The Authority To Intern Prisoners of War in International Armed Conflict

6.
The authority to intern prisoners of

war in international armed conflict
Under IHL, internment is a non-punitive, non-criminal form of deprivation
of liberty, imposed for security reasons during an armed conflict. It is hence
a forward-looking, preventive measure that cannot serve as a punishment for
acts committed prior to the person’s arrest or capture.1 IHRL will usually
refer to similar forms of deprivation of liberty through the notions of security
detention or administrative detention. It should be noted here that this Part
focuses on internment and deliberately ignores questions related to the author-
ity to detain persons for purposes of prosecution or post-trial detention. It is
submitted that the authority to detain such persons is sufficiently developed
and accepted and does not pose the same legal challenges as the authority or
permission to intern.
It is undeniable that internment is a factual reality in armed conflict,2
recognized as ‘a necessary, lawful and legitimate means of achieving the
objectives of international military operations’.3 What is more controversial is
whether IHL contains the permission (or authority or power) to intern certain
individuals or categories of individuals during armed conflict. This question
is symptomatic of the relationship between IHL and IHRL: the question of
whether IHL contains any permission is in practice primarily made relevant
because of the requirements of IHRL. Internment is the typical example in
this respect as a legal basis needs to exist in order for a deprivation of liberty
to be lawful under IHRL. By contrast, IHL does not require the existence of
a permission before a conduct can be resorted to. When it comes to internment,
1
For a similar definition, see Sandesh Sivakumaran, The Law of Non International
Armed Conflict (Oxford: Oxford University Press, 2012), 301.
2
See e.g. ICRC, ‘Internment in Armed Conflict: Basic Rules and Challenges’,
Opinion Paper, November 2014, 7, at https://www.icrc.org/en/document/internment
-armed-conflict-basic-rules-and-challenges (accessed 10 February 2020); ICRC,
XXXIInd International Conference of the Red Cross and Red Crescent, Resolution 1
‘Strengthening International Humanitarian Law Protecting Persons Deprived of their
Liberty’ (December 2015), Preamble.
3
The Copenhagen Process on the Handling of Detainees in International Military
Operations (The Process): Principles and Guidelines (19 October 2012), Preamble,
para. III.
97
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98 The nature of international humanitarian law
no conventional rule of IHL requires the existence of a legal basis to intern

persons during armed conflict. In addition, even the customary IHL rule pro-
hibiting arbitrary deprivation of liberty has not been interpreted by the ICRC
as specifically requiring the existence of a legal basis. Rather, the ICRC Study
on Customary IHL explains that IHL aims at preventing arbitrary deprivation
of liberty by ‘specifying the grounds for detention based on needs, in particular
security needs’.4 The Commentary does not mention the need for a legal basis,
and rather insists on the existence of grounds and procedures under IHL.
Although contemporary debates have mainly focused on NIAC, it appeared
logical to start our own discussion here with contexts of IAC, for several
reasons. First, IACs are often overlooked within contemporary discussions on
the development of IHL on the assumption that the IHL of IAC is sufficiently
developed and provides answers to most, if not all, issues arising out of such
conflicts. Second – probably as a consequence of the first point – it seems that,
when it comes to internment, there is a general agreement that the IHL of IAC
provides a sufficient authority to intern, however a detailed analysis is not
always offered as to what such authority actually entails.5 Third, it appeared
important to clarify the existence (or absence) of permissions in the IHL of
IAC before moving to situations of NIAC for the reason that the law governing
the former is often used by analogy to fill in the gaps in the law governing
the latter. This is precisely the case for internment of persons: during initial
discussions in the framework of the ICRC’s initiative aimed at strengthening
the legal protection for persons deprived of their liberty, frequent references
were made to the language used in the relevant provisions of GCIII and GCIV
in order to determine what the legal grounds justifying internment in NIAC
should be.6
For reasons of space limitations, we made the decision to focus our study of
internment in IAC on two categories of persons: prisoners of war and civilian
4
ICRC, Customary IHL, IHL Database, at https://ihl-databases.icrc.org/customary
-ihl/eng/docs/home (accessed 10 February 2020), Rule 99, Commentary.
5
With the notable exception of Els Debuf’s excellent study on the topic: Els
Debuf, Captured in War: Lawful Internment in Armed Conflict (Paris: Pedone, 2012).
See also ICRC, ‘Internment in Armed Conflict’, Opinion Paper (n 2), 1, 3–6.
6
See e.g. ICRC, Strengthening International Humanitarian Law Protecting
Persons Deprived of their Liberty. Synthesis Report from Regional Consultations of
Government Experts (Geneva: ICRC, November 2013), 15–17; ICRC/Chatham House,
‘Expert meeting on procedural safeguards for security detention in non-international
armed conflict. Chatham House and International Committee of the Red Cross,
London, 22–23 September 2008’, International Review of the Red Cross, Vol. 91, No.
276 (2009), 864–865; Ramin Mahnad, ‘Beyond Process: The Material Framework for
Detention and the Particularities of Non-international Armed Conflict’, Yearbook of
International Humanitarian Law, Vol. 16 (2015), 33–51.
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The authority to intern prisoners of war in IAC 99
internees. This Part leaves aside, for instance, questions related to the authority
to intern (or rather, retain) the medical and religious personnel attached to
a party’s armed forces during an IAC. This issue has not been the object of
substantive legal challenges or debates in recent years and we would refer the
reader to Els Debuf’s work for further analysis.7
We shall start with prisoners of war, who are historically and conventionally
– although not contemporarily – the typical category of internees during IAC.
For that reason, it is relevant to start with the question of the permission to
intern them under IHL. Article 21 of GCIII states that ‘[t]he Detaining Power
may subject prisoners of war to internment’. Based on our definition of strong
permissions, it is clear that the article amounts to such a permission. Indeed,
there is no room for ambiguity here: the use of the modal verb ‘may’ denotes
a permission; and the latter is expressly worded. In addition, the position that
Article 21 of GCIII should be considered as a strong permission to intern pris-
oners of war in IAC is largely shared. Nevertheless, several questions should
be considered here. We shall first confirm the interpretation of Article 21 of
GCIII as a permissive rule allowing the internment of enemy combatants. This
will include a brief examination of the historical development of the permis-
sion to intern prisoners of war, as well as a discussion on how the principle
of military necessity serves as an underlying source of the permission. But
beyond enemy combatants, one may wonder whether Article 21 of GCIII also
7
Debuf, Captured in War (n 5), Chapter II-2. We agree with Debuf that the
general rule is that they should not be interned, for they do not pose a security or mili-
tary threat that would justify their internment. In any event, medical and religious per-
sonnel protected under GCI and GCII could not be interned on the basis of the relevant
provisions applicable to the internment of civilian internees. Art. 4 of GCIV excludes
them from the category of protected persons for the purposes of GCIV. Furthermore,
the right to adequate medical care and spiritual assistance of combatants ‘cannot effec-
tively be ensured unless the medical and religious personnel of the armed forces are
allowed to stay with their troops and carry out their functions at all times’ (ibid., at
266). When it comes to religious, medical and hospital personnel of hospital ships
and their crews, Art. 36 of GCII states that ‘they may not be captured during the time
they are in the service of the hospital ship, whether or not there are wounded and sick
on board’. In certain circumstances, however, medical and religious personnel may
be retained by the adverse party. The permission is granted under Art. 28 of GCI, but
internment remains an exceptional measure, allowed ‘only in so far as the state of
health, the spiritual needs and the number of prisoners of war require’ (Art. 28 GCI). In
addition, Art. 37 of GCII envisages the retention of religious and medical personnel on
ships others than those covered in Art. 36 mentioned above. For further reflexions on
these articles and their contemporary interpretation, see ICRC, Updated Commentary
on the First Geneva Convention (Cambridge: Cambridge University Press, 2016), in
particular Commentary on Arts 28 and 29; ICRC, Updated Commentary on the Second
Geneva Convention (Cambridge: Cambridge University Press, 2017), in particular
Commentary on Arts 36 and 37.
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allows the internment of other persons considered as prisoners of war. Finally,

we should not forget that Hague Conventions V and XI, as well as GCIII, refer
to the internment of enemy belligerents in neutral States.
1. A STRONG PERMISSION TO INTERN ENEMY

COMBATANTS
As mentioned, Article 21 of GCIII states that ‘[t]he Detaining Power may

subject prisoners of war to internment’. Typically, the primary category of
persons concerned by the permission are the members of the armed forces
of the enemy State(s) in an IAC. The historical development of Article 21 of
GCIII confirms that IHL provides a permission to intern enemy combatants
and that such permission is linked to the military necessity of preventing
enemy combatants from returning to the battlefield.
1.1 Brief Historical Account of the Authority to Intern Prisoners of

