Open Access Research Article
CRITICAL EVALUATION OF PRISONER OF WAR UNDER IHL By: Palvi Mehra
Published Paper
Article Details
Authored By: Palvi Mehra (11814647)
BA-LL.B (Hons),
Student Lovely Professional University
Phagwara(Punjab)
Abstract
This study aims to provide a comprehensive
picture of prisoners of war.
Following the World Wars, which caused considerable
confusion and the deaths of many innocent people, the need for established norms in this area became even more
pressing. International standards must be
changed to prevent future violations of basic human rights. Following that, the Geneva Conventions were created for various time periods. This study
article also seeks to clarify why the
Geneva Conventions must be updated from time to time, as well as the treaty's
key sections. The facts of the
Indo-Pak conflict are thoroughly investigated, as is their relevance to the convention's rules. Finally, there is the
infamous case of Wing Commander Abhinandan of the Indian Air Force.
Keywords Geneva Convention, Prisoner of war, Human rights,
international law and Humanitarian law.
Introduction
“Everyone has the right of freedom and to
live free and no one has the right to cage anyone for any reason “ -A Noble Of Ww-II
Any individual kidnapped or detained by a belligerent
state during a conflict is referred to as a prisoner
of war (POW)1. In the strictest sense, it refers to members of
formally constituted armed forces;
nevertheless, a broader meaning has included guerrillas, civilians who publicly
take up weapons against an adversary,
and non-combatants linked with a
military force. Fighters who fall
into the clutches of their opponent have been held hostage for the majority of
human history. Such individuals are
known as prisoners of war in international armed conflict and have historically been particularly prone to
mistreatment due to their association with the enemy and the fact that their detention
generally happens against
the backdrop of wartime enmity.
Fortunately, the position of prisoners of war has changed dramatically
through time, and we are no longer in
a period when captured troops were either executed or enslaved. Efforts were
made in the nineteenth
century to improve the treatment of prisoners of war.
Then, in 1929, states adopted the Geneva
Convention on Prisoners of War, expanding on the agreements made between countries to safeguard POWs during World
War I. It was the first multilateral
convention targeted primarily at defending prisoners of war, and it served as
the forerunner to the 1949 Third
Geneva Convention on Prisoners of War (GC III). During the Second World War, the 1929 Convention
proved efficient in protecting captured fighters in the hands of States that were party to it, therefore
the new GC III intended
to reinforce and universalize
that protection in 1949. The Third Geneva Convention was a watershed moment in the history of prisoners of war,
establishing a firm legal foundation for their protection. Today, every government in the world is a
signatory to the Third Geneva Convention, which also bestows a particular mission on the ICRC, tasked with ensuring
the dignity and well-being of prisoners
of war2.
1 Ramin Mahnad, Prisoners Of War,
INTERNATIONAL COMMITTEE FOR RED CROSS (June. 01, 2022, 10:25
2 Geneva Convention Relative
To The Treatment Of Prisoner
Of War (Aug. 12, 1949).Accessed 09 Feb,2023.
Background
Capturing hostages during or
after a war is now regarded as a long-standing habit that continues to this day. The distinction is in the
legal safeguards afforded to such convicts. Previously, prisoners of war were either slaughtered or enslaved and forced
to live in pitiful and cruel conditions.
Such inmates are now protected. On the timeline, it is obvious that the
situation did not alter significantly
during the Middle Ages or the Renaissance. Several things were going on. For example, during the blockade of Paris
in 464, citizens begged the monarch to preserve the prisoners of war and not slay or enslave them, while religious
conflict was also taking place. The purpose
is to eradicate the opponent's faith. Until recently, prisoners of war were
considered personal property of the
country that kidnapped them; however, this is no longer the case. The current scenario is different. When
officers were apprehended in France, they had to surrender their swords and were allowed certain
privileges if they vowed not to be clever or leave the spot where they were seized. This is a
significant improvement since prisoners of war are now treated humanely rather than just ill-treated.
The legal reforms represent a progressive attitude that indicates the progression
of society belief3.
Research Objectives
1. An insight on who qualifies as a prisoner
of war.
2. An insight
on the deep understanding on the kind of treatment
POWs received.
3. An insight
on legal and basic human right under International Humanitarian Law.
4. An insight
on the role of International Organization over the right
of POWs.
Research Methodology
This research was conducted using a Non- Empirical method. This research includes a critical analysis of prisoners of war under International law, it will also deal with the working of International organization like U.N, ICRC, OHCHR, pertaining to prisoner of war. As, well as
3 Kathleen Sheetz, Prisoner Of War, BRITANNICA, THE
EDITORS OF ENCYCLOPAEDIA ( Nov 25, 2022, 01:15 PM),)https://www.britannica.com/topic/prisoner-of-war.
