Prisoner of War Status and Nationals of the Detaining Power

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| Sep 5, 2023

POW

As preparations for Ukraine’s spring 2023 offensive were underway, reports of Russian dissidents conducting cross-border raids from Ukraine into Russia began to surface. The groups were identified as the Liberty of Russia Legion (sometimes referred to as the Freedom of Russia Legion) and the Russian Volunteer Corps. More recently, the latter group is back in the news (and here) as consisting mainly of, and led by, white nationalists.

At the same time, many Ukrainians are likewise fighting against their own nation. Some are in the Russian armed forces, often due to an unlawful Russian draft in occupied territory. Others were members of the separatist forces in the Donbas region (Donetsk and Luhansk). In September 2022, the Duma passed legislation pulling them into the Russian Armed Forces. Five months later, the Russian Ministry of Defense integrated them into its command structure, where they are now part of the Southern Military District.

Collectively, they raise the issue of the status of such fighters under the law of armed conflict if captured by their country of nationality. Specifically, would Russian nationals captured by Russian forces enjoy prisoner of war status under the 1949 Geneva Convention III on the treatment of prisoners of war? An identical question would apply to Ukrainians captured by Ukrainian troops.

These possibilities have reignited a longstanding debate. On one side are those who argue that individuals falling into the various categories enumerated in Article 4A of the Convention qualify as prisoners of war, regardless of their nationality. The most prominent proponent of this view is the International Committee of the Red Cross (ICRC). On the other are those who argue that the detaining power is not obliged to recognize its own nationals as prisoners of war. This is the position of, for example, the United States.

In this post, we examine the issue, concluding that while both views are reasonable, the latter is more defensible as a matter of law. In arriving at that conclusion, we scrutinized Geneva Convention III and related conventions through the lens of treaty interpretation rules, case law, scholarship, and State practice. Our views on the issue are set forth in greater depth in a recently published article in International Law Studies.

Nationality Under Geneva Convention III

The relevant provision of Geneva Convention III is Article 4A, which sets forth the categories of persons who, having “fallen into the power of the enemy,” qualify for prisoner of war status (emphasis added). They encompass: members of the armed forces, including militia or volunteer corps that form part of the armed forces; members of other militia and volunteer corps, including resistance movements; members of the regular armed forces who profess allegiance to authorities the detaining power does not recognize; persons who accompany the armed forces without being members thereof, such as civilian employees; crews of merchant marine vessels and civil aircraft; and members of a levée en masse.

Nowhere in Article 4A is nationality referenced. This absence tracks that in earlier treaties dealing with prisoner of war status (Regulations annexed to both the 1899 Hague Convention II, and the 1907 Hague Convention IV, and the 1929 Geneva Convention). The ICRC and some commentators suggest that if the drafters had intended to make nationality a condition precedent to prisoner of war status, they would have expressly included that condition in the article’s text (ICRC 2020 Commentary, para. 971; Martinez, p. 52; Rogers, p. 37). That they did not is a fact advocates of this view find persuasive, if not dispositive.

The other view is that persons who are nationals of a Detaining Power are not entitled to the protected status (DoD Law of War Manual, §§  4.4.4.2, 4.5.2.5, 9.3.2.1). Proponents suggest that the mere absence of a condition in a treaty provision does not preclude the possibility of it being implied. For example, with respect to prisoner of war status for members of the armed forces (art. 4A(1)), the ICRC applies the Geneva Convention III conditions required of certain armed groups (art. 4A(2)), such as wear of a “fixed distinctive sign,” before they enjoy that status. This is despite no mention of the conditions in the relevant treaty provision (art. 4A(1)). Advocates of this “nationality matters” perspective similarly contend that the condition is inherent in the term “enemy” found in Article 4A.

Considering these competing viewpoints, treaty interpretation rules are especially useful in addressing the issue. Article 31(1) of the Vienna Convention on the Law of Treaties (to which the United States is not party but which it considers generally reflective of customary law) provides, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Those who would deny prisoner of war status to nationals of the detaining power contend that the former cannot be the enemy of the latter, as that term appears in Article 4A. By contrast, the ICRC suggests the term refers to the relationship between the detaining power and its State adversary, not between the detainee and the detaining power (ICRC 2020 Commentary, para. 964).

We favor the former understanding, based in part on the Vienna Convention’s requirement to look to the context of a term when interpreting it. As used in treaty law, “context” refers primarily to the remainder of a treaty’s text. In that regard, other articles within Geneva Convention III do not extend their protections to nationals of the detaining power. For instance, Article 87 on prisoner discipline provides that courts or authorities of the detaining power should consider the fact that the accused is not a national of the detaining power, and therefore does not owe it any duty of allegiance, and is in the detaining power’s control as the result of circumstances “independent of his own will,” when determining an appropriate penalty.

