYWHome.htm viewed 27/06/09
[10] Rosas, A (1976) op.cit pp.56
[11] Yale Law School Treaty of Amity and Commerce Between His Majesty the King of Prussia, and the United States of America: September 10, 1785 [online] http://avalon.law.yale.edu/18th_century/prus1785.asp viewed 27/06/09
[12] Rosas (1976) op.ct pp.57
[13] Rosas ibid pp.57
[14] Hume, D (1957) Enquiries concerning the Human Understanding and concerning the Principles of Morals Oxford University Press pp.187-188
[15] Rosas op.cit pp.59
[16] Fuller, J (1962) The Conduct of War 1789-1961. A Study of the Impact of the French, Industrial and Russian Revolutions on War and Its Conduct London pp.26-41
[17] Rosas op.cit pp.59
[18]
[19] Verzijl, J, Heere, W, Offerhaus, H (1978) International Law in Historical Perspective Brill Archive pp.96
[20] Detter, I (2000) The Law of War Cambridge University Press pp.62-63
[21] ICRC Henry Dunant [online] http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/57JNVQ viewed 28/06/09
[22] MEMO Geneva Conventions [online] http://www.memo.fr/en/article.aspx?ID=THE_GUE_017 viewed 28/09/09
[23] Detter op.ct pp.62-63
[24] Rosas op.ct pp.70
[25] ICRC Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899 [online] http://www.icrc.org/ihl.nsf/FULL/150?OpenDocument viewed 28/06/09
[26] Rosas op.cit pp.72
[27] The ICRC had assumed certain tasks relating to the wounded and sick since 1863
[28] Rosas op.cit pp.75
[29] Detter op.cit pp.326-327
[30] ICRC Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929 [online] http://www.icrc.org/IHL.NSF/WebSign?ReadForm&id=305&ps=P viewed 06/07/09
[31] Rosas op.cit pp.76
[32] Shindler, D. Toman, J (1973) The Laws of Armed Conflicts. A Collection of Conventions, Resolutions and Other Documents. London pp.245
[33] Rosas op.cit pp.79
[34] Detter op.ct pp.327
[35] ICRC Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 [online] http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68 viewed 29/06/09
[36]
[37] To see article 11 go to link: http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument article 11.
[38] Art. 99 of GC III provides: ‘No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by International Law, in force at the time the said act was committed.’
[39] Articles 12-16 set forth the general protection to be given to prisoners of war by the Detaining Power,
including the requirement of humane treatment at all times (Art. 13), respect for their persons and their honor (Art. 14) and the principle that there must be no adverse distinction in treatment based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria (Art. 16). See also Art. 5(1) GC III.
[40] Art. 5(2) Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
[41] Naqvi, Y Doubtful prisoner-of-war status [online] http://icrc.org/Web/eng/siteeng0.nsf/htmlall/5FLBZK/$File/irrc_847_Naqvi.pdf viewed 30/06/09
[43] Sandoz, Y. Swinarski, C. Zimmerman, B. (1987) Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June1977 Martinus Nijhoff Publishers Geneva pp.544
[44] Ibid pp.146
[45] ibid
[46] Commentary to Protocol op.cit p.544
[47] Ibid pp.433
[48] Ibid pp.560
[49] Ibid pp.554
[50] Naqvi op.cit
[51] Ibid
[52] Naqvi, Y Doubtful prisoner-of-war status [online] http://icrc.org/Web/eng/siteeng0.nsf/htmlall/5FLBZK/$File/irrc_847_Naqvi.pdf viewed 30/06/09
[53] Murphy op.cit pp.263
[54] Organization of American States, Washington (2002) Detainees in Guantanamo Bay, Cuba: Request for Precautionary Measures [online] http://www.humanrightsnow.org/oasconventionnonguantanamodetainees.gtm viewed 07/07/09
[55] ibid
[56] Krammer, A Prisoners of War Greenwood Publishing Group pp.64
[57] Ibid pp.65
[58] Vierucci, L (2004) Is the Geneva Convention on Prisoners of War Obsolete Journal of International Criminal Justice Vol.2 pp.166
[59] Sassoli, M (2004) The Status of Persons Held in Guantanamo under International Humanitarian Law Journal of International Criminal Justice Vol.2 pp.96-106
[60] Vierucci op.cit pp.166
[61] Vierucci, L (2004) Is the Geneva Convention on Prisoners of War Obsolete Journal of International Criminal Justice Vol.2 pp.166
[62] Murphy, R. (2003) Prisoner of War Status and the Question of the Guantanamo Bay Detainees human rights law review vol.3, no.2 pp.262
[63] Vierucci op.cit pp.868
[64] ibid
[65] US Department of Justice, Memorandum for William J. Haynes II Re Application of Treaties and Laws to al Qaeda and Taliban Detainees [online] http://msnbc.msn.com/id/5025040/site/newsweek viewed 07/07/09
[66] Vierucci op.cit pp.869
[67] Aldrich, G (2002) The Taliban, Al Qaeda, and the determination of illegal combatants The American Journal of International Law vol.96 no.4 pp. 892
[68] Osiel, M (2009) The End of Reciprocity: Terror, Torture, and the Law of War [online] http://assets.cambridge.org/97805217/30143/frontmatter/9780521730143_frontmatter.pdf viewed 08/07/09
[69] Casey, L. Rivkin B Rethinking the Geneva Conventions in The torture debate in America pp.204
[70] Art.2 Convention (II) with Respect to the Laws and Customs of War on Land 1899
[71] McCormack, T. Instituut, A. McDonald, A (2003) International humanitarian law after September 11 in Yearbook of International Humanitarian Law - 2003 pp.61
[72] Hays Parks, W (1990) Air War and the Law of War Air Force Law Review Vol.1 no.2