War
The question of whether IHL permitted belligerents to intern prisoners of war

was not considered a relevant one before the development of modern IHL.
There is a simple reason why the authority to intern was not tackled earlier:
soldiers that had fallen into the hands of the enemy were historically deemed to
be at the mercy of their captors, who enjoyed full de facto powers over them.
Jean Pictet mentions in his Commentary on GCIII that ‘[i]n ancient times,
the concept of “prisoner of war” was unknown and the defeated became the
victor’s “chattel.”’.8 As a consequence, ‘[t]he captive could be killed, sold,
or put to work at the discretion of the captor. No one was as helpless as an
enemy prisoner of war.’9 This was particularly the case as, until around the
Renaissance, the enemy soldier who had been captured was considered as
being in the hands of his individual captor.10 This only changed around the
Thirty Years’ War, when the prisoner came ‘to be considered as being in the
custody of the enemy State, rather than of the individual captor’.11
8
Jean Pictet (ed.), Commentary on the Third Geneva Convention relative to the
Treatment of Prisoners of War (Geneva: ICRC, 1960), 4.
9
US, The United States Army Judge Advocate General’s Legal Center and
School, Law of Armed Conflict Deskbook, 5th ed. (Charlottesville: TJAGLCS, June
2015), 67.
10
Howard S. Levie, ‘Prisoners of War in International Armed Conflict’,
International Law Studies, Vol. 59 (1979), 5.
11
Ibid. See also Art. 23 1874 Declaration of Brussels, Art. 4 1907 HR and Art.
12(1) GCIII.
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From that point on, we started seeing the inclusion of references to prison-
ers of war in instruments on the laws of war, whether unilateral, bilateral or
international. Nevertheless, the first instruments to include some degree of
protection for prisoners of war12 do not make explicit references to the author-
ity to intern such persons.13 This was considered as too obvious to be explicitly
stated, and such instruments limit themselves to progressively granting protec-
tions to prisoners.
The first text to include some enunciation of the idea that enemy soldiers
may be taken as prisoners of war is the Lieber Code.14 The latter is a unilat-
eral instrument meant to regulate the conduct of the Union forces during the
American Civil War. Without going as far as containing a strong permission, it
nevertheless explicitly states a fact considered obvious until then: that enemy
soldiers will be taken as prisoners. Article 49 lists categories of persons who,
upon capture, shall be regarded as prisoners of war and benefit from the protec-
tions the Code grants such prisoners.15 Yet, the wording refers to the likelihood
that enemy belligerents will be captured and ensures that in such case they will
be correctly treated. It does not contain any of the elements that would denote
a strong permission. And for good reason: nothing prohibited the capture and
internment of enemy soldiers, and hence such permission was never regarded
as necessary.
The first provision containing a permissive wording appeared in the
Brussels Declaration in 1874. Article 24 thereof states that ‘[l]es prisonniers de
guerre peuvent être assujettis à l’internement dans une ville, forteresse, camp
ou localité quelconque, avec obligation de ne pas s’en éloigner au delà de cer-
12
Note that the latter were not called prisoners of war then.
13
At the national level, some official texts directly relate to the treatment of prison-
ers of war. See e.g. Decree of 4 May 1792 of the French National Assembly Concerning
Prisoners of War (4 May 1792), Decree of 3 August 1792 of the French National
Assembly Concerning Prisoners of War Captured in Combat (3 August 1792), Decree
of 16 September 1792 of the French National Assembly concerning the Exchange
of Prisoners of War (16 September 1792), Decree of 25 May 1793 of the French
National Convention concerning a Uniform Method for the Exchange of Prisoners
(25 May 1793), Imperial Decree of 4 August 1811 Concerning Prisoners of War and
Hostages (France) (4 August 1811), Opinion of the King’s Advocate Concerning the
Improper Treatment of Prisoners of War (Great Britain) (24 October 1832). At a bilat-
eral level, see e.g. Cartel for the Exchange of Prisoners of War between Great Britain
and the United States of America (12 May 1813), the ‘Dix-Hill Cartel’ for the General
Exchange of Prisoners of War entered into between the Union and Confederate Armies
(22 July 1862). In general, see Howard S. Levie, ‘Documents on Prisoners of War’,
International Law Studies, Vol. 60 (1979).
14
Instructions for the Government of Armies of the United States in the Field.
General Order No. 100 (Lieber Code) (24 April 1863).
15
Art. 49, para. 2 of the Lieber Code.
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taines limites déterminées; mais ils ne peuvent être enfermés que par mesure
de sûreté indispensable’.16 Article 34 then acts as a confirmation that Article
24 is a strong permission. Article 34 indeed provides that ‘[p]euvent également
être faits prisonniers les individus qui, se trouvant auprès des armées, n’en font
pas directement partie, tels que : les correspondants, les reporters des jour-
naux, les vivandiers, les fournisseurs, etc. …’.17 The inclusion of ‘également’
is a reference to Article 24: persons accompanying armed forces may also
be made prisoners, just like combatants from enemy forces. The permissive
wording concerning the internment of prisoners of war was preserved in the
Hague Regulations annexed to the 1899 and 1907 Hague Conventions. The
latter were the first international texts to give prisoners of war ‘a definite legal
statute to protect them from arbitrary treatment by the Detaining Power’.18
Both Articles 5 of the 1899 and 1907 Regulations are an exact copy of Article
24 of the Brussels Declaration.19
This permissive wording may be understood in two different ways. First,
the provision can be understood as intended to provide a permission, where
the emphasis would be placed on ‘prisoners of war may be interned’, the
rest of the sentence only specifying where they may be held once they have
fallen into the Detaining Powers’ hands. Alternatively, the emphasis can be
seen as being on the location: ‘prisoners of war may be interned in a town,
fortress, camp, or other place’. The idea in this case is rather to circumscribe
the geographical limits of prisoner-of-war camps than to provide a legal basis.
A review of the 1929 Geneva Convention related to prisoners of war20 seems
to support the second reading. Article 9 of the 1929 GC reproduces Article 5
of the HR, but with some non-negligible additions. The phrase ‘prisoners of
16
Actes de la conférence de Bruxelles de 1874 sur le projet d’une convention inter-
nationale concernant la guerre: protocoles des séances plénières: protocoles de la
commission déléguée par la conférence: annexes / Conférence intergouvernementale
[Ministère des affaires étrangères] (Paris: Wittersheim, 1874), 61 (English version:
Prisoners of war may be interned in a town, fortress, camp, or other place, under obli-
gation not to go beyond certain fixed limits; but they can only be placed in confinement
as an indispensable measure of safety).
17
Ibid., 62 (English version: Individuals in the vicinity of armies but not directly
forming part of them, such as correspondents, newspaper reporters, sutlers, contractors,
etc., can also be made prisoners. These prisoners should however be in possession of
a permit issued by the competent authority and of a certificate of identity).
18
Pictet, Commentary on the Third Geneva Convention (n 8), 5.
19
James Brown Scott (ed.), Proceedings of The Hague Peace Conferences:
Translation of the Official Texts, Prepared in the Division of International Law of the
Carnegie Endowment for International Peace (New York: Oxford University Press,
1920–1921), 421.
20
Convention for the Amelioration of the Condition of the Wounded and Sick in
Armies in the Field (Geneva, 27 July 1929) (1929 GC).
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war may be interned in a town, fortress, camp, or other place’ shall now be
read in conjunction with the fourth paragraph of Article 9: ‘[n]o prisoner may
at any time be sent to an area where he would be exposed to the fire of the
fighting zone, or be employed to render by his presence certain points or areas
immune from bombardment.’21 Read together, it seems that the purpose was to
clarify what areas are appropriate to hold enemy belligerents captive. Towns,
villages, fortresses, camps, and other places are appropriate places, as long as
they do not expose the prisoners to the dangers of war. The purpose of granting
a permission may hence have been completely absent.
Nevertheless, the underlying motive of the drafters is of little importance
here. Whether they primarily intended to grant a permission to intern prisoners
of war, or to limit the acceptable area of internment, the result is the same. If it
is permitted to intern prisoners of war in a town, fortress or camp, it is permit-
ted to intern them. The focus on the location of internment only suggests that
the permission to intern was taken for granted. In this wording, the reference to
the place of internment only serves as a limitation to the initial permission to
intern: it is permitted to intern prisoners of war, except in inappropriate places.
The wording remained similar until 1949. The travaux préparatoires to
GCIII confirm our reading. During the Diplomatic Conference that led to
the adoption of the GCs, what we now know as Article 21 of GCIII was the
result of a division between the three different questions dealt with in Article
9 of the 1929 GC.22 The authors of the Draft International Conventions for
the Protection of War Victims (‘Stockholm draft’)23 had preferred to sepa-
rate those three aspects into what eventually became the current Article 21
(restriction of liberty of movement), Article 22 (places and conditions of
internment) and Article 23 of GCIII (security of prisoners). Regarding the
first aspect (restriction of liberty of movement), Article 19 of the Stockholm
draft is said to ‘reproduce the substance of the first paragraph of Article 9 of
the 1929 Convention, which dealt with the places in which prisoners of war
might be interned and provided that they might even be confined or imprisoned
when reasons of health made it necessary’.24 The permission is hence clearly
expressed.
21
Art. 9, para. 4, of the 1929 GC.
22
Final Record of the Diplomatic Conference of Geneva of 1949, Diplomatic
Conference for the Establishment of International Conventions for the Protection of
War Victims (Geneva, 21 April–12 August 1949), Vol. II-A, 252.
23
Text of the Draft International Conventions for the Protection of War Victims as
approved by the XVIIth International Red Cross Conference at Stockholm in August 4,
1948 (taken as the basis for discussion at the Diplomatic Conference, and often referred
to as the Stockholm draft).
24
Final Record (n 22), Vol. II-A, 252.
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This was, however, not of major importance to the drafters. The Final
Record of the Diplomatic Conference in general attests that no attention was
paid to the question of the permission to intern prisoners of war. All discus-
sions related to Article 19 of the Stockholm draft (to become Article 21)
focus on the second and third paragraphs of the article, related to release on
parole.25 Yet, as mentioned, the result is that the internment of prisoners of war
is permitted. The fact that the introduction of an explicit permission was not
noticed as a major change only shows that such permission was considered as
obvious. In that respect, it is also interesting to note that even Jean Pictet does
not deal with the question of the permission to intern prisoners of war in his
Commentary on GCIII26 and instead also takes such permission as obvious: in
order for a Detaining Power to keep enemy combatants under its power, ‘[t]he
usual method used for this purpose, expressly authorized by this paragraph of
the Convention, is internment’.27
In the end, it appears that Article 21 of GCIII was not seen as bringing any
major change to existing law; nevertheless, it would be incorrect to interpret
this as a sign that Article 21 cannot be regarded as permissive. To the contrary,
the discussions presented above reinforce the idea that the article only reflects
what had always been taken for granted: that belligerents had the power to
capture and intern enemy combatants. Article 21 of GCIII should in that
respect be understood as reflecting ‘international custom since the mid-17th
century’.28 The authority to intern prisoners of war was always considered
inherent in the belligerents’ powers during war and in that sense ‘beyond
controversy’.29 And at least since the 1899 Hague Regulations, a binding
instrument has expressly contained the permissive wording attesting to the
existence of that power under IHL. Today, Article 21 only spells out the
obvious: overcoming the enemy necessitates weakening its military forces to
the largest possible extent, including by preventing its armed forces from par-
ticipating in hostilities by way of internment.30 In that sense, as will be further
explained now, the principle of military necessity acts as the underlying source
of the permission.
25
The discussion around Art. 19 of the Stockholm draft are reproduced in ibid.,
Vol. II-A, 252–253, 347, 353, 391–392, 472–474, 564, 581, and in Vol. II-B, 267 and
281.
26
Pictet, Commentary on the Third Geneva Convention (n 8), 178–179: the section
in the Commentary deals with the first paragraph of Art. 21 and makes no mention of
the legal basis or of the permissible grounds for internment.
27
Ibid., 178.
28
Debuf, Captured in War (n 5), 228, footnote 747.
29
Ibid., 228.
30
Ibid.
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1.2 Article 21 of GCIII: a Strong Permission Derived from the

