Lieber Studies POW Volume Symposium – Prisoners of War in Contemporary Conflict
Following the International Committee of the Red Cross (ICRC) launch of its updated Commentary on the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, West Point’s Lieber Institute on Law and Warfare intended to convene an expert-driven workshop focusing on the law governing prisoners of war (POWs). The objective would be to engage the broader law of armed conflict community on the critical issues raised in the ICRC’s work. Unfortunately, the COVID-19 pandemic made it impossible to hold the workshop. However, given the importance of the issue and its centrality to the law of armed conflict, as well as the relative paucity of treatment of the subject in recent scholarship, the Lieber Institute decided to continue the project in written form.
The outcome of that effort, Prisoners of War in Contemporary Conflict, which we co-edited, will soon be available from Oxford University Press. It is the latest volume in the Lieber Studies series, the Institute’s flagship scholarly publication.
Sadly, the project became very timely in February 2022, as the second phase of the Russian invasion of Ukraine focused global attention on the treatment of POWs and other detainees during international armed conflicts. Questions about how the law of detention applies quickly took on legal and strategic significance; they continue to do so today. Indeed, events on the battlefield forced contributors to rethink and rework their assessments mid-stride. For instance, we had to adapt our own chapter as the conflict unfolded, for it was based on an Articles of War post published in the first days of the Russian assault.
Of course, the issues of who is entitled to POW status and how they are to be treated are not unique to the current conflict. The treatment of POWs is governed by a thick web of LOAC rules designed to ensure humane treatment of those in captivity from the moment of capture until their release—rules that have evolved over time and are grounded in the experience of two world wars and multiple, smaller international armed conflicts. Yet, even as detailed as these rules are, facets of them remain ambiguous.
We asked contributors to zero in on unsettled, confusing, unaddressed, or problematic issues. The result is a book in three parts. Part I examines qualification for POW status. Discussion then moves in Part II to the treatment to which POWs are entitled. Finally, Part III concludes with a consideration of the historical relevance of, and perspectives on, the international law governing POWs.
As a preview of the work, Articles of War will publish a selection of five posts adapted from chapters in the book:
The forum begins with a piece by the Lieber Institute’s co-Director, Sean Watts. In it, he explores how the Third Convention employs military assimilation—incorporation of a detaining power’s own military treatment standards—to protect prisoners of war. Professor Watts critiques overbroad generalizations of military assimilation, including its alleged character as a “principle” of the Convention. He also warns especially of recent uses of military assimilation to springboard novel protective claims into the Convention’s carefully negotiated and battle tested regime of protection.
Derek Jinks of the University of Texas examines the protective logic of POWs, arguing that POWs enjoy additional protections from a humanitarian baseline because of special considerations of fairness, honor, and respect that are tightly linked to the specific requirements for POW status. He then offers a qualified normative defense of the special protections.
Marco Sassóli and Eugénie Duss of the University of Geneva consider detention during proxy warfare, specifically the detention of territorial State POWs by organized armed groups, and vice versa. They analyze the practicality of requiring armed groups under the overall control of a foreign State to comply with international humanitarian law concerning the treatment of POWs, as well as compliance by the territorial State. Particular attention is paid to when and how such POWs will be released and repatriated.
Emily Crawford of the University of Sydney highlights that despite its obscurity, Article 21 of Geneva Convention III, which provides for parole of POWs, is “arguably, the pivotal provision of Geneva Convention III” because it “provides explicit legal authority for States to detain” captured POWs. Despite parole reaching its “zenith” in the 18th and 19th centuries, she recognizes that the law of armed conflict must remain “resilient and flexible” and that “having more, rather than fewer, protections for POWs is wise,” for the future nature of armed conflict remains hard to predict.
Eric Talbot Jenson of Brigham Young University concludes the symposium and writes on the modern considerations bearing on the qualification of civilians as “accompanying the force” and thus entitlement to POW status. Professor Jensen argues that while the traditional “proximity” test continues to be applicable, there are cases where functionality, or a civilian’s importance to the armed forces, might also need to be considered.
Every conflict presents novel challenges and questions regarding the treatment of POWs. How States address them largely determines the vector of this central component of the law of armed conflict. Therefore, continued reflection on such issues is paramount in ensuring that the delicate balance between military and humanitarian considerations that underpins the law of armed conflict. Indeed, as the drafters of Geneva Convention III understood over seventy years ago, the law aims “to mitigate, as far as possible, the inevitable rigours [of a war] and to alleviate the condition of prisoners of war.” It is through that lens that scholars and practitioners should understand the rules governing POWs, and with which readers should approach this book.
Chris Koschnitzky is a Major in the United States Army Judge Advocate General Corps. In his current assignment, he advises commanders on the law of armed conflict in the Pacific theater.
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; Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College; and Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas.
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