PRISONERS OF WAR: CLASSIFICATION AND LEGAL PROTECTION UNDER

INTERNATIONAL HUMANITARIAN LAW

- S. Harini Shri

ABSTRACT:
International humanitarian law, also known as “the law of armed conflict,” is a branch of
international law that regulates armed conflict. IHL is also known as “jus in bello”, which
means “justice in war” from Latin. International humanitarian law seeks to regulate the
conduct of armed conflict through a number of means, principally:
1. through norms protecting those who do not participate or participate directly in hostilities
2. By imposing restrictions on parties to an armed conflict regarding the methods that may be
used during an armed conflict.
This publication provides in-depth legal analysis and guidance on human rights and
humanitarian obligations in the application of international human rights law and
international humanitarian law to protect civilians as well as people involved in an armed
conflict. It is not intended to cover all relevant aspects but to provide an overview of their
application, particularly in relation to prisoners of war. Prisoners of war are generally
members of the armed forces of one of the parties to a conflict that falls into the hands of the
opposing side. Prisoner of war status applies only in international armed conflicts. It provides
the necessary legal context and analyses relevant concepts so that readers can better
understand the relationship between humanitarian law and the application of international law
in situations of armed conflict. The rules for the protection of prisoners of war (prisoners of
war) are very specific and were first detailed in the Geneva Conventions of 1929. They were
finalized in the Third Geneva Convention of 1949, followed by lessons from the Second
World War, as well as from the 1977 Additional Protocol I.

INTRODUCTION:
INTERNATIONAL HUMANITARIAN LAW
It is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict.
International humanitarian law covers two areas:
the protection of those who are not, or no longer, taking part in fighting;
restrictions on the means of warfare – in particular weapons – and the methods of warfare,
such as military tactics.
A major part of international humanitarian law is contained in the four Geneva Conventions
of 1949. Nearly every State in the world has agreed to be bound by them. The Conventions
have been developed and supplemented by two further agreements: the Additional Protocols
of 1977 relating to the protection of victims of armed conflicts. Other agreements prohibit the
use of certain weapons and military tactics and protect certain categories of people and
goods. International humanitarian law applies only to armed conflict; it does not cover
internal tensions or disturbances such as isolated acts of violence. The law applies only once
a conflict has begun, and then equally to all sides regardless of who started the fighting.
International humanitarian law distinguishes between international and non-international
armed conflict.
International armed conflicts are those in which at least two States are involved. They are
subject to a wide range of rules, including those set out in the four Geneva Conventions and
Additional Protocol I
Non-international armed conflicts are those restricted to the territory of a single State,
involving either regular armed forces fighting groups of armed dissidents, or armed groups
fighting each other. A more limited range of rules apply to internal armed conflicts and are
laid down in Article 3 common to the four Geneva Conventions as well as in Additional
Protocol II. It is important to differentiate between international humanitarian law and human
rights law. While some of their rules are similar, these two bodies of law have developed
separately and are contained in different treaties. In particular, human rights law – unlike
international humanitarian law – applies in peacetime, and many of its provisions may be
suspended during an armed conflict
PRISONERS OF WAR
They are combatants who have fallen into the hands of the enemy, or specific non-combatants
to whom the status of prisoner of war is granted by international humanitarian law.
The following categories of persons are prisoners of war:
a. members of the armed forces of a party to the conflict, including members of militias
or volunteer corps forming part of such armed forces (this includes members of
regular armed forces who profess allegiance to a government or authority not
recognized by the Detaining Power);
b. members of other militias or other volunteer corps that belong to a party to the
conflict, provided that such groups:
 are under responsible command;
 have a fixed distinctive sign recognizable at a distance;
 carry arms openly; and
 conduct operations according to the law of armed conflict;
c. civilians who accompany the armed forces provided they are authorized by the armed force
they accompany;
d. members of crews of merchant marine and civilian aircraft of a party to the conflict who do
not benefit from more favourable treatment under international law;
e. participants in a levée en masse; and
f. the military wounded, sick and shipwrecked who fall into the hands of an enemy.

Combatants are required to distinguish themselves from the civilian population while they are
engaged in an attack or in a military operation preparatory to an attack.
A combatant who fails to distinguish himself while he is engaged in an attack or in a military
operation preparatory to an attack loses his combatant status if he is captured, which means
he does not have prisoner of war status and can be tried for an act of war.
However, he is to be given protections equivalent in all respects to those provided to
prisoners of war under the third Geneva Convention.
Notably, in international armed conflicts governed by Additional Protocol I, a combatant
distinguishes himself sufficiently if he carries his arms openly:
a. during each military engagement; and
b. during such time as he is visible to the adversary while engaged in a military
deployment preceding the launching of an attack in which he is to participate.