Accessed 10 Feb, 2023.
the examination of various conventions, protocols, case laws, and existing material collected from different sources,
including online journals,
websites, etc.
Who Are The Prisoner Of War?
Prisoners of war are citizens,
military/paramilitary officials, and other prisoners who are kept captive during a war, typically by the
victors or other sides in an armed conflict. These captives have human rights and should not be
subjected to cruel treatment. Prisoners of war, as defined by the current Geneva Convention, are those
who have fallen into the hands of the enemy and fall into one of the
following categories:
1. Article 4 Of The Geneva
Convention iii4
·
Members of the military forces of a Party to the
Conflict, as well as militias or volunteer corps that are
part of those forces.
·
Members of other militias and volunteer corps, including organised
resistance movements, who are
members of a Party to the Conflict and operate in or outside their own territory, even if that territory
is occupied, if such militias
or volunteer corps, including such organised resistance movements, meet the
following conditions:
·
Regular military troops who pledge loyalty to a
government or authority not recognised by the Detaining Power.
·
Persons who accompany the armed forces without being
members of the armed forces, such as civilian members
of military aircraft
crews, war correspondents, supply contractors,
labour unit members, or members of services responsible for the welfare of the armed forces, provided they have
received authorization from the armed forces they accompany, who shall
issue them a permit for that purpose.
·
Members of the parties' merchant marine and civil
aviation crews, including masters, pilots,
and apprentices, who do not get preferential treatment under any other
provision of international law.
·
Residents of a non-occupied nation who suddenly pick
up guns to fight invading invaders without
having had time to form organised military organisations, as long as they carry arms openly and respect war laws and
conventions.
4 The Geneva
Convention Of 1949
2. Article 42 Of The Additional Protocol
I
All organized military forces, organisations, and units under a leadership
responsible to that Party for the
actions of its subordinates comprise a Party's armed forces in a conflict, even
if that Party is represented by a
government or an authority not recognised by an opposing Party. Such military forces will be subject to an internal
disciplinary procedure that will, among
other things, guarantee that international law norms applicable in armed
conflict are observed.
3. Article 44 Of The Additional Protocol
I
Any combatant who surrenders to an adverse Party, as defined in Article 43,
becomes a prisoner of war. It further
stipulates that a person's violation(s) of international law applicable to armed conflicts would not disqualify
him from serving as a combatant or prisoner of war. However, if a combatant fails to distinguish himself from a
civilian as required by Article 44 during a military operation, he forfeits his right to be kept as a prisoner of war.
World Wars And
Armed Conflict
Another important feature of
Internal Humanitarian Law in terms of human rights may be traced back to World War I. The war was
atrocious, and the Briand-Kellogg Pact of 1928 was forged in the aftermath of this horribly
unfair and lethal struggle.Under
this pact, an endeavour was ultimately undertaken to halt and avert
any armed conflict, but another critical component that could not be neglected was war in the event of self-defense. How
will a person or state use their human
right to self-defense if all conflicts are forbidden? As a consequence of the
discussions, it was determined to ban
all armed confrontations while leaving a small window open to defend nations' and people's rights to
self-defense.5 Another important feature of Internal Humanitarian Law in terms of human rights may be traced back to World
War I. The war was horrible, and the
5 Convention Relating to the
Treatment of Prisoners of War, July 27, 1929
Briand-Kellogg Pact of 1928 was forged in
the aftermath of this terribly unfair and deafening conflict. This appears to be the reason why International
Humanitarian Law has become such an important part of international law. He or she would not have been accorded
human rights if there
had been no norms controlling the military battle between countries, and mass executions of innocent people would have continued.
Humanitarian Law And Human Rights
Article 3 of the Geneva
Conventions addresses internal armed conflicts, or concerns concerning the internal affairs of states. Because the control of internal affairs is essentially the prerogative of the sovereign State, the decision to
incorporate Article 3 in the four Geneva Conventions in 1949 was a watershed moment. It should be noted, however, that
the Universal Declaration of Human
Rights was approved by the United Nations General Assembly one year before, in
1948. That text represented rising
worldwide concern over a critical part of states' internal affairs. Indeed, international human rights law
requires states to acknowledge and respect a number of fundamental human rights and to assure their preservation. In times of armed conflict,
humanitarian law serves the same purpose. It requires warring parties to
protect and maintain the lives and dignity of captured enemy troops or civilians under their authority. So, what differentiates humanitarian law from human
rights law? Or are they the same thing? Human
rights and humanitarian law have aims that overlap. Both humanitarian
law and human rights are intended
to limit the authority of state authorities in order to protect the
individual's fundamental rights.
