Lieber Studies POW Volume Symposium – Protecting POWs in Contemporary Conflicts

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

What protection must be accorded prisoners of war (POWs) in international humanitarian law (IHL)? How might this protection scheme shed light on the role of personal status categories in IHL? Many of the protections accorded POWs closely track the increasingly robust fundamental guarantees accorded all conflict-related detainees. Some POW protections, though, reflect a different protective logic. Indeed, POWs are overprotected with respect to the humanitarian baseline because of special considerations of fairness, honor, and respect tightly linked to the specific requirements for POW status. This line of analysis (1) makes clear the standard of treatment for POWs; and (2) helps clarify the role that status categories play in contemporary IHL.

Protections Accorded POWs

The Third Geneva Convention establishes a detailed standard of treatment for POWs. Although POWs may be interned for the duration of the hostilities, their detention is not punitive (GC III, art. 21). Detention is authorized instead only to prevent POWs from contributing to the military action of the party for which they fought. Mandatory minimum conditions of confinement are prescribed in detail (e.g., GC III, arts. 21-28). POWs have a right to release and repatriation at the end of the conflict (GC III, art. 118). POWs shall in all circumstances be treated humanely and protected against any cruel, inhumane, or degrading treatment (e.g., GC III, arts. 13-33). POWs are entitled in all circumstances to respect for their persons and their honor e.g., GC III, art. 14). They must be protected against “insults and public curiosity.” No acts of violence or intimidation may be directed against POWs (GC III, art. 13). Interrogational abuse is also broadly prohibited by the Third Geneva Convention (GC III, art. 17). The Third Geneva Convention includes a detailed inventory of fair trial rights—prescribing as a default that POWs be tried via the same procedure utilized for the armed forces of the detaining State (e.g., GC III, arts. 99-108). POWs have the right to communication with protective agencies (e.g., GC III, arts. 8-11). In addition, they may not be prosecuted for their simple participation in the hostilities—that is, they are entitled to “combatant immunity” (e.g., GC III, arts. 82, 85, 87-88). Moreover, the Third Geneva Convention makes clear that POW rights are inalienable and non-derogable (GC III, art. 7).

POWs and Status Categories in IHL

The most fundamental guarantees of fair and humane treatment apply to POWs not only because they satisfy the stringent requirements for POW status, but also simply because they are detained in connection with an armed conflict by an entity that classifies them as the enemy. There are special vulnerabilities associated with being made a prisoner by enemy forces in time of armed conflict. In the main, the nature and extent of these vulnerabilities do not meaningfully vary depending on whether the detainee was a member of the regular armed forces of the opposing forces, a civilian who took up arms, or a member of a partisan terrorist organization. Several important clusters of fundamental guarantees apply far more broadly—and plainly include persons not qualifying for POW status. Four of the most important are Common Article 3, the Fourth 1949 Geneva Convention, the fundamental guarantees provisions of AP I (e.g., art. 75) and II (e.g., arts. 4-6), and the fair trial rights of the penal repression regime established by the Geneva Conventions (e.g., GC III, art. 130). The protections accorded by these schemes mirror in many respects that accorded POWs.

Status categories have, therefore, become generalized—and the protections accorded them flattened. For this increasingly robust core of humanitarian protection, conflict classification and personal status matter less and less. In addition, the scope and content of these fundamental guarantees have been extended over time in ways that now arguably exceed the level of protection uniquely accorded POWs in some contexts. The most obvious example here is fair trial rights. The most critical point, though, is that much of the protection accorded POWs is not tightly linked to the specific requirements for POW status. POWs must be protected in most crucial respects not because they are members of the armed forces of a State (or members of a sufficiently regularized, private force belonging to a State), but because they are now-vulnerable human beings who no longer pose an immediate military threat to the detaining power.