Persons excluded from prisoner of war status:

The following persons are explicitly excluded from prisoner of war status in the law of armed
conflict:
a. members of the armed forces of a party who fall into the power of the adverse party
while engaging in espionage; and
b. mercenaries.

PROTECTION UNDER GENEVA CONVENTION:

Part-I of the convention contains article1-article11 which deals with the general provisions.
We will be focussing on Part-II, Part-III, Part-IV and Part-V of the convention that
specifically focuses on prisoners of war.
Once prisoners of war are in the hands of the adversary, they are particularly vulnerable to
acts of revenge, pressure, and humiliation. The status of prisoners of war is set out in detail
throughout the 143 articles of the Third Geneva Convention, which regulates the protection
of combatants fallen into the hands of the adverse power and the conditions of their detention.
This protection rests on the Convention’s reaffirmation of certain rights and obligations, as
well as on the mechanism of supervision embodied in the mandate of the protecting power. If
the parties to a conflict fail to designate a protecting power, the ICRC will play this role with
regard to the prisoners on both sides (GCIII Arts. 8–10). In practice, this reciprocal principle
is pivotal to convince the parties to the conflict to respect the rights established by the Third
Convention. However, in certain situations—namely, in non-international armed conflicts—
the benefits of reciprocity are not always sufficient to prevent ill treatment. The role of the
ICRC is even more important in such cases.
The rights and obligations set out by the Third Geneva Convention can be summarized as
follows:
 Prisoners of war must be treated humanely at all times. Any unlawful act or omission
by the detaining power causing death or seriously endangering the health of a prisoner
 of war in its custody is prohibited and will be considered a serious breach of
humanitarian law (GCIII Art. 13).
 Prisoners of war are entitled in all circumstances to respect for their person. Women
must be treated with due regard to their specific needs and must benefit from
treatment as favourable as that granted to men (GCIII Art. 14).
 The detaining power is bound to provide prisoners of war, free of charge, with the
necessary maintenance and medical attention required by their state of health (GCIII
Art. 15).
 All prisoners of war must be treated alike by the detaining power (GCIII Art. 16).
 Prisoners are only under obligation to give their last and first names, rank, date of
birth, and serial number. Each party to a conflict is required to furnish each prisoner
of war under its jurisdiction with an identity card. Questioning is not prohibited, but
the Third Convention stipulates that no physical or mental torture, or any other form
of coercion, may be inflicted on prisoners of war to secure from them information of
any kind whatever. Prisoners of war who refuse to answer when questioned may not
be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any
kind. The questioning of prisoners of war shall be carried out in a language they
understand (GCIII Art. 17).
 Prisoners of war may not be deprived of their personal belongings (GCIII Art. 18).
 Prisoners of war must be evacuated, as soon as possible after their capture, to camps
situated away from the combat zones. Such evacuation must be carried out humanely
and in conditions similar to those for the forces of the detaining power in their
changes of station. Prisoners of war must be given sufficient food and drinking water
and the necessary clothing and medical attention (GCIII Arts. 19, 20).
 Premises of internment must provide every guarantee of hygiene and healthfulness
and take into account the climate in the area (GCIII Art. 22).
 Prisoner of war camps must be clearly marked by the letters PW or PG (for prisoners
of war or prisonniers de guerre), whenever military considerations so permit (GCIII
Art. 23).
 Prisoners of war shall be quartered under conditions as favourable as those for the
forces of the detaining power who are quartered in the same area. The said conditions
must in no case be prejudicial to their health. The premises must be entirely protected
from dampness and adequately heated and lighted (GCIII Art. 25).
 The basic daily food rations must be sufficient in quantity, quality, and variety to keep
prisoners of war in good health and to prevent weight loss or the development of
nutritional deficiencies. The habitual diet of the prisoners must also be taken into
account (GCIII Art. 26).
 The detaining power is bound to take all necessary sanitary measures to ensure the
cleanliness and healthfulness of camps and to prevent epidemics. In any camps in
which female prisoners of war are accommodated, separate conveniences shall be
provided for them (GCIII Art. 29).
  Every camp must have a satisfactory infirmary. Prisoners of war shall receive medical
attention, preferably from medical personnel of the power on which they depend and,
if possible, of their nationality. Prisoners of war suffering from serious diseases or
whose condition necessitates special treatment must be admitted to any military or
civilian medical unit where such treatment can be given. Medical inspections of
prisoners of war are to be held at least once a month. They shall include checking and
recording the weight of each prisoner and his or her general state of health, nutrition,
and cleanliness (GCIII Arts. 30 and 31).
 Members of the medical personnel and chaplains held by the detaining power with a
view to assisting prisoners of war shall not be considered prisoners of war. They shall,
however, receive as a minimum the benefits and protection of the Third Convention