Human rights treaties (backed by customary law) achieve this goal in a
comprehensive fashion by covering
nearly all elements of life.6 Their rules must be applied to all
people and followed in all situations
(although a number of rights may be suspended in time of emergency). Humanitarian law, on the other hand, is only applicable during times of armed war. Its regulations are written in such a way that
they account for the unique circumstances of conflict. Under no circumstances may they be revoked.7
Typically, they apply "across the front line," which means that the armed forces must follow humanitarian law
in their encounters with the adversary
(and not in the relations with their own nationals). Human rights law and
international humanitarian law, on the other hand,
apply concurrently in internal armed conflicts. In other
6 Article 5
(2) GC III on the independent tribunal
that must be established in case of doubt.
words, humanitarian law is a subset of human
rights legislation that is tailored to times of armed conflict. Some of its provisions, particularly the limits on
hostilities and the use of weapons, have no
analogue in human rights law. Human rights law, on the other hand, encompasses
various sectors that fall outside the
purview of humanitarian law (e.g. the political rights of individual persons). Human rights law and
humanitarian law, despite their overlap, are different aspects of public international
law.
Rights Of Prisoners Of War
·
The legal basis for dealing with prisoners of war is
now the Third Geneva Convention. A noteworthy
characteristic of the agreement, aside from its applicability to all other
armed conflicts, is its mention of internal wars. The treaty defined
prisoners as anybody who was likely to be kidnapped during a conflict.8
·
The only and primary obligation for the treatment of
prisoners of war rests with the detaining
power, not the people. The Detaining Power has an overarching duty to treat prisoners humanely and to keep them safe.
They must be provided with food, clothes, and
medical care. They should be shielded from public scrutiny. They are
also entitled to rigorous due process
safeguards, such as a trial before tribunals that follow the same justice
standards as courts that would prosecute the detaining state's
military. Experiments in medicine and science are banned. Prisoners
must be treated
equally regardless of their
colour, country, religious convictions, or political beliefs.
·
The prisoner is expected to provide little information
throughout his or her custody. He is not
to be tortured and may keep his personal stuff. The prison camp's conditions
must fulfil the convention's
criteria. The task that the prisoner is expected to do must not be intrinsically hazardous, humiliating, or directly related to military activities.
·
Contact with his family
and correspondence rights must be granted
to the prisoner. Procedures for filing complaints against
the detention camp's administration must be developed. The treaty specifies
penal and disciplinary punishments, as well as processes
8 Article 3 GCIII
for evaluating culpability. The pact also
states that prisoners' property should not be
disposed of when they are arrested. POWs must be returned after hostilities
have ended.
·
The convention establishes the notion of a Protecting
Power, who is selected by mutual agreement
and is in charge of ensuring that the conditions of the convention are
observed. If the belligerents
cannot agree on such a replacement, the detaining power must propose that the Protecting Power be replaced by a
neutral state, an impartial organisation, or a
humanitarian organization. Each contracting party promises to penalise
anybody who breaks the regulations. Parties
to the conventions are obligated
to pursue anybody
accused of breaking them.
·
Many of the main rules of the Third Geneva Convention
on POWs are incorporated into the
First and Second Geneva Conventions in relation to injured and sick armed
personnel in the field or at sea.
·
Prisoners of war are entitled to particular protection
and treatment under Article 4 of the Geneva
Convention and Article 44 of the Additional Protocol I. Prisoners of War are granted this status in acknowledgment of
the fact that soldiers are acting in the best
interests of their nation and are entitled to protection once the
conflict has ended.9 The treatment of prisoners of war is controlled by international humanitarian law requirements.
According to Geneva Convention III 143 Article, prisoners of war must be treated
humanely, housed properly,
and provided with enough food, clothing, and medical treatment
(s). Its provisions also provide standards
for work, punishment, entertainment, and criminal trials.
General Protection Of Prisoners Of War
It is important
to remember that prisoners of war are in the hands of the enemy,
not the individual or military unit(s) that have seized them. Prisoners of war must always be handled with dignity. Any unlawful act or omission by the detaining
power that causes death or seriously endangers
the health of a POW in its custody, including subjecting the prisoner to
physical mutilation or medical or
scientific experiment(s) of any kind that is not justified by the prisoner's medical,
dental, or hospital
treatment and is not carried
out in his interest, is prohibited and
9 Article 17
GC III
would be considered a war crime.10
Retaliatory actions against prisoners of war are prohibited. Prisoners of war have the right at all
times to have their person(s) and honour respected. Women will be treated with all reverence due to
their dignity and will be treated equally to males in all situations. Prisoners of war have the
right to retain their full civil capacity when imprisoned. The State holding Prisoners of War is
obligated to provide free of charge for their
upkeep and medical assistance as determined by their state of health. All
prisoners of war will be treated equally, regardless of race, nationality, religious belief, political
perspective, or any other distinction based on comparable traits.