Principle of Military Necessity
As discussed in Chapter 3,31 military necessity as a fundamental principle of

IHL is not in itself sufficient to serve as a strong permission for specific acts. It
is a norm-creation principle, but not a self-sufficient permissive norm. In other
words, the principle of military necessity cannot be used on its own to author-
ize the internment of prisoners of war. However, the principle usually serves
as the underlying basis for more specific provisions, which in turn do provide
permissions. We argue this is the case for Article 21 of GCIII.
Article 21 can be considered as an embodiment of the idea that internment
of enemy combatants is a necessary act of war. In order to weaken the military
forces of the enemy, and hence ‘pursuant to the principle of military neces-
sity’, it is necessary ‘to prevent them from returning to hostilities or engage in
activities threatening the security of the capturing force’.32 In parallel, it should
be added that internment as a solution to prevent such return to hostilities
also derives from the principle of humanity, the other side of the principle of
military necessity. Indeed, without humanitarian considerations in the balance
against military necessity, a solution would have been to deny quarter to all
captured enemy combatants. However, for obvious humanitarian reasons, the
denial of quarter is prohibited and all persons hors de combat are protected
against attacks.33 As a consequence, interning captured enemy combatants,
while a means to prevent their return to the battlefield, is also a means to spare
their lives.
The link between the underlying purpose of weakening enemy forces, the
principle of military necessity, and the internment of enemy combatants is
confirmed by State practice, military doctrine and scholarly writings. The
Canadian Joint Doctrine Manual states that ‘[t]he taking of PW [prisoners of
war] reduces the enemy’s numerical strength and fighting capacity’,34 while
their Code of Conduct for CF [Canadian Forces] Personnel explains that ‘[t]he
primary reason for which members of the CF may be called upon to detain
individuals in the course of an operation are to prevent their further participa-
31
Chapter 3, Section 3, at page 27.
32
See Geoffrey S. Corn, Victor Hansen, Richard B. Jackson, Chris Jenks, Eric
Talbot Jensen and James A. Schoettler, Jr., The Law of Armed Conflict: An Operational
Approach, 2nd ed. (New York: Wolters Kluwer, 2019), 173.
33
See Arts 40 and 41 API; Rules 46–47 of the ICRC’s Study on Customary IHL
(ICRC, Customary IHL, IHL Database (n 4)).
34
Canada, Joint Doctrine Manual: Prisoner of War Handling: Detainees and
Interrogation and Tactical Questioning in International Operations (2004), Art. 101,
1-1.
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tion in a conflict or, when authorized, to prevent them from interfering with the
military mission’.35 In turn, the 2005 Military Manual of the Netherlands states
that ‘[c]aptivity in war is not a punishment, but only a means of preventing
the opponent from playing any further part in the conflict’.36 Turning to inter-
national caselaw, the International Military Tribunal referred in 1947 to the
statement made by Admiral Canaris that ‘war captivity is … solely protective
custody, the only purpose of which is to prevent the prisoners of war from
further participation in the war’.37 More recently, the United States has consist-
ently considered internment of enemy belligerents as a normal act of war jus-
tified by military necessity. It argued, for example, before the Inter-American
Commission on Human Rights that ‘[t]he petitioner’s detention and treatment
were justified under the 1949 Geneva Convention III … as in furtherance of
lawful military objectives’, and stated that ‘[t]he Geneva Conventions … do
authorize deprivation of liberty under certain circumstances’.38 In addition,
in relation to the internment of a US-born Italian soldier by the United States
in the Second World War, the US Ninth Circuit Court of Appeals held that
‘[t]he object of capture is to prevent the captured individual from serving the
enemy’.39 This has been a consistent reading by US jurisdictions, including in
Hamdi v. Rumsfeld,40 which itself made reference to a similar reference in Ex
parte Quirin.41
Doctrine generally shares that conception. Among others, we can refer
to Christiane Shields-Delessert, who writes that ‘[c]onquered and disarmed
enemies could be captured, but the purpose of making them prisoners was to
preclude them from taking up arms again and to weaken the enemy’.42 More
recently, Geoffrey Corn, Victor Hansen, Dick Jackson, Chris Jenks, E. Talbot
35
Canada, Office of the Judge Advocate General, Code of Conduct for CF
Personnel (2005), 2–9.
36
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschrift No. 27-412,
Koninklijke Landmacht, Militair Juridische Dienst, 2005, para. 0224(b).
37
International Military Tribunal at Nuremberg, Case of Goering et al., Judgment,
1 October 1946, reproduced in The Trial of German Major War Criminals. Proceedings
of the International Military Tribunal sitting at Nuremberg, Germany Part 22 (22
August 1946 to 1 October 1946), 452.
38
IACmHR, Coard et al. v. United States, Case No. 10.951, Report No. 109/99, 29
September 1999, paras 30 and 47.
39
US, Ninth Circuit Court, In re Territo, 156 F. 2d 142 (CA9 1946), para. 145.
40
US, Supreme Court, Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., 542
U.S. 507 (2004), para. 517.
41
US, Supreme Court, Ex parte Quirin, 317 U.S. 1 (1942), 28.
42
Christiane Shields-Delessert, Release and Repatriation of Prisoners of War at
the End of Active Hostilities: A Study of Article 118, Paragraph 1, of the Third Geneva
Convention Relative to the Treatment of Prisoners of War (Zurich: Schulthess, Études
suisses de droit international, 1977), 29–30.
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Jensen and James Schoettler write that ‘[i]t is axiomatic that preventing cap-
tured enemy belligerent operatives from returning to hostilities is necessary
to bring about the enemy’s prompt submission’.43 In doing so, they too insist
on the principle of military necessity as part of the ‘foundation for military
detention’.44 For other authors, military necessity functions in a restrictive
or limitative manner, although with the same result: ‘The “authorization” to
intern is better understood as a limit on the kinds of force states do and will use
to confine PoWs’ – indeed, ‘States cannot “detain” or kill PoWs as a means to
prevent their return to the fight, but they may, though they need not, “intern”
them’.45
For many authors however, the reason for interning prisoners of war does
not even need to be mentioned. As Els Debuf insists, the fact that military
necessity is the underlying reason for internment of prisoners of war is ‘so
generally recognized that most scholars writing about prisoners of war do not
examine the grounds for prisoner of war internment, or even the lawfulness
of such internment’. And indeed, ‘[n]either Levie (1978) nor Rosas (1976)
devotes any attention to this issue in their comprehensive analysis of the pris-
oners of war regime under international humanitarian law’.46
In practice, States have interpreted Article 21 of GCIII as giving them
the permission to intern prisoners of war. For instance, the US Department
of Defense’s Law of War Manual from 2015 states that ‘law of war treaties
also sometimes recognize States’ authorities in war’, citing ‘GPW [Geneva
Convention III on Prisoners of War] art. 21 (recognizing that “[t]he Detaining
Power may subject prisoners of war to internment.”)’ as the example.47
Another example is the French Manuel de droit des conflits armés which, in
reference to Article 21 GCIII, states that ‘[l]’internement est une mesure de
sécurité qu’un État peut appliquer’.48 In caselaw, the UK Supreme Court reaf-
firmed in Serdar Mohammed that ‘Article 21 of the Third Geneva Convention
43
Corn et al., The Law of Armed Conflict (n 32), 174.
44
Ibid., 173.
45
Derek Jinks, ‘International Human Rights Law in Time of Armed Conflict’, in
Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law
in Armed Conflict (Oxford: Oxford University Press, 2014), 667.
46
Debuf, Captured in War (n 5), 230, footnote 755.
47
US, Department of Defense, Law of War Manual, June 2015 (updated December
2016), para. 1.3.3.2. and footnote 46.
48
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction
des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit
européen, Bureau du droit des conflits armés (2001), under ‘internement’.
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of 1949 in terms confers on states a right to detain prisoners of war which they
had long enjoyed as a matter of customary international law’.49
In the end, the permission to intern prisoners of war as enshrined in Article
21 of GCIII is directly linked to the principle of military necessity: the auto-
matic internment of enemy combatants is doubtless one means to achieve the
‘complete or partial submission of the enemy at the earliest possible moment
with the minimum expenditure of life and resources’.50
To summarize, IHL provides a status-based authorization to intern prisoners
of war. The initial presumption that prisoners of war pose a threat to the enemy
forces indeed remains collective and Article 21 of GCIII does provide that
parties to the conflict may generally intern prisoners of war. Such authority
to intern having been determined, the question is now to delineate the exact
categories of persons who fall under the denomination of prisoners of war and
who may accordingly be interned on the basis of GCIII.
1.3 Permission to Intern and Definition of Combatants
Article 4(A) of GCIII defines the categories of persons who shall be granted
prisoner-of-war status. In doing so, the article distinguishes between several
categories. We are interested here in the permission to intern enemy combat-
ants; hence we will discuss how Article 4(A) shall be read in conjunction with
Article 21 of GCIII as the permission to intern enemy combatants.
Article 4(A) contains four sub-headings that concern combatants:51
• Article 4(A)(1), related to ‘[m]embers of the armed forces of a Party to the

