Lieber Studies POW Volume Symposium – Application of the Third Geneva Convention in Proxy Warfare

Editor’s note: The following post highlights a chapter of the Lieber Studies volume Prisoners of War in Contemporary Conflict, which will be published 3 March 2023. For a general introduction to this volume, see Professor Mike Schmitt and Major Christopher J. Koschnitzky’s introductory post.

In the Lieber Series volume, Prisoners of War in Contemporary Conflict, we contributed a chapter on the substantive law applicable to prisoners of war (POWs) in proxy warfare. In the chapter, we addressed the application of Geneva Convention III to organized armed groups that detain POWs of territorial States, or whose members are detained as POWs by territorial States.

In proxy warfare, the “Tadić-theory” developed by the International Criminal Tribunal for the former Yugoslavia in the Tadić decision considers the international humanitarian law (IHL) of international armed conflict (IAC) to apply between a State, referred to as the “territorial State” in this post, and an armed group (“proxy armed group”), if a foreign State (“controlling State”) has overall control over that group. Geneva Convention (III) Relative to the Treatment of Prisoners of War (“the Convention”) is an essential part of the IHL of IACs and differs significantly from the IHL rules of non-international armed conflicts (NIACs) governing the detention of fighters by the government (or government soldiers by an armed group).

In our contribution, we first inquire whether soldiers of the territorial State who have fallen into the power of the proxy armed group are prisoners of war (POWs). Second, we consider the more complicated issue, how the Convention must be interpreted to allow the proxy to respect it. Third, we wonder whether members of the proxy armed group who have fallen into the power of the territorial State are POWs, a much more delicate question, and, if so, how they can be treated in conformity with the Convention.

Treatment of Soldiers of the Territorial State as POWs

POWs are members of the armed forces of one State who have fallen into the power of the enemy State. Many rules of the Convention are typically addressed to States (in our case, the controlling State) and not to its armed forces. Even in proxy warfare, the controlling State is therefore the detaining power. However, the proxy armed group and its members must also be considered as addressees of the Convention based upon the principle of effectiveness, because their conduct is attributable to the controlling State, or because the proxy armed group may be considered to be part of the controlling State’s armed forces.

When it comes to the treatment of POWs required by the Convention, the premise that the POWs held by the proxy armed group are detained by the controlling State encounters some conceptual and practical problems. While the practical challenges depend on both the human and the financial resources of the proxy armed group, as well as its territorial control, conceptual problems arise in light of several rules of the Convention.

These challenges include the requirements that POW camps are put under the immediate authority of an officer belonging to the regular armed forces of the detaining power (Art. 39) and that POW trials must be conducted by a military tribunal of the detaining power according to the laws applicable to soldiers of the detaining power (Arts 82 and 84). In such cases, the only solution is to accept the proxy armed group as a reference and to adapt the content of the rules when they are not realistic.

Beyond that, the difficulties a proxy armed group may face when applying the Convention can be solved in different ways. Many rules foresee only obligations of means. A sliding scale of obligations (adapted to the actual capacities of the group), as suggested in the context of NIACs, could apply to a proxy armed group. There is also the possibility and obligation to release POWs if the proxy armed group is unable to comply with the minimum guarantees, or the substitution of the proxy armed group by an impartial humanitarian body. On other issues, the situation of the  proxy armed group’s members could be adopted as the benchmark for the assimilation principle under which POWs must be treated in many respects like the soldiers of the detaining power.

Treatment of Members of the Proxy Armed Group as POWs

From a policy perspective and by virtue of the principle of equality of belligerents, it is fundamental that members of the proxy armed group who must comply under the Tadić theory with the Convention, should also benefit from it. However, to confer POW status to them if interned by the territorial State raises three main questions: (1) Do members of the proxy armed group “belong” to the controlling State? (2) Are nationals of the detaining power excluded from POW status? (3) Who belongs to the proxy armed group?

A member of the proxy armed group benefits from POW status under Article 4(A)(2) of the Convention subject to certain conditions. First, the group must “belong” to the controlling State (or, under Additional Protocol I, be subject to a command responsible to the controlling State). Second, it must comply with the famous four conditions. What the requirement of “belonging” under the Convention implies is controversial. We agree with those who argue that tacit agreement suffices and that this exists as long as the government does not reject an armed group’s claim that it is fighting on the State’s behalf. In reality, neither the controlling State nor the proxy armed group will admit that such a link exists. However, one may argue that the controlling State cannot deprive persons, by statements, of the protection they benefit from according to the actual situation, and that an implausible refusal to recognize their role should not count.

Under the text of the Convention, nationality does not matter for POW status. Nevertheless, most courts and scholars exclude nationals of the detaining power from POW status and even the minority view allows their prosecution for treason. To overcome this problem, nationality could be replaced by allegiance (as the Tadić decision does for civilians). One may also object to the very idea that nationality of the detaining power deprives an individual of POW status. At least in proxy warfare, it is a logical consequence of a conflict’s classification as an IAC to replace the nationality criterion with a requirement of adversity to the territorial State, demonstrated through the individual’s conduct in fighting for the controlling State.

Even if the proxy armed group is considered to belong to the controlling State, the question arises who exactly belongs to that group. It is much more difficult to determine who belongs to an armed group than to identify who belongs to governmental armed forces. As suggested by the ICRC for targeting purposes, we may use, even for POW status determination purposes, the criterion of a continuous combat function.

Once it is determined that members of a proxy armed group are POWs, their treatment according to the Convention nevertheless raises some additional problems. Concerning the obligation to repatriate POWs at the close of active hostilities, we had to suggest innovative interpretations which do not conform with the letter of the Convention. As for the many rules of the Convention that refer to the power on which the POW depends, it may seem inappropriate to assign those functions to the controlling State, which will necessarily deny that the POWs depend on it. However, it is also unrealistic, and contrary to the idea of an IAC, that the territorial State must consult, inform or notify the proxy armed group. In any case, if the power on which the POWs depend does not react, consent, or conclude an agreement, the Convention offers a default regime. The notifications it receives will also reach the families of the persons concerned through the ICRC Central Tracing Agency in parallel.

Is the “Tadic theory” (un)justified?

The Tadić approach corresponds to legal logic. When applied in practice to proxy warfare, it raises, however, legal and practical problems. The fact that the proxy and the controlling State—by definition—deny control is only part of the problem. Even a proxy willing to apply IHL will confront serious difficulties. This post has shown that through a sometimes very innovative interpretation, it is possible to respect most of the requirements of the Convention (although not its letter).

Nevertheless, one may wonder whether the application of IHL applicable to IACs is unrealistic and, therefore, erroneous in such a situation. Is this a further example of a theory developed by an international criminal tribunal on IHL issues, after the fact, to facilitate the conviction of an accused? Can such standards be applied during the conflict, as they must if they belong to IHL?

If these standards cannot be applied during the conflict, they should be abandoned. Indeed, unrealistic rules do not protect anyone; they undermine the credibility and, therefore, the protective force of the entire IHL regime. Whether the Convention should apply, or whether the Tadić theory should be abandoned in an essential part—leaving the IHL applicable to NIACs to govern the rights and obligations of (members of) the proxy—remains an open question. The answer cannot be that proxies should not exist and be discouraged. Indeed, the very essence of IHL is that it applies to a situation, namely armed conflict, which should not exist and should be discouraged.

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Marco Sassòli is Professor of International Law at the University of Geneva, Switzerland, where Eugénie Duss has submitted but not yet defended her PhD thesis. This post is based on the results of the research completed by Eugénie Duss for her PhD on the IHL applicable in proxy warfare.

Photo credit: President of Ukraine