Specific Provision
For Treatment Of Prisoners
Of War In Captivity
When
asked about their identification, POWs are only needed to reveal their surname,
first name, rank, date of birth,
and army, regimental, personal, medical, or mental condition. They will be turned over to the medical service if they
are unable to do so.11 Prisoners of War must not be subjected to physical or mental torture,
or any other kind of coercion, in order to collect any type of information. If a prisoner
of war refuses to answer,
he or she may not be intimidated, humiliated, or subjected to any unfavourable or inhumane treatment.
Officers and inmates of comparable standing
must be treated with respect
based on their rank and age. Personal property of prisoners
of war, such as mental helmets, gas masks, and other equipment supplied for personal protection, shall remain in
their possession.12 Only armament,
including arms, military
equipment, and valuables
stolen from POWs in return for money
impounded, will be considered.
The Case Of Wing Commander Abhinandan Varthaman
Wing Commander Abhinandan was apprehended
during an airstrike between India and Pakistan. The most essential
issue in this case was whether the Geneva Convention
norms applied in this
10 Article 82-88 GC III
11 Article 51,52
and 56 GC III
12 Article 18
GC III
circumstance because, in general, neither
country had declared a formal war on the other. This worry was heightened since the nations had accepted the 1949-51
Geneva Convention, which addressed
concerns such as the treatment of prisoners of war and what should be done if a prisoner is harmed. The Geneva Treaty's
requirements were finally deemed to apply in this case since Article 2 of the treaty specifically states that the
countries participating in a conflict do not
have to be at war. This agreement would most likely apply even if two
countries engaged in military
conflict. This clearly says that Abhinandan would be Pakistan's obligation
under the Geneva Convention in any
circumstance and that his interests could not have been jeopardised since anything
erroneous would have been viewed
as a violation of the convention's norms.
Suggestions And Conclusion
·
Prisoners of war must
be treated decently
at all times.
·
Any unlawful act or omission by the Detaining Power
that causes the death or gravely endangers
the health of a prisoner of war in its custody is banned and will be considered
a serious violation of the
present Convention.
·
United Nations should take necessary steps to preserve
the basic Human Rights of POWs just like it
was done by giving legal
assistance to accused of 26/11 Ajmal kasab.
·
International court of justice should act as binding
authority over country which violates the
laws and peace of the nation just
like was done in case of Kulbushan Yadav. ICJ being
an independent body of the U.N should give time and check the activities of the nations.
This study
concluded that humanitarian law and human rights law are closely
intertwined. Finally, the protection
of individuals' basic rights in the event of armed conflict is the most important
battleground for international humanitarian law, because
no matter what the circumstances between two countries are
during a state of war or armed conflict, the rights of the people living in those countries cannot
be abridged, and their safety and well-being cannot be jeopardized. Furthermore,
the Geneva Conventions state unequivocally that just because officers of the armed forces are participating in
a conflict does not mean they do not have rights of their own. Once the conflict is proclaimed officially over, the fighting
sides must ensure that everyone, regardless of status, is
protected and that nothing unlawful occurs at any cost. It is in everyone's best interests to follow all of the Geneva Convention's regulations. The globe will
remain peaceful and harmonious as long as the general
people of diverse
nations is respected and safeguarded.
BIBLIOGRAPHY
Ø Eugene T.
Olson, Prisoner of War Policy of the Soviet Union, U.S. Dept. of thc Army,
Office of Assistant Chief of
Staff, Intclligcnce
Ø lIenri Coursier,
Course of Fill (Iessons on tile Geneva
Conventions (Glmeva: International Committee of the Red Cross
Ø US
Treaties, etc., Treaties, Conventions, the United States of America and Otller
Powers, 1776-1909
Ø O. Thomas
E. Holland, Tile Law of War (London)
Ø Hague, International Peace Conference, 1899
Ø The Reports to the Hague Conferences of 1899 and 1907
Ø U.S. Dept. of the Army, Communist
Interrogation, Indoctrination, and Exploitation of Prisoners of War
Article Information
CRITICAL EVALUATION OF PRISONER OF WAR UNDER IHL By: Palvi Mehra
Authors: Palvi Mehra
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/04
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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