conflict as well as members of militias or volunteer corps forming part of
such armed forces’;
• Article 4(A)(2), related to ‘[m]embers of other militias and members of
other volunteer corps, including those of organized resistance movements,
belonging to a Party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or
volunteer corps, including such organized resistance movements’, comply
with four requirements;
49
UK, Supreme Court, Al-Waheed v. Ministry of Defence; Serdar Mohammed and
others v. Ministry of Defence, Judgment, 17 January 2017 [2017] UKSC 2, para. 12.
50
Definition of the principle of military necessity contained in UK, The Joint
Service Manual on the Law of Armed Conflict, Joint Service Publication 383 (2004
edition, as amended in September 2010 by Amendment 3), 21–22.
51
We know that these categories refer to combatants through Art. 51 API, which
defines civilians as persons not considered combatants: ‘A civilian is any person who
does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3)
and (6) of the Third Convention and in Article 43 of this Protocol.’
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• Article 4(A)(3), related to ‘[m]embers of regular armed forces who profess

allegiance to a government or an authority not recognized by the Detaining
Power’; and
• Article 4(A)(6), related to ‘[i]nhabitants of a non-occupied territory, who
on the approach of the enemy spontaneously take up arms to resist the
invading forces, without having had time to form themselves into regular
armed units, provided they carry arms openly and respect the laws and
customs of war’, also commonly referred to as levée en masse.
Articles 4(A)(1) and 4(A)(3) basically refer to the same category of combat-
ants, i.e. the members of the regular armed forces of a party to the conflict. The
difference concerns the recognition, by the adverse party, of the government
these members belong to as representing the other party to the conflict. For
both categories, though, there is no major legal difficulty, and we can safely
say that Article 21 of GCIII provides the permission to intern them. The only
difficulty, if it really is one, is that IHL does not define who actually belongs to
the armed forces of a State; this is a question dealt with at the domestic level,
which therefore entails looking at the domestic legislation and the effective
practice of the State concerned.52 In addition to Article 4(A)(2), concerned
with irregular combatants, the members of the regular armed forces represent
the typical prisoners of war during an IAC. Because they belong to the armed
forces of a party to the conflict, the presumption that they represent a threat to
the opposing armed forces and that their capture and ensuing internment will
weaken such enemy forces is obvious. For that reason, it is permitted to intern
them for the duration of active hostilities. Let us now look at the more complex
categories of enemy combatants.
1.3.1 Permission to intern members of a levée en masse

Article 4(A)(6) represents an exception in the category of combatants with
prisoner-of-war status: they are inherently civilians, who are exceptionally
granted the status of combatant because of their participation in hostilities
based on certain criteria (in short, because they spontaneously resist against
invading forces without having had time to organize themselves into coherent
units). Because of such participation in hostilities, they also represent a threat
and trigger the principle of military necessity as the underlying source render-
ing their internment justified. In a way, their internment during the invasion
phase is even more justified than that of members of regular and additional
armed forces. While for the latter one may argue that not all of them inherently
For a discussion on the definition of the categories of prisoner of war, see

52
Catherine Maia, Robert Kolb and Damien Scalia, La protection des prisonniers de
guerre en droit international humanitaire (Brussels: Bruylant, 2015), 23 ff.
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constitute a threat (e.g. not all of them may be willing to actually fight), for
levée en masse participants such assessment would be superfluous: they only
belong to the category of persons receiving prisoner-of-war status because
they are participating in hostilities; otherwise they would have remained civil-
ians. In that sense, the military necessity to intern them during the invasion
phase is inherent in their belonging to a levée en masse. Hence, they may also
be interned.
This being said, this only holds true for those fallen into the power of the
enemy during the initial invasion phase. Once the levée en masse can no longer
be spontaneous – either because proper resistance movements have formed, or
because the invading troops have established a sufficient degree of control for
the territory to be considered occupied53 – Article 4(A)(6) can no longer be
used to justify the internment. Persons who continue participating in hostilities
after that stage may still potentially be interned, considering that the military
necessity of interning them remains. But the permission will be based either on
Article 21 in conjunction with another paragraph of Article 4(A) – primarily,
for resistance movement, Article 4(A)(2) if the resistance movement they join
meets the conditions posed by that article – or, as will be discussed later,54 on
a permission arising from GCIV – i.e. this time as civilians, and provided that
the conditions we will detail in Chapter 7 are met.55
1.3.2 Permission to intern enemy combatants in occupied territory

The second paragraph of Article 4 of GCIII outlines two additional situations,
one of which is of interest here (the other one concerns internment in neutral or
third States and will be dealt with in Section 3 below). Article 4(B)(1), related
to persons belonging or having belonged to the armed forces of the occupied
country, mentions two categories of persons: those who ‘are re-captured after
trying to rejoin the active forces, and those who do not obey an internment
order’.56 The list is not exhaustive however.57 Catherine Maia, Robert Kolb
and Damien Scalia explain that the Occupying Power is allowed to intern these
persons, even in cases where it has previously freed them.58
53
Because Art. 4(A)(6) indeed circumscribes the definition of a levée en masse to
‘inhabitants of a non-occupied territory’, meaning that a levée en masse can only take
place at the invasion phase.
54
See generally Chapter 7.
55
In such a case, they would be civilians directly participating in hostilities, an act
for which they could be prosecuted (contrary to levée en masse participants who benefit
from combatant immunity).
56
Pictet, Commentary to the Third Geneva Convention (n 8), 68.
57
Ruth Lapidoth, ‘Qui a droit au statut de prisonnier de guerre?’, Revue générale
de droit international public, Vol. 82 (1978), 180.
58
Maia, Kolb and Scalia, Protection des prisonniers de guerre (n 52), 42.
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We would add that this is one of the examples where a rule, based on the
principle of military necessity, comes to circumscribe the scope of applica-
tion of Article 21 of GCIII. For members of the armed forces of an occupied
territory, Article 4(B)(1) circumscribes the permission to the ‘necessity’ to
intern them. This is a legitimate and welcome precision in the provision: if
one considers that occupation entails the exercise of at least a certain degree of
control over the occupied territory by the Occupying Power, then the military
necessity of interning all members of the occupied armed forces is indeed very
slim. Therefore, it is justified that the provision specifies that it is only when
‘necessary’ that such members may be interned. In addition, in case of occu-
pation, it is possible to imagine that members of the occupied forces could be
asked to report daily to the Occupying forces in order to attest their continued
presence in the occupied territory, as a means to prevent them from (re)joining
the armed forces of a territory that is not occupied. We can, on the other hand,
imagine that it may remain necessary to intern certain high-ranking officers
who would be in a position to coordinate and plan resistance against the
Occupying Power. Finally, we should note that this only holds true as long as
hostilities continue outside of the occupied territory. As soon as active hostili-
ties end – even if occupation continues – all prisoners of war shall be released
and repatriated without delay according to Article 118 of GCIII.
1.3.3 Permission to intern combatants who have forfeited their right

to prisoner-of-war status
The above-mentioned categories are relevant when API is not applicable.
Because Article 4 of GCIII outlines detailed categories of prisoners of war, it
was useful to explain such categories first; nevertheless, these distinctions will
become irrelevant should API apply. Article 43 of API indeed provides a defi-
nition of the armed forces of a party to the conflict, while Article 44 refines
the notions of combatant and prisoner of war. Armed forces now include all
‘organized armed forces, groups or units’ that belong to one of the parties to
the IAC, provided that they ‘are under a command responsible to that Party
for the conduct of its subordinates’ and are ‘subject to an internal disciplinary
system’. When applicable, these articles should be used in conjunction with
Article 21 of GCIII as forming the permission to intern members of enemy
armed forces.
What is of interest to us here is the qualification added by Article 44 of API.
Paragraph 2 of Article 44 contains exceptions to the definition of prisoners of
war, then detailed in paragraphs 3 and 4. The paragraph distinguishes two situ-
ations, both leading to a loss of prisoner-of-war status. The question is whether
the persons concerned may still be interned, given that the permission to intern
them is linked to their being classified as prisoners of war.
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Let us look at the article in more detail. For the sake of clarity, we shall
start with the second situation envisaged in Article 44. Paragraph 3 mentions
special situations where ‘owing to the nature of the hostilities an armed com-
batant cannot distinguish himself’ and provides that the person shall still carry
his or her arm openly ‘during each military engagement’ or during such time
as he or she ‘is visible to the adversary while he [or she] is engaged in [the]
military deployment preceding the launching of [the] attack in which he [or
she] is to participate’. Paragraph 4 of Article 44 then provides that, for such
type of situations, if the combatant fails to carry their arms openly, they shall
forfeit their right to prisoner-of-war status if they fall into the hands of the
enemy. Nevertheless, they shall still ‘be given protections equivalent in all
respects to those accorded to prisoners of war’. We understand this as meaning
that the provisions of GCIII and API still apply, the difference being that the
combatant loses their combatant privilege. If the provisions of GCIII and API
are still applicable, then Article 21 of GCIII still applies to the combatant as
part of the ‘treatment of prisoners of war’ even if the person is no longer offi-
cially granted prisoner-of-war status. This means that the permission to intern
them remains valid.
By contrast, the first situation envisaged in paragraph 3 of Article 44 of
API covers normal circumstances of armed conflict where a member of the
armed forces (as defined in Article 43) fails to distinguish himself or herself
from the civilian population while he or she is ‘engaged in an attack or in
a military operation preparatory to an attack’.59 For such cases, paragraph
4 does not mention that the treatment of prisoners of war shall be retained.
The fact that the consequence of his or her non-compliance with the require-
ments of paragraph 3 is not mentioned shall be interpreted a contrario to
the consequences of the second type of situation just discussed. Here the
argument is twofold: if the drafters had wanted such combatants to also lose
prisoner-of-war status but to retain prisoner-of-war treatment, they would not
have distinguished between the two types of situation, or would have included
them in paragraph 4; at the same time, if the drafters had not conceived any
consequence for non-compliance, they would not have made the requirements
of distinction contained in paragraph 3 part of the definition of combatant and
prisoner-of-war status. As a consequence, these two elements can only lead to
the conclusion that combatants who, during normal circumstances of armed
conflict, fail to distinguish themselves during engagement or during opera-
tions leading to such engagement, shall forfeit both prisoner-of-war status and
treatment. Because they are no longer prisoners of war, and do not even benefit
from the related treatment, Article 21 of GCIII can no longer apply. And
59
This is required by Art. 44 para. 3 of API.
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because the GCs do not conceive of any gaps in treatment,60 this automatically
leads to the conclusion that if they fall into enemy hands, they shall be consid-
ered as civilians, and hence may only be interned in accordance with GCIV.
1.3.4 Permission to intern so-called ‘unlawful combatants’

