Status and Rights of Combatants and Prisoners of War Under International Law
Combatant and POW Status
Combatants are persons who directly participate in hostilities; they are legally allowed to conduct warfare under the umbrella of international humanitarian law (IHL). Combatants are trained to face the atrocities and difficulties of warfare and are expected to manage and cope with the atmosphere during an armed conflict. In this regard, IHL has prescribed certain criteria for combatants and imposed certain duties and restrictions. Combatants have the licence to kill or wound enemy combatants and destroy other enemy military objectives, therefore, they cannot be prosecuted for lawful acts of war in the course of military operations. If they violate international humanitarian law or do not comply with the law of war, they may have to face prosecution for war crimes. IHL has also protected certain rights of combatants if they qualify for the status of prisoners of war (POWs) which must be enforced by the concerned authorities. Once captured, combatants are entitled to POW status and entitled to benefit from the protection of Geneva Convention III. Combatants must distinguish themselves from civilians during an armed conflict or military operation, if they fail to do so they cannot be given the status of POW as described in Rule no. 106 of customary IHL.
Combatants are lawful military targets. Generally speaking, members of the armed forces (other than medical personnel and chaplains) are combatants.[1]
Conditions for Combatants
The following conditions regarding combatant status can be derived from Article 4 of GC-III and Articles 43 and 44 of its Additional Protocol (AP-I):
- combatants have a commander responsible for subordinates;
- they have a fixed, distinctive emblem recognizable at a distance;
- they carry arms openly; and
- they conduct operations according to the laws and customs of war.
Interestingly the conditions prescribed in A.4 of GC-III and A.43, 44 of AP-I for combatants also apply for obtaining the status of POW under IHL. Only those combatants who fall in this criteria shall be entitled to gain POW status under the umbrella of IHL. In combat, classifying the captives as POWs is difficult, therefore, all captives should be treated as POWs until their status can be verified.[2]
Levée En Masse
The definition of civilians as persons who are not members of the armed forces is set forth in Article 50 of the Additional Protocol I, to which no reservations have been made so far.[3] In its judgment in the Blaskic case in 2000, the International Criminal Tribunal for Former Yugoslavia defined civilians as “persons who are not, or no longer, members of the armed forces.”
Civilians are entitled to general protection against the dangers arising from military operations. In particular, they may not be made the object of an attack.
But there is an exception to the general rule, according to which in the rare case of a levée en masse, participants, namely the inhabitants of a country which has not yet been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having time to form themselves into an armed force, are considered combatants and entitled to POW status if they carry arms openly and respect international humanitarian law. This is a long-standing rule of customary IHL already recognized in the Lieber Code and the Brussels Declaration.[4]
Unlawful Combatants
The terms “combatant”, “POW” and “civilian” are commonly used in IHL. The terms “unlawful combatant”, “unprivileged combatant/belligerent” do not appear as frequently and have only been used since at least the beginning of the last century in legal literature and case law. But their status or legal consequences are not explicitly defined in IHL.
According to Knut Dormann, the most commonly shared understanding of term “unlawful/unprivileged combatant/belligerent” describes all persons taking direct part in hostilities without being entitled to do so and who, therefore, cannot be classified as POWs if they fall into the enemy’s territory or under their power. Such a definition would include, for example, civilians taking direct part in hostilities or members of militias and other volunteer corps including organized resistance movements not integrated in the regular armed forces but belonging to a party to conflict, provided that they do not comply with the conditions of Article 4(2) of GC-III.
If a person who has participated directly in hostilities and has been captured on the battlefield and it is not obvious to which category that person belongs, Article 5 of GC-III and Article 45 of AP-I provides for a special procedure to determine the captive’s status. The notion “unlawful combatant” has a place only within the context of the law applicable to international armed conflicts as defined in the 1949 Geneva Conventions and Additional Protocol I. The law applicable in non-international armed conflicts does not foresee a combatant’s privilege (i.e. the right to participate in hostilities and impunity for lawful acts of hostility).
Hors De Combat
Hors de combat is a French term which means “out of the fight” due to captivity, surrender, sickness, being wounded or other reasons. Customary international law states that hors de combat are not subject to attack, and it would be a war crime with regard to the rules of customary and codified IHL to attack them.
This may clearly be observed from the common Art. 3 of all Geneva Conventions:
“(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.”[5]
In the light of the article referred above, it could be extracted that attacking persons recognized as hors de combat is prohibited. To ascertain who has the status of hors de combat, three categories have been outlined:
- anyone who is in the power of an adverse party;
- anyone who is defenseless because of unconsciousness, shipwreck, wounds or sickness; or
- anyone who clearly expresses an intention to surrender;
provided that he or she abstains from any hostile act and does not attempt to escape.
