Protection of PoWs and Civilians in International Armed Conflicts

1. Protection of PoWs and Civilians in International Armed Conflicts Daniel Cahen ICRC, Legal Advisor to the Operations Oslo, 11 October 2007

2. Protection of persons in the power of the enemy (Geneva law) • Three categories : • Wounded, sick and shipwrecked • Prisoners of war • Civilians

3. Protection of Prisoners of War - General • Starting point is the fundamental distinction between combatant and civilian • Combatant has a right to participate in hostilities • See GC III and AP I (a43 to a47) for details • Special cases – spies and mercenaries

4. Combatant Status • All members of the armed forces, except religious and medical personnel, are combatants and therefore may participate in hostilities • This includes organized groups and units under a command responsible to the Party, which are subject to discipline assuring respect for IHL • A combatant loses his status and also to be a PoW after capture, if he does not: • Wear a uniform or a distinctive sign • Wear arms openly while taking part or preparing for an attack

5. Combatant Status • These tests were modified in API to include guerilla activities (a44) • So where a soldier, due to the nature of the hostilities, cannot distinguish himself from the civilian population, and in those situations he carries his arms openly, • In each military engagement and • during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate

6. Combatant Status • However, if he contravenes this rule, he loses his status of combatant, and may be tried for any criminal actions under criminal law.

7. Combatant Status • Medical personnel and religious personnel are not given PoW status (eg GC II a33) • Thus, when captured have preferential treatment, and remain in the service of their nationals. If their services are not needed, they are repatriated

8. Combatant Status, special cases • Spies (API a46) • If caught while engaging in espionage, then no PoW status • Not a spy if in uniform while gathering information • Need act of false pretences or deliberately clandestine manner, but must be caught while doing so to lose PoW status. • Note – Spying itself is not illegal, but if loss of PoW status, then possibility to be subjected to the laws of the detaining State on spying

9. Combatant Status, special cases • Mercenaries (API a47) : • Do not automatically lose their PoW status, this is up to the detaining state, which is unusual in IHL. Do not have the "right" to be a combatant or PoW • Hard test to satisfy : recruited, in hostilities, for private gain, not national, not in armed forces of state in conflict, and not been sent on official duty

10. Combatant Status • Being a combatant gives the right to participate in hostilities • However, it also means that you are a legitimate target • PoWs can be prosecuted for war crimes, pursuant to domestic legislation and IHL, and do not lose their PoW status unless for a question relating to distinction (a44 API)

11. PoWs : Captivity • Principle – PoW are not criminals and are held by the Party to the conflict. Entitled to humane treatment, women benefit from treatment related to their gender • Interrogation : not required to give anything but name, surname, rank, date of birth and serial number, or equivalent information (GCIII a17). Failure to give information can lead to reduction in privileges

12. PoWs : Captivity • Conditions of internment, long list of elements (art. 21 to 48 of GC III) : • Right to food, water, religious practices, medical care, treated concordant to rank • Labour – authorised to use PoW to work, but not officers, and not of a military character/dangerous, paid for work. • Disciplinary offences established, GCs to be affixed in the camp. Use of weapons against those who try to escape only in last resort after warning, no criminal offence for those who try to escape • Relations with outside world, family: he has the right to send and receive letters, with a right of censor.

13. PoWs : End of Captivity • Wounded and Sick – gravely wounded repatriated during conflict. Test is whether can’t be cured in one year, or incurable sickness which is deteriorating • General principle, kept for the duration of active hostilities (GC IIIa118), then repatriated. • Exception, those prosecuted/sentenced who stay until end of proceedings/sentence (GCIII a119) • Non-Refoulement and forced repatriations issues : ICRC position

14. PoWs : Captivity, Role of the ICRC • Right to visit PoWs, article 126 GCIII • interviews without witnesses • exchange of family news • repeated visits • exception is imperative military necessity, only as an exceptional and temporary nature.

15. Protection of the Civilian Population • Source : GC IV, also in API • GC IV: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” • Regulates different situations, mostly : • Persons of enemy nationality on territory • Persons in occupied territory • Exceptions – nationals of neutrals where diplomatic presence and persons benefiting from other GCs, eg GCIII

16. Protection of the Civilian Population • General Protection : see a13 to 26 of GC IV, and APIa75 • Particular protection given to: • Medical establishments • Old and infirm, pregnant women, children • Neutralised zones intended to protect: • Wounded and sick combatants or non-combatants • Civilians not taking part in hostilities and military work

17. Protection of the Civilian Population • Fundamental guarantees API a75 mini human rights convention, including fair trial rights • Article 27 GC IV is key: “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity” • However, parties to conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

18. Protection of the Civilian Population • Prohibitions : • Collective punishments • Pillage • Reprisals • Taking of hostages

19. Protection of the Civilian Population, Occupation • Difference between occupation and IAC • GC IV and Hague Regulations • Must leave economic, legal, social structures, but can alter laws to ensure order and to implement the GCs, • however UNSC 1483 re Iraq, debate about human rights issues and reform to the system. • Prohibition of transfers of protected persons out of OT (a49 GC IV) • Prohibition of transfer of own population (a49 GC IV)

20. Protection of the Civilian Population, Internment • Civilian internees: Possible for OT and IAC but GC IV a42, a78: • internment or placing in assigned residence of protected persons only if the security of the Detaining Power makes it "absolutely necessary" • Internment on an individual basis, subject to reviews (GCIV a43) • Based on PoW provisions, including sending / receiving family news, ICRC has right to visit in (GC IV a143)

21. Protection of the civilian population against the effect of hostilities Combatants • Have the right to directly participate in hostilities (art. 43 § 2 API) • Can be directly targeted • Are entitled to POW status in case of capture • Cannot be prosecuted for their participation; Civilians • Do not have the right to directly participate in hostilities • Are protected against the effect of hostilities (art. 51 § 1 AP. I) • Lose their immunity against attack if (and for such time as) they directly participate (art. 51 § 3 AP. I) • Can be prosecuted for a mere participation in hostilities;

22. Summary International Armed Conflict Combatants (all persons who have the right to engage in DPH including participants in a levée en masse) Civilians (all persons who are neither members of the armed forces nor participants in a levée en masse) Currently engaging in DPH (not protected) Currently not engaging in DPH (protected)