The previous paragraph concerned the category of combatants who have
forfeited their right to prisoner-of-war status. In parallel to this discussion, it
seems important to add a few words on the so-called category of ‘unlawful
combatant’. The term was coined and principally used by the administration
of President George W. Bush of the United States during its ‘global war on
terror’.61 The term was then meant to designate ‘persons who are, in its view,
neither combatants nor civilians but belong to a third category of persons who
can be attacked at any time and can be detained indefinitely without trial’.62
The main question here is whether persons considered as ‘unlawful combat-
ants’ or ‘unprivileged belligerents’ and involved in an IAC may be interned on
the basis of Article 21 of GCIII. The answer should be based on the previous
discussions and hence shall depend on what category of persons they belong to.
The main problem we see with the notion of unlawful combatant is the related
attempts at depriving them of both prisoner-of-war status and treatment. If
they do forfeit their right to both (which is something that shall be assessed on
the basis of the definitions provided in Articles 4 of GCIII and 43/44 of API
when applicable), they are automatically excluded from the scope of applica-
tion of Article 21 of GCIII – which covers persons who are considered as (or
by extension at least benefit from the treatment of) prisoners of war.
On this point, we disagree with the US argument, made mainly during the
war against Al Qaeda, that the authority to intern ‘unlawful combatants’ out-
60
See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds),
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949 (Dordrecht: ICRC/Martinus Nijhoff Publishers, 1987), 558. The
Commentary nevertheless recognizes that situations are not always straightforward,
but that in such (we would add rare) situations, IHL does ensure a certain degree
of protection. See also ICTY, The Prosecutor v. Zejnil Delalić, Zdravko Mucić aka
‘Pavo’, Hazim Delić, Esad Landžo aka ‘Zenga’, Trial Chamber, Judgment, Case No.
IT-96-21-T, 16 November 1998, para. 271. For more detail, see e.g. Knut Dörmann,
‘The Legal Situation of “Unlawful/unprivileged Combatants”’, International Review of
the Red Cross, Vol. 85, No. 849 (2003), 45–74.
61
See e.g. US Department of Defense, ‘Military Commission Act of 2006’,
17 October 2006, at http://www.loc.gov/rr/frd/Military_Law/pdf/PL-109-366.pdf
(accessed 10 February 2020).
62
Marco Sassòli, Antoine Bouvier, Anne Quintin and Julia Grignon, ‘Unlawful
combatants’, in How Does Law Protect in War? at https://casebook.icrc.org/glossary/
unlawful-combatants (accessed 10 February 2020).
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lasts the loss of prisoner-of-war status and treatment. The United States was
of the opinion that ‘individuals who are part of private armed groups are not
immune from military detention simply because they fall outside the scope of
Article 4 of the Third Geneva Convention’ because ‘Article 4 does not purport
to define all detainable persons in armed conflict’.63 As mentioned, regardless
of whether that statement is correct, Article 21 of GCIII, which provides the
permission to intern, is explicitly limited to persons who are prisoners of war.
The United States not having ratified API, we do not even need to turn to the
complexities of Articles 43 and 44 of API. The only conventional legal basis
at the disposal of the United States in relation to enemy combatants during
IAC is Article 21 of GCIII. Therefore, for enemy combatants who are consid-
ered as having forfeited prisoner-of-war status and treatment, the permission
cannot emanate from GCIII. It may by contrast come from GCIV – based on
considerations that will be discussed in the next chapter.64 It may not, however,
come from Article 75 of API, which, although protecting all persons who are
not covered either by GCIII or by GCIV during an IAC, does not provide
a permission to intern anyone.65
One additional possibility would be to say that the authority to intern enemy
combatants who have forfeited prisoner-of-war status and treatment comes
from customary IHL. We contend that this claim would be difficult to support.
The first argument against a customary authority to intern unlawful combatants
is that the definition of unlawful combatants (or unprivileged belligerents) is
highly controversial, and so are the specifics on how IHL applies to such per-
sons.66 Second, and importantly, State practice has largely rejected the notion
of unlawful combatant and the related US interpretation of their treatment
under IHL. More precisely, State practice tends to consider that, in an IAC,
anyone who is not a combatant (and hence does not fall under the protection of
63
US, District Court of Colombia, ‘Respondents’ Memorandum regarding the
Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay’, in
re: Guantanamo Bay Detainee Litigation (13 March 2009), 8, at http://www.usdoj.gov/
opa/documents/memo-re-det-auth.pdf (accessed 10 February 2020).
64
See discussion in Chapter 7 on the personal scope of the permission to intern pro-
tected civilians, at page 130. Note that this option was refused by the US. See ibid.
65
As already noted by Françoise Hampson, Art. 75 of API ‘does not appear to
provide the authority to detain but recognises that such detention may occur’. Françoise
Hampson, ‘Administrative Detention in Non-International Armed Conflicts’, in Mark
Lattimer and Philippe Sands (eds), The Grey Zone. Civilian Protection Between Human
Rights and the Laws of War (Oxford: Oxford Hart Publishing, 2018), 213.
66
Sassòli, Bouvier, Quintin and Grignon, ‘Unprivileged belligerent’, in How Does
Law Protect in War? at https://casebook.icrc.org/glossary/unprivileged-belligerent
(accessed 10 February 2020).
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GCIII) shall be considered as a civilian (and hence will be covered by GCIV).67

Third, doctrine has also heavily rejected the idea of a third category of persons
in addition to those of combatant and civilian, using as one of the arguments
the absence of harmonized State practice in this respect.68 Therefore, given that
the notion of unlawful combatant is itself not widely accepted among States,
and that most States follow a binary approach according to which everyone
who is not a combatant in an IAC is a civilian, it would be difficult to conclude
to the existence of a customary rule authorizing the internment of such a con-
tested category.
Finally, absent an authority to intern under GCIII or under customary IHL,
and if one rejects the applicability of GCIV to such persons, the detaining
State would have to rely on its domestic legislation. In this respect, it is inter-
esting that the United States also uses the argument that the authority to intern
emanates from the authority to use force69 – which, in the case of ‘unlawful
combatants’ captured in the framework of the conflict against the Taliban
and Al Qaeda, is granted by the 2001 Authorization for Use of Military Force
(AUMF).70 The domestic AUMF could be a valid legal basis for internment
during military operations carried out overseas by US armed forces – this point
is, however, outside the scope of our research. What should be said here is that
we disagree with the specific argument that combatants who are considered as
having forfeited both prisoner-of-war status and treatment can still be interned
on the basis of ‘the law-of-war principle of military necessity’.71 As has been
explained, we disagree with the argument that the principle of military neces-
sity in and of itself provides any authority.72 It may serve to inform individual
rules, which in turn provide strong permissions, but the principle cannot
provide such permissions independently of a rule. As a consequence, in the
67
See e.g. P. C. Tange, ‘Netherlands State Practice for the Parliamentary Year
2005–2006’, Netherlands Yearbook of International Law, Vol. 38 (2007), 290; Israel,
Supreme Court, Public Committee against Torture in Israel v. Government of Israel,
Case No. HCJ 769/02, 13 December 2006, paras 26–28; Israel, Supreme Court, Iyad v.
State of Israel, CrimA 6659/06, 11 June 2008, paras 12–13, at https://casebook.icrc.org/
case-study/israel-detention-unlawful-combatants (accessed 10 February 2020); UK,
Ministry of Defence, Joint Doctrine Publication 1-10: Captured Persons (CPERS), 3rd
ed., January 2015, Section 3 on ‘Legal basis for CPERS activities’, 1–16, para. 141.
68
See e.g., Dörmann, ‘The Legal Situation of “Unlawful/unprivileged Combatants”’
(n 60); Emily Crawford, The Treatment of Combatants and Insurgents under the Law of
Armed Conflict (Oxford: Oxford University Press, 2010), 60.
69
US, District Court of Colombia, ‘Respondents’ Memorandum’ (n 63), 5.
70
Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at
115 Stat. 224 and passed as S.J.Res. 23 by the United States Congress on September
14, 2001.
71
US, District Court of Colombia, ‘Respondents’ Memorandum’ (n 63), 9.
72
See Chapter 3, Section 3, at page 27.
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absence of a permissive rule under GCIII or under customary law covering

unlawful combatants, persons interned under that label shall either be granted
prisoner-of-war status or treatment, or shall not be interned on the basis of
GCIII.
This concludes our discussion on the permission to intern members of the
enemy armed forces. What will be retained is that Article 21 of GCIII provides
the permission to intern prisoners of war, which should then be read in con-
junction with Article 4(A) of GCIII or with Articles 43 and 44 of API when
applicable, in order to determine who exactly is covered by the permission.
This, however, does not end our discussion on the permission to intern
prisoners of war: Article 4 of GCIII also contains categories of persons who
are prisoners of war without being members of the armed forces of the enemy.
2. A STRONG PERMISSION TO INTERN