Similarly, Article 100 requires the same considerations to be brought to a court’s attention before a death sentence may be pronounced. Indeed, the 1960 Pictet Commentary on Geneva Convention III, published by the ICRC, labeled them “special factors” (p. 430). Because both articles protect only “prisoners of war” under Article 4A, we read them in “context” as excluding nationals of the detaining power from qualification for that status.

Moreover, Article 32 of the Vienna Convention provides that “preparatory work of the treaty and the circumstances of its conclusion” may be resorted to as a supplementary means of interpretation to confirm the meaning attributed to its text pursuant to Article 31 or to resolve uncertainty. Geneva Convention III’s travaux préparatoires, while relatively sparse on the subject, indicate that the government experts meeting thereon identified

[t]wo essential principles [that] should govern all clauses relating to proceedings and sentences concerning [prisoners of war] . . . namely: (a) as a rule, PW are not nationals of the DP, to which they owe no allegiance; [and] (b) as members of forces they owe a duty of obedience to their home country.

In our view, the plain language and drafting history of Articles 87 and 100 support a distinction between those who are not nationals of the detaining power and those who are; therefore, they weigh in favor of interpreting Article 4A as not extending prisoner of war status to a State’s own nationals.

Although most attention has focused on these two articles, others also lend support. For instance, Article 7 of Geneva Convention III provides that “[p]risoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention.” The Pictet Commentary notes that the article is meant, in part, to prevent prisoners of war from forfeiting their protected status by becoming, either by their free will or due to coercion, nationals of the detaining power. The drafters were concerned that “if such requests are granted, the applicants lose all entitlement to the Convention’s benefits, as they can no longer be considered as enemy nationals” (p. 88). In other words, Article 7 was included for the very reason that those who share the detaining power’s nationality did not benefit from prisoner of war status.

Context also includes “[a]ny instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty” (Vienna Convention, art. 31(2)(b)). Looking to the other Geneva Conventions that were produced contemporaneously with Geneva Convention III is therefore appropriate. In that regard, Article 4 of Geneva Convention IV on the treatment of civilians provides, “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” (emphasis added). This being so, those who would extend prisoner of war status to nationals of the detaining power would be arguing simultaneously that a State’s own civilians are not protected for purposes of that Convention, but nationals who are captured while fighting for the enemy are protected for the purposes of Geneva Convention III. This disparate treatment appears incongruent to us.

In addition to context, the object and purpose of a treaty must also be considered. We agree with the ICRC that Geneva Convention III is meant “‘to mitigate as far as possible, the inevitable rigours [of a war] and to alleviate the condition of prisoners of war” (ICRC 2020 Commentary, para. 144). But this object and purpose must be understood in light of the long-recognized general principle that international law rules are not meant to intrude upon the domestic affairs of States. If, as the 1958 Pictet Commentary recognizes, the exclusion of a State’s nationals from the protections of Geneva Convention IV is premised upon “remain[ing] faithful” to this principle, in that it does “not interfere in a State’s relations with its own nationals” (p. 47), why would the opposite hold true vis-à-vis Geneva Convention III? We suggest that it does not.

Case Law

Case law generally supports our interpretation. Most well-known in this regard is the United Kingdom’s Privy Council’s 1967 judgment in the Koi appeal case, which found that a Malaysian national fighting on behalf of Indonesia was not entitled to prisoner of war status while detained by Malaysian forces as a matter of customary law. The Privy Council reasoned that Geneva Convention III is “concerned with the protection of the subjects of opposing States and the nationals of other Powers in the service of either of them, and not directed to protect all those whoever they may be who are engaged in conflict and captured.”

Subsequent international tribunal judgments echo this understanding. For instance, in its 2013 Prlić judgment, the International Criminal Tribunal for the Former Yugoslavia concluded that a “teleological interpretation seeking to establish the objective of the Third Convention unambiguously leads to the conclusion that only those persons belonging to the armed forces of a Party other than the detaining Party are concerned” (para. 603), an interpretation with which the Appeals Chamber agreed (para. 359). In our view, U.S. case law, including Ex Parte Quirin, In re Territo, Hamdi v. Rumsfeld, and United States v. Lindh, may be interpreted, notwithstanding claims to the contrary, as consistent with these international cases (see our analysis here at p. 532-535).