and shall be given all facilities necessary to carry out their work (GCIII Art. 33).
 Prisoners of war shall enjoy complete latitude in the exercise of their religion and in
the practice of sports and intellectual activities (GCIII Arts. 34–38).
 Every camp shall be put under the immediate authority of a responsible commissioned
officer belonging to the regular armed forces of the detaining power. This officer must
know and implement the provisions of the Third Geneva Convention. Any regulations
relating to the conduct of prisoners—including the text of the Convention—shall be
posted in the camp, in a language the prisoners of war understand (GCIII Arts. 39–
42).
 The detaining power may hire the prisoners of war as workers, taking into account
their state of health, as well as their age, sex, and rank, and only for work that is not
for military purposes.
 Non-commissioned officers shall only be required to do supervisory work. Prisoners
of war may not be forced to do dangerous or humiliating work, and their labor must
be paid (GCIII Arts. 49–57).
 The management and transfer of prisoners of war’s financial resources are precisely
regulated by Articles 58 to 68.
 Prisoners’ relations with the exterior are regulated by Articles 69 to 77. The provisions
include the fact that the detaining power must notify the authorities on which the
prisoners depend of the capture, and it must allow the prisoners to receive and send
letters—two to four per month, depending on the model card used. Prisoners are also
allowed to receive individual parcels or collective shipments containing, in particular,
foodstuffs, clothing, medical supplies, and articles of a religious, educational, or
recreational character, under the ICRC’s supervision.
 Prisoners of war have the right to make requests to the military authorities in whose
power they are, regarding their conditions of captivity (GCIII Art. 78).
 Articles 82 to 108 enumerate the penal and disciplinary sanctions:
—As a rule, prisoners of war are subject to the laws of the detaining power and its military
tribunals. Such tribunals must always offer guarantees of judicial independence and
impartiality and protect the means and rights of defence.
—Even if convicted, prisoners of war continue to be protected by the provisions of the
Convention (prisoners of war may never be deprived of the protection derived from Arts. 78
to 126, concerning their right to file complaints and the judicial guarantees to which they
were entitled).
—Collective punishment imposed for individual acts, corporal punishment, imprisonment in
premises without daylight, and, in general, any form of torture or cruelty, are forbidden.
—The scale of applicable disciplinary punishments is clearly established by the Convention.
—Escape may be punished only by disciplinary punishment. ▸collective
punishment ▸ corporal punishment ▸ judicial guarantees
 Prisoners of war who are seriously wounded or suffer from specified diseases must be
repatriated directly back to their own country or to a hospital in a neutral State (Arts.
109–117). Article 110 sets forth the specific conditions governing such decisions.
Those whose diseases or wounds warrant a direct repatriation are:
—the incurably wounded or sick whose mental or physical fitness seems to have been
gravely diminished;
—the wounded or sick who have recovered but whose mental or physical fitness seems to
have been gravely and permanently diminished;
—the wounded or sick who, according to medical opinion, are not likely to recover within
one year.
Those who may be accommodated in a neutral State are:
—the wounded and sick whose recovery may be expected within one year, or sooner if
treated in a neutral country;
—prisoners of war whose mental or physical health, according to medical opinion, is
seriously threatened by continued captivity, but whose accommodation in a neutral country
might remove such a threat.
Certain prisoners of war accommodated in a neutral country can be directly repatriated
following their treatment, under an agreement between the powers concerned, if:
—their state of health has deteriorated so as to fulfil the conditions laid down for direct
repatriation;
—their mental or physical powers remain considerably impaired, even after treatment.
 To address the needs of direct repatriation or hospitalization in a neutral State, the
parties to a conflict must set up Mixed Medical Commissions from the beginning of
the conflict, which examine the state of the wounded and sick (Annex I of the Third
Geneva Convention, relating to Art. 110, provides a model agreement concerning
direct repatriation and accommodation in neutral countries of wounded and sick
prisoners).
 Prisoners of war must be released and repatriated without delay after the cessation of
active hostilities (GCIII Arts. 118, 119).
  Articles 120 and 121 address the death of prisoners of war. They regulate the validity
of individual wills, notification of death certificates, the right to individual burial, and
the obligation of the detaining power to investigate any death the cause of which is
suspect.
 The parties to the conflict commit to setting up information bureaus that will gather
information and organize relief actions relating to prisoners of war (GCIII Arts. 122–
125).
 The following acts, committed against prisoners of war, are grave breaches of the
Geneva Conventions: “wilful killing, torture or inhuman treatment, including
biological experiments, wilfully causing great suffering or serious injury to body or
health, compelling a prisoner of war to serve in the forces of the hostile Power, or
wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in
this Convention” (GCIII Art. 130).