NON-COMBATANTS WITH PRISONER-OF-WAR
STATUS
Coming back to Article 4 of GCIII, we also find categories of persons who,

despite not being combatants, shall be considered as having prisoner-of-war
status. These are covered by:
• Article 4(A)(4), related to ‘[p]ersons who accompany the armed forces

without actually being members thereof, such as civilian members of mil-
itary aircraft crews, war correspondents, supply contractors, members of
labour units or of services responsible for the welfare of the armed forces,
provided that they have received authorization from the armed forces
which they accompany, who shall provide them for that purpose with an
identity card similar to the annexed model’; and
• Article 4(A)(5), related to ‘[m]embers of crews, including masters, pilots
and apprentices, of the merchant marine and the crews of civil aircraft of
the Parties to the conflict, who do not benefit by more favourable treatment
under any other provisions of international law’.
The idea behind the internment of such categories of persons is less obvious:
their non-combatant status dismisses the a priori argument that it is militarily
necessary to intern them. It is therefore necessary to analyse the reasons behind
their inclusion in Article 4(A) of GCIII and, by extension, the reason why they
are covered by the permission to intern prisoners of war.
We have already mentioned that Article 34 of the Brussels Declaration
provides that ‘[p]euvent également être faits prisonniers les individus qui,
se trouvant auprès des armées, n’en font pas directement partie, tels que: les
correspondants, les reporters des journaux, les vivandiers, les fournisseurs, etc.
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…’.73 The wording of Article 34 was later modified to become Article 13 of

the HR, which reads that these persons ‘are entitled to be treated as prisoners
of war provided they are in possession of a certificate from the military author-
ities of the army they were accompanying’. The explicit permission no longer
appears in the provision; nevertheless, the change in wording did not proceed
from a willingness to remove the permission but to better protect such persons.
The goal was to remove the ambiguity of the initial wording, which ‘seemed
to say that the persons who accompany the army without being a part of it
… shall be made prisoners if they are provided with regular permits’.74 The
drafters therefore wanted to make sure that the provision could not be under-
stood as conditioning the internment to the existence of a regular permit.75 The
issue was never one of removing the permission; to the contrary, the drafters
insisted on the fact that ‘it may be necessary to detain [persons accompanying
the armed forces] either temporarily or until the end of the war’.76 As Pictet
noted, the drafters considered that the previous text ‘had become obsolete’ and
the revision ‘should include a reference to certain other classes of persons who
were more or less part of the armed forces and whose position when captured
had given rise to difficulties during the Second World War’,77 so that such
persons could be interned too. This denotes the drafters’ opinion that intern-
ment of such persons is permitted. Finally, we note that the ‘unsatisfactory’
practice of interning merchant seamen during previous armed conflict is also
behind the inclusion of sub-paragraph (5) in the list of persons who should be
granted prisoner-of-war status.78
As a consequence, it seems that the underlying justification for permitting
their internment is to ensure a higher degree of protection. The purpose was to
avoid situations where their status would be unclear and ensure their protec-
tion in case of capture. This is confirmed by the discussions during the 1949
Diplomatic Conference. In relation to Article 4(A)(4), for instance, the Final
Record notes that the paragraph was ‘designed to extend the protection of the
Convention to the new units to which modern warfare had given rise, such as
welfare units’.79 Furthermore, it should be pointed out that the requirements of
preceding provisions were modified precisely to ensure a broader protection
scope. The condition in Article 81 of the 1929 Geneva Convention, and before
that in Article 13 of the Hague Regulations, that accompanying personnel
73
Actes de la conférence de Bruxelles (n 16), 62.
74
Scott, Proceedings of The Hague Peace Conferences (n 19), 422.
75
Ibid.
76
Ibid.
77
78
Ibid., 65–66.
79
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would be granted prisoner-of-war status only ‘provided they [were] in pos-

session of a certificate from the military authorities’ was deleted in 1949. The
idea was to ensure that ‘an individual who had been issued a card but who no
longer had it in his possession would not thereby be deprived of the protection
of the Convention’.80 Finally, it is interesting to note that wordings in the draft
of Article 4(A)(5) that would have had the consequence of excluding certain
members from the protection afforded by the Convention were deleted.81
In particular, because ‘crews of captured enemy merchant vessels were not
included within the term “prisoners of war”’ as defined in the 1929 Geneva
Convention,82 the status of such captured merchant crews was totally unclear
during the Second World War. Therefore, ‘[i]n order to remedy this situation, it
is now specifically provided that merchant seamen will be prisoners of war’.83
To summarize, Article 21 of GCIII, when read in conjunction with Article
4(A)(4) and (5), provides the permission to intern specific categories of
non-combatants who are granted prisoner-of-war status upon capture.
3. A STRONG PERMISSION TO INTERN

PRISONERS OF WAR IN NEUTRAL COUNTRIES
We have so far focused on Article 21 of GCIII as the permission for the

internment of prisoners of war in IAC. We should add that one category of
prisoner of war is actually covered by a different provision, i.e. prisoners of
war interned in neutral countries.
Article 11 of Hague Convention V84 provides:
A neutral Power which receives on its territory troops belonging to the belligerent
armies shall intern them, as far as possible, at a distance from the theatre of war. It
may keep them in camps and even confine them in fortresses or in places set apart
for this purpose.
It shall decide whether officers can be left at liberty on giving their parole not to
leave the neutral territory without permission.
80
Ibid. See also Levie, ‘Prisoners of War in International Armed Conflict’ (n 10),
62.
81
82
Levie, ‘Prisoners of War in International Armed Conflict’ (n 10), 63.
83
Ibid., 63.
84
Convention (V) respecting the Rights and Duties of Neutral Powers and Persons
in Case of War on Land (The Hague, 18 October 1907).
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Article 24 of Hague Convention XIII85 similarly states:
If, notwithstanding the notification of the neutral Power, a belligerent ship of war
does not leave a port where it is not entitled to remain, the neutral Power is entitled
to take such measures as it considers necessary to render the ship incapable of taking
the sea during the war, and the commanding officer of the ship must facilitate the
execution of such measures.
When a belligerent ship is detained by a neutral Power, the officers and crew are
likewise detained.
The officers and crew thus detained may be left in the ship or kept either on
another vessel or on land, and may be subjected to the measures of restriction which
it may appear necessary to impose upon them. A sufficient number of men for
looking after the vessel must, however, be always left on board.
The officers may be left at liberty on giving their word not to quit the neutral
territory without permission.
Finally, GCIII also encourages the internment of prisoners of war in neutral

countries. Article 111 states:
The Detaining Power, the Power on which the prisoners of war depend, and a neutral
Power agreed upon by these two Powers, shall endeavour to conclude agreements
which will enable prisoners of war to be interned in the territory of the said Power
until the close of hostilities.
The difference in the wording between GCIII and Hague Conventions V and
XIII reflects the difference in the situations covered: Article 111 of GCIII refers
to persons who are already prisoners of war before being interned in a neutral
country. This is why the rationale behind the two sets of provisions is also
different. GCIII intends to incite belligerents to prefer internment on neutral
territories for humanitarian purposes.86 By contrast, Hague Conventions V and
XIII are part of the law of neutrality and take into consideration operational
exigencies. In order to preserve its neutrality, a neutral country shall prevent
belligerents from either side of an IAC from using its territory for military
purposes. The mere presence of enemy combatants may in that respect be
considered as a violation of its neutrality; for that reason, Hague Convention V
not only permits, but actually obliges, neutral States to intern such combatants.
As such, one may consider that, here, the underlying source of authority is the
law of neutrality. Because on the one hand the neutral Power has an obligation
to ensure that its territory is not used for military purposes, and because on the
other hand it has no other legal authority to restrict the right of aliens to leave
85
Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval
War (The Hague, 18 October 1907).
86
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its country, internment may actually be the only means available to a neutral
Power to preserve its neutrality.
4. VALIDITY OF THE PERMISSION
Article 21 of GCIII constitutes a strong permission, and therefore can be said

to provide, for the purposes of IHL, the authority to intern prisoners of war
in IAC. This being said, the article remains rather broad and vague, and one
question needs to be asked: does IHL provide qualifications to the permission
to intern prisoners of war, to the effect that the permission may be invalidated
in certain cases?
4.1 Collective Versus Individual: a Status-based Permission

Without Procedure
Article 21 of GCIII gives a broad permission to intern prisoners of war. It is

based on status, in the sense that, for the majority of the persons concerned,
prisoners may be interned on the sole basis of their membership of enemy
armed forces. There is a presumption that the members of the enemy armed
forces constitute a threat. And indeed such presumption ‘is justified … by the
fact that members of the armed forces of a party to the conflict may always
be expected to re-join their ranks and return to the battlefield upon release,
because they are legally obliged to do so under the domestic law of the State to
whose armed forces they belong’.87
As far as combatants are concerned, the presumption of threat is the general
rule: Article 21 of GCIII refers to prisoners of war as a category of individ-
uals and does not place any further requirements on the Detaining Power to
prove the individual necessity of interning each prisoner of war. In that sense,
a literal interpretation would go in favour of saying that as soon as a person
belongs to the enemy armed forces, internment may be used as a preventive
measure against the threat he or she represents.
87
Debuf, Captured in War (n 5), 232. While this seems to contradict our pre-
vious section on release on parole, practice has unfortunately proved that it was not
always respected, which contributed to the fact that the practice of release on parole has
today fallen into desuetude. For instance, Els Debuf recalls British conduct during the
Falklands/Malvinas war, where ‘Argentina decided to release captured British Marines,
presumably on the assumption that article 117 GCIII would prohibit the U.K. from
redeploying them. No parole or promise was tied to the release however and the U.K.
– arguing that article 117 GC III only applies to repatriated wounded and sick prison-
ers of war – saw no legal objection to redeploying its Marines in the ongoing conflict’,
ibid., 236.
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Article 21 is thus a self-sufficient provision, to the effect that no additional