Additional Protocol I

Despite our view that Geneva Convention III does not extend prisoner of status to nationals of the detaining power, it is necessary to ask whether the 1977 Additional Protocol I does. After all, Russia and Ukraine are Party to the instrument and bound by its terms. Our view is that it does not.

The first commentary on Additional Protocol I was prepared in 1982 by Michael Bothe, Karl Josef Partsch, and Waldemar Solf, all of whom participated in the diplomatic conference that produced the treaty. They cited “nationals of the Detaining Power” as among those categories of individuals who are not entitled to prisoner of war status (or, in their view, treatment) but are instead, according to Article 45(3) of the instrument, entitled to certain other protections outlined in Article 75 (p. 262). Michael Bothe maintained the position in his 2013 revised edition of the commentary (p. 296).

The ICRC’s 1987 Commentary on Article 45(3) implied the same view (para. 1761). It noted that there should be no gap in the protection of individuals. But it went on to observe that in “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination,” the “adversaries can have the same nationality” (emphasis added). That being so, and as explained above, they would not benefit from Geneva Convention IV’s civilian protections. To remedy this dilemma, the Commentary notes that they would enjoy the protections of Article 75, Fundamental Guarantees. But this observation generally would not have been necessary had they been entitled to the protected status in the first place. At least in 1987, therefore, the ICRC seems to have taken a similar approach as Bothe, Partsch, and Solf five years earlier (although the text is admittedly not directly on point).

Scholarship

The scholarly community has long recognized that, upon capture, nationals of the detaining power are subject to exceptions under the law of armed conflict. In 1758, for instance, Emmerich de Vattel, writing in The Law of Nations, observed that States often discriminated against their own nationals who served in the ranks of the enemy (extract p. 527). In the last century, Lassa Oppenheim, a giant of modern international law, took the position in International Law: A Treatise that “[t]he privileges of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals.” Lest the currency of Oppenheim be questioned, both the Privy Council’s in Koi and the Department of Defense in its Law of War Manual (§ 4.4.4.2, n. 86) cite his position as authority for confirming that prisoner of war status does not extend to a Detaining Party’s nationals.

More recently, Yoram Dinstein, arguably the most influential law of armed conflict scholar in the past half-century, has opined that the “lack of duty of allegiance to the Detaining Power” is a condition for lawful combatancy and, therefore, prisoner of war status (para. 160). In contrast, Marco Sassoli, also a distinguished thinker in the field, has observed (with Eugénie Duss) that “[u]nder the wording of Convention III,” nationality should be “irrelevant.” But he goes on to acknowledge that “[t]he majority view in military manuals, a judicial precedent, and scholarly writings is that [nationals of the detaining State] do not have POW status” (p. 19).

State Views

At least in the United States, there has been consistency on the matter for over 150 years. Article 48 of the 1863 Lieber Code, for example, provided that those who betrayed their country did not enjoy the privileges afforded to other combatants upon capture: “Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American Army.”

Current guidance on the matter remains unchanged. The Army and Marine Corps The Commander’s Handbook on the Law of Land Warfare provides that “[t]he special privileges international law affords lawful combatants do not apply between nationals and their own State. For example, provisions of [Geneva Convention III] recognize that nationals of the detaining power are not [prisoners of war]” (para. 1-53). The DoD Law of War Manual similarly states that “the privileges of combatant status are generally understood not to apply, as a matter of international law, between nationals and their State of nationality” (§ 4.5.2.5; see also §§ 4.4.4.2, 9.3.2.1).

Military manuals of other States similarly point to nationality as a relevant consideration. For instance, Denmark’s Military Manual on the International Law Relevant to Danish Armed Forces in International Operations (p. 483) states, “The adversary’s deserters may claim prisoner-of-war status if they are deprived of liberty. By contrast, defectors will not be entitled to this status if they have defected before they were deprived of liberty.” The term defector refers to a “person who leaves his or her country’s armed forces and joins the opposing side.” There is ample evidence that the United States does not stand alone in denying prisoner of war status to its nationals.

Concluding Thoughts

As noted at the outset, we find both views reasonable. Nevertheless, our examination of the subject finds more support for the premise that nationals of the detaining power do not enjoy prisoner of war status and its associated protections. Moreover, ambiguities remain, such as the meaning of the term nationality in the context of the law of armed conflict, a subject that we discuss in more depth in our International Law Studies article. Therefore, we end by reminding readers that in cases of doubt as to the status of detainees under Geneva Convention III, they enjoy the Convention’s protections until a competent tribunal determines their appropriate status pursuant to Article 5 of that instrument.

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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

Lieutenant Colonel William C. Biggerstaff is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.

 

Photo credit: Ministry of Defense of Ukraine.