Israel, The Targeted Killings Case

The Government of Israel employs a policy of preventative strikes which cause the death of
terrorists in Judea, Samaria, or the Gaza Strip. It fatally strikes these terrorists, who plan,
launch, or commit terrorist attacks in Israel and in the area of Judea, Samaria, and the Gaza
Strip, against both civilians and soldiers. These strikes at times also harm innocent civilians.
Does the State thus act illegally? That is the question posed before us. As part of the security
activity intended to confront the terrorist attacks, the State employs what it calls “the policy
of targeted frustration” of terrorism. Under this policy, the security forces act in order to kill
members of terrorist organizations involved in the planning, launching, or execution of
terrorist attacks against Israel. During the second intifada, such preventative strikes have been
performed across Judea, Samaria, and the Gaza Strip. According to the data relayed by
petitioners, since the commencement of these acts, and up until the end of 2005, close to
three hundred members of terrorist organizations have been killed by them. More than thirty
targeted killing attempts have failed. Approximately one hundred and fifty civilians who were
proximate to the location of the targeted persons have been killed during those acts. Hundreds
of others have been wounded. The policy of targeted killings is the focus of this petition.
The terrorists and their organizations, with which the State of Israel has an armed conflict of
international character, do not fall into the category of combatants. They do not belong to the
armed forces, and they do not belong to units to which international law grants status similar
to that of combatants. Indeed, the terrorists and the organizations which send them to carry
out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They
can be tried for their participation in hostilities, judged, and punished. The result of that
examination is not that such strikes are always permissible or that they are always forbidden.
The approach of customary international law applying to armed conflicts of an international
nature is that civilians are protected from attacks by the army. However, that protection does
not exist regarding those civilians “for such time as they take a direct part in hostilities” […].
Harming such civilians, even if the result is death, is permitted, on the condition that there is
no other less harmful means, and on the condition that innocent civilians nearby are not
harmed. Harm to the latter must be proportionate. That proportionality is determined
according to a
values-based test, intended to balance between the military advantage and the civilian
damage. As we have seen, we cannot determine that a preventative strike is always legal, just
as we cannot determine that it is always illegal. All depends upon the question whether the
standards of customary international law regarding international armed conflict allow that
preventative strike or not.

CONCLUSION:
The Convention Relating to Prisoners of war 1949 or commonly known as the third Geneva
Convention has proven to be the “Bible” for the prisoners of war. The ill experiences of the
second World War and the collective hue and cry amongst the peacekeepers regarding the
human rights violations that occurred during this period as regards the prisoners of war, made
it the need of the hour that certain necessary and indispensable safeguards must be enacted
for them. The result of this deliberation was the Third Geneva Convention which laid down a
large number of rights for the war captives. But as we all know; the biggest problem isn’t
“THE LAW” but “ITS IMPLEMENTATION”. Though, the convention has necessarily
provided for a wide range of rights but we can see the powerful states making a complete
mockery out of it. What is required is that the mere documentation of the safeguards isn’t
enough. They must be brought into actual application as well. This is only possible when the
United Nations takes strong measures against the states who have been continuously involved
in the violation of the safeguards provided to these victims of war. Upon the outbreak of a
conflict and in all cases of occupation, each of the Parties to the conflict shall institute an
official Information Bureau for prisoners of war who are in its power. The Power concerned
shall ensure that the Prisoners of War Information Bureau is provided with the necessary
accommodation, equipment and staff to ensure its efficient working. It shall be at liberty to
employ prisoners of war in such a Bureau under the conditions laid down in the Section of
the present Convention dealing with work by prisoners of war.1

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