procedure is required. Because the categories of persons who fall under the
definition of prisoners of war are clearly stated in Article 4(A) GCIII, and
because the permission applies collectively to all persons falling into one
of these categories, Article 21 of GCIII is not linked to any additional rules
requiring the existence of a specific procedure aimed at assessing each indi-
vidual level of threat. Or, to be accurate, no individual procedure is required
beyond that necessary to eliminate any doubt that could arise as to whether
a given person is indeed a prisoner of war. Article 5 of GCIII provides that
[s]hould any doubt arise as to whether persons, having committed a belligerent

act and having fallen into the hands of the enemy, belong to any of the categories
enumerated in Article 4, such persons shall enjoy the protection of the present
Convention until such time as their status has been determined by a competent
tribunal.
As has been noted by Marie-Louise Tougas, ‘[t]he wording of Article 5

prescribes an assessment of each individual situation by a competent tribunal
for every prisoner with respect to whom a doubt exists, and not a collective
determination applicable to all members of a specific group’.88
Article 5 of GCIII is reiterated by Article 45(1) of API. When it applies, the
latter creates a presumption that the detainee is a prisoner of war (for persons
who have taken part in hostilities and fallen into the power of an adverse
Party).89 As a consequence, it will be ‘up to this tribunal to furnish proof to the
contrary every time that the presumption exists and it wishes to contest it’.90
Beyond these provisions, it is generally accepted that no individual pro-
cedure is required to assess the threat posed by each prisoner of war. The
ICRC is of the opinion that ‘the detaining authority may intern persons who
meet the criteria for POW treatment without review and until the cessation of
active hostilities’.91 It further developed this position in its opinion paper on
internment:
It is generally uncontroversial that the Third Geneva Convention provides a suffi-

cient legal basis for POW internment and that an additional domestic law basis is not
88
Marie-Louise Tougas, ‘Determination of Prisoner of War Status’, in Andrew
Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions:
A Commentary (Oxford: Oxford University Press, 2015), 943, para. 24.
89
See also Sandoz, Swinarski and Zimmermann, Commentary on the Additional
Protocols (n 60), 550, para. 1741.
90
Ibid., 553, para. 1746.
91
ICRC, Strengthening International Humanitarian Law Protecting Persons
Deprived of their Liberty, Synthesis Report (n 6), 16.
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required. The detaining State is not obliged to provide review, judicial or other, of
the lawfulness of POW internment as long as active hostilities are ongoing because
POWs are considered to pose a security threat ipso facto.92
This is confirmed by the fact that ‘[n]o state in the world has legislated to
provide a legal basis for interning POWs or to provide for any procedure for
deciding to intern POWs’.93 This fact confirms that Article 21 of GCIII is
considered by States as ‘a sufficient legal basis and … implicitly excluding
the need to conduct an individual assessment of the need to intern a POW’.94
This being said, one may think that the collective permission should be
replaced with an individual assessment. Marco Sassòli suggests, for instance,
although de lege ferenda,
[i]n conformity with the growing tendency in international law to take the circum-
stances of each individual case fully into account, the time may have come in many
conflicts not to determine collectively the time when a fighter must be released and/
or repatriated, but to determine this through individual decisions. One might thus
imagine that even during an armed conflict, periodic individual determinations
would need to be made to balance that individual’s right to freedom against the
legitimate security interests of the Detaining Power, i.e. the probability that this
individual will again participate in hostilities and the extent of the threat this indi-
vidual represents when doing so.95
We would argue that the operational reality of a battlefield will usually prevent
the establishment of such a review process. This does not mean that no pro-
cedure whatsoever should be put in place. But we believe that two situations
should be distinguished: on the one hand, cases where the prisoner of war is
challenging the legal basis for his or her internment, and, on the other hand,
cases where the prisoner of war – on whose status no doubt exists – wishes to
challenge the presumption that he or she poses a threat.
The former case relies on a broadened interpretation of Article 5 GCIII,
which institutes tribunals in cases where the Detaining Power has a doubt as
92
ICRC, ‘Internment in Armed Conflict’, Opinion Paper (n 2), 4.
93
Marco Sassòli, ‘The Convergence of the International Humanitarian Law of
Non-international and International Armed Conflicts – The Dark Side of a Good
Idea’, in Giovanni Biaggini, Oliver Diggelmann and Christine Kaufmann (eds), Polis
und Kosmopolis – Festschrift für Daniel Thürer (Zürich/Baden-Baden: Dike/Nomos,
2015), 686.
94
Ibid.
95
Marco Sassòli, ‘Release, Accommodation in Neutral Countries and Repatriation
of Prisoners of War’, in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The
1949 Geneva Conventions: A Commentary (Oxford: Oxford University Press, 2015),
1065, para. 65. Sassòli there refers to Shields-Delessert, Release and Repatriation (n
42), 106–110.
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to whether a person captured while committing a belligerent act is indeed an

enemy combatant entitled to prisoner-of-war status. Persons detained on the
basis of GCIII should have a right to challenge that basis if they claim not
to belong to enemy armed forces. The Detaining Power shall make sure that
Article 21 of GCIII is applicable to that person.
The latter case, however attractive it may be de lege ferenda, is not sup-
ported by IHL. When no doubt exists as to the status of the prisoner of war, it
would be impractical and unrealistic – regardless of how desirable it would be
in theory – to give them a right to challenge the necessity of their internment
on the idea that they individually represent no threat.
According to the UN Working Group on arbitrary detention, IHRL would
lead to similar results. In its report on Basic Principles and Guidelines on the
right of anyone deprived of their liberty to bring proceedings before a court, the
Working Group contended that ‘[p]risoners of war should be entitled to bring
proceedings before a court to challenge the arbitrariness and lawfulness of the
deprivation of liberty and to receive without delay appropriate and accessible
remedies’.96 Such remedies shall be provided to the detainee in several cases
and, in the case of a prisoner of war, where he or she ‘challenges his or her
status as a prisoner of war’.97 This derives from Principle 16 of the Working
Group’s report, which aims to guarantee the ‘exercise of the right to bring pro-
ceedings before a court in situations of armed conflict, public danger or other
emergency threatening the independence or security of a State’.98 However,
under IHL the resort to a court is linked to the obligation to ascertain the status
of prisoner of war of the detainee, it is not a right granted at an individual level
to every single prisoner of war. It is beyond the scope of this study to determine
whether such an individual right does exist under IHRL today; what matters to
us is that it does not derive from the rules of IHL.99
Article 21 GCIII hence provides a status-based, collective permission to
intern prisoners of war, which is not attached to individual procedural require-
ments. Assessing the military necessity to intern each prisoner of war would
be superfluous. Yet, one can wonder whether, conversely, the total absence
of military necessity to intern an enemy combatant could still result in the
removal of the permission.
96
UN Working Group on arbitrary detention, ‘United Nations Basic Principles and
Guidelines on the right of anyone deprived of their liberty to bring proceedings before
a court’, Report, WGAD/CRP.1/2015, 4 May 2015, para. 48.
97
Ibid.
98
Ibid., Principle 16.
99
The report adds that Principle 16 ‘complements and mutually strengthen the rules
of international humanitarian law’. Ibid.
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4.2 A Permission to Intern in the Absence of Military Necessity?
The fact that the internment of prisoners of war is justified by military neces-
sity poses the question of whether Article 21 of GCIII can continue to act as an
independent permission even when the internment is not rendered necessary
by military considerations.
As mentioned, the principle of military necessity cannot in itself serve as
a permission, and neither can its absence serve to change the content of a valid
rule of IHL. However, as in other cases, the principle of military necessity
has been included in certain provisions of the GCs, showing that the drafters
intended to grant a possibility to revoke the permission to intern in specific
cases where military necessity is absent.
The possibility of releasing captured enemy combatants while the hostili-
ties are still ongoing supports a strong link between Article 21 of GCIII and
military necessity. The practice of release on parole, for instance, is linked to
the fact that internment is no longer justified by military necessity. Although
the practice is no longer used today (but is still theoretically applicable as it
is included in GCIII),100 Article 21 of GCIII provides that ‘[p]risoners of war
may be partially or wholly released on parole or promise, in so far as is allowed
by the laws of the Power on which they depend’. Parole ‘means a promise
freely given by a prisoner of war either not to bear arms again against the
Detaining Power (in case of complete release) or not to escape (in case of
partial release)’.101 It was traditionally accompanied by an obligation on the
part of the prisoner not to take part in hostilities again after release, although
as stated in Article 21, the exact content of that obligation depended on the
laws and regulations of the prisoner’s State of origin.102 As a consequence,
‘a prisoner of war who is offered the possibility of liberty on parole is supposed
to know the corresponding laws and regulations of the power on which he [or
she] depends’.103 Indeed, the ‘laws and regulations may either forbid prisoners
of war to accept release on parole in any circumstances, or may allow them to
do so subject to certain conditions’.104
100
See Section VII of the Lieber Code – The Lieber Code devoted an entire section
to release on parole, and we would refer the reader to those provisions for additional
explanations.
101
Yoram Dinstein, ‘The Release of Prisoners of War’, in Christophe Swinarski
(ed.), Studies and Essays in International Humanitarian Law and Red Cross Principles
in Honour of Jean Pictet (Geneva/The Hague, ICRC/Martinus Nijhoff Publishers,
1984), 37.
102
Ibid.
103
104
Ibid. Several States prohibit members of their armed forces from giving their
parole. See e.g., US, Department of the Army, The Law of Land Warfare, FM 27-10
(Washington, 1956), para. 187(a).
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The practice of release on parole is particularly encouraged for health and