Even so, some protections accorded POWs go beyond this humanitarian baseline. These protections reflect considerations and normative commitments only loosely connected to general concerns about inhumanity in time of conflict. They are grounded, instead, in the idea that POWs are entitled to a special measure of respect, honor, dignity, and fairness because they are members of armed forces sanctioned to fight on behalf of a sovereign State. In other words, these protections are tightly linked to the specific requirements for POW status. Many of them are relatively modest in the grand scheme of IHL—and the larger regime of atrocity prevention. In any case, they reflect a discernible moral logic. Understanding these protections helps isolate, with some precision, what is at stake in POW status determinations. These protections also help illustrate the kind of work that status categories do in contemporary IHL. Two distinct kinds of protections, with distinct rationales, merit discussion.

First, some POW protections are designed to accord members of the opposing armed forces the honor and respect befitting a professional soldier. For example, officer POWs may be bound to salute only detaining power officers of higher rank and the camp commander (GC III, art. 39). POWs must also be permitted to wear “badges of rank and nationality, as well as decorations” (GC III, art. 40). More generally, POWs are entitled “to be treated with the regard due their rank.” (GC III, arts. 44-45). The Third Geneva Convention also explicitly prohibits deprivation of rank as a disciplinary or judicial punishment (GC III, art. 87). And POWs may not be assigned to labor that would be looked upon as humiliating for a member of the detaining power’s own forces. (GC III, art. 52).

The most important example of this kind of protection is the right to “assimilation.” The Third Geneva Convention requires that POWs be assimilated along a few axes to the legal regime governing the armed forces of the detaining State. That is, POWs are subject to the same rules and procedures governing the armed forces of their captors (GC III, art. 82). Note that this POW right to trial by regular military court is, in many instances, a legal disability. It is well understood that trial procedures utilized by military courts often fall short of international due process standards, and typically fall short of the rights recognized in the parallel civilian system. In other words, the “same procedures, same courts” right accorded POWs has ambiguous protective consequences. The important point is that several specific protections in the Third Geneva Convention entitle POWs to be treated like members of the opposing armed forces—a suite of protections clearly linked to the specific requirements of POW status. But the humanitarian value of these protections is unclear—and the content of POW fair trial rights in this context has arguably been overtaken by the legal developments associated with fundamental guarantees.

Second, some protections are designed to guard against mistreatment of POWs for their loyalty, obedience, and allegiance to the State for which they fight. For example, POWs cannot be compelled to accept a parole agreement forbidden by the laws and regulations of the party to which they belong (GC III, art. 21). POWs may not be punished for escaping captivity, if recaptured. (GC III, art. 91). As the recently revised International Committee of the Red Cross Commentary on the provision explains

attempts to escape may be viewed as a demonstration of patriotism and of the most honourable intentions, and not as a crime. According to this precept, prisoners of war have a right, a moral duty, and sometimes, under the law of the Power on which they depend, even a legal obligation to escape (para. 3780).

More generally, POWs may not be compelled to take direct part in war efforts against the State of which they are nationals (e.g., Hague Regulations, art. 23(h)). If POWs face judicial punishment following criminal conviction, the sentencing authority must take into account that they owe allegiance to another sovereign and their predicament is due to circumstances beyond their control (GC III, art. 87).

Concluding thoughts

The Third Geneva Convention clearly provides substantial humanitarian protection to all POWs. Many of its important protections, though, are also recognized in generally applicable fundamental guarantees provisions of IHL. POWs are guaranteed many of these fundamental protections simply in virtue of their status as a conflict-related detainee. These entitlements flow not from the specific preconditions for POW status, but instead from the fact that they have been made subject to the authority of the enemy in time of armed conflict.

Quite separately, context-specific considerations of fairness, honor, and dignity suggest that POWs ought not be punished for their very participation in the fight and that they ought to be treated with the respect and honor befitting their professional military status. POWs are, therefore, accorded additional protections—including so-called “assimilation” rights and “combatant immunity”—which, in turn, suggest that the category of “prisoner of war” be defined in a sufficiently narrow way to align with these special concerns. The critical point is that special characteristics of POWs support their overprotection relative to the baseline required by the principle of humanity.

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Derek Jinks is the A.W. Walker Centennial Chair in Law at the University of Texas School of Law.

Photo credit: Bundesarchiv, Bild 101I-136-0877-08 / Plenik, Bruno / CC-BY-SA 3.0