Spies
Combatants engaged in espionage i.e. those who are gathering or attempting to gather information in a territory controlled by an adverse party through an act undertaken on false pretenses or deliberately in a clandestine manner, have no right to POW status and may be tried. This is a long-standing rule of customary IHL already recognized in the Lieber Code, the Brussels Declaration and the Hague Regulations.[6] The definition includes combatants who wear civilian attire or the uniform of the adversary, but excludes combatants who are gathering information while wearing their own uniform. This definition is now codified in Additional Protocol I.[7]
Mercenaries
Mercenaries, as defined in AP-I, refer to professional soldiers hired to serve a foreign army and do not have the right to combatant or POW status as set forth in Additional Protocol I.[8] It is pertinent to mention here that the essential element defining mercenaries is that they must be in pursuance of some kind of private gain. They are not entitled to POW status but subject to fair trial if captured.
Rights of POWs
Those who qualify the criteria for combatants are eligible to get POW status described by IHL. Those who are not combatants cannot get the status of POW. Once a combatant has been captured or detained by the detaining authority, he or she shall have POW status and certain rights protected by GC-III. The detaining authority or power is under an obligation to ensure the fulfillment of the rights of POWs strictly in accordance with IHL. Rights of POWs are as under:
- Protection and Proper Transport
The detaining power must transfer/evacuate POWs from the battle area as swiftly, safely, and humanely as possible to a safe camp which is marked to be known as a safe place and not subject to attack during warfare. The detaining power must ensure that POWs have food, safe drinking water, clothing and medical attention during a transfer.
- Camp Inspection
According to the GC-III, a protecting power must periodically inspect POW camps. The detaining power must do nothing to discourage or hinder the inspections. They must let POWs appeal to the inspectors for help in correcting violations of this Convention.
Camp officials must allow POWs, as soon as possible after captivity, to inform their families about their whereabouts and health. POWs have the right to send letters, make telephone calls or use other means of communication in order to get connected to their loved ones.
- Clothing and Food
The detaining power must provide clothing, footwear and work clothing, and must mend or replace these items regularly. Every camp should establish a canteen where POWs can buy foods items, soap, tobacco and ordinary articles of daily use. It must provide mess halls and kitchens where prisoners can assist in preparing their own food. Restricting food as a form of mass punishment is forbidden.
- Health and Medical Care
GC-III includes detailed provisions for meeting the health and medical needs of POWs. The authorities must ensure a minimum standard of health. Every camp shall have an adequate infirmary in which POWs are able to receive treatment from medical personnel. Captors should also let the captured medical personnel visit prisoners inside and outside enclosures.
- Religious Rights, Recreational and Intellectual Activities
Camp officials must allow POWs to attend services of their faith and practice religion otherwise. Camps must allow the right to exercise, including the right to play sports and games and the right to participate in intellectual and educational activities.
- Fair Trial
POWs are entitled to a fair trial, including the right to counsel, advance knowledge of the charges, services of a competent interpreter, and ample time for the preparation of their defense. The detaining power must provide advance notice of trial to a representative of the POW and let them attend proceedings.
These are some of the rights which are expected to be ensured in POW camps in accordance with IHL.
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References
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Colnol K.W Watkin, Combatant, unprivileged Belligerents and Conflicts in the 21st Century, http: hsph.harvard.edu./hpcr
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Knut Dormann, The Legal Situation of “unlawful/unprivileged combatants”, RICR Mars IRRC March 2003 Vol. 85
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Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules, Cambridge 2006.
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USA Military training circular on Prisoners of War, Dept. of Army, Washington DC, 1991.
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Geneva Conventions and Additional Protocols.
[1] See rule 3, Customary International Humanitarian Law, Vol. I, p.11
[2] USA Military training circular on Prisoners of War, p.3
[3] Additional Protocol I, Article 50 (adopted by consensus) (cited in Vol. II, Ch. 1, § 705).
[4] Lieber Code, Articles 49 and 51; Brussels Declaration, Article 10.
[5] See common Art.3 of All Geneva Conventions.
[6] Lieber Code, Article 88; Brussels Declaration, Articles 20–21 ; Hague Regulations, Articles 30–31.
[7] Additional Protocol I, Article 46(2)
[8] Additional Protocol I, Article 47(1)
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