hygiene reasons.105 This is a new provision inserted ‘as a result of a practice
which, if not widespread, was followed during the Second World War’.106 It
also reflects the obligation of the parties to the conflict to ‘send back to their
own country, regardless of number or rank, seriously wounded and seriously
sick prisoners of war, after having cared for them until they are fit to travel’.107
The fact that States generally agree to release such persons confirms
the absence of a justification for their continued internment. In addition,
released-on-parole soldiers ‘recaptured bearing arms against the Government
to whom they had pledged their honour, or against the allies of that
Government, [used to] forfeit their right to be treated as prisoners of war’108
under the Hague Regulations. Although this was not kept in GCIII, such
persons ‘may be tried and sentenced by the Detaining Power’.109 In both texts,
States agree that such persons should indeed be prevented from posing a threat
to the Power that released them.
The Third Geneva Convention also provides the possibility to release or
repatriate able-bodied prisoners of war, including during the active phase of
hostilities.110 The incentive is reinforced through Article 117 of GCIII, which
provides that ‘[n]o repatriated person may be employed on active military
service’. If Article 117 of GCIII is respected, the military necessity of intern-
ing all captured prisoners of war decreases. However, as pointed by Gordon
Risius, ‘[s]ince it is hardly in the interests of a state to supply its enemy with,
in effect, reinforcements, the practice of repatriating healthy prisoners of war is
rare’111 – and in particular ‘where States do no respect the conditions of parole
or promise or the prohibition in article 117 GC III’.112
In all these cases, the military necessity of keeping such persons in intern-
ment disappears or at least decreases. This may be due to the state of health of
the prisoners, which physically prevents them from returning to the battlefield;
to the fact that they have given their parole that they will not return to the
battlefield; or still to the prohibition on employing on active military service
prisoners of war who have been repatriated.
105
Art. 21 para. 2 GCIII.
106
107
108
Art. 12 HR.
109
110
111
Gordon Risius, ‘Prisoners of War in the United Kingdom’, in Peter Rowe (ed.),
The Gulf War 1990–91 in International and English Law (London: Routledge/Sweet &
Maxwell, 1993), 292.
112
Debuf, Captured in War (n 5), 236.
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It is to be noted that release on parole, or repatriation during active hostil-

ities, are offered in GCIII as possibilities and not as obligations. Hence, they
cannot invalidate the permission to intern prisoners of war contained in Article
21 of GCIII in each case where parole or repatriation could realistically be
offered to the prisoner. By extension, the absence of military necessity does
not on its own invalidate the permission to intern prisoners of war. The per-
mission will be invalidated only in cases actually specified in valid rules of
IHL, themselves limiting the scope of application of Article 21 of GCIII. As
a consequence, the permission to intern remains valid even when alternative
means of ensuring that the prisoners will not rejoin their forces are materially
possible. For instance, it has been suggested that the Detaining Power could
establish a system of daily or weekly registration with a local police office or

military base, seize or invalidate the prisoner’s travel documents for the duration of
the hostilities or otherwise ensure that prisoners of war cannot leave the country or
engage in hostile activity against an adverse party to the conflict.113
While we may recommend that the law should in the future evolve towards
including an obligation to the effect that such alternative measures be preferred
to internment, this is not currently a binding obligation under IHL.
To summarize, the principle of military necessity cannot be used on its own
to invalidate the permission to intern provided in Article 21 of GCIII. Certain
cases where the military necessity of interning prisoners of war is lessened
are provided for in GCIII, such as release on parole. But even those are only
recommendations and not strict obligations; as such even they would not
invalidate the permission to intern. This confirms that the principle of military
necessity is not meant to apply on its own to limit the scope of existing rules.
Rather, other individual rules need to be provided to limit such scope; other-
wise, Article 21 GCIII will apply fully.
Nevertheless, we contend that the permission contained in Article 21 GCIII
may be limited by another factor: the capacity and willingness to respect the
rules safeguarding the conditions of detention for prisoners of war.
4.3 Treatment of Prisoners as Part of the Permission
Article 21 of GCIII does not exist in a legal vacuum. It must be considered

together with the rest of the Convention, which focuses on the treatment owed
to prisoners of war. In that sense, the obligation to respect and protect prison-
ers of war must be understood as forming an integral part of the permission
to intern them. In other words, ‘the power to detain is predicated, in many
113
Ibid., 237.
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respects, on the treatment of detainees’.114 Such an interpretation is confirmed

by the Commentary on GCIII: ‘If the Detaining Power is unable or unwilling
to fulfil its obligations in respect of maintenance, it should no longer detain
any prisoners of war.’115 Pictet’s conclusion is meant to prevent belligerents
from claiming that they do not have sufficient resources ‘to provide prisoners
with the minimum maintenance required by the Convention’.116 This is also
illustrated by the travaux préparatoires to GCIII, as Goodman and Jinks cor-
rectly mention, pointing to the prohibition on detention in ‘unhealthy areas’:
‘[t]he drafting history makes clear that the provision was amended to permit
temporary detention facilities to be located in unhealthy areas because, had it
not been, parties to a conflict might, in some situations, not be permitted to
detain individuals whatsoever’.117 In other words, without such a provision,
it was clear in the drafters’ minds that the inability to secure the appropriate
conditions of internment would invalidate their authority to intern.
This is also in line with the nature of a large part of the provisions contained
in GCIII, which impose certain minimum standards of protection that cannot
be ignored.118 Should the Detaining Power be unable or unwilling to respect
such minimum standards, the permission to intern enemy soldiers would
be rendered invalid, even though the military necessity of preventing such
enemy soldiers from returning to the battlefield would remain unchanged. The
Detaining Power will then be left with two options: ‘release and repatriate
prisoners directly to the enemy, or … conclude agreements whereby affected
prisoners will be detained in a neutral State’.119
In addition, and for the same reason, the end of internment shall also be
considered as being inherent in the permission to intern. While hostilities
are still ongoing, prisoners of war may be interned (except in specific cases
mentioned before, such as because they have given their parole or for health
reasons). When hostilities have stopped, Article 118 of GCIII then provides
that ‘[p]risoners of war shall be released and repatriated without delay after
the cessation of hostilities’. It is clear that there can be no military necessity
114
Ryan Goodman and Derek Jinks, ‘International Law, U.S. War Powers, and the
Global War on Terror’, Harvard Law Review, Vol. 118, No. 7 (2005), 2660–2661.
115
116
Ibid.
117
Goodman and Jinks, ‘U.S. War Powers’ (n 114), 2661, footnote 44 (emphasis in
original), referring to Final Record (n 22), 837.
118
We should add the qualification that respect for certain articles is made depend-
ent upon what is required by the circumstances – for instance Arts 26 (food), 27 (cloth-
ing) or 30 (medical attention) – or dependent upon an equivalent protection to that
granted to the Detaining Power’s own forces – e.g. Arts 20 (conditions of evacuation),
25 (quarters), or 51 (working conditions).
119
Goodman and Jinks, ‘U.S. War Powers’ (n 114), 2661.
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to intern prisoners of war once hostilities have ceased. But it is important to

note that the wording of Article 118 changes the way release was approached
in earlier instruments. While release and repatriation had usually been made
conditional on the existence of an armistice or a peace treaty,120 the obligation
now materializes ‘when, in good faith, neither side expects a resumption of
hostilities’.121 Once it factually appears that hostilities have ceased and are not
likely to resume, the permission to intern prisoners of war disappears, to the
effect that no new enemy combatant may be captured and interned, but also
that the existing prisoners of war shall be released and repatriated.
In conclusion, we have shown in this section that Article 21 of GCIII pro-
vides Detaining Powers the permission to intern enemy prisoners of war, and
implicitly rejects the need for any additional procedure beyond that of remov-
ing any doubt as to the status of the prisoner of war. The permission is status
based and can be applied collectively to all enemy prisoners of war. Its scope
may nevertheless be limited: in cases where the Detaining Power is generally
unable or unwilling to respect the obligations contained in GCIII and protect-
ing prisoners of war, the permission to intern may be invalidated.
120
See Art. 20 HR; Art. 75 1929 GC. The Versailles Peace Treaty between France
and Germany after the First World War made release and repatriation conditional
not only on the existence of that treaty, but also of its coming into force, which only
occurred in January 1920 (Art. 214 of the treaty).
121
Georg Schwarzenberger and E. D. Brown, A Manual of International Law, 6th
ed. (Milton: Professional Books, 1976), 175.
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The Authority To Intern Prisoners of War in International Armed Conflict

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6.

The authority to intern prisoners of

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no conventional rule of IHL requires the existence of a legal basis to intern

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allows the internment of other persons considered as prisoners of war. Finally,

1. A STRONG PERMISSION TO INTERN ENEMY

As mentioned, Article 21 of GCIII states that ‘[t]he Detaining Power may

1.1 Brief Historical Account of the Authority to Intern Prisoners of

The question of whether IHL permitted belligerents to intern prisoners of war

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Anne Quintin - 9781839107443

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1.2 Article 21 of GCIII: a Strong Permission Derived from the

As discussed in Chapter 3,31 military necessity as a fundamental principle of

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1.3 Permission to Intern and Definition of Combatants

• Article 4(A)(1), related to ‘[m]embers of the armed forces of a Party to the

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• Article 4(A)(3), related to ‘[m]embers of regular armed forces who profess

1.3.1 Permission to intern members of a levée en masse

For a discussion on the definition of the categories of prisoner of war, see

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1.3.2 Permission to intern enemy combatants in occupied territory

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1.3.3 Permission to intern combatants who have forfeited their right

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1.3.4 Permission to intern so-called ‘unlawful combatants’

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GCIII) shall be considered as a civilian (and hence will be covered by GCIV).67

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absence of a permissive rule under GCIII or under customary law covering

2. A STRONG PERMISSION TO INTERN

Coming back to Article 4 of GCIII, we also find categories of persons who,

• Article 4(A)(4), related to ‘[p]ersons who accompany the armed forces

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…’.73 The wording of Article 34 was later modified to become Article 13 of

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would be granted prisoner-of-war status only ‘provided they [were] in pos-

3. A STRONG PERMISSION TO INTERN

We have so far focused on Article 21 of GCIII as the permission for the

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Article 24 of Hague Convention XIII85 similarly states:

Finally, GCIII also encourages the internment of prisoners of war in neutral

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4. VALIDITY OF THE PERMISSION

Article 21 of GCIII constitutes a strong permission, and therefore can be said

4.1 Collective Versus Individual: a Status-based Permission

Article 21 of GCIII gives a broad permission to intern prisoners of war. It is

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